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2014 DIGILAW 290 (CAL)

Md. Sarif v. Md. Mahamood

2014-03-28

ARINDAM SINHA, JYOTIRMAY BHATTACHARYA

body2014
Judgment : Arindam Sinha, J. The appellant/plaintiff since deceased had filed a suit for partition and accounts against the defendant no.1. He alleged that one Sk. Gaffar alias Sk. Gafur was the father of the defendant no.1 and himself. Khairan Bibi was their mother. The property being holding no. 40, Hara Charan Mukherjee Lane, P.S Howrah, belonged to their parents. Sk. Gaffar died on 10th January, 1967 leaving him surviving his wife Khairan Bibi, his sons Md. Mansur, the plaintiff and the defendant no.1 as his heirs who inherited the suit property. Khairan Bibi died on 21st February, 1981. According to the plaintiff the said property came to be inherited equally by the defendant no.1 and himself since their said elder brother Md. Mansur had died in the year 1986 without leaving any issue, his wife having pre-deceased him. Hence the suit wherein the said property is the subject matter. The defendant no.1 resisted the claim of the plaintiff on the allegation that the plaintiff was not his brother. According to the defendant no.1 the plaintiff was the son of one Peer Md. and not of his parents Sk. Gafur and Khairan Bibi. The defendant no.1 alleged that his father the said Sk. Gafur had two sons, Md. Mansur and himself as well as two daughters Amina Khatun and Sahidun Bibi who together inherited the suit property. The defendant no.1 however did not dispute that Md. Mansur had died issueless. It appears that thereafter the plaintiff caused amendment to his plaint by, inter alia, adding the defendant nos. 2, 3 and 4 being respectively the two sisters and the son of Md. Mansur which was not disputed by the defendant no.1 in his additional written statement filed thereafter. On those pleadings issues were framed by the Ld. Trial Court of which issue no.3 was – “Is the plaintiff son of Sk. Gaffar alias Gafur and Khairan Bibi?” The Ld. Court below took up for adjudication, inter alia, issue no.3, found in favour of the plaintiff and passed a preliminary decree on contest against the defendant no.1 and exparte against defendant nos.2 to 4. It was declared that the plaintiff and the defendant nos.2 to 4 each have ¼th share in the A schedule property and the defendant no.1 has half share therein. Against this the defendant no.1 has come up in first appeal. It was declared that the plaintiff and the defendant nos.2 to 4 each have ¼th share in the A schedule property and the defendant no.1 has half share therein. Against this the defendant no.1 has come up in first appeal. The short question which arises is whether or not the plaintiff is the son of Sk. Gaffar/Gafur and therefore entitled to a share in the suit property. Mr. Bidyut Banerjee, Learned Senior Advocate has relied upon exhibit-A being a certificate dated 16th August, 1984 issued by the Chief Personal Manager of Remington Rand Ltd. The said certificate was tendered through the plaintiff in cross-examination, on admission. The certificate is to the effect that, inter alia, the plaintiff is the son of Peer Md. The specimen signature of the plaintiff appears in the certificate. The plaintiff in such cross-examination had thereafter deposed that he had not made any untrue statement during the joining of his service as employee of Remington Rand. Mr. Banerjee submitted that the above documentary and oral evidence is the best evidence. The document was duly tendered and as such the existence and contents thereof stood proved. The document contains the admission of the plaintiff of the assertion made by his client that the plaintiff is the son of Peer Md. The admission was not explained and, therefore, any other contrary evidence sought to be produced by the plaintiff cannot be relied upon. Mr. Banerjee cited the decisions reported in AIR 1972 Supreme Court 608 (P.C. Purushothama Reddiar Vs. S. Perumal); (2003) 8 Supreme Court Cases 752 (R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesara Swami & V.P. Temple); and (2010) 8 Supreme Court Cases 452 (Kapil Corepacks (P) Ltd. Vs. Harbans Lal). Relying on the above authorities Mr. Banerjee submitted that the admissibility of a document was not open to challenge when the document had been tendered properly. A document duly tendered on admission was proof of its existence as well as contents. He submitted that the case of the defendant no.1 stood admitted by the plaintiff by proof of exhibit-A on admission by the plaintiff and thereafter his confirmation in oral evidence that he had not made any untrue statement during the joining of his service with Remington Rand. All other oral or documentary evidence of the plaintiff should have been disbelieved. Mr. All other oral or documentary evidence of the plaintiff should have been disbelieved. Mr. M.P. Gupta Learned Advocate appearing on behalf of the plaintiff submitted the plaintiff was the son of Sk.Gaffar as would appear from exhibits 1 and 2 respectively being the certified copies of extracts from the marriage register recording entries made of the plaintiff’s marriage and from the register of deaths regarding the record of death of the plaintiff’s father Sk. Gafoor on 10th January, 1967. He further relied on the oral evidence of plaintiff witness no.2. He submitted that PW2 is the cousin brother of the plaintiff who clearly deposed that the plaintiff is not the son of Peer Md. but Peer Md. is the maternal uncle of the plaintiff. Mr. Gupta pointed out that it would appear from the cross-examination of PW2 that the father of the said witness and Sk. Gafur were brothers. This was the evidence of a near relative of both the plaintiff and the defendant no.1, a person who knows and whose evidence was clear and credible. Mr. Gupta further submitted that in any event, his clients, the substituted plaintiffs had made an application for production of additional evidence in this appeal which, if allowed, such additional evidence would support the findings in the judgment of the Ld. Trial Court below. We have given our anxious consideration to the evidence on record as well as the documents which the substituted plaintiffs seek to produce as additional evidence in this appeal. We do not find any relevance of the documents sought to be produced by the substituted plaintiffs at this stage with the point of controversy between the parties in this appeal. None of the documents, copies of which are annexed to the application being CAN 11737 of 2013 is a document that would go to show that the defendant no.1 had accepted the plaintiff to be his brother. There is no explanation of the plaintiff regarding his admission of the fact that on his request the certificate being exhibit A was issued by his employer. The certificate bears his statement that Peer Md. Was his father and the plaintiff appears to have duly signed the said certificate. It was known to the plaintiff on the date of issuance of the said certificate, what were the contents of it. The certificate bears his statement that Peer Md. Was his father and the plaintiff appears to have duly signed the said certificate. It was known to the plaintiff on the date of issuance of the said certificate, what were the contents of it. There is not a whisper either in his pleadings or in his examination that he had otherwise held out that Peer Md. was his father. On scrutiny of the entire oral evidence on record we find that to a suggestion put to the defendant no.1 in his cross-examination, the said defendant had said that it was not a fact that the plaintiff went to his maternal uncle Peer Md. for a service and for the purpose of getting job Peer Md. entered his name as the father of the plaintiff in the service record. We find the documentary evidence particularly relied upon by the plaintiff being exhibits 1 and 2 are record of information furnished by the plaintiff respectively in around 16th November, 1957 and 10th January, 1967. It appears from exhibit 1 that on 16th November, 1957 the plaintiff had furnished information, inter alia, that Abdul Gafoor was his father and his father had signed in the marriage register as Abdul Gaffar in Urdu. From exhibit 2 it appears that the plaintiff had got recorded in the register of deaths relating to Bantra Burial Ground maintained by Howrah Municipal Corporation that Sk. Gafoor was his father. This was sought to be corroborated by the plaintiff by his uncle who, it appears, did not contradict himself. However, in the face of his own admission made later and confirmed by his oral evidence without providing any explanation therefor, we are unable to find in favour of the plaintiff. The Hon’ble Supreme Court in the case of Kapil Corepacks (P) Ltd. (supra) had said that admission must obviously be a conscious and deliberate act and that admission can be explained. We are compelled to hold that the admission by the plaintiff of the defendant’s case that the plaintiff is the son of Peer Md. as would appear from exhibit-A tendered by him on admission in cross-examination, must obviously be taken to have been done consciously and deliberately without any attempt to explain the same. That is the best evidence. In the circumstances, we are unable to agree with the findings of the Ld. Court below. as would appear from exhibit-A tendered by him on admission in cross-examination, must obviously be taken to have been done consciously and deliberately without any attempt to explain the same. That is the best evidence. In the circumstances, we are unable to agree with the findings of the Ld. Court below. The appeal succeeds and is allowed. CAN 11737 of 2013 is rejected. The judgment dated 25th November, 1998 in Title Suit no.24 of 1987 made by the 1st Court of Civil Judge, Howrah is set aside and the suit of the plaintiff is dismissed. There, however, will be no order as to costs. I agree.