Gokhul Pande and Another vs Baldeo Sukul and Another

Wort, J.—This appeal raises a question of the admissibility of certain evidence at the appellate stage of the proceedings The plaintiffs in suit No. 2 of 1923 sought a declaration that they were entitled to a certain land as sole reversioners after the death of one Mt. Pati as the heir of Harihar Sukul and also sought possession of the land with mesne profits and other reliefs. The defendants'' case was that the plaintiffs were not the reversioners, but they (the defendants) themselves were, and that the plaintiffs were, therefore, not entitled to the reliefs claimed before the learned Subordinate Judge.

Now the suit in the Court of the learned Subordinate Judge of Chapra was decreed, but on appeal the learned District Judge of Saran allowed the appeal and set aside the decree of the learned Subordinate Judge. Now this depended upon a question of pedigree. The case for the appellants in the trial, Court was that they were the descendants of one Harihar Sukul who died some fifty years ago, that Harihar Sukul had two daughters, one Mt. Batka and another Mt. Pati and that Mt. Batka was married to one Ramphal Pande. Now the defendants on the other hand put forward an entirely different pedigree and the question which emerges from the evidence of the plaintiffs and the defendants is whether Ramphal Pande whom I have just mentioned, was in fact the husband of Mt. Batka or whether he married some other person whose name I will presently mention.

Now, a part of the plaintiffs'' case was that on the marriage of Ramphal Phande to Mt. Batka he came and lived at the house of Harihar Sukul and that Mt. Pati who married one Harnarayan Misra also lived with her husband in that house after the death of Harihar Sukul, that on the death of Harihar Sukul, Mt. Batka and Mt. Pati became the sole heirs of their father''s estate, but that Mt. Batka having predeceased Mt. Pati and that Mt. Pati being poor without property, the whole estate was left to her. Now on the other hand the defendants put forward a pedigree which was diametrically opposed to that of the plaintiff. That stated that Ramphal Pande was not the husband of Mt. Batka, but that he married one Mt. Jiacha and that Batka if not an imaginary person, in any event had no connexion or relation to the family and that Ramphal who had married Mt. Jiacha was the son of one Mt. Sheoraji who was the sister of Mt. Simrikhia who in return was the wife of Harihar Sukul.

Therefore, it appears as the learned District Judge points out that, if their contention was right, Rampahal was a cousin of Mt. Pati and not her brother-in-law and upon that issue the case depended.

Now, as I have stated, the Court of the learned Subordinate Judge decided in favour of the pedigree which was put forward by the plaintiff''s, but on appeal to the learned District Judge he decided that Ramphal in fact was a cousin of Mt. Pati and he decided that question upon certain evidence which he admitted at that stage and which it appears was rejected before the learned Subordinate Judge. The deposition which the learned District Judge admitted, was made by Mt. Pati in suit No. 517 of 1915 in which the defendants in the present case had sued Mt. Pati for a declaration that they were the reversionary heirs of Harihar and that a certain deed of gift made by Mt. Pati was invalid and not binding upon them, and in that action they succeeded. In that action Mt. Pati stated that Ramphal was her cousin.

Now the first point taken by the learned Counsel for the appellants is that under no circumstances was the evidence admissible under Order 41, Rule 27 of the rules made under the Civil P.C. He urged (and I think rightly) that it did not come under Sub-clause (b), Sub-section (1), Rule 27, as there clearly was no lacuna in the evidence before the learned Subordinate Judge. In that contention, as I have said, I think he was right. But he also urged that it did not come under Sub-clause (a) Sub-section (1) of the rule, that is to say the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. He urges that in this case it is not disclosed, nor is it a fact, that the evidence was rejected properly or improperly before the learned Subordinate Judge. But I think, without going into details, it is quite clear from the record of the learned Subordinate Judge, that the evidence for some reason was rejected and it has been stated by the learned vakil for the respondents in this case that one of the grounds in this appeal before the learned District Judge was that |evidence had been wrongly rejected. Now If that be the true facts of the case, I think quite clearly the evidence was admissible under Order 41, Rule 27, Sub-clause (a).

But the matter did not end there because the learned Counsel urged that in any event the evidence was not admissible and, therefore, on that ground alone the learned District Judge had no right to admit the evidence. Now that question depends upon the Evidence Act. The learned Counsel urged that it neither came u/s 32 nor u/s 33, Indian Evidence Act. He stated that it could not come u/s 33, because one of the conditions of admitting statements made in previous trials under that section was that the party against which the statement was made or used had the opportunity to cross-examine the deponent, and in that I think he is right. In my opinion, it does not come u/s 33 of the Act, but he also contends that it does not come u/s 32, Sub-section (5). Subsection (5) provides that:

When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.

Now the first point raised is that in this proceeding of 1915 in which Mt. Pati was a defendant the same issue substantially that is being raised in this case which is now before this Court was issue in that case and it cannot be said that the statement was made before the question in dispute was raised. Now, in my opinion, that contention cannot be supported. It has been said (and if I may respectfully say so, rightly said) that Section 32, Indian Evidence Act is much wider than the Common Law Rule in England. The Common Law Rule in England is to the effect substantially of the wording of Sub-section (5) regarding declarations in matters of relationship, but one of the conditions necessary to allow the use of a declaration to that effect is that, the declaration must have been made in a case in which the issue was the same as in the case in which it is, sought to be used. Now it is pointed out by the Calcutta High Court by Petheram, C.J., in the case of Dhanmull v. Ram Chander Ghose [1897] 24 Cal. 265 that (as I have stated) the English rule is much narrower than Indian rule and his judgment in that case was to this effect on this point:

I think that on this point the law in India under the Evidence Act is different from the law of England, and that the effect of the section is to make a statement, made by such a person, relating to the existence of such relationship, admissible to prove the facts contained in the statement on any issue.

Now I need say no more than to state that if the Indian rule is wider and of greater application than the English rule, the greater must include the less, and consequently the contention that is made by the learned Counsel for the appellants cannot prevail. Now, in my opinion, therefore, it is quite clear that the evidence in this case which was received by the learned District Judge and upon which it appears he decided against the plaintiffs in the case, was clearly admissible, and that being the only question of law which is before us, in my view the appeal must be dismissed with costs, and as this decision governs Suit No. 1 of 1923, the appeal arising from that suit must also be dismissed.

Ross, J.

I agree.