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Privy Council Appeal No. 17 of 1945
Bengal Appeal No. 15 of 1943
[1946] A.C.508
Srimati Bibhabati Devi
Appellant
v.
Kumar Ramendra Narayan
Roy and others Respondents
FROM
THE HIGH COURT OF
JUDICATURE AT FORT WILLIAM IN BENGAL
_________________
JUDGMENT OF THE
LORDS OF THE JUDICIAL COMMITTEE OF
THE PRIVY
COUNCIL, DELIVERED THE 30th JULY 1946
_________________
Present at the
hearing:
Lord Thankerton
Lord du Parcq
Sir Madhavan Nair
[Delivered by Lord Thankerton]
_________________
This is an appeal
by special leave from a decree of the High Court of Judicature at Fort William
in Bengal, dated the 25th November 1940, dismissing an appeal against a decree
of the First Additional District Judge, Dacca, dated the 24th August 1936.
The present suit was instituted in the Court of the First Subordinate
Judge at Dacca on the 24th July 1930, by the respondent Kumar Ramendra Narayan Roy (hereinafter
referred to as the plaintiff) against the present appellant and others. In the plaint, as subsequently amended on the
15th April 1931, the plaintiff sought (ka) a declaration that he is Kumar Ramendra Narayan Roy, the second
son of the late Rajah Rajendra Narayan
Roy of Bhowal and (ka 1), that his possession should
be confirmed in respect of the one-third share of the properties described in
the schedule, or, if from the evidence and under the circumstances plaintiff’s
possession thereof should not be established, then possession thereof should be
given to him. He further asked for
injunctions against obstruction to his possession. The present appellant filed a written
statement denying, inter alia, the identity of the
plaintiff with Kumar Ramendra Narayan
Roy (hereinafter referred to as the Second Kumar), and alleging that the suit
was barred by limitation. Issues were adjusted, and those now relevant are,
2. Is the suit barred by limitation?
4. Is the Second Kumar Ramendra Narayan Roy alive?
5. Is the present plaintiff the Second
Kumar Ramendra Narayan Roy
of Bhowal?
After a
very long trial lasting for 608 days, the First Additional District Judge
delivered an elaborate and careful judgment in favour of the plaintiff on the
24th August 1936, and by his order of the same date he ordered and decreed
“that it be declared that the plaintiff is the Kumar Ramendra
Narayan Roy, the second son of the late Rajah Rajendra Narayan Roy, Zamindar of Bhowal, and that he
be put in possession of an undivided one-third share in the properties in suit
– the share now in the enjoyment of the first defendant (the present appellant)
– jointly with the other defendants’ possession over the rest.” On an appeal by the present appellant, the
appeal was heard by a Special Bench of the High Court, consisting of Costello, Biswas and Lodge JJ., and by decree dated the 25th November
(Lodge J. dissenting) it was ordered and decreed “in accordance with the
opinion of the Majority of the Judges that the judgment and decree of the Court
below be and the same are hereby affirmed and this appeal dismissed.”
It will be convenient to restate
the short account of the family history in the judgment of the trial
Judge:- Rajah Rajendra
Narayan Roy, the Zamindar
of Bhowal, one of the largest landed proprietors of
East Bengal, died on the 26th April 1901.
The title was personal, but the family was old, and though not entitled
to fame, regarded as the premier Hindu Zamindar
family of Dacca. The family-seat is at Jaidebpur, a village about 20 miles from Dacca, and situate
in the Pargana of Bhowal, a
large and fairly compact estate, spreading over the districts of Dacca and Mymensingh. The
Rajah had a residence at Dacca, but he ordinarily lived in his family home, and
was undoubtedly a local magnate of the highest position and influence. The rent-roll of the estate was Rs. 6,48,353 in 1931. It could not have been much less in the
Rajah’s time.
The Rajah died leaving him
surviving, his widow, Rani Bilasmani,
and three sons and three daughters. The
sons were: Ranendra
Narayan Roy, Ramendra Narayan Roy and Rabindra Narayan Roy. These,
mentioned in order of seniority, were known as Bara
Kumar, Mejo Kumar and Chhoto
Kumar. The daughters were Indumayee, Jyotirmoyee, and Tarinmoyee. Indumayee was
the eldest child, Jyotirmoyee the second, then had
come the sons, and then the youngest child, Tarinmoyee
Debi.
The Rajah had executed before
his death a deed of trust and a will, and, though the exact terms of these are
not known, their result, as agreed, was that the estate, upon his death, vested
in the Rani, his widow, in trust for the three
sons. She managed as trustee till her
death which took place on the 21st January 1907. Upon that event the three sons became the
owners at law, as they had been in equity;
and there is no question that the Second Kumar owned a third share in
the estate, and would be owning it still, if he be alive, unless he has been
prescribed against for the requisite period.
The three Kumars,
after the death of their mother, as before, lived as an undivided Hindu family,
joint in mess, property and worship. The
eldest Kumar was married in 1901 to Sarajubala Debi, the second defendant in this suit. The Second Kumar was married in 1902 to Bibhabati Debi, the present
appellant, and the third Kumar in 1904 to Ananda Kumari Debi, the fourth defendant
in this suit. The family lived at Jaidebpur, and the three sisters, all married, lived as
members of the family. Another member of
the family was the grandmother, Rani Satyabhama, who had survived her son Rajah Rajendra. The Rajah
had a sister, Kripamoyee, who survived him, and who
was practically a member of the family, though she lived in a separate block
with her husband. The first Kumar died
in 1910; the
Third Kumar died in 1913, and his widow, the fourth defendant, adopted in 1919
a son, Ram Narayan Roy, who is the third
defendant. Indumayee
and Kripamoyee died in 1920,
and Satyabhama died in 1922.
A brief outline of the
contentions of the parties is as follows:-
there is no dispute that the Second Kumar and the appellant, with a
large party went from Jaidebpur to Darjeeling in
April 1909, arriving at the latter place on the 20th April, and took up their
residence at a house called “Step Aside”, which had been rented for their
stay; and, further, that at that time
the Second Kumar had gummatous ulcers on or about
both elbows and on his legs, being the tertiary stage of syphilis, which he had
contracted at some date subsequent to 1905.
It is also agreed that he was taken for dead on the 8th May 1909. The appellant maintains that the Second Kumar
died shortly before midnight and that the following morning his body was taken
in a funeral procession and was cremated with the usual rites at the new sasan at Darjeeling.
The plaintiff admits that there was a funeral procession and cremation
on the morning of the 9th May, but maintains that the body so cremated was not
that of the Second Kumar; his case is
that the Second Kumar was taken for dead about dusk, between seven and eight
o’clock, in the evening of the 8th May, that arrangements were at once made for
cremation, that the body was taken in funeral procession to the old sasan, and placed in position for cremation, when a violent
storm of rain caused the party to take shelter, and that, on their return after
the rain had abated, the body was no longer there; that thereafter another body was procured and
taken to “Step Aside”, and was the subject of the procession and cremation the
following morning.
On the 10th May, the appellant,
with the rest of the party, left Darjeeling for Jaidebpur,
where she had her ordinary residence until April 1911, when she left for
Calcutta, to live there permanently with her mother and brother Satyendra in a rented house. She began to enjoy her widow’s estate in the
undivided one-third share of the Bhowal estate, which
the Second Kumar had owned, and she recovered the proceeds, amounting to Rs. 30,000, of a life policy taken out by the Second Kumar,
the necessary certificates of his death having been provided. Soon after her departure for Calcutta, the
Court of Wards took charge of the appellant’s share of the Bhowal
estate, and an attempt by her to obtain its release having been unsuccessful,
her share remained in charge of the Court of Wards up to the time of the decree
in the present suit.
On the other hand, the
plaintiff’s case is that while the funeral party were sheltering from the
storm, he was found to be still alive by four sanyasis
(ascetics), who were nearby and had heard certain sounds from the sasan, and who released him and took him away, looked after
him, and took him with them in their wanderings; that when he had recovered from an
unconscious state, he had lost all memory of who he was, where he came from and
of past events. He lived and garbed
himself as a sanyasi would, smeared himself with ashes and grew long matted hair and a
beard. Some eleven years later he
recalled that he came from Dacca, but not who or what he was; that in December 1920, or January 1921, he
reached Dacca, and took up a position on the Buckland
Bund, a public walk on the margin of the river Buriganga,
at Dacca, where people promenade, morning and evening, for pleasure or
health. He could be found seated at the
same spot, day and night, with a burning dhuni
(ascetic’s fire) before him. Then
followed a period of gradual recognition or suspicion of him as the Second
Kumar by certain people, which culminated in the removal of the ashes, and
after greatly increased recognition of him as the Second Kumar by relatives and
others, a declaration by him of his identity as the Second Kumar in the
presence of many people on the 4th May 1921, and that mainly on the insistence
of his sister Jyotirmoyee, who accepted him as such
and was one of his principal witnesses.
It is unnecessary, for the present purpose, to say anything about the
very large body of evidence, oral and documentary, as to recognition of the
plaintiff as the Second Kumar, or as to his identity with the Second Kumar,
mentally, culturally, or physically. It
may be added that both the trial Judge and the Judges of the High Court had the
advantage of a personal inspection of the plaintiff, which would not be
available to this Board.
The appellant is at once faced
with the concurrent judgments of two Courts on a pure question of fact, and the
practice of this Board to decline to review the evidence for a third time,
unless there are some special circumstances which would justify a departure
from the practice. Their Lordships
propose to review the decisions of the Board to ascertain the practice as it
now stands, as there can be no doubt that the later decisions have somewhat
modified the earlier form of the practice, and also in order to discuss the
nature of the special circumstances which will justify a departure from the
practice.
The earliest case to which
reference may be made is Mudhoo Soodun
Sundial v. Suroop Chunder Sirkar Chowdry, (1849) 4 Moore Ind. App. 431; Dr. Lushington, in delivering the judgment of the Board, said
(at p. 433) “Both the Courts below have decided against the validity of the
instrument; a fact which, considering
the advantages the Judges in India generally possess, of forming a correct
opinion of the probability of the transaction, and in some cases of the credit
due to the witnesses, affords a strong presumption in favour of the correctness
of their decisions, but does not, and ought not, to relieve this, the Court of
last resort, from the duty of examining the whole evidence, and forming for
itself an opinion upon the whole case.”
A similar statement was made by Lord Kingsdown,
who delivered the judgment, in Naragunty Lutchmeedavamah v. Vengama Naidoo, (1861) 9 Moore Ind. App.
66, at p. 87, and by Lord Cairns, in delivering the judgment in Tareeny Churn Bonnerjee v.
Maitland, (1867) 11 Moore Ind. App. 317, at p. 338,
in which he states that the Courts below were unanimous.
In November 1886, in the
judgment of the Board, consisting of Lord Fitzgerald, Lord Herschell
and Sir Barnes Peacock, in Allen v. Quebec Warehouse Company, (1886) 12 App. Cas. 101, Lord Herschell, who
delivered the judgment, said (at p. 104) “Their Lordships having arrived at the
conclusion that there has been no error in point of law, the sole question that
remains for determination has been whether the judgment of the Court below
ought to be reversed on the ground that the judges have taken an erroneous view
of the facts. Now, it has always been
the view taken by this Committee, in advising Her Majesty, when the question
for determination has been whether the concurrent judgment of the judges who
have been unanimous below should be supported or reversed, that unless it be shewn with absolute clearness that some blunder or error is
apparent in the way in which the learned judges below have dealt with the
facts, this Committee would not advise Her Majesty that the judgment should be
reversed. That principle has been laid
down in many cases.” After a reference
to Naragunty’s case and Tareeny’s
case, Lord Herschell proceeds, “Their Lordships
entirely adhere to the views thus expressed, and therefore they do not consider
that the question they have to determine is, what conclusion they would have
arrived at if the matter had for the first time come before them, but whether
it has been established that the judgments of the Courts below were clearly
wrong.” In the cases so far cited, the
Board examined the evidence, but a month later than the decision in Allen’s
case, a Board consisting of Lord Hobhouse, Sir Barnes
Peacock and Sir Richard Couch, decided the case of Thakur
Harihar Buksh v. Thakur Uman Parshad,
(1886) 14 Ind. App. 7. Lord Hobhouse, in
delivering the judgment, said “Therefore their Lordships have not considered it
proper to go through the mass of oral evidence given in this case, because, if
the courts below concur in their conclusion upon such a matter as family
custom, their Lordships are very reluctant to disturb the judgment of those
Courts. If there had been any principle
of evidence not properly applied; if
there had been written documents referred to on which the appellant could shew that the Courts below had been led into error, their
Lordships might re-examine the case; but
in the absence of any such ground they decline to do so.”
In 1894, in Umrao
Begam v. Irshad Husain, (1894) 21 Ind. App. 163,
Lord Hobhouse, who delivered the judgment, said (at
p. 166) “This is not only a question of fact, but it is one which embraces a
great number of facts whose significance is best appreciated by those who are
most familiar with Indian manners and customs.
Their Lordships would be specially unwilling in such a case to depart
from the general rule, which forbids a fresh examination of facts for the
purpose of disturbing concurrent findings by the lower Courts. The counsel for the appellant frankly
admitted that they laboured under this difficulty, and that they must find some
ground of law or general principle for impugning the decree. To do this, they made some comments on the
use made by the Courts below of Raza’s oral
statements; but
these comments all resolved themselves into objections to the weight of
evidence, and did not affect its admissibility.” A similar opinion was expressed in Kunwar Sanwal Singh v. Rani Satrupa Kunwar,
(1905) 33 Ind. App. 53, at p. 54. In Rani Srimati v. Khajendra Narayan Singh, (1904) 31 Ind.
App. 127, at p. 131, Lord Lindley, in delivering the judgment, said, “The case
is unquestionably one of great difficulty, but the appellants have failed to shew any
miscarriage of justice, or the violation of any principle of law or
procedure. Their Lordships, therefore,
see no reason for departing from the usual practice of this Board of declining
to interfere with two concurrent findings on pure questions of fact.”
That the practice equally
applies where there is a dissent in the Appellate Court is made clear by two
cases. In Atta
Kwamin v. Kobina Kufuor, (1914) A.I.R., P.C., 261, Lord Kinnear,
in delivering the judgment, said, “Their Lordships have seen no sufficient
reason for disturbing the judgment in this case. It raises some questions of considerable
difficulty. But the difficulties are
occasioned by the obscurity of the facts; and the learned judges below, from
their familiarity with the customs and sentiment of the natives, have an
advantage for dealing with the evidence which is wanting to this
Committee. In such a case, it would not
be consistent with an approved rule to reverse the concurrent judgments of two
Courts, unless “it be shewn with absolute clearness”,
to use the language of Lord Herschell, “that some
blunder or error is apparent in the way in which the learned judges below have
dealt with the facts.” It is true that
Lord Herschell’s rule applies in terms to those cases
only in which the judges have been unanimous; and one of the Judges of the Court of
Appeal has dissented in the present case.
But this ought not to detract from the weight which is due to the
opinion of the majority on the matter of fact, since the dissent is not based
on a different view of the evidence, which indeed the learned Judge has hardly
considered, but upon grounds of law which their Lordships are unable to
adopt”. And in Habibur
Rahman Chowdhury v. Altaf Ali Chowdhury (1921), 48 Ind. App. 114, Lord Dunedin, delivering the judgment (at p.
119) said, “These two learned judges form a majority of the appellate
Court. That makes a concurrent finding,
and it is not vitiated as such because, as here, the other judge in the
appellate court does not come to the same conclusion in fact though coming to
the same result in law arising from another fact. Of course, to be concurrent findings binding
on this Board, the fact or facts found must be such as are necessary for the
foundation of the proposition in law to be subsequently applied to them.” The
concurrent finding there referred to by Lord Dunedin was that the existence of
a marriage was disproved. Counsel for
the appellant then argued that, assuming he could show a good acknowledgment of
legitimacy, that conferred the status of legitimacy and
made it irrelevant to enter into any enquiry as to the fact of marriage. On this Lord Dunedin says, “The case might be
disposed of by holding, as the majority of the learned judges of the appellate
Court did, that there was no proper acknowledgment of legitimacy. There is not, however, as to this a
concurrent finding, for the learned trial judge thought otherwise, and it would
be necessary to examine the evidence before coming to the above conclusion.”
A very important statement as to
this practice of the Board was made by Lord Dunedin, in delivering the judgment
in Robins v. National Trust Company (1927), A.C. 515, at p. 517, “The rule as
to concurrent findings is not a rule based on any statutory provision. It is rather a rule of conduct which the Board
has laid down for itself. As such it has
gradually developed. The judicature
which has given greatest occasion for its development has undoubtedly been the
judicature of India, but the principle is not in any way limited in its
application to Indian legislation or Indian law, be it Hindu or Moslem, as
such. Indeed, it is obvious that if such
a rule is a good rule to be applied to the findings of the Courts in India,
there could be no reason for suggesting that the findings of the Courts of our
great self-governing Dominions should be entitled to less consideration. Their Lordships wish it to be clearly
understood that the rule of conduct is a rule of conduct for the Empire, and
will be applied to all the various judicatures whose final tribunal is this
Board.” Later, referring to the use of
the phrase “miscarriage of justice” used in two earlier judgments of the Board,
Lord Dunedin says, “There was a faint attempt made in the present case to argue
that what the appellant considered a quite inadequate appreciation and an
unjustifiable belittling of a certain witness whom he regarded as all important
would amount to a miscarriage of justice.
The expression means no such thing.
It means such a departure from the rules which permeates all judicial
procedure as to make that which happened not in the proper use of the word
judicial procedure at all. There is,
however, also another way of preventing the application of the rule. If it can be shewn
that the finding of one of the Courts is so based on an erroneous proposition
of law that if that proposition be corrected the finding disappears, then in that case there is no finding at all.” Later (at p. 521), Lord Dunedin says, “Much
was sought to be made of the unfair way in which the appellant argued the trial
judge had treated the evidence of a certain Dr. Shurly. Some of the criticisms he made do not
particularly recommend themselves to their Lordships, but in the end he came to
his result on a consideration of the whole evidence. That the Court of Appeal looked at the
evidence in rather a different way matters not, for the rule is a rule as to
concurrent findings, and not a rule as to concurrent reasons. Thus in Ram Anugra Narain Singh v. Chowdry Hanuman Sahai (1902), 30 Ind. App. 41, at
43, the judgment of the Board states:
“The rule (as to concurrent findings) is none the less applicable
because the Courts may not have taken precisely the same view of the weight to
be attached to each particular item of evidence.” The fact that the trial judge based his
finding on the oral evidence, while the High Court based their similar finding
on the documentary evidence, does not take the case out of the rule as is
settled by Ram Anugra Singh’s case, just cited by
Lord Dunedin, and Bhagwan Singh v. Allahabad Bank (1926), 53 Ind.
App. 268.
At the request of their
Lordships, Mr. Page, on behalf of the appellant, dealt with the cases in which
the special circumstances were held to justify a departure from the practice of
the Board, and which their Lordships will now consider. In Guthrie v. Abool
Mozuffer (1871), 14 Moore Ind.
App. 53, in which the High Court had merely stated that they saw no reason to
differ from the finding of the Zillah Judge, and which related to an allegation
of duress by the purchaser in obtaining a deed of sale, it was held by the
Board that the findings of the Zillah Judge were incomplete, as there was no
finding as to the payment of the consideration, that the inferences of the
Zillah Judge from the facts before him could not be justified, and that his
judgment treated the judgment of the Cazee as
reversed, whereas it was confirmed on appeal.
That case was very special, and can have no bearing on the present case.
In Hay v. Gordon (1872), 18 Sutherland W. R. (Cal) 480, it was held by the Board
that, under the provisions of the Statute of Limitations (Act XIV of 1859)
there were not separate judgments, as the decision of the trial judge was not
binding until confirmation by the High Court.
This case is also of no assistance in the present case.
In Venkateswara
Iyan v. Shekhari Varma (1881), 8 Ind. App. 143, at
p. 150, Sir Arthur Hobhouse, who delivered the
judgment, said, “It is true that upon this question there are concurrent
decisions of the Courts below. But
though the question may be called in its result one of fact, its decision turns
upon the admissibility or value of many subordinate facts, and involves the
construction of documents and other questions of law.” Their Lordships are unable to hold, under the
practice as now modified, that the question of the value of evidence, as apart
from its admissibility, can constitute a reason for departure from the
practice. In Thakur
Harihar Buksh v. Thakur Uman Parshad
(1886), 14 Ind. App. 7, Lord Hobhouse,
whose judgment as to the alleged family custom has already been cited, proceeds
(at p. 16) “Then the question comes back to the construction of the razinamah, and that is again divided into two
branches. The Courts below have found
that the razinamah ought to be construed to give an
absolute interest, because it has been decided that it should be so construed,
in fact that the matter is res judicata. Upon that point, it is unnecessary for their
Lordships to express any opinion; but
they wish it to be understood that they do not express any agreement with the
Court below on this point, and it must be taken that, not having heard the
argument on the other side, their minds are completely open upon it. They rest their opinion upon the terms of the
razinamah itself.” Their Lordships then said that the
razinamah did confer an absolute interest, and they
agreed with the decision of the Courts below, though not for the same
reasons. This was a question of law,
which was essential to the decision.
In Chitpal Singh v. Bhairon Bakhsh Singh (1905), 28 All. 219, at p. 222, Lord Macnaghten, who delivered the judgment, said, “It was urged
that the Court had drawn a wrong inference from documents before it, and that
this error had led to a miscarriage of justice.
After all, however, it turns out that the case is an ordinary case of
the concurrence of two judgments on a mere question of fact, involving many
considerations, on some of which the two Courts are not agreed. But the mere fact that the two Courts do not
agree on all the steps which lead to one and the same conclusion is no reason
for disregarding the well known rule.
The rule, however, is not an absolute rule; it presses upon the appellant with more or
less weight, according to the circumstances of the case, and no doubt the fact
that the Courts have differed on some important but subordinate questions is a
matter to be taken into consideration in determining whether the evidence
before the lower Courts should be reviewed in detail.” Their Lordships are of opinion that, under
the practice as subsequently modified, the latter part of that statement – as a
general statement – is too wide. Harendra Lal Roy Chowdhuri v. Hari Dasi Debi (1914), 41 Ind. App. 110, was a case of no evidence, and a decision
that there is no evidence to support a finding is a decision of law. Chaudri Satgur Prashad v. Kishore Lal (1919), 46 Ind. App. 197, was a case of legal inference from documents
and not of finding of fact. In Tilakdhari Singh v. Kesho Prasad Singh, A.I.R. (1925) P.C. 122, it was held that,
though the concurrent findings proceeded upon the examination of titles and
facts, the rule applied. Lord Shaw, who
delivered the judgment, said, “There is no ground for the suggestion that the
Judges of the Courts below failed in this duty or introduced illegitimate
considerations into their view upon the titles and the facts. They having done that which was strictly
their duty, their Lordships are of opinion that what remained was a question of
fact.” The appeal was dismissed upon the
ground of incompetency, a ground which is not in
accordance with the usual procedure of the Board, which simply dismisses the
appeal.
In Pope Appliance Corporation v.
Spanish River Pulp and Paper Mills Ltd., A.I.R. (1929), P.C. 38, at p. 39, Lord
Dunedin, who delivered the judgment, said, “The present appeal is brought by
special leave. Their Lordships think it
necessary to say that it must have been conveyed to their Lordships who granted
the leave, that the case raised an important and general question. Speaking generally a patent case has to do
with the construction and the infringement of one or more particular patents,
and it cannot often be said that any general question is thereby raised. In such cases where there have been concurrent
judgments of the Judge of first instance and the Court of Appeal, their
Lordships would deprecate the idea that leave should be given to appeal to the
King in Council.” The practice in regard
to patent cases, which is more fully explained in the ensuing part of the
judgment, allows a departure from the practice, where the Trial Judge, being
judge both of fact and law, has misdirected himself in law, and patent cases
thus are subject to the general practice.
From this review of the decision
of the Board, their Lordships are of opinion that the following propositions
may be derived as to the present practice of the Board and the nature of the
special circumstances which will justify a departure from the practice:-
(1) That the practice applies in the case
of all the various judicatures whose final tribunal is the Board.
(2) That it applies to the concurrent
findings of fact of two Courts, and not to concurrent findings of the judges
who compose such Court. Therefore a
dissent by a member of the appellate court does not obviate the practice.
(3) That a difference in the reasons
which bring the judges to the same finding of fact will not obviate the
practice.
(4) That, in order to obviate the
practice, there must be some miscarriage of justice or violation of some
principle of law or procedure. That
miscarriage of justice means such a departure from the rules which permeate all
judicial procedure as to make that which happened not in the proper sense of
the word judicial procedure at all. That
the violation of some principle of law or procedure must be such an erroneous
proposition of law that if that proposition be corrected the finding cannot
stand; or it may be the neglect of some
principle of law or procedure, whose application will have the same effect. The question whether there is evidence on
which the Courts could arrive at their finding is such a question of law.
(5) That the question of admissibility of
evidence is a proposition of law, but it must be such as to affect materially
the finding. The question of the value
of evidence is not a sufficient reason for departure from the practice.
(6) That the practice is not a cast-iron
one, and the foregoing statement as to reasons which will justify departure is
illustrative only, and there may occur cases of such an unusual nature as will constrain
the Board to depart from the practice.
(7) That the Board will always be
reluctant to depart from the practice in cases, which involve questions of
manners, customs or sentiments peculiar to the country or locality from which
the case comes, whose significance is specially within the knowledge of the
Courts of that country.
(8) That the practice relates to the
findings of the Courts below, which are generally stated in the order of the
Court, but may be stated as findings on the issues before the Court in the
judgments, provided that they are directly related to the final decision of the
court.
In this appeal the concurrent
finding of fact is as follows “it is declared that the plaintiff is the Kumar Ramendra Narayan Roy, the second
son of the late Rajah Rajendra Narayan
Roy, Zamindar of Bhowal.” It was for the plaintiff to prove that he is
the Second Kumar, and, in order to do so, he had to survive various tests, any
one of which, if he failed to surmount it, would almost inevitably destroy his
whole case. In these circumstances, in
the opinion of their Lordships, the appellant was entitled to maintain, as
regards any one of such tests, that there were such special reasons as would
justify a departure from the practice of the Board. Perhaps the most striking of these tests was
whether the Second Kumar in fact died at Darjeeling or survived. If he did die there, that fact would
completely negative the plaintiff’s case.
The seventh proposition above stated is applicable to the circumstances
of the present case. With these
preliminary observations, their Lordships will proceed to consider the
contentions submitted by Mr. Page on behalf of the appellant. A number of these contentions related to
subordinate matters of evidence, or that the Trial Judge had not sufficiently
taken into account particular oral or documentary evidence, or that the Judges
who formed the majority in the High Court had not formed their own conclusions
on the evidence. These subordinate
matters of evidence, even if they might be called important, do not afford any
sufficient reason for departure in this case from the practice as above
explained by their Lordships, and their Lordships are clearly of opinion that
the criticisms of the Trial Judge and the Judges of the High Court are quite
unjustified. Further, their Lordships
are unable to find any defect in these judgments in considering the separate
compartments into which the evidence conveniently falls, and carefully
considering the inter-relation of such compartments and their reaction on each
other. There remain three contentions
with which their Lordships find it necessary to deal.
The first of these contentions
relates to the admissibility of the evidence of four witnesses, conveniently
referred to as the Maitra group, whom the learned
Trial Judge accepted as unimpeachable witnesses, and whose evidence he accepted
as virtually conclusive proof of the time of “death” as having taken place at
dusk, between seven and eight o’clock.
The time of death or apparent death at Darjeeling is crucial. If the death took place shortly before
midnight, and not at dusk, that fact would be fatal to the plaintiff’s
case. The learned Judges of the majority
in the High Court placed the same reliance on this evidence. The evidence of these four witnesses is
described with sufficient accuracy by the Trial Judge as follows:- “The evidence of
these gentlemen is that one day they were seated in the common room of the
(Lewis Jubilee) Sanitarium before dinner – that would
be about 8 p.m. – chatting, each does not recollect all the rest, but each
recollects the day, and the fact they used to be in the common room before
dinner. They recollect the day, not the
date or anything, but the day when a certain thing happened. When they were so seated, and there were
others too, a man came with the news that the Kumar of Bhowal
was just dead, and he made a request for men to help to carry the body for
cremation. Principal Maitra
has a distinct recollection of this request – the news broke in upon the talk
they were having, and the thing has stuck in his memory.” It should be added that the man who so came
into the common room has not been identified, and is not a witness. It was, further, agreed that, according to
the Hindu custom, cremation would, when possible, follow immediately after the
death.
Their Lordships are of opinion
that the statement and request made by this man was a fact within the meaning
of sections 3 and 59 of the Indian Evidence Act of 1872, and that it is proved
by the direct evidence of witnesses who heard it, within the meaning of section
60; but it was not a relevant fact
unless the learned Judge was entitled to make it a relevant fact by a
presumption under the terms of section 114.
As regards the statement that the Kumar had just died, such a statement
by itself would not justify any such presumption, as it might rest on mere
rumour, but, in the opinion of their Lordships, the learned Judge was entitled
to hold, in relation to the fact of the request for help to carry the body for
cremation, that it was likely that the request was authorised by those in
charge at Step Aside, having regard to “the common course of natural events,
human conduct and public and private business”, and therefore to presume the
existence of such authority. Having made
such presumption, the fact of such an authorised request thereby became a
relevant fact, and the evidence of the Maitra group
became admissible. Accordingly, this
contention fails.
The remaining two contentions
relate to the question of identity, the colour of the eyes and the indications
of syphilis.
It is agreed that the eyes of
the Second Kumar and the plaintiff are kata eyes,
that is, of a shade lighter than the normal dark brown eyes of a Bengalee;
it is also common ground that the eyes of the plaintiff are of a
light brownish colour. The dispute is as
to the colour of the eyes of the Second Kumar.
Mr. Page’s contention rested upon the view that the entry of their
colour as “grey” in Dr. Caddy’s report to the Insurance Company in 1905 in
connection with the proposal of the Second Kumar for life insurance could only
mean that they were grey as distinguished from brown, and that the report must
be accepted as conclusive of the matter.
But this contention must fail, for not only was there conflicting
evidence on the point, having regard to the statement in the affidavit dated
the 6th March 1910, given to the insurance company by Kali Prasanna
Vidyasagar, who had long been familiar with the
Second Kumar, and therein stated that the latter’s eyes were rather brownish,
but the witness Girish Chandra
Sen stated that Dr. Caddy had asked him to look for
any identification marks, and that he told the doctor “grey eyes”, thereby
meaning kata eyes.
It follows that it was a question of value of evidence, and the learned
Judge had before him evidence on which he was entitled to hold that the eyes of
the Second Kumar were brownish, and therefore similar to the eyes of the
plaintiff.
It is common ground that, when
the Second Kumar went to Darjeeling he had gummatous
ulcers on both arms about the elbows, and about both legs, representing the
tertiary stage of syphilis, which he had contracted on some date subsequent to
Dr. Caddy’s examination of him in 1905.
Further, it is not disputed that there was evidence on which the learned
Judge was entitled to find that the plaintiff is “an old syphilitic
individual”. It is enough to say that the plaintiff has one scar on the left
arm and two on the right arm, in each case about the elbow; these clearly, on the evidence, are a small
proportion of the number of ulcers from which the Second Kumar was suffering in
1909, but there was evidence on which the learned Judge was entitled to hold
that these three scars were the remains of some of the Second Kumar’s
ulcers. There was no definite evidence
as to the permanency, or otherwise, of scars left by gummatous
ulcers. There does not seem to have been
any evidence which would enable the learned Judge to identify any scars on the
legs of the plaintiff as corresponding in position with the position of the
Second Kumar’s ulcers on his legs. Mr.
Page sought to found on a passage in the evidence of the plaintiff’s witness,
Dr. K. K. Chatterji, in which he says, “If the ulcers
of 1909, big ulcers on both arms and legs, are not treated or dressed or
washed, I would give three months to him.
He would get septic and die. Even
if he is washed with water, but not anti-septic, it will make no
difference. If washed with anti-septics but no dressing or treatment, his chance of life
would increase 5 per cent. roughly speaking. If washed, but not with anti-septic and
covered up with cloth and not surgical dressing, the chance would be
less.” The plaintiff stated in his
evidence that while with the Sanyasis, he had no treatment. But the doctor’s evidence is a calculation of
chances of recovery, which no doctor would maintain to be without exception,
and it is not surprising that he later states that there is no normality in
syphilis. The whole matter is one of the
value of evidence, and this contention also fails.
Accordingly, their Lordships are
of opinion that the appellant has failed to establish any valid ground for
departure from the practice of the Board.
Finally, the appellant rests on
article 144 and section 28 of the Indian Limitation Act of 1908. On the supposed death of the Second Kumar the
appellant entered on her widow’s estate in the undivided one-third share of the
Bhowal estate, which belonged to her husband and she
thereafter enjoyed it – after 1911, through the Court of Wards – for a period
much exceeding the necessary twelve years, and the question is whether her
possession was adverse to her husband, he being in fact alive. Possession must be adverse to a living
person, and, as she was possessing under a mistake as to his death, it is
difficult to see how she can claim that by her possession she was asserting a
right adverse to one whom she regarded as dead.
The position of a widow as regards limitation is stated in Lajwanti v. Safa Chand (1924), 51 Ind. App. 171,
at p. 176, where Lord Dunedin, delivering the judgment, said, “It was then
argued that the widows could only possess for themselves; that the last widow Devi would then acquire a personal title; and that the respondents and not the plaintiffs
were the heirs of Devi. This is quite to misunderstand the nature of
the widow’s possession. The Hindu widow,
as often pointed out, is not a life renter but has a widow’s estate – that is
to say, a widow’s estate in her deceased husband’s estate. If possessing as a widow she possesses
adversely to any one as to certain parcels, she does not acquire the parcels as
stridhan, but she makes them good to her husband’s
estate.” Mr. Page, for the appellant,
conceded that the appellant’s possession could not be adverse to the reversioners, who would take as heirs of her husband, on
the termination of her widow’s estate.
All that the appellant claimed to have prescribed was her interest in
the estate as widow of the Second Kumar.
It might well be argued that, according to the Hindu law, the wife is
half of the husband, and that, on his death, she holds his estate as one-half
of the husband, but their Lordships prefer to base their rejection of the
appellant’s contention on the broader ground that her possession was not
adverse to a husband, whom she regarded as dead.
Their Lordships cannot part with
this case without expressing their deep indebtedness to counsel for their
valuable assistance in a case of such unusual magnitude and complication, and,
in particular, their gratitude and admiration for the untiring skill and
breadth of mind with which Mr. Page has conducted his case.
Their Lordships, accordingly,
are of opinion that the appeal fails and should be dismissed, and that the
decision of the High Court should be affirmed, and they will so advise His
Majesty. In the very special
circumstances of this case, there will be no order as to costs of the appeal.
(source: Judgment of the Lords of the Judicial Committee of the Privy Council, delivered the 30th July 1946)
(COPYRIGHT NOTICE: Reproduced under 'fair dealing' terms as part of a non commercial educational research project. The copyright remains with the Crown)
“The deceased had been in indifferent health for some time, and had an attack of Haemoptysis since August 1. Many persons who went to his house to congratulate him on his success in the Privy Council appeal were shocked to learn of his death. It is stated that the Kumar had planned to go to Jaidevpur about the middle of this month to meet his friends and tenants.”
Ramendra Narayan Roy, Kumar (Prince) of Bhowal, was the despair of his tutors. When the Kumar was 25 he was—in the opinion of a learned judge reviewing his life years later—an "unlettered oaf who spent his days with stable boys and his nights with harlots."
First Call. In May, 1909, in fashionable Darjeeling, death called for Roy. His shy, modest wife, Bibhabati Devi, 19, wasted few tears, gave no thought to immolating herself in suttee. She had his body laid on a funeral pyre. Then she invited her brother to manage the Kumar's 100-square-mile Bengal estate and enjoy its $400,000-a-year income. The brother-in-law was too Westernized to spend much time with stable boys, but otherwise Roy's old tenants found him no better than Roy. In fact, they forgot about the stable boys and the harlots and took to praying that the Kumar might be resurrected.
Then in 1921, a loinclothed mendicant with long, matted hair and body smeared with ashes turned up in Dacca. Rumor said he was the dead Kumar, and the tenants rushed to hear the beggar's story. Roy (if it was the Kumar) said the brother-in-law had poisoned him in Darjeeling. As he lay, unconscious but not dead, on his funeral pyre, a great rain had revived him.
His mourners scurried away when the storm broke, but a party of naked mendicants had heard him groan and rescued him. Next morning the brother-in-law had rustled up another body to put on the pyre and finish the funeral. Shocked into amnesia, Roy had traveled and lived with the beggars for twelve years while his memory gradually returned. That was his story: now he was home.
Roy's sister and aged mother came to see the beggar who claimed to be their relative. They gave him a good bath and looked him over in the sunlight. Yes, there were the old scars. There was the Kumar's broken tooth, his birthmark and the familiar scales of the family skin disease on his feet. Reluctantly they claimed the beggar as their own.
Roy's tenants raised money among themselves to support their resurrected prince and take his case to law. For 25 years, in one Indian court after another, he fought to prove his identity; each time, Bibhabati—now 56 and no longer shy—fought against him. Finally the case reached the Privy Council, the British Empire's highest court of appeal. For four weeks the Council sifted a musty mountain of testimony, boiled the issue down to one question: did it rain in Darjeeling on May 9, 1909? Last week the Privy Council decided that it had. It ruled in Roy's favor, restored to him the privileges and wealth that rightfully belong to the Kumar of Bhowal.
Last Call. Three days later, in Calcutta, while he was receiving friends' congratulations on his hard-won fight for legal life, Roy suffered a lung hemorrhage, died the next morning. Two doctors signed his death certificate and his body was thoroughly and finally cremated at Calcutta's Keoratolla Ghat. This time witnesses stayed to the end.
(COPYRIGHT NOTICE: Reproduced under 'fair dealing' terms as part of a non commercial educational research project. The copyright remains with Time Magazine)
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