Niranjan Singh (Dead) through LRs. vs Bant Singh and Others

Viney Mittal, J.—During the course of arguments, following substantial questions of law are, shown to be involved in the present appeal:

(a) Whether the evidence led by the defendants conforms to the requirements of Section 50 of the Indian Evidence Act, 1872 and as such can be taken to have proved the relationship of Smt. Nandi mother of defendants No. 1 and 2 with Bakhtawar Singh deceased?

(b) As to whether the learned Courts below have returned their findings on the basis of such evidence which is not admissible in view of Section 50 of the Indian Evidence Act, 1872 and are also based upon the mis-reading of the evidence led by the parties?

(c) Whether the Courts below having not dealt with the matter in controversy in correct perspective, the judgments are liable to be set aside being judicially perverse?

The plaintiff is in appeal. He filed a suit for declaration claiming that he is the ex clusive owner in possession of the land in dispute and that defendants No. 1 and 2 have no interest, title or claim in the suit land.

The plaintiff pleaded that originally land in dispute was owned by one Chartu. Chartu had two sons, namely Bakhtawar Singh and Munshi, Chartu died in the year 1935. His property was inherited by the aforesaid two sons, namely, Bakhtawar Singh and Munshi. Bakhtawar Singh died on October 25, 1972. The plaintiff claimed that the land in dispute was ancestral and coparcenary property. At the time of his death, Bakhtawar Singh was unmarried. Plaintiff Niranjan Singh is the son of Munshi. The plaintiff has claimed that being son of the brother of Bakhtawar Singh, he had succeeded to the estate of Bakhtawar Singh exclusively, since there was no other heir. It was further claimed that defendants No. 1 and 2 had no title, interest or concern with the land in dispute or with the aforesaid Bakhtawar Singh and as such the mutation got sanctioned by them in their favour alongwith the plaintiff was illegal, bad and liable to be ignored. The plaintiff claimed that he was the exclusive owner in possession of the suit land through the tenants and mortgagees. On the aforesaid averments, the suit was filed.

Defendants No. 1 and 2 contested the suit. They denied the existence of any Joint Hindu Family as claimed by the plaintiff. It was also denied that the property was coparcenary property. They claimed that besides Bakhtawar Singh and Munshi, Chartu had also a daughter Nandi. Defendant No. 1 is the son and defendant No. 2 is the daughter of the aforesaid Nandi. It was claimed by the defendants that they being also the heirs are entitled to inherit the land left by deceased Bakhtawar Singh and the mutation in their favour had already been sanctioned.

The learned trial Court,on the basis of the evidence led by the parties, held that the property in dispute was the Joint Hindu Family coparcenary property of the plaintiff and the deceased Bakhtawar Singh and his ancestors. It was further held that Chartu also had a daughter, namely, Nandi, who was the real sister of Bakhtawar Singh and Munishi. Thus, defendants No. 1 and 2, being the children of the aforesaid Smt. Nandi, alongwith the plaintiff were entitled to succeed to the estate of Bakhtawar Singh. However, on the basis of the findings that the property in dispute was the coparcenary property, the plaintiff was held entitled to the suit land being the sole surviving coparcener. Accordingly, the suit filed by the plaintiff was decreed.

The defendants took up the matter in appeal. The learned first appellate court re appraised the entire evidence. On such re-appraisal, the learned first appellate Court came to the conclusion that the property in dispute was not shown to be coparcenary property. It was also held that Nand Kaur (Nandi) was the daughter of Chartu and was the sister of Bakhtawar Singh. Defendants No. 1 and 2 being the children of the afore said Smt. Nand Kaur were entitled to succeed to the estate of Bakhtawar Singh along with the plaintiff. Accordingly, the judgment of the learned trial court was reversed and the appeal filed by the defendants was allowed. Accordingly, the suit filed by the plain tiff was dismissed.

It may be pertinent to notice here that the plaintiff had also filed cross-objections against the findings with regard to the relationship of Nandi with Bakhtawar Singh. The learned first appellate court dismissed the aforesaid cross-objections also.

The plaintiff now, feeling aggrieved against the aforesaid judgments of the learned Courts below, has approached this Court by way of the present regular second appeal.

I have heard Shri Arun Jain, the learned counsel for the plaintiff-appellant and Shri R.D. Bawa, the learned counsel for defendant-respondents No. 1 and 2 and with their assistance have also gone through the record of the case.

Shri Arun Jain, the learned counsel for the appellant has vehemently argued that the finding recorded by both the Courts below with regard to Smt. Nand Kaur being the daughter of Chartu and as such being the sister of Bakhtawar Singh was absolutely based upon inadmissible evidence. According to the learned counsel, the evidence led by the defendants to prove the aforesaid relationship did not conform to the provisions of Section 50 of the Indian Evidence Act and as such could not have been taken into consideration. The learned counsel has further contended that the finding recorded by the learned first appellate Court that the property was not shown to be ancestral coparcenary properly in the hands of Bakhtawar Singh was also wholly contrary to the evidence on the record.

Elaborating his arguments further, Shri Jain has argued that defendants No. 1 and 2 have merely remained satisfied by producing DW1 Jhagar Singh and W2 Hazura Singh, besides appearing themselves as DW3 and DW4 respectively. According to the learned counsel, the aforesaid two witnesses DW1 and DW2 belong to a different village Harpalpur whereas Chartu, Bakhtawar Singh and Munshi all were residents of village Bhankar. Further the aforesaid two witnesses have not made any statement showing that they had any special means of knowledge or that they had ever treated Nandi (the mother of defendants No. 1 and 2) to be the sister of Bakhtawar Singh and Munshi. According to the learned counsel, unless and until, the statement of the aforesaid witnesses was in conformity with the provisions of Section 50 of the Indian Evidence Act, the same could not be taken into consideration for proving such relationship being irrelevant and inadmissible evidence. In support of the aforesaid proposition, the learned counsel has placed reliance upon a judgment of the Hon''ble Supreme Court of India in Dolgobinda Paricha Vs. Nimai Charan Misra and Others, , and a Single Bench judgment of this Court in (1968)70 P.L.R. 83, Ajaib Singh and Ors. v. Mann Singh and Ors.,.

Shri Jain has further argued that even otherwise it was clearly proved on record that the property in question was a Joint Hindu Family coparcenary property and plaintiff Niranjan Singh being son of the brother of Bakhtawar Singh had succeeded to the estate of Bakhtawar Singh exclusively, since there was no other heir.

On the other hand, Shri R.D.Bawa, the learned counsel for respondent No. 1 and 2 has argued that the relationship between the parties was duly proved because of the statement of the witnesses produced by the defendants. According to Shri Bawa, statement of W1 Jhagar Singh and DW2 Hazura Singh clearly proved the aforesaid relationship and was in conformity with the provisions of Section 50 of the Indian Evidence Act. According to the learned counsel, the property was not proved to be Joint Hindu family coparcenary property between the parties and as such, the plaintiff alone could not have claimed, exclusively, the entire property left behind by Bakhtawar Singh.

I have given my thoughtful consideration to the rival contentions made by the learned counsel for the parties.

In my considered opinion, the present appeal deserves to succeed.

At the outset, it may be relevant to notice the provisions of Section 50 of the Indian Evidence Act as follows:

"50. Opinion or relationship, when relevant.- 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, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is relevant fact:

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)."

It may also be relevant to notice the authoritative pronouncements of the Supreme Court and the judgments of this Court laying down the applicability and scope of Section 50.

In Dolgobinda Paricha''s case (supra), the Apex Court observed as under:

"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: (1) 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 relevant 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 persons must fulfil the condition laid down in the latter part of the section. If the persons fulfil that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere relating 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.

Section 50 does not make evidence of mere general reputation (without conduct) admissible as proof or relationship."

A Single Bench of this Court in Ajaib Singh''s case (supra) while determining the scope of section 50 of the Indian Evidence Act held as follows:

"Section 50 of the Evidence Act makes the opinion of a witness relevant only if the same was expressed by conduct. It is the witnesses 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 of the Act. 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. It is not the conduct of those two persons inter se whose relationship was in dispute, the conduct of the witness himself towards them, which is material for the purposes of Section 50 of the Act. "

The matter was also examined by a Division Bench of this Court in (1969)71 P.L.R. 225, Mehan and Ors. v. Kishi and Ors., and it was held as follows;

"When the Court has to form an opinion as to the relationship of one person to another, what is relevant u/s 50 of Evidence Act is the opinion as to the existence of such relationship, which must be the opinion of a person who as a member of the family or otherwise has special means of knowledge on the subject and which opinion must be expressed by conduct, of the witness towards those persons whose relationship was in dispute. "

In the backdrop of the aforesaid position of law, let us examine the statements of two witnesses DW1 Jhagar Singh Singh and DW2 Hazura Singh,

DW1 Jhagar Singh in his examination-in-chief has stated as under:

"Jhagar Singh s/o Chhajja Singh s/o Musadi, aged 80 years, agriculture, r/o Harpal Pur. I know defendant Bachan Kaur, from her childhood because she is the daughter of Baksha Singh of my village. Bachan Kaur has a brother Bant Singh. Her father Baksha Singh has another brother Sant Singh and I am their third brother. I treat Bachan Kaur defendant as my niece. She treats me as her Chacha. I have seen my brother Bakshi who treated Bachan Kaur as his daughter and Bachan Kaur treated Bakshi as her father the name of the mother of Bachan Kaur was Nandi. Nandi had two brothers Munsha Singh and Bakhtaur Singh. Nandi''s parents belong to village Bhankhar. I have seen Bakhtawar Singh and Munsha Singh. They used to come to my village. Bachan Kaur used to treat Munsha Singh and Bakhtawar Singh as her Mamas. And they used to treat Bachan Kaur as Bhanji. They, treated Nandi as their sister and Nandi treated them as her brother. Bakhtawar Singh is now dead, for the last about 7/8 years. Munshi predeceased Bakhtawar Singh."

DW2 Hazura Singh in his examination-in-chief has stated as under:

"Hazura Singh son of Joginder Singh son of Sawan Singh, aged 74/75 years, agriculture, r/o Harpal Pur, Distt. Patiala.

" I know defendant Bachan Kaur because she visits village Harpal Pur off and on, She is married in village Khansa. The name of the mother of Bachan Kaur is Nando. Nando belongs to village Bhankher. Nando had two brothers namely Bakhtawar Singh and Munshi. I have seen both of them. I saw them when I accompanied the marriage party of Bakshi Singh to village Bhankher to marry Nandi. After that Munshi and Bakhtawar Singh had also been coming to village Harpal Pur. They used to call Nandi as their sister and the latter called them as her brothers. Bachan Kaur used to call them her Mamas and they used to call them their Bhanji. Bakhtaur Singh had come to attend the marriage of Bachan Kaur, at village Harpal Pur. I had also attended that marriage. Bakhtawar Singh was unmarried. Munshi Singh was married and I know that he had a son Niranjan Singh. I do not know whether he had any other issue."

Besides the aforesaid witnesses, the only other witnesses produced by the defendants are the defendants themselves. DW3 is Bachan Kaur defendant and DW4 is Bant Singh, defendant. Thus, the question with regard to the fact as to whether the defendants have been able to prove that their mother Nand Kaur alias Nandi was the daughter of Chartu and as such was the sister of Bakhtawar Singh and Munshi has to be answered only on the basis of the statements of these two witnesses DW1 Jhagar Singh and DW2 Hazura Singh. While examining the statement of these two witnesses, it has also to be kept in mind as to whether the statements of these two witnesses are in conformity with the requirements of Section 50 of the Indian Evidence Act, as explained and enunciated in the aforesaid judgments, by the Hon''ble Supreme Court of India as well as by this Court.

DW1 Jhagar Singh is not the resident of village Bhankar. He is a resident of Harpalpur. His statement, reproduced above, clearly shows that he has stated that he had known Bachan Kaur from her childhood because she is the daughter of Bakhtawar Singh of his village. He is the brother of Bakhtawar Singh. He has merely stated that Bachan Kaur treated him as her Chacha and he treated Bachan Kaur as his niece. He has also proved the relationship of Bachan Kaur and Bant Singh with his father Bakshi. This relationship has been proved by making a statement of his own conduct with regard to the said relationship. However, while tracing out the relationship of Nandi mother of Bachan Kaur with Munshi and Bakhtawar Singh, the witness has merely stated that Bakhtawar Singh and Munshi used to come to the village and Bachan Kaur used to treat them as mama whereas they used to call Bachan Kaur as Bhanji. The witness has not uttered a single word with regard to Nand Kaur being the daughter of Chartu or being the sister of Bakhtawar Singh and Munsha Singh. He has, further, not uttered a single word regarding his conduct towards the defendants or towards Bakhtawar Singh and Munsha Singh being the brothers of Nand Kaur. It is apparent that the statement of this witness is not in conformity with the provisions of Section 50 of the Indian Evidence Act. This witness has utterly failed to depose about his conduct with regard to the relationship in dispute i.e. the relationship between Nand Kaur and Bakhtawar Singh and Munshi.

Similar is the statement of DW2 Hazura Singh already reproduced above. The aforesaid witness is also from village Harpalpur and not from the village Bhankar. He has also deposed about the fact that Bakhtawar Singh and Munshi used to come to the village and used to call Nandi as their sister and Bachan Kaur used to call them as her Mama and they used to call her as her Bhanji. This witness has also not uttered a single word with regard to his conduct towards the aforesaid persons, namely, Munsha Singh and Bakhtawar Singh being the brothers of Nandi.

As per the law laid down by the Hon''ble Apex Court as well as this Court in the aforesaid cases, the evidence of these witnesses cannot be said to be in conformity with the provisions of Section 50 of the Indian Evidence Act.

In this view of the matter the aforesaid evidence is no use to the defendants to prove the relationship in dispute. Besides the statement of these two witnesses, the defendants have remained satisfied with the self serving statement while they have appeared as DW3 and DW4. The aforesaid statements are of no use to the defendants to resolve the controversy. The defendants have not been able to explain the non-production of any witness from village Bhankar. Only the residents of the aforesaid village or any other person having some special means of knowledge or relationship could have deposed about the relationship of the mother of the defendants with Chartu and consequently, with Bakhtawar Singh and Munshi. No such evidence is forthcoming on behalf of the defendants.

It is not in dispute that since the defendants were claiming that they alongwith the plaintiff were also entitled to succeed to the estate of Bakhtawar Singh being the children of the real sister of Bakhtawar Singh, therefore, onus to prove the aforesaid fact was upon them. Having failed to discharge the aforesaid onus, the claim of the defendants to succeed to the estate of Bakhtawar Singh must fail.

Accordingly, the findings of the learned Courts below on the question of relationship of defendants No. 1 and 2 with Bakhtawar Singh are reversed and it is held that defendants No. 1 and 2 have failed to show that their mother Nandi was the sister of Bakhtawar Singh.

This brings me to the question as to whether the property in dispute was Joint Hindu Family coparcenary property or not, as claimed by the plaintiff. The learned trial Court, on the basis of the statements of PW1 Niranjan Singh, the plaintiff himself and on the basis of pedigree tables Ex.Pl and P2, copy of jamabandi for the year 1961-62 Ex.P3, copy of jamabandi for the year 1961-62 pertaining to Telu Ex.P4, copy of jamabandi for the year 1983-84 B.K. Ex.P6, copy of jamabandi for the year 1989-90 B.K. Ex.PS, copy of jamabandi for the year 2000-01 B.K. P10, copies of Khatoni Ex.Pl l(a) to Ex.Pl l(e), copy of Naksha Haqdarwar Ex.P12, copy of the proceedings of consolidation Ex.P13, copy of Khatoni of consolidation Ex.P14 and a large number of the revenue documents came to the conclusion that the land in suit originally belonged to Chartu and after his death revolved upon Bakhtawar Singh and Munshi and after the death of Munshi, the plaintiff and his uncle Bakhtawar became the owners of the suit land by survivorship. After the death of Bakhtawar Singh, the plaintiff remained the sole surviving coparcener. It was further held that the family had always remained joint in and as such, the property was treated to be coparcenary property.

On the other hand, the leaned first appellate Court reversed the aforesaid findings merely by holding that Nand Kaur was the real sister of Bakhtawar Singh and, therefore, on the death of Chartu, she also became entitled to succeed to the property of Chartu. On that basis, it was held that the plaintiff could not be treated to be the sole surviving coparcener.

Since I have taken the view that Nand Kaur was not proved to be the sister of Bakhtawar Singh, therefore, the reasoning given by the learned first appellate court is also liable to be reversed. In any case, since defendants No. 1 and 2 are not shown to be related to Bakhtawar Singh in any manner, therefore, the said findings in any case lose its significance because it is the plaintiff alone who is entitled to the estate left behind by Bakhtawar Singh.

In view of the aforesaid detailed discussion, I have no hesitation in answering questions (a) and (b) in the affirmative and in holding that the learned Courts below have based their findings with regard to relationship between Nandi and Bakhtawar Singh. On the basis of such evidence which was not in conformity with the provisions of Section 50 of the Indian Evidence Act and as such was neither relevant nor admissible. Accordingly, the findings recorded by the learned Courts below on the question of relationship are reversed. With regard to question (c) also, I have no hesitation in holding that the learned Courts below have dealt with the case in complete isolation of the provisions of Section 50 of the Indian Evidence Act and as such having npt dealt with the case in correct perspective, the judgments of the learned Courts below are vitiated and being judicially perverse, are liable to be set aside.

Accordingly, the present appeal is allowed. The judgment and the decree of the learned first appellate Court is set aside and that of the learned trial Court is also modified to the extent that the plaintiff is the exclusive owner of the property in dispute left behind by Bakhtawar Singh deceased. Consequently, the suit filed by the plaintiff-appellant is decreed with no order as to costs.