Dolgobinda Paricha Vs. Nimai Charan
Misra & Ors  INSC 52 (27 April 1959)
CITATION: 1959 AIR 914 1959 SCR Supl. (2) 814
CITATOR INFO :
RF 1977 SC2002 (5) R 1983 SC 684 (140)
Evidence-Admissibility--Joint statement of
three Persons Admissibility under s. 32(5) of the Evidence Act, when only one
is dead-Opinion as to Relationship-Conduct as evidence of opinion Proof of
conduct-Direct evidence--"Opinion", meaning of--Indian Evidence Act,
1872 (1 of 1872), ss. 32(5),50, 60.
On the death of H, who as the mother of the
last male owner had succeeded to the estate, the respondents claimed the estate
and brought a suit for its recovery on the strength of the pedigree which they set
up that they were the sons of the half sisters of the last male owner and
therefore came before the agnates. The suit was contested by some of the
agnates, of whom the appellant was one, who challenged the correctness of the
pedigree, and maintained that the respondents' mothers were not the
half-sisters of the last male owner. The trial court agreed with the
respondents' case and decreed the suit and this was confirmed by the High
Court. The High Court relied on Ex. 1, a petition dated November 2, 1917, which S, one of the brothers of the third plaintiff, on his own behalf and on
behalf of his brothers had filed in Suit NO. 31 Of 19I7 which was a suit
instituted by some of the agnates of H's husband questioning the alienations
made by H. In the petition,, S alleged that the applicants were the legal
claimants to the properties in the suit and prayed to be added as co-defendants
to the suit.
The petition contained a pedigree which
supported the pedigree set up 815 by the respondents, and the High Court held
that Ex. I was admissible under S. 32(5) of the Indian Evidence Act. The oral
evidence of P.W. 2 and P.W. 4 supported the respondents' case as to the
pedigree set up by them and the High Court held that their evidence was
admissible under s. 50 Of the Indian Evidence Act. On appeal to the Supreme
Court, it was contended for the appellant (1) that Ex. I was not admissible
under s. 32(5) Of the Indian Evidence Act because (a) the statement therein was
a joint statement of three persons of whom one alone was dead, and (b) it was
not made before disputes had arisen ; and (2) that the testimony of P.W. 2 and
P.W. 4 did not fall within the purview Of s. 50 Of the Indian Evidence Act and
that the High Court erred in admitting and accepting such evidence.
Held: (1) that s. 32(5) Of the Indian
Evidence Act was applicable to the statements as to pedigree in Ex. I because :
(a) they were really made by S for self and on behalf of his brothers, and
that, in any case, they were as much statements of S as of the other two
brothers who are alive.
Chandra Nath Roy v. Nilamadhab Bhattacharjee,
26 Cal. 236, approved.
(b) they were made before the precise
question in dispute in the present litigation had arisen, as the respondents
were not preferential heirs at the time of the previous suit and no question
arose or could have arisen then as to the relationship between them and the
last male owner.
(2) that the evidence of P.W. 2 and P.W. 4
that they were present at the marriage of the mother of plaintiffs 1 and 2 as
also at the Upanayanam ceremonies of plaintiffs 1 and 2, showed the opinion of
those witnesses as to the relationship as expressed by their conduct, and was
admissible under s. 50 Of the Indian Evidence Act.
The word " opinion " in S. 50 Of
the Indian Evidence Act means something more than mere retailing of gossip or
hearsay; it means judgment or belief, that is, a belief or a conviction
resulting from what one thinks on a particular question. Such belief or
conviction may manifest itself in conduct or behaviour which indicates the
existence of the belief or opinion.
Under S. 50 such conduct or outward behaviour
as evidence of the opinion held is relevent and may be proved.
Chander Lal Agarwala v. Khalilay Rahman,
I.L.R.  2 Cal. 299, approved.
Conduct, as an external perceptible fact, may
be proved either by the testimony of the person himself whose opinion is
evidence under s. 50 or by some other person acquainted with the facts which
express such opinion, and as the testimony must relate to external facts which
constitute conduct and is given by persons personally acquainted with such
facts, the testimony is in each case direct within the meaning of s. 60 of the
Indian Evidence Act.
816 The observations 'of Hutchins, J., in
Queen Empress v. Subbarayan, (1885) I.L.R. 9 Mad. 9, that s. 50 of the Indian
Evidence Act seems to imply that a person whose opinion is a relevant fact
cannot be called to state his own opinion as expressed by his conduct and that
his conduct may be proved by others only when he is dead or cannot be called,
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 206 of 1954.
Appeal from the judgment and decree dated
March 9, 1951, of the Orissa High Court inAppeal from Original decree No. 14 of
1946, arising out of the judgment and decree dated January 31, 1946, of the
Court of Subordinate Judge at Sambalpur in Title Suit No. 16 of 1944.
L. K. Jha, Rameshwar Nath, S. N. Andley and
J. B. Dadachanji, for the appellant.
S. C. Issacs and R. Patnaik, for the respondents.
1959. April 27. The Judgment of the Court was
delivered by S. K. DAS, J.-This appeal on a certificate granted by the High
Court of Orissa is from the judgment and decree of the said High Court dated
March 9, 1951, by which it substantially affirmed the decision of the learned
Subordinate Judge of Sambalpur in Title Suit No. 16 of 1944 except for a
modification of the decree for damages awarded by the latter. Two questions of
law arise in this appeal, one relating to the interpretation of s. 32, sub-s.
(5) and the other to S. 50 of the Indian Evidence Act (I of 1872), hereinafter
referred to as the Evidence Act.
The material facts relating to the appeal are
susceptible of a-simple and concise statement. Three persons Nimai Charan
Misra, Lakshminarayan Misra and Baikuntha Pati brought a suit for a declaration
of their title to and recovery of possession of certain properties details
whereof are not necessary for our purpose. This suit was numbered Title Suit 16
of 1944 in the court of the Subordinate Judge of Sambalpur. The claim of the
plaintiffs, now respondents before us, was founded on the following pedigree:817
Sankarsan Balaram Bhubana Baidyanath Raghunath Purushottam Satyabhama=
Lokanath= Haripriya alias Srihari (died 1942) (2nd wife) Satyananda (died 1902)
Natabar Deft. 1 Janardan Devendra Deft. 3 Radha Krushna Dolgovind Ramhari Deft.
4 Deft. 5 Deft. 6 Must. Ahalya Mst. Brindabati Mst. Malabati (dead) married
(dead) married. (dead) married.
Lakhan Pati. Raghumani. Mandhata Misra.
Satyabadi Dasarath Baikuntha Nimai
Lakshminarayanm (dead) (Deft.8) (Plaintiff3) Plaintiff1 Plaintiff2 (given in
adoption in another family).
818 The last male owner was Satyananda who
died unmarried sometime in 1902-1903, and his mother Haripriya succeeded to the
estate. She lived till 1942; but in 1916 she had sold a portion of the property
to one Indumati, daughter of Dharanidhar Misra (plaintiffs' witness no. 4) and
some of the reversioners, namely, Natabar and Janardan, who were agnates of
Haripriya's husband Lokenath Parichha, brought a suit challenging the
alienation. This suit was Suit No. 31 of 1917 in the court of the Subordinate
The suit was decreed on August 31, 1918, and
the alienation was declared to be without legal necessity and not binding on
the reversion after the death of Haripriya. In 1929 was passed the Hindu Law of
Inheritance (Amendment) Act (II of 1929) which inter alia gave to a sister's
-son a place in the order of Mitakshara succession higher than the agnates;
before the amending Act a sister's son ranked
as a bandhu, but under it he succeeded next after the sister. The question
whether a half-sister was entitled to get the benefit of the amending Act gave
rise to a difference of opinion, but the Privy Council held in 1942, settling
the difference then existing between the various High Courts, that the term I
sister' included a 'half-sister'; but a full sister and a half-sister did not
take together and the latter took only in default of the full sister. (See Mst.
Sahodra v. Ram Babu (1) ). The
plaintiffs-respondents claimed on the strength of the pedigree which they set
up that they were sons of the half-sister of Satyanand and therefore came
before the agnates.
The suit was contested by some of the
defendants who were agnates of Lokenath Paricha and of whom the present
appellant was one. The contesting defendants challenged the correctness of the
pedigree alleged by the plaintiffsrespondents and their main case was that
Ahalya and Malabati were -not the daughters of Lokenath Parichha but were
daughters of Baidyanath Misra, father of Haripriya. The relevant pedigree which
the appellant set up was(1) (1942) L.R. 69 I.A. I45.
819 Baidyanath Misra Haripriya Bisseswar
AliaJ Malabati (died on Misra Laksh Pati Mandhata 6-4-1942) Dayasagar Satyanand
Sushila P. W. 3 (died in 1903) Dasarathi Baikuntha Plff. 3 Nimai LakshmiPlff.1
narayan. Plff. 2.
As the High Court has put it, the essential
controversy between the parties centred round the question if the
plaintiffs-respondents were the sons of the daughters of Lokenath Parichha by
his first wife Satyabhama. On this question the parties gave both oral and
documentary evidence. On a consideration of that evidence the learned
Subordinate Judge held that they were the sons of the daughters of Lokenath
Parichha and on that finding the suit was decreed. There was an appeal to the
High Court, and it affirmed the finding Of the learned Subordinate Judge. The
High Court relied on Ex. 1, a petition dated November 2, 1917, which Satyabadi
on his own behalf and on behalf of his brothers Baikunth Pati and Dasarath Pati
had filed in Suit No. 31 of 1917; this petition contained a pedigree which
showed that Ahalya, Brindabati, and Malabati were daughters of Lokenath
Parichha by his first wife and Satyabadi, Baikunth and Dasarath were the sons
of Ahalya. The admissibility of this document was challenged on behalf of the
appellant, but the learned Judges of the High Court held that the document was
admissible under s. 32(5) of the Evidence Act. The contention before us is that
the document was not so admissible, and this is one of the questions for
decision before us.
As to the oral evidence, Narasimham, J., held
that the testimony given by three of the witnesses of the plaintiffsrespondents,
namely, Janardan Misra (plaintiffs' witness no. 2), Sushila Misrain
(plaintiffs' witness no. 3) and Dharanidhar Misra (plaintiffs' witness no.
4)was admissible under s. 50 of the Evidence Act, and 820 he relied on that
testimony in support of the pedigree set up by the plaintiffs-respondents. The
learned Chief Justice relied on the evidence of Dharanidbar Misra which be held
to be admissible but with regard to the. other two witnesses, he said"
With regard to the other two witnesses relied on by the plaintiffs namely that
of P. Ws. 2 (Janardan Misra, aged 62) and 3 (Susila Misrani, aged 43) knowledge
of relevant facts as to relationships can seldom be attributed to them. Their
evidence, though true, and otherwise acceptable, must be based upon their having
heard the declarations of such members of the family as were their
contemporaries or upon the tradition or reputation as to family descent handed
down from generation to generation and recognised and adopted by the family
generally. This may partly, if not wholly, be based upon conduct within the
meaning of section 50, such as treating and recognising the mothers of the
plaintiffs as Lokenath's daughters, and the plaintiffs as his daughter's sons.
They, judged from their respective ages, could not be considered to have direct
knowledge of the matters in issue.
Scanning their evidence closely, I find that
they have in no way deposed about such conduct of the members of the family of
Lokenatb as could be attributed to the knowledge or belief or consciousness of
those who had special means of knowledge of the relationships or that the
relationship was recognised and adopted by the family generally. In the
circumstances, I entertain some doubt as to the acceptability of their
statements in evidence." On behalf of the appellant, it has been contended
that the testimony of none of the aforesaid three witnesses fell within the
purview of s. 50 of the Evidence Act and the High Court was in error in
admitting and accepting that evidence or any part thereof, and according to
learned counsel for the appellant, the whole of it was hearsay pure and simplesome
of it being even second or third-hand hearsay. Thus the second question for our
consideration is if the testimony of the witnesses mentioned above or of any of
them, is 'admissible evidence within the meaning of s. 50 of the Evidence Act.
821 We proceed to consider the second
question first. The Evidence Act states that the expression " facts in
issue " means and includes any fact from which either by itself or in
connection with other facts the existence, nonexistence, nature or extent of
any right, liability or disability asserted or denied in any suit or proceeding
necessarily follow; "evidence" means and includes (1) all statements
which the Court permits or requires to be made before it by witnesses in
relation to matters of fact under enquiry ; and (2) all documents produced for
the inspection of the Court. It further states that one fact is said to be
relevant to another when the one is connected with the other in any one of the
ways referred to in the provisions of the Evidence Act relating to the
relevancy of facts. Section 5 of the Evidence Act lays down that evidence may
be given in any suit or proceeding of the existence or non-existence of every fact
in issue and 'of such other facts as are declared to be relevant and of no
others. It is in the context of these provisions of the Evidence Act that we
have to consider s. 50 which occurs in Chapter 11, headed " Of the
Relevancy of Facts Section 50, in so far as it is relevant for our purpose, is
in these terms:" S. 50. When the Court has to form an opinion as to the
relationship of one person to another, the opinion, expressed by conduct, as to
the existence of such relationship, of any person who, as a member of the
family or otherwise, has special means of knowledge on the subject, is a
relevant fact On a plain reading of the section it is quite clear that it deals
with relevancy of a particular fact. It states in effect that when the Court
has to form an opinion as to the relationship of one person to another the
opinion expressed by conduct as to the existence of such relationship of any
person who has special means of knowledge on the subject of that relationship
is a relevant fact. The two illustrations appended to the section clearly bring
out the true scope and effect of the section. It appears to us that the
essential requirements of the section are-(I) there, must be a case where the
court has to form an opinion as to the 822 relationship of one person to
another; (2) in such a case, the opinion expressed by conduct as to the
existence of such relationship is a relevant fact; (3)but the person whose
opinion expressed by conduct is relevant must be a, person who as a member of
the family or otherwise has special means of knowledge on the particular
subject of relationship ; in other words the person must fulfill the condition
laid down in the latter part of the section. If the person fulfils that
condition, then what is relevant is his opinion expressed by conduct. Opinion
means something more than more retailing of gossip or of hearsay; it means
judgment or belief, that is, a belief or a conviction resulting from what one
thinks on a particular question.
Now, the " belief " or conviction
may manifest itself in conduct or behaviour which indicates the existence of
the belief or opinion. What the section says is that such conduct or outward
behaviour as evidence of the opinion held is relevant and may, therefore, be
proved. We are of the view that the true scope and effect of section 50 of the
Evidence Act has been correctly and succinctly put in the following
observations made in Chandu Lal Agarwala v. Khalilar Rahman (1):"It is
only opinion as expressed by conduct which is made relevant. This is how -the
conduct comes in. The offered item of evidence is the conduct', but what is
made admissible in evidence is' the opinion', the opinion as expressed by such
conduct)The offered item of evidence thus only moves the Court to an
intermediate decision : its immediate effect is only to move the Court to see
if this conduct establishes any I opinion' of the person, whose conduct is in
evidence, as to the relationship in question.
In order to enable the Court to infer 'the
opinion ', the conduct must be of a tenor which cannot well be supposed to have
been willed without the inner existence of the I opinion'.
When the conduct is of such a tenor, the
Court only gets to a relevant piece of evidence, namely, the opinion of a
person. It still remains for the Court to weigh such evidence and come to its
own opinion as (1) I.L.R.  2 Cal. 299, 309.
823 to the factum probandum-as to the
relationship in question." We also accept as. correct the view that s. 50
does not make evidence of mere general reputation (without conduct) admissible
as proof of relationship: Lakshmi Reddi v. Venkata Reddi (1).
It is necessary to state here that how the
conduct or external behaviour which expresses the opinion of a person coming
within the meaning of s. 50 is to be proved is not stated in the section. The
section merely says that such opinion is a relevant fact on the subject of
relationship of one person to another in a case where the court has to form an
opinion as to that relationship. Part 11 of the Evidence Act is headed "
On Proof ". Chapter III thereof contains a fascicule of sections relating
to facts which need not be proved. Then there is Chapter IV dealing with oral
evidence and in it occurs s. 60 which says inter alia :" S. 60. Oral
evidence must, in all cases whatever, be direct; that is to sayif it refers to
a fact which could be seen, it must be the evidence of a witness who says he
if it refers to a fact which could be heard,
it must be the evidence of a witness who says he heard it; if it refers to a
fact which could be perceived by any other sense or in any other manner, it
must be the evidence of a witness who says he perceived it by that sense in
if it refers to an opinion or to the grounds
on which that opinion is held, it must be the evidence of the person who holds
that opinion on those grounds. " If we remember that the offered item of
evidence under s. 50 is conduct in the sense explained above, then there is no
difficulty in holding that such conduct or outward behaviour must be proved in
the manner laid down in s. 60; if the conduct relates to something which can be
seen, it must be proved by the person who saw it; if it is something which can
be heard, then it must be proved by the person who heard it;
and so on. The conduct must be of the (1)
A.I.R. 1937 P.C. 201.
824 person who fulfils the essential
conditions of s. 50, and it must be proved in the manner laid down in the
provisions relating to proof. It appears to us that that portion of s. 60 which
provides that the person who holds an opinion must be called to prove his
Opinion does not necessarily delimit the scope of S. 50 in the sense that
opinion expressed by conduct must be proved only by the person whose conduct
expresses the opinion. Conduct, as an external perceptible fact, may be proved
either by the testimony of the person himself whose opinion is evidence under
s. 50 or by some other person acquainted with the facts which express such
opinion, and as the testimony must relate to external facts which constitute
conduct and is given by persons personally acquainted with such facts, the
testimony is in each case direct within the meaning of s. 60. This, in our
opinion, is the true inter-relation between s. 50 and s. 60 of the Evidence
Act. In Queen Empress v. Subbarayan (1) Hutchins, J., said :" That proof
of the opinion, as expressed by conduct, may be given, seems to imply that the
person himself is not to be called to state his own opinion, but that, when he
is dead or cannot be called, his conduct may be proved by others.
The section appears to us to afford an
exceptional way of proving a relationship, but by no means to prevent any
person from stating a fact of which he or she has special means of knowledge.
While we agree that s. 50 affords an
exceptional way of proving a relationship and by no means prevents any person
from stating a fact of which he or she has special. means of knowledge, we do
not agree with Hutchins, J., when he says that the section seems to imply that
the person whose opinion is a relevant fact cannot be called to state his own
opinion as expressed by his conduct and that his conduct may be proved by
others only when he is dead or cannot be called. We do not think that s. 50
puts any such limitation.
Let us now apply the tests indicated above to
the testimony of the two witnesses, Janardan Misra and (1) (1885) I.L.R. 9 Mad.
825 Dharanidhar Misra. As to Sushila Misrain,
she was aged about 43 when she gave evidence in 1946. It is unnecessary to
consider in detail her evidence, because if the evidence of the other two older
witnesses be admissible, that would be sufficient to support the finding
arrived at by the courts below another evidence would also be admissible on the
same criteria as the evidence of the other two witnesses.
The first question which we must consider is
if Janardan Misra and Dharanidhar Misra had special means of knowing the
disputed relationship. Janardan Misra was aged about 62 in 1946, and he was
related to the family of Baidyanath Misra.
Kashi Nath Misra was his grand-father and was
a brother of Baidyanath Misra. Obviously, therefore, Janardan Misra had special
means of knowing the disputed relationship, being related to Baidyanath and
therefore to Haripriya, who was the second wife of Lokenath. He said in his
evidence that he knew Lokenath Parichha, had seen his first wife Satyabhama and
remembered the marriage of Haripriya with Lokenath Parichha. Obviously,
therefore, he 'fulfilled the condition of special knowledge. He further said
that he attended the marriage of Malabati, daughter of Lokenath, when Lokenath
was living. That marriage took place in the house of Lokenath. He also said
that he was present when the first two daughters of Malabati were married and
also at the time of the Upanayan ceremonies of plaintiffs I and 2.
According to the witness, Shyam Sundar
Pujari, a son of a sister of Lokenath, acted as a maternal uncle at the time of
the marriage of the eldest daughter of Malabati and Dayasagar Misra carried
Radhika, second daughter of Malabati, at the time of her marriage.
The question is whether these statements of
Janardan Misra as to his conduct are admissible under s. 50, Evidence Act.
Learned counsel for the respondent has
contended before us that even apart from s. 50, the evidence of Janardan Misra
is direct evidence of facts which he saw and which should be treated as
.directly proving the relationship between Lokenath 104 826 and his daughters.
We do not think that learned counsel for the respondent is right in his
submission that Janardan's evidence directly proves the relation between
Lokenath and his alleged daughters, Abalya, Brindabati and Malabati.
Janardan does not say that he 'was present at
the birth of any of these daughters. What be says is that he was present at the
marriage of Malabati which took place when Lokenath was living and in
Lokenath's house; he was also present at the marriages of the first two
daughters of Malabati and also at the time of the Upanayan ceremonies of
plaintiffs I and 2. This evidence, in our opinion, properly comes within s. 50,
Evidence Act; it shows the opinion of Janardan Misra as expressed by his
conduct, namely, his attending the marriage of Malabati as daughter of Lokenath
and his attending the marriages and Upanayan ceremonies of the grandchildren of
Lokenath. We do not think that it can be suggested for one moment that Janardan
Misra attended the marriage and other ceremonies in the family as a mere casual
invitee. He must have been invited as a relation of the family and unless he
believed that Malabati was a daughter of Lokenath and the others were
grand-children of Lokenath to whom the witness was related, he would not have
said that he attended those ceremonies as those of the children and
grand-children, of Lokenath. This, in our opinion, is a reasonable inference
from the evidence and if that is so, then the evidence of Janardan Misra was
clearly evidence which showed his belief as expressed by his conduct on the
subject of the relationship between Lokenath and his daughters and Lokenath and
Janardan also said that one Shyamsundar
Pujari acted as maternal uncle at the time of the marriage of the eldest
daughter of Malabati. There is some evidence in the record that Shyamsundar
Pujari was son of Lokenath's sister. This was, however, disputed by the
appellant. The High Court has not recorded any finding on the relation of
Shyamsundar Pujari to Lokenath. If it were proved that Shyamsundar was a son of
Lokenath's sister, he would have special 827 means of knowledge as a relation
of the family and his conduct at the time of the marriage of Malabati's
daughter would also be admissible under s. 50. But in the absence of any
finding as to any special means of knowledge on the part of Shyamsundar, the
latter's conduct will not be admissible under s. 50. We need not say anything
more about Shyamsundar, as the High Court has not based its finding on the
conduct of Shyamsundar.
The same criteria apply to the evidence of
Dharanidhar Misra, who was aged 96 at the time when he gave evidence.
He was the maternal uncle of Janardan Misra.
Dharanidhar's evidence showed that he knew Lokenath Parichha and his two wives,
Satyabhama and Haripriya. He also had special means of knowing the disputed
relationship, though he was not directly related to Lokenath. He said that
Lokenath was two years older than him and the witness attended the marriages of
Radhika and Sarjoo and the " thread " ceremonies of Lakshminarayan
and Nimai. The witness further added that though he did not remember if he was
invited to the marriage of Mandhata's daughters, he was invited to the feasts
which followed the marriage. He said that the feasts took place in the house of
Mandhata and he attended the " gansana " and marriage feasts of
Mandhata's daughters. The same criteria which make the evidence of Janardan
Misra admissible under s. 50 also make the evidence of Dharanidhar Misra
admissible under the same section.
We may in this connection refer to one of our
own decisions, Sitaji v. Bijendra Narain Choudhary wherein the following
observations were made:
" A member of the family can speak in
the witness-box of what he has been told and what he has learned about his own
ancestors, provided what he says is an expression of his own independent
opinion (even though it is based on hearsay derived from deceased, not living,
persons) and is not merely repetition of the hearsay opinion of others, and
provided the opinion is expressed by conduct. His sources of (1) A.I.R 1954
828 information and the time at which he acquired
the knowledge (for example, whether before the dispute or not) would affect its
weight but not its admissibility. This is therefore legally admissible evidence
which, if believed, is legally sufficient to support the finding ". It is
true that Dharanidhar Misra was not directly related to the family of Lokenath.
He was, however, distantly related to Haripriya.
He was a friend of Lokenath Parichha and
lived in the same neighbourhood. His evidence showed that he knew him and the
members of his family quite well. That being the position, his evidence that he
attended the marriage ceremonies and the Upanayan ceremonies of several members
of the family undoubtedly showed his opinion as expressed by his conduct.
We are accordingly of the view that the evidence
of both Janardan Misra and Dharanidhar Misra was admissible under s. 50 and the
learned Judges of the High Court committed no error of law in admitting and
considering that evidence. We are concerned here with the question of
As to what weight should be given to their
evidence was really a matter for the courts below and both the learned Chief
Justice and Narasimham, J., accepted the testimony of Dharanidhar Misra and
Narasimham, J., further relied on the testimony of Janardan Misra also.
We now proceed to a consideration of the
first question, namely, the admissibility of the document Ext. 1. The High
Court has held the document to be admissible under subsection (5) of s. 32 of
the Evidence Act. We must first read s. 32 (5):
" S. 32. Statements, written or verbal,
of relevant facts made by a person who is dead, or who cannot be found, or who
has become incapable of giving evidence, or whose attendance cannot be procured
without an amount of delay or expense which, under the circumstances of the
case, appears to the Court unreasonable, are themselves relevant facts in the
(5) When the statement relates to the
existence of any relationship by blood, marriage or adoption between persons as
to whose relation-ship by blood, marriage or adoption the person making the
statement had special means of knowledge, and when the statement was made
before the question in dispute was raised.
Now, four conditions must be fulfilled for
the application of sub-s. (5) of s. 35: firstly, the statements, written or
verbal, of relevant facts must have been made by a person who is dead or cannot
be found, etc., as mentioned in the initial part of the section; secondly, the
statements must relate to the existence of any relationship by blood, marriage
or adoption; thirdly, the person making the statement must have special means
of knowledge as to the relationship in question ; and lastly, the statements
must have been made before the question in dispute was raised.
There is no serious difficulty in the present
case as to the first two conditions. Exhibit I contained a pedigree which
showed that Lokenath had three daughters by his first wife, the daughters being
Ahalya, Brindabati and Malabati; it also showed that Ahalya had three sons
Satyabadi, Baikuntha and Dasarath, of whom Baikuntha was one of the plaintiffs
in the present suit and the other two plaintiffs Nimai and Lakshminarayan were
shown as sons of Malabati. Exhibit I was signed by Satyabadi on his own behalf
and on behalf of his brothers Baikuntha and Dasarath. Satyabadi is now dead.
So far as Satyabadi is concerned, there can
be no doubt that the first two conditions for the application of sub-s. (5) of
s. 32 are fulfilled. It has been contended that as Dasarath and Baikuntha are
alive (Baikuntha being one of the plaintiffs) and as the statement was the
joint statement of three persons of whom one alone is dead, the first and
preliminary condition necessary for the application of s. 32 is not 830
fulfilled. We do not think that this contention is correct, and we are of the
view that the position is correctly stated in Chandra Nath Roy v. Nilamadhab
Bhattacharjee (1); that was a case in which the statements were recitals as to
a pedigree and were contained in a patta executed by three sisters, two of whom
were dead and it was pointed out that the statement in the patta was as much
the statement of the sisters who were dead as of the sister who was alive. In
the case before us the statements as to pedigree in Ex. I were really the
statements of Satyabadi, who signed for self and on behalf of his brothers.
Assuming, however, that the statements were of all the three brothers, they
were as much statements of Satyabadi as of the other two brothers who are
alive. We, therefore, see no difficulty in treating the statements as to
pedigree in Ex. I as statements of a dead person as to the existence of a
relationship by blood between Lokenath and his daughters Ahalya, Brindabati and
Malabati-the relationship which is in dispute now.
The more important point for consideration is
if the statements as to pedigree in Ex. I were made, to use the*words of sub-s.
(5), before the question in dispute was raised. The High Court held that the
statements were made ante litem motam. Learned counsel for the appellant has
very strongly contended before us that the High Court took an erroneous view in
this matter. Let us first see the circumstances in which Ex. I was filed and
dealt with in Suit No. 31 of 1917. We have said earlier what that suit was
about. It was a suit brought by some of the reversioners for a declaration that
the alienation made by Haripriya in favour of Indumati was without legal necessity
and, therefore, not binding on the reversion after the death of Haripriya. The
suit was filed on August 27, 1917. On November 2, 1917, certain other persons
made an application to be added as parties to the suit on the footing that they
had the same interest in the suit as the plaintiffs. That application was
disposed of by the learned Subordinate Judge by the following order-"In a
suit like the present, it is not necessary (1) (1898) I.L.R. 26 Cal. 236.
831 that all the reversioners should be made
parties. So I reject the petition." Exhibit I was filed on November 5,
1917. In that petition Satyabadi alleged: " The applicants are the legal
claimants to inherit the properties left by Lokenath ...... the applicants
therefore beg that they may kindly be made codefendants ". It was further
alleged that the plaintiffs of that suit had no legal right over the share in
dispute, and this was followed by a pedigree given in para. IV of the petition.
This petition (Ex. 1) was put up on November 27, 1917, and the learned
Subordinate Judge disposed of the petition by the following order:" The
petition of Satyabadi Pati and others was put up in the presence of the
plaintiffs pleader. He objects to the same. The petition is, therefore,
rejected." Ultimately, the suit was decreed on August 31, 1918, on the
finding that the alienation by Haripriya was without legal necessity and did
not bind the reversion after her death.
The learned Judges of the High Court took the
view that in Suit No. 31 of 1917 no dispute arose as to the alleged relation
between Lokenath on one side and Ahalya, Brindabati and Malabati on the other.
The dispute in that suit was about the validity of the alienation made by
Haripriya and the suit having been filed by some of the reversioners on behalf
of the reversion, no issue was raised or could be raised as to whether Lokenath
had any daughters by his first wife, Such an issue was not relevant to the suit
and furthermore nobody could anticipate in 1917 that the sons of a sister or
half-sister would be preferential heirs in the order of Mitakshara succession.
They, therefore, held that the statements in Ex. 1 were ante litem motam and
admissible under sub-s. (5) of s. 32, Evidence Act.
On behalf of the appellant it has been argued
that for a declaratory decree in respect of an alienation made by a Hindu widow
or other limited heir, the right to sue rests in the first instance with the
next reversioner and the reversioner next after him is not entitled to sue
except in some special circumstances 832 and therefore the question as to who
the next reversioner was arose in the suit of 1917; and Ex. I did raise a
dispute as to who the last male owner was Lokenath or Satyanand-and also showed
that there was a dispute if the plaintiffs of that suit were entitled to the
property in dispute there. The existence of such a dispute, it has been argued,
affected the statements in Ex. I and what Satyabadi said therein were not
" the natural effusions of a party who must know the truth and who speaks
upon an occasion when his mind stands in an even position without any
temptation to exceed or fall short of the truth " (as per Lord Chancellor
Eldon in Whitelocke v. Baker) (1).
Learned counsel has also relied on the
decision in Naraini Kuar v. Chandi Din (2) where it was held that s. 32(5) did
not apply to statements made by interested parties in denial, in the course of
litigation, of pedigrees set up by their opponents.
We do not think that in Suit No. 31 of 1917
any question as to the relationship of Lokenath with Ahalya, Brindabati and
Malabati arose at all. It is to be remembered that even according to the
pedigree set up by the appellant one of the plaintiffs is a son of Ahalya and
two others are sons of Malabati. What is now in dispute is whether Ahalya and
Malabati were daughters of Lokenath Parichha. That is a question which did Dot
at all arise for consideration in Suit No. 31 of 1917 ; nor did it arise in the
proceedings which the application of Satyabadi (Ex. 1) gave rise to.
Prima facie, there is nothing to show that a
dispute as to the relationship of Lokenath with Ahalya and Malabati arose at
any stage prior to or in the course of the proceedings which arose out of Ex. I
; that would be sufficient to discharge the onus of proving that the statements
in Ex. 1 were ante litem motam. Natabar, one of the plaintiffs in the suit of
1917, who might have given evidence of any such dispute if it existed, said
nothing about it. We have referred to the circumstances in which Ex. I was
filed and disposed of. It is true that the order of the learned Subordinate
Judge rejecting the -petition Ex. 1 is somewhat cryptic and it does not show
what objection the (7) (1807) 13 ves. 510, 514.
(8) (1886) I.L.R. 9 All. 467.
833 plaintiff of that suit took and on what
ground the learned Subordinate Judge rejected the petition. If, however, the
various orders made by the learned Subordinate Judge, particularly the orders
dated November 2, 1917, and November 27, 1917, to which we have earlier made
reference are examined, it seems clear to us that the learned Subordinate Judge
was proceeding on the footing that in a suit of that nature it was not
necessary to make all the reversioners parties, because the reversioners who
brought the suit represented the entire body of reversioners. From the judgment
passed in the suit (Ex. Cl) it does not appear that the question as to who the
next reversioners were was at all gone into. That may be due to the
circumstance, pointed out by the High Court, that Purushottam, uncle of
Janardan and Natwar, was then alive. He was admittedly then the nearest
reversioner, but as he did not join as a plaintiff he was made a proforma
defendant. The nearest reversioner having been added as a party defendant in
the suit of 1917, no question of title arose in that suit as between the
reversioners inter se. Such a question of title was wholly foreign to the
nature of that suit. Nor, do we find anything in the judgment, Ex. Cl, to show
that it was ever suggested in that suit that the last male owner was not Satyanand.
The sons of the half-sister of Satyanand were not preferential heirs at the
time and we agree with the learned Judges of the High Court that no question
arose or could have arisen in that suit as to the. relation between Lokenath on
one side and Ahalya and Malabati on the other.
That being the position, the statements as to
pedigree contained in Ex. 1 were made before the precise question in dispute in
the present litigation had arisen.
It has next been argued by learned counsel
for the appellant that in admitting Ex. I under s. 32(5) the courts below
assumed that Satyabadi had special means of knowledge as to the relation
between Lokenath and his alleged daughters Ahalya and Malabati. The argument
has been that unless it is assumed that Satyabadi is the grand-son of Lokenath,
he can have 105 834 relationship. Learned counsel for the appellant has
referred us to the decision in Subbiah Mudaliar v. Gopala Mudaliar (1) where it
was held that for a statement in a former suit to be admissible under s. 32(5)
the fact that the person who made the statement had special means of knowledge
must be shown by some independent evidence, otherwise it would be arguing in a
circle to hold that the document itself proves the relation and therefore shows
special means of knowledge. In Hitchins v. Eardley (2) the question of the
legitimacy of the declarant was in issue and the same question was necessary to
be proved in order to admit his declarations. That was a jurv case and the question
relating to the admissibility of evidence being a question of law had to be
determined by the Judge; but the same question being the principal question for
decision in the case had to be determined by the jury at the conclusion of the
trial. In the difficulty thus presented, prima facie evidence only was required
at the time of admission. We do not think that any such difficulty presents
itself in the case under our consideration. As to Satyabadi's special means of
knowledge, we have in this case the evidence of Janardan. Misra and Dharanidhar
Misra, which evidence independently shows that Satyabadi was the grand-son of
Lokenath, being the son of his daughter, Ahalya. It may be stated here also
that it was admitted that Ahalya was Satyabadi's mother, and that would show
that Satyabadi had special means of knowledge as to who his mother's father
Therefore, we agree with the High Court that
Ex. I fulfilled all the conditions of s. 32(5), Evidence Act and was admissible
We have already said that it is not for us to
consider what weight should be given to the oral evidence of Janardan and
Dharanidhar or to the statements in Ex. 1. The courts below have considered
that evidence and have assessed it. We do not think that we shall be justified
in going behind that assessment.
Learned counsel for the appellant wished also
to (1) A.I.R. 1936 Mad. 808.
(2) (1871) L.R. 2 P. & D. 248.
835 argue the point that the Privy Council
decision in Mst.
Sahodra's case (1) was wrong and that a half
sister was not entitled to get the benefit of the amending Act of 1929.
The Privy Council decision was given at a
time when it was binding on the courts in India and it settled differences of
opinion which then existed in the different High Courts.
That decision was taken as settling the law
on the subject and on the faith of that decision a half-sister has been held in
subsequent cases to be entitled to the benefit of the Amending Act. The High
Court dealt with the case in 1951 after the Constitution had come into force
and the Privy Council jurisdiction in Indian appeals had ceased. No point was
taken on behalf of the appellant in the High Court that the Privy Council
decision should be reopened and the question of the right of a half-sister
re-examined. In these circumstances, we did not allow learned counsel for the
appellant to argue the correctness or otherwise of the Privy Council decision.
The contentions as to the admissibility of
Ex. 1 and the oral evidence of Janardan Misra and Dharanidhar Misra being
devoid of merit, the appeal fails. We accordingly dismiss the appeal with costs
in favour of the contesting respondents.
(1) (1942) L.R. 69 I.A. 145.