Judgement

Kania, C.J.I. : This is an appeal from the judgment and decree of the High Court of Judicature at Patna (Cuttack Circuit) reversing the decree of the Subordinate Judge and dismissing the suit of the plaintiffs. The relevant facts material for deciding the points urged before us in the appeal are these. Rai Bahadur Govind Ballab Ray died on 30-7-1896. By his first wife, who had predeceased him, he had a daughter Sabitri who died about two months after Govind Ballab s death. Govind Ballab left him surviving a widow Sarnamayee, who died in 1935. She gave birth to a son, Lal, who died in infancy, and a daughter, Indubala, who died in 1904. The deceased Govind Ballab Ray had left also certain debutter properties but no decision in respect of those properties was given as the proper contesting parties were not before the Court.

It was contended on behalf of the plaintiffs (appellants before us) that they are the next reversioners of Govind Ballab on the death of Sarnamayee. On behalf of the defendants (respondents)- it was contended that the first wife of Govind Ballab had given birth to a second daughter Binodini on 29th of Baisakhi 1287 (9-51880) and that Binodini died in 1938 after the written statement had been filed in this suit. It was therefore contended on their behalf that they were the nearer reversioners. It is not disputed that if Binodini was the natural daughter of Govind Ballab the respondents will be the nearer heirs. The whole question therefore which was discussed before us was whether the conclusion of the Subordinate Judge that Binodini was taken in the family by Govind Ballab and treated as a child but was not the natural daughter of Govind Ballab (which finding was reversed by the appellate court), is correct.

2. To repel the contention of the respondents it was strenuously urged that Binodini could not have been born to the first wife of Govind Ballab because Sabitri was born to that lady about six to seven months -before 9-5-1880 and therefore the alleged birth of Binodini on 9-5-1880 as a full grown healthy child, who lived for 58 years thereafter, was an impossible story. Before the trial Judge numerous witnesses were called on each side for and against the contention that Binodini was the natural daughter of Govind Ballab. The appellants had, in addition, produced certain old papers alleged to be of the deceased Govind Ballab suggesting that Sabitri was born on the date mentioned by them. The trial Judge, as stated in his judgment, did not feel convinced of the plaintiffs contention on the oral evidence led by them. As noticed by the High Court the Subordinate Judge observed:

"from all that I have discussed in connection with this issue (the birth of Binodini) it may seem that there are some strong circumstances in support of the defendant s case. . . . . . I might have been probably inclined to decide the question of daughtership in favour of the defendants had I not been encountered by certain documents on the plaintiffs side which I am proceeding to discuss now. The circumstances as also the documents on the side of the defendants can be explained away as I have done but I find no reasonable ground on which I can do away with the plaintiffs exhibits, especially the account papers (exh. 32 series)."

The High Court has quite appropriately started exandning the judgment of the Subordinate Judge on the basis of these observations found in his judgment. They have, in addition, scrutinized the oral evidence led on behalf of the appellants and respondents and in detail pointed out that the oral evidence on the side of the respondents was certainly of more respectable witnesses and more reliable. In this connection we may point out that the evidence of Khirodemani Dassi (D.W. 3) is the only direct evidence in respect of the birth of Binodini. According to her evidence she was actually present at the time of the birth and her cross-examination does not show why her evidence should be disbelieved in any