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1951 Supreme(Ori) 10
HIGH COURT OF ORISSA
RAY,NARASIMHAM, JJ.
Natabar Parichha
Versus
Nimai Charan Misra
First Appeals Nos. 14 and 22 of 1946
Decided On : 09-03-1951
In No. 14 of 1946.
P.C. Chatterji, S.N. Sengupta and M.S. Mohanty fro Appellants; B. Mohapatra and B.K. Pal, for Respondents.
In No. 22 of 1946.
B.K. Pal, for Appellants; B. Mohapatra and P.C. Chatterji, for Respondents.
The Court held that the pedigree set up by Satyabadi in Ext. 1 was admissible under S. 32(5) of the Evidence Act because he had special means of knowledge as to who his maternal grand-father was and further it was filed at a time when there was no controversy about the existence of daughters sons through the first wife of Lokanath.
Headnote:
SUIT FOR DECLARATION OF TITLE, RECOVERY OF POSSESSION AND DAMAGES - PEDIGREE - ADMISSIBILITY OF EVIDENCE - SECTION 32(5) OF THE EVIDENCE ACT - SECTION 50 OF THE EVIDENCE ACT - TRANSFER OF PROPERTY ACT, SECTION 41 - HINDU LAW OF INHERITANCE (AMENDMENT) ACT, 1929 - INTERPRETATION.
Fact of the Case:
The plaintiffs, who are respondents, claimed to be the step-sisters sons of the last male-holder Satyanand and as such entitled to succeed to his property in preference to appellants 1, 2, 3 and 4 who are the agnates of Satyanand. Appellant Durgaprasad Misra in F.A. No. 22 of 1946 is a subsequent alienee of a portion of the property from another agnate of Satyanand.
Finding of the Court:
The Court held that the pedigree set up by Satyabadi in Ext. 1 was admissible under S. 32(5) of the Evidence Act because he had special means of knowledge as to who his maternal grand-father was and further it was filed at a time when there was no controversy about the existence of daughters sons through the first wife of Lokanath. The Court also held that the evidence of P.Ws. 2, 3 and 4 was sufficient to prove the plaintiffs relationship with Lokanath Parichha. The Court further held that defendant No. 9 could not claim the benefit of Section 41 of the T. P. Act because he had not taken reasonable care to ascertain that the transferor had power to make the transfer.
Issues: 1. Whether the plaintiffs are the first wifes daughters sons of Lokanath or else whether they are some other persons who have been falsely set up as such daughters sons? 2. Whether the pedigree set up by Satyabadi in Ext. 1 was admissible under S. 32(5) of the Evidence Act? 3. Whether the evidence of P.Ws. 2, 3 and 4 was sufficient to prove the plaintiffs relationship with Lokanath Parichha? 4. Whether defendant No. 9 could claim the benefit of Section 41 of the T. P. Act?
Ratio Decidendi: 1. The Court held that the pedigree set up by Satyabadi in Ext. 1 was admissible under S. 32(5) of the Evidence Act because he had special means of knowledge as to who his maternal grand-father was and further it was filed at a time when there was no controversy about the existence of daughters sons through the first wife of Lokanath. 2. The Court also held that the evidence of P.Ws. 2, 3 and 4 was sufficient to prove the plaintiffs relationship with Lokanath Parichha. 3. The Court further held that defendant No. 9 could not claim the benefit of Section 41 of the T. P. Act because he had not taken reasonable care to ascertain that the transferor had power to make the transfer.
Final Decision: The appeals were dismissed.
Judgement
NARASIMHAM, J. :- These two connected appeals are by some of the defendants, against the decision of the Subordinate Judge of Sambalpur decreeing the plaintiffs suit for declaration of title, recovery of possession and damages in respect of certain property situate in Sambalpur District which originally belonged to one Lokanath Parichha. The said Lokanath Parichha died sometime in 1895 leaving three daughters through his first wife and a son named Satyanand through his second wife. The name of the second wife of Lokanath was Haripriya alias Srihari. But the parties differ as regards the name of his first wife, the plaintiffs asserting that she was Satyabhama alias Bhama, whereas the principal defendants urged that she was known as Malli. Satyanand succeeded to his fathers property but died unmarried sometime in 1902 and then his mother Haripriya succeeded him with the limited interest known as a Hindu Womans estate. She lived till 1942 and during this long period of nearly 40 years of her possession of the property as a limited owner, the Hindu Law of Inheritance underwent an important change which is mainly responsible for the present litigation. In 1929 the Legislature enacted the Hindu Law of Inheritance (Amendment) Act giving to a sister and a sisters son a higher place in the order of Mitakshara succession above the agnates. After this amendment, there were conflicting decisions of the High Courts as to whether the expression sister in that Act would include a half-sister either consanguine or uterine. But this conflict was set at rest by the Privy Council in Mt. Shahodra v. Ram Babu, AIR (30) 1943 PC 10 where it was held that half-sisters were also entitled to succeed by virtue of the said amendment. The plaintiffs (who are respondents) claimed to be the step-sisters sons of the last male-holder Satyanand and as such entitled to succeed to his property in preference to appellants 1, 2, 3 and 4 who are the agnates of Satyanand. Appellant Durgaprasad Misra in F.A. No. 22 of 1946 is a subsequent alienee of a portion of the property from another agnate of Satyanand.
2. The following pedigree will be helpful in appreciating the claims of the parties.
SANKARSAN
Balaram Bhubna
Baidyanath Raghunath Purushottam Satyabhama - Lokanath Haripriya alias Srihari (1st wife) (d. 1895) d. 1942) (2nd wife)
Anirudha D. 7 Sripati D. 2 Satyanand (d. 1903)
Natabar D. 1 Janardan Ahalya Brandabati Malabati (dead) (dead) (dead) Devendra D. 3.
Radha- Dolgovind Ramhari Satyabadi Dasaratha D. 8 (given Baikuntha krushna D. 4 D. 5 D. 6 (dead) in adoption) P. 3
Nimai Lakshimi- P. 1 narayan P. 2
Defendant No. 9 (appellant in F.A. No. 22 of 1946) did not however challenge the correctness of the plaintiffs pedigree but urged that he was a bona fide purchaser for value of a portion of the property from the ostensible owner and as such quite indifferent to the question of relationship of the parties to Lokanath and his son Satyanand.
3. The essential question in controversy between the parties is whether the plaintiffs are the first wifes daughters sons of Lokanath or else whether they are some other persons who have been falsely set up as such daughters sons. It is admitted that the plaintiffs are the sons of Malabati and Ahalya. It is also admitted that Lokanath had three daughters through his first wife, one of whom was Brundabati who died issueless. The main point of difference between the parties is firstly as regards the name of the first wife of Lokanath (whether Satyabhama or Malli) and secondly the names of the two remaining daughters of Lokanath, whether Defendants 1, 2, 4, 5 and 6 who are the principal contestants in the litigation do not however accept the pedigree to be fully correct. According to them, the three daughters of Lokanath through his first wife Malli were named Brundabati, Nilabati and Lalita, and the plaintiffs are not the sons of any of those daughters. They set up the following pedigree for the plaintiffs, as the descendants
