Judgement

Appeal (No. 44 of 1930) from a decree of the High Court made upon an appeal under clause 15 of the letters patent (March 7, 1928) affirming a decree of the Court in its appellate jurisdiction (October 26, 1926), which affirmed a decree of the District Judge of Godavari (October 5, 1920); and petitioner to admit excluded evidence.

The suit was instituted in 1915 by the respondent against the appellants, the second appellant being in possession of the estate of Gollaprolu for a widows estate, and the first appellant having been adopted by her to her deceased husband Venkata Rao in 1914. The plaintiff, claiming to be the nearest reversioner entitled to succeed to Gollaprolu, prayed for a declaration that the adoption was invalid. The defendants by their written statement denied that the plaintiff was, as he claimed to be, the aurasa son of the Raja of Pittapur, who died in 1890, and contended that consequently he could not maintain the suit; issues upon that question were framed.

The only question determined, or argued, upon the present proceedings was whether under s. 33 of the Indian Evidence Act, 1872, the evidence given by witnesses, since dead, in a suit of 1891 was admissible. The suit of 1891 was instituted by Ramakrishna, the adopted son of the late Raja of Pittapur, against the Court of Wards and the present respondent, who claimed to be the subsequently born son of the late Raja ; the claim in the suit was to succeed to the property of the late Raja. The evidence in question had been given upon an issue whether the present respondent was the aurasa son of the late Raja. That issue had been determined against the present respondent by the trial judge, but upon appeal the High Court held that he was entitled to succeed as persona designata under the will of the late Raja; and consequently the Court did not determine the issue ; upon appeal to the Privy Council the judgment of the High Court was affirmed (L. R. 26 I. A. 83). The late Raja had granted the estate of Gollaprolu in 1869 to his brother Venkata Rao, who died childless in 1871.

The facts as to the two suits appear more fully from the judgment of the Judicial Committee, which also sets out the material parts of s. 33 of the Indian Evidence Act, 1872.

The trial judge and the learned judges in both appeals held that the evidence in question was not admissible and that upon the evidence adduced in the suit the respondent was the aurasa son of the late Raja of Pittapur. Upon the letters patent appeal (reported at I. L. R. 51 M. 893) it was held by a majority that the adoption was invalid.

Upon the opening of the present appeal the Judicial Committee directed that the admissibility of the evidence given in the suit of 1891 should first be argued.

1933. May 1, 2, 4, 8, 9, 11, 12, 15, 16. Dunne K.C. and Subba Row for the appellants. Upon the true construction of the first proviso to s. 33 of the Evidence Act, the " proceeding" there referred to is the earlier proceeding, as the proviso uses the word " was " not " is " ; throughout the section the later proceeding is referred to as " the subsequent proceeding." The question therefore is whether in the suit of 1891 Ramakrishna represented the interest of Krishna in the present suit, not whether Krishna represented the interest of Ramakrishna, or was his privy in estate. It is not material that the property in suit was different in the two suits, nor that Krishna was not born at the date of the first suit. In the suit of 1891 Ramakrishna in relation to the issue as to the respondents sonship represented all the reversioners to the late Raja, and that issue is common to both suits. Krishna as the adopted son of Venkata Rao was one of the reversioners both as to the partible and impartible estate. Even with regard to the impartible property every member of the joint family had an interest greater than a mere spes successionis; Shiba Prasad Singh v. Prayag Kumari Debi. (( 1932) L. R. 59 I. A. 331, 345.) If the issue