Kanhaiya Lal and Mukerji, JJ.
1. The dispute in this appeal relates to the property of Parabh Lal, who died of the plague on the 28th of January, 1905. He had several sons, some of whom: had died in bis life-time. The allegation of the plaintiff was that one of his sons, Har Bilas, survived him and died of plague a few days later, that Har Bilas was succeeded by his mother, Musammat Kishori, and that on the death of Musammat Kishori, which took place on the 9th of December, 1916, Nand Lal and Pararn Sukh became entitled to the property in dispute as the nearest reversionary heirs. Param Sukh has since sold his rights to Mangli who was substituted in his place during the pendency of this litigation.
2. The defendants, Dongar Singh and Ugar Singh, claim to be the sons of the sister of Parabh Lal. The defendants NOS. 9 to 16 have been impleaded as the remoter members of the family to which Parabh Lal belonged. The defendants Nos. 1 to 6 are transferees either from Musammat Kishori or from one or other of the claimants to the estate. The main defence urged on behalf of the defendants appellants was that Nand Lal and Param Sukh were not the nearest reversionary heirs of Parabh Lal or Har Bilas, that Har Bilas had died in the life-time of Parabh Lal and that Dongar Singh and Ugar Singh were entitled to his estate as his sister's sons. There were other pleas raised which are not material for the purpose of this appeal.
3. The court below found that Har Bilas had survived Parabh Lal, though that finding was expressed in terms apt to be misunderstood. It further found that the plaintiffs were the nearest reversionary heirs of Har Bilas and were entitled to his estate in preference to any of the contesting defendants.
4. The learned Counsel for the defendants appellants has made no attempt to challenge the correctness of the finding arrived at by the learned Subordinate Judge in regard to the order in which Parabh Lal and Har Bilas died. The learned Subordinate Judge accepted the evidence afforded by the extracts from the registers of births and deaths, produced by the plaintiffs, which indicated that Parabh Lal had died on the 28th of January, 1905, and Har Bilas on the 2nd of February, 1905; but he misstated that the witnesses for the plaintiffs sought to prove that Har Bilas had predeceased his father, whereas the fact was that the witnesses of the defendants had tried to do so. He similarly misstated that the witnesses for the defence sought to prove that Har Bilas died after his father, whereas the fact was that they had tried to prove that he had predeceased him. In any case the conclusion at which He arrived, based on the extracts from the registers of births and deaths which supported the evidence of the witnesses for the plaintiffs, stands unchallenged, and we accept it as representing the correct order in which the deaths of Parabh Lal and Har Bilas took place.
5. Har Bilas must on that finding be deemed to have been the last male holder of the disputed property. He was succeeded by his mother, Musammat Kishori, who died some time in 1916. The plaintiffs have sought to rely in support of their relationship with Har Bilas on a bahi or memorandum book produced by Kokaran, a bard of Sitalgarh, and another bahi or memorandum book produced by Musammat Tirbeni, the daughter and heir of a Gangabasi priest residing at Soron. They have also relied on the evidence of certain witnesses produced on their behalf. It is admitted by the witnesses produced by the defendants appellants, and in fact by one of the defendants himself, that the family to which Parabh Lal belonged had a family bard named Sanwalia and it is also admitted that there was a priest of the family at Soron named Vidia Ram. Kokaran is the nephew of Sanwalia. He has produced a bahi in which the relationship between the ancestors of Parabh Lal and those of Nand Lal and Paras Ram is given in detail. According to the evidence, a family bard usually gets presents from his customers on the occasion of births in their families. He visits his customers on other occasions also. He notes the births in his book. The entries thus made by successive generations of bards supply a running account of the different branches of the families of their customers, and they afford, if otherwise reliable, evidence of as great value as any family pedigrees kept by the members of the families themselves. Kokaran says that his uncle Sanwalia had in his service a gumashta named Jhandu, who used to write the entries for him. He also states that the bahi produced was in the handwriting of Jhandu and that it contained entries which had been copied from an earlier book maintained by the ancestors of Sanwalia, which had become very old and tattered. He affirms that the old book was in the handwriting of the father and grandfather of Khumani, one of his ancestors; but that book has not, so far as we have been able to discover, been produced in this case. He was not asked which entries had been copied from the old book and which were those added afterwards by Jhandu, as occasion arose. Jhandu deposes that he had been in the service of Sanwalia since 1925 Sambat, that the bald produced was in his handwriting, that he used to make the entries from time to time and that among those entries were entries of the occasions when b'rths took place and buffaloes and horses were given.
6. The learned Counsel for the defendants appellants contends that the bahi should be excluded from consideration because it was a copy made from an earlier book which had not been produced and also because it was not otherwise admissible in evidence. But there is nothing to show that the particular entries now in question had been brought forward or incorporated from the old book in use or maintained prior to 1925 Sambat. The bahi produced is in the handwriting of Jhandu. It contains entries made during a course of over 55 years, and from a vague and general statement of the kind elicited from Kokaran, it cannot be deduced that the specific entries bearing on the relationship now in question are not original entries but only copies made from an earlier book.
7. Section 32, Clause (5), of the Indian Evidence Act permits evidence to be taken in regard to the statements made by persons who are dead or cannot be called as witnesses without considerable expense or delay, relating to the existence of relationship, where the persons who made the statements had a special means of knowledge and the statements were made before the question in dispute was raised. Sanwalia was admittedly the family bard and Jhandu worked with him; and considering the course of practice usually followed by tbese bards, as deposed to by some of the witnesses, it cannot seriously be disputed that the writer had a special means of knowledge regarding the facts of the relationship between the different members of the families of the jajmans. Section 32, Clause (6), of the Indian Evidence Act provides that a statement made in similar circumstances relating to the existence of the relationship in a famiily pedigree or other thing on which such statement is usually made can also be admitted in evidence, if such a statement was made before the question in dispute was raised. A family pedigree may be a pedigree kept by a member of the family or by another person on its behalf, and as pointed out in Mohansing v. Dalpatsing Kanbaji (1921) I.L.R. 46 Bom. 753, it can be admitted in evidence, if it is written by a family bard for the purpose of keeping a record of the family events for his use and for the use of the family. Such a record is, at any rate, a record of the statements such as are usually made to and noted by the family bards, and the court below has rightly admitted it in evidence. The book does not purport to contain the signature of Sanwalia or of the person by whom it is proved to have been written. But so long as we treat the book as a record of the relationship made by Jhandu on behalf of Sanwalia, the family bard, and recognize the practice which is usually followed by the bards in such matters, it can be admitted even though it is unknown who made the statements which were recorded by Jhandu therein. The decision in Kalka Prasad v. Mathura Prasad (1908) I.L.R. 30 All. 510 is not applicable, because in that case the pedigree had been prepared by a member of the family for his own use in a certain year and was filed by another member of the family in a subsequent proceeding; and those facts precluded it from its being treated as an ancient family record such as is handed down from generation to generation and added to as a member of the family dies or is born, within the meaning of Section 32, Clause (6), of the Indian Evidence Act. In the present case the chronicle produced by the family bard stands on a different footing; and as pointed out in Jahangir v. Sheoraj Singh (1915) I.L.R. 37 All. 600, it was not necessary for the plaintiff to show by whom the statements therein recorded were made.
8. The plaintiffs have next relied on a bahi produced by the Gangabasi priest of Soron, wherein the relationship between the ancestor of Nand Lal, and Param Sukh and the ancestor of Parabh Lal and Har Bilas is similarly recorded. Both Dongar Singh and Puja Ram admit that Vidia Ram was the priest of Parabh Lal at Soron. Musammat Tirbeni is the daughter of Vidia, Ram. She deposes that the entry noted in the bahi was partly in the handwriting of her father Vidia Ram and partly in the handwriting of her grandfather Chhab' Nath. These entries are records of statements made by persons who had a special means of knowledge. They further show the occasions on which the statements were made and the persons who made them when they visited Soron to bathe in the river Ganges.
9. The entries made in this book are corroborated by Gauri Shankar, a priest of the family, who used to officiate at the marriages celebrated in the family, on which occasions the names of the ancestors are usually recited. Both Musammat Tirbeni and Gauri Shankar hold some muafl land in the village Rahli which was apparently given to them by the members of the family to which Parabh Lal, Nand Lal and Param Sukh belonged. They have held these muafi lands from as far back as 40 to 50 years; and their special means of knowledge as regards the relationship between the different branches of the family cannot, therefore, be doubted.
10. We have, besides, the evidence of three members of the family including Nand Lal, one of the plaintiffs, all of whom agree in regard to the relationship to which the evidence already referred to bears testimony. Lala Ram and Kashi Ram are not the next reversioners of Har Bilas and have no particular interest in supporting the claim of the plaintiffs, one of whom is admittedly a purchaser and a stranger to the family. The evidence adduced by the defendants appellants is of little value.
11. It has been pointed out that the pedigree filed by the plaintiffs in the present suit does not tally with the one filed by Radha Kishan in a previous suit instituted by him against Kishori Lal and others in 1910, which had abated in the death of Radha Kishan, and in another suit filed by Param Sukh and Nand Lal against Kishori Lal and others in 1913 which was dismissed for default. It does not appear whether Radha Kishan had at that time made any serious effort to get reliable information as to the nature of his relationship with the family to which Parabh Lal belonged and his statement cannot bind the present plaintiffs. In the course of his examination the plaintiff Nand Lal was asked whether the pedigree given by him was correct, and when he replied that it was correct, he was further asked if the pedigree of Radha Kishan was correct and his reply was again in the affirmative. It is contended that the effect of that statement was that Nand Lal vouched for the correctness of the pedigree filed by Radha Kishan. But the statement of Nand Lal is not so worded and it cannot be said that he was fully cognizant of the details of the pedigree which had been filed by Radha Kishan in his suit or was aware of the discrepancies between that pedigree and the pedigree which he himself had filed with the plaint. The pedigree which was filed by Param Sukh and Nand Lal in the suit filed by them in 1913 is not shown to have been different from the pedigree which has now been produced; and the contention of the learned Counsel for the defendants appellants is not, therefore, tenable.
12. The claim of the plaintiffs has, in our opinion, been rightly allowed. We dismiss the appeal accordingly with costs.