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TMI Blog1983 (4) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... nto the trap laid by a series of documents or a labyrinth of seemingly old genealogies to support their rival claims. X X X X Extracts X X X X X X X X Extracts X X X X ..... the Subordinate Judge and derceed the suit of Radha Krishan Singh and rejected the claim of the State of Bihar. Mr. Justice M.M. Prasad, however, took a different view and agreed with the trial court holding that the suit of the plaintiff was rightly dismissed. He accordingly have a dissenting judgment dismissing the usit plaintiff. It is not necessary for us to embark on the history and other circumstances of the case because Justice G.N. Prasad has dexterously detailed the facts and circumstances of the entire case and has candidly narrated the historical events leading to the various crucial stages through which the litigation regarding the disputed properties had passed. We, therefore, need not repeat what has already been fully discussed by the High Court. Suffice it to say that the eventful story of the present litigation opens with the death of Maharaja Harendra Kishorc Singh which took a more serious turn when his two widows, Maharani Sheoratan Kuer died on March 24, 1896 and Maharani Janki Kuer was declared incompetent to manage the estate, as a result of which the management of the entire estate was taken over by the Court of Wards. As the properties in question were situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Brahmin of Gautam gotra. On the death of Raja Dhrub Singh, his daughter's son, Raja Jugal Kishore Singh entered into possession of the estate of Bettiah Raj and was in possession thereof at the time when the East India Company assumed the Government of the province. The Company could not tolerate any resistance from the Rulers and a battle was fought in the course of which Raja Jugal Kishore Singh was driven into the neighbouring State of Bundelkhand in 1766 and the entire estate of Bettiah Raj was seized and placed under the management of the officers of the Company. During the absence of Raja Jugal Kishore Singh, Sri Kishen Singh and Abdhoot Singh who were the sons of Prithi Singh and Satrajit Singh respectively and were younger brothers of Raja Dalip Singh, enjoyed the confidence of the Company and were placed incharge of the Bettiah Raj. How ever, in 1771, the Company reinstated Raja Jugal Kishore Singh obviously because he probably tendered his apologies and made a solemn promise to be loyal to the Company, as a result of which negotiations started between the Government and Raja Jugal Kishore Singh regarding the estate in question and ultimately he was allotted the Zaminda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been, adopted by Raja Dhrub Singh who belonged to the Kashyap gotra, and had been appointed as his successor. To cut the matter short, it may be stated that a spate of litigation followed putting forward rival claims to the estate left by Raja Dhrub Singh. It may, however, be noted that in none of the suits instituted in 1895, 1896 and 1905, the question as to whether Raja Jugal Kishore Singh had become a member of the family of Raja Dhrub Singh, by virtue of his adoption as putri ka putra, was decided despite a plea having been raised in all those suits. As already mentioned, out of the four suits that were filed, one of them was withdrawn. In the present appeals, we are only concerned with two rival claims put forward to the Bettiah Raj on the death of Maharaja Harendra Kishore Singh and his two widows. In suit No. 25/1958, the claimants were Ambika Prasad Singh and others claiming the estate on the basis that as Raja Jugal Kishore Singh succeeded to the gaddi of Sirkar as the adopted son and successor to Raja Dhrub Singh and not as his daughter's son, Ambika Prasad being nearest among the reversioners was entitled to succeed to the estate after the death of the widows. The suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinth of seemingly old genealogies to support their rival claims. The principles governing such cases may be summarized 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 relying 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 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 claim 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 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, have been fair enough to concede that Bhagwati Prasad Singh, father of the plaintiff has been proved to be a direct descendant of Gajraj Singh but have flatly denied that Ramruch Singh, father of Gajraj Singh had any connection either with Debi Singh or Bansidhar Singh. In other words, the plaintiffs' genealogy, so far as they are concerned, has been accepted by the appellants, upto the stage of Ramruch Singh. The courts below also on a consideration of the oral and documentary evidence have endorsed the stand taken by the defendants that Bhagwati Prasad Singh has been proved to be the direct descendant of Gajraj Singh being 7th in that line. It is well settled that when a case of a party is based on a genealogy consisting of links, it is incumbent on the party to prove every link thereof and even if one link is found to be missing then in the eye of law the genealogy cannot be said to have been fully proved. In the instant case, although the plaintiffs have produced oral and documentary evidence to show that Ramruch Singh and Debi Singh were brothers being the sons of Bansidhar Singh this position was not accepted by the trial court as also by M.M. Prasad, J. who dissented fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed above I find that there is not a single witness who can be relied upon for the purpose of proving the aforesaid two links. (P. 506 para 480) ... ... ... Therefore, I find that the two links in respect of which there is no reliable documentary evidence have also not been proved by the oral evidence on the point those two links are Bansidhar being the father of Debi and Aini being the father of Raghunath. The consequence thereof is that the plaintiffs of Title Suit 5 have failed to prove that Bansidhar was the ancestor of Maharaja Harendra Kishore. I have already held that they have also failed to prove that Bansidhar was their ancestor, having failed to prove that Bansidhar was the father of Ramruch and Ramruch the father of Gajraj. In the result, I hold that the plaintiffs of Title Suit 5 have failed to prove the genealogy set up by them and thus they have failed to prove that they are the nearest heirs of Maharaja Harendra Kishore". (Vol. VIII, p. 533, para 533) There is, however, one common factor between the majority and the dissenting judgments and it is that the plaintiffs have proved beyond reasonable doubt their connection with Gajraj Singh. This, therefore, has redu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D. 1855) --------------------------- Rajendra Kishore Mahendra Kishore (D. 26th March 1883) (childless) Harendra Kishore (D. 26th March 1893) widow - 1. Maharani Sheortan Kuer (D. 24th March 1896) 2. Maharani Janaki Kuer (D. 27th November 1954) RIGHT SIDE Bansidhar Singh Ram Ruch alias Ram Rup --------------------------------------------------- Farman Har Kuer Bhup Narain Avadhut Singh (childless) Deo Narain ----------------------------------- Sheo Balak Prithvi Mohan Singh (childless) Chotku Pratap Narain (childless) -------------------- Sheogulam Bhoala Singh Deep Narain Jagdamba Prasad Nand Kumar Jagat Bahadur (childless) = Amol Kuer -------------------------------------- Nand Prasad (Adopted) Bansgopal Hari Kishore Ram Sankata | | (childless) Kumar Prasad Ram Chandra | (childless) (childless) (Living) ----------------------- Bhagwati Prasad Ilaka Singh (D. 29th (childless) June, 1957) ---------------------------------------------------------- Radha Sri Ram Sheo Ashta Maina Ram Bhagi- Krishna Krishna Krishna Krishna Bhuja Kesari rathi (plaintiff) = Shail Kumari --------------- ------------------ Vidya Malti Parvati Meera Devi Sagar De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page 483 of his judgment (Vol. VIII) where the learned Judge says that the document shows that Gajraj Singh was one of the descendants of Hirday Narain Singh and that Debi Singh and Gajraj Singh belonged to the, same family. This anomaly appears to have crept in because the said document (Ex. J) is in Persian language and on a very close reading of the recitals pertaining to these two facts, the inferences drawn by the learned Judge do not appear to be correct. We shall elaborate this point further when we deal with the merits of the document. We agree with the unanimous view of the High Court that Ex. J is admissible. In fact, the said Exhibit itself would show that it was written by a serishtadar, a Government officer, on the direction of a very high governmental authority who had asked him to make a detailed enquiry regarding the possession of various Zamindars and submit a Report to the Government about possession. We are, therefore, of the opinion that all the conditions of s. 35 of the Evidence Act are fully complied with and fulfilled, and it is difficult to accept the conclusion that the document is not admissible either under s. 35 or under any other provision of the Evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the Mirzapur Collectorate has been amply proved both by oral and documentary evidence. Thus, all the aforesaid conditions of s. 35 are fully complied with in this case. Mr. Misra, however, raised two formidable objections to the admissibility of this document. In the first place, he submitted that there is no reliable evidence to show that Durga Prasad, the author of Ex. J. was a Government officer at all because the possibility of his being a private revenue agent of a Zamindar, who also maintains kutcheri (private office) where papers relating to realisation or rent and revenue are kept, cannot be ruled out. The designation of Durga Prasad therefore, does not conclusively prove that he was a Government officer. Secondly, it was contended that even if Ex. J contains a seal, there is nothing to show that it was not a private seal. In our opinion, the contentions raised by Mr. Misra are without any substance and cannot be accepted. Reading the document (Ex. J) as a whole and taking into consideration the occasion for the entrustment of the task to Durga Prasad, its recitals and the fact that it was kept in a purely Government department, viz., the Mirzapur Collectroate from where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent may be admissible and yet may not carry any conviction and weight or its probative value may be nil. Before going to the contents of Ex. J which have been fully discussed by the High Court, we would first like to comment on the probative value of this document. In adjudicating on this important aspect of the matter it may be necessary to mention a few facts and circumstances which go to show that Ex. J has no probative value at all. To begin with, a perusal of the Report (Ex. J) shows that it does not at all disclose the source from which Durga Prasad collected his facts or gathered the materials disclosed therein. There is also nothing to show that the author of the Report consulted either contemporary or previous records or entries therein in order to satisfy himself regarding the correctness of various statements made pertaining to the genealogy of landlords who were in possession of the lands, as stated in the said Report. It is true that at one place the author has stated that he had taken these facts from an account book (Tumar) but he has not at all given any description or detalis or even the kind or the nature of the account book and its contents. Furthermore, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the entire pedigree of the family which was found by the trial court to have been proved. The question at issue in that case was whether Mohals were of Rajput origin and it was conclusively proved by the lower courts that Mohals were doubtless Rajput or had a Rajput origin. The entry relied upon in that case was based on the extracts from settlement records of the District from 1852 and corrobortated by later entries up to 1882. The Privy Council took special note of the fact that evidence of the character taken from public records for a series of years since 1852 could not be easily brushed aside. In this connection, their Lordships observed as follows: "Their Lordships cannot share the view of the appellate Court that evidence of this character, taken from public records for a series of years since 1852 and recorded in accordance with the requirements of the law, can in a pedigree case be disregarded." Thus, it is absolutely clear to us that the facts of that case are essentially different and clearly distinguishable from the nature of the document that Ex. J is Ex. J cannot be regarded as an entry of the type which was the subject matter of Ghulam Rasul Khan's case (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record was kept in the District office which could be inspected by any member of the public. Tn the B instance case, however, we find that after Ex. J was submitted it faded into oblivion and on one ever heard of it until it was produced for the first time in the trial court from the Mirzapur Collectorate. Another important feature was that the Privy Council had found that the Court of Wards itself had held an enquiry and being a statutory body it must be presumed to have done its duty to the best of its ability. Fourthly, although two witnesses were examined to prove the documents from the Court of Wards, they were not cross-examined at all. In the instant case, a person from Mirzapur Collectorate merely produced the document but he had no knowledge about its contents or about its being acted upon. In these circumstances, Ex. J cannot be equated in any respect with Ex. which was the document under consideration by the Privy Council in Kuar Shyam Pratap Singh's case (supra), We would like to mention here that even if a document may be admissible or an ancient one, it cannot carry the same weight or probative value as a document which is prepared either under a statute, ordinance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed thus: "This new dispute was referred to the then collector, Mr. Wroughton. His report upon it is dated the 7th of January, l 834. It appears that he examined the depositions sent to the collectorate in 1815, and other documents, and he records the facts which, in his opinion, are adverse to the claims made in the part of the zemindar. He also reported to in favour of the title of the Pandaram Venkatachellum to the office. "But being the reports of public officers made in the course of duty, and under statutory authority, they are entitled to great consideration so far as they supply information of official proceedings and historical facts, and also in so far as they are relevant to explain the conduct and acts of the parties in relation to them, and the proceedings of the Government founded upon them." With due respect to the Privy Council, we fully agree with the view taken by their Lordships and the test laid down by them. The document Ex. J in the instant case does not contain any of the qaulities or attributes which were present in the Report of the Collectors relied upon by the Privy Council. As indicated above, while the Collector had made a thorough enquiry, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lmost zero. Mr. Tarkunde then relied on the following observations made by Rupert Cross in his book 'Evidence' (1967: Third Edition) at page 408: "Entries by a solicitor's clerk may, of course, be received under exception to the hearsay rule which is now being considered on account of the duty owed to his employer, and, in some cases, the duty to record may have been owed by the solicitor to his client When speaking of the reception of declartions in the course of duty Sir Robert Philimore said; "Entries in a document made by a deceased person can only be admitted where it is clearly shown that the entires relate to an act or acts done by the deceased person and not by third parties." These observations, however, have to be read with reference to the context. Cross while making the aforesaid observations emphasised that Sir Robert Phillimore had said that entries in a document made by a deceased person can only be admitted where it is clearly shown that they relate to an act or acts done by the deceased person and not by third parties. Thus, in the instant case, though Ex. J was admissible because its author is no longer alive it contains information which is obviously based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and aptly apply to the probative value or the weight to be attached to Ex. J in the absence of any disclosure by the author of the document regarding the source or the materials on the basis of which he had mentioned the facts in his report. Assuming that the case, extracted above, had taken an extreme view in that the report was not admissible at all because of the legal position in England, the hard fact remains that so far as the probative value of a document is concerned, it is reduced to the minimum where there is no evidence to disclose the nature of the instructions given to the author of the doucment tendered in evidence or the source or knowledge or information on which the report is based. This is a serious legal infirmity from which Ex. J suffers and on that ground alone it cannot be regarded as a reliable or a dependable document. In view of the reasons given above, we reach the following conclusions regarding the law relating to the admissibility and probative value of Ex. J:- 841 (1) That Ex. J is clearly admissible under s. 35 of the Evidence Act and we agree with the finding of the High Court on this point, (2) It appears that Durga Prasad, serishtadar, star ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exhibit. Even so, we have consulted the most reliable Persian-English Dictionary (Steingass- 1947-3rd Impression) and other standard dictionaries to arrive at the correct import of the meanings of the terms and expressions used in the document. In the case of Coca-Cola Company of Canada Ltd. v. Pepsi-Cola Company of Canada Ltd. It was clearly held that Dictionaries can always be referred to in order to ascertain not only the meaning of a word but also the general use of it. In this connection, their Lordships observed as follows . "While questions may sometimes arise as to the extent to which a Court may inform itself by reference to dictionaries there can, their Lordships think, be no doubt that dictionaries may properly be referred to in order to . ascertain not only the meaning of a word, but also the use to which the thing (if it be a thing) denoted by the word is commonly put." This is what we have tried to achieve in addition to the knowledge of Persian language that one of us possesses. To begin with, the document clearly recites as to who had ordered Durga Prasad to make the necessary inquiries and this fact assumes some importance because there has been a serious co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s controversy regarding the actual meaning of the word 'Buzurgan'. According to the plaintiffs respondents, the word 'Buzurgan' means ancestors whereas, according to the appellant, it means elders of the family of Pahalwan Singh. In other words, according to the appellant, what Durga Prasad was required to do was to find out not that the ancestors of Pahalwan Singh were in possession but the elders of Pahalwan Singh, which is a much wider term. In our opinion, the interpretation put by the appellants on the word 'Buzurgan' appears to be correct. To begin with, the word 'buzurgan' does not mean predecessors in the strict sense of the term. The concept of 'buzurgan' in Persian or Urdu language is to denote merely an elderly person. In Steingass's Persian-English Dictionary (Third Impression: 1947) at page 183, the. word 'Buzurg' is defined among others as grandee, adult and elder. The word 'Buzurgan' is merely a plural of Buzurg. In Forbes's Hindustani-English Dictionary (1848) 'Buzurg' has been defined as an elder (p. 77). Similarly, 'buzurgan' has been defined as elder (p. 89). Therefore in the instant case, the actual connotation of the term 'buzurgan' with reference to the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... root of Moroos which means hereditary possession and conveys the sense of a direct ancestor. Similarly, the other expressions have been defined by different dictionaries as shown below: - Minjumla = Among all; from among (p. 1323, Steingass dictionary) Minjumla = Upon the whole (p 510, Forbes' dictionary) Aulad = Descendant (p. 121, Steingass Dictionary) Descendant = Aulad (p. 72, Forbes' Dictionary-English Part) It follows as a logical corollary that the translation of the word 'Buzurgan' as 'Predecessor' in the Roman Script of Ex. J is not quite accurate. Having sorted out the problem of the word Buzurgan' we now proceed to consider the meaning of the words used by Durga Prasad in the introductory part of his Report. The document (Ex. J) proceeds to mention while addressing the high official that the zamindari of taluka Majhwa Pargana Kaswar was previously in the possession of the descendants Gautam tribe and further emphasised that the descendants of Gautam tribe were in possession there of by inheritance according to the shares of their respective family members. The translation of these English words though substantially correct require some amplification. In the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the undoubted possession of Hirdaynarain Singh, and the persons who were in possession along with him were the four persons mentioned above who belonged only to the brotherhood of Hirday Narain Singh. The question of all of them being direct descendants or relations does not arise on the interpretation of the words used by Durga Prasad, as indicated above, He has further stated that he had learnt the aforesaid facts from the account papers of Pargana Kaswar. We might mention that even M.M. Prasad, J. was carried away by the language used by Durga Prasad, viz., the use of the word 'biradari' to indicate that Hirday Narian Singh and four others belonged to the same family which was neither his intention nor the meaning of the sentence used by him. To this extent, therefore, we do not agree with M.M. Prasad, J. It may be important to remember this fact because much has been made of the sentence "Debi Singh and aforesaid four persons" to contend that the four persons, viz Debi Singh, Barisal Singh, Ramhit Singh and Gajraj Sahi, were the descendants of Hirday Narain Singh or Debi Singh which is also a fallacious conclusion reached by the High Court and not warranted by the words use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Singh obtained the zamindari sanad from the huzoor (a high official of the Government) and patta was executed in favour of Ram Baksh Singh, who is one of the descendants of Hirday Narain Singh and is alive. It may be noted that even Ram Baksh Singh is not at all mentioned in the genealogy of Hirday Narain Singh nor is he mentioned in the earlier part of Ex. J as being either a member of the family or a descendant of Hirday Narain Singh. It has, therefore, been established beyond any shadow of doubt that Barisal Singh, Debi Singh and Gajraj Singh were not the direct descendants of Hirday Narain Singh. Otherwise Durga Prasad would have mentioned these persons also as heirs or direct descendants of Hirday Naram Singh as he has done in the case of Audhan Singh, Ram Baksh Singh and Ramhit Singh. Furthermore, at page 28 on the left hand side of the document (English translation) it is clearly mentioned that zamindari patta was executed in favour of Bhagat Singh, Golami Singh, Harjan Singh who were the descendants of Hirday Narain Singh. Thus, it is clear from the scheme followed by Durga Prasad that whenever he wanted to convey a particular person or persons to be heirs or direct de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rain Singh, son of Nanku Singh, got the patta in his own name in respect of halfshare. The next item narrates that at the time of the settlement, the zamindari patta was executed in favour of Gurdat Singh, who was one of the descendants of Debi Singh, and he paid rent without obtaining any fresh patta. It is further mentioned that in respect of village Sabesar, zamindari patta was given to Ramhit Singh, descendant (aulad) of Hirday Narain Singh and on his death, the patta was given to Nanku Singh. It is not necessary for US to wade through the details of the settlement made by various zamindars pertaining to different villages in the Sirkar of Champaran, except some entries to which we would refer hereafter. As regards Jalalpur which was in Taluka of Madan Gopal and Kiswar Das Thathar, the zamindari patta was executed in favour of Farman Singh and after his death Zalim Singh and Ramhit Singh, sons of Farman Singh, obtained the patta in their names and were in possession thereof. Here also, there is no reference either to Gajraj Sahi or Gajraj Singh as being relations of Debi Singh nor is the name of Ramruch Singh mentioned at all. Again, in respect of Chak Lohani and Kalyanpur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in whose custody the account-book remained, is conspicuously absent from the Report of Durga Prasad. These are additional circumstances which completely reduce the probative value of Ex. J. Mr. Tarkunde made an attempt to convince us that Ex. J is not only admissible but is substantially corroborated by the oral and documentary evidence. It is true that a part of the plaintiffs' genealogy which is not disputed by the appellants, receives some corroboration from Ex. J but that takes us nowhere. Our attention has not been drawn to any fact mentioned in the Report which shows the direct relationship or connection between Debi Singh, Ramruch Singh and Gajraj Singh and unless this is done the corroboration, if any, is of no use at all. However, we shall deal with this argument for whatever it is worth. In the first place, it was contended that the oral evidence of DWs 13, 21, 33, 34 and 35 corroborates the entries made in Ex. J. We propose at this stage to refer briefly to the oral evidence only in so far as it is alleged to corroborate Ex. J and we shall deal with the main oral evidence after we have completed the discussion of the documentary evidence. It was contended by Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nected with Hirday Narain Singh. At another place, the witness says that Bansidhar Singh had three sons, viz., Ramruch Singh, Ram Fakir and Debi Singh and Gajraj Singh was Debi Singh's son. In the Report (Ex. J) there is absolutely no reference either to Bansidhar Singh or to Ram Fakir Singh or Ramruch Singh. The only person who is mentioned in the Report is Debi Singh who is said to be descendant of Hirday Narain Singh. There is also no reference to Bansidhar Singh in the entire Report. Thus, the starting point of the genealogy given by him is after the Report (Ex. J) was submitted. We are, therefore, unable to see how the evidence of this witness in any way corroborates Ex. J. Reliance was then placed on the evidence of DW 34, Nagendra Kumar. At page 446 of Voume I. This witness is aged 60 years and claims to belong to Gautam gotra. He states that the ancestor of the members of his family was Babu Hansraj Singh who had two sons, Hari Narain Singh and Hirday Narain Singh. Hari Narain had a son Sah Makund and he claims to be a descendant of Makund separated by several degrees below. He further states that Bansidhar Singh was the son of Hirday Narain Singh. If the facts spoken by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s because according to his evidence his ancestors and those of Bhagwati Prasad Singh, father of the plaintiff, had been on visiting, dining and inviting terms with the family of Babu Bhagwati Prasad Singh right from the time of his ancestors. He states that Bhagwati Prasad Singh and Harendra Kishore Singh were descendants from a common ancestor who was Babu Bansidhar Singh. Bansidhar Singh had three sons, Ramruch, Exam Fakir Singh and Debi Singh, and Gajraj Singh was a son of Ram Fakir Singh. His evidence ex facie does not corroborate the Report (Ex. J). As in the case of previous witnesses, so here also we do not find any reference to either Bansidhar Singh or Ramruch Singh. It is impossible to believe that if Ramruch Singh or Gajraj Singh were connected with the family of Hirday Narain Singh this fact would not be mentioned in the Report. Furthermore, neither Bansidhar Singh nor the fact that Debi Singh was a son of Bansidhar Singh has been mentioned in the Report, and this important event could not have been missed by Durga Prasad in his detailed and copious Report. WE shall deal with the intrinsic merits later but what we have said is sufficient to demonstrate that like other w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in the plaintiffs' genealogy, nothing turns upon this statement because the defendant does not dispute the genealogy not only up to Pahalwan Singh but even higher. As discussed above, the main link is to be established between Gajraj Singh, Ramruch Singh and Debi Singh. On this point, this document throws no light at all and is therefore valueless. Nobody ever disputed that Pahalwan Singh was not a grandson of Debi Singh. Even otherwise, the document Ex. L is of doubtful admissibility, It was further contended that this document supports the statement in Ex J that Debi Singh, Barisal Singh, Ramhit Singh and Gajraj Singh were family members of Hirday Narain Singh. This argument however, is utterly misconceived and is based on a wrong interpretation of Ex. J which nowhere shows that Debi Singh, Barisal Singh, Ramhit Singh and Gajraj Singh were family members of Hirday Narain Singh. All that it says is that they belonged to the brotherhood of Debi Singh. In fact, as we have shown, the names mentioned in Ex. J regarding the parentage of Barisal Singh and Ramhit Singh and Debi Singh are quite different from the case of the plaintiffs. Furthermore, assuming that the aforesaid four p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is concerned, the link upto Gajraj Singh on the right side and upto Debi Singh on the left side is clearly proved but that does not substantiate the case of the plaintiffs unless they further prove that Gajraj Singh was son of Ramruch Singh and a nephew of Debi Singh. If this link is missing, the claim of the plaintiffs must fail. Similarly, Exhibits GGG-3, GGG-4, GGG-5, GGG-6 and GGG-8 at pages 187, 192, 209, 188 and 208 (in volume lV) respectively are documents in the nature or mortgage deeds executed by the heirs of Gajraj Singh in respect of Zamindari interest in village Baraini. These documents also are hardly relevant for the purpose of proving the plaintiff's genealogy or to show that he was the next and nearest reversioner of the late Maharaja. Similarly, Ex. WW (Vol. IV, page 185) proves that the zamindari patta in respect of village Baraini was granted to Mohan Singh, a fact mentioned in Ex. J which is not at all relevant for our purpose in determining the correctness of the plaintiff's genealogy. Ex. SS (Vol. IV, page 376) is a Report. Of Salik Ram, Serishtadar Sadar (Deputy Collector) in respect of the settlement of village Baraini and subsequent transactions in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rga Prasad, he had to find out the ancestors from the records and he says very clearly in his Report that his information was based on records in the Serista, particularly the Tumar (account book). If Bansidhar and Ramruch had in fact been directly connected with Debi Singh or Pahalwan Singh, there is no reason why Durga Prasad should not have mentioned their names as. Being ancestors of Pahalwan Singh who appeared to be only 2 to 3 degrees remote from them. In these circumstances, therefore, the absence of the names of the aforesaid persons in Ex. J is, in our opinion a conclusive circumstance to show that there was no relationship between Bansidhar, Ramruch and Pahalwan Singh. This conclusion is further fortified by the fact that even Gajraj Sahi (or Gajraj Singh) who was the only son of Ramruch and a grandson of Bansidhar, finds specific mention in the Report. For these reasons, we reject the explanation given by the respondent on this point. In view of our analysis of the document, we need not go into their admissibility though it is extremely doubtful how the statements made by various persons without disclosing their means of knowledge can be said to be admissible. It appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are admissible in evidence under the provisions of sections 40, 41 and 42 of the Evidence Act. Section 43 which is extracted below, clearly provides that those judgments which do not fall within the four corners of sections 40 to 42 are inadmissible unless the existence of such judgment, order or decree is itself a fact in issue or a relvant fact under some other provisions of the Evidence Act:- "43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant- Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment? order or decree is a fact in issue, or is relevant under some other provision of this Act." Some Courts have used section 13 to prove the admissibility of a judgment as coming under the provisions of s. 43, referred to above. We are, however, of the opinion that where there is a specific provision covering the admissibility of a document, it is not open to the court to call into aid other general provisions in order to make a particular document admissible. In order words, if a judgment is not admissible as not falling within the ambit of sections 40 to 42, it must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractice of India, which can be applied to it." In the case of Gujju Lall v. Fatteh Lall(2) a Full Bench exhaustively considered the ambit and scope of ss 40 to 43 of the Evidence Act and observed thus: "On the other hand, when in a law prepared for such a purpose, and under such circumstances, we find a group of several sections prefaced by the title "Judgments of Courts of Justice when relevant," that seems to be a good reason for thinking that, as far as the Act goes, the relevancy of any particular judgment is to be allowed or disallowed with reference to those sections. ... ... ... I have had the opportunity of reading the judgment which the Chief Justice proposes to deliver, as well the observations of my brother Pontifex, in both of which I generally concur, and for the reasons there stated, and those which I have shortly given, I consider the evidence inadmissible." And Garth, C. J. made the following observations: "It is obvious that, if the construction which the respondent's counsel would put upon s. 13 is right, there would be no necessity for ss. 40, 41, and 42 at all. Those sections would then. Only tend to mislead, because the judgments which are made admissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expected to follow therefrom." (Emphasis supplied) This principle was reiterated in the case of Coca-Cola Co. of Canada Ltd. (already referred to on the question of relevancy of dictionary while dealing with Ex. J) where their Lordships in most categorical terms expressed the view that no judgment which was not inter parties or the one to which neither the plaintiff nor the defendant were parties could be used in evidence for any purpose. It appears that in the case referred to above the President of the Exchequer Court had relied on facts found in the judgment of the Chancellor and drawn support from the uncontradicated evidence given by the Chancellor. The Privy Council diprected this practice of relying on judgments which were not inter parties in the sense that a judgment in which neither the plaintiff nor the defendant were parties, and in this connection Lord Russell observed thus: "The learned President relied on this judgment" as very formidable support to the plaintiff's contention that ...there is likelihood of confusion"; but in their Lordships' opinion he was not entitled to refer to or rely upon a Judgment given in proceedings to which neither the plaintiff nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rights. It is equally well settled that declarations or statements made post litem motam would not be admissible because in cases or proceedings taken or declarations made ante litem motam, the element of bias and concoction is eliminated. Before, however, the statements of the nature mentioned above can be admissible as being ante litem motam they must be not only before the actual existence of any controversy but they should be made even before the commencement of legal proceedings. In this connection, in para 562 at page 308 of Halsbury's Laws of England (supra) the following statement is made: "To obviate bias, the declarations must have been made ante litem motam, which means not merely before the commencement of legal proceedings, but before even the existence of any actual controversy, concerning the subject matter of the declarations. So strictly has this requirement been enforced that the fact that such a dispute was unknown to the declarant, or was fraudulently begun with a view to shutting out his declarations, has been held immaterial." This position however cannot hold good of statements made post Item motam which would be clearly inadmissible in evidence. The reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n question was admissible because it was made before the question in dispute had arisen. In other words, this Court held that in the facts and circumstances of that case the statement and the pedigree relied upon were made ante litem motam and not post litem motam, for if the latter had been the case, the document would have become inadmissible and in this connection the Court observed thus: "That being the position, the statements as to pedigree contained in Ex. I were made before the precise question in dispute in the present litigation had arisen." In Kalidindi Venkata Subbaraju & Ors. v. Chintalapati Supparaju & Ors(2). while construing the provisions of cl. (5) of s. 32 of the Evidence Act this Court observe as follows:- "Both sub-ss. 5 and 6 of s. 32, as aforesaid declare that in order to be admissible the statement relied on must be made ante litem motam by persons who are dead, i.e., before the commencement of any controversy actual or legal upon the same point." Relying on an earlier case of the Privy Council this Court further observed thus: "In Kalka Prasad v. Mathtlra Prasad(3) a dispute arose in 1896 on the death of one Parbati. In 1898 in a suit brought by o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to smithereens and smoulders and despite all their snaring and snarling they have miserably failed to prove the pivotal point viz., the link between Ramruch Singh, Gajraj Singh, Debi Singh and Bansidhar Singh. With these introductory remarks we now proceed to discuss the evidence led by the Plaintiffs on the points indicated above. In considering the documentary evidence we shall begin with the documents Exhibits P/2, V., DD/30 and DD/31 which are closely connected documents. It would appear from the plaintiffs, genealogical tree, which for the sake of convenience has been put at one place in Volume VIII at page 131 and which has been extracted earlier in this judgment, that Balbhadra Singh was grandson of Pahalwan Singh and Sangam Kuer was his sister who died issuless. Bhola Singh, on the right hand side of the genealogy, was grandson of Farman Singh and son of Deo Narain. It is therefore, obvious that after the death of Jaimed Kuer, Bhola Singh could not be her next reversioner, who would be Harendra Kishore Singh. Thus, the title conveyed by Bhola Singh to Maharaja of Banaras under a sale which was the subject matter of Ex. DD/30 was a bag of wind and is the surest proof of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to meet the expenses of litigaton arising out of the defect of title. Thus, on a perusal of the recitals of the sale deed, it would appear that out of a consideration amount of Rs. 25,000 a paltry sum of Rs. 1700 was taken by Bhola Singh which shows the very peculiar and pretentious nature of the transaction. In other words, Bhola Singh sold the properties for a song knowing full well that he had no interest in the properties. Although the sale was in respect of the properties of Mauza Majhwa, District Mirzapur, yet the sale Deed was registered in Banaras town and in order to give jurisdiction to the Sub Registrar of Banaras a miserable mud built house covered with earthen tiles was given to the Maharaja Prabhu Narain Singh. Most of the witnesses to the sale deed hailed from Mirzapur. The properties which were mortgaged to Mahadev were sold to the Maharaja of Banaras under this document. Most of the witnesses to the sale deed were from Mauza Baraini or Majhwa and there was only one witness from Banaras. The transaction, therefore, manifestly shows that since all the properties sold were in District Mirzapur, just to make a show of sale in respect of Banaras property also, the mud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir of Jaimed Kuer as proved by the documents Ex. U/3 and DD/43 and ultimately Narendra Kishore Singh was held to be the legal heir of Jaimed Kuer by the Allahabad High Court by its judgement dated 13.4.88 (Ex. DD/43). In these circumstances, since the question of succession had opened between the parties the document Ex. V would also but hit by the doctrine of post litem motam and, therefore, it is inadmissible in evidence under s. 35 of the Evidence Act and hence has to be excluded from consideration. Coming now to Ex. DD/30 (Vol. IV, page 116) which is the judgment given in respect of the Sale Deed (Ex. V) which we have discussed above, the trial court after a full and complete consideration of the contents of the document held that Bhola Singh had no right to execute the sale deed, and that the plaintiff did not purchase any legal right. The court also held that Bhola Singh was not the next reversioner of Mst. Jaimed Kuer and that the consideration was also illusory. In other words, the trial court rejected the case of the plaintiff in toto in that suit. Reliance was sought to be placed by the counsel for the plaintiff on some recitals in the judgment regarding the genealogy a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unath Singh in the genealogy given in that suit. Moreover, the genealogy given in Ex. P-2 is totally inconsistent with and different from the genealogy propounded by the plaintiffs. A number of names and heirs of the two lines of Bansidhar Singh, that is to say, Debi Singh and Ramruch Singh have not at all been mentioned in this genealogy. The name of Raghunath Singh, one of the sons of Aini Singh, in Suit No. 130 of 1856 filed by Suman Kuer in respect of a pond known as Hansraj Pokhra in Majwa village is conspicuous by its absence. The explanation given by the counsel for the respondents was that it was not necessary to give the name of all the heirs of Bansidhar Singh or for that matter of Debi Singh, hence these omissions in the genealogy. We are, however, not at all impressed with this explanation because some of the names not mentioned in the genealogy in Ex. P-2 are supposed to be based as links in order to prove the plaintiff's right to be the next reversioner of the late Maharaja whose name also does not find a place in this genealogy although he is supposed to be a direct descendant of Debi Singh. Before closing the discussion of the documents referred to above, viz., Exhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he offer of surrender may have hurt the vanity and self-respect of the Maharaja as a result of which he spurned the offer. At any rate, instead of wandering amiss hither and thither into the realm of imagination and speculation like Alice in Wonderland, the fact is that the Maharaja did get the properties and resisted all claims against the same as would appear from the documents Exhibits U/3 and DD/43 by which the Maharaja was substituted as the heir of Jaimed Kuer on her death and was held to be a legal heir by the judgment dated 13.4.1888 of the Allahabad High Court (Ex. DD/43). The said judgment shows that the Maharaja accepted the position of his being the legal representative and heir of Jaimed Kuer. This, therefore, clearly negatives the contention advanced on behalf of the respondents that the Maharaja was extremely reluctant to take the properties of Jaimed Kuer. The conduct of the Maharaja in unconditionally accepting the ownership and the inheritance of the properties of Jaimed Kuer far outweighs the speculative argument of Mr. Tarkunde that the the Maharaja was either not interested or had some reservations or was in any way reluctant to take the properties of Jaimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel also pointed out that even in the judgment (Ex. DD/30) it has not been said that the genealogy was wholly or undisputedly correct but the exact expression used is "the whole genealogical table of the family which is disputed". Since the genealogy was not admitted by the parties to the sale deed, it carries no value particularly when the judgment was not inter parties. For these reasons, therefore, the arguments of Mr. Tarkunde must necessarily fail. Finally, all the three documents, Exhibits V, DD/30 and DD/31 are hit by the doctrine of post litem motam. We therefore, agree with the conclusions arrived at by M.M. Prasad, J. On this point. As regards Ex. P-2 which was only a plaint in the suit which was the subject matter of Ex. DD/30, whatever is true of DD/30 equally applies to Ex. P-2 (Vol. IV page 245). Ex. 0/3 (Vol. 3, page 85) is a written statement filed in title suit No. 55 of 1893 (the suit which was the subject matter of Ex. DD/30 and DD/31) in which Mahadev Prasad Singh denied all the allegations made by Bhola Singh and expressly stated that Bhola Singh was not an heir of Jaimed Kuer, and that the sale deed and ekrarnama executed in favour of the plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit was not mentioned in the aforesaid table. He further admitted that he was unable to decipher item No. 5 in the table of contents and, therefore, could not say whether any genealogy was mentioned as being a part of the aforesaid list of documents. Lastly, the learned Judge pointed out that DW-6 could not vouch-safe that the document was a part of the records of Title suit No. 130 of 1856. Indeed, if this document had been filed in the said suit since a number of documents of that time had been produced in the present suit there could not have been any difficulty for the plaintiffs to have obtained a copy of the order-sheet or the list of documents to dispel any doubt regarding the authenticity of the original document (Ex. Q/2). M.M. Prasad, J. relies on another circumstance that there is no mention of either the name of the court or the number of the suit or the names of the parties, nor any seal of the court which could have identified or connected this document with the aforesaid suit. The document merely bears the date 15.8.1856. It appears from Ex. DD/39, a judgment in suit No. 13()/1856, that Ramadhin was not the vakil for the defendants. There are other circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions is correct. Another circumstantial evidence which throws serious doubt on the genuineness of the document is as to what had happened to the document which was got translated by the High Court, as observed by M M. Prasad, J. in his judgment. The letter of the Deputy Registrar of the Patna High Court seems to suggest that the third version which he suddenly found in the bundle of papers containing summons and vakalatnamas was the real one. It is not at all understandable how an important document like Ex. Q/2, which was the subject matter of a very serious controversy between the parties in the High Court, could find a place in the miscellaneous paper which do not contain important Exhibits or documents but are meant only for purposes cf keeping formal papers like summons, vakalatnamas, etc. We find it difficult to believe the explanation of the Deputy Registrar of the Patna High Court that he suddenly found the real Ex. Q/2 in a bundle of papers and then despatched the same to this Court. But the fact is that this document was not despatched at the time when the records were sent to this Court though the other two versions had been sent. It would appear from Ex. DD/39 (Vol. IV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he was a direct descendant of Debi Singh. A portion of this document is, however, torn and hence we cannot make out as to who the ancestor of Farman Singh was, nor is there any reference to Ramruch or Gajraj Singh. At any rate, both the majority and the minority judgments of the High Court as also of the trial court have rejected this document as being a purely spurious one. In this connection, Mukherji, J. speaking for the majority, has clearly found that this document is in admissible in evidence because it is alleged to have been written by Shital who had no special means of knowledge about this family. The learned Judge also found a number of inconsistencies and contradictions in the evidence of Avadh Behari, DW/32, who purported to prove Ex Q-5. M.M. Prasad, J. had also taken great pains to show that this document was per se not genuine as the paper on which it was written is old but the writing thereon is fresh. He also found that this document was somehow planted or introduced in a basta in which the papers of the Bettiah Raj case were kept. He fully agreed with Mukherji, J. that DW/32 was an entirely unrealiable witness who purported to prove the signatures of Shital on Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maharaja of Banaras and the late Maharaja of Bettiah. Therefore, this document is not relevant at all and it may therefore, be ruled out of consideration so far as the present dispute about genealogy is concerned. 883 Exhibits K and K-l have been rejected not only by the majority judgment but also by the trial court. In these circumstances it is not necessary for us to consider these documents in any detail. We would, however, just make a passing reference to these documents to show that they do not support the case of the plaintiffs. These documents don't bear any seal or signature, nor is it possible to find out when, how and under what circumstances these documents came into existence. Ex facie, they are not public documents and are not admissible in evidence under s. 35 of the Evidence Act. Mukherji, J., speaking for the majority, has clearly held that these documents are a inadmissible in evidence and observed thus:- "These documents, Exts. K and K-l, are alleged to be public and official documents and according to the plaintiffs of Title Suit No. S of 1961 they are in the nature of appendices or annexures to a report. Ex. J which is stated to be a public document. In our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being inter parties, its recitals are in admissible in evidence. The only claim put forward was that as the Bettiah Raj estate was an impartible estate, the widows ef the late Maharaja could not succeed to his properties even as limited owners. Nothing of any significance turns upon the contents of this document and it was rightly not relied upon by M.M. Prasad, J. Ex. G. II (Vol. III, P. 31) merely shows that the late Maharaja had made a gift of a portion of land in Pargana Majhwa, District Champaran for making a road for constructing a railway line in Bettiah but we are unable to find any relevancy of this document to the facts of the present case. Ex. G. II/ 1 (Vol. III, P. 32) is another deed executed by the late Maharaja making a gift of a land for a similar purpose. This document also appears to be wholly irrelevant and does not prove anything of consequence. Ex. H-II (Vol. III, P. 163) is a genealogy filed by the plaintiff of title suit No. 34 of 1905 after the present dispute had already arisen. Apart from the fact that in this genealogy a number of important names are missing, the names of Gajraj Singh, Ramruch Singh, Debi Singh or Bansidhar Singh are not at all mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rehan deeds, mortgage deeds and plaint in suits for declaration as also Exhibits DD/33, DDD/4 & 5, GGG/8 which at the most prove that the plaintiffs were direct descendants of Gajraj Singh, and we shall assume for the purpose of this case, as the High Court has done, the fact that the plaintiffs were direct descendants of Gajraj Singh has been amply proved both by oral and documentary evidence. This fact is also proved by another set of documents, viz., Exhibits; GGG/3, 4, 5 and 8, WW/l, 3 & 4, DD/40 & 38, XX/20, WW/2, YY/4 and P/4. All these documents by and large prove the relationship of the plaintiffs with Bhola Singh and his ancestors right up to Gajraj Singh but they completely fall short of proving the vital "links." Ex. H merely shows that sometime in the year 1829, after the death of Pahalwan Singh the name of Balbhadra Singh was substituted. This fact, as we have already pointed out, is not disputed. This document also does not throw any light on the crucial question regarding the link between Gajraj Singh, Debi Singh and Ramruch Singh and takes us nowhere. Similar is the case with Ex. M (Vol. III, p. 66) which is a deed of conditional sale executed by Pahalwan Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entary evidence produced by the plaintiffs in support of their case. After a detailed and microscopic consideration of these documents we find ourselves in complete agreement with the dissenting judgment of M.M. Prasad, J. that the plaintiffs have not proved that they were in any way directly connected with Ramruch Singh, Bansidhar Singh or Debi Singh. With due respect to the Judges constituting the majority, we are constrained to remark that they did not fully consider the factual legal and relevant aspects of the documents produced nor did they consider what on an ultimate analysis could be the correct conclusion reached on a fuller and proper application of mind having regard to the vital issues involved in the case. The Majority Judges seem to have been greatly influenced by the age of the documents or their nature rather than by the contents, relevancy and weight. The plaintiffs seem to have by a process of various combinations and permutations tried to present a very plausible case which at first sight seemed to be extremely attractive and appealing but on a very close analysis of the evidence produced by the plaintiffs we cannot think of any other conclusion that could be dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut, at the same time, there is a great risk and a serious danger. Involved in relying solely on the evidence of witnesses given from pure memory because the witnesses who are interested normally have a tendency to draw more from their imagination or turn and twist the facts which they may have heard from their ancestors in order to help the parties for whom they are deposing. The court must, therefore safeguard that the evidence of such witnesses may not be accepted as is based purely on imagination or an imaginary or illusory source of information rather than special means of knowledge as is required by law. The oral testimony of the witnesses on this matter bound to be hearsay and their evidence is admissible as an exception to the general rule where hearsay evidence is not admissible. This is culled out from the law contained in cl. (5) of s. 32 of the Evidence Act which must be construed to the letter and to the spirit in which it was passed. In order to appreciate the evidence of such witnesses, the following principles should be kept in mind: (1) The relationship or the connection however close it may be, which the witness bears to the persons whose pedigree is sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements 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." (Sturla v. Freccia-(1880) S A.C. 623) "The rule of evidence thus enunicated is in accord with the terms of s. 32, sub-s. 6 of the Indian Evidence Act, 1812, which is applicable to the present case." In Mewa Singh & Ors. v. Basant Singh & Ors.(2) the Privy Council made very apt and valuable observations regarding the manner in which a pedigree could be proved and pointed out that in order to succeed, the plaintiffs must bring themselves within fourteen degrees and in this connection obverved thus: "The oldest names in a pedigree are naturally the first to be learnt and the first to be learned, and the names of the earliest generations may well survive in their proper order long after all trustworthy memory of their lives has passed away. ... ... ... Those who claim to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the result of imagination." Similar view was expressed in Lovat Peerage case which is an example of how hearsay evidence can sometimes be fraught with serious consequences. In this case, it was emphasised that the time occasion and manner of acquiring knowledge of pedigree to prove the statement of a deceased relation is crucial to the test of veracity and an imaginary story related by the witness may ultimately turn out to be a mere gossip. It was pointed out by Lord Watson at page 783 of the Report that in taking the depositions of old witnesses, the court must take into consideration that there may have been an erroneous impression in the minds of those who proved the claimant's case. Wigmore on 'Evidence' in Volume V at pages 296 and 297 has expressed more or less the same views and observes as follows: "Accordingly the only sound rule for the use of individual declarations is that the declarant himself must be shown to be unavailable. ... ... ... The circumstantial indication of trustworthiness has been found in the probability that the 'natural effusions' (to use Lord Eldon's of ten quoted phrase) of those who talk bias or passion exists are fairly trustworthy, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and smacks of concoction and fabrication being against normal human conduct, unless he repeats some special or strikingly unusual incidant of life which one can never forget or where a person is reminded of some conspicuous fact on the happening of a particular contingency which lights up the past such as marriage, death, divorce, accident disappointment, failure, wars, famine, earthquake, pestilence, (personally affecting the subject and the like) etc., and revives the memory in respect of the aforesaid incidents. Of course, if the person happens to be an inimitable genius or an intellectual giant possessing a very sharp and shocking memory, the matter may be different. But, such persons are not born every day. To say, in this case, that all the witness one after the other, were geniuses is to tell the impossible. Weakness and uncertainty of human memory is the rule. The witnesses of the plaintiffs examined in this case are normal human beings suffering from the usual defects and drawbacks of a common man. Describing the vagaries of human memory, Ugo Betti so aptly and correctly observes: "Memories are like stones, time and distance erode them like acid." (p. 395, The Intern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Prasad (Vol. I, p. 433) was rejected by M.M. Prasad, J. though accepted by the majority but, in our opinion, wrongly. Before dealing with the evidence of this witness we might clarify that the trial court had numbered two witnesses as DW-33, viz., Bhairo Prasad, who was the main witness in trial suit No. 5/61, and Kamla Prasad Singh (Vol. I, p. 299) who was a witness in trial suit No. 25/58. The trial court as also the High Court rejected the evidence of Kamla Prasad Singh, with which we are not concerned at all. We are mainly concerned with DW-33, Bhairo Prasad who was examined on the point of genealogy in suit No. 5/1961 and it is his evidence which we have to consider while dealing with the present case. It is true that both the trial court and the dissenting judge in the High Court rejected the evidence of Bhairo Prasad but Mukherji, J. speaking for the majority came to a different conclusion and held that Bhairo Prasad was not an interested witness and there was no reason to discard his evidence. With due respect, after going through his evidence, we find ourselves unable to agree with Mukherji, J. and for the reasons given hereafter we are satisfied that no reliance can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. We would, therefore, examine his evidence on the question of genealogy which was the only point to prove which he was examined. After narrating the genealogy of the plaintiffs right from Bansidhar Singh he states that he came to know the genealogy from Nand Kumar Singh, Jagat Bahadur Singh as also from his grandfather, Kamta Prasad Bhagwati Prasad, Mahadeo Singh. According to this evidence all the persons concerned from whom he had learnt the genealogy, excepting Mahadeo Singh, were dead. So far as his information derived from Mahadeo Singh is concerned, it will be inadmissible as hearsay because, according to him Mahadeo Singh is alive. At page 439, para 51 of his evidence, he states that the narration of the genealogy by the persons mentioned by him took place in Chait 1894 (Hindi Samvat year)-he did not remember the corresponding Fasli year- that is to say when he was 15 years old, if his estimate of his own age is correct. If we accept the estimate of the Commissioner who recorded his evidence, then he was only about 5 years in which case it is impossible to believe that he would be in a position to remember such a long drawn genealogy after such a long time when he heard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that he learnt the same on hearing it repeatedly. Indeed, of this is the primordial and rudimentary reflex of his memory, then it is strongest possible circumstance to discredit his testimony and it leads to an irresistible inference that the story of repeated narration of the plaintiffs' genealogy is nothing but a pure figment of his imagination concocted to help and oblige his relation, friend, philosopher and guide (Bhagwati Prasad Singh). Again he makes a very strange statement which fully belies the false story of the narration. He gays that the late Maharaja died in Chait 1894 A.D. whereas the Maharaja died on 26th March 1893, a year before. This is the best test and proof of his weak or frail memory. A person who could not remember the date of the death of his close relation, the late Maharaja who furnished the occasion for the narration of the genealogy by various relations of the family, is not expected to remember the genealogy narrated to him long before the death of the late Maharaja. This circumstance, therefore, completely destroys his evidence regarding the proof of genealogy. From a general reading of his evidence on the point of genealogy we are convinced that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ini. In this circumstance, this witness does not appear to be a competent witness on the point of genealogy." (Vol. VIII, p. 247, para 108) Thus it is not necessary for us to make any further probe into the intrinsic merits of the evidence of PW-40 which stands rejected. The other witnesses who are relevant on the point of genealogy are DWs 13, 21, 32, 34, 35 and 36 (the evidence of DWs 32 having been rejected by all the Judges of the High Court). Mr. Tarkunde mainly relied on the evidence of these five witnesses and submitted in the course of his arguments that if he. was not able to persuade the Court to accept the evidence of these witnesses, then the plaintiffs-respondents would not succeed on the basis of the oral evidence led by him. We how propose to deal with the evidence of the aforesaid witnesses individually. We will, however, take up the evidence of DW-13, Radha Krishna Singh (Vol. I, p. 335) at the end because he is one of the main plaintiffs- respondents and therefore a highly interested witness, which may by itself be no ground to distrust his testimony but is undoubtedly a circumstance to scan his evidence with some amount of caution. This brings us to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bu who is the Pairvikar of the plaintiffs and admits in his evidence that Gauri Babu had gone to him in village Baraini two-three years before his deposition; thereby he indirectly admits that he was brought to D, depose in the court at the instance of Gauri Babu. Although the witness has denied that he was staying at the house of Gauri Babu for about a month and was being tutored, reading within the lines of his testimony it does appear that Gauri Babu had no doubt brought the witness to Patna and he (Gauri) being a Pairvikar of the plaintiffs, as admitted by the witness, must have brought him for a certain purpose. Coming now to the intrinsic merits of his evidence we would first trace the source of knowledge of this witness. To begin with, he states that his father told him the genealogy about 50 times but he does not remember as to when the genealogy was told to him last time. He admits that there was no special occasion for his father to have told him the genealogy. He also admits that he had no written genealogy. This statement is obviously incorrect because normally a genealogy is recited on certain festive occasions like marriage, shradh, etc., and not just by the way. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... himself admits that he had no concern or interest in Bettiah Raj. He further admits in para 18 of his evidence that he came to know about the case from the plaintiff, Radha Krishan Singh, and that he did not know the claim of the respective parties. While deposing regarding the genealogy he could not tell the order of death of any of his ancestors nor could he tell in which period Hansraj and Hirday Narain Singh existed. He admits that when his father repeated the names of his ancestors fifty times he was only 16 years old. It is difficult to believe that a casual recitation of the names fifty times would be remembered by him after a lapse of more than 20 years. M. M. Prasad, J. has given very cogent and convincing reasons for disbelieving the evidence of this witness. The learned Judge has pointed out, apart from the facts mentioned, above, that the witness has not come across any written genealogy even of his own family, what to speak of the family of the plaintiff. Finally, the witness admitted that he is a cousin of Kamla Singh, DW-33. If this was so, then the genealogies given by Kamla Singh and the witness should have tallied but it would appear from the evidence of DW-33 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year 1936. This means that at the time when the witness was told about the family genealogy of the plaintiffs By he was only 14-15 years and was studying in class VI of a middle school. He then goes on to state that at the time when the genealogy was narrated, 5-6 persons of his family were present but he does not even remember the name of any of them. It is rather strange that he does not even remember the names of the persons in whose persence the genealogy was narrated by his grand-uncle and yet he traces the genealogy of the family told to him about 45 years back. This important circumstance shows that his memory is very weak, in which case it is well-high impossible to believe that he would remember the genealogy narrated to him by his grand uncle though he could not give the names of the persons in whose presence the genealogy was narrated to him. He does not appear to have made any note of the genealogy on any paper when his grand uncle repeated the same, nor has he mentioned any particular occasion on which the genealogy was narrated to him which may have enabled him to remember the same. The graphic details about the relationship of Hari Narain Singh right up to Haren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. To crown it all, DW-34 admits that there is no document either to show that he was originally a resident of Majhwa or that Hansraj Singh was a common ancestor of this witness and Bhagwati Prasad Singh. Mukherji, J. who delivered the majority judgment, has dealt with the evidence of this witness rather summarily without alluding or referring to the important facts, infirmities, flaws and defacts as discussed above which makes the evidence of this witness both faulty and imperfect. All these circumstances taken together render him an unreliable witness. The next evidence that falls for consideration is that of Debi Singh, DW-35 (Vol. 1, p. 453) who belongs to Mauza Majhwa. It is curious that he claims his descent through Harkhan Singh who was disclaimed and disowned by Soman Kuer and Jaimed Kuer in the plaint filed by them in suit No. 130 of 1856 relating to Hansraj Talab (Pokhar), which falsifies the evidence of this witness at the very inception. According to the witness, there were some cases relating to Hansraj Talab between Harkhan Singh and Ramratan Singh on the one side and Soman Kuer and Jaimed Kuer on the other. The witness claims to belong to the family of Rarnratan and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a long lapse of Time. This part of his evidence is against the balance of probabilities and fails to consider infirmities and infalibility of human memory. He admits that he did not make any note of the genealogy of Bikram Sah or Bansidhar Singh but heard the same from Bhagwati Prasad Singh. He further stated that before hearing the genealogy from Bhagwati Prasad Singh he had occasion to narrate the same to his son, Sarju Prasad. This part of his evidence is wholly unintelligible because if he himself had not heard the genealogy from Bhagwati Prasad Singh, how could he narrate it to Sarju Prasad In order to further test his memory he was asked a few questions and he admitted that he did not remember the year of his own marriage although he was married at the age of 18 years. He further admitted that he did not remember the year when his mother died. It is not understandable how he could remember the genealogy narrated to him long before if he could not remember the facts which were directly within his personal knowledge, viz., either the year of his marriage or of the death of his mother. Another person from whom the witness is said to have acquired knowledge of the genealogy is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gether. Indeed, if this was so, how could this witness (Debi Singh) have learnt the genealogy from Bhupraj in respect of a point of which Bhupraj himself appears to be totally ignorant. This is a very strong intrinsic circumstance to discard the testimony of this witness. Furthermore, while the witness attempts to give a very long and complicated genealogy which would show that he possesses an excellent and shocking memory yet he admits that he does not remember the date of the death of his own father and mother or even of his own marriage. It is impossible to believe that a person who had such a short and week memory so much so that who could not remember even important events of which he had personal knowledge, would remember a long and complicated genealogy running into more than a century. Thus, the hurly-burly, skinny and scrawny process of repeating the huge crowd of names of so-called ancestors of the plaintiffs said to have been narrated to him has been proved to be unreliable on his own evidence, with the result that he has made confusion worse confounded. This shows that he was out to support his plaintiffs' case without any sense of responsibility or regard for truth. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is evidence regarding his ancestor, Bansidhar Singh where he says, "Bansidhar Singh had three sons, namely, Ramruch Singh, Accho Singh and Fakir Singh". It is pertinent to note that he does not name Gajraj Singh at all. Realising his mistake he adds that Gajraj Singh was the son of Ramruch Singh. It is obvious that before coming to the court, he must have been fully prepared with at least his own family's genealogy on the basis of which he wished to succeed hl the suit filed by him and yet the omission of Gajraj Singh at the first flush seems to indicate the poor state of his knowledge. Disclosing his knowledge about the genealogy, the witness states that he had learnt the genealogy from his father, Bhagawati Prasad Singh and one Bishwanath Singh Balwaria About Bishwanath Singh he says that he had heard the genealogy when he was only 12 years old. He makes a very stark admission which shows the state of his memory. He says in paragraph 26 of his evidence that he could not say the year of his birth and that of his brother according to Hindi Samvat and Fasli Year. In order to conceal his lack of knowledge he makes out a case that his horoscope as also that of his brother, Sri Kisha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tables filed by the plaintiffs. Further, in the genealogy which he appears to have seen, according to him, the names of Mst. Raj Kuer and Raghunath Singh in the line of Debi Singh are mentioned. A reference to the plaint genealogy will show that the name of Mst. Raj Kuer is not mentioned at all. He further admits that there is no mention at all of the descendants of Ramruch Singh which is the most vital factor to determine the truth of the plaintiffs' case. Ramruch Singh is not proved to be the father of Gajraj Singh, and therefore, the suit must necessarily fail. The witness who is the plaintiff himself is unable to explain this serious lacuna and gives a most feeble and unconvincing explanation that the omission was due to the fact that Ramruch Singh had gone away to Baraini. A number of other heirs in the plaint genealogy are mentioned who also had gone to Baraini and, therefore, the explanation given by him is to be stated only to be rejected. He further admits that in the said genealogy, there is no mention of the brothers of Bansidhar or their descendants. This, therefore. completely disproves his case. The witness further goes on to state that he had not asked Gauri Babu, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to give the genealogy of the Babus of Sheohar, Madhuban and Sirsa. It was further pointed out by the learned Judge that DW-13 stated that his source of information of the genealogy was his father but it is doubtful if his father himself would have known the genealogy of all the branches if, according to the statement of the witness, he was living in Baraini since long and would therefore have lost contact with all his relations. In this connection, the learned Judge observed thus: "Could his father himself have known the genealogy from Bansidhar down to himself, the genealogy of Raja Dhruba and the members of his family and the genealogy of the ancestors and descendants of Raja Jugal Kishores Circumstances do not show that he could have known all these. Thus simply because this witness states to have learnt it from his father, it cannot be taken for granted that his father must have known all these and had communicated to him the entire genealogy of these branches." (Vol. VIJI, p. 492) In these circumstances, we entirely agree with the view taken by M. M. Prasad, J. that no reliance can be placed on the evidence of this witness, DW-13. The last witness whose evidence was not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use it is the admitted case of the parties that Maharaja Harendra Kishore Singh died within a month of his marriage with Janki Kuer. He goes on to state that he learnt the genealogy from the late Maharaja and his uncle Ram Kumar Singh, Bhagwati Prasad Singh and Bhola Singh. He first stated that Bhola was the son of Deep Narain but immediately changed his statement and said that Bhola Singh was the son of Deo Narain. Some questions were put to him in order to test his memory and he made a very specific statement to the effect that he does not know his own genealogy except up to five degrees, that is to say, up to Baijnath Singh. He further admitted that he does not know the genealogy even of his close relations, not even the names of fathers of some of his close relations, nor even of his own maternal grand uncle. Indeed, if the witness was not in a position to know the genealogy of his own family how could he be expected to remember the genealogy of the late Maharaja whom he is said to have merely served. Further, in order to test the truth of the genealogy given by him he was asked to repeat the twenty names of any genealogy which he remembered but the witness failed to respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the witnesses of the plaintiffs: (1) The manner in which Mukherji, J. seems to have approached the evidence does not appear to be correct or scientific. On the other hand, he has A dealt with the evidence of the plaintiffs' witnesses in a very casual and cursory manner, as pointed out by us, and has completely overlooked striking facts and circumstances which render the evidence of the witnesses unworthy of credence. (2) No attempt was made by the learned Judge to adhere to the rules of evidence regarding proof of genealogy which we have discussed above, nor was any importance attached to the most notable feature of the evidence of witnesses for the plaintiffs that while testing their memory in order to find out if they could really remember the names narrated to them, they completely failed to pass the usual tests laid down by the authorities, as indicated by us, both before and after, while dealing with the evidence of these witnesses. (3) The learned Judge appears to have taken the evidence of the plaintiffs' witnesses for granted and accepted the same to be true ex facie without making a thorough probe into the apparent inconsistencies and glaring infirmities from whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idhar Singh, or that Ramruch Singh was the son of Bansidhar Singh and brother of Debi Singh. (3) That Ex. J. was admissible in evidence though of no assistance to the plaintiffs. (4) That the documents, transactions judgments, rebkars, plaints, written statements, etc. produced by plaintiffs are either inadmissible or irrelevant. (5) That the oral evidence on the point of genealogy is utterly unrealiable and unworthy of credence. (6) That neither the documentary nor the oral evidence adduced by the plaintiffs is sufficient to prove their case and hence the plaintiffs have failed to discharge A the initial onus which lay on them to prove their case. (7) That the majority judgment is wrong in law and on facts and has arrived at factually wrong and legally incorrect conclusions and, therefore, cannot be upheld. (8) That we entirely agree with the judgment of M.M. Prasad, J. so far as the plaintiffs' case is concerned. (9) The plaintiffs have not proved that they are the next and the nearest reversioners of the late Maharaja (Harendra Kishore Singh). We must confess however that to discover and sift the truth from a huge mass of materials relevant or irrelevant, ancient a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Bihar, it would be difficult to hold that merely in the event of the failure of the plaintiffs' case the properties would vest in the State of Bihar. It is well settled that when a claim of escheat is put forward by the Government the onus lies heavily on the appellant to prove the absence of any heir of the respondent anywhere in the world. Normally, the court frowns on the estate being taken by escheat unless the essential conditions for esheat are fully and completely satisfied. Further, before the plea of escheat can be entertained, there must be a public notice given by the Government so that if there is any claimant anywhere in the country or for that matter in the world, he may come forward to contest the claim of the State. In the instant case, the States of Bihar and Uttar Pradesh merely satisfied themselves by appearing to oppose the claims of the plaintiffs-respondents. Even if they succeed in showing that the plantiffs were not the nearest reversioners of late Maharaja, it does not follow as a logical corollary that the failure of the plaintiffs' claim would lead to the irresistible inference that there is no other heir who could at any time come forward to cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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