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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 ..... al persons came forward with rival claims of being the heirs to the properties left by the Maharaja which consisted of immovable and moveable properties, such as lands, houses, jewellery, etc. As a result of the hot contest by each of the claimants, one suit was filed at Varanasi being T.S. No. 3/55. That suit was filed by one Ram Bux Singh who claimed to be the nearest reversioner of the late Maharaja. That suit, however, appears to have died its natural death during the preliminary stages and was ultimately withdrawn on April 9, 1956, leaving only three claimants in the field. Another suit was filed on 16th August 1955 in the Court of Sub-Judge, Patna which was registered as T.S. No. 44/1955. The claimant in this suit was one Suresh Nandan Singh of Sheohar who had put in his claim before the Board of Revenue which had taken over the management of the entrie properties after the death of the widows of the Maharaja. The third suit being T.S. No. 25/58 was filed by two sets of plaintiffs who had entered into some agreement inter-se. That suit was filed in the Court of Sub-Judge, Patna on April 11, 1958. In that suit, the main claim was put forward by Raja Jugal Kishore Singh who cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate, 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 in both the States of Bihar and Uttar Pradesh the Courts of Wards of Bihar and Uttar Pradesh jonitly carried on the management of the properties. Maharani Janki Kuer resided at Allahabad and died childless on November 27, 1954. After her unfortunate death or even before, interested persons started casting their covetous and avaricious eyes on the huge properties left by the late Maharaja and litigation started by putting forward rival and conflicting claims thus making strenuous efforts to "turn chance into good fortune". The last and inevitable step of the drama long in process reached its climax with the death of Maharani Janki Kuer when as many as four suits, as mentioned above, were filed claiming the properties of the Maharaja, some as reversioners and some as putri ka putra, etc. We would like to make it clear that the three appeals, i.e., civil appeal Nos. 494 to 496 of 1975, have been filed by the State of Bihar arraying the plaintiffs and other claimants as the respondents in each of the appeals. The pivotal dispute centres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which negotiations started between the Government and Raja Jugal Kishore Singh regarding the estate in question and ultimately he was allotted the Zamindari of Majwha and Simrown which formed part of the Bettiah Raj estate and Babra and Maihsi were left in the possession of Srikishen Singh and Abdhoot Singh. The East India Company had formally announced this arrangement by a decision dated July 24, 1771. Soon thereafter, there was some dispute between Raja Jugal Kishore Singh and the Company, as a result of which he was again dispossessed by the Company as he failed to pay the Government revenue. Thus, the entire Sirkar of Champaran passed into the possession of the Government and was held by small farmers on temporary settlements. Raja Jugal Kishore Singh received an allowance for maintenance and died sometime in the year 1783, leaving a son named Bir Kishore Singh who was succeeded by his eldest son, Maharaja Anand Kishore Singh in 1790. Upon his death, leaving no issue, he was succeeded by his younger brother, Maharaja Nawal Kishore Singh who was succeeded by his eldest son, Rajendra Kishore Singh who was ultimately succeeded by Maharaja Harendra Kishore Singh, whose estate i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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 of Ambika Prasad Singh was dismissed by the trial court as also by the special Bench of the High Court and some appeals were brought to this Court by certificate. The said appeals, being civil appeal Nos. 114-119 of 1976, in Shyam Sunder Prasad Singh & Ors. v. State of Bihar & Ors.(1) came up for hearing before a Bench consisting of P.N. Bhagwati, A.P.Sen and E.S. Venkataramiah, JJ. This Court dismissed the appeals and rejected the claim of Ambika Prasad Singh holding that as Raja Jugal & Kishore Singh could not in law be considered as putri ka putra his claim to the estate left by Raja Dhrub as being the nearest reversioner, cannot succeed. The claim of Radha Krishan Singh and others in suit No. 5 of 1961 was left to be decided by another Bench and it is these appeals that have now been placed before us for hearing. However, it is not necessary for us to make a deeper probe into the early history of Bettiah Raj because in the instant case the relevant genealogy for the purpose of ascertaining the ancestors of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine 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 proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved. We shall now proceed to scan and analyse the evidence in the light of the principles adumbrated above referring to the important authorities on the questions arising out of the evidence, oral and documentary, Although both the parties have cited a very large number of decisions we would not like to load or crowd this judgment with all the authorities cited before us and would confine ourselves only to the important and relevant authorities of this Court and those of the Privy Council and we shall refer to the judgments of the High Court only if there is no decision of the Privy Council or of this Court directly in point. To recapitulate, the plaintiffs-respondents based their title as being the nearest reversione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh 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 from the other two Judges constituting the Special Bench who had taken a contrary view and had held that the plaintiffs had fully proved the entire genealogy set-up in the plaint. This, therefore, makes our task easier because we need not discuss in detail the evidence and documents to show the connection of the plaintiffs upto the stage of Gajraj Singh though we may have to refer to the evidence for the purpose of deciding the main issue, viz., whether or not Gajraj Singh was the son of Ramruch Singh and Ramruch Singh a brother of Debi Singh and son of Bansidhar Singh. Before going into the evidence, we would like to extract the findings of the courts below on the question of title. The trial court had clearly held that the plaintiffs had not been able to prove any linkage or connection between Ramruch and Bansidhar but the majority judgment consisting of G.N. Prasad and Mukherji, JJ. disagreed with this finding and held that all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reduced the controversy to the bare minimum and has shortened the arena of the dispute that we are called upon to consider. Even so, this short controversy itself is a stupendous task to determine and we will have to approach this aspect with great care and caution, deliberation and circumspection because two learned Judges of Patna High Court had negatived the plea of the defence and accepted that of the plaintiffs. In order to understand the various shades and aspects of the case and its historical background, it may be necessary to extract the plaint genealogy even at the risk of repetition. In fact, the plaintiffs themselves did not append any genealogy to their plaint but G.N. Prased, J. has constructed a genealogy, based on the recitals in the plaint, for the purpose of convenience which is reproduced here (reproduced on pages 826-27). The position that emerges from a perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsgopal 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 Devi (Daughter) (Daughter) (Son) (Daughter) appearing for the plaintiffs of Title Suit 25 as also the State of Bihar have clearly stated before us that they do not dispute their genealogy up to that point. The finding of the learned Subordinate Judge is also to the effect that they have proved their genealogy up to that point. The point does not, therefore. need a detailed consideration. ... ... ... 378. The other documents, however, prove that Bhagwati, the father of these appellants, was a descendant of Gajraj-" (Vol. VIII, pp. 442 & 444) Thus, the dispute which we have to resolve in this case is whether the plaintiffs have been able to prove any link between Ramruch and Gajraj Singh on the one hand and Ram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 Evidence Act. It is a different matter that even though a document may be admissible in evidence its probative value may be almost zero and this is the main aspect of the case which we propose to highlight when we deal with the legal value of this document. Before, however, making any comment on the probative value of the document in question it will be necessary to peruse and analyse its important contents and their legal effect on the case put forward by the parties. We might mention here that the appellants before us have not accepted the stand taken by the High Court that this document is admissible in evidence but have argued at some length that it is totally inadmissible. Dr. Singhvi was not very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusively 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 it was produced before the trial court, clearly and conclusively prove that the report was made by an official serishtadar appointed by a very high governmental authority. Even the opening lines of the Exhibit clearly indicate that Durga Prasad was a Government servant, perhaps in the Revenue Department, and was asked to submit a report for official purposes. It is also established that Durga Prasad made a roving enquiry and ultimately submitted his Report in the year 1813. Of course, it is true that there is no evidence to show as to what happened to this Report, but that is beside the point so far as the relevancy or the admissibility of this document is concerned. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 is no evidence to indicate as to what happened after the author had submitted his Report to the Government and whether or not any follow up action was taken on the basis of his Report or it was just filed and kept on the record Lying lifeless and mute. The fact of the matter is that no proper verification was made by Durga Prasad regarding the facts stated in his Report from any source and that it did not form part of a revenue entry or record which was ever referred to by any Executive, Judicial or statutory authority subsequent to the filing of this Report. In other words, the position seems to be that the fate of the Report, after it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hips 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). There is absolutely no corroboration of the facts mentioned in Ex. J either by later entries or by any other document. There are a number of other facts mentioned in the judgment of the Privy Council (supra) which completely distinguishes that case from Ex. J in the present case. At least this much is clear, as already indicated, that in the Privy Council case there was positive evidence to show that the entry was acted upon for several years and that by process of elimination the caste of the appellants as Mohal Rajputs was established. But in the instant case there is absolutely no evidence to corroborate the recita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 or an Act which requires certain conditions to be fulfilled. This was the case in both Ghulam Rasul Kltan's and Kuar Shyam Pratap Singh's cases (supra). The case of Meer Usd-oollah v. Mussumat Beeby Imaman, Widow of Shah Khadim Hossain appears to us to be a cler illustration of a document which while being an entry in a public record is of great probative value and carries the utmost weight. In this case, the Registers concerned were probably under Bengal Regulations and the act of registration in the Registers was made after a proclamation amounting to a public, open and notorious assertion of title. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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, based on the evidence of witnesses and other documents and had recorded his clear opinion which was accepted by the Board of Revenue, in the instant case Ex. J is a God forsaken document which does not reveal either the source on the basis of which the materials were collected nor does it indicate that the author of Report recorded any statements or looked into other documents to base the truth of the genealogy or the possession of landlords referred to in his report. Finally, Ex.J, unlike the document in the case before the Privy Council was not a Report unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 on what he may have heard from third parties and hence much value cannot be attached to such a report. In Brain v. Preece Lord C.B Abinger made the following observations: "The case of the attorney, in Deo v. Turford, stands on precisely the same grounds as that of Price v. Lord Torrington. There it was proved that the notices were written, and that the attorney had gone out, and indorsed the duplicate when he came back, and that it was his practice so to indorse it when he had served the original, and that was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, started writing Ex. J in the year 1810 and completed the same in 1813. (3) That Ex. J mentions names of some persons who according to the plaintiffs were their ancestors but on carefully analysing the document, it is not very clear as to how Ramruch Singh was connected with Bansidhar Singh or Debi Singh. (4) That the probative value of Ex. J is absolutely insignificant and is of no assistance to us in proving the plaint genealogy. (5) That Ex. J was a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 controversy between the parties as to whether Durga Prasad was entrusted with the task of the inquiry by a private landlord or by a high Government official. The High Court on a perusal of the Opening portion of the document clearly came to the conclusion that the terms used in the opening portion and the manner in which he has addressed the person to whom he was directed to submit the Report shows that he must have been a high ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 context would mean not only predecessors or ancestors of Pahalwan Singh but also the elders of Pahalwan Singh who may or may not be directly related to him though they may form either near or distant relatives being elder to Pahalwan Singh. The High Court seems to have proceeded on the footing that the word 'buzurgan' really means ancestors only and one of the tasks entrusted to Durga Prasad was to find ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 place, Durga Prasad has used the word 'Aulad-e- Gautam'. Auld means 'heirs or direct descendants'. This is followed by the word 'Biradari'. The actual sense which he wanted to convey was that the lands in the Mauza were in possession of the descendants of Gautam tribe and his biradari. Biradari was sought to be interpreted by the respondents as meaning the members of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urga 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 used in the documetlt (Ex.J.). The word 'minjoomle' merely means - among all or from among them-it does not mean 'including'. The words in the last portion of second paragraph of the Report "Pahalwan Singh ham az auladey Debi Singh minjoomle chehar kashan mazkuran asht. Faqat." - do not indicate that Pahalwan Singh alongwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned 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 descendants of an ancestor he would expressly say so. On a plain reading of this part of the Report, it would appear that the descendants of Hirday Narain Singh were Bhagat Singh, Golami Singh, Audhan Singh, Ram Baksh Singh, Rahmit Singh and Harjan Singh. The other pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bi 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 it is mentioned that Gurdat Singh was one of the descendants of Debi Singh and Hardarshan Singh was a descendant of Ramhit Singh. As regards Taluka Thathra and other villages they were sold to Raja Balwant Singh and one Gajraj Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 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. Tarkunde, which is also reiterated in the Summary of arguments supplied to us, that the defence witnesses referred to above support some of the statements made in Ex. J. It was argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 him are correct then we should have expected a clear mention of the name of his ancestor in Ex. J. On the other hand, though Durga Prasad was expressly entrusted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms 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 witnesses, i e., DWs 33, 34 and 35 this witness also does not corroborate the Report of Durga Prasad. There is one important fact in the statement of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 persons ere members of the family of Hirday Narain Singh, Ex. J does not show in what manner Ramruch and Debi Singh were related or that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 respect of the zamindari of that village. This document refers to the settlement of the village in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appears to us that what the plaintiff's seem to have done in this case is that taking advant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fulfil the conditions of s. 43 otherwise it cannot be relevant under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied 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 under them woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aras 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial 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 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 wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 application of mind having regard to the vital issues involved in the case. The Majority Judges seem to have been greatly influenced by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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 witnesses on this matter bound to be hearsay and their evidence is admissible as an exception to the general rule where hearsay evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Singh & Ors. v. Basant Singh & Ors.(2) the Privy Council made very apt and valuable observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese 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 have been an erroneous impression in the minds of those who proved the claimant's case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 giant possessing a very sharp and shocking memory, the matter m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 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-3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to believe 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Vol. 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 fiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s absolutely no mention of either 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by Mr. Tarkunde that according 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff's suit of 1961 entered the 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that Debi Singh had only one 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. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his witness states that Jadunandan 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 unint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the third occasion. So far as Bhupraj 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... little about the conduct of the case as it 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Singh or their descendants or the descendants of 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 pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of DW-13 It was further argued before us by Mr. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms with their family. He also states that he and his ancestors 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 Narai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d give it value or admissibility." To sum up, the ingenious and imaginative, fanciful and foggy, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grandson of Bansidhar Singh from the circumstances and the documents in which the name of Ramruch Singh as being 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 irrel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidhar Singh are proved. We have already shown that the plaintiffs have miserably failed to prove these important links. In A other words, the left-hand 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 appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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