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Mauladad Khan and ors. Vs. Abdul Sattar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1917All35; (1917)ILR39All426; 39Ind.Cas.666
AppellantMauladad Khan and ors.
RespondentAbdul Sattar and ors.
Excerpt:
act no. i of 1873 (indian evidence act), section 32(5) - evidence of relationship--statement made in a plaint filed by a member of the family since deceased--second appeal--finding of fact. - - the court of first instance used some strong expressions in respect of the two witnesses produced by the plaintiffs. it seems to us that the document was clearly admissible. we are clearly of opinion that a statement contained in a plaint filed by a litigant is a 'statement' within the meaning of this section. but under ordinary circumstances we think that considerable weight might very well be attached to a document like a plaint......fiddo begam. the plaintiffs alleged that they were the sons of one munir khan, paternal undo of musammat fiddo begam. the defendants denied that the plaintiffs were the heirs of musammat fiddo. they did not specifically allege who the plaintiffs were, but they in general terms denied that they were the heirs. the plaintiffs in their plaint describe themselves as the 'sons of munir khan.' the defendants pleaded, as a. further defence, that musammat fiddo made a will on the 22nd of july, 1911, in favour of the first two defendants. the court of first instance held that the plaintiffs had not proved that they were the sons of munir khan, and further that the alleged will was genuine, and dismissed the suit. it seems to be admitted that if the plaintiffs are the sons of munir khan, they.....
Judgment:

Henry Richards, C.J. and Pramada Charan Banerji, J.

1. This appeal arises out of a suit in which the plaintiffs claimed to recover possession of certain property as the heirs of one Masammab Fiddo Begam. The plaintiffs alleged that they were the sons of one Munir Khan, paternal undo of Musammat Fiddo Begam. The defendants denied that the plaintiffs were the heirs of Musammat Fiddo. They did not specifically allege who the plaintiffs were, but they in general terms denied that they were the heirs. The plaintiffs in their plaint describe themselves as the 'sons of Munir Khan.' The defendants pleaded, as a. further defence, that Musammat Fiddo made a will on the 22nd of July, 1911, in favour of the first two defendants. The court of first instance held that the plaintiffs had not proved that they were the sons of Munir Khan, and further that the alleged will was genuine, and dismissed the suit. It seems to be admitted that if the plaintiffs are the sons of Munir Khan, they are the heirs of the deceased lady. The lower appellate court held that the plaintiffs were the sons of Munir Khan and therefore the heirs of Fiddo Begam, and held against the will. A learned Judge of this Court reversed the decision of the lower appellate court and restored the decree of the court of first instance. The plaintiffs produced two witnesses who deposed to the alleged relationship between them and the deceased. One of these witnesses further identified a plaint filed in a suit brought in 1906, in which Musammat Fiddo was one of the plaintiffs and in which the present plaintiffs were amongst the array of defendants and were stated to be the sons of Munir Khan. The court of first instance used some strong expressions in respect of the two witnesses produced by the plaintiffs. The lower appellate court refrains from the use of such extravagant language, but agrees with the court of first instance in its estimate of the amount of reliance that could be placed on the evidence of these witnesses when deposing to the alleged relationship. The court, however, thought that the plaint stood on a different basis. The learned District Judge says that the witness who identified this plaint was really giving more or less formal evidence. There could be no doubt that a suit had been brought in the year 1906, that the Musammat was one of the plaintiffs in that suit and that there was no reason why the plaintiffs in the present suit should then have been falsely described as being the sons of Munir Khan if in fact they were not. One of the questions dealt with by the earned Judge of this Court was the question of the admissibility of this document. He seems to have thought that it was very * doubtful whether it was admissible or not. It seems to us that the document was clearly admissible. Section 32 of the Evidence Act provides that a statement, written or verbal, of a relevant fact made by a person who is dead is itself a relevant fact under certain circumstances. Clause (5) mentions one of the circumstances, namely, when the statement relates to the existence of any relationship between the persons as to whose relationship the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. We are clearly of opinion that a statement contained in a plaint filed by a litigant is a 'statement' within the meaning of this section. The statement in the present plaint was a statement made before the question in dispute in the present suit was raised. The learned Judge of this Court says that it was not proved that Musammat Fiddo had any special means of knowledge. He says: 'It by no means follows that in 1906, she was capable of stating accurately who were her blood relations. It is a task which I should be unable to perform myself.' It seems to us that every member of a family has 'special means of knowledge' within the meaning of this section of being able to state who his own first cousins were. We think therefore that Musammat Fiddo had special means of knowledge and that her 'statement' as contained in the plaint was admissible in evidence. The record of the suit in which the plaint was filed was sent for, the original was produced, and a witness whose evidence (in this respect) the court below accepted, stated that the thumb-impression was Fiddo's and that the plaint was the plaint of the deceased. We think that the document was not only admissible but was under the circumstances proved. We have nothing to do in second appeal with the weight to be attached to any particular piece of evidence; but under ordinary circumstances we think that considerable weight might very well be attached to a document like a plaint. Of course circumstances might be disclosed which might lessen the weight to be attached to a statement contained in a plaint or any other document. We think the learned Judge of this Court was bound to accept the finding of the lower appellate court in second appeal on a question of fact based on legal evidence, and that therefore he was wrong in overruling the lower appellate court in its finding that the plaintiffs were the sons of Munir Khan. As already stated the question of sufficiency or insufficiency of evidence is not for this Court in second appeal. The learned Judge of this Court left undecided the question of the validity of the will. The lower appellate court found that the alleged will had been made on the 22nd of July, that it was registered on the 23rd of July, and that the lady died on the 26th of July. The court finds that the lady was an old lady aged 60 years and suffering from dysentery on the 22nd of July, and the fact of her illness is noted by the Sub-Registrar when the document was registered. It further finds that the lady had no independent advice and that on the face of the will she was made to declare that certain incumbrances affected only her estate, that these declarations were against herself and in favour of the persons who were to be the sole beneficiaries under the will and the learned Judge ends up his judgement by stating: 'In my opinion it is not proved that Fiddo was of sound disposing mind when she executed the will, nor that she understood its contents.' It is contended on behalf of the respondent that this shows that the learned Additional Judge threw the onus on to the defendants of showing that Musammat Fiddo was of sound disposing mind and that she knew of the contents. The question of burden of proof is not very important in the present case, because evidence was given upon both sides, and we think that the judgement of the learned Judge must be taken to mean that he did not believe that Musammat Fiddo understood the document which she put her thumb-impression to as her will a very short time before she died when she was in a delicate state of health and without any friend to advise her except those who were to take under her will. It is lastly Contended on behalf of the defendants that after the death of Musammat Fiddo they paid off some of the debts due on the estate of Musammat Fiddo and that they ought to be allowed to retain possession of the property until they are recouped at least to this extent. They admit that they are not entitled to be repaid the full amount they paid, but only so much of the debts as should be attributed to the estate of Musammat Fiddo. We should be glad to give effect to this contention if we could see our way to do so. It must be remembered, however, that if we find that the plaintiffs are the heirs of Musammat Fiddo and if we find against the will, then the payments which were made by the defendants were purely voluntary and cannot be recovered in this suit. The learned Judge of this Court in the course of his judgement makes some remarks with regard to the duty of an appellate court in hearing an appeal. This no doubt is a matter of considerable importance and as the matter has been mentioned we think that the remarks of three of the Lord Justices of the Court of Appeal in England may be read with some advantage by appellate courts. We must bear in mind that there ought to be the same rule for the lower courts as for this High Court. In the case of Coghlan v. Cumberland [1898] 1 Ch. D. 704 their Lordships state as follows: 'The case was not tried with a jury, and the appeal from the Judge is not governed by the rules applicable to new trials after a trial and verdict by a jury. Even where, as in this case, the appeal turns on a question of fast, the court of appeal has to bear in mind that its duty is to re-hear the case, and the court must re-consider the materials before the Judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgement appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgement is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross examined before the Judge, the court is sensible of he great advantage he has had in seeing and hearing them, It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions; and when the question arises which witness is to be believed rather than another and that question turns on manner and demeanour, the court of appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the Judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen.' Their Lordships were dealing there with an appeal from a single Judge of the Supreme Court of Justice. We think that these remarks apply to an appellate court in this country dealing with appeals from the decisions of Munsifs and Subordinate Judges and justify interference by the appellate court at least to the extent indicated. In India Munsifs and Subordinate Judges in many cases have to hear a case at intervals and not continuously from day to day. Frequently they have to decide many other cases in the intervals. Also, in India the trial courts have to spend much labour in recording verbatim with their own hand the evidence of the witnesses, and judgements are frequently not written until a considerable time has elapsed after the evidence is heard. There is in this and in other respects a marked contrast between a trial in England and a trial in this country. The trial Judge in India has not as a general rule the same opportunity of observing the demeanour of the witnesses as a trial Judge in England.

2. We allow the appeal; we set aside the decree of the learned Judge of this Court, and we restore the decree of the lower appellate court with costs of both hearings in this Court.


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