The failure of a party to testify and be cross-examined when they are present in court and possess personal knowledge of the facts strongly discredits their case. Prior statements cannot substitute for testimony subject to cross-examination, especially in suspicious circumstances.

Lord Shaw. -

This is an appeal against a judgment and decree dated the 9th April 1924, of the High Court of Judicature at Lahore, which reversed the judgment and decree of the 1st December 1919, of the Subordinate Judge at Ludhiana.

Sardar Jawala Singh was a jaghirdar possessed of certain properties in the Ludhiana and Ferozepore Districts of the Punjab. He lived in the village of Bhikki Khatra, in the Ludhiana District.

Jawala died on the 19th August 1915, leaving two widows. The elder, Harnam Kuar, was childess. The younger, Bhagwan Kuar, had borne to him a daughter, who at the date of his death was ten years old. These constituted the house hold.

It is admitted that according to the law in operation in that part of the Punjab, if there had been a son in the household, he would have succeeded to the properties ; but that, failing a son, and there being only a daughter, the estate would fall to a collateral male relative. That relative was a step brother named Gurbakhsh Singh, who is the present appellant. If, however, a posthumous son was born, then that posthumous son would, of course, succeed, the household would be kept together, and Gurbakhsh, the step-brother, would have no rights.

The story of this litigation, and of various other proceedings, partly legal and partly administrative, which pre ceded it, hangs upon the question whether such a posthumous son ever was born. If appears clear that a possible attempt to procure a spurious son was in the minds of all parties from the moment of Jawala' death, or even before that. He died on the 19th August 1915.

The appellant maintains that no such posthumous son was born. Almost im mediately after the death he proceeded to raise the question. Simultaneously, or almost simultaneously, Bhagwan, the younger widow, disappeared.

Every day was of importance for the defeat of a plot, if plot there was, and for the immediate discovery of the truth. There seems to be little doubt that dis satisfaction arose as to the delay of the patwari of the village in taking action. It is a fact that the death having occurred on the 19th August, the patwari only entered the fact in his diary so late as the 29th August.

In the mutation register, which pur ports to be dated the 23rd August 1915, but which was only in reality completed on the 29th, there is in the last column the following entry :

Today, Bachittar Singh, a co-sharer of mauza Attari, stated :

Jowala Singh, a co-sharer and jaghirdar of mauza, Attari, died sonless on the 19th August 1915. Msts. Harnam Kaur and Bhagwan Kaur his widows, are entitled to succeed to the pro perty left by him in equal shares. A report re garding the death with regard to the jaghir has been separately submitted to the tahsil. Hence the mutation entry relating to the khata is sub mitted.

He also states that Mt. Bhagwan Kaur is pregnant.

Dated the 23rd August 1915.

(Signed) BACHITTAR SINGH,

Declarant.

There remains in the case very con siderable doubt as to when the words, "He (Bachittar Singh) also states that Mt. Bhagwan Kaur is pregnant," were entered. As will be shown, Bachittar Singh, the alleged informant, was not examined as a witness.

On the 31st August, Gurbakhsh, by a petition to the mutation officer, claimed that the property was his. By this time the parties were undoubtedly at arm' length. Gurbakhsh, the step-brother, appellant had applied to the Collector ; the application has not been found, but at least by the 14th September an applica tion was lodged which frankly made the charge of the attempt to procure a spurious son.

In our family there is a custom that when a member died soilless his collaterals get his jaghir, and his widows are entitled to get maintenance only. They support themselves with the income of the ancestral land. The village Patwari has colluded with his (deceased') widow. He made a false and fictitious report in the mutation register to the effect that Mt. Bhagwan Kaur is pregnant, whereas she is not at all pregnant. Our rights are prejudiced o