The opinion of a witness as to relationship is admissible in evidence under Section 50 of the Evidence Act, if the witness has special means of knowledge about the relationship and the opinion is expressed by conduct.

Raj Kishore Prasad, J.

1. This is an appeal by the defendants from a partition suit. The plaintiff brought the suit for partition of the properties in dispute on the ground that defendant 1 was his father, and he has for a long time, been in the habit of taking bhang, and smoking ganja and is wasting the property, and vexing the plaintiff in several ways, and as such it was not possible for him to remain in joint possession of the properties with defendant 1, and, therefore, he sought partition of his 8 annas share in the proper- ties in suit.

2. The defence of defendant 1 was that the plaintiff was not his son; and that he had only one wife, of whose womb no son or daughter was ever born. His wife died 28 or 29 years ago, and the plaintiff is aged only 19 to 20 years old, and as such he could not be his son. It was further alleged that the plaintiff was the son of one Parikha of village Ghordihi, where the plaintiff and defendant 1 resided.

3. The present suit for partition was filed on 4-4-51, defendant 1 appeared in the suit on 4-5-51, and filed his written statement on 4-6-51, and three days thereafter, that is, on 7-6-51, he executed a deed of gift in favour of defendants 2 to 5 in respect of the entire properties under partition alleging that they were his phuphera cousins, and looking after him, and he was living for the last 7 or 8 years with them in village Gossainpur.

Defendant 1 also denied taking intoxication and wasting property. On 8-1-51, defendant 2 appeared and filed a petition asking the Court to make defendants 2 to 5 parties to the suit, and accordingly the Court below by an order dated 10-8-51 added them also as parties to the suit.

4. Mr. S.N. Banerji, 2nd Additional Subordinate Judge at Sasaram, who tried the suit, by an order dated 4-9-53, decreed the suit of the plaintiff, holding that he was the son of defendant 1, and was in joint possession of the suit properties with his father, defendant 1, and that the plaintiff had a moiety share in the suit properties, and as such he was entitled to have his share partitioned. Against this judgment and decree all the five defendants have preferred the present appeal.

5. Mr. A. B. Saran, appearing for the appellants, contended that there were certain circumstances which proved that the plaintiff could not be the son of defendant 1, and as such the decision of the Court below holding that the plaintiff was the son of defendant I was erroneous.

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10 Mr. Saran has referred specifically to the evidence of P. W. 2 and submitted that his evidence on the question of Janki being the son of Ramadhar was not admissible in evidence, because his evidence was in the nature of hearsay, being evidence of general reputation- He has submitted that P. W. 2 was not a member of the family of Ramadhar and janki, inasmuch as P. W. 2 himself admitted that he was not an original resident of Ghordihi, where the plaintiff resides and defendant 1 resided.

P.W. 2 admitted in cross-examination that he came to village Ghordihi, as he inherited some property of his maternal grandfather, and he came here after his death. P. W. 2 was a kurmi by caste, and although he was not a member of the family of the plaintiff and defendant 1, but an outsider, he belonged to the same caste, and to the same village, and as he was living in this village he was connected with all the kurmis of that village, and as such he had special means of knowledge about the relationship of the parties.

P. W. 2 stated that there were 14 or 15 families of Awadhia Kurmis in his village Ghordihi and they were not related to one another, but there could be no intermarriage among the Awadhia Kurmis of the same village P. W. 2 further stated that he was also an Awadhia Kurmi, and as such there could be no doubt that P. W. 2, although an outsider, had special means of knowledge, and his opinion would he admissible in evidence under Sec. 50, Evidence Act.

11. Sec. 50 runs thus:

"When the Court has to