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Nand Kishwar Bux Roy Vs. Gopal Bux Rai and Others - Court Judgment

LegalCrystal Citation
CourtPrivy Council
Decided On
Case NumberPrivy Council Appeal No. 33 of 1937 (From Patna: Patna Appeal No. 98 of 1934)
AppellantNand Kishwar Bux Roy
RespondentGopal Bux Rai and Others
Advocates:J.P. Eddy and M.H. Rashid, for Appellant; J.M. Pringle, for Respondents. Solicitors for Appellant , Nehra and Co., Solicitors for Respondents, Douglas Grant and Dold
Cases Referred

(1) Nirman Singh v. Lala Rudra Partab Narain Singh, (1926) 13 AIR PC 100=98 IC 1013=1 Luck 389=29 OC 316=48 All 529=53 IA 220 (PC).

evidence act (1 of 1872) - section 112 of the joint family of surendra and himself, devolved on him by survivorship, on the death of surendra and that plaintiff 1 was alone the rightful owner thereof under the mitakshara law and by virtue of the customs of primogeniture and female exclusion, which governed the estate. he also asked for possession. plaintiffs 2 to 7 were subsequently brought on the record as assignees under a permanent lease obtained from plaintiff 1, in consideration of amounts lent for financing the litigation. the defendants were : 1, binodini devi, the widow of surendra (shortly described as the dulhin); 2, mr. coutts, the manager of the estate appointed under the chota nagpur encumbered estates act; 3 to 8, the members, near and remote, of the said joint family; 9, nand kishwar (appellant.....


This is an appeal from the judgment and decree of the High Court of Judicature at Patna dated 2nd March 1936, which reversed the judgment and decree of the Additional Subordinate Judge of Palamau dated 17th March 1933, and decreed the suit of the plaintiffs respondents 1 to 7 for recovery of possession of an impartible estate called Deogan estate, in succession to the last holder Surendra Bux Rai (hereinafter called Surendra). The suit was instituted on 8th March 1924, by the plaintiff (respondent 1) claiming a declaration that the property in the suit, being an ancestral impartible estate of the joint family of Surendra and himself, devolved on him by survivorship, on the death of Surendra and that plaintiff 1 was alone the rightful owner thereof under the Mitakshara law and by virtue of the customs of primogeniture and female exclusion, which governed the estate. He also asked for possession. Plaintiffs 2 to 7 were subsequently brought on the record as assignees under a permanent lease obtained from plaintiff 1, in consideration of amounts lent for financing the litigation.

The defendants were : 1, Binodini Devi, the widow of Surendra (shortly described as the Dulhin); 2, Mr. Coutts, the manager of the estate appointed under the Chota Nagpur Encumbered Estates Act; 3 to 8, the members, near and remote, of the said joint family; 9, Nand Kishwar (appellant before the Board), who claimed to be the posthumous son of Surendra born of defendant 1, and 10, Sham Sunder Kuer, the daughter of Surendra, born of defendant 1. It is to be noted that the mother of Surendra, shortly described as the Rajmata, was not a party to the proceedings. Certain issues were raised, out of which, the only one which now survives for the consideration of the Board is issue 4, viz., whether defendant 1 gave birth to defendant 9 as alleged by the defence. On this issue, the trial Court held in the affirmative. The High Court has differed, Courtney-Terrell, C. J. and Dhavle J., holding in the negative and Agarwala J. in the affirmative. From this decision an appeal has been preferred to His Majesty in Council. It has been found that the Deogan estate, though impartible, is the property of the joint Hindu family, of which Surendra and respondent 1 were members, that it is an impartible jagir governed by the rule of primogeniture under the Mitakshara law and that respondent 1 would be entitled to succeed by survivorship to the estate, unless the appellant proved that he was the son of Surendra. The findings on these issues are no more in controversy.

The appellant's counsel argued at the outset that the burden of proving that the appellant was not the son of Surendra lay upon the plaintiff (respondent 1). Reliance was placed on the pleadings and certain Sections of the Evidence Act. It was urged that as the plaintiff was suing for possession from the appellant who was in possession at the date of the suit, the suit was in the nature of an ejectment action and S. 110, Evidence Act, applied. Ss. 101 and 112 of that Act were also relied upon. The last Section however can have no application to the facts of this case, where the maternity of the appellant is in dispute and not his paternity. It was further argued that as the plaintiff made in the plaint charges of fraud, it is for him to prove them. The simple answer to these arguments is first, that it has not been satisfactorily proved that at the date of the suit, 8th March 1934, the appellant was in possession of the property. It is enough to refer in this connection to the clear admission of the Dulhin, the appellant's mother and guardian ad litem, made in her objections to the appointment of a receiver dated 20th September 1925, that the estate was released from the management of the Encumbered and Wards Estate Office in April 1934, which would be after the date of the suit. The entry relied upon by the defendant in the extract from the survey register confirms this view. It shows that the name of the Dulhin, the mother and guardian ad litem of the appellant, was entered as proprietor of the estate in the year 1924-25 and as the official year would commence on 1st April and the number of the entry is 568 suggesting its lateness in the year, it is clear beyond doubt that, at the date of the suit, neither the appellant nor his mother on his behalf was in possession of the property.

Apart from this, which is a complete answer to the appellant's contention it is hardly possible to apply to this case, where the dispute substantially relates to two rival titles, the principles governing ejectment suits and even if it were proved that the appellant was technically in possession for a few months under a paper entry, that fact, in their Lordships' opinion, would furnish very little indication of the superiority of his title over his opponent's. As has been frequently held by this Board, mutation proceedings are merely in the nature of fiscal inquiries, instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of the property may be put into occupation of it with the greater confidence that the revenue for it will be paid: 53 IA 220 (1) at p. 227. The provisions of S. 106, Evidence Act, likewise require that as the facts relating to the pregnancy of the Dulhin and of the appellant's birth are within her knowledge, the burden lay on her to prove them. As for the fraud alleged in the plaint, it is irrelevant to the plaintiff's claim, which is based on his undeniable relationship to the last holder of the estate. Their Lordships are therefore of the view that it lay upon the appellant to prove his case beyond all reasonable doubt.

Turning to the High Court's judgments, it does not appear that the case was decided on the grounds of onus. As the learned Chief Justice observed, the question of onus of proof was of no great importance, because both sides had entered into evidence. There are likewise enough indications in the judgments of the other two Judges to show that the facts proved by the evidence and the probabilities of the case formed largely the basis of their decision.

The material facts of the case are as follows: On 7th April 1922, Surendra, the last holder of the Deogan estate, committed suicide at his residence at Nawa. He was then 22 years old. He had become infatuated with a mistress, whom he was keeping in his house. In answer to the protests raised against such conduct, he killed first the mistress and then himself. He left a widow, the Dulhin, defendant 1, and a daughter aged 2, who was defendant 10 (respondent 8). He also left a mother, the Rajmata. At the time of his death the Deogan estate was in the charge of a manager Mr. Coutts, appointed under the Chota Nagpur Encumbered Estates Act (Act No. 6 of 1876). Owing to this fact, it was necessary for the authorities to decide the question of succession. This involved an immediate inquiry as to whether the Dulhin was pregnant. The Deputy Commissioner Mr. Elmes and Mr. Coutts came to Nawa on the day after the death. They were then informed both by the Rajmata and the Dulhin that the latter was pregnant. Previous to this, they had sent a boy called Mona Bux, son of defendant 4, to inquire and report and it is alleged on behalf of the appellant that both the Rajmata and the Dulhin informed the boy that the latter was pregnant. Mona Bux is said to have reported the fact to the authorities. Petitions were subsequently presented to the authorities on behalf of respondent 1 denying the pregnancy.

A medical examination of the Dulhin was suggested. The Dulhin and the Rajmata did not agree to such examination, on the ground, it is said, that if held in Nawa or near about, it would, they feared, affect the prestige of the family. Rabindra Deo, a cousin of the Dulhin, was sent by the Dulhin's mother-Dilraj Kumari-to see her on the death of her husband and, it is alleged, that, on that ground and also because she was pregnant, to take her if possible to her mother's house in the Bamra State of Orissa. On this becoming known, more insistent pressure was brought to bear on the Rajmata and the Dulhin to consent to the latter's medical examination. As before, they refused to agree but ultimately consented to such examination being held at Gaya in the course of the Dulhin's journey to her mother's residence. Thereafter commences the story of an interesting itinerary, which, for the purpose of considering the evidence, may be divided, as the lower Courts have done, into incidents occurring at five successive stages as follows: (1) Incidents prior to and shortly after the death of Surendra. (2) Those at Gaya. (3) At Bamra. (4) At Calcutta. (5) Post-Calcutta incidents.

(1) At Nawa. - The appellant's evidence about incidents which happened at Nawa before and shortly after the death of Surendra is briefly as follows: The Rajmata says that about a month before the death of Surendra, she learned from the Dulhin that she was pregnant and communicated the information to the Dulhin's mother. During this period, two ladies related to the family, Sampat Raj Kuer and Ganesh Kuer, paid visits, both before and after the death of Surendra; there was no surreptitious concealment of the news about the Dulhin's pregnancy; she gave the information at the earliest opportunity to the authorities who made inquiries into the matter. The appellant's evidence principally consists of the testimony of the Rajmata and of the two ladies Sampat Raj Kuer and Ganesh Kuer. The Dulhin has not given evidence in the case. Sampat Kuer says that she paid a condolence visit to Nawa five or six days after the death of Surendra, when she made inquiries of the Dulhin and found from her answers and the nausea she was having that she was pregnant; she visited again in July-August and observed that she was pregnant. Ganesh Kuer's evidence is much to the same effect. She paid three visits, the first, some time in Fagua (13th February-13th March), when both the Rajmata and the Dulhin said that the latter was pregnant. She thereafter paid two visits, one after Surendra's death, when she saw that the Dulhin was having nausea and was told that she was pregnant. During her third visit in May-June, she saw herself that the Dulhin bore signs of pregnancy. The trial Judge has very strongly relied upon the evidence of the two ladies. He had the advantage of hearing their evidence given and of observing their demeanour, which the High Court had not. They were distantly related to both the plaintiffs' and defendants' side and are not interested in dishonestly supporting the defendants' side against the plaintiffs-a taint which may attach in a large measure to the Rajmata's evidence.

Their Lordships feel compelled to observe that if matters had stood there and the issue had not been clouded by many suspicious acts and omissions disclosed at the later stages of this case as hereinafter stated, they would have found considerable difficulty in rejecting this evidence, so strongly relied on by the trial Judge. In the present case however it is difficult to judge of the truth or falsehood of the evidence in compartments, as the trial Court appears to have done. When dealing with a version spread over several consecutive stages, it is inevitable that careful regard should be had to them all and their truth or falsehood tested on a review of the entire case. The incidents have to be judged in the light of what preceded and followed; and it would be an error to segregate the incidents and test their veracity in isolation.

The concurrent judgments of the High Court have rejected this evidence primarily on the ground that it would be impossible, even for the Dulhin and the Rajmata, to discover the pregnancy at such an early stage. The learned Chief Justice has strongly relied upon the circumstance that taking 8th of December 1922 as the date of birth and the fact that the birth was normal (as disclosed by the evidence) it would be difficult to accept the possibility that, at any stage prior to 7th April, there would be any signs by which either the Rajmata or the Dulhin could have detected the pregnancy. The difficulty of accepting this view is that the witnesses gave evidence many years after the incident. They were ladies of advanced age untrained to accurate observation or memory of time and dates and it is more than probable that in giving definite dates or periods, they exaggerated their impressions or made mistakes. It is undoubtedly correct that, taking the rule of 280 days as the period of normal gestation, the insemination took place on or about 3rd March. Their Lordships' attention was invited to medical treatises to show that, in the case of sensitive persons, nausea appears as the result of pregnancy shortly after conception, though ordinarily it occurs after two months and never after four months. It is not therefore absolutely impossible that the Dulhin or the Rajmata, who was apparently experienced in such matters, may have discovered the earliest signs of pregnancy. There is no evidence as to when the Dulhin's last period was passed. If it was shortly after the insemination, and three weeks had passed after such disappearance, it was not difficult for a shrewd and experienced lady like the Rajmata to suspect the pregnancy, and, in the honest belief that it was so, she gave currency to the news. One point however which weakens the defendant's case is the omission to produce the letter by which the Rajmata says she communicated the happy news to Dilraj Kumari, the Dulhin's mother, about a month before Surendra's death. There is likewise a noticeable discrepancy on this point between the evidence of the Rajmata and of Dilraj Kumari.

On the other hand, the plaintiff's evidence relating to this period is not at all helpful. It is practically worthless. Plaintiff 1 knows nothing about this matter not does defendant 4, who is the soul of this litigation on the plaintiff's side. Plaintiff 1 relies upon the information of his wife, who is not examined in this case, although her name was mentioned amongst the witnesses to be called on the plaintiff's behalf-. Defendant 4 similarly relies upon the in- formation of his wife and aunt, who have not been examined. It is proved that the two families were living in two different compartments of the same house and the ladies upon whom the plaintiff relies must have had excellent opportunities of observing the Dulhin during this period. They have not ventured to give evidence. Another witness was examined, a maid servant, Thakuri Kaharin, who says, from her observation, that the Dulhin was not pregnant. Gopal Ojha, who claims to be the Guru of the family testifies similarly. The story told by these two witnesses is palpably false and no attempt was made before their Lordships to resuscitate these two witnesses rejected by the lower Courts.

(2) At Gaya-Leaving this evidence in the state described above, it will be helpful to turn to the next group of events to ascertain how they affect the probability of this evidence being true. These are the incidents at Gaya, mainly the medical examination held by a lady doctor, first on 5th July 1922 and subsequently in February 1926. What happened at Gaya can be briefly told : On 4th July 1922, the Dulhin, the Rajmata, Rabindra Deo, cousin of the Dulhin and Sitaram, a son-in-law of the Rajmata, with attendants and servants (including one Sukumary) forming one party, and Mr. Coutts and Mona Bux, since deceased, forming another travelled by the same train to Gaya. Mona Bux was about 14 years old and owing to that fact, it was intended that he should have access to the zenana in order to identify the Dulhin before the examining doctor. It appears that at Gaya the Rajmata's party stayed at the rest house and Mr. Coutts and Mona Bux stayed elsewhere. Mr. Coutts arranged for a lady doctor, Miss De Menezes, the then Medical Superintendent of the Lady Elgin Hospial at Gaya, to examine the Dulhin at the rest house. On 5th July, Miss D. Menezes examined a woman, alleged by the defence to be the Dulhin, at the rest house and found her to be five or six months pregnant. The lady doctor gave a certificate in the following terms :

Gaya. - This is to certify that I have examined Dulhin Binodini Devi, identified as such by Lal Rabindra Nath Deo of Deogarh and Babu Sitaram Singh of Chogam and find her to be between five or six months pregnant.

(Signed) Miss L. D. MENEZES, F.R.C.S.I.

Gaya, 5th July 1922.

If matters had stood there, this certificate would have placed the defence case beyond all reasonable doubt. Here was a certificate given by an independent and competent lady doctor, stating in clear terms the matter in controversy. But the matter does not end there. In February 1926 the same lady doctor examined the real Dulhin and came to the conclusion that the person she examined on 5th July 1922 was another woman, completely different in appearance from the Dulhin. A doubt is thus cast on the value of the certificate by its very author and the question arises how far Miss De Menezes' opinion and veracity are to be trusted. Miss De Menezes was examined on three different occasions : on commission on 21st September 1927 at Gaya, again on commission at Cawnpore on 1st September 1929 and lastly before the High Court on 24th October 1935. The High Court by a majority has relied upon her evidence very strongly. The judges had the advantage, which the trial judge had not, of seeing her demeanour, in the box and it will be difficult to reject their appreciation, except upon grounds which clearly prove that their view was wrong. (His Lordship then discussed evidence and concluded.) For all these reasons, their Lordships find it difficult to accept the defendant's version as proved and they are compelled to accept the conclusion at which the majority judgment of the High Court had arrived.

In doing this, their Lordships feel constrained to observe that they are fully aware of the fact that the evidence adduced by the plaintiff has not at all been helpful and that in parts it is not even truthful or convincing. He has not been able to substantiate the theories, which he took upon himself, in their Lordships opinion unnecessarily, the burden of proving, for instance, that a woman called Nathunia Kaharin impersonated the Dulhin at Gaya and another woman, the wife of one Lochan Bhuinya impersonated her at Calcutta and her child was shown to Dr. Hamilton-Brown and that on the subsequent death of that child at the age of 1 years, the child of a third person, called Jamadur Rai has been put forward. These allegations have not been satisfactorily proved. Their Lordships are equally well aware that there are many difficulties, to some of which they have already referred, in accepting some of the suggestions made on the plaintiff's side; but, as Dhavale J. rightly observed in his judgment, it was for the defence to prove beyond all reasonable doubt that the appellant was the son of Surendra, born of the Dulhin at Calcutta on 8th December 1922. It was not incumbent on the respondents to disprove the appellant's case and their failure to support their own theory does not prove the truth of his. Their Lordships agree with the view of the majority judgment of the High Court and are of opinion that the appeal should be dismissed and the decree of the High Court affirmed. The appellant will pay the first respondent's costs of this appeal. Their Lordships will humbly advise His Majesty accordingly.

Appeal dismissed.

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