Case: Sitaji &amp; Others Vs. Bijendra Narain Choudhary &amp; Others

2. The property in dispute belonged to one Naubat Lal Jha. He died in 1878 leaving a mother Mst. Sahajwati and two widows Mst. Nunuwati and Mst. Chhemawati. The mother died in 1909 and Mst. Nunuwati in 1911. The surviving widow died onThe second party plaintiffs claim to be the next reversioners and sue for possession along with the other plaintiffs who are purchasers of a 10 annas share.3. The defence is of acharacter. The first is an attack on the plaintiffs claim to be the next reversioners. That affects all the property in suit. The second is limited to the properties in Schedule III of the plaint.4. The family possessed certain deities. OnMst. Chhemawati dedicated the Schedule III properties to these deities and they have been in possession through their shebaits ever since. The defendants claim that they are entitled to these properties in any event. The deities are the defendants first party and the fourth defendant is their shebait. He has been described as the defendant second party. We are not concerned in appeal with the defendants third party.5. In the year 1933 the plaintiffs instituted a suit against the defendants and Mst. Chhemawati for a declaration that Mst. Chhemawatis deed of endowment dateddid not bind the reversioners. They succeeded in the first Court but the decision was reversed on appeal on the ground of limitation. The other points which arise hear was expressly left open for determination after Chhemawatis death.6. Both the lower Courts hold that the second party plaintiffs have proved their title as the next reversioners to Naubat Lal Jha. On the strength of this finding the trial court decreed the entire claim. The High Court however, upheld the defendants contention about the Schedule III properties and so modified the decree and dismissed the plaintiffs claim to that extent. Except for that the decree of the first Court was confirmed.7. Both sides appeal here.

Reasoning: y question there is whether the plaintiffs have proved that they are the next reversioners. Both Courts hold they have and as that is a concurrent finding of fact it cannot be attacked here unless it can be shown that the evidence on which the lower Courts have rested their decision is legally inadmissible.The following is the evidence on which the Courts below have acted. First there is the 5th plaintiff Khantar Jha (P. W. 6). He proves the entire genealogy. It is true he has not got personal knowledge of every step in the sense that he knew each one of the persons named : that would be impossible as many died before he was born. But personal knowledge is not necessary in these cases.A member of the family can speak in the witness box of what he was 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, 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.11. However, the lower Courts have not rested their decision solely on the 5th plaintiffs testimony. They used certain Panjis as corroboration and the question is, are they admissible inis the business of these Panjikars to collect this evidence about pedigrees and presumably they endeavour to collect correct information because what they put down about one man will affect a whole family and the families of those who marry into it. Also, there are checks and counter checks as information pours in from different members and branches of the family. They would consequently fall into disrepute if their books contained glaring inaccuracies. Therefore, these entries are relevant under section 32(2) (even if section 32(6) does not apply) to prove the relationships in dispute and they afford independent corroboration of the 5th plaintiffs testimony.19. Next comes Ex. 4(b). This is proved by Lakchmi Narain Jha (P. W. 31), the son of the now blind Panjikar Raghunath Jha (P. W. 40). The witness says that the entries in Ex. 4 (b) are written by hisBansi Jha.He also tells us that his grandfather died long before the survey which was made in 1901 and that he himself first was Ex. 4(b) about fifteen years before 1944 when he was deposing, that is, in 1929. These entries were therefore made before the dispute arose (section 32(6)) and are in any case admissible under section 32(2).Next, there are Exs. 4(d) and 4(e) These are proved by Kumar Lal Jha who was examined in the previous case. Kumar Lal was 48 years old when he gave his evidence. He says that Ex. 4(d) was written partly by his father, who is dead, and partly by an ancestor whose writing he cannot identify because they were written before he was born. His father died in 1896, so it is evident that those entries were made long before the present dispute arose. He is not clear about the earliest entries in Ex. 4(e) but he presumed they had been written by his father. Whether that is so or not, these Panjis are ancient and have come from proper custody. They also are admissible under section 32(2) and under section 32(6). Kumar Lal Jhas evidence is admissible under S. 33.22. The question of weight is not for us. It is enough to say that the evidence of the 5th plaintiff, taken with the Panjis, Exs. 4, 4(a) 4(b), 4(d) and 4(e), is sufficient to afford a good foundation for the decision of the two Courts of fact.We now turn to the plaintiffs appeal, Civil Appeal No. 35 of 1953. This relates to the Schedule III properties. They were purchased by Mst. Chhemawati and did not form part of the estate which came to her from her husband. As the reversioner can only claim property which belonged to the propositus, the burden is on the plaintiffs to establish that these properties formed part of Naubat Lals estate. There is no presumption that any particular property in the widows hands is part of her husbands estate because a widow can have properties of her own. Therefore, he who claims must establish his right to it.In the present case, there can be no doubt about the intention because the widow dedicated the properties to the family deities. It is true that she said in the deed of endowment that she was doing this in accordance with her husbands intentions and wishes but that only furnishes the reason for her action. As the income was hers to do what she liked with she had the right to make the dispositions whatever the reason. The plaintiffs have not shown anything which would indicate a contrary intention.We therefore agree with the High Court that the evidence here establishes that the widows intention was to keep the property separate and not add it to her husbands estate.