Ajaib Singh and others vs Mann Singh and others

P.C. Pandit, J.—The following short pedigree table will be helpful in understanding the facts of this case :

On 2nd of January 1965, by a registered deed, Swaran Singh sold the land in dispute in favour of Ajaib Singh and his two brothers, Gurdev Singh and Amar Singh for Rs. 9500/. Thereupon, Man Singh filed a suit for possession of this land on the ground that he was the vendor''s father''s brother''s son and as such had the right of pre-emption.

The suit was contested by the vendees on a number of pleas, but in this second appeal, we are concerned only with one of them, namely that the plaintiff had no right of pre emption, because he was not related to the vendor as alleged by him.

Both the Courts below have held that the plaintiff had proved that he was the first cousin of the vendor, as alleged by him, and consequently had a right of preemption. The courts below have decreed the plaintiff''s suit on payment of Rs. 10137/25 Paise, Rs. 9500/- being the sale price and the balance represented stamp and registration charges, etc. The vendees have come here in second appeal.

Learned Counsel for the appellants has raised only one contention before me, namely that the oral evidence examined by the plaintiff to prove his relationship with the vendor did not fulfil the requirements of section 50 of the Indian Evidence Act and, therefore, that evidence was inadmissible and the finding of the lower appellate court hat the plaintiff was the first cousin of the vendor, being based on such an evidence, was vitiated in law.

It is common ground that the finding of the lower appellate court that the plaintiff was the vendors father''s brother''s son was based on the plaintiff''s own evidence as P.W. 1 and two other witnesses, namely. Inder Singh and Kapoor Singh, P.Ws. 2 and 3. It was farther stated by the learned Additional District Judge that the evidence of these witnesses found support from the entries in the Jamabandis produced by the plaintiff. It is also undisputed that the family of the vendor originally belonged to village Budha Goraya in district Gujranwala, now a part of Pakistan. They had lands in that village as well as in another one named Mahia in the same district. Exhibit P. 1 is the Jamabandi of village Mahia relating to the year 1946-47. There in the ownership column, it was mentioned that Teja Singh and Kharak Singh were the sons of Ganda Singh. Exhibit P. 2 is the Jamabandi of village Budha Goraya. Therein also were mentioned the names of Teja Singh and Kharak Singh as the sons of Ganda Singh. Then there is Exhibit P/3, the Jamabandi of 1960-61 relating to village Seel in district Pitiala where, it appears, that after partition this family was allotted lands. It is mentioned in this document that Swarau Singh was the son of Kharka who was the son of Ganda. Thus, it will be seen that these three Jamabandis merely proved that Ganda Singh had two sons Kharak Singh and Teja Singh and the former has a sen Swaran Singh. This fact does not advance the case of the plaintiff in any way, because it was no where mentioned that he was the son of Teja Singh, which is the point in dispute in the present proceedings. The Courts below were, therefore, not right in helding that the entries in the Jamabandis supported the oral evidence produced by the parties to the fact that Man Singh, plaintiff, was the son of Teja Singh. We are, therefore, left only with the oral evidence of the three witnesses and the question is whether this evidence proves the relationship alleged by the plaintiff. That would depend on as to whether their evidence was admissible u/s 50 of the Indian Evidence Act. If it was, than since these witnesses had been believed by the, lower appellate court, its finding based on their evidence would be binding in second appeal. If on the other land, this evidence was inadmissible, then the said finding would be vitiated.

Relevant part of section 50 of the Indian Evidence Act says:

When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact :

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According to this section, if the Court has to form an opinion as to the relationship of one person to another, then the opinion as to the existence of such relationship of a person who has special means of knowledge either because he was a member of the family or otherwise, would be a relevant fact, only if that opinion was expressed by conduct. If the question was, whether A was the son of B, then the evidence of a witness who merely deposes to the fact either that A was the son of B or that A called B as his father, would not be admissible u/s 50. Such an evidence was merely the opinion of the witness based on general reputation that A was the son of B. Section 50 makes the opinion of a witness relevant only if the same was expressed by conduct. It is the witness''s opinion based on his own conduct - his outward or external behaviour towards the persons whose relationship was to be established- that would be relevant. The conduct must be of such a type that must show to the court that the witness himself was convinced about the said relationship. Two things are, therefore, necessary to make the evidence of a witness relevant u/s 50, the first is that the witness should have special means of knowledge about the relationship, either as a member of the family or otherwise. Secondly, that witness must depose to his own conduct towards the person whose relationship is in dispute and on the basis of which he had formed, the opinion about that relationship. I must emphasise that it, is not the conduct of those two persons inter se whose relationship was in dispute, but the conduct of the witness himself towards them, which is material, for the purposes of section 50. It should, however, be borne in mind that section 50 deals with only the relevancy of facts. The manner in which these relevant facts have to be proved is given in section 60 of the Evidence Act. We are however, not concerned with the, mode of proof of such relevant facts in the instant case.

While dealing with section 50, the Supreme Court in Dolgobinda Paricha v. Nimai Charan Misra AIR 959 S.C. 914, held thus:

Under Section 50, when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such, relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The essential requirements of the section are:

there must be a case where the court has to form an opinion as to the relationship of one person to another, (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relvant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retelling of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. The "belief" or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved.

The Supreme Court in the above-mentioned decision has also approved the following observations dealing with section 50, made by a Division Bench of the Calcutta High Court in Chandu Lal Agarwalla, Karta of joint family and of firm named Hanutram Lekram Agarwalla and Another Vs. Bibi Khatemonnessa and Others, -

It is only, ''opinion as expressed by conduct which is made relevant. This is how the conduct comes in. The offered item of evidence is ''the conduct'', but what is made admissible in evidence is ''the opinion'', the opinion as expressed by such conduct. The offered item of evidence thus only moves the Court to an intermediate decision: its immediate effect is only to move the Court to see if this conduct establishes an opinion'' of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the Court to infer ''the opinion'' ''the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the ''opinion''.

Bearing these principles in mind, let us see whether the evidence of the three witnesses mentioned above becomes admissible u/s 50 of the Evidence Act or not.

So far as the plaintiff''s own testimony on this point is concerned, it is enough to say that since his own relationship was in dispute, his saying that he was the son of Teja Singh is valueless. Besides, it cannot be said that he had special means of knowledge about his own relationship as mentioned in section 50, because it could not be said that he was a member of the family since the said membership is itself in dispute and he has not deposed to anything else from which it could be concluded that he had otherwise special means of knowledge about the relationship.

Coming to the evidence of P.W. 2, Inder Singh, it was said by him that he was the Lambardar of the Patti in which Swaran Singh and his ancestors lived in village Budha Goraya, district Gujranwala. From that fact, it could be inferred that he was a person who would have spec�ial means of knowledge about the relationship. The difficulty with his evidence, however, is that he had merely deposed to the pedigree table set up by the plaintiff, namely that Ganda Singh had two sons, Kharak Singh and Teja Singh. Kharak Singh''s son was Swaran Singh vendor and Man Singh plaintiff was the son of Teja Singh. He has not said anything beyond this. He had not deposed to his conduct towards Teja Singh and the plaintiff. His mere saying that the plaintiff was the son of Teja Singh was meaningless and suck an evidence was clearly inadmissible u/s 50.

We are then left with the evidence of P.W. 3, Kapoor Singh. With regard to his special means of knowledge regarding the relationship he had only stated that he was the resident of village Budha Gorya and was not related to the family of the vendor or the plaintiff in any way. It is extremely doubtful if by being merely one of the residents of the village, it could be said that he had some special means of knowledge about the family relationship of another resident of the same village, with whom he admits that he was not related. In any case, let us examine what evidence he had given. He like, Inder Singh P.W. 2, first narrated the pedigree table and then added that Teja Singh used to call Man Singh as his son (Putar) and the latter used to address the former as his lather (Bapu). Learned Counsel for the plaintiff submitted that the evidence of this witness would be admissible u/s 50, because he was deposing to his conduct of hearing Teja Singh calling the plaintiff as his son and the latter addressing the former as his father. So, according to the Learned Counsel, the opinion of the witness was expressed by his conduct. This submission of the Learned Counsel has no merit and is based on a misunderstanding of the provisions of section 50. The witness was merely deposing to the conduct of Teja Singh towards the plaintiff and vice versa i.e. as to how they used to treat each other. Section 50, however, requires the witness to depose to his own conduct towards the persons whose relationship was in dispute. It is on the basis of that conduct that the opinion of the witness would be relevant. In evidence, Kapoor Singh has not deposed to his conduct towards Teja Singh and Man Singh, from which it could be inferred that his opinion was based on that conduct The evidence given by this witness also was therefore, clearly inadmissible. That being so, the finding of the lower appellate court that the plaintiff was the first cousin of the vendor was based on inadmissible evidence and, consequently, liable to be set aside. Under these circumstances, the plaintiff would have no right of preemption.

In view of what I have said above, this appeal is accepted, the judgments and the decrees of the courts below are set aside and the plaintiffs suit is dismissed. In the circumstances of this case, however, the parties are left to bear their own costs throughout.