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TMI Blog1917 (3) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... describe themselves as the sons of Munir Khan. The defendants pleaded, as a. further defence, that Musammat Fiddo made a will on the 22nd of July, 1911, in favour of the first two defendants. The court of first instance held that the plaintiffs had not proved that they were the sons of Munir Khan, and further that the alleged will was genuine, and dismissed the suit. It seems to be admitted that if the plaintiffs are the sons of Munir Khan, they are the heirs of the deceased lady. The lower appellate court held that the plaintiffs were the sons of Munir Khan and therefore the heirs of Fiddo Begam, and held against the will. A learned Judge of this Court reversed the decision of the lower appellate court and restored the decree of the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly admissible. Section 32 of the Evidence Act provides that a statement, written or verbal, of a relevant fact made by a person who is dead is itself a relevant fact under certain circumstances. Clause (5) mentions one of the circumstances, namely, when the statement relates to the existence of any relationship between the persons as to whose relationship the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. We are clearly of opinion that a statement contained in a plaint filed by a litigant is a statement within the meaning of this section. The statement in the present plaint was a statement made before the question in dispute in the present suit w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on legal evidence, and that therefore he was wrong in overruling the lower appellate court in its finding that the plaintiffs were the sons of Munir Khan. As already stated the question of sufficiency or insufficiency of evidence is not for this Court in second appeal. The learned Judge of this Court left undecided the question of the validity of the will. The lower appellate court found that the alleged will had been made on the 22nd of July, that it was registered on the 23rd of July, and that the lady died on the 26th of July. The court finds that the lady was an old lady aged 60 years and suffering from dysentery on the 22nd of July, and the fact of her illness is noted by the Sub-Registrar when the document was registered. It furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id the full amount they paid, but only so much of the debts as should be attributed to the estate of Musammat Fiddo. We should be glad to give effect to this contention if we could see our way to do so. It must be remembered, however, that if we find that the plaintiffs are the heirs of Musammat Fiddo and if we find against the will, then the payments which were made by the defendants were purely voluntary and cannot be recovered in this suit. The learned Judge of this Court in the course of his judgement makes some remarks with regard to the duty of an appellate court in hearing an appeal. This no doubt is a matter of considerable importance and as the matter has been mentioned we think that the remarks of three of the Lord Justices of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the Judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen. Their Lordships were dealing there with an appeal from a single Judge of the Supreme Court of Justice. We think that these remarks apply to an appellate court in this country dealing with appeals from the decisions of Munsifs and Subordinate Judges and justify interference by the appellate court at least to the extent indicated. In India Munsifs and Subordinate Judges in many cases have to hear a case at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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