Patna High Court
Uma Devi And Ors. vs Ram Charan Ram And Ors. on 19 May, 1986
Equivalent citations: 1987(35)BLJR265
JUDGMENT Prabha Shanker Mishra, J.
1. This appeal has been admitted to hearing on the question whether the courts below are justified in rejecting the plaint and dismissing the suit and the appeal after holding that the plaintiffs are the sons of Budhan Ram.
2. It is not in dispute that the suit property belonged to Tunna Ram. According to the plaintiffs Tunna Ram had three sons namely, Mangaru Ram, Budhan Ram and Horil Ram. Sons of Mangaru Ram, Budhan Ram and Horil Ram are entitled to 1/3rd share each. According to defendant No. 1, who is Mangru Ram's son, Budhan Ram and Horil Ram were not Tunna Ram's sons. He has said that Tunna Ram had a wife Sahodri. But after Tunna Ram's death she was married to one Ram Dhani Ram, who had two sons Budhan Ram and Horil Ram from another wife. The Court below has found that Budhan Ram and Horil Ram were sons of Tunna Ram. The suit, however, has been dismissed on the ground that the plaintiffs have not been able to establish unity of title, and thus are not entitled to claim partition. On this finding, learned Counsel for the appellant has submitted that the court below has committed error of law in as much as once it is found that Mangaru Ram, Budhan Ram and Horil Ram are brothers in absence of any proof of partition by meets and bounds, it could not be held by the court of appeal below that the plaintiffs have got no unity of title. There is, however, a cross-objection also. In the cross-objection the finding that Mangaru Ram, Budhan Ram and Horil Ram are brothers has been challenged on the ground that the sole evidence on which this finding has been recorded is inadmissible. The only evidence, which has been relied upon by the court of appeal below on the question of relationship, is Ext. 'B', which is said to have been executed by Mostt. Sukari wife of Munna Kahar in favour of her daughter, Gangia Devi, wife of Horil Ram, on 17-2-1934. In this document there is mention that the transferee Mostt. Gangia Devi is the wife of Horil Ram, who is the son of Tunna Ram. This document also mentions that Ram Sharan Ram is the son of Horil Ram, The court of appeal below has found that the statement that Ram Sharan Ram is the son of Horil Ram is not true. Still it has relied upon Ext. 'B', the said deed of gift, to hold that Horil Ram and Budhan Ram are the sons of Tunna Ram. Except this document Ext. 'B', no other evidence has been accepted by the court of appeal below. It has said in its judgment "so obviously there is no oral evidence on the record worth the name adduced either on behalf of the plaintiffs or defendant No. 6 which could be said to be evidence relevant Under Sections 50 and 60 of the Evidence Act. So obviously, the plaintiffs have failed on oral evidence to establish that they, or for that matter defendant No. 6, are the heirs of Tunna Ram". Since, I find that the court of appeal below having found that Horil Ram and Budhan Ram are the sons of Tunna Ram has disbelieved the case of the defendant No. 1, it is obvious, it has fallen in error holding that the plaintiffs have not been able to prove unity of title.
3. Ext. 'B' is the document executed by Sukari in favour of Gangia Devi, who has been described as wife of Horil Ram. In the said document Horil Ram has been described as the son of Tunna Ram. Sukari Devi is dead.
4. The deed of gift is, dated 17-2-1934. The court of appeal below has taken notice of Section 90 of the Evidence Act and rightly presumed that the signature and every other part of Ext. 'B' had been duly executed and attested by Sukari Devi. He has, however, gone beyond the presumption Under Section 90 of the Evidence Act to presume that the statement that Horil Ram is the son of Tunna Ram is admissible. In fact he has not considered the question of admissibility at all. Statements made by a person who is dead are admissible if they fail in one or the other class of cases specified in Section 32 of the Indian Evidence Act. The relevant provision is Section 32 (5) of the Evidence Act envisages:
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.
Not many authorities are required to be referred to for demonstrating that the statement in the deed of gift executed by Sukari Devi that Horil Ram is the son of Tunna Ram is inadmissible. In Dolgobinda v. Nimai Charan the Supreme Court has considered the law and quoted with approval a decision of the Madras High Court in the case of Subbiah Mudaliar v. Gopala Mudaliar A.I.R. 1936 S.C. Mad. 808. it has said:
It has next been argued by learned Counsel for the appellant that in admitting Ext, 1 Under Section 32 (5) the courts below assumed that Satyabadi had special means of knowledge as to the relation between Lokenath and his alleged daughters Ahalya and Malabati. The argument has been that unless it is assumed that Satyabadi is the grand son of Lokenath, he can have no special means of knowledge as to the disputed relationship. learned Counsel for the appellant has referred us to the decision in Subhiah Mudaliar v. Gopala Mudaliar (supra), where it was held that for a statement in a former suit to be admissible Under Section 32 (5) the fact that the person who made the statement had special means of knowledge must be shown by some independent evidence: otherwise it would be arguing in a circle to hold that the document itself proves the relation and therefore, shows special means of knowledge. In Hitchins v. Eardley (1871) 2 P. and D. 248. the question of the legitimacy of the declarant was in issue and the same question was necessary to be proved in order to admit his declarations. That was a jury case and the question relating to the admissibility of evidence being a question of law had to be determined by the Judge; but the same question being the principal question for decision in the case had to be determined by the jury at the conclusion of the trial. In the difficulty thus presented, prima facie evidence only was required at the time of admission. We do not think that any such difficulty presents itself in the case under our consideration.
The statement of law is clear enough to indicate that for satisfying the requirement of Sub-section 5 of Section 32 of the Evidence Act before any statement in the document is accepted it should be insisted upon that there should be some evidence extrinsic and intrinsic for holding that the maker of the statement had some special means of knowledge. There is no statement or consideration of any kind in the judgment of the court of appeal below to show that Sukari Devi had any special means of knowledge. These words of the law have been considered in a judgment of this Court in Sheojee Tiwary and Anr. v. Prema Kuer and Ors. Mahapatra J. speaking for the Division Bench has said:
Section 90 no doubt raises some presumption about the authorship of a writing if a document is 30 years old and if produced from proper custody but that is only a manner of proof. Whether the statements made in that document would be relevant will depend upon the fulfilment of the conditions laid down in Clause (5) of Section 32. The writer must be shown to have special means of knowledge about relationship. If it does not become relevant, Section 90 will not be called for.
It supports my view that before the court of appeal below accepted the proof of Ext. 'B' Under Section 90 of the Evidence Act it was necessary for it to ask for proof of special means of knowledge of Sukari Devi. The court of appeal below, in fact, has not adverted to this aspect of the matter at all. Its judgment in this aspect has thus fallen in error.
5. It is obvious, of course, that the only case pleaded by the defendant No. 1 in the context of the claim of the plaintiff is that Budhan Ram and Horil Ram are not sons of Tunna Ram but are sons of Ramdhani Ram. Once his case in this behalf is rejected and the claim of the plaintiff that Budhan Ram and Horil Ram are sons of Tunna is accepted, as a corollary, it has to be held that unless there is partition by metes and bounds they are entitled to share in the estate of Tunna Ram. There appears to be some case based on the evidence adduced on behalf of the plaintiffs that Horil Ram or Budhan Ram sometimes suggested that there had been a partition between them or that the plaintiffs and the defendants were separate and they were holding separate possession. There is also some evidence that there were disputes between them and in such disputes they claimed exclusive possession. Any such case, however, is not available as a 'fact in issue' on the pleadings of the parties. Even assuming that any such question has to be determined, the law is well settled. Once the jointness is alleged and relationship is established, the unity of title has to be presumed unless demolished by cogent evidence by the party alleging otherwise. It appears to me pertinent to observe at this stage that it shall not lie in the mouth of defendant No. 1 that there had been any partition metes and bounds because according to him Horil Ram and Budhan Ram are not Tunna Ram's sons and since they are not Tunna Ram's sons there can never be any interest in jointness or common to be partitioned between them. I do not, however, propose to carry even this aspect of the matter any further because this case, in my view, requires a rehearing on facts. I am also not making any observation on the argument advanced by the learned Counsel for the appellants that there is evidence besides Ext. 'B' to show the special means of knowledge of Sukari Devi, that evidence will be available to the appellants for basing their case in course of hearing of the appeal by the court below after remand. I am also not expressing any opinion on any other evidence that may be relied upon by the parties including the appellant's evidence to show that Budhan Ram andHoril Ram are sons of Tunna Ram. Since the appeal has to be allowed for the error of law committed by court of appeal below and the cross-objection has to be allowed for the same reason, I award no cost to the parties.
6. The appeal and the cross-objection are allowed and the case is remitted to rehearing to the court of appeal below in accordance with law.