TMI Blog1966 (8) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... tim Narain died sometime before 1900 leaving a widow Mst. Zira Kuer but no children, and Mst. Zira Kuer in her turn died in 1943. Ramruch had a son Basudeo Narain. According to the respondents, Basudeo Narain died during the life-time of his father sometime about the revisional settlement which took place between 1917-1920. As Basudeo Narain was the only son of Ramruch the latter was greatly grieved on his premature death and he left his home about a month after Basudeo Narain s death and thereafter disappeared from the village. Basudeo Narain had married twice. One of his widows was Mst. Phuljhari Kuer who executed the gift deed of 1953 which was challenged in the suit. The other was Mst. Sakala who died in 1950. Mst. Phuljhari had no children while Mst. Sakala had a daughter Ramrati Kuer who is the appellant before us. Thus at the time of his death, Basudeo Narain left two widows and a daughter. The case of the respondents further was that as Basudeo Narain had pre-deceased his father, Basekhi Singh inherited the properties of the share of Ramruch and that the two widows and the daughter of Basudeo Narain had no right to the properties except that they were entitled to maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd daughter would in their turn succeed to him. On a review of the entire evidence and the conduct of the parties for about 30 years after the revisional settlement, the trial court came to the conclusion that Basudeo Narain had died after his father. In that view the trial court dismissed the suit. There was an appeal to the High Court by the plaintiffs-respondents and the High Court allowed the appeal. The High Court reconsidered the entire evidence produced by the parties and was of opinion that the oral evidence produced was far from satisfactory and held that if oral evidence was equally balanced or equally worthless the side which got support from unimpeachable or reliable documentary evidence should succeed. The High Court then considered the documentary evidence and held that most of the documentary evidence was inconclusive one way or the other as to the order in which Basudeo Narain and Ramruch died. But in the opinion of the High Court there was a statement made by Mst. Phuljhari as far back as 1925 in a mortgage suit brought by her and in that suit she categorically said that Ramruch left his home a month after the death of Basudeo Narain and bad not been heard of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsider its admissibility as well as the value to be attached to it. It appears that a suit was brought by Mst. Phuljhari Kuer and Mst. Sakala Kuer widows of Basudeo Narain against Mukhlal Singh and others in 1924. The suit was based on a mortgage bond in favour of Basudeo Narain and the case of the widows was that money had been advanced out of the personal fund of their husband and that was how they were claiming a decree on the basis of the mortgage. The defence was that Basudeo Narain had no personal fund of his own and that money was advanced out of joint family fund and therefore Ramruch and other members of the joint family should have filed the suit or should have been made parties and as that had not been done the suit was not maintainable. Two of the issues in the case were : (i) whether the suit as framed was maintainable, and (ii) whether the plaintiffs in that suit had any cause of action. In that suit Mst. Phuljhari Kuer made a statement and she stated that her husband was :In the service of one Nandan Babu and the money which was advanced was out of his earnings as such servant and that the joint family had no concern with that money. While making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh was keen to get this statement in order that his right to the properties left by Ramruch might not be jeopardised, it is strange that be took no steps for about 23 years that he lived after this statement was made to get his name mutated in revenue papers. As we have already indicated there was no trouble in this family so long as Basekhi Singh was alive and in the circumstances we are not prepared to believe that this statement was made at the instance of Basekhi Singh who at any rate took no advantage of it during his lifetime. It is however urged that this statement is not admissible and in any case no value should be attached to it, firstly because it is not proved that Mst. Phuljhari Kuer knew that she was making a statement against her interest, and secondly, because this statement is contradicted by her in her statement in the gift deed of 1953. Under s. 32 (3) of the Indian Evidence Act, No. 1 of 1872, a statement of a person who is dead is admissible when the statement is against the pecuniary or proprietary interest of the person making it, or when if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages. Now th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-in-law and if that was so there is no reason to suppose that she would not know the well-established Hindu law that a predeceased son s widow has no interest in her father-inlaw s property except for maintenance. In the circumstances once it is held that the statement was not made at the instance of Basekhi Singh it must follow in the absence of proof that Mst. Phuljhari Kuer did not know the effect of what she had stated that she-had made the statement consciously knowing what she was stating and also knowing that the effect of her statement that her husband predeceased her father-in-law, would be against her proprietary interest. We are therefore of opinion that the statement in question was made by Mst. Phuljhari Kuer consciously and not at the instance of Basekbi Singh and she must in the circumstances of the case be presumed to know that that statement was against her proprietary interest, for thereby she became the widow of the predeceased son of her father-in-law. Then we come to the gift deed executed by Mst. Phuljhari Kuer in favour of the appellant in 1953. It is urged that the statements made by her in this gift deed would be admissible in view of S. 158 of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was conscious of what she was stating in 1925 and that it was done at her own instance and not at the instance of Basekhi and that she must have known that by that statement she became the widow of a predeceased son and would therefore not be entitled to the property of her father-in-law. In the circumstances we hold in agreement with the High Court that that statement is admissible and it completely overweighs the circumstances on which the appellant relies. In this view of the matter we hold that Basudeo Narain died after the death of his father Ramruch and it was one month or so after his death that Ramruch left the village as he was greatly grieved on the premature death of his son and afterwards disappeared. As Ramruch has not been heard of for more than seven years after he disappeared from the village, he must be presumed to be dead and the plaintiffs-respondents would in the circumstances be entitled to the property of which he was the last maleholder. The appeal therefore must fail except with respect to one item of property to which we shall refer just now. [His lordship then held that in so far as this item of property was concerned the appellant was entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X
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