HABIRAM DAS Vs. HEM NATH SARMA

JUDGEMENT

(1.) This is an appeal by the first three defendants in a suit for confirmation of possession of land on declaration of title. The plaintiff seeks relief in respect of an one-fourth share of an estate; the Courts below have made a decree in his favour to the extent of one-sixth share- Upon this appeal, the decree of the District Judge has been assailed on two grounds, namely, first, that the suit was barred under the provisions of Clause (f) of Section 154 of the Assam Land and Revenue Regulation, 1886; and, secondly, that the District Judge has erroneously determined the share of the plaintiff to be one-sixth instead of one-twelfth, by improper exclusion of evidence which was legally admissible. In our opinion, there is no substance in the first contention, but there is no answer to the second objection.

(2.) As regards the first ground, we observe that Clause (f) of Section 154 of the Assam Land and Revenue Regulation provides that no Civil Court shall exercise jurisdiction in the distribution of land or allotment of revenue on partition. The estate wherein the plaintiff seeks a share was the subject of partition by the Revenue Authorities in a proceeding instituted in 1902, and terminated on the 6th October 1910. The plaintiff was not a recorded proprietor, and, consequently, his application to intervene in the partition proceedings was rejected. He, thereupon, instituted this suit on the 30th May 1910 for declaration of his title to a share of the estate and for confirmation of possession therein. The relief sought by the plaintiff plainly does not relate to the distribution of land or allotment of revenue of an estate on partition. The plaintiff seeks a declaration that the share which has been allotted to his predecessor-in- interest is his property. This declaration, if made in favour of the plaintiff, will not disturb the distribution of lands or allotment of the revenue on partition by the Revenue Authorities. The suit is consequently maintainable. This view is in accordance with the decision of Muhammad Jan v. Sadanand Pande 28 A. 394 : A.W.N. (1906) 30 : 3 A.L.J. 43. We are not unmindful that the case mentioned has been criticised in Khasay V. Jugla 28 A. 432 : A.W.N. (1906) 79, Muhammad Nasar-ullah Khan v. Muhammad Ishaq Khan 6 Ind. Cas. 833 : 32 A. 523 : 7 A.L.J. 553; Debi Saran v. Ramjas 2 Ind. Cas. 982 : 31 A. 541 : 6 A.L.J. 744 and Lachman Das v. Hanmnan Prasad 8 Ind. Cas. 807 : 33 A. 169 : 7 A.L.J. 1156. There are no doubt expressions of wide generality in the judgment in the case of Muhammad Jan v. Sadanaud Pandey 28 A. 394 : A.W.N. (1906) 30 : 3 A.L.J. 43 but they are not necessary for the determination of the question raised before us: this much is clear that the suit is maintainable when the plaintiff was denied an opportunity to be heard in the partition proceeding s before the Revenue Authorities, Awadh Bihari Lal v. Ishri Prasad 4 A.L.J. 662 : A.W.N. (1907) 172. We have here the additional fact that when the suit was instituted the partition proceedings had not been completed, and consequently it was open to the Civil Court, at that stage, to make a declaration of title in favour of the plaintiff. The first contention consequently fails.

(3.) As regards the second ground, we observe that the Courts below have excluded from evidence a certified copy of Letters of Administration granted to two of the defendants, Gurudutt Katki and Chandradutt Katki, in respect of the estate of Kasinath Katki who had made a testamentary disposition of his property before his death. In our opinion, the evidence has been erroneously excluded. The certified copy produced is a copy of the order of the Probate Court to the effect that Letters of Administration be granted to the persons named, with a copy of the Will annexed of the deceased Kasinath Katki. The view may well be maintained that the document of which a certified copy has been produced, is a public document within the meaning of Section 74 of the Indian Evidence Act, for it is a document which forms the record of the act of a public Judicial Officer in British India, namely, the act of the Judge of the Probate Court. The certified copy is consequently admissible. This view does not conflict with the decision of Ponnammal v. Sundaram Pillai 23 M. 499 : 10 M.L.J. 310 where a copy was tendered of a record in a Ceylon Court, which was not even proved to have been certified as a correct copy. The view may also be maintained that the certified copy is admissible under Section 66, inasmuch as the Letter of Administration granted to the administrators was in the possession of some of the defendants who were interested to oppose the claim of the plaintiff. No doubt, the procedure was not strictly regularised as steps were not taken to call upon the persons in possession of the Letters of Administration to produce it in Court. Hut such steps might be waived at the discretion of the Court, specially as no question of genuineness arises here. We are of opinion that the document should have been received in evidence. If it is received in evidence, there is no controversy that the share of the plaintiff is not one-sixth but one-twelfth, because the Will shows that there had been a testamentary disposition of the properties of Kasinath Katki and his share in the estate did not pass to the plaintiff.