Judgment

S.B. SINHA, J.- Application of Section 50 of the Evidence Act, 1872 is involved in this appeal which arises out of a judgment and order dated 27-8-2003 passed by a learned Single Judge of the Punjab and Haryana High Court in Regular Second Appeal No. 1290 of 1982 allowing the appeal from d a judgment and order dated 12-3-1982 passed by the Additional District Judge, Patiala setting aside the judgment and decree dated 31-3-1981 passed by the Subordinate Judge, First Class, Patiala decreeing the suit of the respondents. Before embarking upon the said question, we may notice the genealogical tree of the parties:

Chartu

__________________________________________________________________

I I I

Munshi (son) Bakhtawar (son) Nandi(daughter)

I (died without leaving I I

Niranjan Singh any Class 1 heir) Bant Singh Bachan Kaur

(respondent -plaintiff) (son) (daughter)

(Appellant-Defendants 1 and 2)

2. Chartu died in 1935. According to the appellants upon death of Chartu, the properties devolved upon his sons Munshi and Bakhtawar in equal shares. Entries in that behalf in the revenue records were made showing interest of Munshi and Bakhtawar in equal shares.

3. On or about 16-6-1956, Munshi Singh died. His share in the property was inherited by his son Niranjan Singh. To the same effect allegedly mutation in the revenue records was carried out. Bakhtawar, the other son of Chartu died on 25-10-1972. The share of Bakhtawar Singh in the said property was mutated in favour of Niranjan Singh, son of Munshi Singh and Bant Singh and Bachan Kaur, son and daughter of Nandi, being his class two heirs.

4. On or about 28-7-1978, the respondent herein filed a suit challenging the said order passed by the Revenue Officer in the mutation proceedings, inter alia, claiming that the property was a joint coparcenary property and, thus, Nandi did not derive any interest therein. It was furthermore contended that Nandi was not the daughter of Chartu. The learned trial Judge in view of the pleadings of the parties framed the following issues:

"(i) Whether the disputed property is joint Hindu family coparcenary property of the plaintiff and the deceased Bakhtawar Singh and his ancestors? OPP

(ii) Whether deceased Nandi was the daughter of Chartu as alleged? OPD

(iii) Whether Defendants 1 and 2 are the son and daughter of aforesaid Nandi and are heirs of deceased Bakhtawar Singh? OPD

(iv) Whether the plaintiff is in possession of the suit land? If not, its effect? OPD

(v) Relief."

5. In its judgment and order dated 31-3-1981, the learned trial Judge held that the property in suit being joint coparcenary property, Nandi did not inherit any interest therein. However, in regard to the status of the appellants, it was held that Nandi was the daughter of Chartu and sister of Bakhtawar Singh.

6. The appellants preferred an appeal thereagainst which, by a judgment and order dated 12-3-1982, was allowed.

7. While upholding the findings of the learned trial Judge in regard to the relationship of the appellants vis-a-vis the said Bakhtawar Singh holding that Nandi was the mother of the appellants, the daughter of Chartu and the sister of Bakhtawar Singh. It was also held that the property in suit was not a coparcenary property and, thus, Niranjan Singh and Bakhtawar Singh had half-shares each therein.

8. Cross-objection of the respondents in regard to the finding of the learned trial Judge on Issues 2 and 3 was also dismissed.

9. A second appeal was preferred thereagainst.

10. The following substantial questions of law were formulated by the High Court:

"(a) Whether the evidence led by the defendants conforms to the requirements of Section 50 of the Evidence Act, 1872 and as such can be taken to have proved the relationship of Smt Nandi, mother of Defendants 1 an