1. Suit for recovery of possession of an impartible estate based on survivorship under Mitakshara law, primogeniture, and female exclusion, contested by a claim of posthumous sonship. (Para 1 , 2 )
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1940 Supreme(SC) 12
Privy Council At Patna
Mr. Jayakar, Sir George Rankin, Justice Lord Thankerton, JJ.
Nand Kishwar Bux Roy -Appellant
Versus
Gopal Bux Rai and others -Resopndent
Privy Council Appeal No. 33 of 1937; Patna Appeal No. 98 of 1934,
Decided On : 18-03-1940
Advocates Appeared:
Dold, Douglas Grant, Nehra and Co., J.M. Pringle, M.H. Rashid, J.P. Eddy
Dold, Douglas Grant, Nehra and Co., J.M. Pringle, M.H. Rashid, J.P. Eddy
The burden of proving a claim of posthumous birth lies with the claimant, especially when facts are within the special knowledge of the mother. Mutation entries are fiscal inquiries for revenue purposes and do not establish legal title to property.
Headnote:(A) Evidence Act - Sections 101, 106, 110 and 112 - Burden of proof - In a suit for recovery of possession of an impartible estate, where a party claims a right based on being a posthumous son, the burden of proving such birth lies upon the claimant - Section 110 does not apply if possession at the date of the suit is not established - Section 112 is inapplicable where maternity, rather than paternity, is in dispute - Under Section 106, facts within the special knowledge of a party must be proved by that party.
(B) Mutation proceedings - Nature and effect - Mutation entries are merely fiscal inquiries conducted in the interest of the State to determine who should be put in occupation for revenue purposes - Such entries do not constitute evidence of the superiority of title.
(C) Mitakshara Law - Primogeniture - Succession to an impartible jagir governed by the rule of primogeniture and female exclusion.
Facts of the case:
A suit was filed for recovery of possession of an impartible estate, claiming succession by survivorship under the rule of primogeniture. The appellant claimed to be the posthumous son of the last holder, born to the widow. The dispute centered on whether the widow was actually pregnant at the time of the last holder's death. Evidence included testimonies from family members and a medical certificate from a doctor who later testified that the woman she had examined was not the widow.
Findings of Court:
The court found that the appellant failed to prove his parentage beyond reasonable doubt. The evidence provided by the appellant was clouded by suspicious acts and the recantation of the medical professional regarding the identity of the person examined.
Issues: Whether the burden of proof regarding the appellant's birth lay with the plaintiff or the appellant, and whether the appellant was the posthumous son of the last holder.
Ratio Decidendi: The court held that the burden of proof lies on the person claiming the relationship, particularly when the facts are within the special knowledge of the mother. Mutation entries are for revenue purposes and do not establish title. The failure of the respondents to prove their own theory does not automatically prove the truth of the appellant's claim.
Result: Appeal dismissed.
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Mr. Jayakar:-
This is an appeal from the judgment and decree of the High Court of Judicature at Patna dated 2nd March 1936, which reversed the judgment and decree of the Additional Subordinate Judge of Palamau dated 17th March 1933, and decreed the suit of the plaintiffs respondents 1 to 7 for recovery of possession of an impartible estate called Deogan estate, in succession to the last holder Surendra Bux Rai (hereinafter called Surendra). The suit was instituted on 8th March 1924, by the plaintiff (respondent 1) claiming a declaration that the property in the suit, being an ancestral impartible estate of the joint family of Surendra and himself, devolved on him by survivorship, on the death of Surendra and that plaintiff 1 was alone the rightful owner thereof under the Mitakshara law and by virtue of the customs of primogeniture and female exclusion, which governed the estate. He also asked for possession. Plaintiffs 2 to 7 were subsequently brought on the record as assignees under a permanent lease obtained from plaintiff 1, in consideration of amounts lent for financing the litigation.
The defendants were : 1, Binodini Devi, the widow of Surendra (shortly described as the Dulhin); 2, Mr. Coutts, the manager of the estate appointed under the Chota Nagpur Encumbered Estates Act; 3 to 8, the members, near and remote, of the said joint family; 9, Nand Kishwar (appellant before the Board), who claimed to be the posthumous son of Surendra born of defendant 1, and 10, Sham Sunder Kuer, the daughter of Surendra, born of defendant 1. It is to be noted that the mother of Surendra, shortly described as the Rajmata, was not a party to the proceedings. Certain issues were raised, out of which, the only one which now survives for the consideration of the Board is issue 4, viz., whether defendant 1 gave birth to defendant 9 as alleged by the defence. On this issue, the trial Court held in the affirmative. The High Court has differed, Courtney-Terrell, C. J. and Dhavle J., holding in the negative and Agarwala J. in the affirmative. From this decision an appeal has been preferred to His Majesty in Council. It has been found that the Deogan estate, though impartible, is the property of the joint Hindu family, of which Surendra and respondent 1 were members, that it is an impartible jagir governed by the rule of primogeniture under the Mitakshara law and that respondent 1 would be entitled to succeed by survivorship to the estate, unless the appellant proved that he was the son of Surendra. The findings on these issues are no more in controversy.
The appellant's counsel argued at the outset that the burden of proving that the appellant was not the son of Surendra lay upon the plaintiff (respondent 1). Reliance was placed on the pleadings and certain Sections of the Evidence Act. It was urged that as the plaintiff was suing for possession from the appellant who was in possession at the date of the suit, the suit was in the nature of an ejectment action and S. 110, Evidence Act, applied. Ss. 101 and 112 of that Act were also relied upon. The last Section however can have no application to the facts of this case, where the maternity of the appellant is in dispute and not his paternity. It was further argued that as the plaintiff made in the plaint charges of fraud, it is for him to prove them. The simple answer to these arguments is first, that it has not been satisfactorily proved that at the date of the suit, 8th March 1934, the appellant was in possession of the property. It is enough to refer in this connection to the clear admission of the Dulhin, the appellant's mother and guardian ad litem, made in her objections to the appointment of a receiver dated 20th September 1925, that the estate was released from the management of the Encumbered and Wards Estate Office in April 1934, which would be after the date of the suit. The entry relied upon by the defendant in the extract from the survey register confirms this view. It shows that the name of
