A) ABSTRACT / HEADNOTE (150–250 words)
The case of Sarju Pershad v. Raja Jwaleshwari Pratap Narain Singh and Others is a significant Supreme Court judgment laying down the standards of appellate review in matters of findings of fact arising from oral testimony. The appellant, successor of the original plaintiff, filed the suit to enforce a mortgage bond dated 8th March 1926 against the respondent, who inherited the Basti Raj estate. The primary question before the Court was whether the mortgage bond was duly attested, as required by law, and if its execution could be lawfully proved in absence of proper attestation. The trial court held in favor of the plaintiff, decreeing the mortgage, but the High Court reversed this decision solely on the issue of non-attestation.
The Supreme Court underscored that appellate courts must exercise caution while interfering with trial court’s factual findings, especially when based on oral evidence and witness credibility, unless compelling reasons or improbabilities arise. The Court also rejected the High Court’s reliance on inherent improbabilities over firsthand observation by the trial judge. It reaffirmed the significance of Section 68 of the Indian Evidence Act, 1872 on proving execution of documents requiring attestation and interpreted it pragmatically. The appeal was allowed, restoring the trial court’s decree and remanding other undecided issues to the High Court.
Keywords: Appellate Review, Attestation, Indian Evidence Act, Mortgage Bond, Witness Credibility, Primogeniture, Basti Raj, Section 68 Evidence Act, Civil Procedure, Oral Testimony
B) CASE DETAILS
i) Judgement Cause Title
Sarju Pershad v. Raja Jwaleshwari Pratap Narain Singh and Others
ii) Case Number
Civil Appeal No. LXX of 1949
iii) Judgement Date
14th November 1950
iv) Court
Supreme Court of India
v) Quorum
Justice Saiyid Fazl Ali, Justice Mehr Chand Mahajan, and Justice B.K. Mukherjea
vi) Author
Justice B.K. Mukherjea
vii) Citation
[1950] SCR 781
viii) Legal Provisions Involved
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Section 68, Indian Evidence Act, 1872
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U.P. Agriculturists’ Relief Act, 1934
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Civil Procedure Code, 1908
ix) Judgments overruled by the Case
None explicitly overruled, but the High Court’s judgment was reversed.
x) Case is Related to which Law Subjects
Civil Law, Evidence Law, Property Law, Mortgage Law, Procedural Law
C) INTRODUCTION AND BACKGROUND OF JUDGEMENT
The Supreme Court dealt with a civil appeal arising from a reversal of a mortgage enforcement decree by the Allahabad High Court. The original plaintiff, Ramdeo Sahu, filed a suit based on a simple mortgage deed executed by Raja Pateshwari Pratap Narain Singh in favor of Bhikhiram Sahu, father of the plaintiff. The mortgaged property was part of the Basti Raj Estate, an impartible estate governed by primogeniture. After both mortgagor and mortgagee died, the plaintiff sued the Raja’s successor for the due amount.
The trial court decreed the suit partially, recognizing the mortgage but granting relief under the U.P. Agriculturists’ Relief Act. However, the High Court reversed the decree, holding that the mortgage bond lacked proper attestation as per statutory requirements and dismissed the claim entirely on limitation grounds.
The plaintiff approached the Supreme Court, challenging the High Court’s findings and asserting that the lower appellate court had erroneously disregarded the trial court’s appreciation of evidence. The apex court’s ruling clarifies principles of appellate interference in factual findings and the legal standard of proving execution of mortgage documents, especially in cases hinging on oral testimony.
D) FACTS OF THE CASE
The suit arose out of a mortgage deed dated 8 March 1926, whereby Raja Pateshwari Pratap Narain Singh mortgaged certain immovable properties in favor of Bhikhiram Sahu to secure a loan of Rs. 5,500 at 9% interest. The bond stipulated repayment within one year. Following the demise of both the mortgagor and mortgagee, the mortgagor’s son Raja Jwaleshwari Pratap Narain Singh succeeded under primogeniture.
Ramdeo Sahu, son and heir of Bhikhiram, instituted the suit claiming Rs. 11,935 as the mortgage dues. The mortgage was simple in nature and required attestation under law. The deed bore the signatures of two attesting witnesses, Harbhajan Lal and Jawala Prasad Tewari, and one scribe Jawala Prasad Patwari.
The plaintiff asserted the deed was executed and attested in the presence of both witnesses at the Raja’s palace, while the defense claimed that attestation did not occur properly. One attesting witness was deceased, and the surviving witness, Harbhajan Lal, turned hostile during trial, claiming he did not sign in the presence of the mortgagor.
The trial court found the plaintiff’s version credible, based on oral testimony and circumstantial evidence, and passed a preliminary mortgage decree. However, the High Court reversed the decision, holding the bond improperly attested and time-barred for a simple money suit. The Supreme Court intervened to examine whether the High Court’s factual findings and legal interpretation were justified.
E) LEGAL ISSUES RAISED
i) Whether the mortgage bond dated 8 March 1926 was duly attested as per the requirements of law under Section 68 of the Indian Evidence Act, 1872.
ii) Whether the High Court was justified in reversing the finding of fact by the trial court based on its own appraisal of oral evidence without the advantage of witness demeanour.
iii) Whether the High Court erred in holding that the absence of proper attestation rendered the document unenforceable as a mortgage, thereby extinguishing the plaintiff’s claim due to limitation.
iv) Whether the appellate court’s approach in evaluating credibility and probabilities of evidence was legally sustainable when such findings are normally within the domain of the trial court.
F) PETITIONER/APPELLANT’S ARGUMENTS
i) The counsels for Petitioner / Appellant submitted that:
The learned Attorney General for India, M.C. Setalvad, assisted by Sri Narain Andley, appeared for the appellant. The appellant contended that the High Court’s decision misapprehended both the legal and factual matrix.
The primary submission was that attestation of the mortgage deed had in fact been established in conformity with Section 68 of the Indian Evidence Act. Though Harbhajan Lal had turned hostile and initially claimed the attestation did not occur in presence of the mortgagor, the totality of the evidence, including the deposition of plaintiff and witness Buddhu Lal, proved execution and due attestation beyond reasonable doubt[1].
Setalvad urged that the High Court misapplied appellate jurisdiction and engaged in reassessment of oral evidence, which the trial court had already evaluated after observing witness demeanor. It was contended that no improbability arose on record to justify dislodging the trial court’s finding[2].
Further, it was emphasized that Harbhajan Lal’s conduct in turning hostile was manipulated and untrustworthy, but even his testimony supported key aspects of the plaintiff’s narrative—particularly that he did sign the deed.
Setalvad further relied on Watt v. Thomas [1947] AC 484 and Saraveeraswami v. Talluri, AIR 1949 PC 32 to argue that appellate courts must not interfere in factual conclusions drawn from oral evidence unless there are compelling reasons like overlooked material or grave improbabilities[3].
G) RESPONDENT’S ARGUMENTS
i) The counsels for Respondent submitted that:
Counsel S.P. Banerjee represented the respondents and contended that the mortgage bond was not a validly attested document under Section 68 of the Indian Evidence Act, 1872. The primary witness, Harbhajan Lal, himself admitted that neither he nor the other witness signed in the presence of the mortgagor, nor did the mortgagor sign in their presence[4].
Based on this, the respondents submitted that no valid attestation had occurred and the deed, even if signed by the mortgagor, could not be enforced as a mortgage. Thus, the plaintiff’s claim was time-barred, as no valid mortgage existed, reducing the suit to one for simple money recovery, which had become barred under Article 113 of the Limitation Act, 1908[5].
Respondents also argued that the trial court had erroneously relied on speculative inferences rather than legal proof. They asserted that the burden of proof lay squarely on the plaintiff, and once the sole surviving attesting witness discredited the attestation, Section 68 was not satisfied[6].
Lastly, it was argued that social custom and local practice in U.P. made it implausible for Bhikhiram Sahu not to have been present at the execution, further undermining the plaintiff’s version.
H) RELATED LEGAL PROVISIONS
i) Section 68, Indian Evidence Act, 1872
“If a document is required by law to be attested, it shall not be used as evidence unless at least one attesting witness has been called for the purpose of proving its execution…” [Link to Indian Kanoon: Section 68]
ii) U.P. Agriculturists’ Relief Act, 1934
Relief under the Act permits installment payments and limited interest in mortgage disputes involving agriculturists.
iii) Article 113, Limitation Act, 1908
Residual limitation clause prescribing 3 years when no specific article applies.
I) JUDGEMENT
a. RATIO DECIDENDI
i) The Supreme Court held that an appellate court cannot interfere with findings of fact based purely on oral evidence unless there are strong reasons or unreasonable improbabilities to dislodge the trial court’s appreciation. The trial court had the advantage of observing witnesses, and the appellate court ought not to reassess evidence de novo.
ii) The court affirmed that Harbhajan Lal was an attesting witness under law, even though hostile. His testimony, viewed with the deposition of the plaintiff and Buddhu Lal, established proper attestation and execution of the mortgage bond.
iii) The judgment reaffirmed the legal position in Watt v. Thomas [1947] AC 484 and Saraveeraswami v. Talluri, AIR 1949 PC 32, holding that witness demeanor, credibility, and trial court’s findings carry primacy unless contrary is shown.
iv) The High Court’s approach was legally incorrect, and it reversed the finding without justifiable cause, relying instead on speculative improbabilities and social assumptions.
b. OBITER DICTA
i) The Court noted that attesting witnesses are presumed to understand legal requirements, especially professionals like Harbhajan Lal. His deviation was suspicious and could not defeat legal compliance if the broader evidentiary context established attestation.
ii) The Court rejected the assumption that deed writers in U.P. routinely disregard legal formalities due to custom or indifference, calling such generalizations irrelevant.
c. GUIDELINES
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Appellate courts should not overturn findings of fact unless trial court overlooked material facts or the conclusion is manifestly perverse.
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Credibility assessments by trial courts deserve primacy especially where oral evidence is central.
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A hostile attesting witness’s testimony does not extinguish valid attestation if corroborated by other reliable evidence.
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Probabilities and assumptions must not replace evidentiary proof in legal determinations of execution and attestation.
J) CONCLUSION & COMMENTS
The Supreme Court’s decision in Sarju Pershad v. Raja Jwaleshwari Pratap Narain Singh clarifies that findings of fact based on oral evidence must not be overturned lightly by appellate courts. This landmark judgment fortified the primacy of trial court assessments, particularly in mortgage enforcement and attestation disputes under Section 68 of the Indian Evidence Act.
The decision balanced technical legal requirements with substantive justice, recognizing that a hostile witness’s evidence does not automatically invalidate a document if the circumstantial context supports its validity. The case also restored faith in judicial scrutiny by trial courts, limiting the scope of appellate second-guessing absent strong cause.
In an era where oral evidence and credibility assessments remain vital in Indian litigation, this judgment sets robust precedent. It reiterates the judiciary’s obligation to weigh evidence holistically rather than rely on isolated contradictions or unverified improbabilities.
K) REFERENCES
a. Important Cases Referred
i) Watt v. Thomas, [1947] A.C. 484
ii) Saraveeraswami v. Talluri, AIR 1949 PC 32
iii) Netherlandsche Handel Maatschappij v. R.M.P. Chettiar Firm, AIR 1929 PC 202
iv) W.O. Macdonald v. Fred Latimer, AIR 1929 PC 15
b. Important Statutes Referred
i) Indian Evidence Act, 1872 – Section 68
ii) U.P. Agriculturists’ Relief Act, 1934*
iii) Limitation Act, 1908 – Article 113
iv) Civil Procedure Code, 1908
