Full Judgment Text
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PETITIONER:
DOLGOBINDA PARICHA
Vs.
RESPONDENT:
NIMAI CHARAN MISRA & OTHERS
DATE OF JUDGMENT:
27/04/1959
BENCH:
DAS, S.K.
BENCH:
DAS, S.K.
SARKAR, A.K.
SUBBARAO, K.
CITATION:
1959 AIR 914 1959 SCR Supl. (2) 814
CITATOR INFO :
RF 1977 SC2002 (5)
R 1983 SC 684 (140)
ACT:
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.
HEADNOTE:
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 halfsisters 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
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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, (1898) I.L.R.
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. [1942] 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,
disapproved.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 206 of 1954.
Appeal from the judgment and decree dated March 9, 1951, of
the Orissa High Court in- Appeal 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.
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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 Judge, Sambalpur.
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
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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 plaintiffs-
respondents 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 Lakshmi-
Plff.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 admissi-
bility 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 plaintiffs-
respondents, 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
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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 simple-
some of it being even second or third-hand hearsay. Thus
the second question for our consideration is if the testi-
mony 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, non-
existence, 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
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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 fulfil 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. [1942] 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
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and in it occurs s. 60 which says inter alia :-
" S. 60. Oral evidence must, in all cases whatever, be
direct; that is to say-
if it refers to a fact which could be seen, it must be the
evidence of a witness who says he saw it;
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 that manner;
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. 9, 11.
825
Dharanidhar Misra. As to Sushila Misrain, she was aged
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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
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which showed his belief as expressed by his conduct on the
subject of the relationship between Lokenath and his
daughters and Lokenath and his grandchildren.
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 S.C. 601.
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
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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 admissibility only.
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 sub-
section (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
following cases:-
(1)...................................................
(2)......................................................
829
(3)......................................................
(4).........................................
(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.
(6)...........................................
(7).............................................
(8)......................................
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,
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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 co-
defendants ". 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
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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
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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 con-
tained 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
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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 ques-
tion 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
was.
Therefore, we agree with the High Court that Ex. I
fulfilled all the conditions of s. 32(5), Evidence Act and
was admissible in evidence.
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
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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 halfsister 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.
Appeal dismissed.
(1) (1942) L.R. 69 I.A. 145.
836