PETITIONER:

STATE OF BIHAR Vs.

RESPONDENT:

RADHA KRISHNA SINGH & ORS. DATE OF JUDGMENT20/04/1983 BENCH:

FAZALALI, SYED MURTAZA BENCH:

FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)

ERADI, V. BALAKRISHNA (J)

CITATION:

1983 AIR 684 1983 SCR (2) 808

1983 SCC (3) 118 1983 SCALE (1)789 ACT:

Genealogies considerations to be kept in view while considering.

Evidence Act, 1872-Enties in public records-Prepared by a public officer in discharge of his official duties- Probative value of-Sections 13, 40, 41, 42 and 43-Recitale in judgments not inter partes-Section 32-Doctrine of post litem motam-Appreciation of oral evidence in the matter of proof of pedigree-Hearsay evidence section 60-Statement of person deposing a fact known from a different source-How far can be relied on Escheat-State not entering apperance-Plea- If can be accepted without public notice to persons interested.

Interpretation-Dictionaries-How far can be used.

HEADNOTE:

Maharaja Harindra Kishore Singh was the direct descendant of Debi Singh who was the son of Bansidhar Singh. Maharaja Harindra Kishore Singh died issueless leaving behind vast properties in the states of Uttar Pradesh and Bihar. The original plaintiff, Bhagwati Prasad Singh was the direct descendant of Ramruch Singh but his relationship with Bansidhar Singh had not been established. The plaintiffs- respondents basing their title as the nearest revisioners of Maharaja Harindra Kishore Singh claimed that they were entitled to immediate possession of the properties after the death of the widows of the Maharaja.

The Trial Court held that the plaintiffs had not been able to prove any linkage or connection between Ramruch Singh and Bansidhar Singh. But the majority of the High Court held that all the links were clearly proved by the plaintiffs and that it had been found to their satisfaction that Ramruch was the son of Bansidhar. It also held that Ex. J which was an entry made by a Public Officer in a register in the discharge of his official duties squarely falls within the four corners of section 35 of the Evidence Act and, is therefore, admissible in evidence. The appellants however, claimed that it was not admissible in evidence.

^

HELD: In a hotly contested point, there is a tendency on the part of an interested person or a party in order to grab, establish or prove an alleged claim, to concoct, fabricate or procure false genealogy to suit their ends. In relying on the genealogy put forward, courts must guard themselves against falling into the trap laid by a series of documents or a labyrinth of seemingly old genealogies to support their rival claims. [820 H, 821 A]

809 The principles governing such cases are:

(i) Genealogies admitted or proved to be old and relied on in previous cases are doubtless relevant and in some cases may even be conclusive of the facts proved, but there are several considerations which must be kept in mind viz.:

(a) Source of the genealogy and its dependability.

(b) Admissibility of the genealogy under the Evidence Act.

(c) A proper use in decisions or judgments on which reliance is placed.

(d) Age of genealogies.

(e) Litigations where such genealogies have been accepted or rejected. [821 B-E]

(2) On the question of admissibility the following tests must be adopted:

(a) The genealogies of the families concerned must fall within the four-corners of s. 32(5) or s. 13 of the Evidence Act.

(b) They must not be hit by the doctrine of post litem motam.

(c) The genealogies or the claims cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible.

(d) Where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved. [821 B-H]

The majority view that; Ex. J. is admissible is correct. Section 35 of the Evidence Act requires the following conditions to be fulfilled before a document can be admissible under this section:

(1) the document must be in the nature of an entry in any public or other official book, register or record, (2) it must state a fact in issue or a relevant fact, (3) the entry must be made by a public servant in the discharge of his official duties or in performance of his duties specially enjoyed by the law of the country in which the relevant entry is kept.[829 H, 830 A-B]

810 A perusal of Ex. J. clearly shows that it is a report made by an officer of the Government in discharge of his official duties. It was written by a serishtadar, a Government officer, on the direction of a high governmental authority. Ex. J. being an entry in a Register made by a public officer in the discharge of his duties, squarely falls within the four corners of s. 35 of the Evidence Act. It is clear that the officer was entrusted with the task of ascertaining the possession of various landlords for the purpose of taking suitable steps in the matter. It mentions a number of persons through whom the plaintiffs claim their title and, therefore, it relates to a relevant fact. The question as to whether the relevant fact is proved or not is quite a different matter which has nothing to do with the admissibility of the document but which assumes importance only when the court considers the probative value of a particular document. In short, all the essential conditions of section 35 are fully complied with. [830 C-E]

Admissibility of a document is one thing and its probative value, quite another: a document may be admissible and yet may not carry any conviction and weight or its probative value may be nil. [832 A]

In the instant case Ex. J. has no probative value because it does not disclose the source from which the Sheristadar collected his facts nor does it show whether he consulted either contemporary or previous records or entries therein to satisfy himself regarding the correctness of various statements pertaining to the genealogy of landlords who were in possession of the lands. Although he has stated that he had taken these facts from an account book, he had not given any description or the nature of the account book and its contents. The fact of the matter, therefore, is that there was no proper verification by the Sherishtadar regarding the facts stated in the Report from any source. Therefore, it is difficult to place any reliance on the document even though it may be admissible in evidence. [832 C-G]

P.C. Purushothama Reddiar v. S. Perumal [1972] 2 SCR 646, applied.

Ghulam Rasul Khan v. Secretary of State for India in Council 52 I.A. 201, distinguished.

Guar Shyam Pratap Singh v. Collector of Etawah A.I.R. 1946 PC 103; Meer Usd-oollah v. Mussumat Beeby Imaman, widow of Shah Khadim Hossain, 1 M.I.A. 19 held inapplicable.

A report based on hearsay evidence or on the information given by an illiterate person cannot be admissible even under section 35 of the Evidence Act. [837 G]

Brij Mohan Singh v. Priya Brat Narain Singh [1965]

3 SCR 861, followed.

In the instant case the Sherishtdar had to depend on some unknown persons who were not mentioned in it to gather his facts and so even if it is

811 admissible its probative value would be almost zero. Ex. J. was admissible because its author is no longer alive. It contains information which is based on what he may have heard from third parties and therefore much value cannot be attached to such a report. [838 C, 839 B]

Brain v. Preece Lord, 152 English Reports 1017; Mario Mangini Sturla & Ors. v. Filippo Tomasso Mattia Freccia, Augustus Keppel Stevenson & Ors., 1880 A.C. 623; Mercer v.

Denne [1905] 2 Ch. 538, referred to.

Briefly stated the law relating to the admissibility and probative value of the Ex. J is:

(i) The exhibit is clearly admissible under s. 35 of the Evidence Act, and the finding of the High Court on this point is correct;

(ii) The Sheristadar, started writing Ex. J in the year

1810 and completed it in 1813:

(iii) It mentions names of some persons who, according to the plaintiffs, were their ancestors, but on carefully analysing the document it is not very clear as to how Ramruch Singh was connected with Bansidhar Singh or Debi Singh.

(iv) Its probative value is insignificant and is of no assistance in proving the plaint genealogy.

(v) It was a part of the record of Mirzapur Collectorate and was summoned therefrom.

(vi) A bare perusal of the exhibit shows that the Sherishtadar was directed to embark on an enquiry regarding the persons who were in actual possession of lands at the relevant time and it was not a part of his duty to embark on any enquiry regarding the title of the persons holding the lands, nor did he attempt to do so. The heading af Ex. J itself shows that it is a report regarding the possession of Taluqa Majhwa. [841 A-F]

Even if the exhibit is taken into consideration, it will prove not the title of the plaintiffs-respondents but only the possession of lands held by some of their alleged ancestors. In other words, the documents will not be any evidence of title in the suit out of which the present appeals arise which are mainly concerned with the question of title and not with the question of possession. This apart the scheme followed and the modus operandi adopted by the plaintiffs are based on an incorrect translation and wrong interpretation of the meaning of actual words in Persian.

[841 G-H]

Judgments of courts are admissible in evidence under the provisions of sections 40, 41 & 42 of the Evidence Act.

Section 43 provides that those

812 judgments which do not fall within the four corners of sections 40 to 42 are inadmissible unless the existence of such judgment, order or decree is itself a fact in issue or a relevant fact under some other provisions of Evidence Act. Some Courts have used section 13 to prove the admissibility of a judgment as coming under the provisions of section 43. But where there is a specific provision covering the admissibility of a document it i, not open to. the Court to call into aid other general provisions in order to make a particular document admissible In other words, if a judgment is not admissible as not falling within the ambit of sections 40 to 42 it must fulfil the conditions of section 43; otherwise it cannot be relevant under section 13 of the evidence Act. The words "other provisions of this Act" cannot cover section 13 because this section does not deal with judgments at all. [860 H, 861 A, 861 C-D]

A judgment in rem, like judgments passed in probate, insolvency, matrimonial or guardianship proceedings is admissible in all cases whether such judgments are inter partes or not. In the instant case, however, all the documents consisting of judgments filed are not judgments in l em, and there fore, the question of their admissibility on that basis does not arise. The judgments filed as Exhibits in this case are judgments in personam, and therefore, they do not fulfil the conditions mentioned in section 41 of the Evidence Act. [861 E-F]

John Cockrane v. Hrrosoondurri Debia & Ors, 6 M.I.A. 494; Jogendro Deb Roy Kut v. Funindro Deb Roy Kut 14 M.I.A. 367; Gujju Lall v. Fatteh Lall ILR 6 Cal. 171; Maharaja Sir Kesho Prasad Singh Bahadur v. Bahuria Mt. Bhagjogna Kuer & Ors. AIR

1937 PC 69, referred to.

Gadadhar Chowdhury and Ors. v. Sarat Chandra Chakravarty and Ors 44 CWN 935, Seethapati Rao Dora v. Venkanna Dora & Ors ILR 45 Mad, 332;

approved.

It is also well settled that statements or declarations before persons of competent knowledge made ante litem motam are receivable to prove ancient rights of a public or general nature. [865 H]

The admissibility of such declarations is, however, considerably weakened if it pertains not to public rights but to purely private rights. It is equally well settled that declarations or statements made post litem motam would not be admissible because in cases or proceedings taken or declarations made ante litem motam, the element of bias and concoction is eliminated. Before, however, the statements of the nature mentioned above can be admissible as being ante litem motam they must not only be before the actual existence of any controversy, but should be made even before the commencement of legal proceedings. [866 C-E]

This position however cannot hold good of statements made post litem motam which would be clearly inadmissible in evidence. The reason for this rule seems to be that after a dispute has begun or a legal proceeding is about to commence, the possibility of bias, concoction or putting up false pleas cannot be ruled out. [866 G-H]

813 Kalka Prasad and Ors. v. Mathura Prasad ILR

30 All. 510, Hari Bakh v. Babu Lal & Anr. AIR 1924 PC 126; Dolgobinda Paricha v. Nimai Charan Misra & Ors. [1959] Supp. 2 SCR 814; and Ralidindi Venkata Subbaraju & Ors v. Chintalpati Snbbaraju & Ors.

[1969] 2 SCR 292, referred to.

(i) A judgment in rem e.g, judgments or orders passed in admirally, probate proceedings, etc, would always be admissible irrespective of whether they are inter partes or not;

(ii) judgment in personam not inter partes are not at all admissible in evidence except for the three purposes mentioned above.

(iii) on a parity of aforesaid reasoning, the recitals In a judgment like findings given in appreciation of evidence made or arguments or genealogies referred to in the judgment would be wholly in admissible in a case where neither the plaintiffs nor the defendants were parties.

(iv) The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety. is precious little.

(v) Statements, declarations or depositions, etc., would not be admissible if they are post litem motam. [869 A-F]

In the instant case, a detailed examination of the documents shows that the plaintiffs as pointed out by the discenting judge have not proved that they are in any way directly connected with Ramruch Singh, Bansidhar Singh or Debi Singh. The majority on the other hand seems to have been greatly influenced by the age of the documents or their nature rather than their contents, relevancy and weight. The majority also did not focus attention on the most vital question whether or not the plaintiffs have proved that Gajraj Singh, the ancertor of the plaintiff, was in any way connected with Ramruch Singh, Devi Singh and Bansidhar Singh. [869 G-H, 870 A-B]

In considering the oral evidence regarding a pedigree a purely mathematical approach cannot be made because where a long line of descent has to be proved spreading over a century, it is’ obvious that the witnesses who are examined to depose to the genealogy would have to depend on their special means of knowledge which may have come to them through their ancestors but, at the same time, there is great risk and a serious danger involved in relying solely on the evidence of witness given from pure memory because the witness who are interested normally have a tendency to draw more from their imagination or turn and twist the facts which they may have heard from their ancestors in order to help the parties for whom they are deposing. The court, must therefore safeguard that the evidence of such witness may not be accepted as it is based purely on imagination or an imaginary or illusory source of information rather than special means of knowledge as required by law. The oral testimony or the witness on this matter is bound to be hearsay

814 and their evidence is admissible as an exception to the general rule where hearsay evidence is not admissible. [888 E-H, 889 A]

In the appreciation of evidence of such witnesses, the principles to be borne in mind are:

(1) The relationship or the connection however close it may be, which the witness bears to the persons whose pedigree is sought to be deposed by him.

(2) The nature and character of the special means of knowledge through which the witness has come to know about the pedigree.

(3) The interested nature of the witness concerned.

(4) The precaution which must be taken to rule out any false statement made by the witness post litem motam or one which is derived not by means of special knowledge but purely from his imagination, and (5) The evidence of the witness must be substantially corroborated as far as time and memory admit. [889 [B-E]

Bahadur Singh & Ors. v. Mohan Singh & Ors. 29 I.A. Pershad Chowdhry & Ors. v. Rani Radha Chowdharain & Ors. 31 I.A. 160; Abdul Ghafur & Ors. v. Hussain Bibi & Ors. 58 I.A. 188; Mewa Singh & Ors. v. Basant Singh & Ors. AIR 1918 P.C 49; Bhojraj v. Sita Ram & Ors. AIR 1936 PC 66, referred to.

Escheat:

When a claim for escheat is put forward by the Government, the onus lies heavily on the appellant to prove the absence of any heir of the respondent anywhere in the world. Normally, the court frowns on the estate being taken by escheat unless the essential conditions for escheat are fully and completely satisfied. Further, before the plea of escheat can be entertained, there must be a public notice given by the Government so that if there is any claimant anywhere in the country, or for that matter in the world, he may come forward to contest the claim of the State. [919 E-F]

In the instant case, the States of Bihar and Uttar Pradesh merely satisfied themselves by appearing to oppose the claims of the plaintiffs respondents. Even if they succeeded in showing that the plaintiffs were not the nearest reversioners of the late Maharaja, it does not follow as a logical corollary that the failure of the plaintiffs claim would lead to the irresistible inference that there is no other heir who could at any time come forward to claim the properties. [919 F-G]

Dictionaries can always be referred to in order to ascertain not only the meaning of a word but also the general use of it. [842 F]

815 Coca-Cola Company of Canada Ltd. v. Pepsi-Cola Company of Canada Ltd., AIR 1942 PC 40 referred to.