TAPAN KUMAR DUTT, J. - (1.) THIS Court has heard the learned Advocates for the respective parties and has considered the relevant materials on record.
(2.) THE plaintiff no. 1/appellant along with the plaintiff no. 2/respondent filed a suit against the other respondents praying, inter alia, for a decree for partition upon declaration of plaintiffs' shares in the suit property. It appears that the said suit was filed in the year 1975. The said suit was initially dismissed. An appeal was preferred against such decree of dismissal and the learned Lower Court remanded the matter back to the learned Trial Court for a fresh decision on the question as to whether or not one Abdul Latif had died earlier than that of one Asia Bibi. It may be recorded here that Abdul Latif had more than one wife and the said Asia Bibi happened to be his third wife. The defendant no. 2 is the son of the said Asia Bibi. The defendant no. 2 has sold his alleged right, title and interest of the suit property in favour of the defendant no. 1. Initially a question was raised as to whether or not the property was actually purchased by Abdul Latif in the benami of his wife, Asia Bibi, but that question was settled by the learned First Appellate Court below by declaring that the property actually belonged to the said Asia Bibi. The matter did not stop there as a further question arose in the matter, that is, whether Abdul Latif had died earlier than Asia Bibi as it was thought that if Abdul Latif had died earlier than Asia Bibi, then it would be difficult for the plaintiffs to claim any share of the property as a successor to Abdul Latif but if the Court finds that Abdul Latif had died later than that of Asia Bibi, then a question would arise as to what extent the plaintiffs have succeeded to the estate of Abdul Latif vis -à -vis the suit property. After the matter went back on remand to the learned Trial Court, the learned Trial Court found that Abdul Latif had died before Asia Bibi had died and the learned First Appellate Court has affirmed such finding of the learned Trial Court. Challenging such judgement of affirmance, the plaintiff no. 1 has preferred the instant second appeal which was admitted on certain substantial questions of law. The following substantial questions of law were formulated by a learned Division Bench while admitting the appeal. "(I) Whether the Courts below erred in law substantially in admitting the death certificate of Abdul Latif which was Exhibit 'D' in evidence although the death register from which it was issued was not produced from the office of the Calcutta Municipal Corporation D.W. 5 was not aware who wrote the entries in the Register from which Exhibit 'C' which was the death certificate of Ayesa Khatoon was issued and, therefore erroneously dismissed the suit holding the Exhibits as conclusive proof causing serious miscarriage of justice. (ii) Whether the courts below substantially erred in law in not considering the petition filed by the appellant objecting the admission of the Exhibits 'C and D' and wrongly taking adverse presumption under Section 114G of the Evidence Act for not adducing any evidence after remand and fot not calling the Registers or examining any witness though the plaintiff filed two xerox copies of the death certificates and thereby erroneously draw adverse inference against the appellant, or not."
(3.) ON the aforesaid two substantial questions of law, the instant appeal has been admitted for hearing.;