Patna High Court
Smt. Fulkalia vs Nathu Ram And Ors. on 11 May, 1960
Equivalent citations: AIR1960PAT480, AIR 1960 PATNA 480, ILR 39 PAT 891
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Untwalia, J.
1. This appeal under Clause 10 of the Letters Patent is directed against the judgment and order dated 8-9-1959, passed by Sahai, J., in Testamentary Case No. 8 of 1956, dismissing the application of the appellant to revoke the Letters of Administration granted to the Administrator-General and to grant them to her. The facts giving rise to the present appeal are shortly these : One Mahadeo Bania (Halwai) was living in a two-storeyed house in Jugsalai, a suburb of Jamshedpur town in the district of Singhbhum. He was living alone there for a considerable number of years, almost throughout his life. In October, 1951, he died an unnatural death, being murdered by some unknown person or persons. The property left by him was the house and the premises appertaining thereto.
The Administrator-General of Bihar got information about his death, and he wrote a letter dated 19-12-1951, to the District Judge of Manbhum-Singhbhum at Purulia, asking for a report under Section 54 of the Administrator-General's Act (Act III of 1913) and for his appointment under Section 269 of the Succession Act to take possession of the properties left by the said deceased. He was directed by the learned District Judge to apply to the Subordinate Judge at Jamshedpur who had jurisdiction to deal with such matter occurring within his territorial jurisdiction. On the Administrator-General's writing to the learned Subordinate Judge, he started Intestate Case No. 1 of 1952, the order sheet of which is Ex. 8 in this case. On 23-1-1952, he directed issue of general notice calling claimants, if any, to file their claims by 20-2-1952.
He also directed an enquiry by the Officer-in-charge of the Jugsalai Police Station. Before the general notice could be issued, or the report of the Officer-in-charge could be received, a person claiming to be Biharilal Bania filed a petition on 2-4-1952, in the Subordinate Judge's Court at Jamshed-
pur, He claimed the properties of Mahadeo Bania, the deceased. While the claim of the petitioner said to be Biharilal Bania was pending investigation, he (the claimant) died on 17-8-1952, and after his death one Mewalal, claiming to be the son of a deceased daughter of Bihari, filed a petition claiming the properties in question.
There was some correspondence in this regard between the Administrator-General and the Government Pleader at Jamshedpur. The learned Subordinate Judge also was informed of the position from time to time. Ultimately, the Administrator-General filed Testamentary Case No. 1 of 1953 in this Court for grant of Letters of Administration to him in respect of the estate of Mahadeo Halwai. This petition is Exhibit 1 in the record of this case. In the 12th paragraph of this petition it was stated that Mewalal, even according to the genealogy given by him, had no case, and in the 13th Paragraph it was asserted-
"that the deceased Mahadeo Halwai had been living all alone and carrying on business at Jugsalai for over 25 years before his death. Your petitioner further understands from the statements of a number of persons made to and recorded by the aforesaid Assistant Mr. A. Rauf, who were tenants of the deceased Mahadeo Halwai and are still residing in the premises of the deceased that the deceased himself used to repeat off and on that he had no relations or heirs and no relative was ever seen by them to visit him, and no person claiming to be an heir of the deceased Mahadeo Halwai has ever approached any of them for any purpose."
This petition was filed on the 3rd of February, 1953. On the 13th of May, 1953, an objection petition (Exhibit 3) was filed on behalf of the opposite parties, namely, Mewalal, Fulkalia and others in Testamentary Case No. 1 of 1953. It would appear from the Vakalatnama (Exhibit E) filed in that case that all the opposite parties had appeared and filed the said objection petition through Shri Nripendra Nara-yan Roy, Advocate. Ramaswami, J. as he then was, granted the Letters of Administration by his order dated the 4th of August, 1953 (Exhibit 2) to the Administrator-General under Section 7 of the Administrator-General's Act. In the penultimate paragraph of the order His Lordship observed :
"If the affidavit filed on behalf of the objector is true and if Mosstt. Fulkalia is daughter of Bihari Bania and niece of Mahadeo Bania, it is undoubtedly open to her to file a proper application for letters of administration and obtain a grant. But no such grant has so far been obtained by Mosstt. Fulkalia and the application filed on behalf of the Administrator-General of Bihar for grant of the letters of administration of the estate of Mahadeo Bania is competent."
In pursuance of this order, it is stated, the Administrator-General took possession of the properties on the 30th of August, 1953.
2. If the genealogical table given on behalf of the appellant showing the relationship between the parties be correct, it is obvious that Fulkalia being the daughter of Bihari Bania, who was said to be the brother of Mahadeo Bania, had the topmost claim and the other contesting opposite parties of Testamentary Case No. 1 of 1953, namely, Mewa Lal, Ghhotey Lal, two sons of deceased daughter Duh'a and Kalawati, a minor daughter of another deceased daughter Kamla, had no case. Instead o£ applying for grant of Letters of Administration, as observed in the order of Ramaswami, J. (as he then was), (Exhibit 2), it appears from Kxiiibit 4, the succession certificate, that Mussarnmat Fulkalia applied on 16-1-1954, in the Court of the District Judge of Manbhum-Singhbhum at Purulia for a succession certificate in respect of a sum of Rs. 900, said to be arrears of rent due from one Bisambhar Maharaj in respect of the house in question, and the said certificate was granted to her on 20-4-1954.
Thereafter, she proceeded to sell the house in question for a sum of Rs. 15,000 only to one Sardar Kartar Singh, and the then Administrator-General Mr, G, P. Shahi applied for permission to execute a fresh conveyance in favour of the said Sardar in respect of the house. This permission was granted on 5-8-1955. It is admitted on all hands that that permission had been obtained under some misrepresentation of facts, and, therefore, the said order was recalled by Ramaswami J. as he then was, on 10-9-1956. A Letters Patent Appeal against that order also failed, and the decision of the Letters Patent Bench is reported in Kartar Singh v. Administrator-General of Bihar, AIR 1959 Pat 349.
Be that as it may, the fact remains that Mos-sammat Fulkalia attempted to sell the property for a grossly inadequate price, but failed in her endeavour. Ultimately on 20-9-1956, she filed the application giving rise to the present proceeding which was numbered as Testamentary Case No. 8 of 1956.
3. The case of the appellant, in short, is that Maliadeo Halwai died intestate and issueless, and on his death his estate devolved upon Bihari Bania, his brother and only heir. Bihari Bania also died on 17-8-1952, leaving the appellant as his nearest heir. The parties are said to be residents of Uttar Pradesh in the district of Allahabad. She prayed for, as stated above, revocation of the grant of Letters of Administration to the Administrator-General and for their grant to her.
By an amendment petition filed on 5-7-1957, she sought to introduce an amendment in her case that really the controversy was in respect of the estate of Bihari Bania and not in respect of the estate of Mahadeo Bania as the same had devolved upon Bihari after the death of Mahadeo. The Letters of Administration, according to her, which were granted to the Administrator-General in respect of the estate of Mahadeo were irregular in that case. By another amendment petition filed on 27-11-1957, she gave four grounds as mentioned in that petition as1 grounds A. B, C and D in support of her case as to why the Letters of Administration granted to the Administrator-General should be revoked.
The Administrator-General has refuted the allegations made on behalf of the appellant and resisted her prayers. The learned Judge of this Court sitting on the original side has rejected the application, chiefly on the ground that it has not be?n established by legal and reliable evidence that Mahadeo Bania died leaving Bihari Bania as his brother and heir, or for the matter of that, any other heir. The learned Judge has answered most of the technical points raised on behalf of the Administrator-General against him. I shall briefly indicate them in my judgment hereinafter, but in view of the agreeing decision which I am going to give in regard to the main question, I do not think it would be necessary to decide any of the technical questions.
4. There is absolutely no documentary evidence, not even a chit of paper, in support of the appellant's case that Bihari Bania was the brother of Mahadeo Bania. Exhibit 7, the report of the Officer-in-charge of Jugsalai Police Station has got no evidentiary value, and I shall deal with it when I come to deal with his evidence. The oral evidence consists of that of the appellant herself, who was examined On commission, and that of Ramdhani Dwivedi (P.W. 1) and Ramdas Bania (P.W. 2). There was a controversy before the learned trial Judge as to whether the evidence of Fulkalia recorded on commission at Allahabad could be read as evidence in this case.
The same controversy was faintly raised on behalf of the Administrator-General in this Court also, I think, on the facts and in the circumstances of this case, her evidence has been rightly read as evidence in the case by the learned Judge, and I shall also not discard her evidence on the technical grounds that she was in a position to come and depose in Court at the time her evidence was utilised as evidence in the case at the time of argument. Coming to her evidence, however, I find that she has not specifically stated in her examination-in-chief that Bihari was brother of Mahadeo. She has no doubt said that Mahadeo was her uncle and Bihari was her father. Inferentially, therefore, it may suggest that she claimed Bihari to be the brother of Mahadeo.
In her cross-examination she said that she had gone to Jamshedpur and Tatanagar only once, about five years prior to her deposition. But it is strange that the other two witnesses did not claim to have seen her there. There is no evidence on behalf of the appellant to show as to who came after the murder of Mahadeo Bania and whether Bihari came and took any interest in bringing to book the alleged murderer. When cross-examined On behalf of the opposite party No. 4 she stated that she could not say whether the house in which Mahadeo lived was a single storeyed, double storeyed or triple storeyed building. She further said that she had not seen the town of Jamshedpur.
These answers suggest that she had never gone to the town of Jamshedpur as claimed by her earlier in cross-examination. In my opinion, the learned Judge has rightly refused to place any reliance upon her evidence in order to establish the alleged relationship between Mahadeo and Bihari. It further appears that she is merely a tool in the hands of somebody as in regard to the succession certificate obtained against Bisambhar Maharaj she said that she did not know him and that she did not know if any person named as Bisambhar Maharaj was a tenant of the house in question.
She further stated that she did not file any case for the rent of the house against him. The evidence of P. Ws. 1 and 2 is not admissible in evidence as it does not fulfil the requirements of Section 50 of the Evidence Act. In a recent Supreme Court decision, namely, Dolgobinda Paricha v. Nimai Charan Misra, AIR 1959 SC 914, the law has been locidly laid down and on reference to the relevant provisions of the Evidence Act, Das, J. said :--
"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 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 thai : 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 v. Khalilar Rahman, ILR (1942) 2 Cal 299 at p. 309 : AIR 1943 Cal 76 at p. 80.
'It is only 'opinion as 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 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 probandurn' -- as to the relationship in question.' We also accept as correct the view that Section 50 does not make evidence of mere general reflation (without conduct) admissible as proof of relationship :" Lakshmi Reddi v. Venkata Ki;cldi, AIR 1937' P.C. 201.
After referring to Section 60 of the Act His Lordship has further observed :
"If we remember that the offered item of evidence under Section 50 is conduct in the sense explained above, then there is no difficulty in holding that stick conduct or outward behaviour must be proved in the manner laid down in Section 60; 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; and so on. The conduct must be of the person who fulfils the essential conditions of Section 50, and it must be proved in the manner laid down in the provisions relating to proof.
It appears to us that 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 the testimony of the person himself whose opinion is evidence under Section 50 or by some other person acquainted with the facts which express suck opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of Section 60. This, in our opinion, is the true interrelation between Section 50 and Section 60 of the Evidence Act"
Applying this test to the evidence of P.Ws. 1 and 2 it will be noticed that their evidence falls far short of the requirement of the law. It is in the nature of a general reputation evidence which is not at all evidence. These are the two persons who had given evidence before the Officer-in-charge, Jugsalai Police Station, when he made the enquiry. But that is of no consequence.
5-6. (His Lordship then discussed the evidence and continued as under:) On a consideration of the entire evidence adduced on behalf of the appellant I am definitely of the view that no reliable and legal evidence has been adduced on behalf of the appellant in this cnse in support of the alleged relationship between Maliadeo and Bihari. In that view of the matter I hold, in agreement with the learned trial Judge, that the basis of the case is gone and it has no le.es to stand upon, even though the appeal-lant may be a daughter of one Bihari Bania.
7. I have already alluded to Exhibit 4, succession certificate granted in favour of in regard to a sum of Rs. 900/- said to be due from Risambhar Maharaj. This certificate was extended on 2-1-1957, by grant of an extended succession certificate, exhibit 4fa), to cover two more debts, (1) an alleged debt of Rs. 20,000/- from the Admims-trator-General. and (2) Rs. 1000/- from One (sic) Alam. These amounts also are said to be due on account of arrears of rent of the house in question. On the basis of these two succession certificates, Exhibits 4 and 4fa), especially placing very great reliance on the latter, it was argued by Mr. Prem Lall that they conclusively show that the appellant is entitled to the house in question and to the grant of Letters of Administration in respect of that. The simple answer is that under Section 381 of the Indian Succession Act the effect of such certificate is to make it conclusive with respect to the debts specified therein as against the persons owing such debts and to afford full indemnity to such person or persons as regards all payments made in good faith in respect of such debts to the person to whom the certificate is granted.
The grant of the certificate, therefore, to the appellant in regard to the debts said to be due from Bisambhar Maharaj and Mahmud Alam cannot affect the rights of the Administrator-General under the Administrator-General's Act and cannot be a ground for revocation of the Letters of Administration granted to "him. The grant of a succession certificate with respect to the alleged debt due from the Administrator-General is a curious thing. The Administrator-General was granted Letters of Administration long before the grant of this certificate to FulkaJia. The grant of a succession certificate to her, therefore, in respect of the alleged debt on account of arrears of rent is very peculiar and cannoti affect the rights of the Administrator-General in the least.
Moreover, under Section 385 of the Succession Act a certificate granted under that Act in respect of any of the effects of the deceased person shall be invalid if there has been a previous grant of Letters of Administration in respect of the estate of the deceased person and if such previous grant is in force. The Administrator-General was granted Letters of Administration in respect of the estate of Mahadeo Bania, the deceased person. He never admitted that he left any Bihari Bania as his brother. The succession certificates, Exhibits 4 and 4(a), also relate to the estate of Mahadeo Halwai or Bania. They are, therefore, obviously invalid in view of the provision of Section 385 of the Succession Act.
8. I shall now just indicate the two main technical arguments which were advanced and are involved in the case. It was argued by the learned Government Advocate on behalf of the Administrator General that the Letters of Administration, once, granted to the Administrator-General under Section 7 of the Administrator-General's Act (Act III of 1913), could not be revoked except under Section 18 of this Act. Mr. Prem Lall conceded that the appellant could not bring her case for revocation of the grant of Letters of Administration to the Administrator-General under that provision.
But he contended that his client's case came under Section 263 of the Succession Act, and Letters of Administration granted under Section 7 of the Administrator-General's Act could be revoked under Section 263, of the Succession Act. Mr. Lal Narayan Sinha combated this position of law. I do not think it is necessary to decide this question, as even assuming that grant could be revoked under Section 263 of the Succession Act, it is obvious that on the finding of fact arrived at by me above, the grant cannot be revoked even under that povision of law as it does not come under any of the clauses in that section or under any other principle akin to it.
9. Mr. Lalnarayan Sinha further contended that Letters of -Administration were granted to the Administrator-General as they had not been granted to the next-of-kin of the deceased at that rime. The section does not say that such Letters of Administration are granted "until they are granted to the next- of-kin of the deceased". But the word is "unless" in the section. He, therefore, submitted that even if it be found that there was a next-of-kin and in spite of the observations of Ramaswami, J., as he then was, in his order granting Letters of Adminis- tration to the Administrator-General in the penultimate paragraph of the order as quoted by me above, Letters of Administration granted to the Administrator-General could not be revoked and could not be granted to the appellant. Again, I feel it is not necessary to decide this contentious question of law. I would have proceeded to decide both these questions if I would have found that the appellant was the next-of-kin of the deceased. But, as I have stated above, they do not fall to be decided in view of my finding of affirmance on the main question of relationship between Mahadeo Bania and Bihari Bania.
10. In the result, this appeal fails and is dismissed with costs. Hearing fee Rs. 100/-.
Kanhaiya Singh, J.
11. I agree.