1. These two appeals arise from a suit in which there was a triangular contest in respect of zamindari and other properties admittedly belonging at one time to Raj Bahadur, who died in 1895, leaving no issues. His widow, Mt. Durga Kunwar, who succeeded to his interest, died on the 20th February 1928. On her death three claimants appeared on the scene. The present plaintiff Mukat Behari Lal claimed as 'bandhu', being the son of Raj Bahadur's father's sister, Mt. Tulsha. His case was that no agnatic relation of Raj Bahadur descending indirect male line from the common ancestor was in existence and that the plaintiff was, therefore, entitled to his estate. The defendants first set, Ram Chandra and Sia Ram, claimed to be 'sapinda' relations of Raj Bahadur, being the descendants of the common ancestor Pran Nath in the direct male line and as such entitled to exclude the plaintiff, who claimed to be a relation of Raj Bahadur through a female. The third claimant was Mt. Chunna Kunwar, who is the widow of Kunwar Bahadur, a first cousin of Raj Bahadur. She claimed the whole and in the alternative half of Raj Bahadur's estate under a family arrangement said to be binding on the estate and arrived at between Mt. Durga Kunwar and Mt. Chunna Kunwar shortly after the death of Raj Bahadur.
2. As a matter of fact, Chunna Kunwar relied on an award of arbitrators to whom certain disputes bad been referred to for arbitration when disputes arose betweena Chunna Kun war's husband, Kunwar Bahadur, on the one hand, and Mt. Durga Kunwar on the other. According to her case, the award provided that Mt. Durga Kunwar would be recorded as a nominal owner of her husband's property entitled to receive a fixed annual amount as maintenance from the income of the estate but that the actual management and control of the property would vest in Kunwar Bahadur, on whose death, if he died son-less, Raj Bahadur's estate would be divided between Mt. Durga Kunwar, his widow, and Mt. Chunna Kunwar, the widow of Kunwar Bahadur. The latter died issueless on the 30th June 1916; and though in terms of the award Eaj Bahadur's estate should have been taken half and half by Mt. Durga Kunwar and Chunna Kunwar, Mt. Durga Kunwar took possession of the entire estate. Mb. Chunna Kunwar maintains that, in spite of Mt. Durga Kunwar remaining in possession of the whole instead of half. Mt. Chunna Kunwar's rights to a half share remained unaffected by the unwarranted action of Mt. Durga Kunwar, on whose death Mt. Chunna Kunwar could assert her rights. She pleaded that Mt. Durga Kunwar accepted maintenance allowance and should be deemed to have relinquished any interest which she had in the estate of her deceased husband. Mt. Chunna Kunwar seems to have pleaded two alternative cases in her written statement, firstly, that the effect of the award was that Kunwar Bahadur was the owner of the entire estate of Raj Bahadur under the award, Durga Kunwar being entitled to maintenance. On that footing she (Chunna Kunwar) claimed the entire estate of Raj Bahadur, secondly, it was alleged that Mt. Chunna Kunwar was entitled to at least half as directed in one part of the award. In arguments before us no attempt was made to claim the entire estate of Raj Bahadur; and the learned advocate for Mt. Chunna Kunwar claimed only half of the estate in terms of the award, which purports to direct that, on Kunwar Bahadur dying without a male issue, the two widows would be entitled to the estate in equal shares. Mt. Chunna Kunwar's written statement is not quite explicit in treating the award as a family arrangement; but her learned Counsel argued before us that the award was consented to by all the parties making the reference and should be treated as a family arrangement in itself. If Mt. Chunna Kunwar's claim is well-founded, neither the plaintiff nor the defendants 1st; set (Ram Chandra and Sia Ram) can have any immediate right to possession.
3. In the mutation proceedings, which followed the death of Mt. Durga Kunwar, Mt. Chunna Kunwar was recognized, by the Revenue Court of the first instance, as the rightful claimant. On appeal, however, the defendants 1st set succeeded in obtaining mutation of names in their favour. Mt. Chunna Kunwar asserts that, in spite of the adverse order of the appellate Revenue Court, she is in possession of the estate. The present suit was brought by the plaintiff, Mukat Behari Lal, on 4th March 1929 on the allegations already referred to. The following pedigree will explain the position of three claimants and the other members of the family of Raj Bahadur, whose names occur in certain documents which disclose the previous history of the case:
| | |
Rupan Lal alias Rup Chand Aunp Rai Khayali Ram
| | (childless)
| | | -------------------------
Khem Chand Sita Ram Bhawani | |
| | (Childless) | Pemraj
| | |
Durga Prasad Basant Lal(childless) |
| | |
Murli Dhar Bansi Dhar(Childless) |
| | |
Ram Chandra, deft. 1. Sia Ram, deft. 2. |
| | | |
Mt. Ganeshi=Shib Dayal Mt. Mahrani Har Dayal Mt. Tulshi
| | |
Kunwar Bahadur(died 30-6-1916) Raj Bahadur (died in 1895) Mukat Behal Lal,
= Mt. Chunna Kunwar = Mt. Durga Kunwar (plaintiff)
(defendant 3). (died on 20-2-1928)
4. The plaintiff did not seriously contest in the trial Court that the defendants 1st set were the descendants of Rupan Lal. In appeal before us it was expressly admitted that the pedigree from Rupan Lal down to the defendants 1st set (Ram Chandra and Sia Ram) was correct, the only dispute between the parties being as to whether Rupan Lal the ancestor of the defendants 1st set was one of the sons of Pran Nath, who had, according to the plaintiff, only one son, namely, Anup Rai, the ancestor of Raj Bahadur and of the plaintiff's mother, Mt. Tulshi. The entire branch of Anup Rai, as shown in the pedigree, is admitted by all the contesting parties. That Pran Nath had a third son, Khayali Ram, was not admitted by the plaintiff, though alleged by defendants 1st set. As Khayali Ram admittedly died childless his paternity is immaterial for the purposes of this case.
5. That Mt. Tulshi was the sister of Raj Bahadur's father as alleged by the plaintiff, was not admitted by the defendants 1st set, nor by Mt. Chunna Kunwar, in the trial Court, which however, found in favour of the plaintiff. That finding was not challenged before us in appeal. It is thus common ground that the plaintiff is a 'bandhu' as alleged by him. Mt. Chunna Kunwar, like the plaintiff, denied that the defendants 1st set were the agnatic relations of Raj Bahadur, as alleged by them.
6. The learned Subordinate Judge of Furrukhabad, who tried the case, held that the defendants 1st set's ancestor, Rupan Lal, was the son of Pran Nath and that therefore, those defendants were the 'sapinda' relations of Raj Bahadur and entitled to succeed in preference to the plaintiff, who was only a 'bandhu'. As regards the family arrangement, set up by Mt. Chunna Kunwar, he held that the reversioners were not bound by it, though Mt. Durga Kunwar herself was. On these findings the plaintiff's suit was dismissed and the defendnts 1st set were declared to be the rightful heirs and successors of Raj Bahadur. Appeal No. 301 of 1933 has been preferred by Mt. Chunna Kunwar, and Appeal No. 425 of 1930 by the plain, tiff Mukat Behari Lal. The successful defendants were awarded co3ts against the plaintiff and Mt. Chunna Kunwar. Strictly speaking, the latter could appeal in so far as the decree awarded costs against her; but she challenged the finding of the learned Subordinate Judge so far as it was against her on the question of family arrangement set up by her. As the plaintiff cannot succeed until the family arrangement, set up by Mt. Chunna Kunwar, is not upheld, and the defendants 1st set are not found to be the agnatic relations of Raj Bahadur both questions are material for the purposes of the appeals before us and have been fully argued. Accordingly we proceed to adjudicate on both the aforesaid questions.
7. To take the question of family arrangement first, it appears that, as far back as the 14th January 1890, Har Dayal, the father of Raj Bahadur, and Kunwar Bahadur became divided under an award made by arbitrators, to whom their differences had been submitted for arbitration. Raj Bahadur's father died in 1894. Raj Bahadur himself died in August 1895. In spite of the partition which had taken place between Raj Bahadur's father and Kunwar Bahadur, there were numerous cases between the two. Some of those cases were pending at the time when Raj Bahadur died and his widow, Mt. Durga Kunwar, succeeded to his estate. The disputes continued between the widow and Kunwar Bahadur. They led to an agreement, dated 15th August 1895, to refer all outstanding differences to arbitration. The arbitrators gave an award on 16th August 1895, on which date both the agreements and the award were registered. It so hap. pened that the sub-registrar noted that the agreement and the award were presented for registration between 2 and 3 p.m., on the same date namely, 16th August 1895. The circumstance is relied on by the learned advocate for Mt. Chunna Kunwar in support of his contention that the award was agreed to by all the parties concerned and should be considered not only as an award but also as a family arrangement. The written statement, however, does not contain any plea of that kind. The award has been throughout relied on as an award, and Mt. Chunna Kunwar did not make it as part of her case that Mt. Durga Kunwar had consented to the terms of the award so as to make it a document embodying the terms agreed to by the parties. The judgment of the learned Subordinate Judge shows that no attempt was made to treat the award as a deed of family arrangement. As the plea is based on an important question of fact, namely, an agreement by Mt. Durga Kunwar in terms of the award, we think Mt. Chunna Kunwar should be held to her pleadings contained in her written statement.
8. The agreement to refer and the award are so worded as to leave an important question somewhat obscure. The precise nature of the controversy which arose after the death of Raj Bahadur between Durga Kunwar and Kunwar Bahadur does not appear from them. In view of the fact that Raj Bahadur's father and Kunwar Bahadur had separated in 1890 and of the admission by Chunna Kunwar's counsel in the trial Court that Raj Bahadur and. Kunwar Bahadur were separate in estate' at the time when the former died, no doubt could possibly exist as regards Durga Kunwar's right to succeed to her husband's estate. Her learned advocate maintained before us that Mt. Durga Kunwar's right to succeed to her husband's estate was, for some reason or other, disputed by Kunwar Bahadur. He suggested' that, in spite of separation,Kunwar Bahadur could claim his cousin's estate in good faith in preference to his widow as the estate was ancestral. He also suggested the possibility of Kunwar Bahadur having impugned the validity of the award of 1890 and the alleged separation between the two branches of the family on the. date of Raj Bahadur's death. This is, however, untenable in view of the admission by Mt, Chunna Kunwar in the Court below that Raj Bahadur and Kunwar Bahadur were separate at the time of the former's death. This aspect of the case assumes importance in view of the vague language employed in the agreement to refer and the award of 1895 in describing the dispute, which it was the object to refer to arbitration. The agreement describes the dispute as follows:
There have been disputes between us the executants as regards the moveable and immoveable property, some acquired by ancestral funds and some acquired exclusively by Raj Bahadur, and joint and partitioned ancestral property. There had been disputes between Raj Bahadur deceased and Kunwar Bahadur. In short for the management of the property which may preserve the rights of the widow and Kunwar Bahadur both and to remove the various disputes which, besides being prejudicial to the property, bring a bad name to the family, we, the executants, have for the decision of the points mentioned below, appointed
certain persons named as arbitrators. The following questions were to be answered by the arbitrators:
(1) Who should remain in possession of the moveable property, and who shall be entitled to realize the debts due to Raj Bahadur and liable to pay debts? (2) Whose name shall be entered in the revenue papers in respect of the zamindari property and who shall manage the collection of rent and assessment, pay the Government revenue and make repairs on houses and shops? (3) What should be done as regards the eases which have been pending in the Court of first instance, appellate Court, civil Courts and collectorate, between Raj Bahadur versus Kunwar Bahadur and Kunwar Bahadur versus Raj Bahadur deceased? (i) If one of the contending parties is put in charge of the management, then out of the net profits who shall pay and how much to the other party, and for what particular purposes can the profits be spent by the party getting the same? (5) Who shall have powers to file suits for enhancement of rent assessment and for realization of rent for future gain and to avoid loss such as deficiency in 'jama' at present or in future and other points relating to the property.
9. Neither the preamble nor the questions mention that Kunwar Bahadur claimed the estate of Raj Bahadur as a member of joint Hindu family with him or under any will or transfer by Raj Bahadur. If Kunwar Bahadur had claimed Raj Bahadur's estate on any of those grounds, it is in the highest degree improbable that the agreement failed to mention it. It seems to us that the partition of 1890 was followed by disputes of various kinds between Raj Bahadur and Kunwar Bahadur in respect of individual properties acquired by one or the other as to which there was doubt whether the same should be considered to be separate properties of one or the other or of both on the alleged ground that the ancestral fund had been employed in acquiring them. It is in evidence that most of the zamindari property, had not been divided by metes and bounds, so that the actual management and collection of rent could be through one of them, the other being entitled to receive his share of the profits. Probably some properties were managed by one and some by the other, which led to claims and counter-claims for profits. We are of opinion that there could be no dispute as regards the right of succession after the death of Raj Bahadur in view of the previous partition in the family and that the dispute between the parties was confined to the mode of enjoyment and to the management of property which had not been divided by metes and bounds. The award merely answers each of the questions referred to the arbitrators. It does not mention what the disputes of the parties were, what was alleged by each of them and in what circumstances the questions referred to the arbitrators had arisen. We deal with the answers of the arbitrators to the questions referred to them seriatim. In answering the 1st question, they declared the widow to be entitled to possession of moveable property and the 'property mortgaged.' She was made liable to pay the debts of Raj Bahadur and to realize debts due to him. This part of the award is clearly indicative of the fact that Raj Bahadur's widow was declared to be his sole heir. The 2nd question required the decision of the arbitrators as to whose name should be entered in the revenue papers and as to who should manage the property, collect rent, pay Government revenue and to make repairs etc. The arbitrators ruled that the widow's name should be entered in the revenue papers 'for the sake of her satisfaction' and Kunwar Bahadur
shall under award actually possess all the powers to make management, to realize amounts, pay Government revenue and meet the village expenses. No one shall have a power to sell or mortgage the property. The dwelling house shall remain in the possession of the parties as heretofore, on the other hand the Mussammat should bring to her use the house in the name of Raj Bahadur deceased, for keeping the household goods such as chaff, wood, cattle, existing at present or in future.
10. Some other directions are given in regard to the use of the house. Then follows the direction that,
Kunwar Bahadur has power to realize the rent of the ancestral shops, make repairs and file suits in respect of them, Kunwar Bahadur should advance Rs. 500 to Mt. Durga Kunwar on the security of the three shops for a period of one year. After one year, if the amount is not paid, the Mt. shall have no objection in giving up the said shops. As regards the Bhop, known as Kishnawali, which was also purchased by Raj Bahadur, the Mt. shall have all kinds of powers of sale and mortgage. The Mt. shall be responsible for the repairs of the shops which, will be left in her possession.
11. It is clear that only right to manage the property was given to Kunwar Bahadur. In other respects the right of the lady to the properties specifically referred to was conceded. The fact that the power to transfer was withheld does not materially detract from Mt. Durga Kunwar's right as a Hindu widow. Even the right to transfer is conceded to her in respect of certain shops purchased by her husband. Though her name is directed to be recorded in revenue papers for her consolation, it is not said that Kunwar Bahadur will have the right of ownership vested in him. As regards pending cases, it was directed that they should be struck off as all the disputes have been settled.' This indicates that the cases related to the matter dealt with in the award and that they had arisen from the mode of enjoyment of the property which had not been actually divided in spite of the separation of the family. The answer of the arbitrators to the 4th question should be dealt with last. It raises a serious controversy in the appeal before us.
12. The answer to the fifth question is a mere corollary from what was held in answering the third question. In answering that question the arbitrators ruled that Kunwar Bahadur should have power to file suits for enhancement of rent, assessment and realization of rent etc,
13. It has been argued before us by the learned advocate for the defendants, 1st set that the arbitrators travelled beyond the scope of the 4th question in answering it and in so far as their answer was not required by the terms of reference as embodied in the 4th question, the award cannot be considered to be binding on Mt. Durga Kunwar or on the reversioners. This part of the award provides, inter alia, that the own son of Kunwar Bahadur, i.e., born of the wedded wife of Kunwar Bahadur, shall be the owner of the entire property. If a son may be born during the lifetime of the Mt. or anything else happens, and it may be necessary to make a second arrangement, then the Mt. and the wife of Kunwar Bahadur shall be owners in equal shares. Kunwar Bahadur or any other lawful guardian shall be the guardian of the minor son of Kunwar Bahadur and he shall abide by the aforesaid conditions.
14. It is this provision which is the whole basis of Mt. Chunna Kunwar's claim in the present litigation. It is said that the award contemplates that the entire estate of Raj Bahadur was reserved for the son of Kunwar Bahadur, who was expected to be in existence sooner or later, that incase no son was born to him or if for any other season it may be necessary to make a second arrangement', the widow of Raj Bahadur and that of Kunwar Bahadur would be 'owners in equal shares.' The contingency in which a second arrangement' was considered to be necessary is said to be the death of Kunwar Bahadur in the lifetime of Raj Bahadur's widow without leaving any son. This is not clear from the award itself; but it was probably what the arbitrators meant. Kunwar Bahadur had no son born to him. He died in the lifetime of Raj Bahadur's widow. There fore the contingency in which, according to the award, the two widows were to 'be owners in equal shares' happened it is argued on behalf of Mt. Chunna Kunwar that, in the absence of any son to Kunwar Bahadur, his widow, namely, herself and and Mt, Durga Kunwar, the widow of Raj Bahadur, became entitled to equal shares. The learned advocate for the defendants 1st set suggested that, according to the correct interpretation of the award, the two widows are to be 'owners in equal shares' not of Raj Bahadur's property but of the entire property belonging to the two branches which was joint till 1890. It all depends upon the unit which the arbitrators had in their minds. If all the property, most of which had not been divided by metes and bounds, was taken by them to be the unit, each of the two widows was to take her husband's share. This is in strict conformity with their rights. If, on the other hand, it was Raj Bahadur's share alone which was in the minds of the arbitrators and of which the two widows were to be 'owners in equal shares,' Kunwar Bahadur's widow would take not only her husband's share but also half of her husband's cousin's share. This view cannot be supported on any reasonable hypothesis. We think that the two widows were declared entitled to 'equal shares' just as their husbands had equal shares after the separation of 1890. It is far more likely that the arbitrators would place the two widows on an equal footing than that they would give an undue advantage to one of them at the expense of the other without the slightest reason or justification for that arrangement. As already stated, the agreement and the award having been drawn up by laymen are extremely vague and ambiguous, and the correct interpretation is to take into account not only the literal sense of the words used but also the; surrounding circumstances and the probabilities of the case. This view is supported by the subsequent conduct of the parties, at least, one of them. Kunwar Bahadur remained in possession and management of the entire estate so long as ha lived. Immediately after his death in 1916 Mt. Durga Kunwar took possession of her husband's entire estate. Kunwar Bahadur's widow, Mt. Chunna Kunwar, unsuccessfully claimed half of it in mutation proceedings. She did not institute any civil suit. Mt. Durga Kunwar remained in possession of the whole of her husband's estate till she died in 1928. It is clear to us that Mt. Durga Kunwar understood the award as giving her an estate equal to that of Kunwar 'Bahadur's widow, and this is what she understood the words 'equal shares' to mean. Mt. Chunna Kunwar acquiesced in that claim of Mt. Durga Kunwar so long as the latter was alive. She revived the controversy after her death against persons whom she regarded as strangers to the family. In this view, Mt. Chunna Kunwar did not acquire any interest in the estate of Raj Bahadur. Mt. Chunna Kunwar's claim fails on another ground. The award of the arbitrators, so far as it is in answer to the 4th question and in so far as it directs that the estate of Eaj Bahadur would devolve in equal shares on his widow and that of Kunwar Bahaur (assuming this is the correct interpretation of the award),travels beyond the reference. The 4th question may with advantage be repeated in this connection. It is as follows:
If one of the contending parties is put in charge of the management, then out of the net profits who shall pay and how much to the other party, and for what particular purposes can the profits be spent by the party getting the same
15. There can be no manner of doubt that all that the arbitrators had to decide under this head was as to what profits shall be paid by the person managing the estate to the other party and as to how such other party shall spend those profits. The arbitrators directed that a sum of Rs. 429 should be paid by Kunwar Bahadur to the lady every half year. To that extent they acted within their power. They were not empowered to go further and lay down how the estate would devolve in case a certain contingency happened. We have already pointed out that the agreement or the award does not anywhere indicate that right of succession to Raj Bahadur's property was in dispute. We are of opinion that the award, so far as it provided that the widows would divide the estate of Raj Bahadur between themselves in a certain contingency is not enforceable, as it is not warranted by the terms of reference. Mt. Chunna Kunwar's claim having been disposed of, the next question, which calls for decision, is whether the plaintiff has established his right to succeed to the estate of Raj Bahadur. It is obvious that, if the defendants, 1st set, are 'sapindas,' the plaintiff is out of Court. There was some argument before us on the question of onus. We think that the correct rule is that the plaintiff should establish not only his own relationship with the last male holder, but also prima facie that no nearer heirs are alive. The burden does not however extend so far as to require the plaintiff to negative the definite case set up by the alleged 'sapindas' by establishing affirmatively that the latters' ancestor, Rupan Lal, was the son of some other man than Pran Nath, from whom the last male holder admittedly descended. It is true in offering a rebuttal to the case of the defendants, 1st set, the plaintiff attempted to prove that Rupan Lal was not the son of Pran Nath but of one Deep Chand. In discharging the burden of proof which initially lay on the plaintiff it was enough for him to prove by credible evidence, in addition to his own relationship, that no nearer heir was in existence so far as was known to the persons who are likely to have known it, if any nearer heir was in existence. We were referred to Javitri v. Gendan Singh : AIR1927All767 . in which a Bench of this Court quoted with approval the following passage from Rama Row v. Kuttiya Goundan A.I.R. 1917 Mad. 872:
It is no doubt incumbent on a plaintiff seeking to succeed as a reversioner to establish affirmatively the particular relationship which he puts forward. He is also bound to satisfy the Court that, to the best of his knowledge, there are no nearer heirs. He cannot be expected to do anything more. It is for those who claim that their kinship is nearer than that of the plaintiff to prove that relationship.
16. It was argued for the plaintiff that, according to this dictum, all that a plaintiff need do is to enter the witness box and swear that 'to the best of his knowledge' there are no nearer heirs. We do not think that the learned Judges meant these words to be taken too literally. There may be cases in which the best of the plaintiff's knowledge is complete ignorance. Where a minor aged 10 sues, under the guardianship of a stranger to the family, for the estate of a certain person, claiming be be his 'bandhu', it will not obviously be sufficient to put him ' in the witness-box to swear that, so far as his knowledge extends, no nearer heir is alive. The possibility of a nearer heir being in existence and not being known to the plaintiff cannot be altogether ignored. In the case decided by this Court and above referred to, the learned Judges held that the plaintiffs should be deemed to have discharged the onus which initially rested on them, as they had elicited from the patwari of their village who stated that no one in the family of the common ancestor, other than the plaintiffs, was alive. The correct rule has been laid clown as far back as 1868 by their Lordships of the Privy Council in Girdhari Lal Roy v. The Bengal Government (1867-69) 12 M.I.A. 448 (P.C.). Their Lordships observed that
it lay upon the plaintiff to prove, at least prima facie, that Woopendro Ghunder Roy died without heirs; and, on the other hand, the appellant was entitled to defend his position not only by proof of his own title but by setting up any jus tertii that might exist.
17. In many cases it may be enough for a plaintiff to give his own evidence to the effect that to the best of his knowledge no nearer heir is alive. Having regard to the special means of information which plaintiff, if an adult, possesses, no one is in a better position to know if a nearer heir exists. Where the Court cannot arrive at that conclusion on the evidence of the plaintiff, either because he is not in a position to speak on the subject, or because his evidence is manifestly untrue, it should be satisfied by other credible evidence that no nearer heir exists before the defendant is called upon to substantiate his definite case that be is a nearer heir. Where both parties have adduced evidence, the question of onus loses all importance and the Court should record a definite finding as to whether the defendant is the nearer heir. The question may assume some importance where the Court has to reject the evidence adduced on either side as absolutely untrustworthy. In such a case the plaintiff's title can prevail only if the Court is in a position to find not only that he is related to the last male-holder, as he alleges, but also that no nearer heir is alive. In the case before us there is ample prima facie evidence adduced by the plaintiff that he is a 'bandhu' of Raj Bahadur and that, unless the defendants 1st set be considered to be 'sapindas,' no nearer heir in existence. There was some controversy between the learned Counsel appearing on either side as regards the admissibility of evidence given by some of the witnesses who gave the pedigree from the common ancestor Pran Nath to the defendants 1st set but did not disclose the source of their knowledge. They could not have seen, at least, some of the ascendants in the pedigree. We think that the statement of a witness on the question of relationship can be admissible either under Section 32(5) or Section 50, Evidence Act. If any particular statement does not fall within the purview of one or the other of these provisions it should be ruled out as inadmissible. Where the statement relates to the existence of relationship between two persons, one or both of whom could not have been seen by the witness, it cannot be presumed that he heard of the relationship from his own deceased ancestor. In the absence of evidence that the witness is reproducing the statement of a person deceased having special means of knowledge and fulfilling other requirements of Section 32(5) his evidence may be admissible if it amounts to
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 : Section 50, Evidence Act.
18. Where, therefore, the statement of a witness giving the pedigree connecting two living persons is found to be inadmissible under Section 32(5), but he deposes to facts which establish such treatment as is contemplated by Section 50, it should be admitted to that extent. We shall examine the evidence adduced in this case is the light of these observations. The case for the defendants, 1st set, appears to have been very carelessly conducted in. the trial Court when evidence on the. question of pedigree was led. In no case was a witness questioned in examination. In chief as to what was the source of his knowledge in the matter of pedigree deposed to by him. In almost all instances in which the witnesses did state that they heard from persons deceased the deficiency was made up in cross-examination, which was equally careless. It is the duty of the party producing a witness on the question of pedigree to elicit from him, if it is a fact, that he heard from a person deceased so as to fulfil the requirements of Section 32(5). The regrettable consequences of this omission are nowhere more discernible than in the case of defendant Barn Chandra himself. He stated the whole pedigree connecting himself with the last male holder. He is only 31 and cannot be expected to have deposed except from hearsay. The person who cross-examined him was either careful not to put to him any question eliciting information on that subject, or his omission was accidental and fortunate. Another objectionable feature of the defendant's evidence is that the was produced almost at the end of the case. As a member of the family he is expected to know more than his witnesses. In these circumstances, we are constrained to exclude all such evidence on the question of pedigree as does not fulfil the requirements of Section 32(5), except so far that it can be brought within the purview of Section 50, Evidence Act.
19. Of a large number of witnesses examined on behalf of the defendants 1st set, the learned Subordinate Judge relied on eleven, whose evidence has been criticized in detail before us. (After examining the evidence of these witnesses in order the judgment proceeded.)To sum up the whole evidence adduced by the defendants 1st set, which we accept as true, we find that, besides the evidence of Munna Lal, who definitely connects them with the last male holder, there is evidence of other witnesses which establishes that the defendants 1st set are agnatic relations of Raj Bahadur and Kunwar Bahadur. A number of witnesses depose to the defendant Earn Chandra having performed the cremation ceremony of Kunwar Bahadur, his mother and his wife. We have also the evidence of some witnesses who depose to treatment of the ancestors of the defendants 1st set as near relations of Raj Bahadur and Kunwar Bahadur.
20. There is an important piece of evidence consisting of mortgage deed, dated 9th January 1919, executed by Mt. Chunna Kunwar and Ram Chandra. The deed recites that a certain sum of money was due from Kunwar Bahadur, the deceased husband of Chunna Kunwar and uncle of the other executant Ram Chandra, and that in consideration of that sum the property specified in the deed was mortgaged. The defendant Ram Chandra has stated that he joined Chunna Kunwar, as he was considered to be the presumptive heir of her husband. The mortgagee has since died, but his son Kali Charan, who also took an active part in the transaction, has deposed that his father insisted on the male members of her husband's family, that is, the defendants 1st set, joining her in executing the mortgage deed. It is not uncommon that the mortgagees take that precaution against possible claims by reversioners impugning an alienation by the widow. Mt. Chunna Kunwar has stated in her evidence that her 'mukhtar' Jaggan Nath, who was related to Ram Chandra, fraudulently associated Ram Chandra with her in the execution of the deed. We are unable to accept her evidence on this point. The evidence of the defendant Ram Chandra and the registration endorsement show that the deed was read and explained to her by the sub-registrar. She could not have failed to discover that the defendant Ram Chandra was also one of the executants and was described as the nephew of her husband. The statement of the defendant Ram Chandra is far more probable. Mt. Chunna Kunwar is clearly in collusion with the plaintiff. So far as her own defence is concerned, it is perfectly immaterial whether the plaintiff or the defendants 1st set be considered to be the nearest heirs. She claims the estate against all reversioners; but she produced a number of witnesses to contradict the evidence produced by the defendants 1st set. She herself deposed and led evidence to establish that the dead body of Kunwar Bahadur had been cremated by herself. The plaintiff himself did not consider it advisable to lead any evidence On this point, because at that time his own relationship was in dispute and if he had attempted to make out that it was Mt. Chunna Kunwar and not himself or any one else who cremated the dead body, of Kunwar Bahadur, an inference adverse to his own case would have been raised. For this reason he was accommodated by Mt. Chunna Kunwar, who produced a number of witnesses whose evidence could in no way support her defence but was calculated to benefit the case of the plaintiff. Taking the cumulative effect of the entire evidence so far discussed, we are of opinion that it is sufficient to establish the case of the defendants 1st set in the absence of good rebutting evidence.
21. The plaintiff relied on two books of pandas, one from Mathura and the other from Jaipur. The learned Subordinate Judge has rejected both as utterly unreliable., There are blank pages and blank spaces between entries which are not in chronological order. It is very easy to insert entries at any time. The ink of the entries relied On by the plaintiff is too bright to be as old as the entries would make it to be. In the 'bahi' produced by the panda of Mathura, there is a genuine entry in the handwriting of the deferidant Bam Chandra. It merely records the visit of Mt. Chunna Kunwar, who is described as 'malikan' (mistress). Ram Chandra and some others are mentioned as retainers. It is argued that if Bam Chandra had been related to the lady, the panda was sure to have mentioned him as a relation, and not one of the persons accompanying her. We do not think that an omission of this description is of sufficient weight to justify an inference in favour of the plaintiff. The same remarks apply to the 'babi' produced by the panda of Jaipur. Some arguments were addressed to us on the question of admissibility of entries in the books of pandas. In the view of the case we have taken, it is not necessary for us to discuss that aspect of the case. There is no other evidence adduced by the plaintiff to show that Bupan Lal, the ancestor of the defendants 1st set, was the son of Deep Chand, as shown in the pandas' bahis. There is evidence of witnesses who state generally that the defendants 1st set did not belong to the family of Kunwar Bahadur. The learned Subordinate Judge has, in our opinion, rightly attached no weight to this class of evidence as against definite evidence led by the defendants 1st set. Considering the evidence as a whole, we are satisfied that the conclusion of the learned Subordinate Judge is right. We may note that the learned Subordinate Judge has examined and weighed the evidence in the case with great care and industry. It may be that we differ from him on some points; but on the whole we think that the case has been rightly decided.
22. The last question raised in the appeal of Mt. Chunna Kunwar, relates to that part of the decree of the learned Subordinate Judge which makes her liable to pay the costs of defendants 1st set jointly with the plaintiff. Having regard to the attitude she adopted, we think that the order of the learned Subordinate Judge making her liable to pay costs jointly with the plaintiff is proper.
23. The result is that the appeals fail and are dismissed with costs.