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2014 DIGILAW 556 (CAL)

Sadique Hossain v. Jahangir Alam

2014-06-26

TAPAN KUMAR DUTT

body2014
JUDGMENT Tapan Kumar Dutt, J. This Court has heard the learned Advocates for the respective parties and has considered the relevant materials on record. The plaintiff no. 1/appellant along with the plaintiff no. 2/respondent filed a suit against the other respondents praying, inter alia, for a decree for partition upon declaration of plaintiffs’ shares in the suit property. It appears that the said suit was filed in the year 1975. The said suit was initially dismissed. An appeal was preferred against such decree of dismissal and the learned Lower Court remanded the matter back to the learned Trial Court for a fresh decision on the question as to whether or not one Abdul Latif had died earlier than that of one Asia Bibi. It may be recorded here that Abdul Latif had more than one wife and the said Asia Bibi happened to be his third wife. The defendant no. 2 is the son of the said Asia Bibi. The defendant no. 2 has sold his alleged right, title and interest of the suit property in favour of the defendant no. 1. Initially a question was raised as to whether or not the property was actually purchased by Abdul Latif in the benami of his wife, Asia Bibi, but that question was settled by the learned First Appellate Court below by declaring that the property actually belonged to the said Asia Bibi. The matter did not stop there as a further question arose in the matter, that is, whether Abdul Latif had died earlier than Asia Bibi as it was thought that if Abdul Latif had died earlier than Asia Bibi, then it would be difficult for the plaintiffs to claim any share of the property as a successor to Abdul Latif but if the Court finds that Abdul Latif had died later than that of Asia Bibi, then a question would arise as to what extent the plaintiffs have succeeded to the estate of Abdul Latif vis-à-vis the suit property. After the matter went back on remand to the learned Trial Court, the learned Trial Court found that Abdul Latif had died before Asia Bibi had died and the learned First Appellate Court has affirmed such finding of the learned Trial Court. Challenging such judgment of affirmance, the plaintiff no. 1 has preferred the instant second appeal which was admitted on certain substantial questions of law. Challenging such judgment of affirmance, the plaintiff no. 1 has preferred the instant second appeal which was admitted on certain substantial questions of law. The following substantial questions of law were formulated by a learned Division Bench while admitting the appeal. “(I) Whether the Courts below erred in law substantially in admitting the death certificate of Abdul Latif which was Exhibit ‘D’ in evidence although the death register from which it was issued was not produced from the office of the Calcutta Municipal Corporation D.W. 5 was not aware who wrote the entries in the Register from which Exhibit ‘C’ which was the death certificate of Ayesa Khatoon was issued and, therefore erroneously dismissed the suit holding the Exhibits as conclusive proof causing serious miscarriage of justice. (ii) Whether the courts below substantially erred in law in not considering the petition filed by the appellant objecting the admission of the Exhibits ‘C and D’ and wrongly taking adverse presumption under Section 114G of the Evidence Act for not adducing any evidence after remand and fot not calling the Registers or examining any witness though the plaintiff filed two xerox copies of the death certificates and thereby erroneously draw adverse inference against the appellant, or not.” On the aforesaid two substantial questions of law, the instant appeal has been admitted for hearing. The learned senior Advocate appearing on behalf of the plaintiff no. 1/appellant referred to the pleadings of the parties and submitted that in the plaint it was stated that Abdul Latif died in the year 1948 and his wife Asia Bibi died in the year 1942 and such statement has not been denied in the written statement. However, this is not the correct state of affairs as it is found that in the additional written statement the defendant no. 1 has stated that Abdul Latif died on 21.3.1944 and Asia Bibi died on 18.9.1944. However, the learned senior Advocate for the appellant referred to Exhibit – ‘B’ i.e. the sale deed by which the defendant no. 2 had transferred the suit property to the defendant no. 1 and from such sale deed it appears that the defendant no. 2 made a declaration that the said Asia Bibi died in the year 1942. The defendant no. 2 had transferred the suit property to the defendant no. 1 and from such sale deed it appears that the defendant no. 2 made a declaration that the said Asia Bibi died in the year 1942. The defendant no. 2 claims to be the son of the said Asia Bibi and the said son of Asia Bini himself had stated that in the year 1942 Asia Bibi had died. It would appear from the impugned judgment delivered by the learned Lower Appellate Court that the learned Lower Appellate Court took note of the fact that the recitals of the said Exhibit – ‘B’ shows that Asia Bibi died in the year 1942. The learned Lower Appellate Court had also noted the fact that D.W. 2. Abdur Rashid has also stated in his oral evidence that his mother died in the year 1942 but his father, Abdul Latif, died six months before the death of his mother. It may be pointed out here that the learned Advocate for the respondent no. 1 submitted that the plaintiffs in their evidence took contradictory stand with regard to the death of the said Abdul Latif. Be that as it may, it appears from the records that the dispute has been raised with regard to the date of deaths of the said Abdul Latif and Asia Bibi and the learned Courts below relied upon Exhibits – ‘C’ and ‘D’ which are supposed to be certified copies of the respective death certificates of Asia Bibi and Abdul Latif. The learned Advocate for the respondent no. 1 submitted that from the evidence of the plaintiffs, it would appear that Abdul Latif had died during the second world war and, therefore, the death of Abdul Latif could not have taken place in the year 1948. Since different versions from both the sides appeared, the learned Courts below thought fit that it would be proper to rely upon the documents produced by the Calcutta Municipal Corporation in this regard. In so far as the death certificate of Asia Bibi is concerned i.e. the Exhibit – ‘C’ the original death register was produced but the learned Courts below found the serial number of the entries in the death register pertaining to Asia Bibi was corrected from serial no. 733 onwards and the original serial number of the entry as regards the death of Asia Bibi was 832. 733 onwards and the original serial number of the entry as regards the death of Asia Bibi was 832. The learned Courts below also found that the register shows that one Md. Hossain signed on the resister of death in which the death of Asia Bibi was registered that was mentioned in the death certificate filed by the defendant i.e. Exhibit – ‘C’. The learned senior Advocate for the appellant submits that in such background the very authenticity of the death certificate relating to Asia Bibi has come into question, particularly when it would appear from the records that the original death register pertaining to the death of Abdul Latif has not been produced in evidence on behalf of the defendants. The learned senior Advocate appearing on behalf of the appellant submitted that in the facts and circumstances of the present case, the learned Courts below were not right in allowing the defendants to adduce secondary evidence when they failed to establish that the original documents have been lost for-ever and can never been traced out. The said learned senior Advocate further submitted that certified copies of the respective death certificates are doubtful and no reliance can be placed on such certified copies particularly when the original death register pertaining to the death of Abdul Latif was not adduced in evidence. The learned Advocate for the respondent no. 1 referred to the evidence of D.W. 5 and submitted that in spite of best efforts the said D.W. 5 could not produce the original death register relating to the death of Abdul Latif. It would appear from the evidence of D.W. 5 that he has stated that he can tell his In-Charge to issue a certificate that the said death register cannot be found out but such certificate has not been produced subsequently and no such certificate is on record. It is true that the D.W. 5 has stated that in spite of best efforts he could not find out the original register but he has not stated that even if reasonable time is granted, he will not be able to produce the same. On the contrary in his evidence he has stated that he can produce the said register if some time is given to him to trace out the same. There is no positive statement from such witness that the said death register has been lost or destroyed. On the contrary in his evidence he has stated that he can produce the said register if some time is given to him to trace out the same. There is no positive statement from such witness that the said death register has been lost or destroyed. He says in his evidence that he has no personal knowledge about the authenticity of the document and he has brought the death register for the years 1942 and 1948 and also a part of the death register of 1944 but curiously enough he could not produce the death register relating to the other part of 1944. It appears to this Court that the learned senior Advocate for the appellant has rightly argued that Section 65 of the Evidence Act cannot be pressed into service by the defendant in the facts and circumstances of the instant case. This is so particularly when the defendant no. 2 has declared in the deed by which he sold the suit property to the defendant no. 1 that the said Asia Bibi had died in the year 1942. The evidence of D.W. 5 also creates doubts about the authenticity of the Exhibit – ‘C’ as he states in his evidence that he has no personal knowledge as to the correctness of Exhibit – ‘C’ and the entry number on the said document has been subsequently corrected and the signature of one Md. Hossain is missing, as indicated earlier. The said witness has also stated that he could tell In-Charge to issue a certificate that the said death register cannot be found out but it is not known as to why such certificate did not see the light of the day. In view of the discussions made above, this Court is of the view that the learned Courts below were not right in relying upon the Exhibits ‘C’ and ‘D’ only for the purpose of deciding the question as regards the date of deaths of the said Abdul Latif and Asia Bibi. In view of the discussions made above, this Court is of the view that the learned Courts below were not right in relying upon the Exhibits ‘C’ and ‘D’ only for the purpose of deciding the question as regards the date of deaths of the said Abdul Latif and Asia Bibi. This Court is of the view that the judgments and decrees passed by the learned Courts below should be set aside and the matter should be sent back on remand for a fresh decision on the question on which the learned Trial Court was required to decide the matter that is to find out as to whether or not the said Abdul Latif had died earlier than that of Asia Bibi and the respective dates of deaths of the said two persons namely Abdul Latif and Asia Bibi. Accordingly, the judgment and decree dated 17th August, 1999 passed by the learned Additional District Judge, 13th Court, Alipore, 24-Parganas (South) in T. A. 81 of 1999 and the judgment and decree dated 20th April, 1999 passed by the learned Civil Judge (Senior Division), 5th Court, Alipore, 24-Parganas (South) in T.S. 89 of 1975 are hereby set aside and the matter is sent back on remand to the learned Trial Court for a fresh decision with regard to the respective dates of deaths of the said Abdul Latif and Asia Bibi and, accordingly, for a fresh decision in the suit itself. The learned Trial Court shall allow the parties to adduce fresh evidence on the said point and thereafter consider the matter in the light of the evidence already on record and further evidence that may be adduced by the parties with regard to the aforesaid question. The learned Trial Court shall try and dispose of the suit as expeditiously as possible but preferably within a period of one year from the date of communication of this judgment and receipt of the lower court records. Let the lower court records be sent back to the learned Trial Court and the copy of this judgment be also communicated to the learned Trial Court by special messenger and the special messenger cost for such purpose shall be put in by the appellant within one week. The appeal is, thus, disposed of. However, there will be no order as to costs.