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Hazara Singh Vs. Attar Kaur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 935 of 1970
Judge
Reported inAIR1976P& H24
ActsEvidence Act, 1872 - Sections 35, 50, 60 and 64
AppellantHazara Singh
RespondentAttar Kaur
Appellant Advocate G.R. Majithia, Adv.
Respondent Advocate S.K. Jain and; Dalip Singh, Advs.
DispositionAppeal dismissed
Excerpt:
.....will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - majithia that the plaintiff has failed to prove that she was the daughter of mota singh's brother harnam singh. i may add that the witness is a lambardar and may well be presumed to be coming into contact with most of the residents of his village......| | chet lahar singh singh ___________|___________ | | | hazara harnam mota singh singh singh (defendant. appellant)the dispute relates to the estate of mota singh who died in canada about six years before the institution of the suit. according to the plaintiff, she is the sole surviving heir of mota singh, being his brother's daughter. the defendant-appellant contests her alleged paternity without disclosing, however, as to who her father was.2. at the trial, the plaintiff produced ten witnesses including herself. all of them asserted that she was the daughter of harnam singh above mentioned. two of them, namely, pritam singh (p. w. 2), a resident of village padhri where the plaintiff is married, and sardara singh (p. w. 3) who hails from village chola sahib.....
Judgment:

A.D. Koshal, J.

1. The only point requiring determination in this appeal is whether Attar Kaur plaintiff is the daughter of Harnam Singh whose name appears in the following pedigree-table which stands admitted between the parties:

HUKAM SINGH

____________________|___________________

| |

Chet Lahar

Singh Singh

___________|___________ |

| | Hazara

Harnam Mota Singh

Singh Singh (defendant.

appellant)

The dispute relates to the estate of Mota Singh who died in Canada about six years before the institution of the suit. According to the plaintiff, she is the sole surviving heir of Mota Singh, being his brother's daughter. The defendant-appellant contests her alleged paternity without disclosing, however, as to who her father was.

2. At the trial, the plaintiff produced ten witnesses including herself. All of them asserted that she was the daughter of Harnam Singh above mentioned. Two of them, namely, Pritam Singh (P. W. 2), a resident of village Padhri where the plaintiff is married, and Sardara Singh (P. W. 3) who hails from village Chola Sahib where part of the land in dispute is situate and to which Mota Singh and Harnam Singh belonged, have taken the stand that in his lifetime Harnam Singh used to address the plaintiff as his daughter who herself addressed him as her father. The plaintiff appearing as P. W. 10 deposed that she was the daughter of the said Harnam Singh who 'regarded me as his daughter and treated me in that manner.'

Apart from the oral evidence, reliance by the plaintiff was placed on copy of birth entry Exhibit P.3 as also on letters Exhibits P.5 to P.8. The entry exists in the register of births maintained at Police Station Sarhali in District Amritsar and states that daughter was born to a Hindu Jat woman of village Chola on the 14th of April, 1903, and that the name of the father of the new born child was Harnam Singh, Letters Exhibits P.5, P.6 and P.7 purport to have been written by Mota Singh above mentioned. The first two of them are addressed to Hazara Singh husband of the plaintiff and the third to the plaintiff herself. Letter Exhibit P.8 purports to have been sent by one Bhan Singh Gill to the plaintiff. All the four letters bear Canada post marks. The evidence adduced in rebuttal consists of the depositions of seven witnesses including the defendant. None of them has categorically dented that the plaintiff was the daughter of the brother of Mota Singh whose estate is in dispute.

3. The trial Court relied on the oral testimony of the witnesses for the plaintiff as also on documents Exhibits P.3 and P.5 to P.8 to hold that Harnam Singh, brother of Mota Singh, was proved to be the father of the plaintiff. The finding was upheld in appeal by Shri J. S. Chatha, Additional District Judge, Amritsar more on the basis of the said documents than on the oral evidence which, according to him, 'may not be very useful.' In addition, he was impressed by the fact that the defendant was silent about the paternity of the plaintiff. Both the Courts below have decreed the plaintiff's suit for possession of the land left by Mota Singh.

4. I find myself in complete agreement with the first contention raised on behalf of the appellant that document Exhibit P.3 does not indicate the identity of Harnam Singh or that of the new born child referred to therein and that, therefore, it provides no supporting evidence to the plaintiff's case. As already pointed out, the entry shows that a daughter was born to a woman of Chola Sahib and that the father of the new born child was Harnam Singh. Now it is true that Harnam Singh, brother of Mota Singh, was a resident of Chola Sahib. But then there is nothing to indicate that no other person by the name of Harnam Singh was residing in Chola Sahib at the relevant point of time. 'Harnam Singh' is a very common name amongst the Sikhs and no presumption can be raised, in the absence of evidence to that effect, that only one person by the name of Harnam Singh would be available in a particular village, Another noteworthy factor about the entry is that even if a presumption of that type could be made, the plaintiff cannot derive any benefit there from unless she proves that the child to whom the entry related was herself and no other child of Harnam Singh. There is, however, not an iota of evidence on the record to the effect that Harnam Singh begot only one daughter or that the plaintiff was born in or about the month of April, 1903. Entry Exhibit P.3 has thus not been connected with the plaintiff and serves no useful purpose.

5. Another contention raised on behalf of the appellant which has to be accepted is that the authorship of letters Exhibits P. 5 to P.8 remains unproved and that, therefore, it cannot be said that the first three of them were written by Mota Singh above mentioned and the fourth by Bhan Singh aforesaid. Not only has every one of the P. Ws. 1 to 9 remained silent on the point but the same is true of the plaintiff herself. The plaintiff, in fact, is illiterate and was not in a position to identify the handwriting or signatures of her uncle or Bhan Singh. But surely other persons who were conversant with such handwriting and signatures could and should have been produced at the trial before the plaintiff could rely on the letters as evidence in support of her case. Merely because the letters were tendered in evidence and exhibited is no reason why their authorship should be taken as what it purports to be.

6. All the same I do not agree with Mr. Majithia that the plaintiff has failed to prove that she was the daughter of Mota Singh's brother Harnam Singh. In my opinion, the oral evidence adduced by the plaintiff is sufficient proof of the fact. Reference in this connection may be made to her own deposition and that of Sardara Singh (P. W. 3). Both of them have stated on oath that during the lifetime of Harnam Singh, the latter and the plaintiff treated each other as father and daughter respectively. This testimony squarely falls within the ambit of Section 50 of the Indian Evidence Act inasmuch as it proves the opinion, expressed by conduct, as to the existence of the relationship of father and daughter between Harnam Singh and the plaintiff, both of whom being members of a family had special means of knowledge on the subject.

Mr. Majithia has argued that a witness who gives evidence about such opinion as is referred to in Section 50 must himself be having special means of knowledge about the relationship in question but that is not what the section provides. The special means of knowledge which the section speaks of are means which the person whose opinion is sought to be proved must have. The language of the section does not warrant the interpretation that such means must be had by the witness who proves the opinion iD question.

Nor am I impressed by the contention raised on behalf of the appellant that the testimony of Sardara Singh (P. W. 3) and Attar Kaur (P. W. 10) should be regarded as hearsay for the reason that neither of them has stated that he or she was present at the time when Harnam Singh conducted himself as alleged. It is true that neither Sardara Singh (P. W. 3) nor Attar Kaur (P. W. 10) asserted in so many words that the relevant conduct of Harnam Singh manifested itself in his or her presence, but the circumstance, in my opinion, does not lead to the inference that the testimony of the two witnesses must be regarded as hearsay. The relevant portion of the testimony of Sardara Singh runs thus:

'I know Attar Kaur, she is the daughter of Harnam Singh of my village. Harnam Singh and Mota Singh deceased were brothers inter se. Harnam Singh used to call Attar Kaur his daughter and Attar Kaur used to address him as her father.'

As already stated, the witness hails from Chola Sahib. The averments made by him in his deposition must be taken to have been made on the basis of personal knowledge unless the fact was challenged and the reality shown to be otherwise. I may add that the witness is a Lambardar and may well be presumed to be coming into contact with most of the residents of his village. In any case, the statement in the witness-box of the plaintiff herself is practically a clincher against the defendant who has not set up any alternative case in regard to the plaintiff's paternity, there being not even a suggestion that she is the daughter of any person other than Harnam Singh brother of Mota Singh. Obviously when she state that the said Harnam Singh used to conduct himself as her father, she is speaking from personal knowledge and her testimony cannot be rejected as being hearsay.

7. Holding that the concurrent finding of fact arrived at by the Courts below is correct, I dismiss the appeal with costs as being without substance.


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