Appeal No 206 of 1954
Appeal from the judgment and decree dated March 9 1951 of the Orissa High Court in Appeal from Original decree No 14 of 1946 arising out of the judgment and decree dated January 31 1946 of the Court of Subordinate Judge at Sambalpur in Title Suit No 16 of 1944
L K Jha Rameshwar Nath section N Andley and J B Dadachanji for the appellant
section C Issacs and R Patnaik for the respondents
April 27
The Judgment of the Court was delivered by section K DAS J
This appeal on a certificate granted by the High Court of Orissa is from the judgment and decree of the said High Court dated March 9 1951 by which it substantially affirmed the decision of the learned Subordinate Judge of Sambalpur in Title Suit No 16 of 1944 except for a modification of the decree for damages awarded by the latter
Two questions of law arise in this appeal one relating to the interpretation of section 32 sub section
5 and the other to section 50 of the Indian Evidence Act I of 1872 hereinafter referred to as the Evidence Act
The material facts relating to the appeal are susceptible of a simple and concise statement
Three persons Nimai Charan Misra Lakshminarayan Misra and Baikuntha Pati brought a suit for a declaration of their title to and recovery of possession of certain properties details whereof are not necessary for our purpose
This suit was numbered Title Suit 16 of 1944 in the court of the Subordinate Judge of Sambalpur
The claim of the plaintiffs now respondents before us was founded on the following pedigree 817 Sankarsan Balaram Bhubana Baidyanath Raghunath Purushottam Satyabhama Lokanath Haripriya alias Srihari died 1942 2nd wife Satyananda died 1902 Natabar Deft 1 Janardan Devendra Deft
3 Radha Krushna Dolgovind Ramhari Deft
4 Deft
5 Deft
6 Must
Ahalya Mst
Brindabati Mst
Malabati dead married dead married
dead married
Lakhan Pati
Raghumani
Mandhata Misra
Satyabadi Dasarath Baikuntha Nimai Lakshminarayanm dead Deft8 Plaintiff3 Plaintiff1 Plaintiff2 given in adoption in another family
818 The last male owner was Satyananda who died unmarried sometime in 1902 1903 and his mother Haripriya succeeded to the estate
She lived till 1942 but in 1916 she had sold a portion of the property to one Indumati daughter of Dharanidhar Misra plaintiffs  witness No 4 and some of the reversioners namely Natabar and Janardan who were agnates of Haripriya s husband Lokenath Parichha brought a suit challenging the alienation
This suit was Suit No 31 of 1917 in the court of the Subordinate Judge Sambalpur
The suit was decreed on August 31 1918 and the alienation was declared to be without legal necessity and not binding on the reversion after the death of Haripriya
In 1929 was passed the Hindu Law of Inheritance Amendment Act II of 1929 which inter alia gave to a sister s son a place in the order of Mitakshara succession higher than the agnates before the amending Act a sister s son ranked as a bandhu but under it he succeeded next after the sister
The question whether a half sister was entitled to get the benefit of the amending Act gave rise to a difference of opinion but the Privy Council held in 1942 settling the difference then existing between the various High Courts that the term I sister  included a half sister  but a full sister and a half sister did not take together and the latter took only in default of the full sister
See Mst
Sahodra vs Ram Babu 1 
The plaintiffs respondents claimed on the strength of the pedigree which they set up that they were sons of the half sister of Satyanand and therefore came before the agnates
The suit was contested by some of the defendants who were agnates of Lokenath Paricha and of whom the present appellant was one
The contesting defendants challenged the correctness of the pedigree alleged by the plaintiffs respondents and their main case was that Ahalya and Malabati were not the daughters of Lokenath Parichha but were daughters of Baidyanath Misra father of Haripriya
The relevant pedigree which the appellant set up was 1 1942 LR 69 IA I45
819 Baidyanath Misra Haripriya Bisseswar AliaJ Malabati died on Misra Laksh Pati Mandhata 6 4 1942 Dayasagar Satyanand Sushila P W 3 died in 1903 Dasarathi Baikuntha Plff
3 Nimai Lakshmi Plff1 narayan
Plff 2
As the High Court has put it the essential controversy between the parties centred round the question if the plaintiffs respondents were the sons of the daughters of Lokenath Parichha by his first wife Satyabhama
On this question the parties gave both oral and documentary evidence
On a consideration of that evidence the learned Subordinate Judge held that they were the sons of the daughters of Lokenath Parichha and on that finding the suit was decreed
There was an appeal to the High Court and it affirmed the finding Of the learned Subordinate Judge
The High Court relied on exhibit 1 a petition dated November 2 1917 which Satyabadi on his own behalf and on behalf of his brothers Baikunth Pati and Dasarath Pati had filed in Suit No 31 of 1917 this petition contained a pedigree which showed that Ahalya Brindabati and Malabati were daughters of Lokenath Parichha by his first wife and Satyabadi Baikunth and Dasarath were the sons of Ahalya
The admissi bility of this document was challenged on behalf of the appellant but the learned Judges of the High Court held that the document was admissible under section 325 of the Evidence Act
The contention before us is that the document was not so admissible and this is one of the questions for decision before us
As to the oral evidence Narasimham J held that the testimony given by three of the witnesses of the plaintiffs respondents namely Janardan Misra plaintiffs  witness No 2 Sushila Misrain plaintiffs  witness No 3 and Dharanidhar Misra plaintiffs  witness No 4was admissible under section 50 of the Evidence Act and 820 he relied on that testimony in support of the pedigree set up by the plaintiffs respondents
The learned Chief Justice relied on the evidence of Dharanidbar Misra which be held to be admissible but with regard to the
other two witnesses he said  With regard to the other two witnesses relied on by the plaintiffs namely that of P Ws 2 Janardan Misra aged 62 and 3 Susila Misrani aged 43 knowledge of relevant facts as to relationships can seldom be attributed to them
Their evidence though true and otherwise acceptable must be based upon their having heard the declarations of such members of the family as were their contemporaries or upon the tradition or reputation as to family descent handed down from generation to generation and recognised and adopted by the family generally
This may partly if not wholly be based upon conduct within the meaning of section 50 such as treating and recognising the mothers of the plaintiffs as Lokenath s daughters and the plaintiffs as his daughter s sons
They judged from their respective ages could not be considered to have direct knowledge of the matters in issue
Scanning their evidence closely I find that they have in no way deposed about such conduct of the members of the family of Lokenatb as could be attributed to the knowledge or belief or consciousness of those who had special means of knowledge of the relationships or that the relationship was recognised and adopted by the family generally
In the circumstances I entertain some doubt as to the acceptability of their statements in evidence
 On behalf of the appellant it has been contended that the testimony of none of the aforesaid three witnesses fell within the purview of section 50 of the Evidence Act and the High Court was in error in admitting and accepting that evidence or any part thereof and according to learned counsel for the appellant the whole of it was hearsay pure and simple some of it being even second or third hand hearsay
Thus the second question for our consideration is if the testi mony of the witnesses mentioned above or of any of them is admissible evidence within the meaning of section 50 of the Evidence Act
821 We proceed to consider the second question first
The Evidence Act states that the expression  facts in issue  means and includes any fact from which either by itself or in connection with other facts the existence non existence nature or extent of any right liability or disability asserted or denied in any suit or proceeding necessarily follow evidence means and includes 1 all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry  and 2 all documents produced for the inspection of the Court
It further states that one fact is said to be relevant to another when the one is connected with the other in any one of the ways referred to in the provisions of the Evidence Act relating to the relevancy of facts
Section 5 of the Evidence Act lays down that evidence may be given in any suit or proceeding of the existence or non existence of every fact in issue and of such other facts as are declared to be relevant and of no others
It is in the context of these provisions of the Evidence Act that we have to consider section 50 which occurs in Chapter 11 headed  Of the Relevancy of Facts Section 50 in so far as it is relevant for our purpose is in these terms  section 50
When the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who as a member of the family or otherwise has special means of knowledge on the subject is a relevant fact On a plain reading of the section it is quite clear that it deals with relevancy of a particular fact
It states in effect that when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact
The two illustrations appended to the section clearly bring out the true scope and effect of the section
It appears to us that the essential requirements of the section are I there must be a case where the court has to form an opinion as to the 822 relationship of one person to another 2 in such acase the opinion expressed by conduct as to the existence of such relationship is a relevant fact 3but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship  in other wordsthe person must fulfil the condition laid down in the latter part of the section
If the person fulfils that condition then what is relevant is his opinion expressed by conduct
Opinion means something more than more retailing of gossip or of hearsay it means judgment or belief that is a belief or a conviction resulting from what one thinks on a particular question
Now the  belief  or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion
What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may therefore be proved
We are of the view that the true scope and effect of section 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala vs Khalilar Rahman 1 It is only opinion as expressed by conduct which is made relevant
This is how the conduct comes in
The offered item of evidence is the conduct  but what is made admissible in evidence is  the opinion  the opinion as expressed by such conductThe offered item of evidence thus only moves the Court to an intermediate decision  its immediate effect is only to move the Court to see if this conduct establishes any I opinion  of the person whose conduct is in evidence as to the relationship in question
In order to enable the Court to infer the opinion  the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the I opinion 
When the conduct is of such a tenor the Court only gets to a relevant piece of evidence namely the opinion of a person
It still remains for the Court to weigh such evidence and come to its own opinion as 1 ILR  309 823 to the factum probandum as to the relationship in question
 We also accept as
correct the view that section 50 does not make evidence of mere general reputation without conduct admissible as proof of relationship Lakshmi Reddi vs Venkata Reddi 1
It is necessary to state here that how the conduct or external behaviour which expresses the opinion of a person coming within the meaning of section 50 is to be proved is not stated in the section
The section merely says that such opinion is a relevant fact on the subject of relationship of one person to another in a case where the court has to form an opinion as to that relationship
Part 11 of the Evidence Act is headed  On Proof 
Chapter III thereof contains a fascicule of sections relating to facts which need not be proved
Then there is Chapter IV dealing with oral evidence and in it occurs section 60 which says inter alia   section 60
Oral evidence must in all cases whatever be direct that is to say if it refers to a fact which could be seen it must be the evidence of a witness who says he saw it if it refers to a fact which could be heard it must be the evidence of a witness who says he heard it if it refers to a fact which could be perceived by any other sense or in any other manner it must be the evidence of a witness who says he perceived it by that sense in that manner if it refers to an opinion or to the grounds on which that opinion is held it must be the evidence of the person who holds that opinion on those grounds
 If we remember that the offered item of evidence under section 50 is conduct in the sense explained above then there is no difficulty in holding that such conduct or outward behaviour must be proved in the manner laid down in section 60 if the conduct relates to something which can be seen it must be proved by the person who saw it if it is something which can be heard then it must be proved by the person who heard it and so on
The conduct must be of the 1 AIR 1937 PC 201
824 person who fulfils the essential conditions of section 50 and it must be proved in the manner laid down in the provisions relating to proof
It appears to us that that portion of section 60 which provides that the person who holds an opinion must be called to prove his Opinion does not necessarily delimit the scope of section 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion
Conduct as an external perceptible fact may be proved either by the testimony of the person himself whose opinion is evidence under section 50 or by some other person acquainted with the facts which express such opinion and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts the testimony is in each case direct within the meaning of section 60
This in our opinion is the true inter relation between section 50 and section 60 of the Evidence Act
In Queen Empress vs Subbarayan 1 Hutchins J said   That proof of the opinion as expressed by conduct may be given seems to imply that the person himself is not to be called to state his own opinion but that when he is dead or cannot be called his conduct may be proved by others
The section appears to us to afford an exceptional way of proving a relationship but by no means to prevent any person from stating a fact of which he or she has special means of knowledge
While we agree that section 50 affords an exceptional way of proving a relationship and by no means prevents any person from stating a fact of which he or she has special
means of knowledge we do not agree with Hutchins J when he says that the section seems to imply that the person whose opinion is a relevant fact cannot be called to state his own opinion as expressed by his conduct and that his conduct may be proved by others only when he is dead or cannot be called
We do not think that section 50 puts any such limitation
Let us now apply the tests indicated above to the testimony of the two witnesses Janardan Misra and 1 Mad 9 11
825 Dharanidhar Misra
As to Sushila Misrain she was aged about 43 when she gave evidence in 1946
It is unnecessary to consider in detail her evidence because if the evidence of the other two older witnesses be admissible that would be sufficient to support the finding arrived at by the courts below another evidence would also be admissible on the same criteria as the evidence of the other two witnesses
The first question which we must consider is if Janardan Misra and Dharanidhar Misra had special means of knowing the disputed relationship
Janardan Misra was aged about 62 in 1946 and he was related to the family of Baidyanath Misra
Kashi Nath Misra was his grand father and was a brother of Baidyanath Misra
Obviously therefore Janardan Misra had special means of knowing the disputed relationship being related to Baidyanath and therefore to Haripriya who was the second wife of Lokenath
He said in his evidence that he knew Lokenath Parichha had seen his first wife Satyabhama and remembered the marriage of Haripriya with Lokenath Parichha
Obviously therefore he fulfilled the condition of special knowledge
He further said that he attended the marriage of Malabati daughter of Lokenath when Lokenath was living
That marriage took place in the house of Lokenath
He also said that he was present when the first two daughters of Malabati were married and also at the time of the Upanayan ceremonies of plaintiffs I and 2
According to the witness Shyam Sundar Pujari a son of a sister of Lokenath acted as a maternal uncle at the time of the marriage of the eldest daughter of Malabati and Dayasagar Misra carried Radhika second daughter of Malabati at the time of her marriage
The question is whether these statements of Janardan Misra as to his conduct are admissible under section 50 Evidence Act
Learned counsel for the respondent has contended before us that even apart from section 50 the evidence of Janardan Misra is direct evidence of facts which he saw and which should be treated as directly proving the relationship between Lokenath 104 826 and his daughters
We do not think that learned counsel for the respondent is right in his submission that Janardan s evidence directly proves the relation between Lokenath and his alleged daughters Abalya Brindabati and Malabati
Janardan does not say that he was present at the birth of any of these daughters
What be says is that he was present at the marriage of Malabati which took place when Lokenath was living and in Lokenath s house he was also present at the marriages of the first two daughters of Malabati and also at the time of the Upanayan ceremonies of plaintiffs I and 2
This evidence in our opinion properly comes within section 50 Evidence Act it shows the opinion of Janardan Misra as expressed by his conduct namely his attending the marriage of Malabati as daughter of Lokenath and his attending the marriages and Upanayan ceremonies of the grandchildren of Lokenath
We do not think that it can be suggested for one moment that Janardan Misra attended the marriage and other ceremonies in the family as a mere casual invitee
He must have been invited as a relation of the family and unless he believed that Malabati was a daughter of Lokenath and the others were grand children of Lokenath to whom the witness was related he would not have said that he attended those ceremonies as those of the children and grand children of Lokenath
This in our opinion is a reasonable inference from the evidence and if that is so then the evidence of Janardan Misra was clearly evidence which showed his belief as expressed by his conduct on the subject of the relationship between Lokenath and his daughters and Lokenath and his grandchildren
Janardan also said that one Shyamsundar Pujari acted as maternal uncle at the time of the marriage of the eldest daughter of Malabati
There is some evidence in the record that Shyamsundar Pujari was son of Lokenath s sister
This was however disputed by the appellant
The High Court has not recorded any finding on the relation of Shyamsundar Pujari to Lokenath
If it were proved that Shyamsundar was a son of Lokenath s sister he would have special 827 means of knowledge as a relation of the family and his conduct at the time of the marriage of Malabati s daughter would also be admissible under section 50
But in the absence of any finding as to any special means of knowledge on the part of Shyamsundar the latter s conduct will not be admissible under section 50
We need not say anything more about Shyamsundar as the High Court has not based its finding on the conduct of Shyamsundar
The same criteria apply to the evidence of Dharanidhar Misra who was aged 96 at the time when he gave evidence
He was the maternal uncle of Janardan Misra
Dharanidhar s evidence showed that he knew Lokenath Parichha and his two wives Satyabhama and Haripriya
He also had special means of knowing the disputed relationship though he was not directly related to Lokenath
He said that Lokenath was two years older than him and the witness attended the marriages of Radhika and Sarjoo and the  thread  ceremonies of Lakshminarayan and Nimai
The witness further added that though he did not remember if he was invited to the marriage of Mandhata s daughters he was invited to the feasts which followed the marriage
He said that the feasts took place in the house of Mandhata and he attended the  gansana  and marriage feasts of Mandhata s daughters
The same criteria which make the evidence of Janardan Misra admissible under section 50 also make the evidence of Dharanidhar Misra admissible under the same section
We may in this connection refer to one of our own decisions Sitaji vs Bijendra Narain Choudhary wherein the following observations were made  A member of the family can speak in the witness box of what he has been told and what he has learned about his own ancestors provided what he says is an expression of his own independent opinion even though it is based on hearsay derived from deceased not living persons and is not merely repetition of the hearsay opinion of others and provided the opinion is expressed by conduct
His sources of 1 AIR 1954 SC 601
828 information and the time at which he acquired the knowledge for example whether before the dispute or not would affect its weight but not its admissibility
This is therefore legally admissible evidence which if believed is legally sufficient to support the finding 
It is true that Dharanidhar Misra was not directly related to the family of Lokenath
He was however distantly related to Haripriya
He was a friend of Lokenath Parichha and lived in the same neighbourhood
His evidence showed that he knew him and the members of his family quite well
That being the position his evidence that he attended the marriage ceremonies and the Upanayan ceremonies of several members of the family undoubtedly showed his opinion as expressed by his conduct
We are accordingly of the view that the evidence of both Janardan Misra and Dharanidhar Misra was admissible under section 50 and the learned Judges of the High Court committed no error of law in admitting and considering that evidence
We are concerned here with the question of admissibility only
As to what weight should be given to their evidence was really a matter for the courts below and both the learned Chief Justice and Narasimham J accepted the testimony of Dharanidhar Misra and Narasimham J further relied on the testimony of Janardan Misra also
We now proceed to a consideration of the first question namely the admissibility of the document Ext
The High Court has held the document to be admissible under sub section 5 of section 32 of the Evidence Act
We must first read section 32 5  section 32
Statements written or verbal of relevant facts made by a person who is dead or who cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable are themselves relevant facts in the following cases 1         2         829 3         4        5 When the statement relates to the existence of any relationship by blood marriage or adoption between persons as to whose relation ship by blood marriage or adoption the person making the statement had special means of knowledge and when the statement was made before the question in dispute was raised
6        7        8      
Now four conditions must be fulfilled for the application of sub section
5 of section 35 firstly the statements written or verbal of relevant facts must have been made by a person who is dead or cannot be found etc as mentioned in the initial part of the section secondly the statements must relate to the existence of any relationship by blood marriage or adoption thirdly the person making the statement must have special means of knowledge as to the relationship in question  and lastly the statements must have been made before the question in dispute was raised
There is no serious difficulty in the present case as to the first two conditions
Exhibit I contained a pedigree which showed that Lokenath had three daughters by his first wife the daughters being Ahalya Brindabati and Malabati it also showed that Ahalya had three sons Satyabadi Baikuntha and Dasarath of whom Baikuntha was one of the plaintiffs in the present suit and the other two plaintiffs Nimai and Lakshminarayan were shown as sons of Malabati
Exhibit I was signed by Satyabadi on his own behalf and on behalf of his brothers Baikuntha and Dasarath
Satyabadi is now dead
So far as Satyabadi is concerned there can be no doubt that the first two conditions for the application of sub section
5 of section 32 are fulfilled
It has been contended that as Dasarath and Baikuntha are alive Baikuntha being one of the plaintiffs and as the statement was the joint statement of three persons of whom one alone is dead the first and preliminary condition necessary for the application of section 32 is not 830 fulfilled
We do not think that this contention is correct and we are of the view that the position is correctly stated in Chandra Nath Roy vs Nilamadhab Bhattacharjee 1 that was a case in which the statements were recitals as to a pedigree and were contained in a patta executed by three sisters two of whom were dead and it was pointed out that the statement in the patta was as much the statement of the sisters who were dead as of the sister who was alive
In the case before us the statements as to pedigree in exhibit I were really the statements of Satyabadi who signed for self and on behalf of his brothers
Assuming however that the statements were of all the three brothers they were as much statements of Satyabadi as of the other two brothers who are alive
We therefore see no difficulty in treating the statements as to pedigree in exhibit I as statements of a dead person as to the existence of a relationship by blood between Lokenath and his daughters Ahalya Brindabati and Malabati the relationship which is in dispute now
The more important point for consideration is if the statements as to pedigree in exhibit I were made to use the words of sub section
5 before the question in dispute was raised
The High Court held that the statements were made ante litem motam
Learned counsel for the appellant has very strongly contended before us that the High Court took an erroneous view in this matter
Let us first see the circumstances in which exhibit I was filed and dealt with in Suit No 31 of 1917
We have said earlier what that suit was about
It was a suit brought by some of the reversioners for a declaration that the alienation made by Haripriya in favour of Indumati was without legal necessity and therefore not binding on the reversion after the death of Haripriya
The suit was filed on August 27 1917
On November 2 1917 certain other persons made an application to be added as parties to the suit on the footing that they had the same interest in the suit as the plaintiffs
That application was disposed of by the learned Subordinate Judge by the following order In a suit like the present it is not necessary 1 Cal
236 831 that all the reversioners should be made parties
So I reject the petition
 Exhibit I was filed on November 5 1917
In that petition Satyabadi alleged  The applicants are the legal claimants to inherit the properties left by Lokenath  the applicants therefore beg that they may kindly be made co defendants 
It was further alleged that the plaintiffs of that suit had no legal right over the share in dispute and this was followed by a pedigree given in para
IV of the petition
This petition exhibit 1 was put up on November 27 1917 and the learned Subordinate Judge disposed of the petition by the following order  The petition of Satyabadi Pati and others was put up in the presence of the plaintiffs pleader
He objects to the same
The petition is therefore rejected Ultimately the suit was decreed on August 31 1918 on the finding that the alienation by Haripriya was without legal necessity and did not bind the reversion after her death
The learned Judges of the High Court took the view that in Suit No 31 of 1917 no dispute arose as to the alleged relation between Lokenath on one side and Ahalya Brindabati and Malabati on the other
The dispute in that suit was about the validity of the alienation made by Haripriya and the suit having been filed by some of the reversioners on behalf of the reversion no issue was raised or could be raised as to whether Lokenath had any daughters by his first wife Such an issue was not relevant to the suit and furthermore nobody could anticipate in 1917 that the sons of a sister or half sister would be preferential heirs in the order of Mitakshara succession
They therefore held that the statements in exhibit 1 were ante litem motam and admissible under sub section
5 of section 32 Evidence Act
On behalf of the appellant it has been argued that for a declaratory decree in respect of an alienation made by a Hindu widow or other limited heir the right to sue rests in the first instance with the next reversioner and the reversioner next after him is not entitled to sue except in some special circumstances 832 and therefore the question as to who the next reversioner was arose in the suit of 1917 and exhibit I did raise a dispute as to who the last male owner was Lokenath or Satyanand and also showed that there was a dispute if the plaintiffs of that suit were entitled to the property in dispute there
The existence of such a dispute it has been argued affected the statements in exhibit I and what Satyabadi said therein were not  the natural effusions of a party who must know the truth and who speaks upon an occasion when his mind stands in an even position without any temptation to exceed or fall short of the truth  as per Lord Chancellor Eldon in Whitelocke vs Baker 1
Learned counsel has also relied on the decision in Naraini Kuar vs Chandi Din 2 where it was held that section 325 did not apply to statements made by interested parties in denial in the course of litigation of pedigrees set up by their opponents
We do not think that in Suit No 31 of 1917 any question as to the relationship of Lokenath with Ahalya Brindabati and Malabati arose at all
It is to be remembered that even according to the pedigree set up by the appellant one of the plaintiffs is a son of Ahalya and two others are sons of Malabati
What is now in dispute is whether Ahalya and Malabati were daughters of Lokenath Parichha
That is a question which did Dot at all arise for consideration in Suit No 31 of 1917  nor did it arise in the proceedings which the application of Satyabadi exhibit 1 gave rise to
Prima facie there is nothing to show that a dispute as to the relationship of Lokenath with Ahalya and Malabati arose at any stage prior to or in the course of the proceedings which arose out of exhibit I  that would be sufficient to discharge the onus of proving that the statements in exhibit 1 were ante litem motam
Natabar one of the plaintiffs in the suit of 1917 who might have given evidence of any such dispute if it existed said nothing about it
We have referred to the circumstances in which exhibit I was filed and disposed of
It is true that the order of the learned Subordinate Judge rejecting the petition exhibit 1 is somewhat cryptic and it does not show what objection the 7 1807 13 ves
510 514
8 All 467 833 plaintiff of that suit took and on what ground the learned Subordinate Judge rejected the petition
If however the various orders made by the learned Subordinate Judge particularly the orders dated November 2 1917 and November 27 1917 to which we have earlier made reference are examined it seems clear to us that the learned Subordinate Judge was proceeding on the footing that in a suit of that nature it was not necessary to make all the reversioners parties because the reversioners who brought the suit represented the entire body of reversioners
From the judgment passed in the suit exhibit Cl it does not appear that the question as to who the next reversioners were was at all gone into
That may be due to the circumstance pointed out by the High Court that Purushottam uncle of Janardan and Natwar was then alive
He was admittedly then the nearest reversioner but as he did not join as a plaintiff he was made a proforma defendant
The nearest reversioner having been added as a party defendant in the suit of 1917 no question of title arose in that suit as between the reversioners inter se
Such a question of title was wholly foreign to the nature of that suit
Nor do we find anything in the judgment exhibit Cl to show that it was ever suggested in that suit that the last male owner was not Satyanand
The sons of the half sister of Satyanand were not preferential heirs at the time and we agree with the learned Judges of the High Court that no question arose or could have arisen in that suit as to the relation between Lokenath on one side and Ahalya and Malabati on the other
That being the position the statements as to pedigree con tained in exhibit 1 were made before the precise question in dispute in the present litigation had arisen
It has next been argued by learned counsel for the appellant that in admitting exhibit I under section 325 the courts below assumed that Satyabadi had special means of knowledge as to the relation between Lokenath and his alleged daughters Ahalya and Malabati
The argument has been that unless it is assumed that Satyabadi is the grand son of Lokenath he can have 105 834 relationship
Learned counsel for the appellant has referred us to the decision in Subbiah Mudaliar vs Gopala Mudaliar 1 where it was held that for a statement in a former suit to be admissible under section 325 the fact that the person who made the statement had special means of knowledge must be shown by some independent evidence otherwise it would be arguing in a circle to hold that the document itself proves the relation and therefore shows special means of knowledge
In Hitchins vs Eardley 2 the question of the legitimacy of the declarant was in issue and the same question was necessary to be proved in order to admit his declarations
That was a jurv case and the ques tion relating to the admissibility of evidence being a question of law had to be determined by the Judge but the same question being the principal question for decision in the case had to be determined by the jury at the conclusion of the trial
In the difficulty thus presented prima facie evidence only was required at the time of admission
We do not think that any such difficulty presents itself in the case under our consideration
As to Satyabadi s special means of knowledge we have in this case the evidence of Janardan
Misra and Dharanidhar Misra which evidence independently shows that Satyabadi was the grand son of Lokenath being the son of his daughter Ahalya
It may be stated here also that it was admitted that Ahalya was Satyabadi s mother and that would show that Satyabadi had special means of knowledge as to who his mother s father was
Therefore we agree with the High Court that exhibit I fulfilled all the conditions of section 325 Evidence Act and was admissible in evidence
We have already said that it is not for us to consider what weight should be given to the oral evidence of Janardan and Dharanidhar or to the statements in exhibit 1
The courts below have considered that evidence and have assessed it
We do not think that we shall be justified in going behind that assessment
Learned counsel for the appellant wished also to 1 AIR 1936 Mad 808
2 1871 LR 2 P  D 248 835 argue the point that the Privy Council decision in Mst
Sahodra s case 1 was wrong and that a halfsister was not entitled to get the benefit of the amending Act of 1929
The Privy Council decision was given at a time when it was binding on the courts in India and it settled differences of opinion which then existed in the different High Courts
That decision was taken as settling the law on the subject and on the faith of that decision a half sister has been held in subsequent cases to be entitled to the benefit of the Amending Act
The High Court dealt with the case in 1951 after the Constitution had come into force and the Privy Council jurisdiction in Indian appeals had ceased
No point was taken on behalf of the appellant in the High Court that the Privy Council decision should be reopened and the question of the right of a half sister re examined
In these circumstances we did not allow learned counsel for the appellant to argue the correctness or otherwise of the Privy Council decision
The contentions as to the admissibility of exhibit 1 and the oral evidence of Janardan Misra and Dharanidhar Misra being devoid of merit the appeal fails
We accordingly dismiss the appeal with costs in favour of the contesting respondents
Appeal dismissed
1 1942 LR 69 IA 145


Summary:
The question involved in this appeal was whether under the customary law of the Punjab a sister was a preferential heir in respect of her brother s self acquired property to a collateral
The respondent the sister relied on a custom which she termed a special custom and on that basis claimed her brother s property and the appellant a collateral of the 8th degree of her brother resisted her claim relying solely on a general custom stated in paragraph 24 Of the Rattigan s Digest of the Customary Laws of the Punjab to the effect that sisters were excluded by collaterals in the matter of inheritance to non ancestral property
The Subordinate judge and the District judge on appeal held in favour of the appellant but the High Court reversed their decisions holding that there was no such general custom as recorded by Rattigan and that it was in any event for the appellants to prove that custom and this he had failed to do
The High Court also held that the respondent had succeeded in proving the custom set up by her
It was contended on behalf of the appellant that the High Court was in error in placing the onus of proving the custom on him since the custom was a general custom as stated by Rattigan
Held that no distinction could be made between a general custom or other customs so far as the need of proof was con cerned and the ordinary rule was that all customs general or otherwise had to be proved unless by repeated recognition by the courts a custom had become entitled to judicial notice under section 571 of the Evidence Act
Raja Rama Rao vs Raja of Pittapur 1918 LR 45 IA 148 relied on
Although there could be no doubt that Rattigan s Digest was of the highest authority on questions of custom of the Pun jab it was not possible regard being had to the formidable array of conflicting decisions of the courts as to its existence to take judicial notice of the custom mentioned in paragraph 24 of the Digest without further proof
Case law reviewed
Although the respondent had in the plaint relied on a custom and termed it a special custom that could not amount to an 782 admission which would obviate the necessity of proof of the general customs or its terms by the appellant
Even supposing that the High Court was not correct in its finding that the respondent had proved the custom entitling her to succeed as the custom set up by the appellant had not also been established section 5 Of the  applied and the case had to be decided by the personal law of the parties
The respondent was entitled to base her claim on the personal law although in her plaint she had relied on a custom
The personal law of the parties was the Hindu law and the respondent was entitled to succeed under that law also
Daya Ram vs Sohel Singh 110 PR 1906 Abdul Hussein Khan vs Bibi Sona Dero 1917 LR 45 IA 10 and Mst
Fatima Bibi vs Shah Nawaz Lah 98 relied on