Punjab-Haryana High Court
Hakam Singh (Dead) Through vs Kehar Singh (Dead) Through on 30 May, 2009
Author: Rajive Bhalla
Bench: Rajive Bhalla
Regular Second Appeal No.730 of 1981 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Regular Second Appeal No.730 of 1981
Date of Order: 30th May, 2009
Hakam Singh (dead) through
his legal representatives and others ...Appellants
Versus
Kehar Singh (dead) through
his legal representatives and others ...Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
Present: Mr. M.L.Sarin, Senior Advocate with
Mr. Kabir Sarin, Advocate,for the appellants.
Mr. S.D.Bansal, Advocate,for L.R's of appellant no.2, 3 and 4
Mr.J.S.Wasu, Senior Advocate with
Mr. Gur Rattan Pal Singh,Advocate and
Mr. Gagandeep Singh Wasu, Advocate for the legal
representatives of respondent no.1
RAJIVE BHALLA, J
By way of this second appeal the appellants impugn judgments and
decrees dated 24.12.1979 and 04.02.1981, passed by the Sub Judge Ist
class, Kharar and the District Judge, Rupnagar, dismissing their suit and
their appeal.
The plaintiff-appellants filed a suit for possession of 276 kanals 3
marlas of land and for redemption of 40 kanals 18 marlas of land. The
appellants alleged that the suit land was owned by Harjalla, resident of
village Patran, Tehsil Kharar. After his demise Ms. Attri inherited the suit
land as owner in possession. She mortgaged 40 kanals 18 marlas of the
suit land with the respondents for Rs.800/- in the year 1946. The
appellants who are the progeny of Attar Singh brother of Ms. Attri served
and looked after her, during her life time. She, therefore, executed a will
dated 25.01.1967, bequeathing her entire estate to the appellants. After
her demise, on 30th April 1976, the appellants have become owners of the
suit land on the basis of this will. A mutation of inheritance has been
Regular Second Appeal No.730 of 1981 2
sanctioned, in their favour but the defendants do not accept the will and in
turn assert their title. It was further alleged that even if the will is ignored,
the appellants are entitled to inherit the estate of Ms. Attri being her closest
surviving heirs.
In their joint written statement, the defendant/respondents
controverted the averments in the plaint and emphatically denied the
execution of the alleged will. It was pleaded that Ms. Attri who was 90 years
old could not have executed the will as she suffered from multiple ailments
and her mental faculties were seriously impaired. The respondents also
put forth their claim as owners of the suit land by alleging that they are
agnates of Harjalla, deceased husband of Ms. Attri and therefore entitled
to succeed to her estate, as they both died issueless. It was also averred
that they were in possession of the suit land during the life time of Ms. Attri
as tenants and continue in possession, after her demise, as owners. It
was also asserted that the right to redeem the mortgaged property has
become time barred. The appellants filed a replication controverting the
averments in the written statement and reiterating those in the plaint.
On the basis of the pleadings the trial court framed the following
issues.
"1. Whether the plaintiffs are the sons of Attra real brother
of Attri deceased? OPP
2. Whether Smt. Attri has executed a Will dated
25.01.1967, in her sound disposing mind in favour of
the plaintiffs in lieu of their services? OPP
3. Whether the plaintiffs have a right to redeem the suit
land from defendants No.2 to 9 on payment of Rs.880
as alleged in para No.8 of the plaint?OPP
4. Whether this suit for redemption of land alleged in para
no.8 is within time?OPP
Regular Second Appeal No.730 of 1981 3
5. Whether the defendants No.1 to 9 are agnates of
husband of Smt. Attri and are better heirs than that of
the plaintiff to succeed to the estate of said Attri?OPD
6. Whether the defendants No.2 to 6 are in possession of
the suit land as tenants from the life time of Attri and
entitle to possession of suit land except in due course
of law and are not entitled to decree for possession in
this suit ?OPD
6A. Whether the succession in the present case is
governed under clause (1) of section 15 of the Hindu
Succession Act? OPP
7. Relief."
After considering the pleadings, the evidence adduced and the
arguments addressed, the Sub Judge Ist Class, Kharar, dismissed the suit
The will dated 25.01.1967 was rejected as it was held that the appellants
had failed to dispel the numerous suspicious circumstances surrounding its
execution. The right of the respondents to inherit the suit land as agnates
of Harjalla deceased husband of Ms. Attri was upheld. For this conclusion,
the trial court placed reliance upon pedigree tables Ex. D-7, Ex. D-8 ,Ex.
D-9 and Ex. D-14.In order to repel an objection, raised by the appellants,
that the unsigned pedigree table Ex.D-14 could not be read into evidence,
the trial court held that as it was appended with the signed list of
documents Ex.D-10, filed by Sunder, father of Kehar Singh, respondent
no.1 and Dalel Singh, father of Harjalla, husband of Ms. Attri in a prior civil
suit instituted by them, it would be deemed to be their statement and
therefore relevant under Section 32 (5) and (6) of the Indian Evidence Act,
1872 . It was also held that the contents of Ex D-14 were corroborated by
the statement of Ms. Attri Ex.D-19 in another suit,to the effect that Dalel
Singh had received half the estate of Nando widow of their collateral
Regular Second Appeal No.730 of 1981 4
named Khushali by virtue of mutation Ex.D-6. .
Aggrieved by the aforementioned judgment and decree, the
appellants filed an appeal. The District Judge, Rupnagar dismissed the
appeal and affirmed the findings recorded by the trial court. The learned
District Judge rejected the will as being surrounded by unexplained
suspicious circumstances. As regards the question of inheritance, it was
held that the pedigree table Ex.D-14 establishes that the respondents are
agnates of Harjalla, husband of Ms Attri and are, therefore, preferential
heirs to her estate. It was also held that though the pedigree table does
not bear the signatures of its author but as the question is one of its
relevance, it is relevant. The learned District Judge also held that the
respondents were tenants in possession prior to the demise of Ms. Attri.
Counsel for the appellants submits that the courts below have
committed fundamental errors of law while discarding the will. It is argued
that the discrepancies and the so called suspicious circumstances in the
execution of the will are natural discrepancies and therefore insufficient to
discard the will. The appellants have examined the scribe who penned
the will, have produced two attesting witnesses as per the requirement of
law and the mere fact that the will is in English or that the thumb
impressions may be smudged or that all the attesting witnesses have not
deposed, is insufficient to discard the will that has been proved in
accordance with law.
The next argument, the more seriously contested of the two, is
directed against the concurrent findings, recorded by the courts below that
as the respondents are agnates of Harjalla, husband of Ms. Attri they are
entitled to succeed to the suit land, in preference to the appellants. It is
argued that the evidence on record does not lend support, whether in fact
or in law, to the aforementioned conclusion. The respondents have failed
to adduce any evidence in support of their plea that they are agnates of
Regular Second Appeal No.730 of 1981 5
Harjalla. The evidence adduced does not connect their lineage to Harjalla
through, a common male ancestor. Ex. D-14, relied by the courts below to
hold that the respondents are agnates of Harjalla, is of doubtful origin and
authenticity as it does not bear the signature or the name of its author.
Despite these legal infirmities, both the trial court and the first appellate
court have placed reliance upon Ex D.-14. It is further submitted that the
courts below could not have invoked the provisions of Section 32 (5) &
(6) of the Indian Evidence Act, 1872, to hold that the unsigned pedigree
table Ex.D-14 was relevant to draw an inference of relationship. In the
absence of any proof as to the identity of its author, the courts below
should have rejected Ex. D-14.Instead the courts below, have resorted to a
strange subterfuge to hold that Ex. D-14 is relevant. They have held that
as Ex. D-14 was attached to a signed list of documents Ex.D-10, filed in a
suit filed by Sunder and Dalel Singh, it would be deemed to be their
statement. In the absence of any evidence as to the author of the pedigree
table the courts below could not have resorted to this circuitous process of
reasoning to confer legitimacy upon Ex D.-14. It is, therefore, prayed that
the appeal be allowed and the impugned judgments be set aside.
Counsel for the respondents submits that no question of law much
less a substantial question of law arises for consideration. The courts
below have returned findings of fact, which do not suffer from any error
much less an error of law . The appellants have failed to frame or urge any
substantial question of law.
It is further urged that the acceptance or rejection of a will is a pure
question of fact that cannot be reappraised in second appeal. The
suspicious circumstances enumerated by the courts below, while
discarding the will, are sufficient to hold, as concurrently held by the courts
below, that the alleged will is a fabricated document that does not reflect
the true will of the deceased. It is submitted that the will is scribed in
Regular Second Appeal No.730 of 1981 6
English whereas the testator was illiterate. The thumb impressions are
clearly smudged. The scribe failed to produce the original register. Out of
the five persons who witnessed the execution of the will only two were
produced .Even otherwise as the question of the execution of a will is a
pure question of fact, the impugned findings do not call for interference.
With regard to the argument that the courts below could not have
relied upon the unsigned pedigree table Ex D-14, it is submitted that law
does not require a pedigree table or a statement reflecting relationship to
be signed. Statements on tomb stones, family portraits and oral
depositions have always been held to be relevant evidence of relationship.
The courts below were, therefore, justified in placing reliance upon the
pedigree table Ex.D-14, read along with the list of documents Ex.D-10, to
hold in favour of the respondents. It is further submitted that a certified
copy of the pedigree table Ex.D-14 was led into evidence from the record
of the civil suit filed by Sunder and Dalel Singh, ancestors of the present
respondents. In this civil suit titled as Sunder Vs. Dalel Singh, the pedigree
table was appended with the signed list of documents Ex. D-10. The courts
below were therefore right in holding that Ex.D-14 would be deemed to be
the statement of Sunder and Dalel. Furthermore Ex D.-14 is more than
40 years old and is entitled to a legal presumption as provided in Section
90 of the Indian Evidence Act as its authenticity and relevance is beyond
dispute, it was rightly relied by the courts below to hold that the
respondents are agnates of Harjalla and, therefore, entitled to succeed to
the suit property. It is further submitted that a pedigree table is a part of the
record of rights prepared under Sections 31(2) and 33(2) of the Punjab
Land Revenue Act and are therefore relevant. It is, therefore, prayed, that
the appeal be dismissed.
I have heard counsel for the parties and perused the impugned
judgments.
Regular Second Appeal No.730 of 1981 7
Counsel for the appellants has filed amended grounds of appeal
raising eight questions, stated to be substantial questions of law. The all
questions framed by counsel for the appellant read as follows :
"i) Whether the finding of the courts below disbelieving
the will Ex. P-1 are perverse and manifestly illegal ?
ii) Whether the courts below have adopted a
hypertechnical and hypersuspicious approach in
disbelieving the will, which was otherwise found to be a
natural bequest ?
iii) Whether anything which is not a requirement of the
law, be a ground for suspicion for disbelieving the will ?
iv) Whether the finding of the courts below that
defendant-respondents are agnates of Harjalla, is
perverse and manifestly illegal, being based on no
admissible evidence ?
v) Whether the courts have exceeded their jurisdiction
in believing an unsigned and unproved pedigree table,
which has not been proved on the record, to hold that
the defendant-respondents were agnates of Harjalla ?
vi) Whether, in holding that defendant-respondents
were agnates of Harjalla, the courts have exceeded its
jurisdiction in placing reliance on a pedigree table,
when they have found that there is a confusion as to
the most material part of the pedigree table, inter alia
the identity of the alleged common ancestor ?
Vii) Whether the courts have failed to exercise their
jurisdiction in overlooking very material circumstances
which disprove the alleged agnacy of the defendant-
respondents, including interalia the mortgage and
Regular Second Appeal No.730 of 1981 8
alleged tenancy of the suit land ?
Viii) Whether the finding of the courts below that
defendant-respondents were tenants of Attri is
manifestly illegal and perverse ?"
Before proceeding to record any opinion it would be appropriate to
refer to the jurisdictional constraints that circumscribe the jurisdiction of a
court hearing a second appeal. Section 100 of the Code of Civil Procedure,
confines consideration to substantial questions of law as distinguished
from mere questions of law or of fact. Findings of fact, concurrent or
otherwise that are based upon a judicious appreciation of pleadings and
evidence, can not be reversed in second appeal, except if they disclose a
substantial error of law arising from a perversity in the process of
reasoning, a misreading of material evidence, a failure to consider relevant
pleadings and evidence or such other circumstances as may demonstrably
establish that the errors committed by the courts below raise a substantial
question of law. It would, require emphasis that, in civil proceedings,
appreciation of evidence is based upon the preponderance of
probabilities. More often than not, on the same set of facts, two equally
plausible views may be possible. Where the courts below have adopted
one of these plausible views, interference in second appeal, would be
barred, even if the other view appears to be more plausible.
A brief factual narrative would be appropriate. Harjalla
husband of Smt. Attri died issueless. Smt. Attri inherited his estate in its
entirety. The appellants allege that they have succeeded to her estate on
the basis of a Will Ex. P-1 dated 25.01.1967, whereas the respondents
claim that they have inherited the estate being agnates of Harjalla,
husband of Smt. Attri. The courts below have rejected the Will Ex.P1 and
on the basis of the pedigree tables Ex.D7, Ex.D8, Ex.D9, and Ex. D-14
Regular Second Appeal No.730 of 1981 9
have held that as the respondents are agnates of Harjalla, husband of Smt.
Attri, and therefore entitled to succeed to her estate, as she passed away
issueless.
Questions no.1 to 3 relate to the rejection of the will Ex. P-1,
whereas questions no.4 to 8 relate to the findings recorded by the courts
below that the respondents are agnates of Harjalla, husband of Attri
deceased and other ancillary matters.
By way of the first three questions, the appellants impugn the
concurrent findings recorded by the courts below rejecting the execution
of the will Ex .P-1. The arguments canvassed by counsel for the
appellants, in my considered opinion, do not raise any question of law
much less a substantial question of law. The acceptance or rejection of
evidence adduced in support of the due execution of a will , is a question
of fact and till such time as the findings recorded by the courts below do
not suffer from an error that raises a substantial questions of law, these
findings cannot be reappraised in second appeal. The evidence adduced
by the appellants, to prove the execution of the will has been rejected by
the courts,as it is surrounded by suspicious circumstances namely:- (a)
the will is executed in English whereas Ms. Attri was admittedly illiterate (b)
the thumb impressions are smudged (c) the words "RTI of Ms. Attri"
appearing on the first page of the Will are far below her alleged thumb
impression,(d)only one of the five marginal witnesses belongs to village
Hallomajra . (e) PW3, the marginal witness who has deposed in favour of
the execution of the will has admitted that he had raised loans from the
appellants (f) no respectable person like a lambardar was associated with
the execution of the will (g) the scribe Baldev Singh failed to produce his
register (h) in his deposition before the revenue authorities the scribe
produced the register which was found to contain blank pages and blank
serial numbers. In addition, the courts below have commented adversely
Regular Second Appeal No.730 of 1981 10
upon the participation of the beneficiaries in the execution of the will. The
suspicious circumstances enumerated by the courts below, cannot be
faulted, whether in fact or in law. In the absence of any error on the part of
the courts below, in rejecting the Will no substantial question of law arises
for adjudication. It would, therefore, have to be held that the courts below
rightly held that the appellants have failed to prove that the will dated
25.01.1967 was executed by Ms. Attri.
The next substantial questions of law namely, questions no.4 to 8
relate to the reliance by the courts below upon the pedigree tables,
particularly the unsigned pedigree table, Ex.D-14 to hold that the
respondents are agnates of Harjalla . The fourth ,fifth and sixth questions
relate to the evidentiary value of pedigree tables, particularly the unsigned
pedigree table Ex.D-14. Any answer to these questions would, necessarily
require appraisal of the unsigned pedigree table and the provisions of
Sections 32(5) (6) and 50 of the Indian Evidence Act, so as to ascertain
whether the courts below committed any legal error in holding that the
unsigned pedigree table is "relevant" and when read with the other
evidence establishes that the respondents are agnates of Harjalla. The
other questions are ancillary and would, therefore, be answered along with
these questions.
The parties to the present proceedings claim ownership to the estate
left behind by Smt. Attri. It is not denied that in case the respondents
succeed in establishing that they are agnates of Harjalla, husband of Attri,
they would succeed to her estate, to the exclusion of the appellants. If
however, they fail to establish their status as agnates, the estate would
devolve upon the appellants. The courts below have held that the pedigree
tables Ex. D7, Ex. D8 and Ex.D9 read along with the unsigned pedigree
table Ex-D 14, establish that the respondents are agnates of Harjalla
husband of Attri deceased. In addition, the courts below have placed
Regular Second Appeal No.730 of 1981 11
reliance upon statements made by other relatives, including Smt.Attri, in
earlier suits, to corroborate the pedigree table. The appellants on the other
hand, allege that the respondents have failed to prove that they are
agnates of Harjalla, as they have failed to trace their lineage to Harjalla,
through a common male ancestor. It is also canvassed that the pedigree
table Ex.D-14 is unsigned and even otherwise does not clearly establish
the identity of the common ancestor. It is urged that as per Ex. D- 14 the
common ancestor is Sahai father of Jai Ram and not Jai Ram father of
Ram Sahai as is sought to be established by the respondents. Ex. D- 14
therefore should have been ruled out of consideration.
The bone of contention between the parties is the pedigree
table Ex.D-14, which is admittedly unsigned. The argument that this
unsigned pedigree table should be excluded from consideration as its
author and origin are unknown was rejected by the trial court and the first
appellate court by holding that Ex.D-14, though unsigned would be
deemed to be the statement of Sunder father of respondent No.1 and Dalel
Singh, father of Harjalla as it was filed by them along with a signed list of
documents Ex. D-10,in a prior suit and is, therefore relevant to establish
that the respondents are agnates of Harjalla .
An appraisal of the findings recorded by the courts below discloses
that they have relied upon the provisions of Section 32 (5) & (6) and
Section 50 of the Evidence Act. It would therefore be necessary to appraise
these provisions, peruse documents Ex-D14 and Ex.D-10 and to consider
whether the reasons assigned by the courts below while holding that Ex.
D-14 is relevant are legal and valid.
Section 32 (5) and (6) of the Evidence Act reads as follows:-
Section 32. Cases in which statement of relevant fact by
person who is dead or cannot be found, etc., is relevant.-
Statements, written or verbal, of relevant facts made by a
Regular Second Appeal No.730 of 1981 12
person who is dead, or who cannot be found, or who has
become incapable of giving evidence, or whose attendance
cannot be procured without an amount of delay of expense
which under the circumstances of the case, appears to the
Court unreasonable, are themselves relevant facts in the
following cases:-
(1)xxxxxxx
(2) xxxxxx
(3) xxxxxx
(4) xxxxxxx
(5) or relates to existence of relationship.- When the
statement relates to the existence of any relationship
by blood, marriage or adoption between persons as to
whose relationship by blood, marriage or adoption the
person making the statement had special means of
knowledge, and when the statement was made before
the question in dispute was raised.
(6)or is made in Will or deed relating to family
affairs.- when the statement relates to the existence
of any relationship by blood, marriage or adoption
between persons deceased, and is made in any Will
or deed relating to the affairs of the family to which
any such deceased person belonged, or in any
family pedigree, or upon any tombstone, family
portrait or other thing on which such statements are
usually made, and when such statement was made
before the question in dispute was raised."
Section 32 (5) & (6) enumerate the circumstances in which
Regular Second Appeal No.730 of 1981 13
statements as to relationship, whether written or verbal, made by a person
who is dead or cannot be found or has become incapable of giving
evidence, are relevant. Section 32(5) postulates that such a statement
would be relevant, if the person making the statement had special means
of knowledge and provided the statement was made before the question in
dispute arose. Section 32(6) extends the inference of relevance to
statements made in a will or a deed relating to family affairs of the family to
which the deceased belonged or to any family pedigree, or upon any
tombstone, family portrait or other thing on which such statements are
made. In State of Bihar v. Radha Krishna Singh, 1983 Supreme Court
684, while considering the provisions of Sections 32 (5) and (6), the
Hon'ble Supreme Court set down the principles that govern the applicability
of Section 32(5) & (6) and the tests to be applied to statements or
documents relating to genealogies and held as under:-
"The principles governing such cases may be summariszed
thus :(1) Genealogies admitted or proved to be old and relied
on in previous cases are doubtless relevant and in some
cases may even be conclusive of the facts proved but there
are several considerations which must be kept in mind by the
courts before accepting or replying on the genealogies.
(a) Source of the genealogy and its dependability.
(b) Admissibility of the genealogy under the Evidence Act.
(c) A proper use of the said genealogies in decisions or
judgments on which reliance is placed.
(d) Age of genealogies.
(e) Litigations where such genealogies have been
accepted or rejected.
(2) On the question of admissibility the following tests must
Regular Second Appeal No.730 of 1981 14
be adopted :
(a) the genealogies of the families concerned must fall
within the four corners 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 claims 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.
A reference to a few other relevant judgments would also be
appropriate. While considering the nature of Section 32(6) of the Indian
Evidence Act, the Privy Council held as follows in Abdul Ghafur and
others v. Mt. Hussain Bibi and others AIR 1931 Privy Council page 45:
"The main question and the one on which the Senior
sub-Judge and the High Court are at variance relates
to the pedigree of the parties. The ancestor whom the
appellants assert to be common to them and to the
deceased Salehuddin is one Mchammad Muslim,
grand son of Qazi Rahimuddin. They claim that they
are descended from one of the sons of Mohammad
Muslim and that the deceased was a descendant of his
Regular Second Appeal No.730 of 1981 15
other son. As the descents are traced through several
generations in each branch, it is manifest that matters
of family history not susceptible of direct proof are
involved.
In approaching a pedigree problem of this nature,
their Lordships think it well to recall the words of Lord
Black- burn in Sturla v. Freccia (1) at p.641:
It has been established for a long while that in
question 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 statement of deceased members
of the family made ante litem motam, before there was
anything to throw doubt upon them, are evidence to
prove pedigree. And such statements by deceased
members of the family may be proved not only by
showing that they actually made the statements, but by
showing that they acted upon them, or assented to
them, or did anything that amounted to showing that
they recognised them. If any member of the family, as
a person who presumably would know all about the
family, had stated such and such a pedigree, that
evidence would be receivable, its weight depending
upon other circumstances."
The rule of evidence thus enunciated is in accord
with the terms of S.32(6), Evidence Act 1872, which is
applicable to the present case."
In Mt. Biro v. Atma Ram and others, AIR 1937 Privy Council,
Regular Second Appeal No.730 of 1981 16
page 101. The Privy Council made the following observations :
"The language of sub-section(5) requires only that the
statement tendered in evidence must be one made by
a person having special means of knowing the
relationship to which it relates and that it must have
been made ante litem motam. These are the only pre-
requisites to the admission of the statement, and it is
nowhere laid down that a third condition should be
fulfilled, namely, that the statement should be relevant
to the matter in issue in respect of which it was made.
The legislature does not say that the statement should
have been made in a judicial case, where alone the
question of relevance can arise. The language,
unrestricted as it is by any such condition, embraces
every statement as to relationship made ante litem
motam by a person having special means of
knowledge of it; and it is immaterial whether it was
made in a judicial proceeding or otherwise. It is clear
that for an extra-judicial statement there can be no
issue with reference to which the question of relevancy
may be determined."
In Sitaji and others v. Bijendra Narain Choudhary and others,
AIR 1954 SC 601, the Hon'ble Supreme Court held as under:-
"A member of the family can speak in the witness box of what he
has been told and what he has learned about his own ancestors,
provided what he says is an expression of his own independent
opinion (even though it is based on hearsay derived from
deceased, not living, persons) and is not merely repetition of the
hearsay opinion of others, and provided the opinion is expressed
Regular Second Appeal No.730 of 1981 17
by conduct. His sources of information and the time at which he
acquired the knowledge( for example, whether before the dispute
or not) would affect its weight but not its admissibility."
Depositions or statements, as to genealogy, are more often than
not, based upon hearsay evidence, passed down from generation to
generation, their origin and authorship lost in the mists of antiquity.
Despite the absence of proof as to their author and origin, such
statements whether written or oral have time and again been held to be
relevant provided they fulfill the tests set out in State of Bihar Vs. Radha
Krishna Singh (supra). While considering the evidentiary value of a
document or a statement as to genealogy, a court would be called upon to
consider its relevance and probative value as opposed to its strict
evidentiary value. Chapter II of the Indian Evidence Act which bears the
title "OF THE RELEVANCY OF FACTS" sets out the circumstances, in
which facts are said to be relevant. A fact is said to be relevant to another
when the fact is so connected with the other in any of the ways referred to
in the provisions of Chapter II of the Evidence Act. Section 32(5) & (6) fall
in Chapter II and set out the circumstances in which statements of dead
persons,or persons who cannot be found or who have become incapable of
deposing, are relevant. It is, therefore, abundantly clear that while
considering the relevance of a fact, oral or unsigned statements cannot be
summarily discarded and may, in a given situation, be considered
relevant, provided however, that they fulfill the ingredients of "relevancy"
set out under Chapter-II of the Indian Evidence Act and in view of the facts
of the present case the ingredients of Sections 32(5), (6) and 50 of the
evidence Act.
It would be necessary to refer to another aspect, namely,
that apart from placing reliance upon the pedigree table Ex.D-14 the courts
Regular Second Appeal No.730 of 1981 18
below have placed reliance upon the statements made by Smt. Attri and
other relatives etc., in another suit, to hold that these statements
corroborate the relationship between the respondents and Harjalla, as
reflected in the pedigree table Ex.D-14. While recording these
conclusions, the courts below were apparently influenced by the provisions
of Section 50 of the Indian Evidence Act. It would, therefore, be
appropriate to refer to the provisions of Section 50 of the Indian Evidence
Act, which read as follows:-
"50. Opinion on relationship, when relevant
When the Court has to form an opinion as to the relationship of
one person to another, the opinion, expressed by conduct, as to
the existence of such relationship, of any person who , as a
member of the family or otherwise, has special means of
knowledge on the subject, is a relevant fact:
PROVIDED that such opinion shall not be sufficient to prove a
marriage in proceedings under the Indian Divorce Act, 1869(4 of
1869), or in prosecution under sections 494, 495, 497 or 498 of
the Indian Penal Code, 1860 (45 of 1860).
Section 50 enables a court to draw an inference or form
an opinion as to relationship of one person to another from previous
conduct. A reference to a judgment of the Hon'ble Supreme Court setting
out the nature and the import of Section 50, would be appropriate. In
Dolgobinda Paricha v. Nimai Charan Misra & others AIR 1959,
Supreme Court, 914, while considering the provision of Section 50 of the
Evidence Act, it was held as follows:-
"We proceed to consider the second question first. The Evidence
Act states that the expression "facts in issue" means and
includes any fact from which either by itself or in connection with
Regular Second Appeal No.730 of 1981 19
other facts the existence, non-existence, nature or extent of any
right, liability or disability asserted or denied in any suit or
proceeding necessarily follow; "evidence" means and includes (1)
all statements which the Court permits or requires to be made
before it by witnesses in relation to matters of fact under enquiry;
and (2) all documents produced for the inspection of the Court. It
further states that one fact is said to be relevant to another when
the one is connected with the other in any one of the ways
referred to in the provisions of the Evidence Act relating to the
relevancy of facts. Section 5 of the Evidence Act lays down that
evidence may be given in any suit or proceeding of the existence
or non-existence of every, fact in issue and of such other facts as
are declared to be relevant and of no others. It is in the context of
these provisions of the Evidence Act that we have to consider S.
50 which occurs in Chapter II, headed "Of the Relevancy of
Facts". Section 50, in so far as it is. relevant for our purpose, is in
these terms :
"Section 50. When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact".
On a plain reading of the section it is quite clear that it deals with relevancy of a particular fact. It states in effect that when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The two illustrations appended to the section clearly Regular Second Appeal No.730 of 1981 20 bring out the true scope and effect of the section. It appears to us that the essential requirements of the section are - (1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the "belief" or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved. We are of the view that the true scope and effect of section 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal 299 at p. 309 : (AIR 1943 Cal 76 at p. 80).
''It is only 'opinion' is expressed by conduct which is made relevant. This is how the conduct comes in. The offered item of evidence is 'the conduct', but what is made admissible in evidence is the opinion, the opinion as expressed by such conduct. The offered item of Regular Second Appeal No.730 of 1981 21 evidence thus only moves the Court to an intermediate decision : its immediate effect is only to move the Court to see if this conduct establishes any 'opinion' of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the Court to infer 'the opinion', the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the 'opinion'.
When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, 'the opinion of a person'. It still remains for the Court to weigh such evidence and come to its own opinion as to the 'factum probandum'- as to the relationship in question."
We also accept as correct the view that S. 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship : 'Lakshmi Reddi v. Venkata Reddi, AIR 1937 PC 201."
The position in law is, therefore, clear that it is the relevance of a document and not its strict evidentiary proof that would determine whether it should be considered relevant or not. An unsigned document cannot be discarded merely because its author is unknown or its origin is uncertain if the question is one of relevance. The contents of an unsigned document, corroborated by other evidence arising from past conduct would be relevant, particularly where parties seek to trace their lineage or pedigree. The fourth and fifth questions of law are, therefore, answered by holding that the courts below rightly invoked the provisions of Section 32 (5), (6) and Section 50 of the Evidence Act, to hold that the unsigned pedigree table duly corroborated by evidence of past conduct is a relevant Regular Second Appeal No.730 of 1981 22 piece of evidence. It would, now be appropriate to examine whether the courts below have applied the above principles correctly while holding that the respondents are agnates of Harjalla and, therefore, entitled to succeed to the estate of Smt. Attri, who died issueless. An agnate is a person who is related to another by blood or adoption, wholly through males. A person claiming a right as an agnate would, therefore, be required to prove (a)relationship by blood or adoption and (b) to trace the relationship by degrees of descent or ascent to a common ancestor. The respondents claim that they are agnates of Harjalla as they are descended from a common male ancestor.
The courts below are concurrent in their opinion that the respondents' are agnates of Harjalla husband of Ms. Attri, as they have successfully traced their lineage to Harjalla, through Ram Dass, a common ancestor. In support of this conclusion the courts below, have placed reliance upon pedigree tables Ex. D-7, Ex. D-8, Ex.D-9 and upon the unsigned pedigree table Ex. D-14. The pedigree table Ex. D-14, though unsigned, has been held to be "relevant" by relying upon the provisions of Section 32 (5) and (6) of the Indian Evidence Act, 1872. In addition, it has been held that as this pedigree table was appended with a signed lists of documents Ex.D-10, filed in a suit filed by Sunder and Dalel and would therefore be deemed to be their statement. It was also held that Ex.D-14 was produced from the judicial file of the earlier suit. The courts below also held that Sunder was from the branch of Dharam Chand and Dalel Singh from the branch of Dipal and as both Sunder Singh and Dalel Singh were members of the family, they had special means of knowledge with respect to relationship within the family. The relationship was further fortified as in a prior suit Ms. Attri had herself deposed, in her statement Ex.D-19, that she had received half the estate of Nando widow of their collateral named Khushali by virtue of mutation Ex.D-6, and had even Regular Second Appeal No.730 of 1981 23 redeemed this land.
It would be necessary to once again mention here that Sunder is the father of Kehar Singh whereas Dalel Singh is father of Harjalla, husband of Attri. The aforementioned suit was filed to challenge a mortgage created by one Smt. Bishni widow of Hira. Sunder belongs to the branch of Dharam Chand and Dalel Singh to the branch of Dipal. Both Sunder and Dalel Singh passed away long before the present dispute arose. Dit Singh respondent no.3's deposition that their common ancestor's brother Maluka was ancestor of Khushali. husband of Smt. Nando, has not been assailed in cross examination. The mutation Ex.D-6 goes to show that after the demise of Smt. Nando widow of Khushali., land was inherited by the five branches of the common ancestor as given in the pedigree table. the sixth branch headed by Karan Chand having become extinct. Inheritance of this land by the five branches equally, further fortifies the relationship depicted by the pedigree table Ex.D-14 and is, therefore, evidence of the fact that this relationship was recognised and acted upon. In her statement Ex.D-19, recorded in this suit, Ms. Attri admitted to having inherited and redeemed the land of Khushali. It would also be necessary to mention here that the deposition of Dit Singh DW-1 is in consonance with the pedigree table.
The facts referred to above have been held to corroborate the lineage set out in the pedigree table Ex.D-14. The opinion recorded by the courts below is based upon relevant pleadings and evidence and is neither arbitrary nor perverse. The reasons assigned by the courts below are clear, rational and recorded after a considered appraisal of the pleadings and the evidence. The genealogy set out in the unsigned pedigree table is fortified by the evidence referred to above. The pedigree table referred to in Ex.D- 14 was rightly held to be relevant to draw an inference under Section 32 (5) & (6) and Section 50 of the Indian Evidence Act. It would also be Regular Second Appeal No.730 of 1981 24 necessary to mention here that the prior suit was filed more than 30 years before the present dispute arose. The statement about the relationship in dispute was made by Sunder Singh and Dalel Singh , who have both passed away , much before the dispute in the present case arose. Being members of this family they had special means of knowledge about their genealogy. The documents Ex-D10 and Ex-D-14 were produced from the record of the earlier suit and are corroborated by other evidence The courts below, therefore, did not commit any error in placing reliance upon the unsigned pedigree table Ex.D-14.
It would be appropriate to briefly deal with the contention that the pedigree table Ex.D-14 refers to the common ancestor as Sahai father of Jai Ram whereas the respondents assert that the common ancestor as Jai Ram father of Sahai. The first appellate court considered this aspect and rightly held that it was an inadvertent error in the document that does not materially effect the final outcome. Consequently, it would have to be held that the confusion, if any in the pedigree table is irrelevant and does not raise any substantial question of law.
The seventh question of law is whether the courts below have overlooked material circumstance which disprove the claim that the respondents are agnates. I have considered the aforementioned question but as counsel for the appellants have failed to refer to any circumstance as would disprove the claim that the respondent are agnates, the said question cannot be held to be a substantial question of law.
The eight question of law arises from a finding recorded by the first appellate court that the respondents are tenants over the suit land. The respondents in addition to asserting their right to inherit the estate of Smt. Attri, also asserted that during her life time the land had been given to them as tenants. The appellants denied this fact and, therefore, the trial court framed issue no.6 with respect to the plea of tenancy. The trial court Regular Second Appeal No.730 of 1981 25 found as a matter of fact that the respondents were shown to be in cultivating possession of the suit land,as tenants, in copies of the jamabandi for the year 1945-1946, Ex.D-36, 1952-1953, Ex.D-37, 1956- 1957, Ex.. D-38, 1965-1966, Ex.D-39, 1970-1971, Ex.D-40 and D-41. On the basis of the unrebutted entries in the revenue record, the trial court held that the respondents were tenants over the suit land, during the life time of Smt. Attri. Counsel for the appellants has failed to refer to any evidence or advance any argument that would rebut the presumption of truth attached to a jamabandi. I have, therefore, no hesitation in holding that the eighth question is neither a question of law nor a substantial question that would require consideration in second appeal. .
In view of what has been stated herein above, the appeal is dismissed and the judgments and decrees of the courts below are affirmed, with no order as to costs.
May 30th, 2009 (RAJIVE BHALLA) nt JUDGE