TMI Blog1959 (4) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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 - 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 with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 in 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 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 Dharanidhar Misra which he 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 (Sushila Misrani, aged 43) knowledge of relevant facts as to relationships can seldom be attributed to them. Their e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 II, 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 knowle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the opinion of a person. It still remains for the Court to weigh such evidence and come to its own opinion as 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 [A.I.R. 1937 P.C. 201.]. 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 II 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 say - if it refers to a fact which could be seen, it must be the evidence of a witness who says ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile 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 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 and her 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... okenath. 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 his grand-children. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idhar 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 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 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 to 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 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 [(1898) I.L.R. 26 Cal. 236]; 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. 1 were really the statements of Satyabadi, who signed for self and one 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and therefore the question as to who the next reversioner was arose in the suit of 1917; and Ex. 1 did raise a dispute as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 not think that we shall be justified in going behind that assessment. Learned counsel for the appellant wished also to argue the point that the Privy Council decision in Mst. Sahodra's case [(1942) L.R. 69 I.A. 145.] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
