Evidence Act, 1872 | When Documentary Evidence Available, Oral Testimony Not Sufficient To Rebut Its Probative Value: Calcutta High Court

The Calcutta High Court has recently held that when documentary evidence is available, oral testimony of witnesses would not be able to rebut its probative value. 

A single bench of Justice Siddhartha Roy Chowdhury held: When documentary evidence is available the oral testimony of D.W. 2 is not sufficient to rebut the probative value of Exhibit- 7, 8, 8/1 and 9. 

The Court was hearing an appeal by the plaintiff who had initially filed a suit for partition stating that Chhabi Rani Bhadra, his mother was the original owner of the suit property, and died intestate in 1984, leaving the property to her husband and son. 

The husband remarried, had two more children, and passed away leaving behind defendant no 1 as his widow, and defendants 2 and 3 as his children. 

Plaintiff submitted that he found it inconvenient to jointly enjoy the property with his step-siblings, and approached the defendants for an amicable settlement, which was denied by the defendants who did not recognise the plaintiff's share in the property since the father had sold the entire property to his second wife, the defendant no 1. 

It was argued by the defendants that Chabi Rani Bhadra was not the mother of the plaintiff and that he was the son of his father's elder brother. It was argued that Chabi's husband was her sole legal heir and that he had sold the property to defendant no 1 who acquired absolute title over the property. 

It was submitted that the plaintiff had failed to show any evidence that he was the biological son of Chabi Rani Bhadra and that the first appellate court had been unnecessarily 'swayed' by documentary evidence since there was oral evidence on record that the plaintiff was not Chabi's son. 

Counsel for the plaintiff/respondent submitted that the plaintiff had appeared for board exams in the year 1976 and that his admit card would be sufficient to prove his relationship with his father. 

Court noted that there was a discrepancy between oral testimony and documentary evidence in this case, vis-a-vis Section 35 and Section 50 of the Evidence Act. 

Section 50 of the Evidence Act says that the Court has to from the opinion as to the relationship between two persons, expressed by conduct, as to the existence of such relationship, the Court held. 

In perusing various Apex Court judgements, it held that when documentary evidence in form of the admit card was available, it would get precedence over the oral evidence. It held:

On one hand D.W. 2 Malati Sarkar, without indicting any conduct, opined that Dilip, the plaintiff is not the son of Aswini, on the other hand, there are documents admitted on evidence as Exhibit-7, 8, 8/1 and 9 suggest Aswini is the father of the plaintiff. In this factual backdrop, admission of D.W. 1 Malati Bhadra, that Dilip did not use to stay with his father Aswini, when she got married, gives an extra edge to the case of the plaintiff and the balance tilts in favour of him. Thus, I am of the view that oral testimony of D.W. 2 is not sufficient to belie or outweigh the evidentiary value of Exhibit-7, 8 and 9 which unerringly indicate the relationship between Aswini and Dilip as father and son. Therefore, I do not find any reason to interfere with the judgement impugned.

Accordingly, the appeal was dismissed and the trial court's order setting aside dismissal of the suit was upheld. 

Citation: 2023 LiveLaw (Cal) 5

Case: MINATI BHADRA & ORS. v DILIP KR. BHADRA & ORS.

Case No: SA 406 of 2021

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