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The Collector of Farrukhabad Vs. Gajraj Singh - Court Judgment

LegalCrystal Citation
Decided On
Reported in15Ind.Cas.625
AppellantThe Collector of Farrukhabad
RespondentGajraj Singh
Cases ReferredKalka Prasad v. Mathura Prasad
evidence act (i of 1872), section 32 - entry of family relationship in panda's book--admissibility of secondary evidence--rejection in appeal. - - it would be interesting if we could know the precise nature of the title asserted by her, but this is not clear from the mutation order. but as the evidence stands, it would certainly appear that the assistant collector's order in mutation is based upon a misapprehension arising out of a failure on his part to distinguish between the collector's possession over phul kuar's estate as manager of the court of wards and his possession over tilok 'kuar's estate as property liable to escheat to government for which no claimant with a clear title was forthcoming. the point was alluded to before us in the course of arguments, and the parties were.....piggott, j.1. we are dealing in this case with the affairs of a family of panwar thakurs who, according to a tradition embodied in the settlement records, trace back their descent to one rao sheopal singh, who cams into the farrukhabad district from the deccan something over six hundred years ago. his family acquired considerable landed property in farrukhabad and across the oudh border in hardoi. it broke up into several branches, but the evidence shows that the village of wazirpur in the farrukhabad district was looked upon, as the head quarters of the family. the branch with which we are immediately concerned had its head-quarters at allahganj in the same district, and the group of villages owned by them was kaown as 'taluqa allahganj'. there are other indications in the evidence.....

Piggott, J.

1. We are dealing in this case with the affairs of a family of Panwar Thakurs who, according to a tradition embodied in the Settlement Records, trace back their descent to one Rao Sheopal Singh, who cams into the Farrukhabad district from the Deccan something over six hundred years ago. His family acquired considerable landed property in Farrukhabad and across the Oudh border in Hardoi. It broke up into several branches, but the evidence shows that the village of Wazirpur in the Farrukhabad district was looked upon, as the head quarters of the family. The branch with which we are immediately concerned had its head-quarters at Allahganj in the same district, and the group of villages owned by them was kaown as 'taluqa Allahganj'. There are other indications in the evidence besides the use of this name that the status of the family at one time approximated more or less to that of an Oudh taluqadari estate. At the time of the Mutiny, the owners of 'taluqa Allahganj' were three brothers, Lekha Singh, Hemanchal Singh and Dammar Singh. The first named was the eldest, and he had one son, named Gopal Singh, the other two died childless. The family was deeply involved in the Mutiny and was severely dealt with by the Government in 1859. When this day of reckoning came, it is clear that the three brothers, whatever may have been the actual state of things before 1857, found it convenient to represent themselves as entirely separate in estate, and as each owning one-third share of the villages forming the taluqz. This position was accepted by Government, and was to the advantage of the family because Government had nothing against Hemanchal Singh personally. He was accordingly left in undisturbed possession of one-third of the family estate; Dammar Singh's property was confiscated, but it appears that either the whole or a considerable portion of it was shortly afterwards restored to his widow, Musammat Dular Kuar. Lekha Singh had been deeply concerned in the doings of the mutinous sepoys; he was transported for life and all his property confiscated. It is clear that no reservation was made in favour of Gopal Singh and that the whole of Lakha Singh's one-third share in the estate was lost to the family; Gopal Singh had in fact been arrested along with his father, and it would seem, that he only escaped transportation on the ground of his youth. Hemanchal Singh was left as the virtual head of the family; being childless himself, it would seem that he felt himself bound to do something for his- elder brother's family. He probably felt that any disposition of his property in favour of Gopal Singh might lead to trouble but Gopal Singh had two minor sons, Kunwar Bahadur Singh and Lal Bahadur Singh. The former of these, the elder brother, was virtually adopted by Hemanchal Singh who finally placed matters beyond dispute by executing, on November 10th, 1875, a formal transfer of his entire property by way of gift (vide paper No. 69 at page 44 R.) in favour of the said Kunwar Bahadur, then still a minor. The next point to be noticed in the history of the family relates to the years 1878-9. Musammat Dular Kuar, widow of Dammar Singh must have got into difficulties, and on January 20th, 1879, we find her one-third share in the two villages, Allahganj and Islamganj, put up to auction sale and purchased (nominally at any rate) by Gopal Singh. (Vide papers No. 155 at 64R and No. 74 at 3A. of the printed books). In the year 1888, Kunwar Bahadur Singh died without male issue, leaving a young widow, (aged about 22 years, according to a paper No. 152 at 67R) Musammat Phul Kuar, who is the real defendant in the present suit. A dispute immediately broke out between this lady and her late husband's brother, Lal Bahadur Singh. The latter seems to have taken possession of as much of his late brother's property as he could get hold of, and Phul Kanwar brought a Civil Suit (No. 76 of 1889 sea p. 67 R) for recovery of the same. The suit ended in a compromise decree dated March 28th, 1891, see papers Nos. 71 and 72 at pp. 48 and 491. which gave Phul Kunwar possession of the entire property in dispute for her life-time as a Hindu widow, with a proviso that Lal, Bahadur Singh should succeed to the same after her death. With this proviso, we are not concerned, as Lal Bahadur Singh himself died childless in the year 1898, leaving him surviving a widow Musammat Tilok Kunwar. The details of this litigation require, however, to be attentively examined with reference to the disposition of the family property in' the two villages of Allahganj and Islamganj. We have to see what Phul Kuar claimed in these two villages as having formed part of her late husband's estate, and what by implication she left to Lal Bahadur Singh as admittedly his property. The conclusions we arrived at, after examining the documentary evidence, were finally accepted by both parties before us as clear beyond dispute; it is, therefore, sufficient simply to state them.

2. In village Allahganj, Phul Kuar claimed five sixths of the entire village; and this five-sixths must have been made up as follows:

One-third share originally Hemanchal Singh's which passed from him to Kunwar Bahadur;

One-third share originally Lekha Singh's, which is proved to have been bought back by Hemanchal Singh after the confiscation, and so passed from him to Kunwar Bahadur;

3. One sixth share, representing one-half of Dammar Singh's original one-third share, purchased at auction by Gopal Singh, in 1879, and treated at his death as having been equally divided between his two sons, Kunwar Bahadur Singh and Lal Bahadur Singh.

4. In village Islamganj, Phul Kuar claimed one-half of the entire village, that is to say,' Hemanchal Singh's one-third share plus one sixth share, which again represents order-half of Dammar Singh's original one-third shart. In this village, Lekha Singh's one-third share had not been re-purchased after the confiscation and was thus finally lost to the family. The important point to notice is that Phul Kuar leaves to Lal Bahadur Singh one-sixth share in each of these two villages and does hot claim the same as forming part of the estate of her late husband. Whatever Lal Bahadur Singh owned passed on his death to his widow Tilok Kuar, and it is with the death of this lady on January the 9th 1906, that the dispute eagins out of which the present suit arises. The estate of Phul Kuar had in the meantime been taken under the management of the Court of Wards, and when Tilok Kaar died, leaving no heir behind her who had any clear or undisputed title to the succession, the Collector of Farrukhabad took charge of her entire property pending further inquiry. There is nothing on the record before us to show that there was any formal magisterial inquiry into the question of the right of succession to this small estate; apparently the matter was left to be dealt with by- the Revenue Courts in connection with the applications for mutation of names in the village papers of Allahganj and Islamganj. The order of the Assistant Collector who dealt with this question of mutation has not been translated or printed, but it is on the file in the vernacular and we have been through it. It appears that at least three distinct; sets of claimants alleging themselves to be the reversioners to the estate of Lal Bahadur Singh under the Hindu Law came forward with conflicting claims; on the other side, we know that Musammat Phul Kuar also claimed the property. It would be interesting if we could know the precise nature of the title asserted by her, but this is not clear from the mutation order. Obviously, Mnsam-melt Phul Kuar as widow of Kunwar Bahadur would have no title in law to succeed to the estate of a deceased brother of her late husband; the only way in which she could make out a title in law to the immoveable property in dispute would be by showing that it never really belonged to Lal Bahadur Singh at all but was always a portion of the estate of Kunwar Bahadur Singh, though assigned to his younger brother, and afterwards to that younger brother's widow by way of maintenance. Seeing that the Collector had originally assumed charge of the property left by Musammat Tilok Kuar as property for which no legal heir was apparently forthcoming, and which might, therefore, lapse to Government by way of escheat, it would seem that there ought to have been some sort of inquiry there and then into the validity of Musammat Phul Kuar's title before this property was practically made over to her. It seems unfortunate that we have no record before us of any such inquiry; and if, as a matter of fact, the handing over of the property to Phul Kuar took place as a consequence of the order passed in the mutation proceeding, the result is certainly peculiar. What the Assistant Collector in effect says in that order is, that-none of the alleged reversioners have succeeded in satisfying him as to the validity of the title claimed by them, and that in any case Musammat Phul Kuar is actually in effective possession of the disputed property through the manager of the Court of Wards. It maybe that there is some hiatus in the evidence before us which a more careful inquiry into the records of the Farrukhabad Collectorate might have supplied; but as the evidence stands, it would certainly appear that the Assistant Collector's order in mutation is based upon a misapprehension arising out of a failure on his part to distinguish between the Collector's possession over Phul Kuar's estate as manager of the Court of Wards and his possession over Tilok 'Kuar's estate as property liable to escheat to Government for which no claimant with a clear title was forthcoming. As a matter of fact, this particular point seems to me to be still involved in some obscurity which was not completely cleared up by the arguments before us. The original defendant in this case was the Secretary of State for India in Council. The name of the Collector of Farukhabad as manager of the estate of Musammit Phul Kuar under the superintend-enoa of the Court of Wards was added as a defendant by an order passed more than three months after the institution of the suit. Separate defences were entered by the Collector of Farrukhabad on behalf of the Secretary of State for India in Council and by the same officer as manager of the Court of Wards. The judgment of the lower Court implies that the landed property in Allahganj and Islamganj is held by the Collector 'in the name of the Government' as if the possession over this property were still that of the Secretary of State for India in Council. Yet the appeal before us has been filed by the Collector of Farukbabad as manager of the Court of Wards only; so that we must take it that the Secretary of State for India in Council acquiesces in the decree of the Court below, though I cannot say that it is at all clear to me whether he does so on the ground that he has actually recognised Musammat Phul Kuar as owner of the property in suit, and made over the same to her, or whether he is simply not prepared to offer further resistance to the plaintiff's claim. The point was alluded to before us in the course of arguments, and the parties were apparently satisfied that we ought to deal with the case on the assumption that Musammat Phul Kuar, through the manager of the Court of Wards, is actually in possession of the entire property in dispute. I accordingly propose to do so but I cannot say that on the record as it stands the point seems to me as clear as it ought to have been made.

5. In any case, the institution of a formal suit by some person or persons claiming as reversioners under the Hindu Law was almost certain, and it was rendered inevitable by a circumstance which may as well be noticed at once, as it requires to be borne in mind in estimating the value of all the evidence produced. The property actually in dispute in the present case is comparatively small. It consists of a, one-sixth share in each of the two villages of Allahganj and Islamganj, of a grove in village Islamganj, of the dwelling house in village Allahganj occupied by Lal Bahadur Singh and after him by his widow, and of a considerable quantity of moveable property, a complete list of which was prepared under the Collector's orders at the time when he took charge of Musammat Tilok Kuar's estate. It is obvious, however, that any person who can prove himself to be the nearest reversioner under Hindu Law to the estate of Lal Bahadur Singh will at the same time be proving himself the nearest reversioner to the much larger estate of Kunwar Bahadur Singh at present held by Musamjmat Phul Kuar. I do not suggest that a decision in farour of the plaintiff in the present suit would necessarily operate as res judicata against all possible claimants, but it is obviouis that any person whose title as reversioner is-affirmed in this suit will have a claim to immediate possession of Kunwar Bahadur Singh's estate upon the death of Musammut Phul Kuar which the Collector of Farrukhabad, in whose hands the estate will then be left, will probably feel himself compelled to admit.

6. Now, amongst the three sets of claimants, who came forward during the mutation proceedings, were three persons who made common cause, namely Gangu Singh, Jwala Singh and Gajraj Singh. The two last named are father and son, and Jwala Singh is the son of one Ram Baksh Singh, who was the own brother of Gangu Singh. It need scarcely be remarked that, under, those circumstances, if these three claimants had made out a good case, the estate would go to Gangu Singh to the exclusion of the other two. It would seem, however, that either by reason of their possession of necessary funds or for some other cause, it is Jwala Singh and his son Gajraj Singh who have interested themselves in fighting this claim. Gajraj Singh has obtained from Gangu Singh a deed of gift in his favour of whatever property Gangu Singh may have inherited upon the death of Musammat Tilok Kuar as reversioaer of her late husband; he has also gone to another branch of Gangu Singh's family and has obtained a similar deed of gift from Madho Singh, a first cousin of Gangu Singh's. In the present suit, therefore, instituted on the 18th of May 1908, Gajraj Singh comes into Court as plaintiff on the basis of these two deeds of gift, that is to say, : he sets up and undertakes to prove the title of his two donors, Gangu Singh and Madho Singh, as the nearest reversioners to the estate of Lal Bahadur Singh, The fact that Gangu Singh died in the month of June 1907 has no bearing on the plaintiff's case inasmuch as Gangu Singh admittedly survived Musammat Tilok Kuar. From the point of view of the two donors, the position is simple enough; they were making to Gajraj Singh a gift of property of comparatively small value, not in their possession and not to be obtained by them without troublesome and expensive litigation, on the understanding that Gajraj Singh, was to institute and finance a suit which, if successful, would prove his donors to have a good claim to a very much larger estate, in the event of either of them surviving Musammat Phul Kuar, a lady who must now be some 45 years of age.

7. We shall have to turn presently to the pedigree upon which the plaintiff based his claim and the proving of which is undoubtedly the ona substantial issue in the case; but it is necessary to dispose in the first instance of Musammat Phul Kuar's defence,in so far as that defence is based upon the allegation that the property in dispute was really not Lal Bahadur Singh's but that of her own husband Kunwar Bahadur Singh. The facts which I have stated in an earlier portion of this judgment are in themselves sufficient to show that there is but a slender basis for this claim. In any case, the dwelling house and the moveable property found in Musammat Tilok Kuar's possession would presumably belong to her and have come to her from her late husband. There is nothing to show that the grove in the village Islamganj does not appertain to the one-sixth share in the proprietary rights of that village held by Lal Bahadur Singh; and if by any chance, it does not so appertain, there is simply nothing in the evidence to show that it ever belonged to Kunwar Bahadur Singh and not to its ostensible and recorded owner. We have only to consider, therefore, Musammat Phul Kuar's case regarding the one sixth, share in the zemindari rights in the villages Allahganj and Islamganj. It has been pointed out that these form part of the one-third share in each village purchased by Gopal Singh in his own name in January 1879. The case for the defendant is that Gopal Singh could have at that time no property of his own with which he could effect the purchase, and a certain amount of oral evidence has been tendered on behalf of the appellant to show that the money with which the purchase was effected came from the estate of Kunwar Bahadur Singh, It is unnecessary to discuss this evidence* because it is in itself of little value as against the documentary evidence on the other side; and, as a matter of fact, it might be true without being sufficient to make out Musammat Phul Kuar's case. I have pointed out, that this lady herself, when suing Lal Bahadur Singh in 1889, did not: claim the property now in dispute as part of her late husband's estate. Moreove'', Kunwar; Bahadur Singh himself in an application;.. dated March the 25th, 1830, (No. 155 at page 64 B,), applied that his own name and that of his brother. Lal Bahadur Singh should be entered as owners in equal shares of the one-third share in the villages Islam-, ganj and Allahganj which had formerly belonged to Musimmat Dular Kuar and had been purchased at auction by Gopal Singh. Possession remained thereafter with Lal Bahadur Singh and with his widow after his death.; One can understand Mummmat Phul Kuar's claim as having some sort of basis inequity, with reference to the previous history, of the family and to those parts of the evidence which suggest that the Allahganj estate was regarded at one time as ah Oudh taluq-dart estate descending by the rule of primo geniture, subject only to a reasonable provision: being made for younger branches of the family. This state of things, however, undoubtedly' came to an end in 1859 if not before; and there is really nothing in the evidence to justify a finding that Lal Bahadur Singh held the im-moveable property now in dispute as a mere grant in lieu of maintenance, or otherwise, than as full owner.

8. This matter having been disposed of, it only remains to be considered whether the plaintiffs have made out their case by proving the- ' pedigree set up by them, The evidence shows that it is so far incomplete that the' various lines have not been carried further down than was sufficient to show that no per-: son nearer in degree to the alleged common ancestor than Gangu Singh and Madho Singh, the plaintiff's donors, had survived Musawimat Tilok Kuar. Otherwise, it purports to be a: complete pedigree, and if proved by adequate evidence, it is sufficient to establish the plaintiff's case. The evidence tendered in support of it is both oral and documentary, and the, documentary evidence was the subject of much. : argument before us. It must be remembered that Madho Singh and Gangu. Singh were never landed proprietors. They come from a village called Behta in the Farrukhabad district, which, undoubtedly, appertains to the estate known as Taluqa Allabganj, and is shown in the schedule appended to Musammat Phul Knar's plaint in Suit No. 76 of 1889 as the property of the owners of the said taluqa. The plaintiff's case is that, some generations back, at a time when the Allahganj estate was a real taluqa and the right to it descended by primogeniture, a younger branch of the family settled in village Behta, obtaining no share in the zemindari bat only grove lands and what the witnesses on the point call 'sir lands', by which they presumably mean tenant holdings at favourable rates. It was impossible, therefore, for the plaintiff to find documentary evidence in support of his claim in ancient village records containing the names of landed proprietors belonging to the family with which he seeks to connect himself. In default of this he has sought for documentary evidence in the books kept by certain Brahmins known as pandas at Soran on the Granges and at the sacred city of Mutfra. These'pandas are priests who receive pilgrims visiting-sacred places for purposes of devotion and assist them in the performance of ceremonies appropriate to the occasion. Their livelihood depends on the fees paid them by the pilgrims who thus employ their services, and there is 110 doubt that they are exceedingly jealons of their traditional or prescriptive rights to receive and minister to all pilgrims belonging to any family which has once definitely enrolled itself in their lists of jaimnns or clients. For this purpose, they maintain certain books or registers one of which has been produced before us by the plaintiff's witness. Ganga Nath, a panda of Soran, whose evidence will be found printed at pages 10 to 14 of the respondents' book. His evidence needs to be compared carefully with the printed translation of the extracts from his bahi or register which will be found as document No. 230 at pages 61-62 R. As a matter of fact, we have had to subject the entire book to a good deal of examination. It- begins with a sort of index giving the names of villages where the panda's clients live, together with numbers for facility of reference, A good deal of trouble seems to be taken to keep the entries reiating to particular villages together or, at any rate, to facilitate reference when entries relating to the same village have got into different parts of the book. There seems, moreover, to be a certain amount of system employed in grouping villages together so as to connect with one another entries relating to different branches of one and the same family residing in different villages The entries themselves consist very largely of pedigrees or fragments of pedigrees sometimes purporting be made by, or at the dictation of, a particular member of the family concerned on the occasion of a visit paid to the Ganges at Soran in a specified year and month, sometimes merely jotted down underneath some other entry, without any specific record either of the occasion or of the particular person on whose authority the entry is made. Of course, the book is not, and does not profess to be, a systematic record of family pedigrees. The pages are not consecutively numbered. It is admitted that the binding is unstitched and fresh pages inserted whenever the panda' finds it convenient to do so. Blank spaces, and even blank pages, occur from time to time in the body of the book. It is admitted that if a page gets very much worn or tittered, the 'panda' will copy out what he can decipher of the entries upon it on to a fresh page and will insert the same in its place. It must, also be borne in mind that the 'panda' does not hold himself responsible for the identification of pilgrims who appear before him and represent themselves as being members of such and such a family. On these and similar grounds a strong attack was made on behalf of the defendant-appellant, not merely upon the value of this Soran book as a piece of evidence, but upon its admis-siblity under any of the provisions of Section 32 of the Indian Evidence Act. The argument, indeed, went so far as to ask us to hold that in no case ought entries in these pandas' register or note-books to be treated as admissible in evidence upon a question of pedigree. I am satisfied that this contention goes much too far. Indeed, the more we examined the book produced before us, the more certain it appeared that this book contained a large number of entries, obviously genuine and of considerable antiquity, which might afford evidence of real value on the question of the pedigree of the persons named therein. The book needs to be received with caution and subjected to a severe scrutiny in order to guard against the possiblity of fabrication; but to say that no entry contained in it can be admissible in evidence, or even that none of the entries relied upon in the present case is admissible, is to go a great deal too far. Bach entry must he carefully examined and dealt with on its own merits. Where it purports to be made by, or at the dictation of, a member of the family concerned, and the Court is of opinion that fair presumption exists in favour of its having been so made, it would clearly be admissible, as a statement by a person who had special means of knowledge, under the provisions of Section 32 Clause (5) of the Indian Evidence Act. Even as regards particular entries which do not purport to be made by any named person, I should not be prepared to lay down any universal rule of exclusion. Such an entry might, be treated as admissible under the clause above referred to, if the Court were of opinion that there was a fair presumption that it represented a statement made by some person who had special means of knowledge, even though that person could not with certainty be named. I think also that such entries might be admissible under Clause (6) of Section 32 aforesaid. They are not family pedigrees as that expression was explained by their Lordships of the Privy Council in the case of Kalka Prasad v. Mathura Prasad 30 A. 510 : 13 C.W.N. 1 : 18 M.L.J. 424 : 4 M.L.T. 380 : 10 Bom. L.R. 1088 : 8 C.L.J. 447 : 5 A.L.J. 701 : 11 O.C. 362 : 35 L.A. 166 : 1 Ind. Cas. 175., but they would seem to be statements as to the existence of relationship such as are referred to in the last part of the said clause as made upon any tomb-stone, family portrait or other thing on which such statements are usually made'. Taking into account all the evidence which has been laid before us regarding the manner in which these pandas' books are kept up, I do not see why even such entries, as I am now considering, should be treated as less admissible than (for instance) a note of the parentage of the subject of some old family portrait endorsed on the portrait itself. The principle laid down by Clause (6) of Section 32 of the Indian Evidence Act has been adopted from the English Law of Evidence; it seems to me that it has been laid down in sufficiently wide terms in order that there may be no doubt as to its application to analogous cases arising out of the widely different conditions of Indian life.

9. I now proceed to consider in detail the entries in the Soran book on which reliance' is placed. The printed record gives a very imperfect, and in some ways almost a misleading, idea as to their actual appearance and significance. They undoubtedly occur amongst a series of entries relating to Thakur landholder of the Pan war clan coming from villages connected with Wazirpur. At the end of a page dealing with village Mahilia, comes a note which is not, to be found in the translation of the Exhibit on pages 61 and 62R but which is referred to as entry No. 7, in the record of Ganga Nath's evidence as printed on page 13 R. It runs thus:

The Panwar clan, an entry by Thakur Shahzada, son of Deo Rao, and grandson of Bhagwant Singh.

10. This is separated by an entire blank page from the entries which follow; this blank page looks newer than those which precede and follow it, so that it is possible that its insertion is a mere accident during some process of re-binding; but if it be a mere accident, it is an nnfortunate one for the plaintiff. What he is trying to prove is the common descent of himself and his donors on the one hand-and of the family of Lekha Singh on the other, from an ancestor named Bhagwant Rai or Bhagwant Singh. He has here an entry purported to be made by a grandson of a Panwar Thakur named Bhagwant Singh, and corrobrating three important steps in the pedigree deposed to by his witnesses. This entry stands isolated, with no mark of time, no note of the name of the village from which Thakur Shahzada' came, at the end of a page dealing with are different village, and separated by a blank page from the other relevant entries presently to be considered A curious point in connection with it is that it does not appear to have been put forward by the plaintiffs when he examined Granga Nath in chief nor has the plaintiff thought it worth printing amongst the Exhibits on which he relies. It seems to have been dragged out of Ganga Nath under cross-examination and pressed upon the Court by the defendants as a. palpable forgery. We know, as I shall have to point out presently, that Jwala Singh, father of the plaintiff, visited Soran, and Muttra early in 1906 to see what; evidence could be got together from the panda's books about the pedigree of his family and the suggestion is that he must have then pro--cured the fraudulent insertion of a false entry about the parentage of Shahzada Singh on a blank space accidentally left at the end of the Mahilia entries. Such a theory would require to be carried to its logical conclusion; it implies that Jwala Singh arranged the perpetration of a forgery at once so futile and so palpable that he thought it better not to invite the attention of the Court to it when the case came up for trial. On the whole, I think there is only one thing to be done with this entry, to disregard it altogether. It is so far suspicions that we ought not to rely upon it; yet there are difficulties in the way of dealing with it as an undoubted, and demonstrable forgery.

11. Now we take up the examination of the book after the blank page. The heading of the next page is 'Village Kasara' but this is immediately qualified by the opening words of the entry itself which are noted as belonging to 'Village Wazirpur'. Then follows a note that Thakur Dulo Rai, son of Bhagwant Singh, and grandson of Gharamdeo, etc., (his pedigree being carried back several generations), a Rajput of the Panwar clan, resident of Wazirpur in pargana Mekrabad, came to the Granges in the month of Aghan 1802 Sambat corresponding with 1745 A. I). A formal pedigree repeating much of the information originally given but naming some collateral branches, follows; and at the end Dulo Rai is noted as having a son named Kunjal Singh, who has a son named Sahib Rai.

12. Immediately below this comes an entry dated in the month of Magh 18715 Smbat 1814A.D., expressly purporting to be made by Thakur Hira Singh, son of Thakur Kunjal Singh and grandson of Dulo Rai, the pedigree being traced upwards to Gharamdeo, resident of Allabganj, formerly resident of Wazirpur, Here again the pedigree is formally repeated, with the added information that Hira Singh bad a brother named Sahib Rai, that Hira Singh's son was Bhure Singh, who had a brother called Bhikham Singh, who had two sons. Dal Singh and Bhawani Singh.

13. These, entires are obviously genuine, and it is beyond question that they give accurately the pedigree of the defendant's side of the family down to Bhure Singh, who was the father of Lekha Singh, the man sentenced to transportation in 1859 A. D. I do not think any Court which had carefully examined this Soran book would hesitate to- accept these entries not only as admissible, but as really valuable evidence of the facts therein stated. The note regarding the transfer of the family residence from Wazirpur to Allahganj is peculiarly significant in view of the tradition on this point preserved in the settlement records and in the oral, evidence. It must be remembered that the defendant has never explicitly denied her family's side of the pedigree set forth in the plaint; it is the pedigree of the elder branch of the Taluqdars of Allahganj, and would be well known in the Panwar clan by oral tradition. I have no doubt that it is fully established by the oral evidence alone.

14. Immediately under these entries about the Allahganj people, the paper has got torn, and we had to fit in the broken piece and to decipher with some difficulty. The entry next following relates to some Thakurs of village Kulhri, also appertaining to Wazirpur, and this brings us to the bottom of the page as it originally stood. We then turn the page, i.e., reverse it and read on the opposite side. The first entry then runs:

Village Behta, purgana Maherabad Rajputs of the Panwar clan of the family of Becha.

15. (This is obviously intended to mean Becha Singh, whom Dulo Rai has previously named as his great-great-grandfather).

Thakur Shahzade Singh and Daya Ram, brothers; Dunde Singh, Makan Singh, Ratah Singh and Fateh Singh, sons of Shahzade Singh, Chheda Singh, son of Makhan Singh, Khawani Singh and Hindu Singh, sons of Dunde Singh. Budh Singh and Kunwar Singh, sons of Fateh Singh. Below is a note that the signature (or signatures) of the person (or persons) responsible for this entry will be found in 'the old book'.

16. Under this again is some writing in Urdu., which shows that Jwala Singh inspected this book (presumably early in 1906) and found it worth while-to leave his signature on this page to show that he had done so. The reference to the 'old book' may be to a book of signatures which Ganga Nath tells us was kept up; but this youth (he is only J9 years of (sic) has, not been able to help the plaintiff to trace the reference. We do not know, therefore, on whose information the pedigree, of the Behta people was noted down, and we have to deal also with the defendant's argument that the entry is a forgery arranged by Jwala Singh. All reasonable presumptions seem to me against the theory of forgery. The entry looks genuine, and the very objection as to its not being more explicit is in favour of its genuine ness. Moreover, from the plaintiff's point of view, it proves too little to have been worth forging. The plaintiff has to trace his family and that of his donors back to Bhag-want Rai, this entry begins with Shahzade Singh and Daya Ram, the alleged grandsons of Bhagwant Rai. It carries us down along one line of descent to Bhawani Singh, father of Madho Singh, who bad not at that time made common cause with Jwala Singh or executed any deed of gift in favour of the plaintiff. But the most striking point of all remains. This entry gives Dande Singh's sons as Bhawani Singh and Hindu Singh, while the plaintiff's case is that Dunde Singh had another son named Tilak Singh, and from this Tilak Singh are descended the plaintiff himself and his other donor, Gangu Singh. The latter's deed of gift in favour of the plaintiff is dated April 2nd, 1906, so that what we are asked to believe is that Jwala Singh got an entry forged which excluded from the pedigree the father of the claimant, Gangu Singh, whom he had squared, and his own grandfather. This I hold to be simply inconceivable. I hold this to be a genuine entry and admissible in evidence for what it is worth. It is of some value as showing the Panwar Thakurs of Behta connecting themselves in the pandas' books with that branch of their clan which had its head-quarters at Wazirpur, and it leuds corroboration to the oral evidence through the following steps of the pedigree which the plaintiff has to prove, viz.:

That Bhawani Singh (father of the plaintiff's donor Madho Singh) was the son of Dunde Singh, who was the son of Shahzado Singh.

17. The rest of # the plaintiff's documentary evidence does not consist of a panda's book at all, but of three photographs of pages from a 'Twok kept by Arjun Panda of Muttra. This man was got into Court under a warrant of arrest; he either is in reality a most unwilling witness for the plaintiff, or he has contrived most artistically to suggest that he is. His evidence and that of the witness Kishun Kunwar, proves that Jwala Singh got these photographs taken early in 1906, and we know that they were put in evidence before the Assistant Collecor in the mutation proceedings of that year. The loss of this one book, out of tea or twenty which Arjun keeps, is a fact so extraordinary that I do not really believe it to be due to mere coincidence. I strongly suspect that the book has either been wilfully destroyed, or is being kept back, but I hesitate to form an opinion as to whether this is done at the instigation and in the interests of the plaintiff or of the defendant. The general tone of Arjun's evidence, taken in connection with what has apparently happened to another important document in the case presently to be noticed, inclines my suspicions against the defendant. T note that the photographs were admitted as secondary evidence in the Court below, apparently on the strenght of Arjun's evidence, and that their admission does not seem to have been seriously Contested on behalf of the defendant. Following, therefore, the principles laid down in Harripria Debt, v. Rukmini Debi 19 c. 438 : 19 I.A 79, I do not think we should reject this secondary 1 evidence on appeal merely on the ontention that the loss of the original has not been satisfactorily proved.' For all that, now the production of the original is from any point of view most unfortunate. Translations of the photographs are given as papers Nos. 15, 17 and 19 on pages 59, 60 and 61 R. The first looks to me like a genuine page from the panda's book; it mentions, Tilak Singh as a son of Dunde Singh, and gives Tilak Singh's four sons, including the plaintiff's donor, Gangu Singh. It purports to do this on the strength of information given by Parbat Singh, brother of Gangu Singh, in the Sambat year 1939,-1832 A. D The second is, I think, also genuine and good evidence as far as it goes- It purports to be made in the Sambat year 1351-(1794 A. D.) -by Bhikam Singh, son of Sabit Rai, son of Kunjal Shah, son of Dulab Rai, the family being described as Panwar Thakurs of Allahganj. Subsequent entries follow, all dealing with the defendant's side of the pedigree, which I have already noted as sufficiently proved.

18. The real fight is over the photograph No. 19. Unfortunately, two pages have been photographed side by side, and in the absence of the original, it is simply impossible to tell whether there really was any apparent connection between the two in the book. The left-hand page as it appears in the photograph again begins with the year 1794 A. D., - and goes to prove the defendant's side of the pedigree. The right-hand page, if one could only rely on it, sets forth the pedigree put forward by the plaintiff from Bhagwant Rai, through Deo Rai and Shahzade Singh, down to Dunde Singh and, moreover, it distinctly connects the plaintiff's branch with the defendant's by giving Deo Rai and Dulab Rai as amongst the five sons of ' Thakur Bhagwant Singh.' There is a repetition of a portion of the pedigree in a different hand, with a date 'Sambai 1851,' and this would seem purposeless in a forgery; but as The evidence stands, we do not know in what context this page really came in Arjun's book, and I cannot say that I feel justified in drawing any clear presumption as to its genuineness, or in assigning to it any evidential value.

19. The other missing document in the case is a pedigree of Gopal Singh's family, found amongst other papers in Tilok Kunwar's house when her property was taken charge of under the Collector's orders. That there was such a document there at the time is beyond question. It was entered as No. 127 in the list prepared at the time under the direction of Munshi Debi Sahai, Tahsildar. It is not now forthcoming. The suggestion for the defence is that it is really the paper No. 32 printed at page 54 A which is a pedigree of the Wazirpur family taken from the Settlement Records of 1872. Munshi Debi Sahai himself, however, called as a witness for the plaintiffs, is positive that this is not the right paper, and he gives a description of the missing document inconsistent with the appearance of paper No. 32. He is corroborated by Ghansham Das, patwari of Islamganj, and, of course, by all the witnesses for the plaintiff who profess to remember anything about the paper. Gopal Singh, in spite of the confiscation of his estate, was the representative of the elder branch of the Allahganj family. We know he kept amongst his papers an old farman of the Emperor Mohammad Akbar Shah, which was paper No. 128 on the Tahsildar's list, and must date from somewhere about the beginning of the nineteenth century; there seems nothing intrinsically improbable in the suggestion that he also kept an old pedigree bearing the branches of the family then in existence, and it may be kept up to date by subsequent additions. At any rate, it does not appear possible that any sane person should have thought of nothing down in an official list the paper 'Ko. 32 as the pedigree or family-tree of Gopal Singh. His name is not mentioned in it, nor does it refer to the Allahganj family except by a mention of their distant ancestor, Bache Shah. I am driven, therefore, to the conclusion that an important piece of documentary evidence in the case has disappeared or been made away with. The suggestion that the plaintiff has contrived this disappearance because he found the pedigree did not mention his branch of the family, seems in any case a little difficult, and is contradicted by the fact, proved by the Assistant Collector's order in the mutation case, that Jwala Singh was clamouring for the production of this paper during those proceedings in the middle or the year 1906. Of course, no one accuses the Collector of Farrukhabad of wilfully suppressing evidence; the question is whether the subordinates employed in the Court of Wards Department are to be presumed to be above temptation in such a matter, and whether there is not a reasonable basis for the presumption that the disappearance of this paper was contrived early in 1906 in the interests of Musammat Phul Kuar or in those of the daughter and of the daughter's son of that lady, who appear from other evidence in the case to have survived Musctm-in at Tilok Kuar. I am at any rate not prepared to say that the learned Subordinate. Judge was wrong in drawing an inference favourable to the plaintiff, and to the credibility of the oral evidence for the plaintiff, from the disappearance of this pedigree of Gopal Singh.

20. This oral evidence upon which the plaintiff's case must in the main rest is certainly voluminous. It can scarcely be contended that it is not sufficient, if believed, to establish his case. After all, the issue is a fairly narrow one. The defendant's side of the pedigree, that is to say, the descent of Lekha Singh (grandfather of Kunwar Bahadur Singh and Lal Bahadur Singh) from Bhagwant Rai is proved by abundant evidence. It remains for the plaintiff to show that his donor Gangu Singh was the son of one Tilok Singh, that his donor Madho Singh was the son of one Bhiwani Singh, that the said Bhawani Singh and Tilok Singh were sons of Dunde Singh who was the son of Shahzade Singh, who was the son of Deo Rai, who was the son of Bhagwant Rai. For the lower steps in their pedigree, on can surely trust the oral evidence, if only on the ground that the witnesses could so easily have been contradicted if they had deposed contrary to the facts; and up to Shahzade Singh there is some corroboration in the way of documentary evidence. The crux of the whole case really turns on the question whether Shahzade Singh was in fact son of Deo Rai and Deo Rai of Bhagwant Rai. (It is just worth while to note that the translators of the printed record are responsible for the invention of one Dillu Rai' whose appearance in place of 'Deo Rai' at various points in the record gave us a lot of trouble until we satisfied ourselves that he was a pure myth). Now, considering the way in which pedigrees are undoubtely handed down by oral tradition in Thakur families, there is nothing in itself surprising in the supposition that a number of witnesses connected with these Thakurs of Allabganj and Bahta by marriage or otherwise are able to depose with confidence to this comparatively short pedigree. Some of them profess to do so on the strength of oral tradition handed down from their ancestors,; others rely both upon oral tradition and on the assertion that they have heard Gopal Singh in his life-time read out the family pedigree kept at his house. This is, of course, the document which has disappeared; and if we are right in assuming that there really was such a pedigree and that it has disappeared, it is obvious that it must have contained the name of Bhagwant Rai and must have shown -either Dulab Rai as his only son or other sons as well. So that when witnesses depose positively that they have seen this pedigree, or heard it read, and that it gave D30 Rai as a son of Bhagwant Rai, and Shahzide Singh as a son of Deo Rai, their evidence is entitled to weight. As a matter of fact, it seems to me that much of the difficulty we felt in dealing with the oral evidence is due to the unsatisfactory manner in which it has been recorded. Take Raghunath Singh, the first witness on this point. He is a Thakur of the Panwar clan, a landholder, sixty-eight years of age, and resident of the Hardoi district. He claims descent 'from Rao Sheopal Singh, the founder of the Wazirpur estate. When he has thus explained his own connection with the family, he goes on to give a pedigree of the family to which the parties belong, starting with Bache Shah, great-grandfather of Bhagwant Rai. The record of the lower Court simply says: The witness stated the following pedigree, and proceeds to give the whole in the form of a regular genealogy. There are fifty-two names in the pedigree, and the mere effort of memory involved in repeating it appears prodigious. One would wish to have the record in narrative form, arranged so as to convey some sort of idea of what the witness actually did say. Moreover, the mere fact of framing the record in narrative form would have been useful to the Court itself which heard the evidence, as helping it to disregard superfluous statements about collateral brancheo and concentrate its attention on endeavouring to form a correct opinion as to the precise weight to be assigned to the essential points in the witness' evidence What grounds had he for feeling certain that Bhagwant Rai had a son called Deo Rai, and taito this Deo Rai was the father of Shahzade Singh? We have to make the best of the record as it stands, and we are bound to attach due weight to the fact that the oral evidence for the plaintiff, taken as a whole, was found satisfactory and convincing by the Court which heard it. The cross-examination as a rule does not help one much. Raghunath Singh, for example, was chiefly cross-examined with a view to showing that he could remember less about the pedigree of his own family than about that of the plaintiff. To some extent, this contention was made out; indeed, the witness, perhaps because his powers of memory were temporarily exhausted by the strain which had just been put upon them, made an extraordinary blunder when he omitted the name of his own grandfather from the list he was asked to give of his great-grandfather's sons. It does not seem to me, however, that cross-examination on these lines can by itself lead to any decisive result. Personally, I am a good deal less impressed by any of the points. supposed to have been made against Raghu Nath Singh in cross-examination than by the positive assertion extracted from him that he remembered having himself seen the missing pedigree in G-opal Singh's house and that this pedigree gave the names of Dulab Rai and Deo Rai as brothers. Other witnesses who similarly depose at length to the pedigree sat up by the plaintiff are Ganga Singh, who is the son of a sister of Madho Singh; Balwant Singh, who is a connexion by marriage of the defendant's branch of the family, Budhi Singh, an aged Thakur who comes from a village in the Shahjehanpore district, and says he is connected by marriage with the same family although he falls into some apparent contradictions in the coarse of his cross examination as to the nature of that connexion; Madho Singh, a Panwar Thakur from the Farrukh-abad district who claims descent from the Wazirpore family, Hanwaat Singh, Bhup Singh and Komal Singh, also Panwar Thakurs and claiming the same connexion; Kunjan Singh who is a connexion by marriage of Gangu Singh; Nibha Singh another Panwar Thokur claiming descent from Bharat Shah, grandfather or Bhagwant Rai's grandfather; Budhi Ram, a Brahmin from village Behta, who says that his father was family priest of the Panwar Thakurs both at Allahganj and at Behta, and Narain Singh, another Panwar Thakur, who gives in detail a tremendous pedigree going right back to Rao Sheopal Singh. All these witnesses were subjected to detailed cross-examination and their evidence has been criticised before us on much the same lines as I have already indicated in discussing the cross-examination of Raghu Nath Singh. It would be easy to criticise any one of these depositions upon matters of detail; but it cannot be denied that we have here a large body of respectable evidence, in itself entitled to considerable weight, and not shown to be seriously tainted with partiality which has been accepted without hesitation by the Court before which it was produced.

21. Over and beyond this, the plaintiff has produced a good deal of other evidence in support of the proposition that the Panwar Thakurs of the village Bahta were generally regarded by persons likely to know the truth as a junior branch of the Panwar Thakurs of Allahganj, and were treated as such upon various ceremonial occasions. There is a great deal of evident that certain observances in token of mourning' are carried out by the Behta people in the case of death in the Allahganj family and vies versi. As a specimen of the evidence on this part of the case, I take Naurang Singh, a Panwar Thakur from. village Kumbhror, which is another of the villages owned by a branch of the, family which has its head-quarter at Wazirgunj. This mans deposes generally that the Thakurs of Allahganj and Bahta are recognised as belonging to one and the same family, and that they shave their heads and moustaches in token ' of mourning 'on the death of a person in each other's family.'. Ha gives instances in which this ceremony was observed, He adds that on the occasion ot certain formal assemblies, when the Panwar Thakurs who claim connexion with the family which ha? its head-quarters at Wazipore coma together, the Thakurs' from Behta are treated as being connected in a special manner with the Thakurs of' Allahganj, though placed in a position of inferiority as a junior branch of the family, I may -aid that this witness as wall as others, who do) not profess to repeat the. entire pedigree, is prepares to state possessively, on the authority of family tradition,, that Dulab Rai, the ancestor of the Allahganj Thakurs, had a younger brother named Deo Rai, from whom the Thakurj of Behta ware descended. It may be added finally that admissions ware obtained from more than one witness for the defendant which : go to corroborate the plaintiff's case. The witness Narain Singh admitted that the Thakurs of Behta were at any rate descendants of the eponymous Rao Sheopal. Singh. He also admitted that several witnesses who have given evidence for the plaintiff were connexions of the same family. Thanna Singh, a Panwar Thakur of Wazirpire, after giving evidence in favour-of the defendant as to Gopal Singh's auction purchase of 1879 having been effected with money which really belonged to kunwart Bahadur, proceeded in cross-examination be make a number of admissions in favour of the plaintiff on the question of pedigree. Ha distinctly stated that, according to family tradition derived by him from his-; ancestors, 'Bhagwant Rai had in faib two sons, Dalab Rai and Deo Rai, and that lala Singh and his brother, who appeal in the plaintiff's pedigree as first, cousins of Madho singh, were descended from Deo Rai. Such evidence as was attempted to be produced by the defendant in rebuttal of the plaintiff's case on the question of pedigree is distinctly meagre and of a purely negative character. No attempt was made to produce any witness who professed himself able to carry back the genealogy of Madho Singh and Gangn Singh for four or five generations, and so to demonstrate, the precise point at which the pedigree set up by the plaintiff deviates from the truth.

22. It seems to ma useless to discuss the oral evidence in further detail. In a generel way, it may be said that the credibility of the witnesses for the plaintiff does not seem to be assailed on the ground that they have any adequate motive for making statements which they know to be false, but rather upon the mere ground that they could not have had adequate and certain knowledge of the facts to which they depose. The pedigree of what may be described as the noble branch of the family, that of the tahiqdars of Allahganj, would, I think, be a matter of notoriety amongst mambers of their clan who claim descent from the same common ancestor, and even amongst Thakurs connected with the family by intermarriage. There seems to me no element of improbability whatever involved in the fact that a large number of witnesses produced for the plaintiff should be able to repeat this part of the pedigree? correctly. Indeed, there is no real doubt that they have done so. As regards the Thakurs of Bahta, there is this much at any rate to be said, that they seem to have been widely recognised as a junior branch of the Allahganj family and as more closely connected with that family than any other sub-division of the same clan could claim to be. It mast, moreover, have been fairly obvious to every one, for a good many years before this litigation opened, that the direct main line of Dulab Rai was coming to an end in the persons of Kunwar Bahadur Singh and Lal Bahadur Singh with the possibility thus opening of the succession to a large estate, having to go into a collateral branch, it is perhaps not surprising that attention should have been drawn to the pedigree of the Behta Thakurs, and that a number of witnesses should now be found who are able to recall the same with confidence on the strength of oral tradition handed down in their family. On a review of the entire case, I am unable to dissent from the finding of the Court below that the plaintiffs have proved their pedigree by reasonable and credible evidence. I would, therefore, dismiss this appeal with costs.

Chamier, J.

23. I concur.

24. By the Court.-The order of the Court is that the appeal is dismissed with costs including fees on the higher scale.

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