WANCHOO, C.J.—This is an appeal by Jawanmal in a case under the Succession Act.

2. An application was made in July, 1946 by Achaldas, opposite party for letters of administration of the property left by one Likhmichand who died in Svt. 1999. This application was opposed and one of the persons, who opposed it, was Jawanmal, the present appellant who is admittedly the sisters son of Likhmichand. Achaldas case was based on the following pedigree—

Pema

Uma Manroop Hukma Jetha (issueless)

Gadmal Surajmal (PW) Hazarilal

Likhmichand(deceased) Achaldas(applicant) Kundanmal(PW)

Further, Achaldas claimed to be the adopted son of Likhmichand deceased.

3. The case of Jawanmal was that Uma, the grand-father of Likhmichand, was not the son of Pema, as shown in the above pedigree. It was not denied that Pema had three sons, Manroop, Hukma and Jetha; but it was said that Umas father, whose name is also Pema, was a different person.

4. Evidence was led by both parties on the question of adoption and about the relationship. So far as the question of adoption was concerned. Surajmal, one of the witnesses produced on behalf of those who had opposed the application also admitted that Achaldas had been adopted by Likhmi Chand. But it was found that the document evidencing the adoption had not been registered. The law in Marwar is that an adoption deed has to be registered, and if it is not registered, the courts in Marwar do not recognise the adoption. The trial court, therefore, did not recognise the adoption put forward on behalf of Achaldas. Learned counsel for Achaldas in this Court also does not press, in view of the law in Marwar, that the adoption may be held proved.

5. Then we turn to the question of relationship. In order that a person may succeed in getting letters of administration on the basis of relationship, he has to prove the relationship on which he relies, and also prima facie that there is no nearer heir alive. In this connection, it may be pointed out that if the pedigree set out by Achaldas is correct, he is not the nearest heir. The nearest heir would be Surajmal, his own father. However, it is urged that Surajmal appeared as a witness for Achaldas, and had no objection to the grant of letters of administration to Achaldas, and therefore this Court may grant the same to Achaldas. This contention may be accepted.

6. We have, however, to see whether Achaldas has been able to prove the relationship upon which he founded his application. The crucial point in the pedigree, which we have set out above, is whether Uma, the grand-father of Likhmichand, was the son of Pema, grand-father of Achaldas. There were four witnesses who deposed to this pedigree, namely Kundanmal, Surajmal and Achaldas who appear in the pedigree, and one Chandanmal, who was a neighbour. It is obvious that Kundanmal, Achaldas and Chandanmal are too young to have seen Pema. Unless, therefore, they disclosed their source of knowledge, their evidence as to the relation of Uma with Pema would be mere hearsay. We have gone through the statements of these witnesses, and find that they have just ruled out this pedigree as if they had learnt it by heart, and have not disclosed what their source of knowledge was. Even though two of them, Achaldas and Kundanmal, claim to be members of this family, we cannot rely on their evidence when they have not disclosed their source of knowledge and could not have possibly seen Pema. The evidence, therefore, of these three witnesses falls far short of proving that Uma, grand-father of Likhmichand, was the son of the same Pema who was the great-grand-father of Achaldas. In this connection reference may be made to Rokkam Lakshmi Reddi vs. Rokkam Venkata Reddi(1) (AIR 1937 P.C. 201.) and Shiylal vs. Jootha(2) (1952 R.L.W. 307.).

7. There remains Surajmal. He is the grand-son of Pema and might have seen him; but he has not said in his statement that he had seen Pema or even his own father Manroop. The probabilities are that Surajmal had seen

Click Here to Read the rest of this document