Judgement

Appeal (No. 45 of 1932) from a decree of the High Court (February 25, 1930) reversing a decree of the District Judge of Gorakhpur (June 8, 1926).

By a sale deed dated October 30, 1922, and registered under the Indian Registration Act, 1908, in the sub-district of Gorakhpur, the respondents purchased from Balbhadra Narain Mal four villages, which formed part of the ancient impartible raj of Majhauli and were situated in the Deoria sub-district; also a one-third share in a garden-room, described as appertaining to the Majhauli kothi, which was situate in the Gorakhpur sub-district. The last male holder of the impartible estate died on January 7, 1911, without issue ; at the date of the suit his widow was in possession. Balbhadra Narain Mal, the vendor, claimed that his father Indarjit Mal, who died on August 13, 1921, was entitled to succeed by survivorship to the impartible estate upon the death of the last male holder. It was not disputed that the family formerly had been joint.

The questions which arose upon the appeal were (1.) Whether the deed was validly registered. (2.) Whether a pedigree referred to in a decree of 1805 was properly admitted in evidence. (3.) Whether Indarjit Mal was joint with the deceased holder so as to be entitled to succeed by survivorship. The judgment here reported deals with these three questions in the order reverse to that in which they are stated above.

On January 5, 1923, the respondents instituted a suit to recover possession of the properties covered by the sale deed, impleading as defendants the appellant, the Collector of Gorakhpur, as manager of the estate under the Court of Wards, and their vendor, Balbhadra Narain Mal (who was a nominal respondent). Balbhadra sued at the same time to recover the rest of the estate, and that suit had been compromised.

The facts are stated in the judgment of the Judicial Committee.

The trial judge dismissed the suit on the ground that Indarjit Mal was separate from the deceased holder.

On appeal the decision was reversed and the claim decreed. The learned judges (Sulaiman and Kendall JJ.) agreed with the view of the trial judge that the sale deed was validly registered; they were also of opinion that the pedigree had been properly admitted in evidence under s. 32, sub-s. 5, of the Indian Evidence Act, 1872. They held, however, that the trial judge had approached the question whether the estate was held as separate property from the wrong standpoint, and that as the evidence did not show an intention, express or implied, on the part of the junior branch to relinquish their right to succeed, it was not established that the deceased holder was separate from Indarjit in the sense that the latter had lost his right of succession in case the holder died without issue and without having disposed of the estate. The appeal is reported at I. L. R. 52 A. 793.

1934. Jan. 23, 25, 30, 31; Feb. 1, 5, 6, 8. De Gruyther K.C. and Wallach for the appellant. There are three grounds upon each of which this appeal should succeed. First, the sale deed was not validly registered in the Gorakhpur sub-district. The parties did not really intend that the share in the garden-room should form part of the sale. It was wholly inaccessible, admittedly of no value, and the vendor had no title. Its inclusion in the deed was found in India to be a device to evade the Act. The registration was invalid under Biswanath Prashad v. Chandra Narayan Chowdhuri (( 1921) L. R. 48 I.

A. 127.) and Harendra Lal Roy Chowdhuri v. Hari Dasi Debi. (( 1914) L R. 41 I. A. 110.)

Secondly, the pedigree upon which the proof of the earlier part of Indarjits descent rested was wrongly admitted. It bore upon it a statement by a pleader that it was dictated by his client. It was therefore not a statement by a member of the family, but a statement by a deceased pleader that a statement had been made. It was inadmissible under s. 32, sub-ss. 5 and 0, of the Indian Evidence Act Jagatpal Singh v. Jageshar Bak