Sri Jadav Singh and Another vs Sri Borhan Singh and Others

P.S. Mishra, J.—The principal defendants are the appellants. The plaintiffs'' suit for declaration of title in respect of properties described in lot No. 1 and lot No. 2 of schedule 2 of the plaint and for recovery of possession of the lot No. 1 and confirmation of possession or in the alternative for recovery of possession of the lot No. 2 and masne profits past and future, has been decreed by the learned Subordinate Judge, Barh. The appellants have questioned the validity of the said decree.

Plaintiff''s case in sum is as follows : --

Krishnanandan Singh the common ancestor had two sons, Jhumak and Chhechhan. Jhumak had two sons, Mangal and Sheo Narain. Mangal died issueless. Sheo Narain had a son Jai Ram. Chhechhan had three sons Butai, Ritan and Khep. Butai had a son Jiwalal. Jiwalal had a son Gurucharan. Jiwalal died leaving behind his wife Paro and son Gurucharan. Gurucharan also died leaving behind no male or female heir but his mother Paro. There has been none in the branch of Pritam and hence, the two brothers of Butai, the plaintiff''s, being the nearest agnates were the next reversioners of Gurucharan. On 23.3.1956, Most. Paro executed a deed of surrender in favour of Jai Ram. A dispute, however, arose on account of claims advanced by the defendants who claimed that they were the next reversioners of Gurucharan and accordingly a proceeding u/s 144of the Code of Criminal Procedure was started on 2.6.56. On 27.6.56 Most. Paro executed a deed stating therein that she had made certain mistakes in describing the genealogy of her son and husband in in the deed of surrender dated 23.3.1956. She, however, died on 5.11.1956. The parties fought their litigations in the proceeding u/s 145of the Code of Criminal Procedure also. The defendants were declared in possession in the proceeding u/s 145of the aforesaid Code. They thereafter filed a suit for declaration of title and possession which has been decreed in their favour by the learned Subordinate Judge.

The defendants'' case in short is that the genealogy given by the plaintiff''s is not correct. The comnon ancestor Hanumant Singh had a son Sibu. Sibu had two sons Mahadeo and Butai. Butai''s son was Jublal and through his wife Paro, his son Gurucharan was born. Mahadeo had two sons Ganga and Kedar Nath. Ganga had three sons Dhanukdhari, Ramsahai and Tota. Principal defendants are sons and grand sons of Dhanukdhari. According to them, they are the only surviving nearest agnate of Gurucharan after his death and after the death of Paro and they are entitled to inherit the properties belonging to Gurucharan.

Although in the case arise several disputes aliase and the learned Subordinate Judge has dealt more in respect of the minor controversy than attending to the main conroversy between the parties. Mr. Shiva Nandan Roy, learned counsel for the appellants and Mr. Luxman Sharan Sinha, learned counsel for the respondents have addressed me on the main issue namely whether on the pleadings of the parties and the evidence on the record the plaintiff''s have been able to prove that they were the nearest agnates of Gurucharan on 23.3.56 when Paro executed the deed of surrender (Ext. 1) or not and whether as reversioners the plaintiff''s were/are entitled to inherit the properties after the demise of Paro as the Hindu Succession Act the came into force in April, 1956, while the deed of surrender was executed by Paro in March, 1956. They have also addressed me on the question whether the defendants have been able to prove that they were the nearest agnate of Gurucharan on the date of his death and on Paro''s death they were entitled to inherit the properties belonging to Gurucharan and Paro or not.

The plaintiffs have proved the deed of surrender dated 23.3.1956 (Ext. 1) and the deed of agreement dated 27.6.50 (Ext. 2) which refer to the geneology. They have also proved an affidavit filed by Paro on 18.8.56 in a proceeding u/s 144of the Code of Criminal Procedure (Ext. 25) and another affidavit filed by Paro on 26.6.1956 in a proceeding u/s 145of the Code of Criminal Procedure (Ext. 25(a). They have also proved the geneology prepared by one Munu Singh (Ext. 16). Besides these documents, they have also led oral evidence and examined P.Ws. 5, 6, 8, 9, 10, 11, 12 and 26 on the question of relationship of the plaintiffs with Gurucharan and Paro. The defendants on the other hand have proved a claim filed by the plaintiff''s (Ext. ''O'') and deposition of Gurucharan Ext. ''X'' in the suit instituted on the basis of Ext. ''C''. Besides these two documents, they have also examined D.Ws. 1, 7, 8, 9, 10 and 11 to prove the relationship of the principal defendants with Gurucharan and Paro. For a proper adjudication on the question of relationship and the correctness of the genealogy of the parties, learned counsel appearing on behalf of the parties, have agreed, the evidence just noticed by me alone has to be considered. Mr. Shiva Nandan Roy. learned counsel for the appellants has contended that Exts. 2, 25 and 25(a) are inadmissible. He has placed reliance upon the provisions under sections 32(5) and (6) and submitted that statements in Exts. 2, 25 and 25(a) by Most. Paro on the instance of relationship or relating to family affairs will be admissible, since she is dead, only when such statement was made before the question in dispute was raised. He has submitted that Ext. 2 may stand the test of a deed relating to family affairs and thus may fall u/s 32(2) of the Evidence Act but the statements made therein shall not be admissible unless the deed is shown to be one executed before the question in dispute was raised. Exts. 25 and 25(a), no doubt, are statements by Most. Paro who is dead and thus may fall u/s 32(S) of the Evidence Act but for the same reason that the statements made therein were not made before the question in dispute was raised, are inadmissible. In Kalidini Venkata Subbaraja and others versus Chintalapati Subbaraju and others (AIR 1968 S.C. 947) it has been pointed out that both sub-sections (5) and (6) of section 32declare that in order to be admissible, the statement relied on, must be made ante litem mortem by persons who are dead that is to say before the commencement of any controversy actual ox legal upon the same point. The word ''before the question in issue was raised'' does not necessarily mean before it Was raised in particular litigation it which such statement is sought to be adduced in evidence. A passage from Halsbury''s Laws of England, 3rd Edition, Vol. 15 p. 308 has been quoted with approval which runs as follows :--

To obviate bias the declarations are required to have been made ante litem mortam which means not merely before the commencement of legal proceedings but before even the existence of any actual controversy concerning the subject matter of the declarations.

In Dwarka Nath vs. Lalchand and others (AIR 1965 S.C. 261) also it has been pointed out that clause (5) of section 32requires the statements sought to be proved to have been made before the question in dispute was raised. The statements after the question in dispute in the suit had already arisen are not relevant. Mr. Roy has drawn my attention to Ext. ''A'', a petition filed on behalf of the principal defendants, for initiating the proceeding u/s 144 of the Code of Criminal Procedure. This shows that the principal defendant had asserted before 2.6.1956 that he was the nearest agnate of Gurucharan and that Jai Ram was not nearest agnate. The dispute as to the relationship and genealogy asserted by the plaintiffs has already arisen before 27.6.1956 when Ext. 2 was executed by most. Paro. The affidavit Ext. 25 dated 18.8.1956 and the affidavit Ext. 25(a) dated 26.6.1956 were filed on behalf of Most. Paro in the proceeding under sections 144and 145respectively which contain statements on the relationship of the parties after the controversy had already arisen. Exts. 2, 25 and 25(a) are thus hit by the doctrine of ante litem mortam and are not admissible u/s 32(5)or (6) of the Evidence Act. Ext. 16 purports to be a genealogy prepared by one Nunu Singh. It is not known who Nunu Singh is and whether he is alive or dead. Nothing has been shown how a genealogy prepared by Nunu Singh is admissible and in what form it is proved as evidence in the court. Ext. 16 also is evidently inadmissible. The residue thus left in hand is Ext. 1, the deed of surrender executed by Most. Paro in favour of Jai Ram. This document executed on 23.3.1956 is ante litem partem and is admissible. Ext. 1 recites a genealogy and what it states, is consistent with the case pleaded by the plaintiffs and the evidence and other parol adduced by them. So far the lineage of Chachan son of Butai is concerned, the statements made in Ext. 1 are also consistent with the case of plaintiffs in regard to the descendants of Jhuman coming down to the plaintiffs. Ext. 2, however, which has to be accepted as evidence on the controversy between the parties, states that Most. Paro had wrongly stated in Ext. 1 certain names in the genealogy described therein. Mr. Laxman Sharan Sinha, learned counsel appearing for the plaintiffs-respondents has submitted that once Ext. 2 is excluded as inadmissible, no part of it should be taken in evidence. Mr. Roy on the other hand has submitted that statements on the relationship and family affairs, as stated in Ext. 2. may not be admissible on the fact that Paro admitted on 27.6.1958 that she had committed a mistake in describing the genealogy on 23.3.1956 in Ext. 1. It will not be admissible u/s 8of the Evidence Act as well. Assuming that the statement in Ext. 2 in this regard is taken into consideration I find, however, that on facts it causes no adverse effect on the relationship of Jivalal, Paro, Gurucharan and Jai Ram Ext. 2 has varied only some names in the two other branches of Chhechhan with which this case is not concerned. The plaintiff''s oral evidence in the shape of the statement made in court by P.Ws. 5, 6, 8, 9, 10, 11, 12 and 26 is consistent with the case pleaded by them. They appear to be competent witnesses. Since they have disclosed the special means of knowledge and stated categorically that Jhuman and Chhechhan were brothers, Jhuman had two sons Mangal and Sheo Narayan, Mangal died issueless without legal representatives other than Jai Ram son of Sheo Narayan his full brother and that the plaintiffs are sons and grand sons of Jai Ram, the defendants'' evidence on this score is rather vague. Ext. ''X'', no doudt, is the deposition of Gurucharan in Title Suit No. 78 of 1935-36 in which he has said :--

The plaintiff is my Gotiya and Patidar". Ext. 2 shows that the principal defendants of the instant suit plaintiffs in Title Suit No. 78 of 1935. D.Ws. 1, 7, 8, 9, 10 and 11 do state that principal defendants are agnates of Gurucharan and support the genealogy pleaded by the defendants. D.W. 7 one of the defendants has said :

In the genealogy insisted upon by the defendants they excluded Jai Ram altogether from existance any where in the family of Gurucharan. D.W. 7, however has acknowledged Jai Ram being cousin brother of Gurucharan, a fact which is consistent with the case of plaintiffs. The other part of the case that the defendants also are agnates and in statement of D.W. 7, in his deposition that the defendants are nearest agnates of Gurucharan that Jai Ram of the plaintiffs, is wholly inconsistent with the genealogy that appears to have been admitted by D.W. 7 by accepting Jai Ram being the cousin brother of Gurucharan. Learned Subordinate Judge has taken notice of each individual deposition on behalf of the plaintiffs and the defendants. He has assigned good reasons to accept the statements of the plaintiff''s witnesses and about the competency of the defendant''s witnesses to depose about the relationship in controversy. Exts. ''X'' and ''G'' do not take the case any further than showing that the defendants also fell somewhere in the agnates of Gurucharan but fact that Jai Ram is nearer agnate of Gurucharan is fully established by the statement of Most. Paro, Gurucharan''s mother.

In view of what has been noticed by me, since plaintiffs are described as nearest reversioners and the defendants are nowhere near them in the genealogy, surrender by Most. Paro of the limited interest she had acquired after the death of her son Gurucharan in the properties in dispute in favour of the plaintiffs on 23.3.1956 is valid and legitimate. As nearest reversioners the plaintiffs took surrender in their stride and came in possession accordingly.

Mr. Roy has not canvassed before me that even in case the surrender in favour of the plaintiffs in found valid, the defendants by virtue of possession will be entitled to the property in dispute. I find no error in the conclusion of the learned Subordinate Judge that the plaintiffs are entitled to confirmation of possession of the disputed property namely the house in plot No. 415 described in lot No. 2 of schedule 2 of the plaint and to recovery of possession of the culturable land described in lot No. 1 of the schedule 2 of the plaint. Since there is no cross objection and no party has addressed me in respect of 2 Kathas 10 Dhurs of land of plot No. 1732, I do not propose to interfere with the findings of the learned. There is no marit in this appeal It is accordingly dismissed. There shall be no order as to costs.