Patna High Court
Sitaji And Ors. vs Bijendra Narain Choudhary And Ors. on 13 April, 1949
Equivalent citations: AIR1951PAT356, AIR 1951 PATNA 356
JUDGMENT
Ramaswami J.
1. This appeal is by the defendants first and second parties from a decree of the Additional Subordinate Judge of Darbhanga. The plaintiffs brought the suit claiming that they were the nearest reversioners of one Nan-bat Lal Jha, who died in 1879, leaving two widows, Mt. Nanuwati and Mt. Chemawati and his mother Mt. Sahajwati Ojhain. The following pedigree will elucidate the 'relationship of the parties :
NANDE RAM JHA alias NANDE JHA.
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Shiva Jha deed Dewan Jha Karan Jha Jagarnath Jha
deed. deed. alias Juga Jha deed.
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---------------- ----------------- | ------------------
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Mina Jha,deed. Fakir jha | | | | Hali Jha Rang Dewan
| deed Sambhoo Biehhuk Bunni| deed Jha deed. Jha deed
Tika Jha | Jha deed Jha, (deed)| | |
deed. | | | | Tulsi Jha |
------------- | Hare Ram | deed. |
| | | =Daiyowati | |
Parsi Jha Ram Jha | | -------------------------
deed | | | | |
| | | Nanswari Bansi Fakrari
-------------- | | Jha deed Jha deed Jha deed
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Bhagwan Dutta Sarekhi Gudar Jha deed, |Hitlaja Jha deed| |
Jha (P.8.) Jha deed =Mt.Sahajwati | | |
| Ojhain,deed | ------------ |
Ura Kant Jha | | | | |
| | Manohar Bharath |
------------------------------- | Jha deed. Jha.(P.4) |
| | | | | |
Chaman Lal Darbari Nanbat Lal Jha | ------------- |
Jha (deed) Jha (deed) deed, wife Mt. | | | |
Nanuwati Ojhain. | Arun Awadh |
deed.wife Mt. Chhe-| Jha deed. Jha |
mawti Ojhain deed. | |
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Aujhi Jha Chiranjiwi Jha Bitan Thakur Nanha Jha |
deed. deed. Jha deed Dutta Jha deed (deed.) |
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Kali Kodan Jha (deed.) Tilak Jha |
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Girja Jha (deed.) | |
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----------------------- | | |
| | Sukhi Jha Jhakari Jha |
Mukti Nath Jha Jagdish Jha deed. deed. ---------------------------
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Khawar Pulkit Balgobind Bacha
Jha deed. Jha deed Jha alias
Bachpan
Jha(p.7)
After death of Naubat Lal both the widows obtained possession of the estate but Mt. Sahajwati was granted only maintenance. Sahajwati died in 1909; and Nanuwati in 1911 when the whole estate devolved on Mt. Chemawati. On 5-11-1915 Mt. Chemawati dedicated all the properties to certain deities by a registered deed of Samarpannama. She constituted herself as shebait for her life time but she provided that after her death Mahant Ramsarup Das would succeed as shebait. Mahant Ramsarup Das, however, died in the life time of Mt. Chemawati. In 1931 she, therefore, executed a deed of shebaitnama appointing Mahant Gopal Das as shebait of the said deities. In 1933 the plaintiffs instituted a suit against the defendants for a declaration that the deed of endowment executed by Mt. Chemawati was void and not binding upon their reversioners. In that suit the defendants contended that the plaintiffs were not the nearest reversioners of Naubat Lal Jha. But the plaintiffs obtained a decree. On appeal the High Court dismissed the suit on the ground that it was barred by time; but the other issues raised were expressly left open. After Mt. Chemawati died on 5-8-40, the plaintiffs brought the present suit. They sought a declaration that the deed of endowment and shebaitnama executed by Mt. Chemawati were void and fraudulent and they were entitled to possession of the properties on the death of Mt. Chemawati. It is necessary to state that plaintiffs second party have conveyed 10 annas share of the properties to plaintiffs first party who in consideration thereof have agreed to meet the costs of litigation.
2. Defendants 1st party contested the suit on the ground that plaintiffs 2nd party were not the nearest agnates of Naubat Lal Jha. As regards the disputed properties the defendants 1st party claimed that Naubt Lal was not the owner thereof; that the properties had from long before appertained to the deities and Naubat Lal Jha had acted merely as a shebait. In the alternative, defendants 1st party claimed that at any rate the properties mentioned in Schedule 3, of the deed of endorsement were the stridhan of Mt. Chemawati and she could make a valid endowment in favour of the deities.
3. The learned Subordinate Judge found that the plaintiffs were the nearest reversioners of Naubat Lal Jha, that the properties in dispute belonged to Naubat Lal Jha and not to the Thakurbari. As regards Schedule 3 of the deed of endowment the Subordinate Judge held that there was no evidence to show that these properties constituted the stridhan of Mt. Chemawati and she had power to alienate. Upon these findings the Subordinate Judge pronounced a decree in favour of the plaintiffs.
4. Two main questions were discussed in hearing of the appeal, viz., (1) whether the plaintiffs were the nearest heirs of Naubat Lal Jha and so were competent to bring the suit; (2) whether the learned Subordinate Judge was correct in holding that the properties mentioned in Schedule 3 of the deed of endowment did not constitute the stridhan of Mt. Chemawati.
5. On the important question of pedigree the parties have produced evidence of a very contradictory nature. The plaintiffs alleged that their ancestor Shiva Jha and Jaya Jha were the brothers of Dewan Jha, who was the great grand-father of Naubat. They stated that Shiva Jha, Jaya Jha and Dewan Jha were all sons of Nande Jha, who belonged to Jajuare Pachahi Mul. The defendants did not dispute that the plaintiffs are descendants of Shiva Jha and Jaya Jha or that Naubat Lal was descendant of Nande Jha and belonged to Jajuare Pachahi Mul. The defendants, however, denied that Shiva Jha and Jaya Jha were brothers of Dewan. They asserted on the contrary that Shiva Jha, Jaya Jha and Karat. Jha were sons of one Guni Jha and that they all belonged to Jajuare Bhargao Mul. The question at issue, therefore, is whether Shiva Jha, Jaya Jha, Dewan Jha and Karan Jha were full brothers, as claimed by the plaintiffs. (After discussion of the oral evidence the judgment proceeds :)
6. At this stage it is necessary to state that both parties exhibited panjis to corroborate the oral evidence of pedigree. Panjis are palm-leaf manuscripts of pedigree systematically maintained by Panjiaras (or genealogists) in the community of Maithil Brahmins. It is the agreed case of the parties that such a system is scrupulously maintained in order to prevent marriages being contracted within forbidden degree. There is a reference to this custom in Crooke's Tribes and Castes Vol. 3 p. 411, 1896; O'Malley-Gazetteer of Darbhanga District p. 39; Journal of Bihar and Orissa Research Society, Vol. 3, p. 515. Panjikars are selected after they pass a regular test prescribed by the Maharajah of Darbhanga, who is the head of Maithil Brahmins, and who issues certificates to successful candidates. The primary duty of the panjikars is to maintain regular records of pedigree of the Maithil Brahmins. In order to keep their records up to-date, the Panjikars go on regular tours and make enquiries. The panjis are considered so important that no marriage can be celebrated unless panjikars issues a certificate of sanction called Siddhanta. Before issuing the certificate the panjikar must satisfy himself that the bride and bride-groom may be lawfully married:
"With a Maithil Brahman, marriage is a religious rite; it is based upon spiritual considerations--spiritual benefits derivable from such an union. A Brahman ought to marry because it is one of the Sanskars (purifications) of his life without which he is not "complete", nor competent to do any of the duties of Girhastha (householder). He ought to marry because a son born of such marriage will save the parents from the hell named 'Pun'. A son (Putra) means he who saves one from the hell 'Pun'. Consequently the marriage must be in conformity with Shastric injunctions. A bride must be more than fifth in descent on the mother's side and more than sixth on the father's from the last common ancestor of her and the bridegroom. One cannot marry the daughter of his stepmother's brother, nor can he marry a girl who is an offspring of his grandfather, and so forth. Any infringement of these rules not only invalidates the marriage but is a grievous sin. And as a safeguard against such an invalid marriage, entries of the relationship with names of members of all the different Maithil families are kept from an ancient time by the Panjikars or Panjiars (genealogists) of Mithila (Journal of Bihar and Research Society, Vol. 3, p. 515).
7. For the plaintiffs panjis (Exs. 4 series) were exhibited in order to support the oral evidence of pedigree. If these panjis be authentic, they would completely establish the plaintiffs' case that Dewan Jha, Shiva Jha, Karan Jha and Jaya Jha were the sons of Nande Jha. P. W. 29 Nirsu alias Biswanath and P. W. 31 Lachmi Narain Jha proved the panjis (Exs. 4 to 4-G). Kumar Lal Jha had proved Ex. 4-D in the previous title suit. His evidence is Ex. 25-A. On behalf of the appellants it was pointed out that in the previous suit, Exs. 4 to 4-C and 4-E were not filed. But it is undisputed that Exs. 4-D, 4-P and 4-G were filed in that suit. For the appellants comment was made that Khantar Jha admitted in his evidence that he had dictated genealogy to Kumar Lal Jha. Kumar Lal Jha, however, stated that Ex. 4-D was written partly by his father, that he was unable to identify the hand-writing of the other part. There is to my mind no real contradiction between the evidence of Khantar and of Kumar Lal Jha. It was then objected for the appellants that unless the hand-writing of the whole of Ex. 4-D was proved, the document was not admissible in evidence. But this argument is untenable. In cay opinion, it is not necessary for the plaintiffs to prove by whom the panji was written, if we recognise the admitted system of maintaining panjis in Mithila. In the present case Kumar Lal Jha has stated that Ex. 1 is partly written [by his father and partly by his ancestor whose [writing he could not identify. The Subordinate Judge has rightly accepted his evidence as true. If so, the panji (Ex. 4-D) is admissible in evidence. In a similar case Jahangir v. Sheoraj Singh, 37 ALL. 600 : (A. I. R. (2) 1915 ALL. 334), a document ancient and genuine purporting to be a family pedigree was produced in evidence in a mutation ease by one Jiraj. Jiraj stated that he had received the pedigree from his grand-father. But it was not proved who had prepared the pedigree. The High Court held that it was not necessary to show who has made the statements mentioned in the pedigree and that it was admissible in evidence under Section 32, Clause (6), Evidence Act. In Mt. Anandi v. Nand Lal, 46 ALL. 665: (A. I. R. (11) 1924 ALL 575), it was pointed out that a family pedigree may be a pedigree kept by a member of the family or by another person on its behalf. In that case a book maintained by the members of a family of hereditary bards and containing entries of domestic events occurring from time to time in the family to which they rendered services as bards, was held admissible as evidence concerning the relationship of the various members of the family, whose history was entered therein. (After discussion of the defence evidence the judgment proceeds).
8. In my opinion, the Subordinate Judge rightly held that the panjis (Exs. 4 series) are genuine. They completely support the oral evidence adduced by the plaintiffs that they are the nearest agnates of Naubat Lal Jha.
9. In this context it is of great importance to remember that the functions of a Court of appeal in dealing with a question of fact are limited in their character and scope. Where the decision mainly rests on oral evidence, the Court of appeal must have regard to the exceptional value of the opinion of the Judge of first instance. He has had the opportunity of watching the demeanour of witnesses, he has observed the drift and conduct of the case, he has impressed upon him by hearing every word, the scope and nature of the evidence in a way that is denied to any Court of appeal. In a case which turns on the conflicting testimony of witnesses and the belief to be reposed on them, the appellate Court can never recapture the initial advantage of the Judge who saw and believed. In Powell v. Strentham Maner Nursing Home, (1935) A. C. 243 : (104 L. J. K. B. 304), Lord Wright observed :
"Two principles are beyond controversy. First, it is clear that, in an appeal of this character, that is from the decision of a trial Judge based on his opinion of the trustworthiness of witnesses whom he has seen, the Court of appeal mast, in order to reverse, not merely entertain doubts whether the decision below is right, but be convinced that it is wrong."
In Watt or Thomas v. Thomas, (1947) A. C. 484 : (1947-1 All E. R. 582), Lord Thankerton re-stated the principle :
"Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate Court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge's conclusion."
In Prem Singh v. Deb Singh, 1947 A. L. J. 613 : (A. I. R. (35) 1948 P. C. 20) the Judicial Committee quoted this statement of principle, reversed the High Court decree and restored that of the Subordinate Judge, holding that the finding of the trial Judge on the oral evidence should have been accepted by the High Court.
10. In the present case the learned Subordinate Judge has expressly accepted the testimony of P. W. 6, Khantar Jha, and P. Ws. 26, 30 and 38 on the question of pedigree. He rejected the evidence of the defendants' witnesses on this point. He expressly held that D. W.-22, Awadh Behari Das, being a Bairagi could not have performed the sradha of Mt. Chemawati; and that his evidence that he did perform the sradh was manifestly false. As regards the panjis, the Subordinate Judge held that the panjikars (P. Ws.-29 and 31) have given credible evidence and the panjis, they produced were genuine and absolutely reliable. On the contrary he disbelieved the evidence of D. W.-35, Nirsu Jha, and the panjis (Exs. 10 Series) produced for defendant. On behalf of the appellants Mr. B.C. De addressed elaborate arguments to show that the plaintiffs' evidence was unreliable. But we cannot take the responsibility of reversing the conclusion of the trial Judge, for we are not satisfied that his decision is wrong, or that the evidence on which he relied is so improbable as to be unbelievable, or otherwise unworthy of acceptance. It was next contended on behalf of the appellants that even if the plaintiffs were the nearest reversioners of Naubat Lal, they could not succeed with respect to the properties mentioned in Schedule 3 of the deed of endowment. In para. 9 of the plaint the plaintiffs alleged that the properties in Schedule 3 had been wrongly described as self-acquired properties of Mt. Chemawati. In para. 20 of the written statement the defendants specifically asserted that the properties were stridhan of Mt. Chemawati. It is the agreed ease that these properties wore purchased after the death of Naubat Lal Jha out of the income of the estate. But neither party has adduced evidence to prove whether Mt. Chemawati intended the properties purchased to be her stridhan or to be accretions to her husband's estate. For the respondents reliance was placed on Sheo Lochan Singh v. Saheb Singh, 14 I. A. 63 : (14 Cal. 387 P. C.) in which the purchased properties were dealt with by the widows as accretions to their husband's estate, and the original properties and such accretions were treated by the widows precisely alike in the deed of gift which they executed in favour of the alleged adopted son. The Judicial Committees held upon the evidence that the properties were accretions, and proceeded to observe :
"Where a widow comes into possession of the property of the husband, and receives the income, and does not spend it, but invests it in the purchase of other property, their Lordships think that, prima facie, it is the intention of the widow to keep the estate of the husband as an entire estate, and that the property purchased would, prima facie, be intended to be accretions to that estate."
But this is only a dictum which must be understood with reference to the facts and circumstances of that case. It cannot be read as a statement of law for it is expressed merely in terms of an inference of fact. The obiter dictum is more than counter-balanced by the actual decision of the Judicial Committee in a much later case Saudamini Dasi v. Administrator-General of Bengal, 20 I. A. 12: (20 Cal. 433 P. C.) where the income which accrued from the husband's estate after his death for about eight years subsequent to his death and which was not disposed of by his will came to his widow as heir-at-law, and she invested the same in Government securities worth two lakhs of rupees; and after the lapse of about twenty years she disposed of the same as her own. It was held that the money so invested by her belonged to her as income derived from her widow's estate and was subject to her disposition. The Judicial Committee observed :
"It was said she had placed it in investments of a permanent nature. Had she done so, it does not appear to their Lordships that this circumstance alone would have added the fund to the estate devolving on her husband's heir."
In Venkatadri Appa Rao v. Parthasarathi Appa Rao, 52 I. A. 214 : (A. I. R. (12) 1925 P. C. 105) the widow never obtained actual possession of the income to which she was entitled and the question arose as to whether she was entitled to dispose of it by will. Their Lordships observed :
"That income or any part of it, she could, while she remained entitled to it, have added as an accretion to the Medur estate if she had wished to do so. There is no evidence to suggest that she had ever-added any part of that income as an accretion to the-Medur estate. She was consequently entitled to dispose of it by will or otherwise."
In Navaneetha Krishna v. Collector of Tinnevelly, 69 M. L. J. 632 : (A. I. R. (22) 1935 Mad. 1017) the Madras High Court held, as well established that the income of a woman's estate remained at her disposal in the absence of any thing done by her to show that she treated the accumulation as part of the last male holder's estate. In Balasubrahmanya v. Subbayya, 65 I. A. 93 : (A. I. R. (25) 1938 P. C. 34) the Judicial Committee affirmed that decision holding that both the savings which were in the hands of the Court of Wards and the money which was in the widow's own possession were the personal property of the Rani and would pass under her will.
11. The true position is stated by Lord Phillimore in Raja of Ramnad v. Sundara Pandiyasari, 46 I. A. 64: (A. I. R. (5) 1918 P. C. 156) :
"A widow may so deal with the income of her husband's estate as to make it an accretion to the corpus. It may be that the presumption is the other way. A case has been cited to their Lordships which seems so to say (25 Mad. 351). But at the out side it is a presumption and it is a question of fact to be determined, if there is any dispute, whether a widow has or has not so dealt with her property." On behalf of the respondents reference was made to Ramran Bijoy Pd. Singh v. Krishna Madho Singh, A. I. R. (26) 1939 Pat. 364 : (182 I. C. 982) where a Division Bench held that where a widow invests the income of the husband's estate in the purchase of other property the intention of the widow must be prima facie deemed to make purchased property an accretion to the husband's estate. But (with the greatest respect) the decision appears incorrect for it is opposed to the Privy Council authorities and is inconsistent with Prasad Kuer v. Baijnath Prasad, 14 Pat. 518 : (A. I. R. (23) 1936 Pat. 200) and Jamuna Prasad v. Ram Padarath, 18 P. L. T. 765: (A. I. R. (24) 1937 Pat. 619) in which the learned Judges held that the onus was upon the party who alleged accretion, to show that the property which was purchased by the widow from her own savings was not her own but was intended to be an accretion to the estate. In the present case the plaintiffs have alleged that the properties of Schedule 3 of the deed of endowment were accretion to the widow's estate. The onus of proof was upon them, but they have not produced any evidence to show that the widow's intention was such. On the contrary in the deed of endowment Mt. Chemawati herself has clearly recited that the Schedule 3 properties were self-acquired. This important recital together with the circumstance that the widow separately enumerated the properties in the deed of endowment clearly suggest that the widow never intended to merge the properties with her husband's estate. As regards these properties, it is manifest that Mt. Chemawati could validly execute a deed of endowment, and the plaintiffs are not entitled to a decree.
12. Upon these grounds I hold that the deed of endowment and shebaitnama are valid with respect to the properties mentioned in Schedules 1 and 2, the plaintiffs being found to be the nearest reversioners of Naubat Lal Jha, are entitled to a declaration of their title and recovery of possession and to mesne profits from the date of death of Mt. Chemawati till possession is delivered.
13. Accordingly I would alter the decree of the learned Subordinate Judge and allow the appeal to this extent with proportionate costs.
Sinha J.
14. I agree.