SM SARASWATI DEVI Vs. BAHADUR LAL MISSIR

JUDGEMENT

(1.) This is an appeal from a decision of the President of the Calcutta Improvement Tribunal in an apportionment case. The dispute is as regards a sum of Rs. 7245 in respect of which the Land Acquisition Collector had made a joint award in favour of two persons, Bahadur Lal Missir, and Sm. Saraswati Debi, widow of one Gouri Sankar Missir. The former is described as claimant No. 1 and the latter as claimant No. 2 in these proceedings. The sum was awarded as the value of certain structures which stood on premises No. 9/12, Kalakar Street, which had been acquired on behalf of the Calcutta Improvement Trust in connexion with Scheme No. 42, Kalakar Street widening. The learned President by his order directed the whole of the compensation to be paid to claimant No. 1 on the footing of a mortgage which he had set up. Hence the present appeal by claimant No. 2. It appeared that before the Land Acquisition Collector claimant No. 1 had claimed compensation as owner of the structures but before the tribunal he changed his case and based his claim on a mortgage executed in his favour by Gouri Sankar. There was some argument before the learned President as to whether on a reference made by the Collector under Section 30, Land Acquisition Act, a party could be allowed to change his case in this way. That argument was renewed here on behalf of the appellant, and it was contended that on the hearing of such a reference, the Court, which is the tribunal in this case, is restricted to a consideration of the specific claims which might have been put forward by the parties before the Collector. It was pointed out that Section 30 contemplates a dispute arising before the Collector, and a decision of such dispute by the Court, not a new dispute raised before the Court for the first time. We are not quite satisfied as to the cogency of this argument, which was sought to be supported by reference to certain decisions of this Court, including the case in Abu Bakar V/s. Peary Mohan (1907) 34 Cal. 451 and the case in Prabal Chandra V/s. Peary Mohan (1908) 12 C.W.N. 987. These decisions however do not touch the point, but it is not necessary for us to express any definite opinion on the question, having regard to the conclusions we have arrived at on the merits of the case.

(2.) The mortgage set up by claimant No. 1 is attacked by the appellant before us on a variety of grounds; but the most substantial one - and it is a ground which, if substantiated, is sufficient to dispose of the case - is that at the date the mortgage is alleged to have been executed by Gouri Sankar, husband of claimant No. 2, he was a minor. There was a specific issue raised on this question. The learned President says that as the mortgage was a registered document, there was a presumption that at the time Gouri Sankar had executed it, he was a major and not a minor. The learned President does not advance any reasons or cite any authority in support of this dictum, but the learned advocate for the respondent referred us to the provision of Section 35(3), Clause (b), Registration Act. That Section merely provides that the registering officer shall refuse to register a document, if any person by whom the document purports to be executed appears to the registering officer to be a minor, an idiot or a lunatic. At best therefore all that can be said is that at the time the document was presented for registration, the executant or the person who put forward the document before the registering officer appeared to him to be a major. This is very far short of a statutory presumption such as the learned President seems to postulate. We do not think however that it would make any difference in the present case as to whether the learned President was or was not right in the view he took as regards any such presumption arising in favour of the mortgagee from the fact of registration, because it is conceded by the learned advocate on behalf of claimant No. 2 that the-burden of proving the minority of Gouri Sankar lay on his client.

(3.) It is necessary therefore to examine how the matter stands on the case made out in this behalf by Saraswati. Gouri Sankar was the son of one Santa Lal Missir, and admittedly he had a younger brother named Lachmi Narayan who has been actually examined as a witness in this case on behalf of claimant No. 1. According to the evidence of claimant No. 1, Lachmi Narayan." was younger than Gouri Sankar by 13 or 14 years. The appellant produced two certified copies obtained from the Corporation, of Calcutta of extracts from the Birth Register maintained by the corporation relating to the birth of two male issues of one Santalal. These are Exs. D and E, printed at pp. 1-5(b) of part 2 of the paper-book. It is not disputed by the respondent that Santalal referred to in these two extracts is the father of Gouri Sankar andl Lachmi Narayan. The dates of birth shown in these two exhibits are 26 May 1903, and 24th March 1917, respectively. If therefore any of these birth certificates can be connected with Gouri Sankar, his age will be definitely established at once, and it would not be necessary to go into the oral testimony on the point which from the nature of things cannot be regarded as equally satisfactory. The point arising out of these birth certificates reduces itself shortly to this as to whether Santalal had only two sons. If he had two sons, then these two birth certificates must refer to these two sons, namely Gouri Sankar and Lachmi Narayan. Mr. Das on behalf of claimant No. 1 has strenuously contended and that is also the view which found favour with the learned President, that there is no evidence on the record to show that Santalal had not more than two sons.