S.K. Kader, J.
1. The plaintiffs, in a suit for declaration that they are entitled to 5/26 shares in the plaint schedule properties, for partition and separate possession of their shares had for a further declaration that the Will and sale deeds executed by deceased Raman Narayanan are invalid and not binding on them and the plaint schedule properties, are the appellants. According to the plaintiffs, Raman Narayanan had two wives, namely, the 1st plaintiff arid the 1st defendant, Defendants 2 to 10 are the children born to Raman Narayanan through the 1st defendant, while plaintiffs 2 and S and the 11th defendant are the children born to the first plaintiff by Raman Narayanan, Plaintiffs contended that Raman Narayanan was not in his proper senses and was not having a proper disposing capacity at the time of the execution of the Will and the sale deeds, impugned in the suit
2. Eleventh defendant supported the plaintiff while the other defendants resisted the suit contending that the plaintiffs had nothing to do with Raman Narayanan, that the 1st plaintiff was not the legally wedded wife of Raman Narayanan and that the plaintiffs who have no right over the property are incompetent to dispute the validity of the Will and the alienations.
3. The learned Subordinate Judge who tried the suit found that plaintiffs 2 and 3 and the 11th defendant are the illegitimate children of deceased Raman Narayanan that the 1st plaintiff is not the legally wedded wife of Raman Narayanan. On these findings, though several points have been raised and several issues framed, the trial court without considering these issues dismissed the suit. On appeal, the lower appellate court confirmed the decree and judgment of the trial court.
4. While attacking the findings of the courts below, the counsel appearing for the appellants and the 11th respondent (11th defendant) who has filed a cross-objection, mainly pressed for a remand of the case to the fewer appellate court on the grounds that the lower appellate court omitted to consider the oral evidence of sortie of the witnesses and certain documents especially Ex. P 15. which according to the appellants, is an important piece of evidence in support of their case, that the approach made by the learned District Judge to the evidence of P. W. 2 is thoroughly wrong and that the lower appellate court has not properly understood the scope and application of Section 50 of the Evidence Act to the facts of this case. The counsel pointed out that the lower appellate court found from the evidence that Banian, Narayanan had some connection with P. W. 1 (1st plaintiff), that plaintiffs 2 and 3 and the 11th defendant are offsprings of that connection and that the little evidence that is present in the case will go to show that Raman Narayanan had something to do with P. W. 1. It was argued that in the light of these findings, if the learned District Judge had property understood the scope and effect of Section 50 of the Evidence Act and property appreciated the evidence of P. W. 2 in the light of this section or otherwise, the result of the appeal would have been different. The counsel also submitted that the lower appellate court has totally misunderstood and misconceived the scope and ambit of the proviso to Section 50 of the Evidence Act, that it was on the basis that this proviso applied to the present case that the learned District Judge appreciated the evidence in the case and that the lower appellate court ought to have found that the proviso to Section 50 of the Evidence Act has no application to the present case.
5. On hearing both sides and going through the judgment of the lower appellate court, I feel there is considerable force in the arguments advanced on behalf of the appellants and the 11th respondent. In paragraph 8 of the judgment, the learned District Judge has considered and discussed the scope and applicability of Section 50 of the Evidence Act. A reading of this paragraph clearly indicates that the learned District Judge has proceeded on the basis that the proviso to Section 50 of the Evidence Act is applicable to the case on hand. This is wrong. It is clear from the proviso that it applies only to cases coming under the Indian Divorce Act and the prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code. This proviso was inserted because strict proof of marriage was required in criminal prosecutions and also in proceedings under the Indian Divorce Act, 'Section 50 deals with the relevancy of a particular fact and it is only 'opinion as expressed by conduct' as to the relationship of one person to another which is made relevant. This section to some extent allows evidence somewhat akin to 'reputation evidence'. It would appear that the lower appellate court has not properly understood this aspect. The law on the point has been well enunciated by the Supreme Court in Dolgobinda v. Nimai Charan (AIR 1959 SC 914). What is made admissible in evidence is the opinion. In order to enable the court to infer 'the opinion' the conduct must be of a tenor which cannot well he supposed to have been willed without the inner existence of the 'opinion'. The conduct must be proved in accordance with the law relating to proof. Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is admissible in evidence under Section 50 of the Evidence Act or by some other person acquainted with the facts which, express such opinion. Though the learned District Judge has referred to some of the documents marked in the case, it is clear from his judgment that he has not considered Ex. P15. Not, even a passing reference has been made about this in his judgment. In the light of all these, it cannot be said that there was a proper re-appraisal of the evidence in the case by the lower appellate court.
6. In the result, without going intothe merits or demerits in the contentionsraised by either side, I set aside the decreeand judgment of the lower appellate courtand remit the case back to that court fordisposal afresh in accordance with law andin the light of this judgment. In view ofthe above findings, the memorandum ofcross-objections filed by the 11th respondentis dismissed but, without costs. He will beentitled to raise the points taken in the cross-objections before the lower appellate court.The learned District Judge will see that thisappeal is disposed of as expeditionsly aspossible.
7. Court fee paid on the memorandum of second appeal will be refunded to the appellants.