Tuesday, 18 June 2019

Whether document can be challenged after it is exhibited?

On a document being exhibited, the party against it is being brought on record, is entitled to question it on the ground of it being inadmissible. What is not open to question is the mode of proof put forward that it was irregular or insufficient. I find support from the decision of a Privy Council judgment reported in Gopal Das v. Sri Thakurji, AIR (30) 1943 PC 83.

Rajasthan High Court
Prabhu Dayal vs Suwa Lal And Anr. on 20 August, 1993
Equivalent citations: AIR 1994 Raj 149, 1994 (1) WLC 620

Bench: K Agrawal


1. In this second appeal a learned single Judge remitted the following two issues to the Additional District Judge. Alwar for remitting his finding on the same:--
{Vernaculars omitted}
 A The learned Additional District Judge allowed the parties to produce evidence in support of their respective cases and thereafter gave its finding that the will dated 9-12-1955 alleged to have been executed by Ram Chandra in favour of Smt. Ganeshi was suspicious and was also not legal in as much as no probate under Section 57(a) as required by Section 213 of the Indian Succession Act had been obtained.
2. The finding was attacked by the learned counsel on the ground that the issue remitted by this Court did not confer jurisdiction on the Additional District Judge to judge the correctness of the will on the ground on which he had done.
 3. I do not find any substance in the  contention
 of the learned counsel for the appellant. 
   The issue remitted was:  
 

{Vernaculars omitted}

Under this issue, the Additional District Judge could find out as to whether the will was suspicious or not and aiso whether its execution was legal or not. Both these aspects fall within the jurisdiction of the Additional District Judge and were rightly decided against the appellant.
4. On the second issue, the Additional' District Judge found that since the respondents were agnates and as such being nearer in relationship than the appellant, were entitled to the property involved in the suit. This question had been considered by the Additional District Judge on the basis of the pedigree and the evidence led by the parties in support of their respective cases. No illegality could be pointed out by the learned counsel for the appellant against the same.
5. Counsel next urged that Smt. Gandhi had acquired the right under Section 14 of the Indian Succession Act and as such she became full owner hence could not be divested of that right.
6. Neither was this plea taken before Mr. Justice S.N. Bhargava, who remitted the case nor before the Court below. This is a question of fact, which would required evidence to be decided.
7. Hence, none of the objections filed against the finding of the Additional District Judge is sustainable.
8. Another point, which deserves to be noticed in this appeal is about the scope and power of this Court while remitting the issue under Order 42, Rule 2, C.P.C Order 42 of the Code by means of Act No. 104 of 1976, which came into force w.e.f. 1-2-1977 inserted the following provision:
"2. Power of Court to direct that the appeal be heard on the question formulated by it: At the time of making an order under Rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by Section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of Section 100."
Appeal itself was filed in the High Court in July 1977. Consequently, the Order 42, Rule 2 was applicable. Two questions formulated did not raise substantial questions of law as was required by Section 100, C.P.C. Hence, the submission of the learned counsel for the appellant against the findings remitted is not sustainable.
9. In a Full Bench decision given in Chatar Lal v. Ramdas, AIR 1979 Raj 87 the view taken was that the finding returned is not open to attack, except on the grounds stated in Section 100, C.P.C. Counsel for the appellant did not attack the finding on the said grounds. The relevant portion of the Full Bench decision is as under at page 98 :
"When an issue is remitted under Order 41, Rule 25, C.P.C. in second appeal to the first appellate Court, the finding of fact sent back by the first appellate Court is not open to attack, except on the grounds stated in Section 100, C.P.C. This view is in consonance and harmony with the provisions contained in Order 42, Rule 1, and Sections 100101 and 103, C.P.C."
10. In Ishwar Bhatta v. Ishwara Bhatta, AIR 1962 Mysore 61 the view taken was the same as that of the Full Bench of the Rajasthan High Court. It was held in this judgment that findings remitted by the first appellate Court are immune from attack except on the ground of error of law.
11. Counsel for the appellant urged that as the will had been exhibited, no question about its suspicious nature could either be raised or gone into by the lower appellate Court. According to his submission, exhibiting a document debars a court from reopening a question of its admissibility.
12. The above submission is not correct. On a document being exhibited, the party against it is being brought on record, is entitled to question it on the ground of it being inadmissible. What is not open to question is the mode of proof put forward that it was irregular or insufficient. I find support from the decision of a Privy Council judgment reported in Gopal Das v. Sri Thakurji, AIR (30) 1943 PC 83.
13. Learned counsel for the appellant also contended that the finding of the Additional District Judge that he was a cognate and, therefore, was below the degree of the respondents has been incorrectly decided. It may be recalled that whenever a relationship of one person with another female (or more than one female) intervenes anywhere in the line, one is a cognate to another. Thus, daughter's son and daughter, and son's daughter's son and daughter are cognates. A cognate can be male or female. One would notice that the number of cognates is larger than the number of agnates. The reason is that while an agnate traces his relationship to the propositus wholly through males, a cognate is not required to trace his or her relationship with the propositus wholly through females. After the failure of class I and class 11 heirs, property is inherited by the agnates and on their failure, by the cognates.
14. Thus, as the lower appellate Court has found that the respondents are agnates, they would have preference over the appellants being cognates.

15. For the reasons stated above, this appeal fails and is dismissed with costs.
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