TaxTMI 
TaxTMI 
1983 (4) TMI 233
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.... was the admitted owner of the properties. Several persons came forward with rival claims of being the heirs to the properties left by the Maharaja which consisted of immovable and moveable properties, such as lands, houses, jewellery, etc. As a result of the hot contest by each of the claimants, one suit was filed at Varanasi being T.S. No. 3/55. That suit was filed by one Ram Bux Singh who claimed to be the nearest reversioner of the late Maharaja. That suit, however, appears to have died its natural death during the preliminary stages and was ultimately withdrawn on April 9, 1956, leaving only three claimants in the field. Another suit was filed on 16th August 1955 in the Court of Sub-Judge, Patna which was registered as T.S. No. 44/1955. The claimant in this suit was one Suresh Nandan Singh of Sheohar who had put in his claim before the Board of Revenue which had taken over the management of the entrie properties after the death of the widows of the Maharaja. The third suit being T.S. No. 25/58 was filed by two sets of plaintiffs who had entered into some agreement inter-se. That suit was filed in the Court of Sub-Judge, Patna on April 11, 1958. In that suit, the main claim ....
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.... Janki Kuer was declared incompetent to manage the estate, as a result of which the management of the entire estate was taken over by the Court of Wards. As the properties in question were situated in both the States of Bihar and Uttar Pradesh the Courts of Wards of Bihar and Uttar Pradesh jonitly carried on the management of the properties. Maharani Janki Kuer resided at Allahabad and died childless on November 27, 1954. After her unfortunate death or even before, interested persons started casting their covetous and avaricious eyes on the huge properties left by the late Maharaja and litigation started by putting forward rival and conflicting claims thus making strenuous efforts to "turn chance into good fortune". The last and inevitable step of the drama long in process reached its climax with the death of Maharani Janki Kuer when as many as four suits, as mentioned above, were filed claiming the properties of the Maharaja, some as reversioners and some as putri ka putra, etc. We would like to make it clear that the three appeals, i.e., civil appeal Nos. 494 to 496 of 1975, have been filed by the State of Bihar arraying the plaintiffs and other claimants as the respond....
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....made a solemn promise to be loyal to the Company, as a result of which negotiations started between the Government and Raja Jugal Kishore Singh regarding the estate in question and ultimately he was allotted the Zamindari of Majwha and Simrown which formed part of the Bettiah Raj estate and Babra and Maihsi were left in the possession of Srikishen Singh and Abdhoot Singh. The East India Company had formally announced this arrangement by a decision dated July 24, 1771. Soon thereafter, there was some dispute between Raja Jugal Kishore Singh and the Company, as a result of which he was again dispossessed by the Company as he failed to pay the Government revenue. Thus, the entire Sirkar of Champaran passed into the possession of the Government and was held by small farmers on temporary settlements. Raja Jugal Kishore Singh received an allowance for maintenance and died sometime in the year 1783, leaving a son named Bir Kishore Singh who was succeeded by his eldest son, Maharaja Anand Kishore Singh in 1790. Upon his death, leaving no issue, he was succeeded by his younger brother, Maharaja Nawal Kishore Singh who was succeeded by his eldest son, Rajendra Kishore Singh who was ultimatel....
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....gaddi of Sirkar as the adopted son and successor to Raja Dhrub Singh and not as his daughter's son, Ambika Prasad being nearest among the reversioners was entitled to succeed to the estate after the death of the widows. The suit of Ambika Prasad Singh was dismissed by the trial court as also by the special Bench of the High Court and some appeals were brought to this Court by certificate. The said appeals, being civil appeal Nos. 114-119 of 1976, in Shyam Sunder Prasad Singh & Ors. v. State of Bihar & Ors.(1) came up for hearing before a Bench consisting of P.N. Bhagwati, A.P.Sen and E.S. Venkataramiah, JJ. This Court dismissed the appeals and rejected the claim of Ambika Prasad Singh holding that as Raja Jugal & Kishore Singh could not in law be considered as putri ka putra his claim to the estate left by Raja Dhrub as being the nearest reversioner, cannot succeed. The claim of Radha Krishan Singh and others in suit No. 5 of 1961 was left to be decided by another Bench and it is these appeals that have now been placed before us for hearing. However, it is not necessary for us to make a deeper probe into the early history of Bettiah Raj because in the instant case the rel....
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....of s. 32 (5) or s. 13 of the Evidence Act. (b) They must not be hit by the doctrine of post litem motam. (c) The genealogies or the claim cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible. (d) Where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved. We shall now proceed to scan and analyse the evidence in the light of the principles adumbrated above referring to the important authorities on the questions arising out of the evidence, oral and documentary, Although both the parties have cited a very large number of decisions we would not like to load or crowd this judgment with all the authorities cited before us and would confine ourselves only to the important and relevant authorities of this Court and those of the Privy Council and we shall refer to the judgments of the High Court only if there is no decision of the Privy Council or of this Court directly in poin....
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....he eye of law the genealogy cannot be said to have been fully proved. In the instant case, although the plaintiffs have produced oral and documentary evidence to show that Ramruch Singh and Debi Singh were brothers being the sons of Bansidhar Singh this position was not accepted by the trial court as also by M.M. Prasad, J. who dissented from the other two Judges constituting the Special Bench who had taken a contrary view and had held that the plaintiffs had fully proved the entire genealogy set-up in the plaint. This, therefore, makes our task easier because we need not discuss in detail the evidence and documents to show the connection of the plaintiffs upto the stage of Gajraj Singh though we may have to refer to the evidence for the purpose of deciding the main issue, viz., whether or not Gajraj Singh was the son of Ramruch Singh and Ramruch Singh a brother of Debi Singh and son of Bansidhar Singh. Before going into the evidence, we would like to extract the findings of the courts below on the question of title. The trial court had clearly held that the plaintiffs had not been able to prove any linkage or connection between Ramruch and Bansidhar but the majority judg....
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.... of Title Suit 5 have failed to prove the genealogy set up by them and thus they have failed to prove that they are the nearest heirs of Maharaja Harendra Kishore". (Vol. VIII, p. 533, para 533) There is, however, one common factor between the majority and the dissenting judgments and it is that the plaintiffs have proved beyond reasonable doubt their connection with Gajraj Singh. This, therefore, has reduced the controversy to the bare minimum and has shortened the arena of the dispute that we are called upon to consider. Even so, this short controversy itself is a stupendous task to determine and we will have to approach this aspect with great care and caution, deliberation and circumspection because two learned Judges of Patna High Court had negatived the plea of the defence and accepted that of the plaintiffs. In order to understand the various shades and aspects of the case and its historical background, it may be necessary to extract the plaint genealogy even at the risk of repetition. In fact, the plaintiffs themselves did not append any genealogy to their plaint but G.N. Prased, J. has constructed a genealogy, based on the recitals in the plaint, for the purpose o....
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....--------- Sheogulam Bhoala Singh Deep Narain Jagdamba Prasad Nand Kumar Jagat Bahadur (childless) = Amol Kuer -------------------------------------- Nand Prasad (Adopted) Bansgopal Hari Kishore Ram Sankata | | (childless) Kumar Prasad Ram Chandra | (childless) (childless) (Living) ----------------------- Bhagwati Prasad Ilaka Singh (D. 29th (childless) June, 1957) ---------------------------------------------------------- Radha Sri Ram Sheo Ashta Maina Ram Bhagi- Krishna Krishna Krishna Krishna Bhuja Kesari rathi (plaintiff) = Shail Kumari --------------- ------------------ Vidya Malti Parvati Meera Devi Sagar Devi (Daughter) (Daughter) (Son) (Daughter) appearing for the plaintiffs of Title Suit 25 as also the State of Bihar have clearly stated before us that they do not dispute their genealogy up to that point. The finding of the learned Subordinate Judge is also to the effect that they have proved their genealogy up to that point. The point does not, therefore. need a detailed consideration. ... ... ... 378. The other documents, however, prove that Bhagwati, the father of these appellants, was a descend....
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....his point further when we deal with the merits of the document. We agree with the unanimous view of the High Court that Ex. J is admissible. In fact, the said Exhibit itself would show that it was written by a serishtadar, a Government officer, on the direction of a very high governmental authority who had asked him to make a detailed enquiry regarding the possession of various Zamindars and submit a Report to the Government about possession. We are, therefore, of the opinion that all the conditions of s. 35 of the Evidence Act are fully complied with and fulfilled, and it is difficult to accept the conclusion that the document is not admissible either under s. 35 or under any other provision of the Evidence Act. It is a different matter that even though a document may be admissible in evidence its probative value may be almost zero and this is the main aspect of the case which we propose to highlight when we deal with the legal value of this document. Before, however, making any comment on the probative value of the document in question it will be necessary to peruse and analyse its important contents and their legal effect on the case put forward by the parties. We might mention ....
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....g a private revenue agent of a Zamindar, who also maintains kutcheri (private office) where papers relating to realisation or rent and revenue are kept, cannot be ruled out. The designation of Durga Prasad therefore, does not conclusively prove that he was a Government officer. Secondly, it was contended that even if Ex. J contains a seal, there is nothing to show that it was not a private seal. In our opinion, the contentions raised by Mr. Misra are without any substance and cannot be accepted. Reading the document (Ex. J) as a whole and taking into consideration the occasion for the entrustment of the task to Durga Prasad, its recitals and the fact that it was kept in a purely Government department, viz., the Mirzapur Collectroate from where it was produced before the trial court, clearly and conclusively prove that the report was made by an official serishtadar appointed by a very high governmental authority. Even the opening lines of the Exhibit clearly indicate that Durga Prasad was a Government servant, perhaps in the Revenue Department, and was asked to submit a report for official purposes. It is also established that Durga Prasad made a roving enquiry and ultimately submit....
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....has no probative value at all. To begin with, a perusal of the Report (Ex. J) shows that it does not at all disclose the source from which Durga Prasad collected his facts or gathered the materials disclosed therein. There is also nothing to show that the author of the Report consulted either contemporary or previous records or entries therein in order to satisfy himself regarding the correctness of various statements made pertaining to the genealogy of landlords who were in possession of the lands, as stated in the said Report. It is true that at one place the author has stated that he had taken these facts from an account book (Tumar) but he has not at all given any description or detalis or even the kind or the nature of the account book and its contents. Furthermore, there is no evidence to indicate as to what happened after the author had submitted his Report to the Government and whether or not any follow up action was taken on the basis of his Report or it was just filed and kept on the record Lying lifeless and mute. The fact of the matter is that no proper verification was made by Durga Prasad regarding the facts stated in his Report from any source and that it d....
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....robortated by later entries up to 1882. The Privy Council took special note of the fact that evidence of the character taken from public records for a series of years since 1852 could not be easily brushed aside. In this connection, their Lordships observed as follows: "Their Lordships cannot share the view of the appellate Court that evidence of this character, taken from public records for a series of years since 1852 and recorded in accordance with the requirements of the law, can in a pedigree case be disregarded." Thus, it is absolutely clear to us that the facts of that case are essentially different and clearly distinguishable from the nature of the document that Ex. J is Ex. J cannot be regarded as an entry of the type which was the subject matter of Ghulam Rasul Khan's case (supra). There is absolutely no corroboration of the facts mentioned in Ex. J either by later entries or by any other document. There are a number of other facts mentioned in the judgment of the Privy Council (supra) which completely distinguishes that case from Ex. J in the present case. At least this much is clear, as already indicated, that in the Privy Council case there was posi....
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....nd that the Court of Wards itself had held an enquiry and being a statutory body it must be presumed to have done its duty to the best of its ability. Fourthly, although two witnesses were examined to prove the documents from the Court of Wards, they were not cross-examined at all. In the instant case, a person from Mirzapur Collectorate merely produced the document but he had no knowledge about its contents or about its being acted upon. In these circumstances, Ex. J cannot be equated in any respect with Ex. which was the document under consideration by the Privy Council in Kuar Shyam Pratap Singh's case (supra), We would like to mention here that even if a document may be admissible or an ancient one, it cannot carry the same weight or probative value as a document which is prepared either under a statute, ordinance or an Act which requires certain conditions to be fulfilled. This was the case in both Ghulam Rasul Kltan's and Kuar Shyam Pratap Singh's cases (supra). The case of Meer Usd-oollah v. Mussumat Beeby Imaman, Widow of Shah Khadim Hossain appears to us to be a cler illustration of a document which while being an entry in a public record is of great pr....
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....e in the part of the zemindar. He also reported to in favour of the title of the Pandaram Venkatachellum to the office. "But being the reports of public officers made in the course of duty, and under statutory authority, they are entitled to great consideration so far as they supply information of official proceedings and historical facts, and also in so far as they are relevant to explain the conduct and acts of the parties in relation to them, and the proceedings of the Government founded upon them." With due respect to the Privy Council, we fully agree with the view taken by their Lordships and the test laid down by them. The document Ex. J in the instant case does not contain any of the qaulities or attributes which were present in the Report of the Collectors relied upon by the Privy Council. As indicated above, while the Collector had made a thorough enquiry, based on the evidence of witnesses and other documents and had recorded his clear opinion which was accepted by the Board of Revenue, in the instant case Ex. J is a God forsaken document which does not reveal either the source on the basis of which the materials were collected nor does it indicate tha....
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....ng considered on account of the duty owed to his employer, and, in some cases, the duty to record may have been owed by the solicitor to his client When speaking of the reception of declartions in the course of duty Sir Robert Philimore said; "Entries in a document made by a deceased person can only be admitted where it is clearly shown that the entires relate to an act or acts done by the deceased person and not by third parties." These observations, however, have to be read with reference to the context. Cross while making the aforesaid observations emphasised that Sir Robert Phillimore had said that entries in a document made by a deceased person can only be admitted where it is clearly shown that they relate to an act or acts done by the deceased person and not by third parties. Thus, in the instant case, though Ex. J was admissible because its author is no longer alive it contains information which is obviously based on what he may have heard from third parties and hence much value cannot be attached to such a report. In Brain v. Preece Lord C.B Abinger made the following observations: "The case of the attorney, in Deo v. Turford, stands....
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....which he had mentioned the facts in his report. Assuming that the case, extracted above, had taken an extreme view in that the report was not admissible at all because of the legal position in England, the hard fact remains that so far as the probative value of a document is concerned, it is reduced to the minimum where there is no evidence to disclose the nature of the instructions given to the author of the doucment tendered in evidence or the source or knowledge or information on which the report is based. This is a serious legal infirmity from which Ex. J suffers and on that ground alone it cannot be regarded as a reliable or a dependable document. In view of the reasons given above, we reach the following conclusions regarding the law relating to the admissibility and probative value of Ex. J:- 841 (1) That Ex. J is clearly admissible under s. 35 of the Evidence Act and we agree with the finding of the High Court on this point, (2) It appears that Durga Prasad, serishtadar, started writing Ex. J in the year 1810 and completed the same in 1813. (3) That Ex. J mentions names of some persons who according to the plaintiffs were their ancest....
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....ard dictionaries to arrive at the correct import of the meanings of the terms and expressions used in the document. In the case of Coca-Cola Company of Canada Ltd. v. Pepsi-Cola Company of Canada Ltd. It was clearly held that Dictionaries can always be referred to in order to ascertain not only the meaning of a word but also the general use of it. In this connection, their Lordships observed as follows . "While questions may sometimes arise as to the extent to which a Court may inform itself by reference to dictionaries there can, their Lordships think, be no doubt that dictionaries may properly be referred to in order to . ascertain not only the meaning of a word, but also the use to which the thing (if it be a thing) denoted by the word is commonly put." This is what we have tried to achieve in addition to the knowledge of Persian language that one of us possesses. To begin with, the document clearly recites as to who had ordered Durga Prasad to make the necessary inquiries and this fact assumes some importance because there has been a serious controversy between the parties as to whether Durga Prasad was entrusted with the task of the inquiry by a p....
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....e plaintiffs respondents, the word 'Buzurgan' means ancestors whereas, according to the appellant, it means elders of the family of Pahalwan Singh. In other words, according to the appellant, what Durga Prasad was required to do was to find out not that the ancestors of Pahalwan Singh were in possession but the elders of Pahalwan Singh, which is a much wider term. In our opinion, the interpretation put by the appellants on the word 'Buzurgan' appears to be correct. To begin with, the word 'buzurgan' does not mean predecessors in the strict sense of the term. The concept of 'buzurgan' in Persian or Urdu language is to denote merely an elderly person. In Steingass's Persian-English Dictionary (Third Impression: 1947) at page 183, the. word 'Buzurg' is defined among others as grandee, adult and elder. The word 'Buzurgan' is merely a plural of Buzurg. In Forbes's Hindustani-English Dictionary (1848) 'Buzurg' has been defined as an elder (p. 77). Similarly, 'buzurgan' has been defined as elder (p. 89). Therefore in the instant case, the actual connotation of the term 'buzurgan' with reference to the context would mean not only predecessors or ancestors of Pahalwan Singh but....
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.... sense of a direct ancestor. Similarly, the other expressions have been defined by different dictionaries as shown below: - Minjumla = Among all; from among (p. 1323, Steingass dictionary) Minjumla = Upon the whole (p 510, Forbes' dictionary) Aulad = Descendant (p. 121, Steingass Dictionary) Descendant = Aulad (p. 72, Forbes' Dictionary-English Part) It follows as a logical corollary that the translation of the word 'Buzurgan' as 'Predecessor' in the Roman Script of Ex. J is not quite accurate. Having sorted out the problem of the word Buzurgan' we now proceed to consider the meaning of the words used by Durga Prasad in the introductory part of his Report. The document (Ex. J) proceeds to mention while addressing the high official that the zamindari of taluka Majhwa Pargana Kaswar was previously in the possession of the descendants Gautam tribe and further emphasised that the descendants of Gautam tribe were in possession there of by inheritance according to the shares of their respective family members. The translation of these English words though substantially correct require some amplification. In the first place, Durga Prasad has used th....
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....Durga Prasad. The words only indicate the undoubted possession of Hirdaynarain Singh, and the persons who were in possession along with him were the four persons mentioned above who belonged only to the brotherhood of Hirday Narain Singh. The question of all of them being direct descendants or relations does not arise on the interpretation of the words used by Durga Prasad, as indicated above, He has further stated that he had learnt the aforesaid facts from the account papers of Pargana Kaswar. We might mention that even M.M. Prasad, J. was carried away by the language used by Durga Prasad, viz., the use of the word 'biradari' to indicate that Hirday Narian Singh and four others belonged to the same family which was neither his intention nor the meaning of the sentence used by him. To this extent, therefore, we do not agree with M.M. Prasad, J. It may be important to remember this fact because much has been made of the sentence "Debi Singh and aforesaid four persons" to contend that the four persons, viz Debi Singh, Barisal Singh, Ramhit Singh and Gajraj Sahi, were the descendants of Hirday Narain Singh or Debi Singh which is also a fallacious conclusion reached by the H....
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....ingh purchased the village at an auction held by the Government for payment of arrears of Government revenue Deep Narain Singh obtained the zamindari sanad from the huzoor (a high official of the Government) and patta was executed in favour of Ram Baksh Singh, who is one of the descendants of Hirday Narain Singh and is alive. It may be noted that even Ram Baksh Singh is not at all mentioned in the genealogy of Hirday Narain Singh nor is he mentioned in the earlier part of Ex. J as being either a member of the family or a descendant of Hirday Narain Singh. It has, therefore, been established beyond any shadow of doubt that Barisal Singh, Debi Singh and Gajraj Singh were not the direct descendants of Hirday Narain Singh. Otherwise Durga Prasad would have mentioned these persons also as heirs or direct descendants of Hirday Naram Singh as he has done in the case of Audhan Singh, Ram Baksh Singh and Ramhit Singh. Furthermore, at page 28 on the left hand side of the document (English translation) it is clearly mentioned that zamindari patta was executed in favour of Bhagat Singh, Golami Singh, Harjan Singh who were the descendants of Hirday Narain Singh. Thus, it is clear from the....
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....ment zamindari patta was given to Nanku Singh and Jitoo Singh who were descendants of Hirday Narain Singh. Nanku Singh died and thereafter Deep Narain Singh, son of Nanku Singh, got the patta in his own name in respect of halfshare. The next item narrates that at the time of the settlement, the zamindari patta was executed in favour of Gurdat Singh, who was one of the descendants of Debi Singh, and he paid rent without obtaining any fresh patta. It is further mentioned that in respect of village Sabesar, zamindari patta was given to Ramhit Singh, descendant (aulad) of Hirday Narain Singh and on his death, the patta was given to Nanku Singh. It is not necessary for US to wade through the details of the settlement made by various zamindars pertaining to different villages in the Sirkar of Champaran, except some entries to which we would refer hereafter. As regards Jalalpur which was in Taluka of Madan Gopal and Kiswar Das Thathar, the zamindari patta was executed in favour of Farman Singh and after his death Zalim Singh and Ramhit Singh, sons of Farman Singh, obtained the patta in their names and were in possession thereof. Here also, there is no reference either ....
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....erefore we are kept completely in the dark as to what those account books contained and whether or not the facts mentioned in them were properly checked and verified. Even the fact as to who was the accountant or in whose custody the account-book remained, is conspicuously absent from the Report of Durga Prasad. These are additional circumstances which completely reduce the probative value of Ex. J. Mr. Tarkunde made an attempt to convince us that Ex. J is not only admissible but is substantially corroborated by the oral and documentary evidence. It is true that a part of the plaintiffs' genealogy which is not disputed by the appellants, receives some corroboration from Ex. J but that takes us nowhere. Our attention has not been drawn to any fact mentioned in the Report which shows the direct relationship or connection between Debi Singh, Ramruch Singh and Gajraj Singh and unless this is done the corroboration, if any, is of no use at all. However, we shall deal with this argument for whatever it is worth. In the first place, it was contended that the oral evidence of DWs 13, 21, 33, 34 and 35 corroborates the entries made in Ex. J. We propose at this stage to r....
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....to see how the evidence of this witness supports the plaintiffs which merely says that Ram Fakir had three sons, viz., Barisal, Ram Singh and Rattan Singh. He does not say anywhere in his evidence that either Ram Fakir or his sons were in any way connected with Hirday Narain Singh. At another place, the witness says that Bansidhar Singh had three sons, viz., Ramruch Singh, Ram Fakir and Debi Singh and Gajraj Singh was Debi Singh's son. In the Report (Ex. J) there is absolutely no reference either to Bansidhar Singh or to Ram Fakir Singh or Ramruch Singh. The only person who is mentioned in the Report is Debi Singh who is said to be descendant of Hirday Narain Singh. There is also no reference to Bansidhar Singh in the entire Report. Thus, the starting point of the genealogy given by him is after the Report (Ex. J) was submitted. We are, therefore, unable to see how the evidence of this witness in any way corroborates Ex. J. Reliance was then placed on the evidence of DW 34, Nagendra Kumar. At page 446 of Voume I. This witness is aged 60 years and claims to belong to Gautam gotra. He states that the ancestor of the members of his family was Babu Hansraj Singh who had two s....
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..... At present it is sufficient to show that the arguments of the respondents counsel that Ex. J is corroborated by the evidence of this witness are wholly untenable. Reliance was then placed on the evidence of DW 36, Mahadeo Singh who seems to be an interested witness because according to his evidence his ancestors and those of Bhagwati Prasad Singh, father of the plaintiff, had been on visiting, dining and inviting terms with the family of Babu Bhagwati Prasad Singh right from the time of his ancestors. He states that Bhagwati Prasad Singh and Harendra Kishore Singh were descendants from a common ancestor who was Babu Bansidhar Singh. Bansidhar Singh had three sons, Ramruch, Exam Fakir Singh and Debi Singh, and Gajraj Singh was a son of Ram Fakir Singh. His evidence ex facie does not corroborate the Report (Ex. J). As in the case of previous witnesses, so here also we do not find any reference to either Bansidhar Singh or Ramruch Singh. It is impossible to believe that if Ramruch Singh or Gajraj Singh were connected with the family of Hirday Narain Singh this fact would not be mentioned in the Report. Furthermore, neither Bansidhar Singh nor the fact that Debi Singh was a....
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....a statement of Udit Narain Singh, and the document does not show that it is based on his personal knowledge or that the petitioner acquired knowledge from his ancestors. However, as it is not disputed that Pahalwan Singh was undoubtedly an ancestor of the late Manaraja and his name finds place in the plaintiffs' genealogy, nothing turns upon this statement because the defendant does not dispute the genealogy not only up to Pahalwan Singh but even higher. As discussed above, the main link is to be established between Gajraj Singh, Ramruch Singh and Debi Singh. On this point, this document throws no light at all and is therefore valueless. Nobody ever disputed that Pahalwan Singh was not a grandson of Debi Singh. Even otherwise, the document Ex. L is of doubtful admissibility, It was further contended that this document supports the statement in Ex J that Debi Singh, Barisal Singh, Ramhit Singh and Gajraj Singh were family members of Hirday Narain Singh. This argument however, is utterly misconceived and is based on a wrong interpretation of Ex. J which nowhere shows that Debi Singh, Barisal Singh, Ramhit Singh and Gajraj Singh were family members of Hirday Narain Singh. Al....
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.... taluka Majhwa was executed in favour of Farman Singh and after his death his sons Zalim Singh and Ramhit Singh obtained patta. Assuming that the statement made above is correct, it only takes us to Farman Singh who is said to be the son of Gajraj Singh. We have already indicated above that so far as the plaintiffs' genealogy is concerned, the link upto Gajraj Singh on the right side and upto Debi Singh on the left side is clearly proved but that does not substantiate the case of the plaintiffs unless they further prove that Gajraj Singh was son of Ramruch Singh and a nephew of Debi Singh. If this link is missing, the claim of the plaintiffs must fail. Similarly, Exhibits GGG-3, GGG-4, GGG-5, GGG-6 and GGG-8 at pages 187, 192, 209, 188 and 208 (in volume lV) respectively are documents in the nature or mortgage deeds executed by the heirs of Gajraj Singh in respect of Zamindari interest in village Baraini. These documents also are hardly relevant for the purpose of proving the plaintiff's genealogy or to show that he was the next and nearest reversioner of the late Maharaja. Similarly, Ex. WW (Vol. IV, page 185) proves that the zamindari patta in respect of village Baraini....
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....estors of Pahalwan Singh and if Bansidhar and Ramruch were really the ancestors of Pahalwan Singh, their names could not have escaped the attention of Durga Prasad particularly when the name of Hirday Narain Singh, who is higher than Bansidhar Singh, is mentioned in the Report conspicuously. Secondly, in view of the scope of the enquiry embarked upon by Durga Prasad, he had to find out the ancestors from the records and he says very clearly in his Report that his information was based on records in the Serista, particularly the Tumar (account book). If Bansidhar and Ramruch had in fact been directly connected with Debi Singh or Pahalwan Singh, there is no reason why Durga Prasad should not have mentioned their names as. Being ancestors of Pahalwan Singh who appeared to be only 2 to 3 degrees remote from them. In these circumstances, therefore, the absence of the names of the aforesaid persons in Ex. J is, in our opinion a conclusive circumstance to show that there was no relationship between Bansidhar, Ramruch and Pahalwan Singh. This conclusion is further fortified by the fact that even Gajraj Sahi (or Gajraj Singh) who was the only son of Ramruch and a grandson of Bansidhar, f....
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....patties, and (3) documents or judgments post litem motam. In order to put the record straight we would briefly discuss the the case law on the subject and refer to some of the important authorities of this Court and those of the Privy Council or some of the High Courts which appear to us to be very relevant. Taking the first head, it is well settled that judgments of courts are admissible in evidence under the provisions of sections 40, 41 and 42 of the Evidence Act. Section 43 which is extracted below, clearly provides that those judgments which do not fall within the four corners of sections 40 to 42 are inadmissible unless the existence of such judgment, order or decree is itself a fact in issue or a relvant fact under some other provisions of the Evidence Act:- "43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant- Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment? order or decree is a fact in issue, or is relevant under some other provision of this Act." Some Courts have used section 13 to prove the admissibility of a judgment as comi....
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....e first suit, was brought here and tried according to the law of this Country there could not be a pretence for saying, that the judgment in it was any, thing like judgment in rem or that it could bind any but the parties to the suit.. It is sufficient for their Lordships to say, that the judgment pleaded in this case in bar cannot be treated as one of that nature upon any principles, whether derived from the English Law or from the Law and practice of India, which can be applied to it." In the case of Gujju Lall v. Fatteh Lall(2) a Full Bench exhaustively considered the ambit and scope of ss 40 to 43 of the Evidence Act and observed thus: "On the other hand, when in a law prepared for such a purpose, and under such circumstances, we find a group of several sections prefaced by the title "Judgments of Courts of Justice when relevant," that seems to be a good reason for thinking that, as far as the Act goes, the relevancy of any particular judgment is to be allowed or disallowed with reference to those sections. ... ... ... I have had the opportunity of reading the judgment which the Chief Justice proposes to deliver, as well the observations of my brot....
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....or is it a judgment in rem, nor does it relate to a matter of a public nature. The existence of the judgment is not a fact in issue; and if the existence of the judgment is relevant under some of the provisions of the Evidence Act it is difficult to see what inference can be drawn from its use under these sections. Serious consequences might ensue as regards titles to land in India if it were recognised that a judgment against a third party altered the burden of proof as between rival claimants, and much 'indirect laying' might be expected to follow therefrom." (Emphasis supplied) This principle was reiterated in the case of Coca-Cola Co. of Canada Ltd. (already referred to on the question of relevancy of dictionary while dealing with Ex. J) where their Lordships in most categorical terms expressed the view that no judgment which was not inter parties or the one to which neither the plaintiff nor the defendant were parties could be used in evidence for any purpose. It appears that in the case referred to above the President of the Exchequer Court had relied on facts found in the judgment of the Chancellor and drawn support from the uncontradicated evid....
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....re the following statement is to be found: ' "Declarations by deceased persons of competent knowledge, made ante litem motam, are receivable to prove ancient rights of a public or general nature. The admission of declarations as to those rights is allowed partly on the ground of necessity, since without such evidence ancient rights could rarely be established; and partly on the ground that the public nature of the rights minimises the risks of mis-statement." The admissibility of such declarations is, however, considerably weakened if it pertains not to public rights but to purely private rights. It is equally well settled that declarations or statements made post litem motam would not be admissible because in cases or proceedings taken or declarations made ante litem motam, the element of bias and concoction is eliminated. Before, however, the statements of the nature mentioned above can be admissible as being ante litem motam they must be not only before the actual existence of any controversy but they should be made even before the commencement of legal proceedings. In this connection, in para 562 at page 308 of Halsbury's Laws of England (supra) the following statemen....
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....o Hari Baksh cannot be regarded as evidence in this suit and are inadmissible." It appears in that case one Bishan Dayal who was the defendant in a suit for partition which was brought on August 7, 1908 made a Will on the 26th November, 1908, that is to say, about two and a half months after the suit was filed. The statement of Bishanm Dayal in the suit of 1908 was sought to be relied on but the Privy Council held the statement to be inadmissible because he had already become an interested party and the case, therefore, had been hit by the doctrine of post litem motam. In Dolgobinda Paricha v. Nimai Charan Misra & Ors.(1) this Court held that the statement in question was admissible because it was made before the question in dispute had arisen. In other words, this Court held that in the facts and circumstances of that case the statement and the pedigree relied upon were made ante litem motam and not post litem motam, for if the latter had been the case, the document would have become inadmissible and in this connection the Court observed thus: "That being the position, the statements as to pedigree contained in Ex. I were made before the precise question in dis....
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.... every link in the genealogical tree which he has set out in the plaint was proved. Only after he has discharged his burden by proving the aforesaid facts, could the defendents be called upon to rebut their case. On a careful scrutiny of the evidence it seems that what the plaintiff has done is to file any and every document, deposition, statement, declaration, etc., where there is any genealogy which connects him with either the Maharaja of Banaras or his gotias without making any attempt to prove the main link on which rests the entire fabric of his case. The result has been that the plaintiffs have landed themselves into a labyrinth of delusion and, darkness from which it is difficult for them to come out and the case made out by them has been reduced to smithereens and smoulders and despite all their snaring and snarling they have miserably failed to prove the pivotal point viz., the link between Ramruch Singh, Gajraj Singh, Debi Singh and Bansidhar Singh. With these introductory remarks we now proceed to discuss the evidence led by the Plaintiffs on the points indicated above. In considering the documentary evidence we shall begin with the documents Exhibit....
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.... the expenses for recovering the properties which were in possession of other persons. The balance of the consideration of Rs. 10,022.5.4 (ten thousand twenty two and annas S and pies four) was received by the vendor, Bhola Singh, in cash out of which Rs. 2020-S-4 (two thousand twenty and annas S and pies four) were spent on the execution of the sale deed and Rs. 8,000 was again left in deposit with the vendee for his satisfaction till the document was executed. As Bhola Singh himself was fully aware that he had no title to the properties at the time of the sale, he on the one hand, deposited the entire consideration money, excepting a very small amount, with the vendee and, on the other hand, made no secret of the fact that these amounts were to be spent by the vendee to meet the expenses of litigaton arising out of the defect of title. Thus, on a perusal of the recitals of the sale deed, it would appear that out of a consideration amount of Rs. 25,000 a paltry sum of Rs. 1700 was taken by Bhola Singh which shows the very peculiar and pretentious nature of the transaction. In other words, Bhola Singh sold the properties for a song knowing full well that he had no interest in the p....
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.... recitals of the document have been found to be false and the court in which the suit based on the sale deed was filed was clearly of the opinion that the entire transaction was a sham one. Thus, there can be no guarantee of the truth of the statements made by Bhola Singh or even the genealogy given by him in that sale deed. Therefore, the genealogy is incorrect, inaccurate and incomplete and no reliance could be placed on this document for the purpose of proving the plaintiffs' genealogical tree. The trial court had rejected this document (Ex. V) and go had one of the Judges (M.M. Prasad, J.) in the High Court and, in our opinion. rightly. Lastly, regarding this document, it may be mentioned that soon after the execution of the sale deed the late Maharaja had already been substituted as the heir of Jaimed Kuer as proved by the documents Ex. U/3 and DD/43 and ultimately Narendra Kishore Singh was held to be the legal heir of Jaimed Kuer by the Allahabad High Court by its judgement dated 13.4.88 (Ex. DD/43). In these circumstances, since the question of succession had opened between the parties the document Ex. V would also but hit by the doctrine of post litem motam and, therefore,....
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.... whose descendants had appeared as witnesses but Ramhit Singh finds no mention at all in the plaint genealogy. In these circumstances, therefore, we are unable to place any reliance on the judgment Ex. DD/30. Coming now to the appeal judgment. Ex. DD/31, (Volume IV, page 121) the appellate court affirmed the finding of the trial court and found that Bhola Singh was not a reversioner of Jaimed Kuer and, therefore, had no title to sell the properties to the late Maharaja The appellate court further found that the whole tenor of the sale deed shows that the Maharaja of Banaras purchased a litigation. Reliance was placed by Mr. Tarkunde on certain recitals pertaining to genealogy but even though the Judge held that the late Maharaja was a descendant of Raghunath Singh yet there is no mention of Raghunath Singh in the genealogy given in that suit. Moreover, the genealogy given in Ex. P-2 is totally inconsistent with and different from the genealogy propounded by the plaintiffs. A number of names and heirs of the two lines of Bansidhar Singh, that is to say, Debi Singh and Ramruch Singh have not at all been mentioned in this genealogy. The name of Raghunath Singh, one of the so....
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....er to Maharaja Harendra Kishore Singh that she would like to surrender or sell out her entire properties to him. The Maharaja, however, refused to take the properties, either by surrender or by sale. From this conduct it was sought to be inferred by the counsel for the respondents that the Maharaja was not at all interested in the properties of Jaimed Kuer. In our opinion, these arguments are based on surmises and conjectures and are without any legal basis. The mere fact that the Maharaja spuerned the offer of Jaimed Kuer of surrendering her properties to him would not show that he was not interested in the properties because he knew full well that after her death the properties were bound to come to him as the next reversioner and he would have an absolute interest in the same. It is quite possible that the offer of surrender may have hurt the vanity and self-respect of the Maharaja as a result of which he spurned the offer. At any rate, instead of wandering amiss hither and thither into the realm of imagination and speculation like Alice in Wonderland, the fact is that the Maharaja did get the properties and resisted all claims against the same as would appear from the documents....
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....tify a rejected, dejected, sham and spurious transaction as being valid on a fictitious supposition that Bhola the executant was a sort of an illusory de facto though not a de jure reversioner and that too half a century after the judgment of the trial court and the appellate court Exs. DD/30-31) had rejected this document as being sham and collusive which had become final and irrevocable. And all this futile and amorphous exercise only to rely on the genealogy given in Exs. V and P-2 which both inadmissible and incorrect. Dr. Singhvi, appearing for the appellants, rightly pointed out that the entire edifice of the arguments of the respondents is based on a pack of cards which must collaps the moment the court makes a through probe into the various constituents or bricks which from the foundation of the edifice. The learned counsel also pointed out that even in the judgment (Ex. DD/30) it has not been said that the genealogy was wholly or undisputedly correct but the exact expression used is "the whole genealogical table of the family which is disputed". Since the genealogy was not admitted by the parties to the sale deed, it carries no value particularly when the judgmen....
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....ich seems to have been introduced in the records of the present suit allegedly by the present plaintiffs. To being with, Ex. Q/2 was brought to the trial court by the Head clerk of the Civil and Sessions Judge, Mirzapur. The original document was also called for and the stand taken by the appellant was that the document was of a very suspicious nature. At any rate, since the original document was marked in evidence, M.M.Prasad, J. had rightly observed that the points urged by the appellants about the document being suspicious do not survive. It appears that the Head clerk who was examined as DW-6 stated that the certified copy was marked as Ex. Q/2 although the earlier entry shows that the original itself was marked as Ex. Q/2. DW-6 further admitted that there was a table of contents attached to the records which he had brought but the number of suit was not mentioned in the aforesaid table. He further admitted that he was unable to decipher item No. 5 in the table of contents and, therefore, could not say whether any genealogy was mentioned as being a part of the aforesaid list of documents. Lastly, the learned Judge pointed out that DW-6 could not vouch-safe that the do....
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....one of the case of the parties no Exhibit mark has been put on the document which one usually finds in a document accepted in any suit. (2) All the important documents filed in the aforesaid suit have been enumerated or mentioned in the judgment (Ex. DD/39) but there is no mention of this genealogical table. (3) There is no reliable evidence in this case to show that Harkhan and Ramratan were descendants of one Bikram Sahi or Bikram Singh who was shown as a brother of Bansidhar Singh. There are lot of other discrepancies pointed out by M.M. Prasad, J. which have not been adequately rebutted either by the majority judgment or by the counsel for the respondents, We now come to the most serious problem regarding the contents of Ex. Q/2. It is also worth noting that each version of Ex. Q/2 is distinctly different and it is difficult to ascertain and choose as to which of the three versions is correct. Another circumstantial evidence which throws serious doubt on the genuineness of the document is as to what had happened to the document which was got translated by the High Court, as observed by M M. Prasad, J. in his judgment. The letter of the Deputy Registrar of....
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...., and the fundamental link which may connect the plaintiffs with the late Maharaja is absolutely wanting and even the name of Gajraj Singh does not find a place anywhere in this genealogy. There are a number of other omissions and contradictions but it is sufficient for us to state that since the main links are not connected this genealogy is of no assistance to the plaintiffs. Apart from that this genealogy is not a public document but is a purely private document and it has not been shown as to who prepared this genealogy, in what manner, at what time and under what circumstances. No person having special means of knowledge of the various heirs mentioned in this document has been examined in these circumstances and for the foregoing reasons we are unable to place any reliance on the mysterious and murky document which Ex. Q-2 is. Exhibit Q-5 is another genealogical table of the late Maharaja which shows that he was a direct descendant of Debi Singh. A portion of this document is, however, torn and hence we cannot make out as to who the ancestor of Farman Singh was, nor is there any reference to Ramruch or Gajraj Singh. At any rate, both the majority and the minority jud....
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....issible in evidence; thirdly, this pedigree, even if correct, stops at Gajraj Singh who is shown to be the final ancestor of the plaintifis. This fact is not disputed by the appellants because, as already pointed out, the essential dispute is regarding the parentage and ancestry of Gajraj Singh, and this document throws no light on this vital question. Reliance was placed on Ex. KK/1 (Vol. VII P. 2) before the trial court but Mr. Tarkunde appearing for the plaintiff has merely referred to this document without asking the court to place implicit reliance on it and, in our opinion, rightly, because this document is wholly irrelevant to prove the controversy in. dispute and merely relates to an Ekrarnama executed by Rajendra Kishore Singh nominating a Committee for the purpose of managing the properties of his son, Chiranjiv Rajkumar Harendra Kishore Singh (the late Mabaraja) until he attained majority. This merely shows the connection of Maharaja of Banaras and the late Maharaja of Bettiah. Therefore, this document is not relevant at all and it may therefore, be ruled out of consideration so far as the present dispute about genealogy is concerned. 883 Exhibits K and K-l hav....
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....re, he has clearly stated that he had looked into 'Tumar' i. e. account books for collecting some of the necessary materials. These documents are not in the nature of account books at all. In these circumstances, therefore, all the courts rightly rejected these documents both as being inadmissible and unworthy of credence. Ex. P-7 (Vol. V, P. 148) is also a certified copy of the plaint in suit No. 139 of 1895 in the court of Sub Judge, Mirzapur. It would appear that this plaint was filed on 26th July 1895, that is to say, after the death of Maharani Sheoratan Kuer, senior widow of the late Maharaja. The plaintiff in that case was Ram Nandan Singh. In the first place, this document is hit by the doctrine of post litem motam because the dispute to the succession of the late Maharaja (Harendra Kishore Singh) had already stated with his death in the year l 893 and the suit was filed two years thereafter, and it is therefore, irrelevant. Secondly, the plaint filed in the suit not being inter parties, its recitals are in admissible in evidence. The only claim put forward was that as the Bettiah Raj estate was an impartible estate, the widows ef the late Maharaja could not succeed to his ....
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.... sale deed has been demonstrated by judgments Exhibits DD/30 and DD/31. It is a different matter that he may have become the next reversioner sometime afterwards. These documents also show that Pahalwan Singh and Raghunath Singh were brothers, yet Raghunath Singh does not find a place in the various genealogies filed by the plaintiffs, as already shown. These were mearly filed to show that Raghunath Singh was a gotia of Maharaja of Bettiah. This fact is also proved by DW-36 but that does not help us at all. There are a series of documents filed by the plaintiffs to prove that Bhola Singh was an ancestor of Bhagwati Prasad Singh. Even if these documents are proved, they merely take us up to Bhola Singh and some of them even upto Gajraj Singh but that linkage is not sufficient to determine the vital issue in this case, viz., as to how Gajraj Singh was connected with Ramruch, Deci Singh and Banisidhar. For instance, Exhibits GGG/13, 14 and 16 are recitals in several documents in the nature of Rehan deeds, mortgage deeds and plaint in suits for declaration as also Exhibits DD/33, DDD/4 & 5, GGG/8 which at the most prove that the plaintiffs were direct descendants of Gajraj Si....
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....h but the evidence stops there and there alone. Exhibits F/1 and are various remarks made by Debi Singh about lands in Taluka Majhwa which proved that Debi Singh was one of the zamindars in possession of Taluka Majhwa, as mentioned in Ex. J. These facts, however, cannot be disputed because Debi Singh who was the son of Bansidhar Singh and whose final ancestor was Hirday Narain Singh was undoubtedly in possession of Majhwa lands. But this does not improve the case of the plaintiffs unless the direct connection between Debi Singh, Ramruch and Gajraj Singh is proved. Ex. NN/6 consists of extracts from the Banrag Gazetter which shows that Barisal Singh of Majhwa was one of the persons who was killed in the battle of Marui which took place near about the year 1719. This fact is also mentioned in Ex-J but that does not mean that the plaintiffs have proved their case by virtue of these documents. The other documents have already been discussed by us while referring to the documents said to have corrobrated Ex. J. This is all the documentary evidence produced by the plaintiffs in support of their case. After a detailed and microscopic consideration of these documents we....
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.... of the highly complex and extremely complicated historical case in which we had to travel and traverse through diverse fact and figures, data and documents spreading over a period of almost two centuries. The last chapter consists of the oral evidence of the pedigree propounded by the plaintiffs and we shall deal with the same for whatever it is worth after a complete consideration of the opinions expressed in the majority and the minority judgments of the High Court. Before, however, opening this chapter it may be necessary to restate the norms and the principles governing the proof of a pedigree by oral evidence in the light of which the said evidence would have to be examined by us. It is true that in considering the oral evidence regarding a pedigree a purely mathematical approach cannot be made because where a long line of descent has to be proved spreading over a century, it is obvious that the witnesses who are examined to depose to the genealogy would have to depend on their special means of knowledge which may have come to them through their ancestors but, at the same time, there is a great risk and a serious danger. Involved in relying solely on the evidence of witnes....
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.... evidence in such cases, the Privy Council made the following observations: "It cannot be doubted that, in its quality, this is admissible evidence. The singular criticism of the High Court is that it comes from relatives' of the appellant, but it is difficult to see where else such evidence could be found, or that in the mouth of strangers it would have any value at all. Each of the persons who has spoken to this pedigree has been carefully cross- examined, and each proves circumstances, apart from the pedigree, which support his knowledge and credit. This is not the case of a pedigree learned by rote, but it circumstantially corroborated, as far as time and memory admit." (Emphasisours) In Abdul Ghafur & Ors v. Hussain Bibi & Ors.the Privy Council briefly summed up the law in this regard in the following words: "It has been established for a long while that in questions of pedigree, I suppose upon the ground that they were matters relating to a time long past, and that it was really necessary to relax the strict rules of evidence there for the purpose of doing justice-but for whatever reason, the statements of deceased members of the family made a....
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....ong. Similarly, other cases on which reliance was placed, which have already been discused above, do not lay down that wherever witnesses speak of old genealogy it should be accepted as a gospel truth. The evidence of the witnesses must be scanned very thoroughly and according to the standards laid down by the Privy Council and this Court. Apart from the aforesaid authorities, there are some famous text books which also have laid down certain principles for the appraisement of pedigree evidence. Taylor on 'Treatise on Evidence' has pointed out in para 648 at page 414 that the declarations by the deceased relatives deposed to by interested claimants rarely deserve much weight because these declarations are made by the relations for the first time after the contest of claim has arisen. In accepting this kind of evidence, the court runs the risk of being deceived by deliberate falsehood. The author further goes on to state thus: "Little reliance can be placed on accuracy of his testimony, for men, without deliberately intending to falsify facts, are extremely prone to believe what they wish, what they believe with what they have heard and to ascribe to memory what is merely the res....
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....hat has not been done. However, there is no dispute on the aforesaid description of the witnesses; so this matter need not detain us any further. To begin with, before dealing with the evidence of the plaintiffs' witnesses on the point of genealogy we would like to preface our discussion with the description of the imperfections and infirmities of human memory which alone would determine the dependability of the evidence. Indeed, as a mortal man is not infalliable so is human memory. It records facts and events seen with some amount of precision and accuracy, but with the lapse or distance of time, unless the facts or events are noted or recorded in writing, the facts or events fade, sequences get lost, consistency gives way to inconsistency, realities yield to imagination, coherence slowly disappears, memory starts becoming blurred, confusion becomes worse confounded, rememberance is substituted by forgetfulness resulting in an erosion of facts recorded by the memory earlier. This equally applies to facts merely heard by one from some other person. Thus, if a person having only heard certain facts or events repeats them after a long time with mathematical precision or....
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....of DW-32 Awadh Bihari Lall. (Vol. I. p. 41 l ) is concerned, it has been rejected both by the majority and the minority judgments in the High Court as also by the trial court. Mukherji, J. speaking for the majority after carefully scanning the evidence of DW-32, observed as follows:- 'I have already adverted to above about the statement made by DW-32 in the Court below and since he appears to be an omnibus witness and there are lots of inconsistencies in his evidence, it will not be proper for this Court to place reliance on his statement." (Vol. VIII, P. 241) Similarly, M.M Prasad, J., who had rendered the dissenting judgment rejected the statement of this witness in the following words: "Ultimately, the Witness has admitted that he was a classmate of Bhagwati Prasad Singh, the father of these 1 plaintiffs. That explains everything the witness represents a typical partisan witness who can go out of the way to support one party and expose himself even to ridicule for the sake of such support. In my view, no reliance can be placed at all on his evidence." The trial court also did not place any reliance on the evidence of this witness. In these....
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....ith the family of Bhagwati Prasad Singh, father of the Plaintiff Radha Kirshan Singh as he has admitted to have scribed many documents on behalf of the family of Bhagwati Prasad Singh. Mukherji, J. also found that the witness was intimately connected with the family of Bhagwati Prasad Singh as this witness and his ancestors have scribed numerous documents for different members of the family and on this ground the learned Judge thought that he would be a more competent witness to depose about the genealogy than any other witness. Assuming what Mukherji, J. says is correct, the fact remains that being intimately connected with the family of the plaintiffs the witness cannot be said to be an independent one and he was deeply interested in the success of their case. Therefore, while this may not be a sole ground for rejecting his testimony his evidence has to be taken with great care and caution particularly when he is Dot deposing as an eye-witness but as a witness to the genealogy which he may have heard from his ancestors. The approach made by Mukherji, J., in appreciating his evidence does not appear to be correct. The learned Judge has referred to several documents whi....
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....ther pertinent statement which he made and which completely falsifies his evidence may be extracted thus; "The family members of Nand Kumar Singh, were weeping over the death of Maharaja Harendra Kishore Singh and told the said fact to my grandfather who in reply narrated the genealogy of Babu Bansidhar's family of Manjhwa" According to this statement it is clear that both the family members of Nand Kumar Singh and his grandfather narrated the genealogy of Bansidhar's family when they were weeping over the death of the late Maharaja (Harendra Kishore Singh) and the weeping took place at the house of Thakur Nandkumar Singh. It is common ground that the late Maharaja died in the year 1893 while the incident or narration took place in 1895. It is absurd to believe that the weeping of the family members would take place two years after the death of the Maharaja. Similarly, when he was further cross-examined about the time and the manner in which he acquired the knowledge of the genealogy, he made a number of inconsistent statements: sometimes he said that he acquired knowledge of genealogy from Nandkumar Singh but he did not reduce it in writing. In answer to another quest....
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....ames in genealogies running into 12 degrees. He also laid stress on the facts referred to above, and little did the witness relies that although the late Maharaja died in 1893, the weeping took place in 1895, i. e. two years after his death, which is impossible to believe. The learned Judge observes that there could be no better proof of a witness being hired and tutored to say a thing than the aforesaid discrepancy. None of the important circumstances relating to testing the memory of this witness relied on by the dissenting Judge has been considered by Mukherji, J. For these reasons, therefore we entirely agree with the conclusion of the dissenting Judge that it is impossible to place any reliance on the evidence of this witness. Narbadeshwar Dutt Sharma, PW 40 (Vol. I, p.l58) who was essentially a witness for the plaintiffs of title suit No. 44 of 1955 has incidentally deposed to the genealogy of the plaintiffs-respondents. His evidence was considered by the majority and rejected on the ground that he had no connection with the family of Bansidhar Singh and as he did not hear the name of Farman Singh or Gajraj Singh, he was not competent to prove the plaintiffs' gen....
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.... was actually a brother of Debi Singh, should not be shown in the plaintiffs: genealogy. We are, therefore unable to accept the somewhat unconvincing reasons given by Mr. Tarkunde regarding the absence of the name of Ram Fakir Singh in the plaintiffs' genealogy. This omission is rather important because it would throw a flood of light on the sources of information of the witness and his competency to depose about the genealogy. The witness further claims that one of the brothers of Bansidhar Singh was his ancestor and goes an to state that Hirday Narain Singh, who according to the plaintiff, was the father of Bansidhar Singh was son of Hansraj Singh. The witness claims his ancestory from Madho Singh, who was one of the seven sons of Hirday Narain Singh. It may be noted that there is absolutely no mention of either Hansraj Singh or Hirday Narain Singh or Madho Singh or any of the brothers of Bansidhar Singh or even of Ramhit Singh or any of his descendants in the plaint genealogy. It would be pertinent to note in this context that the descendants of Ramhit Singh had appeared as witnesses in suit No. 55 of 1983. and had declared that Ramruch Singh was not the son of Bansidh....
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....ation. Furthermore, while deposing about the relationship with the Maharaja of Banaras he says that he has not seen any papers showing that Maharaja of Banaras belonged to Dionwar sub-sect. He further says that he heard this fact from his father when he was only 10-12 years old. The clear and categorical statement of DW-33, Bhairo Prasad, shows that none of the descendants or Bansidhar Singh had settled in village Baraini and that Bhagwati Prasad Singh of village Baraini had no genealogical connection with Majhwa. Thus, DW-21 is sadly contradicted by the evidence of DW-33. Furthermore, according to DW-21, Babu Debi Singh had five sons but this is completely falsified by the plaintiffs' genealogy as also the case made out by them and sought to be proved by other witnesses. It was further contended by Mr. Tarkunde that according to DW-21, he was a descendant of Hirday Narain Singh or of Madho Singh and therefore he would be, second in the line of claim to the reversionary interest of the late Maharaja and as such he is not likely to depose against his own interests. The witness is a young man and we have already shown that the source of his information about the plaint genealog....
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.... Bansidhar Singh had three sons, viz., Ram Fakir, Ramruch and Devi Singh. We have already pointed out that although the name of Hirday Narain Singh finds place in Ex. J yet there is absolutely no reference to Bansidhar Singh. We shall presently show that there is an important document Ex. B/32 (vol. llI, p. 42) where Ramruch Singh has not been mentioned as the son of Bansidhar Singh but instead Gajraj Singh has been mentioned as the son of Bansidhar Singh. This document is rather important because it is a certified copy of a deposition of one Bhupraj, who was a witness as far back as 1909 in the earlier suit. The statement of this witness that Bansidhar Singh had three sons, including Ramruch Singh, is therefore clearly contradicted by Ex. B/32, a document which came into existence long before the plaintiff's suit of 1961 entered the arena of the present case. Moreover, in 1909, the memory of Bhupraj would have been much fresher than that of this witness. In order to test the veracity of this witness on the touchstone of the principles enunciated by this Court and the Privy Council we would refer to the source of his knowledge. Admittedly, 'the witness had no personal knowledge ....
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....n on any place of paper. The witness admitted that he could remember only some portion of the genealogy then and there and not the whole. He clearly admits in his deposition that he learnt the genealogy from Bhagawati Prasad Singh in the winter season after the death Maharani Janki Kuer, that is to say after the present dispute had already started and in these circumstances his evidence is inadmissible under s. 35 of the Evidence Act on a point of law, viz., being hit by the doctrine of post litem motam. Again, he embarks on a flight of fancy and goes on to narrate facts which he could never have known without reading some authentic historical book. He relates the facts of the battle of Marui which took place as far back as 1719. Finally, he attributes five sons to Debi Singh whereas in the plaint it is stated that Debi Singh had only one son, viz., Aini Sihgh. Thus, far from corroborating the genealogy, his evidence positively contradicts the plaintiff's genealogy. He has also made a number of errors in describing the genealogy which does not tally with the plaintiff's genealogy. In our opinion, the evidence of this witness appears to be got up and does not inspire any confiden....
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....Singh. According to his evidence, he learnt the genealogy of the family from Jadunandan Singh, Vasisht Singh, Bhupraj Upadhya and Bhagwati Prasad Singh. All these persons are dead and he seems to have traced the source of his information to deceased persons in order to make his evidence admissible under sub-s. (5) of s. 32 or the Evidence Ast. The witness goes on to state that Jadunandan Singh was his grand uncle and one of the descendants of Bikram Sah. In order to give a touch of truth and a cover of legal admissibility he gives a twist and turn by asserting that Bhupraj Upadhya was the Purohit of his family and wants us to believe that since he had heard the plaintiff's genealogy from the Purohit, there could be no doubt about the correctness of the said genealogy. As usual with the other witnesses, this witness states that Jadunandan Singh gave out the family genealogy of Bansidhar Singh and Bikram Sah when he was aged only 15-16 years. He further asserts that Dalthumbhan, Prayag Singh and Parsidh Singh were also present and none else. None of these witnesses have been produced to support the testimony of this witness. It is also not known whether these witnesses a....
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....andan Singh yet he claims that Vashist Singh gave out exactly the same genealogy as given by Jadunandan Singh which in fact consisted of the entire family of Bansidhar Singh up to 12 degrees and 8 degrees commencing from Bansidhar Singh to Bhagwati Prasad Singh. Thus, this clear inconsistency in his statement completely belies the fact of narration of the genealogy by Vashist Singh. Another circumstance to falsify his evidence on the point of genealogy is that one of the persons from whom he claims to have learnt the genealogy is Bhupraj Upadhya, Priest of the late plaintiff, Bhagwati Prasad Singh. The witness says that Bhupraj narrated the genealogy but he could not say whether it was 50 times, 100 times, 20 times, 10 times or only 5 times, nor does he recollect the time when the genealogy was repeated on the second or the third occasion. So far as Bhupraj Upadhya's knowledge is concerned, it has been clearly proved in this case that he could not at all be aware of the correct genealogy of the family of the late Maharaja. In the title suit of .1908 filed by the late plaintiff (Bhaawati Prasad Singh), Bhupraj deposed as a witness and the certified copy of his evidence is Ex. B/32. ....
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....d infirmities pointed out by us in his evidence discussed above have not been noticed much less explained by the majority judgment delivered by Mukherji, J. This is sufficient to vitiate the appreciation of the evidence of the aforesaid witness by Mukherji, J. This brings us now to the last witness of the plaintiffs, who is plaintiff No. 1 himself, i e. Radha Krishan Singh, DW-13. It is manifest that being the son of Bhagwati Prasad Singh and the main plaintiff, he is the most interested person and is bound to support his case on which depends the fate of this litigation so far as he is concerned. His evidence also, therefore, as a rule of prudence has to be examined with great care and caution because he is interested in making statements which may go to support his case. Even so, his evidence shows that he knows very little about the conduct of the case as it does not support the genealogical tree set forth in the plaint itself. In his statement, he mentions that Bansidhar Singh had three sons, viz. Ramruch Singh, Accho Singh and Fakir Singh and expressly states that Debi Singh was not one of his three sons, which knocks the bottom out of the plaintiffs' entire case. Further, ....
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....ons named above belong to his family as stated by me. About two years ago that I saw the above genealogy. I cannot say who is the writer of that genealogy. I cannot say if the name of the writer is mentioned in that genealogy which is from the time of Hansraj up to the time of Adity Singh and . his brother. Harkhan Singh in the line of Bikram Singh and upto the time of Ram Rupan Singh in the line of Chhatan Singh. I do not remember if in their genealogy the last member in the line of Rudra Singh is mentioned. In that genealogy the name of Musammat Jai (?) Raj Kuar and Raghuanth Singh in the line of Devi Singh one of the sons of Bansidhar Singh are mentioned. There is no mention of the descendants of Ram Ruch Singh in that genealogy as they had gone away to Baraini. In that genealogy, there is no mention of the brothers of Bansidhar Singh or their descendants or the descendants of Bansidhar Singh who had left village Majhawa." (Vol. 1, p. 349, para 79) This shows his complete lack of knowledge of his own family's genealogy which conclusively proves the fact that he has been asked to depose parrot like just to support his case. To begin with, he says that one of the papers he had ....
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....in paragraph 79 of his deposition was really the genealogy (Ex. Q-2). We are unable to agree with the contention advanced by the counsel for the respondents because in the first place. DW-13 has not at all mentioned that the genealogy which he had seen was produced in this case. Secondly, the genealogy (Ex. Q-2) was not at all shown to him by the counsel for the plaintiff in order to elucidate the fact that it was the genealogy referred to in his evidence in para 79 extracted above. Indeed, if Ex. Q-2 was really the genealogy referred to by the witness, as contended for the respondents, then the first thing which should have been done by the plaintiffs' counsel would have been to put Ex. Q-2 to the witness at once. It is, therefore, clear that M. M. Prasad, J. was correct in making adverse comments regarding this part of the evidence of DW-13 It was further argued before us by Mr. Tarkunde that there was another mistake committed in the appreciation of the evidence of DW-13 and that was the fact that much was made of the statement of the witness that while naming the sons of Bansidhar Singh Accho Singh was mentioned instead of Devi Singh. This is an unmistakably clear sta....
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....n his cross-examination that he could not say how Bansgopal Singh, who is a descendant in the line of Gajraj Singh, was related to Raghunath Singh in the line of Devi Singh. He further admits that he has forgotten about this relationship. This is an important circumstance to negative the fact that he had any special means of knowledge of the ancestors of the family of the late Maharaja. This crucial omission seems to have been brushed aside by Mukherji, J., without realising the importance of the aforementioned omission. On the other hand, M. M. Prasad, J. has fully discussed the evidence of this witness and found that the witness is an unreliable one. In order to prove his special means of knowledge of the genealogy of the plaintiff's family he claims that he was a close neighbour of the plaintiff's and was on visiting, dining and inviting terms with their family. He also states that he and his ancestors were in the service of Bettiah Raj, more particularly, Hanuman, his grand-father, Salik. Singh, his great-grand-father and Baijnath Singh, his greatgreat-grandfather. There is, however, no evidence to show that Baijnath, Salik or Hanuman were in the service of ....
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....there is no question of A Bansidhar Singh or Baijnath Singh being on inviting terms. None of these circumstances or admissions made by this witness were noticed or considered by Mukherji, J. In view of these confused and conflicting statements we find it difficult to place any reliance on the evidence of DW-36 and we agree with M.M. Prasad, J. that the witness was not worthy of credence. It was to meet and save such or similar situations resulting from the shortcomings and frailties of the failing and fading human memory that Sir George Rankin, in the case of Rokkam Lakshmi Reddi & Anr. v. Rokkam Venkata Reddi & Ors.(1) like a sage counsel sounded a note of caution in the following prophetic and classic words: "It cannot rightly be left to time or chance or cross examination to disclose whether a statement has any basis which could give it value or admissibility." To sum up, the ingenious and imaginative, fanciful and foggy, nasty and nebulous narration of genealagies by the plaintiffs witnesses one after the other looks like a 'sleeping beauty' or Cinderella's Dream or as Shakespeares Macbeth would say "A tale told by an idiot, full of sound and fury,....
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....parties and the genealogy given therein was also a part of the recitals and therefore, could not be made y use of in law. We have fully discussed both the legal and the factual position of the documents relied on by the plaintiffs and have demonstrated that the said documents ought not have beenrelie. On the majority judgment. It is not necessary to burden this judgment by repeating what we have already said. A In fact, it seems to us that the majority judgment was greatly impressed by the fact that as the plaintiffs had proved their case of genealogy right up to Gajraj Singh and thereafter seem to have presumed without any cogent and reliable evidence that Gajraj Singh must have been a direct descendant of Bansidhar Singh even if there was no reliable evidence to prove this fact. On the other hand, there was positive evidence to show that Gajraj Singh was not the grandson of Bansidhar Singh from the circumstances and the documents in which the name of Ramruch Singh as being the father of Gajraj Singh was completely omitted as pointed out by as above. C On a close and careful, detailed and exhaustive discussion of the oral and documentary evidence, the inescapab....
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....on whether he be a Judge or a Jurist can ever claim to be infallible and all that is required is to do justice on the materials and records uninfluenced and undaunted by any extraneous circumstances. This is what we have endeavoured to do in the present case which may be one of the many cases before us but doubtless a prestigious one for the parties involved in the appeal. It may be stated as a sort of a postscript that great reliance was placed by the respondents on the admission made by the State of Bihar in its application for leave to appeal to this Court which is to the effect that there is no dispute regarding the links from Bansidhar Singh to Debi Singh, Aini Singh, Pahalwan Singh, Tilak Singh and Balbhadra Singh. We have earlier mentioned quite 8 few times that though these links arc proved but they are of no use to the plaintiffs unless the links between Ramruch Singh, Debi Singh and Bansidhar Singh are proved. We have already shown that the plaintiffs have miserably failed to prove these important links. In A other words, the left-hand side of plaintiffs genealogy starting from Debi Singh up to the late Maharaja has undoubtedly been proved but that by itself cannot show t....