PRIVY COUNCIL

                     Madhu Sudan Chowdhri and others

                     Vs.

                             Mst. Chandrabati Chowdhri and others
(Lords Buckmaster, CJ, Parker, Parmoor, Sir Walter Phillimore, J Bart And Mr. Ameer

                                                Ali. JJ)

                     20.3.1917

                     JUDGMENT

Lord Buckmaster CJ.

1. The difficulties with which their Lordships are confronted in this case are not
connected with any question of law, nor do they arise from the recorded evidence of
the witnesses. They are associated with inferences drawn from documents which are
not before the Board and from circumstances attending the hearing before the High
Court which it is now impossible to reproduce. Their dispute entirely depends upon
certain questions of fact. These questions were all answered by the District Judge,
who heard the case in the first instance, in favor of the appellants; and, but for the
circumstances to which allusion has been made, it would have been difficult for the
respondents to convince their Lordships that they should support the reasoning of the
High Court by whom this judgment was overruled.

2. The history of this litigation extends for more than half a century. It appears that on
the 22nd May 1872, two ladies, whose names appear as the first two respondents to
this appeal, though one has recently died, obtained a decree in the Privy Council
against one Fateh Narayan Choudhri for a sum which now exceeds 90,000 rupees. The
proceedings, which were temporarily concluded by this judgment, are said to have
been commenced on the 20th April, 1859. On the 18th March 1887, and the 24th
August 1888, the third respondent to this appeal who is the Maharaja Rameshwar
Singh Bahadur, obtained two decrees from the Court of the District Judge of
Mozufferpore and from the High Court of Calcutta respectively against the
respondents. The amounts due under such judgments are said to he 21,855 rupees.
The said Fateh Narayan was entitled to an undivided one-fifth share in seventy-one
properties in forty-five villages, and the first two respondents endeavoured to execute
their decree by attachment and sale of the said share. Fateh Narayan, however, denied
that be possessed any such interest and it became necessary to institute proceedings to
establish that this right existed. These proceedings were ultimately decided by the
High Court of Calcutta on the 30th August 1898 in favor of the first two respondents.
But the difficulties of these two ladies were not thereby ended, for the third respondent
- the Maharaja - attached under his decrees their rights against the said, Fateh Narayan
and, on the 1st May 1909,applied that the said one-fifth share of the judgment-debtor
Fateh Narayan in the said properties should be sold.

3. It is alleged that in these proceedings the usual notices were issued and the sale
proclamations were served, the date of the sale being fixed for the 15th September
1900. This execution was, however, stayed on the application of the two first
respondents, who claimed that these decrees of the Maharaja were barred by the
Statute of Limitations. This claim was ultimately rejected, but fresh proclamations
became necessary under Section 291 of the Civil Procedure Code, and it is these
proceedings that have given rise to the dispute out of which the present appeal
proceeds.

4. The sale of one-fifth of a considerable portion of the properties was in fact affected
on the 17th June 1901, and nearly the whole of the property was purchased by the
appellants, no other intending purchasers being present at the sale - the aggregate
price for the whole being 12,115 rupees. On the 17th July 1901, a petition was
presented by the first two respondents seeking to set the sale aside, based upon many
allegations the most material for the purpose of the present appeal being that the sale
proclamation was not served on all the Mouzahs, that the return of service filed in the
Court was filed in collusion with the purchasers, the present appellants, and that the
sale was accordingly concluded at a price far below the real value a result induced by
the collusion of the process server with the present appellants, who were co-sharers of
the judgment-debtor in the property sold. This petition was dismissed by the
Subordinate Judge on the 11th March 1904. In the ordinary course the record of the
service of the sale proclamations would have been returned to the Court and there
preserved as an official document. But, owing to a fire shortly after the sale, the
official documents of the Court were destroyed, and in only one instance was such a
record preserved. In the special circumstances of this case it may be doubted if this
unfortunate accident has greatly embarrassed the litigation; it would, in any
circumstances, be open to persons challenging the sale to show that these records were
inaccurate and, when they were destroyed, the burden of disproving the prima facie
presumption that official acts were rightly carried out would rest with the two
respondents. They called some evidence for the purpose: necessarily evidence of a
negative character. It was limited in its extent; it affected only a very small number of
the villages where the property was situated; and it appears to have been regarded as
untrustworthy by the Subordinate Judge who saw the witnesses. The appellants, on the
other hand called a large body of evidence to establish the strict regularity of all the
proceedings. They brought before the Court the peon, whose duty it was to make
proclamations and affix the official notices on the properties that were to be sold. He
swore they were all duly affixed, and his evidence was corroborated by a servant of
the Maharaja, who identified the several properties; in addition, a number of
chowkidars, resident in the villages, gave definite evidence of the proceedings, and in
nine cases produced proclamations of the sale, which they undoubtedly vouched as
being the actual documents that had been fixed upon the properties in accordance with
the procedure laid down by virtue of Sections 274, 287 and 289 of the Code.

5. The evidence convinced the learned Subordinate Judge that the sale had proceeded
with due regard to all necessary formalities, and the judgment that he delivered does
not appear to have omitted from consideration any matter excepting one, which their
Lordships cannot help regarding (in the course that the case took in the High Court) as
a circumstance most critical in determining the truth of the evidence. For when the
case came before the High Court on appeal, these nine sale proclamations were again
produced, and then - indeed, as it appears for the first time - these documents were
submitted to close and critical examination, with the result that the two learned Judges
who heard the appeal were convinced that the story as to their having been fixed upon
the various properties in the manner specified by the witnesses was of necessity
wholly false. They pointed out that the documents bore no sign whatever of exposure
either to sun or rain, and they showed how impossible it was to reconcile the condition
in which the documents then were with the statement that they had been affixed to a
house, fastened to various trees, and exhibited in the manner sworn to by the
witnesses. Their judgment has satisfied their Lordships that they intended to find, and
did in fact find, not that these documents had been put up and afterwards taken down,
but that they had never been exhibited at all. It further appears from their judgment
that in the course of the hearing the pleader on behalf of the present appellants could
not answer these criticisms, and admitted that he could not oppose "the very
reasonable plea" to set aside the sale. Upon this statement the learned Judges
proceeded to certain findings, with some of which at least, in the absence of argument
on behalf of the respondents, their Lordships would find it difficult to agree. But these
subsequent findings do not affect the result of the incidents to which their Lordships
have referred. If these documents never had been affixed then the wholly story of the
service of these proclamations completely broke down. It was not merely inaccurate
evidence where the inaccuracy might be regarded as due to mistake or forgetfulness it
becomes a series of connected falsehoods, carefully prepared and put together for the
deliberate purpose of misleading the Court. It is true that the actual documents
themselves only affected nine villages, but the complete destruction of the evidence in
these particulars did not leave the other cases unaffected, but destroyed the whole
fabric of the story put forward by the appellants in support of their case. In these
circumstances it is, in their Lordships' opinion, only right that the appellants on whose
behalf this evidence had been prepared should be associated with the scheme of deceit
which it was designed to carry out, and that such association should be regarded as an
important element in determining whether their defense was honest and just (see
Moriarty v. London, Chatham, and Dover Railway Co1) The documents themselves
have not been seen by their Lordships, and it is now ten years since the decree of the
High Court was given. Their Lordships therefore feel bound to accept the finding of
the High Court, who were obviously impressed in an unusual degree by the character
of these documents, which they regarded as establishing the fraudulent suppression of
the proclamations. There is, indeed, additional weight given to this conclusion by the
action of the pleader, to which reference has been made. He did not give a formal
consent to the dismissal of the appeal, but he obviously made a statement which
showed that on being confronted with these documents and the criticisms made upon
them by the Court he was unable further to contend for the trustworthiness of his
client's case.

6. It was pointed out to their Lordships that the actual judgment was given some 14
days after the hearing of the appeal, and it is suggested that the learned Judges might
have misunderstood the action of the pleader in the conduct of the case. Their
Lordships are quite unable, to accept this contention had there been any mistake in
this respect it would have been incumbent upon the appellants while the matter was
still fresh in the minds of the Judges, to have caused their pleader to call the attention
of the Court to the fact that the statement made with regard to his conduct was a
statement that had been made in error, no such step was taken and, apart from the
argument of counsel, there is nothing before their Lordships to make them think that
any such mistake occurred; an affidavit has indeed been filed by a person who said he
was present at the trial, that he would certainly have noticed any such admission, that
such admission was not made, and that the learned pleader is now unable to recall
whether in fact it did of did not occur. After such a lapse of time this is wholly
insufficient, and their Lordships therefore, do not feel at liberty to express their views
upon the case as it stood when it left the District Court, but consider that they are
bound to accept the clear conclusion of the High Court, that the documents in question
were fraudulently put forward as the actual sale proclamations affixed to the properties
in pursuance of the Code, and that in fact no such proclamations were affixed at all;
and this conclusion is sufficient to support the judgment which is the subject of this
appeal.

7. Their Lordships realize with regret that the result of the view that they take will be
to keep open the struggle in which the first two respondents have now been engaged
for nearly sixty years in trying to obtain payment of a just debt. Comment upon the
length of these proceedings cannot be fairly made without fuller knowledge of all the
attendant circumstances than their Lordships possess. In part, at least, the two first
respondents seem to have contributed to the prolongation of the struggle. The delay in
bringing this case before their Lordships - a delay of ten years from the date of the
decree of the High Court - is due to circumstances partly beyond the control of either
party, but partly also is one for which both sides are to blame. That such delay should
be possible justifies the reproach to which the administration of the law is so often and
so justly made subject, a reproach which their Lordships are most anxious to remove.

8. The third respondent, the Maharaja, has taken no active part in this appeal.
Reappears in the course of these proceedings to have acted as their Lordships would
have expected a person in his position to act. When once the peon, who was
technically his servant, was found guilty of dishonesty, he no longer desired to support
the judgment to which that dishonesty had contributed. In the result, therefore,
although this appeal will be dismissed with casts, their Lordships do not think that any
order ought to be made as to the costs of the Maharaja. and they will humbly advise
His Majesty accordingly.

Appeal dismissed.

Cases Referred.

   1. [1870] 5 Q.B.314 : 22 L.T.163 : 39 L.J.Q.B.199 : 18 W.R.625.