This is an appeal from a decree of the High Court of Judicature at Allahabad dated 12th February 1929, which reversed a decree of the Subordinate Judge of Aligarh dated 2nd June 1925, and dismissed the suit. The suit was instituted by the appellant on 7th September 1923, claiming absolute possession of an estate called Biswan. The present respondent is now defendant as representative of his brother, the original defendant, who died pending the suit, and is in possession of the estate.
The following table will conveniently show the alternative pedigrees maintained by the parties:
The main question at issue turns on the true parentage of Matmatangadhwaj Prasad Singh alias Misrilal (hereinafter called "M"). The appellant maintains that he was the son of Shivbaran Singh and Mt.Ram Kunwar, while the respondent maintains that his parents were Thakur Garurudhwaja Prasad Singh (hereinafter called "G.") and Rani Basant Kunwar. On the death of his father. Gir Prasad Singh in 1880, G. took possession of the estate as owner and held it till his death in 1912. On 30th June 1886, his brother, Saparan-dhwaja Prasad Singh, brought a suit to recover half of the estate from him on the ground that it was a joint estate. The Subordinate Judge dismissed the suit on 14th January 1889, on the ground that the estate was impartible and descended by a custom of primogeniture. On 7th February 1893 the High Court reversed this decision, but their judgment was reversed by this Board on 27th June 1900, and the estate was finally held to be impartible. On the death of G in 1912 mutation was effected into the name of M without objection, and M held the estate without challenge until his death in 1923. His elder son's application for mutation was granted against objection taken by the present appellant, who was left to vindicate his claim by ordinary suit, and the present suit was instituted by him on 7th September 1923.
If M was not the son of G the appellant's father Hamir Singh was entitled to the estate on the death of G, and he died in October 1918, "without having claimed it; the, appellant would then have been entitled to it, but he was under four years old at the time of his father's death. The parties are agreed that M was born within a year or two after July 1886. The appellant's case is that he was the son of Shivbaran and his wife and was born at Jarki, and that at some indefinite time later, by an arrangement, he was taken by G and his wife, Rani Basant Kunwar, who was Shivbaran's sister, and was thereafter treated in every way as their natural son. The respondent's case is that M was the son of G and was born of Rani Basant Kunwar at Agra, while she was resident there for a period of a few mouths for medical treatment. Extensive evidence, both oral and documentary, was recorded at the trial, and it will be convenient to deal with the documentary evidence in the first place. The first group of documents relates to three litigations, subsequent in date to the decision of the High Court in February 1893, that the estate was partible and prior to the reversal of that decision by the Board in June 1900. In the first suit (102 of 1893) M was the plaintiff, and defendant 1, Madhuri Saran, a mortgagee, denied in his written statement dated 23rd August 1893, that M was the son of G; on the same day the suit was allowed to be withdrawn on the ground of defects in the frame of the suit. Their Lordships agree with both the lower Courts that Madhuri's denial is not competent evidence of the fact, as there is no proof of special knowledge on his part. But while one may speculate as to an ulterior motive for the withdrawal of the suit, their Lordships are of opinion that no such inference may legally be drawn from it. Accordingly this document is of no evidential value. The other two suits, Beni Ram's suit (147 of 1893) and M's suit (248 of 1896), to set aside Beni Ram's decree, are merely of value as to two facts which are not now in dispute", namely, that M was also known as Misrilal, and that, during G's life, M was consistently treated by him as his son, which is consistent with the case of both parties.
The second group of documents is connected with suits filed during the period from June 1900, to the death of G in 1912. Two suits (180 of 1900 and 43 of 1901) were filed by a mortgagee, Khundan Singh, in which G, M and Saparandhwaja were impleaded as defendants and which were tried together. In his written statement in the first suit dated 15th January 1901, Saparandhwaja denied that M was the son of G. Their Lordships agree with the comment of the High Court:
"It is noteworthy that even Sapar Dhwaj, who ought to have known the true facts, did not expressly assert that Mat Matang Dhwaj (M) was the son of Kunwar Sheo Baran Singh who was then alleged to be his maternal uncle. The point not being a material one was not made the subject matter of any issue at all. The Court took it for granted that Mat Matang Dhwaj (M) was the son of Garud Dhwaj (G). We find this description both in the judgment and the decree. In the judgment there is ever, no reference to the denial by Sapar Dhwaj of the parentage of Mat Matang Dhwaj (M), which was assumed to be correct."
It should be added that neither G nor M defended the suits. The next suit was one by Saparandhwaja against G for maintenance (152 of 1903) in which he obtained a decree for maintenance at the rate of Rs. 200 per mensem. The next suit (100 of 1910) relates to a mortgage granted by Durjan Lal, father of Shivbaran, over the joint family property, to which the plaintiff, Mt. Gomti, had acquired right. Shivbaran had died in 1907 and the defendants in the suit were his brother, Bhagwan Singh, and Jaswant Singh and Misrilal, described as sons of Shivbaran. Decree was granted ex parte in the suit, and later, on 26th March 1912, the three defendants signed a vakalatnama for the purpose of getting the suit restored. On 18th May 1912, the suit was restored to its former number and the ex parte decree was set aside. From that time M took no part in the proceedings and although his name was in the decree granted, admittedly it could not affect him personally. In the vakalatnama he is described as:
"Kunwar Misrilal, alias Matmatangadhwa; Prasad Sing, son of Thakur Garudadhwaj Prasad Singh."
and he signs as :
"Kunwar Matmatangadhwaj Prasad Singh alias Misri Lal."
Their Lordships agree with the High Court that Mt. Gomti's suit and the proceedings following thereon do not in any way amount to an admission by M that he was the son of Shivbaran and not the son of G. It was during the course of these proceedings that M had taken possession of the estate without objection on G's death. Reference may be made at this point to two powers of attorney granted by G to M in January 1905, and February 1907. These are consistent with the appellant's case, but their Lordships find no ground for the appellant's suggestion that they were executed in order to manufacture evidence as apparently the estate was taken over by the Court of Wards in 1907, as stated in Hamir Singh's plaint and the Subordinate Judge's judgment in suit No. 88 of 1913, and the exact date may well have been later than February. Accordingly these powers of attorney are not of material value.
The last group of documents, which relate to the period after G's death in March 1912, are undoubtedly of vital importance. If the appellant's case is well-founded his father, Hamir Singh, was entitled by survivance to the estate. He lived until 1918, and not only failed to claim the estate but acted in a way inconsistent with any such claim. The appellant endeavours to explain and excuse this by evidence of Hamir's poverty, ill-health and weak-mindedness. On 6th June 1912, mutation of names was ordered in favour of M as the heir of G, without any objection taken, a significant omission on the part of Hamir. On 14th April 1913, Hamir filed a suit (88 of 1913)against M for the full maintenance of Rs. 200 which his father had obtained, the Court of Wards having offered him only Rs. 100 per mensem. The suit was dismissed by the trial Judge and also by the High Court, and be thereafter drew the maintenance of Rs. 100 until his death. In the first place, a claim for maintenance is inconsistent-with a claim for ownership of the"estate. In the second place the-plaint, which was verified by Hamir ' according to his own knowledge,"contains admissions which directly negative the appellant's case. M is described as the son of G and as the "gaddinashin"of the Biswan estate, and Hamir was at pains to insert a pedigree, showing M as the son of G.
As regards Hamir's condition, their Lordships agree with the learned Judges of the High Court in their comments and criticism of the evidence and of the views expressed by the Subordinate Judge. It may be further noted that, apart from the two doctors, not one off the witnesses who spoke as to Hamir's-health, and among whom was his sister, suggested that he was weak-minded or unable to understand and transact affairs. Their Lordships are unable to bold it proved that Hamir did not understand his verification of the plaint in April 1913. A large number of receipts-by Hamir for his maintenance allowance-were produced. These are of some general value as being inconsistent with Hamir's ownership of the estate even while the Court of Wards was in charge. The estate was released in February 1918, and the receipt dated 20th October 1918, expressly admits M to be the son of G ; but Hamir died of influenza within five days thereafter, which may modify the value of this admission. It is however in line with the attitude from which Hamir never departed.
After his father's death the appellant,, through his mother, Mt. Raj Kunwar, filed a suit for maintenance (369 of 1919) against M, which was compromised on 22nd January 1920, for an ex gratia allowance of Rs. 20 per mensem to the appellant as a member of M's family. Their Lordships agree with the learned Judges of the High Court in their comments on the value of the admission by the appellant's mother of M's title to the estate as the son of G. To sum up the documentary evidence as a whole,, the only evidence in favour of the appellant is : (a) the denial by Saparandhwaja in 1901 that M was the son of G, and (b) any favourable inference to be drawn from the proceedings in the Gomti suit of 1910. These at least show that doubts were then current to some extent as to the parentage of M, but that may be said to enhance the value of Hamir's conduct after the succession opened on G's death in 1912 and the admissions by the appellant's mother in 1919. In their Lordships' opinion, it would require very clear and convincing oral testimony to rebut the documentry evidence in the respondent's favour and in particular the admissions in the main tenance suits of 1913 and 1919.
Their Lordships find it unnecessary to deal with the oral evidence in detail, as they are in substantial agreement with the detailed criticizm of that evidence by the learned Judges of the High Court and their criticizm of the treatment of that evidence by the Subordinate Judge. In particular, their Lordships are of opinion that the learned Subordinate Judge has erred in two important respects: viz. in not attaching sufficient weight to the documentary proof of admissions in the maintenance suits of 1913 and 1919 and in placing the burden of proof on the respondent. One passage may be cited from the learned Judge's opinion, namely :
"All the above witnesses (i. e., that the plaintiff's) were in some way or other in a position to have special knowledge as to whether defendant's father was a son of Shivbaran Singh or whether he was a son of Garudadhwaj, prasad Singh (G). I see no reason to disbelieve them in spite of the fact that their evidence is certainly open to just criticizm. From the very nature of the case, plaintiff could not have given better evidence. He could not be expected to have called any witnesses from Jarkhi to depose in his favour. The facts in question being within the special knowledge of Rani Basant Kunwar, the onus of proving them was on the defendant."
The concluding sentence appears to rest on an erroneous application of S. 106, Evidence Act, which only applies to parties to the suit, of whom Rani Basanta Kunwar was not one. Their Lordships apprehend from these observations that, if the learned Judge had given sufficient weight to the documentary evidence and had held the burden of proof to be on the plaintiff, her would have found difficulty in holding the oral evidence to be sufficient to discharge that burden.
It is right to refer to the absence of certain evidence, which the Subordinate Judge regarded as justifying inferences unfavourable to the respondent. As regards the horoscope and the books of account there seems little doubt that these existed, and that, if still available and produced, they would have been of importance as evidence. But the circumstances under which the Court would be entitled to draw inferences unfavourable to the respondent are provided for by S. 114 (g), Evidence Act, and the Court must be satisfied that the evidence could be produced. The appellant has not attempted to prove that the account books are in existence and could be produced. It is most regrettable that the right of discovery is not fully taken advantage of in such a case as this, were documentary evidence, if it is still available, might afford valuable evidence. But the appellant's failure to exhaust this sourer cannot be used against the respondent Similarly, in the case of the horoscope, Hani Basant Kanwar named the person in whose possession it might be, but the appellant made no attempt to pursue enquiries as to its existence. With regard to the birth register, it is sufficient to say that it was admitted before their Lordships that registration was not compulsory in Agra at the material period, and this point is of no value.
On the whole matter, their Lordships are of opinion that the appellant has failed to prove his case, and they will humbly advise His Majesty that the decree of the High Court, dated 12th February 1929, should be affirmed and the appeal dismissed with costs.