Teja Singh, J.
1. The property in dispute in this case, which consists of agricultural land, a house and a bara, belonged to Wary am Singh. On Waryam Singh's death it descended to his son Hazura Singh and on Haznra Singh's death it devolved upon Mt. Dani, his mother. Mt. Dani gifted the property to her daughter Mt. Eatni. The plaintiffs who claimed to be Hazura Singh's collaterals brought a suit for cancellation of the gift on the ground that Mt. Dani's right of alienation was restricted and the gift did not affect their reversionary interests. They also contended that the land was ancestral qua them. The trial Judge came to the conclusion that the plaintiffs had not been able to prove either that they were Hazura Singh's collaterals or that the land was ancestral qua them. Consequently, he dismissed their suit. On appeal, the learned Additional District Judge set aside the finding of the trial Sub-Judge on the first point, held that the plaintiffs were collaterals of Hazura Singh, and even though he agreed with trial Sub-Judge that the land was not ancestral, he decreed the plaintiffs' suit but left the parties, to bear their own-costs. Mt. Ratni has now come to this Court on, second appeal.
2. The plaintiffs are the descendants of Dai Singh while Hazura Singh was the descendant of Mughlu Singh. The trial Sub-Judge had taken the view that Dal Singh and Mughlu Singh were not proved to be related to each other. The plaintiffs' position was that they were real brothers and were sons of Tek Singh. The pedigree-table which the plaintiffs propounded went further to show that Tek Singh was the son of Bakhta whose grandfather Dayala had three sons, namely, Karman, Mehra, and Dhana. In support of their contention the plaintiffs had relied upon a copy of the pedigree-table. Ex. p. 9, which had been taken from an old lambardari file. That trial Sub-Judge held that the pedigree-table had not been proved and further that it could not be admitted in evidence.
3. The District Judge in order to have the matter cleared sent for the lambardari file and thinking that the documents and statements contained therein were valuable pieces of evidence and would be of help to him in deciding the question of the alleged relationship of the plaintiffs with Hazura Singh issued notices to the parties' counsel for the 15th December 1942 in order to find out what position they wished to adopt regarding the admission of the record of the lambardari case as evidence. On the 15th the parties' counsel made statements saying that they had no objection to the admission of the lambardari record as additional evidence in the case The counsel for the present appellant, however, put forward a condition, namely, that only those documents or statements should be admitted which were legal evidence. Subject to this condition, the record of the lambardari case was treated as evidence by the learned District Judge. He came to the conclusion that the pedigree table, of which Exhibit p. 9 was the copy, had been prepared by Nura Mirasi and was accordingly evidence in the case, Belying upon this pedigree-table and the statement of a Patwari contained in the lambardari record he held that Mughlu Singh and Dal Singh were brothers and that the plaintiffs were the sixth degree collaterals of Hazura Singh.
4. The first point urged before us by learned Counsel for the appellant is that the District Judge acted wrongly in admitting additional evidence. The counsel contended that the provisions of Order 41, Rule 27, Civil P.C., were very strict and the District Judge could not admit the evidence because there was really no lacuna and the trial Subordinate Judge had definitely found against the plaintiffs on the question of relationship on the evidence that was before him. I do not find it possible to agree with the learned Counsel. In the first place, in the face of the statement made by the appellant's counsel before the District Judge the objection to the admissibility of additional evidence is not open to her in this Court. After all, the question whether or not additional evidence should be admitted in appeal is a question of discretion with the Judge who is hearing the appeal and in this case when counsel for both the parties agreed that the additional evidence should be admitted it cannot be said that the District Judge exercised the discretion wrongly. Then it may be pointed out that Exhibit p. 9 was already on record and if the District Judge sent for the lambardari record and admitted in evidence the original of Ex, p. 9, technically it did not amount to admission of additional evidence. Furthermore, as I have already pointed out, the crucial question in the case was whether Dal Singh, the plaintiffs' ancestor, was the brother of Mughlu Singh who was Hazura Singh's ancestor and the whole of documentary evidence on record, Ex. P. 9, which the trial Subordinate Judge had rejected, did not throw any light upon it. This means that if we ignore Ex. P. 9, there was a real lacuna on the point and the only way in which it could be removed was to send for the record in which the original of Ex. P. 9, was contained to scrutinize it and to find out whether or not it was legal evidence in the case. I, therefore, hold that the procedure adopted by the District Judge was the correct procedure and the objection of the appellant's counsel must be overruled.
5. The second point urged was that Nura's statement i.e., the pedigree-table, of which Ex. p. 9, was the copy, was not legal evidence in the case. In order to be able to adjudicate upon this objection it is necessary to say a word regarding the lambardari case. Sukhan Singh the great-grandfather of Hazura Singh, was one of the two last lambardars. On his death Kalu, who was the descendant of Mehra, son of Dayala, came forward with the claim that he was entitled to one of the two posts. It appears that. Kalu's relationship with the deceased lambardar was not disputed and the only ground upon which his claim was resisted was that both the lambardars should belong to Dhana's branch. It was in the course of the proceedings relating to Kalu's claim that Nura, the Mirasi and apparently the bard of the family, put in the pedigree-table, of which Ex. p. 9, is the copy, and it appears that according to the practice prevailing at that time he made his mark beneath the pedigree-table. I am quite clear that the pedigree-table amounts to Nura's statement and is admissible under Sub-section (5) of Section 32, Evidence Act. Mr. Sawhney contended that the evidence of a family bard was not admissible and relied upon a single Bench decision of the Lahore High Court in Ghulam Mohammad v. Miraj Din and Ors. A.I.R.1938 Lah.303 : 176 I.C.464, in support of his contention but with all deference, I do not think that the ruling lays down the correct law. Reference in this connection is invited to the observations made by their Lordships of the Privy Council in Abdul Ghafur and Ors. v. Mt. Hussain Bibi and Ors. 12 Lab.336 : A.I.R. (18) 1931 ). In that case, the High Court had criticised the evidence of a Mirasi who had deposed to the alleged relationship between the parties and a pedigree-table. While referring to the view of the High Court this is what their Lordships said:
In particular, the High Court Judges discount on this ground the evidence of Allah Ditta, thirty-five years of age, who was the mirasi, of Shah Nawaz Din and his brother. But it is the business of a Mirasi, who is a hereditary family bard, to acquaint himself with the details of the family history, whose glories he recounts in song on ceremonial occasions, and the fact that he must speak from hearsay does not render his evidence valueless.
As regards Mr. Sawhney's submission that the lambardari file does not show that Nura actually appeared as a witness and consequently the pedigree-table is not his, I do not think there is any force in it either and in support of my view I again refer to the above-mentioned Privy Council case in which it was held that the statement might be proved not only by showing that the person concerned actually made the statement but by showing that he acted upon, or assented to, or did anything which amounted to a recognition of it. They also observed that the evidence of the above nature could not be disregarded on the ground that it was based on hearsay, although its weight depended upon other circumstances. As regards the circumstances in which the pedigree-table was prepared by Nura, all that is necessary to mention is that it was clone at the time when there was no dispute between the members of the family about the relationship and long before the present litigation could [even have been thought of. Mr. Sawhney then referred us to another Privy Council decision, Thakur Ganesh Bakhsh Singh and Ors. v. Thalcur Ajudhia Bakhsh Singh and Ors. : 31 S.L.R.702 but I do not understand how it helps his client. The question in that case was whether a pedigree, table forming part of a wajib-ul-arz could be admitted in evidence.
6. Their Lordships held that unless a pedigree-table drawn up could be shown to have been derived from authentic documents, the evidence which it afforded was at best evidence of tradition. In the first place, as was observed in Abdul Ghafur's case 12 Lah. 336 : , Nura's evidence his admissible under Section 32(5), because it was his business to acquaint himself with the relationship of his clients and the value of the evidence is not taken away by the fact that no documents were available to him. Secondly, even if evidence regarding relationship can be regarded at best as evidence of tradition, it cannot be rejected as valueless merely for this reason. 'Where the tradition', remarked their Lordships in the same case, 'has been as certained with reasonable certainty a proper value must be given to it on question of pedigree, and it may be sufficient of itself'. I again repeat, that in view of the circumstances in which the pedigree-table was made it is of great value and should be sufficient by itself to supply the necessary link connecting Dal Singh and Mughlu Singh.
7. In addition to the pedigree table, we have discovered another important piece of evidence that clinches the matter, namely, Kalu's statement which is contained in the above-mentioned lambardari record. Since Kalu was a descendant of Mehra, the brother of Dhana, he had, therefore, special means of knowledge of relationship between his collaterals. He stated that he was placing on record a pedigree-table in accordance with the Assistant Commissioner's order. The pedigree-table was evidently the one prepared by Nura and the statement should be taken to mean that it was correct to Kalu's knowledge.
8. For all these reasons, I hold that the plaintiffs were proved to be Hazura Singh's collaterals in the sixth degree.
9. Last of all, the appellant's learned Counsel urged that the donee's right to succeed to Hazura Singh's property was superior to that of the plaintiffs. Now, it cannot be denied (that the general agricultural custom of the province is against the appellant and she could only succeed by proving a special custom. The learned Counsel referred us to the statements of the appellant's witnesses, as also to a number of instances that he claimed to have proved by documentary evidence. The instances relate to succession of daughters in preference to collaterals and the position of a sister being entirely different from that of a daughter that they cannot help the appellant in any way. As regards the oral evidence, most of the witnesses state that daughters are preferred to collaterals in respect of non-ancestral property. Only two stated that the same was the case with sisters but none of them was able to support his evidence by any instance. Accordingly, I hold that the appellant had not succeeded in establishing any special custom and this point also should be decided against her.
10. The result, in my opinion, is that the appeal must fail and is dismissed. There will be no order as to costs.
11. The plaintiffs-respondents have put in cross-objections against the direction of the District Judge that the parties should bear their own costs in his Court, as well as in the Court below. In view of the fact that the plaintiffs succeeded in the District Judge's Court on the strength of the additional evidence, I think it was a proper case in which no costs should have been awarded to them. Accordingly, the cross-objections also must stand dismissed but without costs.