Patna High Court
Ganesh Narain Singh And Anr. vs Jadunandan Singh And Ors. on 23 February, 1967
Equivalent citations: AIR1969PAT82, AIR 1969 PATNA 82
JUDGMENT S.C. Misra, J.
1. This is an appeal by the plaintiffs. The plaintiffs filed a suit for declaration of title and recovery of possession of the land having an area of .09 acre bearing plot No. 4114 in khata No. 290 of village Deo. According to the plaintiffs, Jhari Dhanger had a son Somar and a daughter Somaria. Somaria had a daughter Mt. Sanichari. According to the defendants, however, Jharia had two sons Somar and Bishun. Bishun was married to Somaria. She died issueless and Mt. Sanichri was falsely set up as daughter.
2. Plot No. 4114 was recorded in the names of Somar and Somaria half and half in the record of rights. Somar sold his half share to Somaria for Rs. 35/- by a sada sale deed on 18-6-1926 when Somaria came in possession. When she died, her daughter Sanichri came in possession. Then on 14-10-1950 Sanichari sold this land to the plaintiffs by a registered sale deed for Rs. 500/- together with some other lands. After that there was a dispute between the parties which ended in a proceeding under Section 145, which was decided against the plaintiffs. Accordingly the present suit was filed on 26-11-1950.
3. The defendants' case was, as mentioned above, that Somaria was not the sister of Somar but wife of Bishun and sister-in-law of Somar. After her death, the property devolved on Mangri who was daughter of Somar and she sold it to the defendants on 20-11-1948. Sanichari not being the daughter of Somaria the kebala in favour of the plaintiffs was a bogus document.
4. According to the trial court, Somaria was sister-in-law of Somar and Sanichari was her daughter and that the plaintiff acquired valid title under the sale deed by Sanichari as her mother acquired the interest of Somar also by Sada sale deed in 1926 and was duly in possession. Hence the plaintiff's suit was decreed as his suit was within 12 years from the date of the execution of the sale deed in his favour by Sanichari. The Court of appeal below also affirmed the judgment of the trial Court except that it left the question of the relationship of Mangri and even that of Somaria with Somar undecided.
5. Mr. Prem Lal has fairly conceded that this appeal would be concluded by finding of fact but for the fact that the finding with regard to the relationship is vitiated because the witnesses for the plaintiffs, who came to depose about the relationship of the parties in the case, such as P. Ws. 1, 3 and 5, did not depose as required under Section 50 of the Indian Evidence Act and as such their evidence on the point of relationship could not have been acted upon by the courts below. So far as P. W. 1 is concerned, he stated as follows:
"Deo ke Somar Kalan Dhanger ko main janta tha. Somaria Somar ki bahan aur Bisu ki aurat thi. Yeh satya nahin ki Somar aur Bisu Bhai the. We sale bahnoi the."
More questions were put to him with regard to the knowledge of relationship of various members of the family, all of which he answered and stated further that his own village Bhawanipur was contiguous to village Deo. He stated further:
"Somaria Somar ko bhai bhai kahti thi. Isliya main jant hun ki woh Somar ki bahan thi."
P. W. 3, who was one of the plaintiffs, also spoke thus:
"Somaria Somar ki bahan thi. Somar ne takrari plot men apna hissa Somaria ko sada kaghaz dwara kebala kar diya aur Somaria ka solah anna makan par kabza hua."
In cross-examination he stated as follows:
"Somaria kahanse aye thi mai nahin bata sakta. Somar aur Somaria ko main ne aath bars ki umar men dekha tha."
P. W. 5 also stated thus:
"Sanichari Somari ki larki thi, Somaria Somar Kalan Dhangar ki bahan thi."
He is a resident of village Deo. He also stated that Mt. Sanichari was the daughter of Somaria. All these witnesses are, therefore, men of the locality, one of village Deo and two of the neighbouring village Bhawanipur, Mr. Prem Lal has contended that the evidence of these three witnesses cannot be held to be in compliance with the terms of Section 50 of the Evidence Act. He has drawn my attention in this connection to the decision of the Supreme Court in Dolgobina Paricha v. Nimai Charan Misra, AIR 1959 SC 914, which has approved the decision of the Calcutta High Court in Chandu Lal Agarwalla v. Bibi Khatemon-nessa, AIR 1943 Cal 76, Learned counsel has contended that their Lordships of the Supreme Court have laid down 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. Further it was laid down that Section 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship. The conduct or outward behaviour must be proved in the manner laid down in Section 60. That is to say, if the conduct relates to something which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it. That portion of Section 60 which provides that the person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of Section 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. Conduct, as an external perceptible fact, may be proved either by testimony of the person himself whose opinion is evidence under Section 50 or by some other person acquainted with the facts which express such opinion and when such evidence is given by persons personally acquainted with such facts, the testimony in each case is direct within the meaning of Section 60.
The crux of the argument of Mr. Prem Lal is that the gist of the decision of the Supreme Court is that whenever such relationship between A and B is to be considered by a court it can only act upon that which is the opinion of a person having special means of knowledge expressed by conduct. In the present case the witnesses who have come to depose have not said that they had the special means of knowledge nor have they deposed to any conduct which would show that there is reason to think that the relationship deposed to by them existed between Somar, Somaria and Sanichari. In my opinion, however, this cannot be the effect of the judgment of the Supreme Court referred to above. It is true no doubt that in terms of Section 50 such a conclusion may follow and when a person has come to depose about his own opinion he must establish special means of knowledge expressed by conduct.
As their Lordships have pointed out, Section 50 hag to be read along with Section 60 of the Evidence Act and there may be evidence also of persons having special means of knowledge with regard to the conduct of a member of the family in relation to the persons whose relationship is in issue before the Court. Thus, if a man belongs to a certain village, who comes in frequent contact with the members of the family and has occasion to watch the conduct of one member towards another he must be taken to be a person with special means of knowledge and if he has watched this, then his evidence must be admissible under Section 60 as evidence of a person who has heard how one member of the family is addressed by another, who has seen how one member is treated by another member of the family and as such he must be a person of special means of knowledge.
It is true no doubt that when such evidence is given it is open to the counsel for the other side to cross-examine hum to test his special means of knowledge. But it would not be correct to say that the effect of the pronouncement of the Supreme Court is that in no case can evidence be given with regard to the relationship by a person who is not a, member of the family. It was held in Ramadhar Chaudhary v. Janki Chau-dhary, AIR 1956 Pat 49 that a person who, although not a member of the family, has special means of knowledge about the relationship of the parties, can speak in the witness box of what he has been told, and what he has learned about the relationship of the parties provided what he says is an expression of his own independent opinion. The words "or otherwise" in Section 50 clearly contemplate such a case.
A single Judge of this court also had occasion to consider this matter in Bhogal Paswan v. Mt Bibi Nabihan, AIR 1963 Pat 450. In that case the question was whether plaintiff was the daughter of one S. M. Evidence was given by witnesses who were co-villagers, some of them being castemen and neighbours, having in some cases at least lived in the same village and in the same neighbourhood since the lifetime of S. M. The witnesses testified that S. M. died leaving behind his widow and her daughter the plaintiff, that the properties of S. M. devolved jointly on the widow and the plaintiff, that the widow was living jointly with the plaintiff and was in joint possession of the lands in suit and after the widow's death, the plaintiff alone remained in possession.
It was held that the evidence given by the witnesses satisfied the requirements of Section 50, Evidence Act, and as such, was admissible to prove the parentage of the plaintiff. Mr. Prem Lal, however, relied on another decision of this court in Smt. Fulkalia v. Nathu Bam, AIR 1960 Pat 480. In my opinion, however, that decision cannot be said to be laying down any proposition different from what is contained in the aforesaid two decisions and it was held that when evidence has to be given under Section 50 with regard to the relationship it must be opinion expressed by conduct of the person who has come to depose, but when it has to be given by some other person acquainted with the facts which expressed such opinion, when the testimony must relate to external facts which constitute conduct and if given by persons personally acquainted with the facts, in that case evidence becomes direct testimony. In Sheojee Tiwary v. Prema Kuer, AIR 1964 Pat 187 it has been laid down that a witness can also give his opinion in evidence as to the relationship of one person to another that is in controversy before a court, provided that opinion is expressed by his conduct, and if he as a member of that family or otherwise has special means of knowledge of that relationship.
In that case the question was not considered in the light of Section 50 read with Section 60 but Section 50 read with Section 32(5) of the Evidence Act. This case, therefore, is not relevant for deciding the present controversy. I have already pointed out that their Lordships have approved the decision of the Calcutta High Court in AIR 1943 Cal 76. That was, however, a case where the matter was considered with reference to Section 50 of the Evidence Act and Section 60 was not gone into.
6. In the result, therefore, there appears to be no substance in the objection raised on behalf of the appellants. The appeal is accordingly dismissed with costs.