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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 ..... t their rival claims. - Civil Appeal Nos. 494- 496 of 1975. - - - Dated:- 20-4-1983 - FAZALALI, SYED MURTAZA, VARADARAJAN, A. ERADI, V. BALAKRISHNA JJ. JUDGMENT: Dr. L.M. Singhvi, S.C. Mishra, U.P. Singh, S.N. Jha and L.K Pandey for the Appellant. V.M. Tarkunde, U.R.Lalit, D.N. Goburdhan and D. Goburdhan for Respondents Nos. S 22. Dr. Y.S. Chitale and Mrs. Sobha Dikshit for the State of U.P. S.K Verma for the Intervener. The Judgment of the Court was delivered by FAZAL ALI, J. These appeals are directed against a judgment of the Special Bench of the Patna High Court by which the High Court decreed title suit No.5/61 after reversing the Judgment of the trial court. It appears that after the death of Maharaja Harendra Kishore Singh (hereinafter referred to as the 'Maharaja') who died issueless on the 26th of March 1893, a serious dispute arose about the impartible estate left by him. The Maharaja claimed to be a direct descendant of Raja Hirday Narain Singh who was the admitted owner of the properties. Several persons came forward with rival claims of being the heirs to the properties left by the Maharaja which consisted of immovable and moveable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 situated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... har 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 Zami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , had 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts or a labyrinth 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f their case. The defendants, however, 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ... Turning to the oral evidence which I have discussed 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied childless) --------------------- Anand Kishore Naval Kishore (D. 1838) (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 K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recitals in Ex. J. and are really based on a wrong interpretation of certain expressions used in Persian language. These observations appear at 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 fulfill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the document but which assumes importance only when we consider the probative value - of a particular document. The fact that the Report was called for from 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 entrust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t happens to be an ancient document. Admissibility of a document is one thing and its probative value quite another- these two aspects cannot be combined. A document 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due course since 1852 showing that the term 'Khayyat Mohal' did not denote a tribe but merely a profession. Secondly, the revenue record of Mauza Shahna clearly mentioned 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer but under a statute which required certain conditions to be fulfilled. Furthermore, sufficient notoriety and publicity was given to this document because a copy of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the Report of the collector and made a minute approving the same and observing that there was no question of doubting the validity of the Report. In this connection, the Privy Council 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 cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant case also, Durga Prasad had to depend on some unknown persons, who were not even mentioned in the document, to gather his facts and, therefore, even if it is admissible its probative value will be almost 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lmesley." Although we cannot hold that Ex. J in the present case is inadmissible in view of the express provisions of s. 35 of the Evidence Act, yet the observations of the Privy Council extracted above would directly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the translated version. Fortunately, as one of us (Fazal Ali, J.) happens to possess sufficient knowledge of Persian language, we found no difficulty in deciphering the correctness of the disputed meanings of the expressions used in the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... halwan Singh were in possession of the aforesaid Taluka (by aforesaid Taluka Mauza Majhwa is clearly intended as would appear from the earlier part of the document.) The word used in the Roman script are "buzurgan Pahalwan Singh". There was a serious 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has deliberately not done. We are fortified in our view by the dictionary meaning of the words 'Moris' and 'Moroos'. The meaning or Moroos is described by Steingass at page 1343 as 'hereditary, possessed by paternal succession'. The word 'Moris' is a 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 furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also the High Court seem to infer that Debi Singh, Barisal Singh, Ramhit Singh and Gajraj Sahi were the direct descendants of Hirdaynarain Singh or the members of his family. This inference is not brone out by the aforesaid words used by Durga Prasad. The words only indicate 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 Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rain Singh. In fact, no person by the name of Gurdat Singh is mentioned as an heir of Debi Singh in the plaint genealogy. On the next page it was mentioned that Babu Deep Narain Singh purchased the village at an auction held by the Government for payment of arrears of Government revenue Deep Narain 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 cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rshan Singh who was a descendant of Ramhit Singh has been given the patta and is in possession. As regards village Gadoi it is mentioned that at the time of settlement zamindari patta was given to Nanku Singh and Jitoo Singh who were descendants of Hirday Narain Singh. Nanku Singh died and thereafter Deep Narain 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account books and when and under what circumstances the account books were prepared. In these circumstances, therefore we are kept completely in the dark as to what those account books contained and whether or not the facts mentioned in them were properly checked and verified. Even the fact as to who was the accountant 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 evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ahalwan Singh about whom he had to submit his Report. Furthermore, we are unable to see how the evidence of this witness supports the plaintiffs which merely says that Ram Fakir had three sons, viz., Barisal, Ram Singh and Rattan Singh. He does not say anywhere in his evidence that either Ram Fakir or his sons were in any way connected 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s witness would be made when we discuss the oral evidence of the parties. At present it is sufficient to show that the arguments of the respondents counsel that Ex. J is corroborated by the evidence of this witness are wholly untenable. Reliance was then placed on the evidence of DW 36, Mahadeo Singh who seems to be an interested witness 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. Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what was the eventual fate which it met. It is merely a statement of Udit Narain Singh, and the document does not show that it is based on his personal knowledge or that the petitioner acquired knowledge from his ancestors. However, as it is not disputed that Pahalwan Singh was undoubtedly an ancestor of the late Manaraja and his name finds place 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 Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... patta of village Jalalpur in taluka Majhwa was executed in favour of Farman Singh and after his death his sons Zalim Singh and Ramhit Singh obtained patta. Assuming that the statement made above is correct, it only takes us to Farman Singh who is said to be the son of Gajraj Singh. We have already indicated above that so far as the plaintiffs' genealogy 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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ancestors of Pahalwan Singh and if Bansidhar and Ramruch were really the ancestors of Pahalwan Singh, their names could not have escaped the attention of Durga Prasad particularly when the name of Hirday Narain Singh, who is higher than Bansidhar Singh, is mentioned in the Report conspicuously. Secondly, in view of the scope of the enquiry embarked upon by Durga 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 Bansidha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (3) documents or judgments post litem motam. In order to put the record straight we would briefly discuss the the case law on the subject and refer to some of the important authorities of this Court and those of the Privy Council or some of the High Courts which appear to us to be very relevant. Taking the first head, it is well settled that judgments of courts 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw of this Country there could not be a pretence for saying, that the judgment in it was any, thing like judgment in rem or that it could bind any but the parties to the suit.. It is sufficient for their Lordships to say, that the judgment pleaded in this case in bar cannot be treated as one of that nature upon any principles, whether derived from the English Law or from the Law and practice 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue; and if the existence of the judgment is relevant under some of the provisions of the Evidence Act it is difficult to see what inference can be drawn from its use under these sections. Serious consequences might ensue as regards titles to land in India if it were recognised that a judgment against a third party altered the burden of proof as between rival claimants, and much 'indirect laying' might be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public or general nature. The admission of declarations as to those rights is allowed partly on the ground of necessity, since without such evidence ancient rights could rarely be established; and partly on the ground that the public nature of the rights minimises the risks of mis-statement." The admissibility of such declarations is, however, considerably weakened if it pertains not to public rights but to purely private 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 exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 26th November, 1908, that is to say, about two and a half months after the suit was filed. The statement of Bishanm Dayal in the suit of 1908 was sought to be relied on but the Privy Council held the statement to be inadmissible because he had already become an interested party and the case, therefore, had been hit by the doctrine of post litem motam. In Dolgobinda Paricha v. Nimai Charan Misra Ors.(1) this Court held that the statement in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file any and every document, deposition, statement, declaration, etc., where there is any genealogy which connects him with either the Maharaja of Banaras or his gotias without making any attempt to prove the main link on which rests the entire fabric of his case. The result has been that the plaintiffs have landed themselves into a labyrinth of delusion and, darkness from which it is difficult for them to come out and the case made out by them has been reduced 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 Pahalwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our) were spent on the execution of the sale deed and Rs. 8,000 was again left in deposit with the vendee for his satisfaction till the document was executed. As Bhola Singh himself was fully aware that he had no title to the properties at the time of the sale, he on the one hand, deposited the entire consideration money, excepting a very small amount, with the vendee and, on the other hand, made no secret of the fact that these amounts were to be spent by the vendee 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Therefore, the genealogy is incorrect, inaccurate and incomplete and no reliance could be placed on this document for the purpose of proving the plaintiffs' genealogical tree. The trial court had rejected this document (Ex. V) and go had one of the Judges (M.M. Prasad, J.) in the High Court and, in our opinion. rightly. Lastly, regarding this document, it may be mentioned that soon after the execution of the sale deed the late Maharaja had already been substituted as the heir 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he trial court and found that Bhola Singh was not a reversioner of Jaimed Kuer and, therefore, had no title to sell the properties to the late Maharaja The appellate court further found that the whole tenor of the sale deed shows that the Maharaja of Banaras purchased a litigation. Reliance was placed by Mr. Tarkunde on certain recitals pertaining to genealogy but even though the Judge held that the late Maharaja was a descendant of Raghunath Singh yet there is no mention of Raghunath 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, hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properties of Jaimed Kuer. In our opinion, these arguments are based on surmises and conjectures and are without any legal basis. The mere fact that the Maharaja spuerned the offer of Jaimed Kuer of surrendering her properties to him would not show that he was not interested in the properties because he knew full well that after her death the properties were bound to come to him as the next reversioner and he would have an absolute interest in the same. It is quite possible that the 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llusive which had become final and irrevocable. And all this futile and amorphous exercise only to rely on the genealogy given in Exs. V and P-2 which both inadmissible and incorrect. Dr. Singhvi, appearing for the appellants, rightly pointed out that the entire edifice of the arguments of the respondents is based on a pack of cards which must collaps the moment the court makes a through probe into the various constituents or bricks which from the foundation of the edifice. The learned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate, since the original document was marked in evidence, M.M.Prasad, J. had rightly observed that the points urged by the appellants about the document being suspicious do not survive. It appears that the Head clerk who was examined as DW-6 stated that the certified copy was marked as Ex. Q/2 although the earlier entry shows that the original itself was marked as Ex. Q/2. DW-6 further admitted that there was a table of contents attached to the records which he had brought but the number of 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 authent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an were descendants of one Bikram Sahi or Bikram Singh who was shown as a brother of Bansidhar Singh. There are lot of other discrepancies pointed out by M.M. Prasad, J. which have not been adequately rebutted either by the majority judgment or by the counsel for the respondents, We now come to the most serious problem regarding the contents of Ex. Q/2. It is also worth noting that each version of Ex. Q/2 is distinctly different and it is difficult to ascertain and choose as to which of the three versions 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 import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gy is not a public document but is a purely private document and it has not been shown as to who prepared this genealogy, in what manner, at what time and under what circumstances. No person having special means of knowledge of the various heirs mentioned in this document has been examined in these circumstances and for the foregoing reasons we are unable to place any reliance on the mysterious and murky document which Ex. Q-2 is. Exhibit Q-5 is another genealogical table of the late Maharaja which shows that 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 contradict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Tarkunde appearing for the plaintiff has merely referred to this document without asking the court to place implicit reliance on it and, in our opinion, rightly, because this document is wholly irrelevant to prove the controversy in. dispute and merely relates to an Ekrarnama executed by Rajendra Kishore Singh nominating a Committee for the purpose of managing the properties of his son, Chiranjiv Rajkumar Harendra Kishore Singh (the late Mabaraja) until he attained majority. This merely shows the connection of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pear that this plaint was filed on 26th July 1895, that is to say, after the death of Maharani Sheoratan Kuer, senior widow of the late Maharaja. The plaintiff in that case was Ram Nandan Singh. In the first place, this document is hit by the doctrine of post litem motam because the dispute to the succession of the late Maharaja (Harendra Kishore Singh) had already stated with his death in the year l 893 and the suit was filed two years thereafter, and it is therefore, irrelevant. Secondly, the plaint filed in the suit not 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/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W-36 but that does not help us at all. There are a series of documents filed by the plaintiffs to prove that Bhola Singh was an ancestor of Bhagwati Prasad Singh. Even if these documents are proved, they merely take us up to Bhola Singh and some of them even upto Gajraj Singh but that linkage is not sufficient to determine the vital issue in this case, viz., as to how Gajraj Singh was connected with Ramruch, Deci Singh and Banisidhar. For instance, Exhibits GGG/13, 14 and 16 are recitals in several documents in the nature of 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 Gajra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect connection between Debi Singh, Ramruch and Gajraj Singh is proved. Ex. NN/6 consists of extracts from the Banrag Gazetter which shows that Barisal Singh of Majhwa was one of the persons who was killed in the battle of Marui which took place near about the year 1719. This fact is also mentioned in Ex-J but that does not mean that the plaintiffs have proved their case by virtue of these documents. The other documents have already been discussed by us while referring to the documents said to have corrobrated Ex. J. This is all the documentary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to restate the norms and the principles governing the proof of a pedigree by oral evidence in the light of which the said evidence would have to be examined by us. It is true that in considering the oral evidence regarding a pedigree a purely mathematical approach cannot be made because where a long line of descent has to be proved spreading over a century, it is obvious that the witnesses who are examined to depose to the genealogy would have to depend on their special means of knowledge which may have come to them through their ancestors but, 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 witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. This is not the case of a pedigree learned by rote, but it circumstantially corroborated, as far as time and memory admit." (Emphasisours) In Abdul Ghafur Ors v. Hussain Bibi Ors.the Privy Council briefly summed up the law in this regard in the following words: "It has been established for a long while that in questions of pedigree, I suppose upon the ground that they were matters relating to a time long past, and that it was really necessary to relax the strict rules of evidence there for the purpose of doing justice-but for whatever reason, the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceased relatives deposed to by interested claimants rarely deserve much weight because these declarations are made by the relations for the first time after the contest of claim has arisen. In accepting this kind of evidence, the court runs the risk of being deceived by deliberate falsehood. The author further goes on to state thus: "Little reliance can be placed on accuracy of his testimony, for men, without deliberately intending to falsify facts, are extremely prone to believe what they wish, what they believe with what they have heard and to ascribe to memory what is merely 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or recorded in writing, the facts or events fade, sequences get lost, consistency gives way to inconsistency, realities yield to imagination, coherence slowly disappears, memory starts becoming blurred, confusion becomes worse confounded, rememberance is substituted by forgetfulness resulting in an erosion of facts recorded by the memory earlier. This equally applies to facts merely heard by one from some other person. Thus, if a person having only heard certain facts or events repeats them after a long time with mathematical precision or adroit accuracy, it is unnatural and unbelievable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Witness has admitted that he was a classmate of Bhagwati Prasad Singh, the father of these 1 plaintiffs. That explains everything the witness represents a typical partisan witness who can go out of the way to support one party and expose himself even to ridicule for the sake of such support. In my view, no reliance can be placed at all on his evidence." The trial court also did not place any reliance on the evidence of this witness. In these circumstances, it is not necessary for us to deal with the evidence of DW-32, nor was any reliance placed by the counsel for the respondents on his evidence. The evidence of DW-33, Bhairo 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, Bhai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their case. Therefore, while this may not be a sole ground for rejecting his testimony his evidence has to be taken with great care and caution particularly when he is Dot deposing as an eye-witness but as a witness to the genealogy which he may have heard from his ancestors. The approach made by Mukherji, J., in appreciating his evidence does not appear to be correct. The learned Judge has referred to several documents which have nothing to do with the genealogy in question. On the question of genealogy, which was the vital question to be determined, the learned Judge has not examined the intrinsic evidence of this witness on merits. 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 conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eve that the weeping of the family members would take place two years after the death of the Maharaja. Similarly, when he was further cross-examined about the time and the manner in which he acquired the knowledge of the genealogy, he made a number of inconsistent statements: sometimes he said that he acquired knowledge of genealogy from Nandkumar Singh but he did not reduce it in writing. In answer to another question, he admits that the entire genealogy was narrated to him at one stretch but he did not learn the the same at once but from time to time. He could not say how far he learnt the genealogy when it was narrated to him and then said 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 ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I, p.l58) who was essentially a witness for the plaintiffs of title suit No. 44 of 1955 has incidentally deposed to the genealogy of the plaintiffs-respondents. His evidence was considered by the majority and rejected on the ground that he had no connection with the family of Bansidhar Singh and as he did not hear the name of Farman Singh or Gajraj Singh, he was not competent to prove the plaintiffs' genealogy. In this connection, Mukherji, J observed thus: "This witness was also an unsummoned witness. He cannot even tell the name of the father of Bhagwati Prasad Singh. He did not even hear the name of Farman Singh or Gajraj Singh of village Baraini. 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 submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hansraj Singh or Hirday Narain Singh or Madho Singh or any of the brothers of Bansidhar Singh or even of Ramhit Singh or any of his descendants in the plaint genealogy. It would be pertinent to note in this context that the descendants of Ramhit Singh had appeared as witnesses in suit No. 55 of 1983. and had declared that Ramruch Singh was not the son of Bansidhar Singh. In these circumstances, this witness cannot now be heard to say that Ramruch Singh was the son of Bansidhar Singh and not of Mangal Sah. The witness admits that he has not seen and written genealogy in respect of which he had deposed in the court. He appears to be closely connected with Gauri Babu 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 Pair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to DW-21, he was a descendant of Hirday Narain Singh or of Madho Singh and therefore he would be, second in the line of claim to the reversionary interest of the late Maharaja and as such he is not likely to depose against his own interests. The witness is a young man and we have already shown that the source of his information about the plaint genealogy is not believable. The manner in which the witness was brought from his village to Patna by the Pairvikar of the plaintiff and the incorrect statement made by him regarding the genealogy clearly show that whatever he may profess he does not seem to be in any way connected with Hirday Narain Singh. In fact, DW-21 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 year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arena of the present case. Moreover, in 1909, the memory of Bhupraj would have been much fresher than that of this witness. In order to test the veracity of this witness on the touchstone of the principles enunciated by this Court and the Privy Council we would refer to the source of his knowledge. Admittedly, 'the witness had no personal knowledge about the genealogy of the family of the plaintiffs. He however represented in his evidence that he had learnt the genealogy from his grand uncle Hari Sharan Singh and Bhagwati Prasad Singh, father of one of the plaintiffs, both of whom are now dead. He further admits that his grand-uncle, Hari Sharan Singh, died in or about 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne son, viz., Aini Sihgh. Thus, far from corroborating the genealogy, his evidence positively contradicts the plaintiff's genealogy. He has also made a number of errors in describing the genealogy which does not tally with the plaintiff's genealogy. In our opinion, the evidence of this witness appears to be got up and does not inspire any confidence. This is demonstrated by the fact that he admitts that the plaintiff Radha Krishan Singh had told him to give evidence in the case and yet he says that he had never nrrated the genealogy to Radha Krishan Singh. Indeed, if this was so, it is not understandable why Radha Krishan Singh would have asked him to depose in his favour. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh gave out the family genealogy of Bansidhar Singh and Bikram Sah when he was aged only 15-16 years. He further asserts that Dalthumbhan, Prayag Singh and Parsidh Singh were also present and none else. None of these witnesses have been produced to support the testimony of this witness. It is also not known whether these witnesses are dead or alive. He then states that at the time when the genealogy was narrated to him he could remember only 10 or 5 names but he could not name those 10 or 5 names exactly. A person who is not able to remember the names disclosed to him about 40-46 years ago could not possibly remember the names of all the ancestors of Jadunandan Singh after such 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Upadhya's knowledge is concerned, it has been clearly proved in this case that he could not at all be aware of the correct genealogy of the family of the late Maharaja. In the title suit of .1908 filed by the late plaintiff (Bhaawati Prasad Singh), Bhupraj deposed as a witness and the certified copy of his evidence is Ex. B/32. A perusal of his deposition would show that Bhupraj had himself given a written genealogy on the most vital point by saying that Gajraj Singh was the son of Bansidhar Singh, thereby giving a complete go-by to the case of the present plaintiffs that Gajraj Singh was son of Ramruch Singh. In fact, in his statement Bhupraj omitted the existence of Ramruch altogether. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not support the genealogical tree set forth in the plaint itself. In his statement, he mentions that Bansidhar Singh had three sons, viz. Ramruch Singh, Accho Singh and Fakir Singh and expressly states that Debi Singh was not one of his three sons, which knocks the bottom out of the plaintiffs' entire case. Further, his evidence does not establish any Link between Debi Singh and Aini Singh even in his examination-in-chief, as a result of which he is forced to make a substantial change in his version at a later stage after several days realising that he had committed a serious blunder which might discredit his case altogether. To illustrate our point, we might extract a part of his 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bansidhar Singh who had left village Majhawa." (Vol. 1, p. 349, para 79) This shows his complete lack of knowledge of his own family's genealogy which conclusively proves the fact that he has been asked to depose parrot like just to support his case. To begin with, he says that one of the papers he had seen was a written genealogy in which the persons named in an earlier part of the statement were mentioned. He admits that he saw that genealogy about two years back but he could not say who was the writer of that genealogy and whether or not his name was mentioned in that genealogy. He has not cared to produce that particular genealogy or to prove the same along with the number of genealogical 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tarkunde that there was another mistake committed in the appreciation of the evidence of DW-13 and that was the fact that much was made of the statement of the witness that while naming the sons of Bansidhar Singh Accho Singh was mentioned instead of Devi Singh. This is an unmistakably clear statement made by the witness and there is no question of there being any lapse on this part of the case. It is a different matter that the witness may have realised the omission of the name of Devi Singh later but truth comes out first. Apart from this, the learned dissenting Judge has given a number of reasons for disbelieving DW-13. The learned Judge has relied on the omission on the part of the witness 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stors were in the service of Bettiah Raj, more particularly, Hanuman, his grand-father, Salik. Singh, his great-grand-father and Baijnath Singh, his greatgreat-grandfather. There is, however, no evidence to show that Baijnath, Salik or Hanuman were in the service of Bettiah Raj, nor has any document been produced in support of this statement. There is also no document to prove that he was a personal attendant of the late Maharaja, as claimed by him; although he claims to be a personal attendant for three years, it is rather strange and curious that he cannot give the age of the Maharaja at the time of his death nor the time of the marriage of the Maharaja with Janki Kuer. This is rather important because 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gy, nasty and nebulous narration of genealagies by the plaintiffs witnesses one after the other looks like a 'sleeping beauty' or Cinderella's Dream or as Shakespeares Macbeth would say "A tale told by an idiot, full of sound and fury, signifying nothing." Thus, on a complete and careful consideration of the oral evidence also the plaintiffs have miserably failed to prove the two important links, viz., that Gajraj Singh was the son of Ramruch Singh, and that Ramruch Singh was the son of Bansidhar Singh and brother of Debi Singh. Before closing our comments on the oral evidence, we might say a few words about the methodology adopted by Mukherji, J. speaking for the majority, in appreciating and analysing the evidence 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 Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the father of Gajraj Singh was completely omitted as pointed out by as above. C On a close and careful, detailed and exhaustive discussion of the oral and documentary evidence, the inescapable conclusions and the firm findings which we arrive at are us follows: (1) That the plaintiff has no doubt proved that he was a direct descendent of Gajraj Singh but that is of no assistance to him so long as it is not shown that the missing links-the relationship of Gajraj Singh with Ramruch Singh, and Ramruch Singh with Bansidhar Singh, and that Bandsidhar Singh was one of the sons of Hirday Narain Singh have been established. (2) That the plaintiff has miserably failed to prove that Gajraj Singh was in any way connected with Bansidhar 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 ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and side of plaintiffs genealogy starting from Debi Singh up to the late Maharaja has undoubtedly been proved but that by itself cannot show that the plaintiffs are the next or the nearest reversioners of the late Maharaja. In view of the findings given by us, the plaintiffs' suits have to be dismissed. Before closing the colourful chapter of this historical case we would now like to deal with the last point which remains to be considered and that is the question of Escheat. So far as this question is concerned, M.M Prasad, J. has rightly pointed out that as the State of Bihar did not enter the arena as a plaintiff to claim the properties by pleading that the late Maharaja had left no heir at all and, hence, the properties should vest in the State 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 essentia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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