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1. The main objection to the decree appealed against is, that the Court below was wrong in admitting oral evidence to show the real intention of the parties to the kobala in question, or in other words to show that the kobala in question was not intended, as it purported, to be an out-and-out sale, but only a katkobala or mortgage. If the evidence had been so directed, I should have held, having regard to the decision of the Privy Council in the case of Balkishen Das v. Legge (1899) L.R. 27 I.A. 58; I. L. R. 22 All. 149 that the Court below was wrong in admitting it, but here it is reasonably clear that the evidence which was admitted was evidence as to the acts and conduct of the parties, and this Court following many other cases has decided in the Full Bench case of Preonaih Shaha v. Madhu Sudan Bhuiya (1898) I.L.R. 35 Cal. 603 that such evidence is admissible. There is a passage in the opinion of the Board in the Privy Council case to which I have referred which would appear to give support to this view, for there their Lordships say: “The case must, therefore, be decided on a consideration of the contents of the documents themselves with such extrinsic evidence of the surrounding circumstances as may be required to show in what manner the language of the documents is related to existing facts. “The distinction between evidence as to the mere intention of the parties to the deed and as to the acts and conduct of the parties has been recently pointed out in an unreported case decided by Mr. Justice Banerjee and Mr. Justice Pratt on the 12th of December last in Special Appeal No. 2633 of 1898. This disposes of the first point.
2. The second point is that the plaintiff being a bona fide purchaser for value without notice is entitled to rely on the kobala alone, and is not affected by any oral agreement between the defendants 4 and 6 changing the nature of the transaction between them. But no issue has ever been raised on this point. The plaintiff might have raised such an issue, but he has never raised it, and not having raised it, I do not see how we can fairly go into such a question now on second appeal. I may remark that there is a passage in the judgment of the Subordinate Judge to the effect that his opinion tended to the conlusion that the purchase by the plaintiff No. 1 from defendant No. 6 was a collusive transaction. The point of being a purchaser for value without notice has never been raised, and I am not disposed to remand this case at this late stage for an issue to be raised as to it.
3. I cannot, however, part with this case without taking the opportunity of expressing my dissent from the view taken by Mr. Justice Rampini and Mr. Justice Pratt in the case of Makbul Ahmed v. Rakhal Das Hazra (1900) 4 C.W.N. 732 where they held that they were not bound to receive or treat as an authority binding on them an unreported case or ruling, basing that view upon Section 3 of Act XVIII of 1875. That section was framed to constitute a monopoly, if the Judges so desired, for the authorised Law Reports. It only says that no Court shall be bound to have cited the report of any case, etc.; it does not prevent the Court from looking at an unreported judgment of other judges of the same Court. This has always been done, and can and ought to be done. A judgment is none the less an authority because it has not been reported. Otherwise the question of whether or not a judgment could or could not be so regarded would depend upon the mere whim of the Reporter. I, therefore, respectfully dissent from the view on this point expressed in the case of Makbul Ahmed v. Rakhal Das Hazra (1900) 4 C.W.N. 732.
4. I am of the same opinion. I only wish to add, with reference to the first point raised in the case, that I adhere to the view expressed by me in my judgment in S.A. No. 2633 of 1898, in which it has been pointed out that the Full Bench decision in Preonaih Shaha v. Madhu Sudan Bhuiya (1898) I.L.R. 25 CAL. 603 has not been in any way overruled by the decision of the Privy Council in Balkishen Das v. Legge (1899) L.R. 27 I.A. 58.
5. I agree with the learned Chief Justice.