Tarkeshwar Prasad Tewari vs Devendra Prasad Tewari

Ross, J.—The question in this appeal is a pure question of fact and relates to the origin of Tarkeshwar, Defendant 1.

Sheo Prasad Tiwari had two sons, Ram Partap alias Halkhori and Maheshwar Dutt alias Duttan. Ram Pratap had two sons, Ramrup and Ramsuraj, by his wife Parbati. The plaintiff Debendra Prasad Tiwari is the son of Ramrup and his wife Hartalika. The question for decision in the suit is whether Tarkeshwar is the posthumous son of Ram Suraj and his wife Harnandan Kuer. Ram Pratap died in 1899. The plaintiff alleges that both his sons were then minors and the management of the property was assumed by Maheshwar Dutt. Even after he attained majority Ramrup was incapable of managing his estate being of weak intellect and dissolute habits. His mother then formed the idea of marrying one of her sons in the family of a man of affairs and accordingly Ram Suraj was married to Harnandan Kuer, the grand-daughter of one Nanku Pande, who is described in the plaint as "a successful tout practising in the district of Patna possessed of great tact and fully capable of understanding business and managing zamindari affairs." Nanku Pande then took up the management of the estate acting in consultation with Maheshwar Dutt.

The plaintiff alleges that Ramsuraj died on the 23rd of Bhado 1313, two years after his marriage. On the death of Ramsuraj Nanku Pande took Harnandan Kuer to his house at Machuatoli in Patna and set up Tarkeshwar who was the son of one Banke Singh, a constable, by his mistress as the son of Ramsuraj and Harnandan Kuer. Maheshwar Dutt is also alleged to have had illicit connexion with the mistress of Banke Singh and to have acted in collusion with Nanku Pande in this matter. In 1317 Ramrup also died. The main case is stated in paras 17 and 18 of the plaint in these words: "To the best of the plaintiff''s knowledge on enquiry no son or daughter was born to Ramsuraj Tiwari of the womb of Mt. Harnandan Kuer. When Ramsuraj Tiwari died he was only 13 years old and could not possibly beget a child at that age, and it was not at all a fact that Mt. Harnandan Kuer was pregnant at the time of his death. Defendant 1 is not at all the son of Ramsuraj Tiwari nor did the latter beget him nor was he born of the womb of Harnandan Kuer. On the other hand he was born of the womb of Banke Singh''s mistress and his father is Banke Singh, resident of mouza Bairia." The plaintiff claims a declaration that Defendant 1 is not the son of Ramsuraj Tiwari and has no title to the property of the family and a decree for confirmation of his possession or recovery of possession. (His Lordship then discussed the oral evidence and proceeded).

The documents referred to in this connexion are these: Ex. R which has been discussed above: Ex. X 37 which is the certified copy of a plaint dated 10th March 1900 which purports to have been signed by Ramrup for self and for Ramsuraj Tiwari minor. I doubt whether this document was admissible in evidence. The learned Subordinate Judge apparently followed the ruling in Shazada Mohamed Shahabuddin v. Daniel Wedgeberry 10 BLR App 31. The soundness of this ruling has been questioned by Field (Law of Evidence, 7th Edition, p. 236) and Woodroffe (Law of Evidence, 7th Edition, p. 528) in their commentaries on the Evidence Act. It has not been followed on the Original Side of the Calcutta High Court. I can see no ground for making a distinction between plaints and written statements nor is there any reason why the certified copy of one should be admissible in evidence while the certified copy of the other is not. Neither is a public document. In my opinion Ex. 37 should not have been admitted in evidence. (The judgment further dealt with the documentary evidence and continued.) I find nothing in these papers which convincingly establishes Tarkeshwar''s ancestry as alleged by the defence.

The result is that the appeal must be dismissed with costs.

Permission was given in this case by the learned Registrar to the appellant to have type written copies of the papers prepared instead of the ordinary printed paper-book. The learned Registrar apparently relied upon the provisions of Rule 30 in Ch. 9 of the rules of the High Court which empowers him to exempt any appellant or respondent from the operation of the whole or any part of the rules of the Chapter. Now Rule 1 directs that the paper book shall be printed in accordance with the directions therein laid down. Rule 4 provides that in every case in which an appeal has been admitted the Registrar shall cause a paper-book to be prepared in accordance with the rules of this Chapter with the proviso that in small or urgent cases where good cause has been shown the Registrar may allow any party to put in typed copies. The construction placed upon Rule 30 makes the proviso to Rule 4 superfluous and Rule 30 must be construed as subject to Rules 1 and 4. In my opinion the learned Registrar had not authority to exempt the appellant from having a printed paper-book prepared in this case.

Das, J.

I agree.