Gobardhan Mandal vs Janaki Nath Mukherjee

P.N. Mookerjee, J.—These two appeals are against the judgment and decree of the learned subordinate judge of Bankura, whereby he modified the decision of the learned munsif. Vishnupur, in a suit for a declaration that the Plaintiff and the pro forma Defendants Nos. 30-41 were shebaits. and paricharaks of the deity Sri Sri Iswari Singhabahini Thakurani, installed in the village of Joyrambati, and for other ancillary reliefs by way of subsidiary declarations and perpetual injunctions, etc. The suit was decreed by the learned munsif but on appeal by the principal Defendants that decree was modified and both parties- the Plaintiff and the principal Defendants-being dissatisfied with the adjudication of their respective rights by the lower appellate court have appealed to this Court-the Defendant''s appeal (S.A. No. 1196 of 1946) being earlier in point of time.

The fight is between two rival groups of claimants to the deity''s shebaitship whom we shall for convenience, call the Mukherjees and the Mandals. The Plaintiff and the pro forma Defendants Nos. 30-41 belong to the Mukherjee group while the Mandals are the principal Defendants in the present suit. In the suit there was a prayer also for a decree for recovery of possession of certain immovable properties, described in the plaint schedule, in favour of the Mukherjees as shebaits of the deity Singhabahini and though that claim was contested by the defence there was no dispute that the suit properties were dehuttar properties of the above deity.

The dispute between the parties centres round the claim of shebaitship and the determination of this claim will virtually mean the decision of the suit. According to the Plaintiff''s case the deity Singhabahini is the ancestral family deity of the Mukherjees, that is, the Plaintiff himself and the pro forma Defendants Nos. 30-41, having been installed by some member of the Mukherjee family in the remote past, and the Mukherjees, as the descendants of the founder, were the shebaits. There is a genealogy given in the plaint starting from two brothers Narottam and Khelaram. In Narottam''s branch there is mention of one Trilochan who, according to the Plaintiff, was the shebait in his time and during whose shebaitship the plaint lands, which, the plaint alleges, are covered by taidad No. 58019 and on one item whereof the deity''s temple stands, were gifted to the deity by some ruling prince of Vishnupur. The Plaintiff avers that the Mukherjees have all along been the shebaits and paricharaks of the deity Singhabahini and have been, in that capacity, looking after the deity''s worship and properties. The ancestors of the Mandals or the principal Defendants were, according to the Plaintiff''s case, only devotees of the deity-and neither shebaits nor paricharaks who undertook and were allowed by the Mukherjees to look after the deity''s temple and atchala and to supply certain articles of daily worship, etc., and to cleanse the temple courtyard and the deity''s utensils, and for these services they were compensated by the Mukherjees by payment to them of manasiks of Re. 1 and above, offered to the deity by devotees and pilgrims. It was also specifically pleaded in the plaint that all other offerings to the deity including manasiks of lesser value were all along retained and appropriated by the Mukherjees. The Plaintiff alleged that the Mandals were never shebaits or paricharaks of the deity and that the entry in the record-of-rights to that effect was wrong and that the Mandals having obstructed the Plaintiff in the exercise of his shebaiti and parichariki right of the deity Singhabahini as a member of the Mukherjee family and in the enjoyment and possession of the deity''s properties as such shebait and paricharak on the plea that they, the Mandals,-and not the Mukherjees-were the shebaits and paricharaks of the said deity and that the Mukherjees were only its pujaris under appointment from the Mandals, the present action had to be brought for vindication of the Plaintiff''s rights or, for the matter of that, rights of the Mukherjee family.

The defence was in substance a denial of the Plaintiff''s claim and an assertion that the deity Singhabahini was the ancestral family deity of the Mandals who were its shebaits and paricharaks and that the Mukherjees were mere pujaris, receiving as remuneration the dakshinas and other articles, offered by the devotees, but no part of the manasiks which were all exclusively retained and appropriated by the Mandals. The Defendants'' specific case was that their ancestor Radhacharan Mandal founded the deity in the remote past and was its first paricharak or shebait and that the suit lands were gifted to Radhacharan by Chaitnya Singhadev, Raja of Vishnupur, and were made debutter of the deity Singhabahini by Radhacharan. In the written statement reference was made to an ancient sanad, containing, it was said, the above gift, and also to taidad Nos. 42086 which, according to the defence, comprised the suit lands, and the defence further alleged that the taidad mentioned the suit lands as debutter lands of the deity Singhabahini. The Defendants denied that the plaint taidad No. 58019 covered the disputed lands, they also denied the plaint genealogy and the Plaintiff''s connection with Trilochan Mukherjee, named in the plaint, and they relied upon the entry in the record of rights that the Mandals were the shebaits and affirmed its correctness. A defence alleging defect of parties was also raised in the written statement but it was not pressed at the trial before the learned munsif.

The learned munsif decreed the Plaintiff''s suit upon the findings inter alia-

(1) that the deity Singhabahini was the ancestral family deity of the Mukherjees;

(2) that the said deity was installed by some remote ancestor of the Plaintiff and the pro forma Defendants Nos. 30-41 and the Mukherjees were its shebaits and paricharaks;

(3) that Trilochan Mukherjee, named in the plaint and in the Plaintiff''s taidad No. 58019, which was Ex. 1 in the case, was one of the ancestors of the Plaintiff and the said pro forma Defendants Nos. 30-41, and, while he was acting as a shebait and paricharak of the deity Singhabahini, some ruling Prince of Vishnupur made a gift of the suit lands to the said deity through him and thus the said lands, which were comprised in the Plaintiff''s taidad (Ex. 1), were the debutter properties of the deity Singhabahini;

(4) that the Plaintiff and the pro forma Defendants Nos. 30-41 were the present shebaits and paricharaks of the deity Singhabahini and not merely its pujaris, as alleged by the defence, and that the principal Defendants, namely, the Mandals, were not shebaits or paricharaks of the said deity but only its devotees, the entry in the record of rights to the contrary effect being wrong and unfounded; and

(5) that the principal Defendants having obstructed the Plaintiff in the exercise of his shebaiti and parichariki right and in the enjoyment and possession of the suit properties as the deity''s shebait and paricharak, the Plaintiff was compelled to bring the suit and was entitled to the reliefs, prayed for in the plaint.

Against this decree of the learned munsif the Mandals appealed and the learned subordinate judge who heard the appeal allowed it in part holding inter alia-

(1) that the Mandals and the Mukherjees were joint shebaits of the deity Singhabahini;

(2) that the suit lands were covered by the Plaintiff''s taidad No. 58019 and not by the Mandal Defendants'' taidad No. 42086 and that the name of the deity Singhabahini appearing in this latter taidad was an interpolation; and

(3) that the suit lands were gifted to the deity by some ruling Prince of Vishnupur but through Trilochan Mukherjee, named in the plaint, who was a shebait and paricharak of the deity as one of the Mukherjee family and was an ancestor of the Plaintiff and the pro forma Defendants Nos. 30-41.

On inter alia the above findings the learned subordinate judge modified the decree of the learned munsif by refusing the Plaintiff''s prayer for a declaration of the Mukherjees'' alleged exclusive right of shebaitship of the deity and of their alleged right of exclusive possession of the deity''s temple and the land appertaining thereto. In other respects the learned munsif''s decree was substantially maintained.

From this decision of the learned subordinate judge two separate second appeals have been preferred to this Court-one by the Plaintiff, namely, S.A. No. 1197 of 1946, and the other by the principal Defendants, namely, S.A. No. 1196 of 1946,- and they have been heard together by us. The Plaintiff in his appeal seeks for a restoration of the trial court''s decree while the Mandals, that is, the principal Defendants, in their separate appeal, pray for a dismissal of the entire suit.

In support of the Plaintiff''s appeal Mr. Gupta has urged that the learned munsif was right in his conclusion that some ancestor of the Mukherjees was the founder of the deity Singhabahini and that the Mukherjees were its shebaits and that, accordingly, the Mandals'' claim of shebaitship or even of joint shebaitship with the Mukherjees could not be sustained and Mr. Gupta has broadly submitted that the learned munsif''s decree ought to be restored. In opposing this appeal Dr. Pal, appearing for the Mandal Defendants, has challenged the propriety and correctness of the learned munsif''s findings, sought to be supported by Mr. Gupta, and has contended that the learned munsif''s decision was unsustainable and that, even if his client''s separate appeal be not allowed, they were at least entitled to the reliefs, given to them by the learned subordinate judge, and to the affirmance of that decision. The grounds, urged by Dr. Pal in support of his pleas in this appeal, would be found amply indicated in the succeeding paragraph where the Defendant''s separate appeal is dealt with by us.

In this latter appeal (S.A. No. 1196 of 1946) the points urged by Dr. Pal, were these-

(1) that the learned subordinate judge was wrong in raising a presumption from the record-of-rights in favour of Trilochan or the Mukherjees on the question of his or their shebaitship of the deity Singhabahini or of his or their family being the founder of the said deity or of their possession of the suit lands;

(2) that the learned subordinate judge was wrong in relying upon the evidence of P.W. 6 (who was the Plaintiff himself) on the question of his (the Plaintiff''s) and the pro forma Defendant''s connection with Trilochan Mukherjee, mentioned in the taidad No. 58019; and

(3) that the learned subordinate judge was wrong in not giving full effect to the presumption of the entry in the record-of-rights, recording the Mandals as the sole shebaits of the deity, and in not dismissing the Plaintiff''s suit in its entirety.

DT. Pal also sought to argue that the Plaintiff''s suit in the absence of the deity as a party on record should have been dismissed on the ground of defect of parties but it having been pointed out that this plea was not raised in the written statement or at any time before either of the two courts below and that the general plea of defect of parties, though raised in the written statement, was not pressed at the trial, he ultimately gave up the same. We are not, therefore, called upon to examine the decision of this Court, in Sm. Palanibala Devi v. Kalipada Chahravarti 54 C.W.N. 960 and to consider its scope and applicability.

In the view which we are taking it is not also necessary for us to pronounce upon any of the other contentions urged in the two appeals, except the first two points, viz., points Nos. 1 and 2, raised by Dr. Pal, as noted above, in support of his clients'' separate appeal and so to a consideration of these two points we at once proceed.

On the first of the above two points it is enough to say that from the record of rights the learned subordinate judge raised no presumption in favour of the plaintiff''s claim of installation of the deity by the Mukherjee family or of Trilochan or the Mukherjees being its shebait or shebaits or of his or their possession of the suit lands. In the record of rights there was an entry in the remark column that the suit lands were covered by the Plaintiff''s taidad No. 58019 and the learned subordinate judge only observed that that entry raised a presumption that the said lands appertained to the said taidad, the rest of his conclusions on this part of the case being based not upon, any presumption raised from the record-of-rights, but on other materials. The presumption raised was thus quite legitimate and was not vitiated by any impropriety or illegality. This was eventually conceded by Dr. Pal and, in such circumstances, his first point, that is, point No. 1, as set out above, must fail.

On the second point the position stands thus:

In finding the Plaintiff''s and the pro forma Defendants'' connection with Trilochan Mukherjee, named in the plaint and in the Plaintiff''s taidad (Ex. 1), the learned munsif relied on the evidence of P.W. 5 and P.W. 6; P.W. 6 was the Plaintiff himself and P.W. 5 was a stranger to the Mukherjee family. The learned subordinate judge rightly rejected P.W. 5''s evidence as inadmissible on the ground that it was hearsay evidence and was not protected by Section 32(5) of the Indian Evidence Act or any other provision of law. The Plaintiff''s, that is, P.W. 6''s, evidence on this question was, however, accepted by the learned subordinate judge as, in his view, it came within the benefit of the said Section 32(5) of the Indian Evidence Act and was thus admissible in law. The correctness and propriety of this view is assailed by Dr. Pal who, however, agrees that, if the said evidence be admissible, the finding of the learned subordinate judge that Trilochan Mukherjee, named in the taidad (Ex. 1), was an ancestor of the Plaintiff and the pro forma Defendants, as alleged in the plaint, and that the plaint genealogy was correct, could not be successfully challenged in second appeal. We, accordingly, proceed to examine only the question of admissibility of the evidence of P.W. 6 on the Plaintiff''s claim that Trilochan Mukherjee, above referred to, (sic) ancestor of the Plaintiff and the pro forma Defendants and that the plaint genealogy is correct.

To the argument of Dr. Pal that P.W. 6''s evidence was inadmissible, Mr. Gupta gave a two-fold answer. His broader submission was that that evidence was not hearsay and did not, therefore, require protection u/s 32 of the Indian Evidence Act. His other submission was that, in any event, Section 32(5) of the Indian Evidence Act would make that evidence admissible in the circumstances of the present case.

We are unable to accept the extreme contention of Mr. Gupta that P.W. 6''s evidence on the question of the Plaintiff''s and the pro forma Defendants'' relationship with Trilochan Mukherjee of the taidad (Ex. 1), as detailed in the plaint genealogy, is not hearsay. It is true that on this question the Plaintiff has pledged his oath as P.W. 6 and has submitted to cross-examination but, on the evidence as it stands, there is little doubt that the Plaintiff''s (P.W. 6''s) evidence in this respect is based on what he heard from his father, since deceased. Plainly, therefore, it is hearsay evidence and unless it falls within Section 32 of the Indian Evidence Act it has to be rejected. In law, hearsay evidence is inadmissible except under certain special circumstances. In the law of this country these exceptions contained in Section 32 of the Indian Evidence Act,-Section 50 containing, as it does, only the rule of what is commonly known as "reputation evidence" is not relevant here,-and no other exceptions can be added [vide Rokkam Lakshmi Reddi v. Rokkam Vetnkata Reddi AIR [1937] P.C. 201]. The attempt, that was made in the case of Maharaja Srish Chandra Nandi v. Rakhalananda Thakur (1937) 41 C.W.N. 1103 to engraft a new exception to the so-called "hearsay rule" in the form of what may be termed, in the light of the observations there made, ''''hearsay evidence of tradition", succeeded in this Court but was eventually repelled by the Judicial Committee with certain significant observations striking at the root of any such contention Vide Maharaja Srish Chandra Nandy v. Rakhalananda Thakur (1940) L.R. 68 LA. 34 : 46 C.W.N. 435]. In the case cited, this Court observed at p. 1109 of the Report that,-

the principle of exclusion adopted by the Indian Evidence Act should not be applied so as to exclude matters which may be essential for ascertainment of truth The relaxation of the rule as to reception of hearsay evidence must be held to be permissible where such a course leads to the due investigation of truth and the attainment of justice.

But this view of the law was rejected by the Judicial Committee in emphatic terms when, referring presumably to the above observations of this Court and after quoting the first part thereof, their Lordships expressed themselves at p. 440 of the C.W.N. report as follows:

It seems to their Lordships essential in the interests of the administration of justice in India that this mode of regarding the law of evidence should emphatically be stated to be unsound. What matters should be given in evidence as essential for the ascertainment of truth it is the purpose in the law of evidence whether at common law or by statute to define. Once a statute is passed which purports to contain the whole law, it is imperative. It is not open to any judge to exercise a dispensing power, and admit evidence not admissible by the statute because to him it appears that the irregular evidence would throw light upon the issue. The rules of evidence, whether contained in a statute or not, are the result of long experience choosing no doubt to confine evidence to particular farms, and, therefore, eliminating others which it is conceivable might assist in arriving at truth. But that which has been eliminated has been considered to be of such doubtful value as on the whole to be more likely to disguise truth than discover it. It is, therefore, discarded for all purposes and in all circumstances. To allow a judge to introduce it at his own discretion would be to destroy the whole object of the general rule. There is, therefore, no such principle as is suggested in the passage now under discussion.

It is only fair to add here that Mr. Gupta did not argue that if the evidence of P.W. 6 on this part of the case was hearsay evidence, it would still be admissible even though it did not come within Section 32 of the Indian Evidence Act and he did not seek to justify its reception on the ground that, though it might be hearsay evidence, it would be outside the mischief of the "hearsay rule", being, what may be described in the light of this Court''s observations in Maharaja Srish Chandra''s case (supra), "hearsay evidence of tradition." What Mr. Gupta contended was that P. W. 6''s evidence was direct evidence, and not hearsay, and as such it was uneffected by the so-called "hearsay "rule". This contention has already been examined by us and rejected and we have, therefore, to consider the other submission of Mr. Gupta on this part of this case, namely, that in the circumstances of the present case, this evidence is admissible u/s 32(5) of the Indian Evidence Act. The taidad (Ext. 1) shows that one Trilochan Mukherjee of village J''oyrambati was the paricharak of the deity Singhabahini. The Plaintiff and the pro forma Defendant are Mukherjees of village Joyrambati and are admittedly connected with the deity Singhabahini,-as shebaits according to the Plaintiff and as pujaris according to the Defendants. The Mandals'' attempt to prove that there were other Mukherjee families at Joyrambati or that Trilochan Mukherjee of the taidad (Ext. 1) was not connected with the Mukherjees of the present suit has not been successful before either of the two courts below, their evidence on that point being concurrently found unreliable by them. In such circumstances, it is reasonable to infer that Trilochan Mukherjee of the taidad (Ext. 1) was connected with the family of the Plaintiff and of the pro forma Defendants as well and the concurrent finding of the two courts below to that effect on this question of fact cannot be allowed to be challenged in second appeal. And, once that conclusion is reached, namely, that the said Trilochan Mukherjee was some remote ancestor of the Plaintiff, the latter''s (P.W. 6''s) evidence, testifying to the plaint genealogy, based on what he heard from his father, since deceased, would be clearly admissible u/s 32(5) of the Indian Evidence Act, upon the reasonable hypothesis or inference that the Plaintiff''s (P.W. 6''s) father, as a Hindu Brahmin, had special means of knowledge of the names and relationship of the members of his family (including collaterals) up to at least the seventh degree, there being no dispute that tie alleged statement of the Plaintiff''s father would clearly satisfy the other test, namely, of being ante litem motam. This view of burs is in full accord with the decisions of the Judicial Committee in the cases of Bahadur Singh v. Mohar Singh (1901) L.R. 291.A. 1, Debi Pershad Chowdhry v. Rani Radha Chowdhrain (1904) L.R. 31 LA. 160, Musammat Shafiq-un-Nisa v. Khan Bahadur Raja. Shaban Ali Khan (1904) L.R. 311 A. 217 and Musammat Biro v. Atma Ram (1937) L.R. 64 LA. 92, and we have no hesitation in giving effect to the same. We, accordingly, accept Mr. Gupta''s second submission as indicated above, and overrule Dr. Pal''s contention on his point No. 2.

"We have held above, in agreement with the two courts below, that Trilochan Mukherjee, mentioned in the taidad, (Ext. 1), was connected with the Plaintiff and the pro forma Defendants and that the evidence of the Plaintiff (P.W. 6) on the question of the plaint genealogy is admissible in law. It is clear also that that evidence has been accepted by both the courts below. It follows, therefore, that the concurrent findings of the two courts below that the plaint genealogy has been proved, that Trilochan Mukherjee, named in the taidad (Ext. 1), is the same as the Trilochan Mukherjee, mentioned in the plaint genealogy, and that the Plaintiff''s and the pro forma Defendants'' connection with the said Trilochan Mukherjee has been satisfactorily established have to be accepted and we, accordingly, affirm the same. We also affirm the other concurrent findings of fact, made by the courts below, namely, that the suit lands are covered by the plaint taidad (Ext. 1) and not by the Defendants'' taidad (Ext. D), or by their sanadx (Exts. C and C-l), that the Mookerjees have all along been in possession of the said lands and that the account papers, produced in the suit by the Mandals, are unreliable.

There remains now only the third point, raised by Dr. Pal in the Defendants'' appeal (S.A. No. 1196 of 1946) and the arguments of Mr. Gupta in support of his own appeal (S.A. No. 1197 of 1946). But, as we have already said, in the view we are taking, and that view we shall presently indicate, it is not necessary for us to pronounce any opinion on any of them. The learned munsif found on the evidence before him, including the record-of-rights, that the Mukherjees, and not the Mandals, were the shebaits of the deity Singhabahini and that this deity had been founded by the Mukherjee family. He also recorded a specific finding that the presumption arising from the relevant entry in the record-of-rights, that the Mandals were the shebaits, had been rebutted. In considering the materials which the learned munsif had examined and/or relied upon for coming to his above conclusions, the learned subordinate judge appears to have recorded certain inconsistent or self-contradictory findings, e.g., his findings on the question, arising on the record-of-rights, -the learned judge holding at one place that the presumption, arising therefrom, has been rebutted and at another just the contrary,-and on the question of the true effect of the statements contained in the petition of complaint (Ext. 8), and his judgment does not appear to us to be a proper judgment in law,-so far at least as it is a judgment of reversal,-and even his ultimate conclusions are not all reconcilable with each other. In such circumstances, we feel that the proper course would be to remit this case to the lower appellate court for a re-hearing of the appeal before it in accordance with law except on the questions, covered by points Nos. 1 and 2, raised by Dr. Pal in support of his appeal, as indicated above, which questions have been finally answered and decided by us. This will enable the parties to have a proper judgment in accordance with law from the lower appellate court, to which, in all fairness, they are plainly entitled, and will also meet the ends of justice. In this view of the matter, we would not pronounce any opinion on the third point of Dr. Pal, stated above, or on the arguments or contentions of Mr. Gupta in his own appeal but would send back the case to the lower appellate court so that the appeal before it may be properly heard and decided in accordance with law, in the light of the observations and directions, contained in this judgment. That court will re-hear the whole appeal except that it will proceed on the footing that the plaint genealogy has been proved, that Trilochan Mukherjee of the taidad (Ext. 1) was the Trilochan Mukherjee, named in the plaint genealogy, that the Plaintiff''s and pro forma Defendants'' connection with the said Trilochan Mukherjee has been sufficiently established, that the suit lands are covered by the Plaintiff''s taidad (Ext. 1) and not by the Defendants'' taidad (Ext. D) or by the latter''s sanads (Exts. C and C-l), that the Mukherjees were all along in possession of the suit lands and that the Defendants'' account papers, produced in the case, were unreliable, as have been concurrently found by the two courts below and all of which findings have been affirmed by us in a preceding part of this judgment and which findings are again here expressly affirmed for the sake of clearness and to permit any possible misunderstanding. On the basis of the above findings, the appeal will now be decided by the lower appellate court in accordance with law.

In the result, therefore, both the above appeals succeed in part, the judgments and decrees of the lower appellate court are set aside subject to this that, as indicated above in the foregoing paragraph of this judgment, his findings on the several questions mentioned in the concluding part thereof are maintained, and the case is remanded to that court to be dealt with in accordance with law and in the light of the observations and directions, contained in this judgment.

The parties will bear their own costs in these appeals. Future costs will abide the final result.

Guha Ray, J.

I agree.