1. This is a plaintiffs second appeal from the judgment and decree of the learned District Judge, Ambala, reversing the decree of the trial Court and dismissing their suit
2. According to the plaintiffs-appellants, the land in suit was owned by one Hira Singh who is alleged to have died round about 1942 and on whose death Manphul Singh defendant founding his claim on the basis of an alleged will by Hira Singh in his favour got the mutation of the said land sanctioned in his own name. The plaintiffs claiming to be the daughter's sons of Punjab Singh, a collateral of Hira Singh deceased, instituted the suit, out of which this appeal has arisen, for possession of the land in question. Being cognates of Hira Singh deceased, the plaintiffs claim title to the inheritance of the property left by the deceased and it is asserted that the defendant is in no way related to the last male holder.
3. The defendant in his written statement admitted that the land in question was owned by Hira Singh, who was murdered during the fateful days of partition of the country in 1947 but he propounded a will in his favour said to have been validly made by Hira Singh. He also denied that the plaintiffs were the daughter's sons of Punjab Singh and even Punjab Singh's collateral relationship with Hira Singh was controverted.
Time bar was also set up as a defence and it was further pleaded that he had got some of the suit land redeemed with the result that if the plaintiffs were to be held entitled to a decree for possession, the relief should be granted only subject to the payment to the defendant of the mortgage amount paid by him. The pleadings of the parties gave rise to a large number of issues but at this stage we are only concerned with the question of the relationship of the plaintiffs with the deceased Hira Singh.
The trial Court granted a decree for possession as claimed by the plaintiffs subject to the payment of Rs. 1934/- to the defendant. The story of the will as pleaded by the defendant was disbelieved and the defendant was found not to be a collateral of Hira Singh in any degree. On the basis of these conclusions, the defendant's claim to the property in question was negatived. The plaintiffs were found to be the daughter's sons of Punjab Singh as alleged by them and Punjab Singh was found to be a collateral of Hira Singh deceased.
4. The defendant feeling aggrieved took an appeal to the Court of the District Judge who upheld the decision of the Court of first instance on issue No. 4 under which the story of the execution of a valid will by Hira Singh in favour of the defendant was disbelieved and indeed the lower appellate Court found execution of will by Hira Singh to be lacking in proof. On the question of the plaintiffs being the daughter's sons of Punjab Singh also the lower appellate Court upheld the conclusion of the learned Subordinate Judge, but he reversed the decision of the first Court on Punjab Singh's being a collateral of Hira Singh deceased and it is only on the ground of Punjab Singh having not been proved to be a collateral of Hira Singh that the plaintiffs-appellants' suit was dismissed by the learned District Judge.
5. Feeling dissatisfied with the judgment and decree of the lower appellate Court, as already observed, the plaintiffs have preferred the present Regular Second Appeal and it has been strenuously contended that the learned District Judge has illegally brushed aside important mass of evidence of unimpeachable character establishing the relationship of Punjab Singh with Hira Singh deceased, beginning with the pedigree-tables prepared at the settlement of 1887 and other evidence in the form of judicial decisions between the plaintiffs' predecessors-in-interest and Hira Singh through whom the defendant purports to claim by means of the alleged will.
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(7) Pedigree-tables prepared at the time of settlement form part of the record of rights as prescribed under Section 31(2)(d) of the Punjab Land Revenue Act. Presumption of truth must, therefore, extend to such pedigree-tables until the contrary is proved or a new entry is lawfully substituted therefor: vide Section 44 Punjab Land Revenue Act. The burden of proving that an entry in the pedigree-table so prepared is wrong must in the circumstances rest heavily on those who make such assertion. See Ishar v. Dalip Singh, 111 Pun LR 1913. The learned District Judge appears to have completely ignored this aspect of the matter. He has not even cared to advert to the presumption of truth raised by Section 44 Punjab Land Revenue Act* * * * *
The reasoning of the Court below, in my opinion, suffers from a very serious infirmity. In the first place, it loses sight of the presumption of truth attaching under Section 44 Punjab Land Revenue Act to the pedigree-tables prepared at the settlements of 1887-88 and 1917-18. Secondly, and this is apart from the statutory presumption, permissible under Section 44 of the Land Revenue Act, it ignores the presumption that official acts are to be taken to have been duty and properly performed.
Sections 35, 114 and 90 of the Indian Evidence Act read together would also, in my view, give rise to a presumption that the settlement pedigree-tables represent the correct position. The learned District Judge appears to me to have fallen into a serious error when he thought that merely because Sahiba, Dhumi and Hari Singh had died in 1852 the pedigree-table prepared at the settlement of 1887-88 could not be considered to be authentic or trustworthy piece of evidence.
Public officers entrusted with the duty of preparing the record of rights might legitimately have been presumed to have incorporated the pedigree-table in those records by making full and proper enquiries from persons, who truly had special means of knowledge of the relationship of persons included in those pedigree-tables and those persons might well have been other than Sahiba, Dhumi and Hari Singh who had died in or before 1852. In this connection, it must not be forgotten that in the social conditions which prevailed in 1887-88 and even in 1917-18 exclusive reliance on written and printed words in proof of pedigree-tables was not commonly resorted to in this country and oral family history and traditions were generally considered to be sufficiently reliable medium of record.
Such oral records could certainly be forthcoming from the other members of the family though as a last resort, in my view, the members of the brother-hood or of the village, or even the family bards could also furnish the necessary material to the officers entrusted with the duty of preparation of the record of rights. It is in these circumstances clear that the lower appellate Court was by no means justified in rejecting the pedigree-tables prepared in 1887-88 and 1917-18 on the ground stated by it .
9. The matter, however, does not rest here. These pedigree-tables were also later adopted by the parties in judicial proceedings and indeed we have the statement of Punjab Singh himself vide Exhibit P. 9 propounding the same pedigree-table so far at least as Punjab Singh and Hari Singh are concerned. This evidence has been discredited by the learned District Judge on the ground that Punjab Singh could not possess better knowledge than his father and other members of the village had in 1887-88.
I find it a little difficult to appreciate the reasoning of the learned District Judge. Why Punjab Singh's father could not have the requisite knowledge in 1887-88 or why Punjab Singh himself could not have the same knowledge, when he made the statement Exhibit P. 9, is not easily understood. But this apart, if in 1917 in the litigation in which the statement Exhibit P. 9 was made, the members of the family adopted this pedigree-table, I do not see any logical or sound reason for discarding it now.
As observed by the Judicial Committee of the Privy Council in Abdul Ghafur v. Mt. Mussain Bibi, AIR 1931 PC 45, in question of pedigree the statements of deceased members of the family made ante litem motam before there was anything to throw doubt upon them, are evidence to prove pedigree. And such statements by deceased members of the family may be proved not only by showing that they actually made the statements, but by showing that they acted upon them, or assented to them, or did anything that amounted to showing that they recognised them. If any member of the family, as a person who presumably would know all about the family, had stated such and such a pedigree, that evidence would be receivable, its weight depending upon other circumstances.
10. There is still another piece of evidence furnished by the mutation, Exhibit P. 11 of 1898, which also supports the above pedigree-table. In this mutation reliance was placed on a decision of the year 1869 for purposes of adopting this pedigree-table. The learned District Judge has, while rejecting this mutation, lost sight of the fact that there Mangal Singh had relied on an order of the Assistant Commissioner dated 3-7-1869 for propounding the pedigree-table in question, and has rejected this evidence on the mistaken impression that Mangal Singh was himself propounding this pedigree-table purely from his own memory.
11. The Court below appears to think that pedigree-table, like the one we are dealing with, must necessarily be proved by direct testimony of witnesses having personal knowledge. This, in my opinion, is a wholly mistaken view of law. The principle, on which Clauses 5 and 6 of Section 32 of the Indian Evidence Act are based, forms an exception to the rule which excludes hearsay evidence and indeed these provisions of law seem to have been enacted on grounds of practical expediency in order to advance the cause of justice. A statement, made ante litem motam as to relationship of persons, by those who have special means of knowledge of such relationship is clearly admissible though the witnesses themselves do not claim to be nearly related to the persons about whose relationship they depose.
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As discussed above, the evidence on the present record more than amply establishes the relationship canvassed by the plaintiffs and the recognition of the pedigree by the family members, and the statutory presumptions referred to above, in my opinion furnish a complete answer to the respondent's contention.
14. For the reasons given above, this appeal must be allowed which I hereby do, and reversing the judgment and decree of the learned District Judge I restore those of the Court of first instance. In the circumstances of the case, however, there will be no order as to costs in this Court.