[2008) 2 S.C.R. 1077

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BANT SINGH & ANR.

A v.

NIRANJAN SINGH(D) BY LRS,& ANR.

(Civil Appeal No. 7162 of 2005) -

FEBRUARY 15, 2008

[S.8. SINHA AND HARJIT SINGH 8EDI, JJ.]

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Hindu Law -Properly dispute - Transfer of property to heirs of daughter objected on the ground that the property was coparcenany -Relationship of parties disputed -Trial Court c decreeing the suit - First appellate court setting aside the decree -However, both the courts holding that the relationship _,- between the parties established - High Court appreciating the '

evidence of defence and holding that the same was not reliable, not being in conformity with s. 50 of Evidence Act- On appeal, D held: Decree set aside -Transfer to the heirs of daughter is -r correct as defence evidence establishing .relationship of parties - Defence evidence is admissible being in conformity with s. 50 of Evidence Act - Question of nature of property cannot be gone into by Supreme Court , as no substantial E question of law was formulated in that behalf in second appeal

- Evidence Act, 1872 -s. 50.

Deeds and Documents - Entry in revenue records - Evidentiary value -Held: Such entry is not decisive as to status of the party, but can be used for raising a presumption in respect ,. of possession - Evidence.

'C' left behind him two sons 'M' and' '8' and one daughter 'N'. Respondent (son of 'M') inherited the property of his father after his death. Since'8' died without leaving behind any first class legal heir, his property G devolved upon the respondent and appellants (children of his sister 'N'). Mutation was done in favour of the respondent and the appellants. Respondent filed a suit challenging mutation p'roceedings. He claimed that the

I 1077 H ---(

A property being a joint coparcenary property, 'N' (daughter of 'C') did not derive any interest therein; and that 'N' was

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not the daughter of 'C'. Defendant-appellants examine~ four witnesses. Trial Court decreed the suit. However, jt held that 'N' was daughter of 'C'. First appellate Court held

B that the property was not coparcenary and upheld the finding regarding relationship of 'N' with 'C'. In second appeal, High Court formulated substantial questions of

"" law regarding application of s.50 of Evidence Act. No fsubstantial question was formulated as to whether the c property was coparcenary. High Court appreciated the evidence of DWs 1 and 2 and set aside the order of first appellate court on the ground that the evidence of DWs 1 and 2 were not in conformity with s.50 of Evidence Act. ..

Hence the present appeal. , D Allowing the appeal, the Court

HELD: 1.1 It does not appear from the judgments of

""' the trial court as also the first appellate court that any evidence was adduced on behalf of the respondent to establish as to_ whose daughter 'N' was. Plaintiffs-

~ E Respondents, furthermore failed to establish as to how the order of the revenue authorities directing mutation of the name of the appellants herein was illegal.[Para 13J

[1083-8, . CJ

F Dofgobinda Paricha v. Nimai Charan Misra AIR 1959 SC 914relied on

~~- 1.2 The evidence of DW-1 and DW-2 are admissible in evidence being in conformity with the provisions of Section 50 of the Evidence Act. High Court for the reasons

G best known to it, did not advert to the depositions of the witnesses examined .on behalf of the appellants at all. The High Court could have interfered with the finding of fact 1" in a second appeal provided it applied the right tests, but it failed to do so. [Para 21J [1087-B, CJ

2. An entry made in the revenue records may not be

BANT SINGH & ANR. v. NIRANJAN SINGH(D) BY 1079

LRS.& ANR. [S.B. SINHA, J.] . y

decisive as regards the status of the parties but a A presumption in regard to possession can be raised on the basis thereof. [Para 14] [1083-D]

3.1 This Court cannot enter into the question as to whether the suit property was an ancestral property or B not. No substantial question of law in that behalf was 1' formulated. Out of the three substantial questions of law " the first two questions related only to application of Section 50 of the Indian Evidence Act. The third question formulated was not a substantial question of law at all. [Para 22] [1087-D, E] c

~ 3.2 As the respondent failed to persuade the High Court to formulate any substantial question of law on that point viz. that the property in question was a coparcenary property, this Court cannot formulate such a question and D ·; remit the matter to the High Court. [Para 22] [1087-E, F]

3.3 Whether there has been a severance of the joint family property between the two brothers is essentially a question of fact and, thus, the said question cannot be permitted to be reopened before this Court. [Para 23] E

[1087-F]

CIVILAPPELLATE JURISDICTION: Civil Appeal No. 7162 of 2005.

From the Judgment and Order dated 27.08.2003 of the F High Court of Punjab and aryana at Chandigarh in Regular Second Appeal No. 1290 of 1982.

P.N. Puri for the Appellants.

Manoj Swarup and Roh it Sohgaura for the Respondents.

~- The Judgment of the Court was delivered by

S.B. SINHA, J 1. Application of Section 50 of the Indian Evidence Act, 1872 is involved in this appeal which arises out of a judgment and order dated 27 .8.2003 passed by a learned H

A Single Judge of the Punjab and Haryana High Court in Regular

Second Appeal No. 1290 of 1982 allowing the appeal from a judgment and order dated 12.3.1982 passed by the Additional

District Judge, Patiala setting aside the judgment and decree dated 31.3.1981 passed by the Subordinate Judge, First Class, B Patiala decreeing the suit of the respondents. Before embarking upon the said question, we may notice the genealogical tree of the parties.

Chartu

. I Munshi (son) Bakhtawar (son) I Niranjan Singh died without

(Plaintiff) (Respondent) leaving any class 1 heir

I Nandi (daughter)

I I Bant Singh Bachan Kaur

(son) (daughter)

Defendant Nos. 1 & 2

(Appellant Nos. 1 & 2)

2. Chartu died in 1935. According to the appellants upon death of Chartu, the properties devolved upon his sons Munshi and. Bakhtawar in equal shares. Entries in that behalf in the E revenue records were made showing interest of Munshi and Bakhtawar in equal shares.

3. On or about 16.6.1956, Munshi Singh died. His share in the property was inherited by his son Niranjan Singh. To the same effect allegedly mutation in the revenue records was F carried out. Bakhtawar, the other son of Chart.u died on 25.10.1972. The share of Bakhtawar Singh in the said property was mutated in favour of Niranjan Singh, son of Munshi Singh and Bant Singh and Bachan Kaur, son and daughter of Nandi, being his class two heirs. On or about 28. 7.1978, the respondent G herein filed a suit challenging the said order passed by the Revenue Officer in the mutati.on proceedings, inter alia, claiming that the property was a joint coparcenary property and, thus, Nandi did not derive any interest therein. It was furthermore contended that Nandi was not the daughter of Chartu. The H learned Trial Judge in view of the pleadings of the parties framed

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BANT SINGH & ANR. v. NIRANJAN SINGH(D) BY 1081

LRS.& ANR. [S.B. SINHA, J.] .. y the following hssues : A

"i) Whether the disputed property is joint Hindu Family coparcenary property of the plaintiff and the deceased Bakhtawar Singh and his ancestors? OPP

ii) Whether deceased Nandi was the daughter of Chartu B as alleged? OPD

'1' iii) Whether defendant No. 1 and 2 are the son and daughter of aforesaid Nandi and are heirs of deceased Bakhtawar Singh? OPD

iv) Whether the plaintiff is in possession of the suit land? c

If not its effect? OPD

v) Relief."

4. In its judgment and order dated 31.3.198j, the learned D Trial Judge held that the property in suit being joint coparcenary

t~ property, Nandi did not inherit any interest therein. However, in regard to the status of the appellants, it was held that Nandi was the daughter of Chartu and sister of Bakhtawar Singh.

5. Appellants preferred an appeal thereagainst which, by E a judgment and order dated 12.3.1981, was allowed.

6. While upholding the findings of the learned Trial Judge in regard to the relationship of the appellants vis-'-vis the said Bakhtawar Singh holding that Nandi, was the mother of the appellants was the daughter of Chartu and the sister of F Bakhtawar Singh. It was also held that the property in suit was not a coparcenary property and, thus, Niranjan Singh and Bakhtawar Singh had half shares each therein.

7. Cross objection of the respondents in regard to the finding of the learned Trial Judge on issue Nos. 2 and 3 was G

~ also dismissed.

A second appeal was preferred thereagainst.

The following substantial questions of law were formulated by the High Court:- H

}- r ;

I A "a) Whether the evidence led by the defendants conforms • to the requirements of Section 50 of the Indian Evidence •

Act, 1872 and as such can be taken to have proved the relationship of Smt. Nandi, mother of defendants No. 1 and 2 with Bakhtawar Singh deceased?

B b) As to whether the learned courts below have returned I !-- their findings on the basis of such evidence which is not 'r'

admissible in view of Section 50 of the Indian Evidence Act, 1872 and are also based upon the mis-reading of the evidence led by the parties? c / c) Whether the courts .below having not dealt with the ,.i.... matter in controversy in correct perspective, the judgments

.....,....

are liable to be set aside being judicially perverse?"

8. The High Court, in its judgment, entered into the question D offact and sought to appreciate the evidence of D.W.-1, Jhaggar

Singh and DW.2 Hajura Singh and opined that the evidence led '-+ by them was not in conformity with Section 50 of the Indian Evidence Act. On the said finding, the Second Appeal was allowed.

9. Mr. P.N. Puri, the learned counsel appearing on behalf

of the appellants, submitted that the High Court committed a serious error of law in interfering with the findings of fact arrived at by the courts below.

10. Mr. Manoj Swarup, learned counsel appearing on ").-- behalf of the respondent, on the other hand, took us through the depositions of DW-1 and DW-2 as also the decision of this Court in Dalgobinda Paricha. Vs. Nimai Charan Misra [AIR

1959 SC 914] to contend that the evidence of the said witnesses

G was rightly held to be not conforming to the requirements of Section 50 of the Evidence Act. -1(

Thr learned counsel also made aa endeavour to raise a contention that the property, in question, being a coparcenary property, Nandi, in any event, did not inherit any right, title or H interest upon the death of Bakhtawar Singh.

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SANT SINGH & ANR. v. NIRANJAN SINGH(D) BY 1083

LRS.& ANR. [S.B. SINHA, J.] • )"

11. Relationship of Nandi as sister of Munshi Singh and A Bakhtawar Singh was sought to be proved by Jhaggar Singh, DW-1, Hajura Singh, DW-2, Bachan Kaur, DW-3 and Bant Singh, DW-4.

12. The learned Trial Court in its judgment on issue Nos. 2 B and 3 analysed the evidences of the said witnesses in great details.

13. It does not appear from the judgments of the learned Subordinate Judge as also the learned Additional District Judge that any evidence was adduced on behalf of the respondent to c establish as to whose daughter Nandi was. Plaintiffs/ Respondents, furthermore failed to establish as to how the order of the revenue authorities directing mutation of the name of the appellants herein was illegal.

14. An entry made in the revenue records may not be D t• decisive as regards the status of the parties but a presumption in regard to possession can be raised on the basis thereof.

15. The High Court, unfortunately did not refer to the depositions of the witneses examined on behalf of the E appellants at all. It proceeded only on the basis that the oral evidence of DW-1 and DW-2 do not pass the tests of Section 50 of the Indian Evidence Act.

16. DW-1, at the time of his deposition, wasaged 80 years.

---J He is the brother of Baksha Singh, husband of Nandi. He proved F the genealogy of the family of Chartu. Nandi, was the wife of his brother. He, therefore, had special knowledge in regard to relationship between her, on the one hand, and Munshi and Bakhtawar Singh, on the other.

17. He attended the marriage of Nandi. Bakhtawar and G

}; Munshi, according to him, used to come to their house. The

' relationship between the appellants and the said Munshi Singh -·.

and Bakhtawar Singh was, thus, within his special knowledge ..

He categorically stated the manner in which the appellants used to be treated by Munshi Singh and Bakhtawar Singh.

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In answer to a question put to him in cross-examination, he, in no uncertain terms, categorically stated that he had heard as well as saw Nandi calling Munshi Singh and Bakhtawar Singh as 'brother.' He attended the marriage of Nandi when he was only 15 years old.

18. To the similar effect is the evidence of DW-2, Hajura Singh who was another brother of Baksha Singh. He was aged 75 years on the date of his deposition.

DW-2 is a resident of the same village. He had also c watched the parties from a close quarter and, thus, could

depose about the conduct of Nandi vis-'-vis Munshi Singh an<; t Bakhtawar Singh.

He apart from other things testified that Bakhtawa~ Singh had come to attend the marriage of Bachan Kaur. He stated in D detail about the family of both the parties. He deposed that he had old dealings with Baksha Singh, being of the.same village.

He also attended the marriage of the brother of Baksha Singh, being a close relative.

19. In Dolgobinda Paricha (supra), this Court relied upon the evidence of two witnesses who had attended the marriage of t-laripriya and the Lokanath which was in dispute. In that case, the relationship of Ahalya and Malabati as the daughter of Lokanath was in dispute.

F Interpreting Section 50 of the Evidence Act, this Court held:

" ... 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 (1)

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BANT SINGH & ANR. v. NIRANJAN SINGH(D) BY 1085

LRS.& ANR. [S.B. SINHA, J.]

- y there must be a case where the court has to form an A opinion as to the relationship of one person to another; (

2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family B .. .,, or otherwise ha s special means of knowledge on the particular subject of relationship; in other words, the person must fulfill the condition laid down in the latter part of the -1 section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion c

means something more than mere 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 D +. 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."

It was furthermore held :

7 ... lfwe rememberthatthe offered item of evidence under E

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 F

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 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 G "' 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.

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A 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 fact which express such opinion, and ' as the testimony must relate to external facts which B constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case y ,.. direct within the meaning of Section 60. This, in our opinion, is the true interrelation between Section 50 and Section 60 of the Evidence Act. t c

20. Applying the aforementioned tests in regard to the '

evidences of' Janardan Misra' and 'Dharanidhar Misra', the two witnesses who were examined to prove the relationship between . ' Ahalya and Malabandi, it was opined;

D "9. 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 grandfather

E 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 F 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 G 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 1 and 2.

According to the witness, Shyam Sundar Pujari, a son of a sister of Lokenath, acted as a materral uncle at the time H of the marriage of the eldest daughter of Malabati and

SANT SINGH & ANR. v. NIRANJAN SINGH(D) BY 1087

LRS.& ANR. [S.8. SINHA, J.]

~ Dayasgar Misra carrie'd Radhika, second daughter of A - Malabati, at the time of her marriage." -< See also Shantinath Ramu Danole and Anr. Vs. Jambu -i Ramu Danole and Ors. [(1996) 11 SCC 88) and Munshi Singh

Vs. Mal Dass [(1977) 4 SCC 65).

21. Applying the same tests, we have no doubt that the a

.... ..,., evidence of DW-1 and DW-2 are admissible in evidence being in conformity with the provisions of Section 50 of the Indian Evidence Act. It will bear repetition to state that the High Court, , for the reasons best known to it, qid not advert to the depositions c of the witnesses examined on behalf of the appellants at all. The High Court could have interfered with the finding of fact in a second

~ appeal provided it applied the right tests, but it failed to do so.

22. The submission of Mr. Manoj Swarup, learned counsel for the respondent that this Court should enter into the question D as to whether the suit property was an ancestral property or not, r. in our opinion cannot be accepted. No substantial question of law in that behalf was raised. Out of the three substantial questions of law, as referred to hereinbefore, only the first two questions related to application of Section 50 of the Indian E Evidence Act. The third question formulated was not a substantial question of law at all. As the respondent failed to persuade the High Court to formulate any substantial question of law on that ___,. point vis. that the property, in question, was a coparcenary property, it is too late in the day to ask. this Court to formulate such a question and remit the matter to the High Court.

F -f

23. Whether there has been a severance of the joint family property between Munshi Singh and Bakhtawar Singh is essentially a question of fact and, thus, in our opinion, the said question cannot be permitted to be reopened before us.

24. For the reasons aforementioned, the impugned

~ judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. However, in the facts and circumstances of . this case, there shall be no order as to costs . i

K.K.T.

Appeal allowed.