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Sheoraj Singh Vs. Jahangir and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1915)ILR37All600
AppellantSheoraj Singh
RespondentJahangir and anr.
Excerpt:
act no. i of 1872 (indian evidence act), section 32, clause (6) - pedigree. - .....of which case was sent for. jiraj identified the document and stated that he had received it as a family pedigree from his grandfather. no objection appears to have been taken to the admissibility of this document in evidence in the court of first instance, although its genuineness was not admitted. in the lower appellate court it was objected to on the ground that it was inadmissible because no evidence was adduced to show who had made it. we think that having regard to the stage at which objection as to the admissibility of the document is made, we should treat it as a document produced by jiraj, who proved that he received it from his grandfather, as being a document which contained the particulars of the family relationship. we must also assume that the statements 'made by the.....
Judgment:

Henry Richards, C.J. and Rafiq, J.

1. This appeal arises out of a suit brought by the plaintiff for a declaration that a certain deed of gift made by one Musammat Sanjia in favour of the defendant should be held to be null and void after her death. The court of first instance dismissed the plaintiff's suit. The lower appellate. court gave him a decree.

2. Having regard to the fact that this is a second appeal, the learned vakil on behalf of the defendant appellant was bound to admit that the only question that could be argued was the admissibility in evidence of a pedigree relied upon by the plaintiff, on the strength of which the lower appellate court decreed the plaintiff's claim. Objection to the admissibility of evidence taken at a late stage in litigation is not to be encouraged. The proper time to object to the admissibility of evidence is at the trial when the evidence is tendered, and it is then that the court should rule as to the admissibility or inadmissibility of the evidence. When the objection is taken at the proper time the party wishing to produce the evidence may be able to take steps to make the evidence admissible. If the objection is not taken until a late stage in the litigation it may mean that an appellate court is obliged to decide against the party on a technical ground or the time of the court is taken up in re-trying matters which ought to have been disposed of at the Original hearing, the result being loss of public time and additional and unnecessary expense to the litigants.

3. The document in question is an alleged pedigree showing the relationship of a number of persons, and amongst others of Hulas (the husband of Musammat Sanjia) with one Bhusa. The document according to the finding of the court below was an ancient document and genuine. A witness of the name of Jiraj produced the document. It had been filed in mutation proceedings, the record of which case was sent for. Jiraj identified the document and stated that he had received it as a family pedigree from his grandfather. No objection appears to have been taken to the admissibility of this document in evidence in the court of first instance, although its genuineness was not admitted. In the lower appellate court it was objected to on the ground that it was inadmissible because no evidence was adduced to show who had made it. We think that having regard to the stage at which objection as to the admissibility of the document is made, we should treat it as a document produced by Jiraj, who proved that he received it from his grandfather, as being a document which contained the particulars of the family relationship. We must also assume that the statements 'made by the witness Jiraj are true, they having been believed by the lower appellate court. The question is whether under these circumstances the document is or is not admissible in evidence. Section 32 of the Evidence Act provides that '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 certain cases. Clause (6) is as follows : 'When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tomb-stone, family portrait or 'other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.' We assume for the purposes of our decision that it was impossible to show who in fact had made the statements contained in the pedigree, that the pedigree was made before the question in dispute had arisen, and necessarily that it was impossible to call as witness the person who had made the material statements contained in the pedigree. The question is whether on these assumptions the document was admissible. 'We think that it was. Neither the section nor the clause provides that it is necessary to show who it was that made the statements. In the case of an old pedigree it would be generally quite impossible to give evidence as to who was the author of the statements. We may point out that in the present case we are not called upon to express any opinion as to the genuineness of the document, or the weight to be attached to the evidence. In our opinion the decision of the court below was correct and ought to be affirmed. We accordingly dismiss the appeal with costs.


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