1. This is an appeal by the plaintiff who sued to recover possession of certain properties as a reversioner to the estate of one Velu Mudaliar alias Doraisami Mudaliar who is said to have died in 1875, leaving a widow Sivagami Anni who died in 1918, Issues were raised in the case in respect of (1) the relationship of the plaintiff to Velu Mudaliar, (2) the title of Velu Mudaliar to the suit properties, and (3) the validity of alienations by Sivagami under which the defendants claim. On points 2 and 3 the learned Subordinate Judge recorded findings substantially against the defendants. But on point 1 he recorded a finding against the plaintiff and accordingly dismissed the suit. We have heard arguments from the learned Counsel for the appellant only on the question of relationship, and in the view that we take on that matter it is unnecessary to deal with the other questions.
2. The relationship alleged by the plaintiff is set out in the pedigree reproduced at p. 17 of the printed record, in para. 31 of the lower Court's judgment. His case in substance is that there were five brothers, Annamalai Mudaliar, Appukutti Mudaliar, 'Suppa or Subbiah Mudaliar, Kolandaivelu Mudaliar and Chinna Appakutti Mudaliar, that the propositus Velu or Doraiswami Mudaliar was the great-. grandson of the first Appukutti Mudaliar and that the plaintiff himself is the grandson of Suppa or Subbiah. It is unnecessary for the purpose of this case to consider whether the propositus was not the great-grandson of Appukutti or whether the plaintiff is not the grandson of Suppa Mudaliar. The main point that the plaintiff has to make out is that Appukutti and Suppa Mudaliar were brothers. Apart from the oral evidence of four witnesses examined on the plaintiff's side, to which we shall presently refer, the plaintiff relied mainly upon three sets of documents: (1) the papers relating to a litigation of 1883, O.S. No. 81 of 1883, on the file of the Negapatam Sub-Court; (2) Exs. C, C-l and C-2 evidencing certain private transactions of Suppa Mudaliar, and (3) certain letters and postcards filed, as Ex. D series containing the correspondence that passed between the plaintiff's father lyyadorai Mudaliar and one Thandavaraya Mudaliar who was the plaintiff in O.S. 81 of 1883, shortly before and during the pendency of that suit. It will be convenient to take the documents in the above order.
3. The litigation of 1883 was started by one Thandavaraya Mudaliar claiming to be the grandson of Annamalai, the eldest of the five brothers. Ex. A, the plaint in that case, stated that Annamalai and the elder Appukutti were undivided and the. other three brothers had become divided and the plaintiff claimed immediate possession on the footing of survivorship, whereas if they too had become divided when the other three brothers were said, to have become divided, the plaintiff' could not have obtained anything more than a mere declaration. As will appear when we come to deal with Ex. D series Thandavaraya was negotiating from the very beginning for the help of Ayyadurai, the present plaintiff's father. According to the genealogy stated in both the litigations lyyadorai would have been the presumptive reversioner if the five branches' had become divided. In his deposition, the present plaintiff states (as having been heard by him from his father) that lyyadorai was in the first instance asked to institute the suit of 1883 as plaintiff, but. for some reason he refused and therefore Thandavaraya filed the suit in his name. Apart from the findings arrived at by the Court in that suit, it is the present case, and is also the drift of the correspondence in Ex. D series, that the story of non-division between Annamalai and Appukutti was false and false to the knowledge of the parties, and the only explanation suggested is that they must have put it forward in that form in order to get immediate possession of the properties. This is an important fact to be borne in mind in dealing with the weight due to the story then given as to the relationship, even apart from the question of the admissibility of the statements contained in Ex. A. If we look at one of the letters in Ex. D series for a moment, and one of the documents in Ex. C series for a moment, there is a curious inconsistency in the position taken up by Iyyadorai. Ex. 0 is now sought to be relied on as containing a reference to Suppa Mudaliar (the father of Ayyadurai) having purchased the shares of Kolandaivelu and Appukutti in the ancestral house. This would prima facie suggest a division in interest between these three persons.
4. It is not clear whether Appukutti here referred to is the elder Appukutti or the Chinna Appakutti. If it refers to the elder Appukutti undoubtedly Iyyadorai was in possession of documentary evidence showing that all the members of the family including the elder Appakutti had become divided from each other. In Ex. D-6 (if we are to accept it as genuine) there is specific reference made to records in the possession of Iyyadorai relating to the partition in the family. Whether it is Ex. C or any other paper we are not in a position to say. Notwithstanding these documents in his possession, if Iyyadorai had agreed to support Thandavaraya's story, that only three of the members had become divided and the other two remained undivided, he might be expected to swear to that effect. But Ex. D-12, so far as we are able to understand it, contains a curious statement, that as a witness in the suit of 1883 Iyyadorai had deposed that all the branches were undivided. We have not got the deposition itself but statements like these afford a clear proof that Thandavaraya and Iyyadorai were prepared to put forward a case which was at least in part false to their knowledge, namely, as to the alleged non-division between Annamalai and Appukutti. It is therefore difficult for us to accept without great reserve or caution any of the statements made by Thandavaraya either in Ex. A or in any of the other documents to which he was a party.
5. On behalf of the appellant Mr. Sampath Iyengar asks why Thandavaraya should go out of his way to make any reference in Ex. A to the other three branches when that was not necessary for the purpose of his case. He therefore asks us to hold that though Thandavaraya might have been prepared to utter a lie to the extent necessary for the purpose of his case, the reference to the other three brothers was not really necessary for the case and may therefore be held to be more reliable. We are not sure that this suggestion is well founded. It may well be that Thandavaraya expected the Court to act upon any deposition that Iyyadorai might give which could easily be made to appear as a statement against his interests and this could be done only if Iyyadorai could be made to appear to be a member of the agnatic family and at the same time to come forward to say that his branch and certain other branches had become divided, but that Thandavaraya's branch and Veloo Mudaliar's branch continued undivided. These are some of the considerations that detract from the weight to be given to the statements contained in Ex. A.
6. We are, however, by no means certain that the statements in Ex. A are legally admissible in evidence. Ex. A is no doubt evidence of the fact that such a relationship was put forward as early as 1883 and not now for the first time. But if it is to be used as substantive evidence in support of the relationship, it must be brought under Section 32, Clause 5, and two conditions are necessary for this purpose, namely, that the person making the statement had special means of knowledge and that the statement was made before the question in dispute was raised. We are unable to say that either of these conditions has been satisfied in this case. That Thandavaraya had special means of knowledge of the relationship must be shown by some independent evidence before Ex. A can be made admissible under Section 32, Clause 5. It will be arguing in a circle if we are asked to rely upon Ex. A itself as proof of his relationship and therefore of his special means of knowledge. We are not satisfied that there is reliable evidence of that kind in this case. Mr. Sampath Iyengar relied upon some statements in the evidence of two or three of the defendant's witnesses in this case, who speak to a relationship between Thandavaraya and Sivagami, the widow of Velu Mudaliar, the propositus, and even between Velu and Thandavaraya. But they speak only to a relationship on the mother's side, and having regard to the position of the various parties in the genealogical table, we are not prepared to hold that the relationship spoken to by the defendant's witnesses justifies the inference that Thandavaraya must have had special means of knowledge of the agnatic relationship required to be proved for the purpose of this case. Mr. Sanipath Iyengar of course relied upon the evidence of the witnesses on the plaintiff's side as well. But for reasons which we shall give later on, when dealing with their evidence, we are not prepared to act upon that evidence. The second condition, namely, that the statement must be one made ante litem motam, cannot also be held to be satisfied in this case.
7. In this connection our attention was drawn to the observation in para. 632 of Taylor on Evidence, and para. 659 under the title 'Evidence' in Vol. 13, Halsbury's Laws of England. Reference was also made to the two English cases there cited, namely, Gee v. Ward (1857) 119 ER 1335 and Freeman v. Phillips (1816) 105 ER 914. The result of these authorities is that the condition of ante litem motam involves the idea that the dispute, if any, on the former occasion must not be the same in substance as the dispute in the later suit. The expression used in one of the cases is that the statement now sought to be used will not be excluded if it merely related to some matter foreign or collateral to the matter in controversy on the former occasion. We have no objection to adopt this test; but applying it to the present case, can it be said that the matter of relationship now in controversy was not in controversy in O.S. No. 81 of 1883. Mr. Sampath Aiyangar wants us to say that all that was really necessary for the plaintiff in the former suit was to establish that Annamalai and Appukutti were undivided brothers and that the rest of the statements about relationship was really collateral. We do not think this will be the proper way of looking at the matter. Sivagami's written statement undoubtedly disputed the whole relationship alleged in the plaint, and it is obvious from Ex. B series, and even otherwise quite probable, that previous negotiations to get at the property must have brought forth a similar denial as one of the alternative grounds on which to defeat Thandavaraya's claim. In those circumstances, it was quite natural as part of the plaintiff's case to state that there were five brothers and then to add that two of them were undivided by way of justification of his exclusive claim and for immediate possession. The issue raised in the case itself shows that the factum of relationship alleged was itself questioned and also the allegation as to non-division. It does not seem to us fair to separate the story as to the three brothers from the story as to the other two brothers so far as the factum of relationship is concerned and hold that as to the other three brothers the matter was really collateral or foreign to the controversy that existed at the time of O.S. No. 81 of 1883.
8. The decision of the Privy Council in Kalka Prasad v. Mathura Prasad (1908) 30 All 510 does not afford much guidance in this case. That case no doubt accepts the principle of the English authorities that for the purpose of the rule of exclusion on the ground of post litem motam, the same thing must be in controversy before and after the statement is made. In the circumstances of that case, the Judicial Committee had no difficulty in holding that the controversies were different. But, for reasons we have already given, we are unable to take that view in this case.
9. Another authority relied on in this connexion is a judgment of the Patna High Court in Gokul Panda v. Baldeo Sukal 1928 7 Pat 90. With all respect to the learned Judges, we find it difficult to follow the reasoning of that judgment. That the law in India under Section 32, Clauses 5 and 6, Evidence Act, is in some respects different from the law in England may be granted. But the further reasoning in that judgment, that because statements made on a former occasion would be admissible even when the point at issue then might have been different from the issue in the later litigation, it would follow that a statement would be a fortiori admissible where the issues are the same, seems to us the very opposite of the principle underlying Section 32, Clause 5. We are not concerned with the admissibility of the particular document with which the learned Judges had to deal in that case. With due respect, we are unable to accept the reasons given in the judgment. Going next to the judgment in O.S. No. 81 of 1883, i.e., Ex. B, it can scarcely be contended that any opinion expressed by the learned Judge who tried that case is relevant or admissible in the present litigation, because the suit was eventually dismissed. A point was raised by Mr. Sampath Iyengar as to the admissibility of an admission stated in that judgment to have been made in that litigation, namely, that Appukutti was admitted to be the great-grandfather of Velu alias Doraisami Mudaliar. This of course carries the matter further than the written statement filed by Sivagami in that case, and the learned Judge, relying upon the judgment of the Full Bench in Seethapathi Rao Dora v. Venkanna Dora 1922 45 Mad 332, has held this statement of the alleged admission to be inadmissible. Mr. Sampath Iyengar has brought it to our notice that in view of the recent judgment of the Privy Council in Collector of Gorakpur v. Ram Sundar Mal 1934 56 All 468 some portions of the reasoning of the Full Bench in Seethapathi Rao Dora v. Venkanna Dora 1922 45 Mad 332, may require reconsideration, particularly the portion relating to the decision in Krishnaswami Iyengar v. Rajagopala Iyengar (1895) 18 Mad 73. 'We do not think it necessary in this case to discuss the effects and implications of the observations of their Lordships of the Privy Council in Collector of Gorakpur v. Ram Sundar Mal 1934 56 All 468, because at the most the admission recorded in Ex. B only establishes that Appukutti was the great-grandfather of Velu Mudaliar and does not help the present plaintiff to establish that his grandfather was a brother of Appakutti Mudaliar. That has got to be decided with reference to the other evidence in the case.
10. Before we leave this litigation of 1883, we may add that, in view of Sivagami's age at the time of the alleged claim of non-division, and the right to immediate possession which the reversioner intended to put forward, it is difficult to understand the delay of nearly eight years before the suit was instituted. Even according to the statements then made in the plaint, and according to what now appears in the course of the present litigation, the properties in Sivagami's possession were substantial and yielding a considerable income and Thandavaraya was by no means very far away. That unexplained delay and the undeniable fact that the story of non-division was being falsely put forward, make it impossible for us to accept the statements made in the course of that litigation as safe or reliable. Their Lordships after discussing the other evidence in the case continued. We agree with the learned Subordinate Judge that the plaintiff has not made out the relationship alleged by him. The appeal accordingly fails and is dismissed with costs of the contesting respondents, one set of costs to be distributed amongst them in proportion to their interests. The appellant will pay to the Government the court-fee payable on the memorandum of appeal.