Judgment Case ID: 249

Judgment:
l Appeal No. 61 of 1951. Appeal from the Judgment and Decree dated the 10th November	 1944. 	 of the High Court of Judicature at Lahore in Civil Regular First Appeal No. 259 of 1942	 arising out of the Judgment and Decree dated the 29th July	 1942	 of the Court of the Extra Assistant Settlement Officer and Assistant Collector of the 61 First Grade as Senior Sub Judge	 Gurgaon	 in Suit No. 35 of 1940 41. Dr. Bakshi Tek Chand	 (Ram Nath Chadha and Ganpat Rai	 with him) for the appellants. Naunit Lal for respondents Nos. 1	 3	 7 to 11 and 13 to 19. April 21. The Judgment of the Court was delivered by GHULAM HASAN J. This appeal is brought against the judgment and decree dated November 10	 1944	 of the Lahore High Court (Sir Trevor Harries C. J. and Mr. Justice Mahajan	 the present Chief Justice of this Court) reversing the judgment and decree of the Assist	ant Collector	 First Grade	 Gurgaon	 as Senior Subordinate Judge	 and dismissing the plaintiffs appellants ' suit. Dalmir	 Dilmor and Chhinga were three brothers and Amir Khan and Sharif Khan were the two collaterals. Alif Khan was the son of Amir Khan. The present dispute is between the descendants of the five branches of the family. The suit was brought by the descendants of Dalmir against the descendants of Dilmor	 Cbhinga	 Alif Khan and Sharif Khan. To this suit were also impleaded as defendants some of the descendants of Dalmir. The plaintiffs claimed a declaration that they along with defendants Nos. 17 to 19 are full owners in possession of 819 Bighas 19 Biswas land situate in village Manota Tehsil Ferozepore Jhirka. in the Gurgaon District	 that the defendants Nos. I to 16 had no right to claim partition of that land and that they were entitled only to the produce of land measuring 140 Bighas 19 Biswas possessed by them without payment of land revenue. The aforesaid defendants	 it was alleged	 were bound by the terms embodied in the agreement dated September II	 1861	 in the Wajib ul arz of that Settlement and repeated in subsequent Settlements which debarred them from any right to. claim partition. Defendants Nos. I to 16	 who are the contesting defendants	 pleaded in defence that the plaintiffs along with the pro forma defendants Nos. 17 to 19 were recorded in revenue 62 papers as owners of 1/5th share in the land in dispute	 while the contesting defendants were recorded as owners of the remaining 4/5th share and as such they were entitled to claim partition. The defendants denied that any agreement or condition in the Wajib ul arz restricting their right to partition was binding after the expiry of the term of the Settlement and contended that it could not operate as a bar to their claim to partition. The Assistant Collector trying the suit as a Civil	 Court under section 117 of the Punjab Land Revenue Act (Act XVII of 1887) decreed the claim. He held that the contesting defendants were entitled only to get produce of 140 Bighas and 19 Biswas of land in their possession without payment of land revenue and had no interest in the remaining land. This decree was reversed on appeal	 the High Court holding that the defendants are entitled to 4/5th share as proprietors	 that the original agreement repeated in subsequent Settlements was binding on the parties so long as the Settlements were in force	 that it ceased to have any effect after the expiry of the Settlements and that the renewal of its terms in the Settlement of 1938 39 was not binding as they were not agreed to by the contesting defendants. The learned Judges held that the judgment (D. 4) dated June 15	 1893 of the Chief Court of Punjab inter parties	 which held that the prohibition of partition contained in the Wajib ul arz did not survive the expiry of the period of the Settlement	 was binding upon them. They took the view that the contesting defendants being. proprietors	 the right of partition was inherent in their right of ownership. As a result of these findings the suit was dismissed. We have heard Dr. Tek Chand	 learned counsel for the appellants	 in support of the appeal at length but we are of opinion that there is no force in the appeal. The parties are Meos and the land in dispute is situate in village Manota in Tehsil Ferozepore Jhirka in Gurgaon District. According to the Gazetteer of Gurgaon District (1910) the Meos owned nearly the whole of the Ferozepore Tehsil and various other villages in Gurgaon. They are divided into several sub tribes	 and these sub tribes possess a strong feeling of unity and the 63 power of corporate action. It was stated that " in the mutiny the members of each sub division generally acted together; and district officers are advised to keep themselves informed of the names and characters of the men	 who from time to time possess considerable influence over their fellow tribesmen." (P. 60). The documentary evidence regarding the title to the property in dispute ranges over a period of four Settlements	 each Settlement being for a period of thirty years. The first Settlement was made in 1839 42	 the second in 1872 1879	 the third in 1903 08 and the last in 1938 39 which is the current Settlement. The village was assessed to annual revenue of Rs. 323 for the	 period of 30 years from 1246 to 1275 Fasli (corresponding to 1839 1862 A.D.) which was made payable by Dalmir Lamberdar who is described as sole owner. The Settlement papers were	 however	 lost during the mutiny and after taking fresh measurements the settle : ment papers were completed. Alif Khan	 Dalmir and Dilmor signed what is called an agreement binding them by all conditions	 provisions and declarations made at the time of the Settlement (P. 12). It is common ground that the property was originally	 granted in 1822 A. D. to Dalmir by Nawab Ahmad Bakhsh Khan Rais of Ferozepore Jhirka. The grant is not in writing and there is no contemporaneous record which could throw any light on its terms. Dalmir claimed to be the sole grantee with full proprietary rights. A number of documents are attached to the Settlement record of 1863. They are important as showing how the property was dealt with by the Settlement authorities from time to time and the state of the revenue records. The earliest document on record appe ars to be an agreement dated September 28	 186 1	 which is incorporated in paragraph 18 of the Wajib ul arz of village Manota. It says that the tenure of the village is zamindari. Dalmir is entitled to profit and liable for loss in respect of the entire village. The other biswadars are owners of the produce of the land cultivated by them but they pay no revenue. This	 it is stated	 is the benefit they enjoy (P. 35 = D. II). This document is signed in token of verification by Dalmir Lamberdar	 64 Dilmor	 Alif Khan Biswadar and Phusa Biswadar	 who 	ire described as proprietors. Phusa	 we are told	 is the alias of Chhinga. There is a report of Mr. John Lawrence (later Lord Lawrence)	 Settlement Officer referred to in the Gazetteer	 which says that the arrange ment then in vogue was that a few owners shared the profit and loss of the land revenue and the others were exempted from responsibility. Manota was one of the few villages which continued to follow the system (P. 179). Paragraph 2 of the Wajib ul arz which relates to the mode of partition	 after stating the area of the village as 837 Bighas and 9 Biswas	 says "When we	 the co sharers want to partition it	 we ourselves will do so of our accord in accordance with our shares shown in the Khewat papers or through the village Patwari in the	presence of Panchayat of the brotherhood. The new abadi (cultivation of new land) will be made with the consent of all the biswadars. One biswdar is not competent to make a new abadi". D. 10). P. 4 is a statement showing apportionment of Jama	 (i.e.	 Khewat money) in the village. After stating that the Settlement of the village was made in the name	 of Dalmir	 sole owner	 and that he alone was entitled	 to profit and liable for loss	 it goes on to say that Alif Khan son of Amir and Phusa son of Chhinga and Dilmor having cultivated a specified area of land be. came owners of the produce of the land without payment of rent and also became entitled to profit and liable for loss. Paragraph 10 of the Wajibul arz contains an agreement about trees. It shows that the trees standing in the house or field of the owner belong to him	 and he is competent to plant and cut them. So far as the occupancy tenants are concerned	 the trees standing in their houses also belong to them as they cultivate land but Dalmir alone had the right to cut or sell them. These are all the material documents pertaining to the Settlement record of 1863. We now come to the Settlement record of is an important document. Paragraph I which deals with the history of the village is reproduced below: ' "Fifty two years ago in Sambat 1880	 Dalmir	 Caste Meo	 Got Sogan	 along with Dilmor and Chhinga	 his real brothers	 took possession of the area of this village	 with the permission of Nawab Ahmed Bakhshi Khan Sahib. Rais of Ferozepore	 who granted him a Biswadari estate without payment of any Nazrana in lieu of the services rendered by him and made this desolate	 tract abad. He along with his brothers jointly remained in possession thereof and enjoyed profit and bore loss. After him Amir Khan became abad in the village and along with us	 proprietors	 remained in possession. Accordingly	 we the proprietors got his name	 entered as a Biswadar at the time of the Revised Settlement. After him Sharif Khan	 son of Ghariba	 who was also a collateral	 came to this village in Sambat 1916 and remained in possession along with us proprietors. Accordingly we got his name also recorded along with ours on the 14th September	 1863. We have up to this day been joint owners. This village has never been partitioned. Shares are given in the Khewat papers. 	 This document shows that although the name of Dalmir is mentioned as being the sole grantee by virtue of the services rendered by him to the Nawab, his two brothers also were in joint possession with him. Not only this but Amir Khan and Sharif Khan, who are both collaterals, also had joint possession of the village. They are all described as proprietors and their names are recorded as joint owners. The authenticity of this documentisbeyondquestion. It out sat the root of the theory of Dalmir being the sole owner. It is true that Dalmir was mentioned as the sole owner in D. 4 but the grant was treated by Dalmir himself as being the joint property of his two brothers and the two couaterals whether or not it was originally intended for the benefit of the family as understood in its widest sense. Paragraph 5 of the Wajib ul arz relating to the tenure of the village and the mode of payment of revenue 9 66 says that the village is bilijmal (joint) and that the sons of Dalmir shall continue to pay the Government revenue in respect of their own shares as well as the shares of the sons of his two brothers and the shares of the collaterals. The reason given is that no money is taken from the said co sharers on account of relationship. (P. 15). This statement is consistent only with joint ownership. Paragraph 7 of the Wajib ul arz also describes the tenure as Zamindari bilijmal and Repeats the statement that the other co sharers of Dalmir do not pay any rent or Jama in respect of the land cultivated by them on account of their relationship. No single sharer has the right to reclaim the Banjar area without the consent of all the proprietors (P. 19). This Wajib ul arz is verified by the proprietors, tenants, Bhandadars (a village servant to whom cultivation is allotted rent free), Kamins (menials) and the inhabitants of the village. It is admittedly signed by the ancestors of the parties (P. 22). The Khewat and the Khatauni (P. 31) prepared during the Settlement both record the five branches of the family as being in possession of a 1/5th share each. A similar entry is to be found in the Khatauni (D. 18). It appears that during the currency of this Settlement two suits for partition were filed in the Revenue Court but the partition was not allowed (P. 5). Coming to the Settlement of 1903 08 we find a Statement in clause 3 of the Wajib ul arz (D. 13) that the descendants of Dalmir alone could get the land partitioned in five equal shares but the descendants of the other four co sharers, who were, cultivating land without payment of revenue, owing to non rendition of account in respect of profit and loss of their respective shares, could not have the land partitioned. , Lastly we come to the Jamabandi of 1937 38 (P. 1). This shows that all the five branches were entered as being in possession of equal shares. Mehrab, grandson of Dalmir and one of the plaintiffs, who gave evidence as P. W. 5 admitted that defendants 67 Nos. I to 16 were shown as proprietors in the Jamabandi but he never raised any objection to it. He also admitted that Mehar Singh, grandson of Sharif Khan, sold his half share to Chhote Khan and Bhola, his coplaintiffs and that they did not challenge the same. We may now refer to the civil litigation which started in 1891. It arose upon the rejection of the applications for partition made by Alif Khan and Sharif Khan on September 24, 1890, by the Assistant Collector. Alif Khan filed a suit against the descendants of the three brothers and the descendants of Sharif Khan. In the plaint (D. 1) he claimed a declaration of 1/5th share of the entire village. The sons of Dalmir denied the claim. In their written statement (B. 2) they alleged that in previous proceedings they had deniedthe plaintiffs ' right to partition and that the defendants had been in adverse possession of the land and that the plaintiffs and others had been cultivating land as Bhandadars (village servants). The Subordinate Judge decreed the claim (D. 3). This decree was upheld by the Divisional Judge, but the judgment is not on record. In second appeal the Chief Court amended the decree by declaring that the plaintiff was entitled to 1/5th share in the village to be enjoyed subject to the qualifications and restrictions set forth in the Khewat and the Wajib ul arz which do not permit of his obtaining partition while the present Wajib ul arz was in force. This decree was made upon the admission made by the defendants in the course of the arguments. Paragraph 8 of the Wajib ul arz of 1877 (D. 12=p. 16) which was the subject of conflicting interpretation by the parties was interpreted by the Chief Court to mean that its effect was to prohibit general division among the co sharers while the Wajibul arz was still in force. They held that the five sons of Dalmir could separate their shares inter se but not the other co sharers. We are of opinion that this judgment which is inter partes finally set at rest the controversy between them by declaring that the parties were joint owners holding equal shares and constitutes res judicata. The judgment is also in conformity with the true effect of the documentary evidence on the 68 record. No doubt the name of Dalmir was entered. in some documents as the sole owner but that entry by itself is not conclusive and must be read in conjunction with the other entries in the Settlement record. Dalmir may have been the original grantee but his own conduct shows that he did not regard himself as absolute owner to the exclusion of his own brothers. Indeed according to the entry he even treated his collaterals on an equal footing. His description as sole owner in the circumstances carries no value. Whatever may have been the position at the time of the original grant, the subsequent conduct of the parties unmistakably shows that all the five branches were treated as owners in equal shares. Dalmir as the lamberdar was made responsible for the payment of the entire landrevenue. He was entitled to profit and was responsible for loss. The others were given less land and were exempted from payment of rent or revenue on account of relationship. This arrangement appears to have been fairly general in those days as appears from the report of Mr. (later Lord) Lawrence, Settlement Officer, re ferred to above. The arrangement was that ' a few owners shared the profit and loss of the land revenue assessment while the others were exempted. The Government was primarily interested in the payment of the revenue and they apparently found it more convenient to hold the head or the most influential member of the family as responsible for payment of the entire revenue leaving it to him to make such arrangement among his co sharers as he thought fit. In later Settlements the owners accepting responsibility for the payment of the land revenue did not find it profitable and the system gradually disappeared. Lord Lawrence remarks that at the third Settlement the number of villages which still continued the system was reduced to three and one of these was Manota in Ferozepore Tehsil (page 179). This accounts for Dalmir being called the sole owner and being made responsible for payment of Government revenue. By section 44 of the Punjab Land Revenue Act an entry made in the record of rights or in an annual record shall be presumed to be, true until the contrary 69 is proved. That entries in the Jamabandies fall within the purview of the record of rights under section 31 of the Act admits of no doubt. Section, 16 of the old Act (XXIII of 1871) laid down that entries in the record of rights made or authenticated at a regular Settlement shall be presumed to be true. We are satisfied that the materials on the record taken as a whole justify the view which has been taken by the High Court that the contesting defendants are joint owners and not mere cultivators who are not entitled to claim partition of the property. The judgment of the Chief Court also recognized the proprietary right of the defendants but qualified it by the declaration that so long as the Settlement was in force, they were not entitled to partition by reason of their agreement recorded in the Settlement papers. The Settlements of 1877 and 1908 09 have ceased to operate and the entry in the current Settlement of 1938 39 having been made under the orders of the Collector has no value when the contesting defendants did not agree to its being incorporated. The previous agreement was not one for perpetuity but for a limited period only and there is no reason in law why the prohibition against partition should be now enforced against the contesting defend. It has been held in a number of cases that the entry regarding agreement in a Wajib ul arz holds good during the period of the Settlement in which it is made and becomes inoperative when the Settlement has come to an end: Hira and others vs Muhamadi and Other8 (1); Allah Bakhsh and Others. Mirza Bashir uddin and Others (2) and Lieut. Chaudhri Chattar Singh vs Mt. Shugni and Another (3). We agree with the High Court in holding that partition is a right incident to the ownership of property and once the defendants are held. as co owners, their right to partition cannot be resisted. It was contended by Dr. Tek Chand that the appellants had acquired title by adverse possession over the defendants ' share for more than 56 years. This plea was raised in the plaint but evidently it w as not pressed (1)16 P.R. 1915 (P. 89). (2)1932 LIT.Rn. (3) A.I.R. 194 Lah. 70 for no issue was framed, nor any finding recorded by the trial Court. This point is not taken even in the grounds of appeal to this Court. The plea has no substance and was rightly rejected by the High Court on the ground that possession was under an arrangement between the co sharers. and no question of adverse possession could arise under the circumstances. We hold that there is no force in this appeal and dismiss it with costs. Appeal dismissed. 
1905	ivil Appeal No. 195 of 1963. Appeal from the judgment and decree dated March 24, 1959 the Allahabad High Court in First Appeal No. 76/47. C.B. Agarwala and J.P. Goyal, for the. appellant. S.T. Desai, M.V. Goswami and B.C. Misra, for the respondent No. 1. M.V. Goswami and B.C. Misra, for respondents Nos. 2, 7. and 8. R.S. Gupta, S.S. Khanduja and Ganpat Rai, for respondent No. 9. The Judgment of the Court was delivered by Hidayatullah, J. This appeal arises from a suit filed by respondents 1 and 2 for declaration of their rights to the Phulpur Estate, for possession of properties belonging to the Estate and for mesne profits. The Phulpur Estate is situated in Allahabad District. One Rai Bahadur Rai Pratap Chand who died on January 23, 1901, was the Zamindar of this Estate. After his death, his widow Rani Gomti Bibi succeeded to the Estate. Rani Gomti Bibi was considerably influenced by her brother Gaya Prasad and priests belonging to some temples. In the years following the death of her husband, Rani Gomti Bibi made many endowments involving vast properties and in July 1920, the Court of Wards assumed charge of the Estate which the Rani was mismanaging. On February 21, 1923, the Rani adopted one Bindeshwari Prasad and then applied to the Court of Wards under section 37 of the U.P. Court of Wards Act for permission to make the adoption. The Collector (Mr. Knox) made an enquiry and on April 3, 1923. made a report exhibit 79 stating that the evidence tendered before him was so conflicting and unreliable that he had come to the conclusion that the authority of Rai Pratap Chand to adoption by his widow was not proved. He, therefore, recommended that Rani Gomti Bibi be declined permission to make the adoption and the Board of Revenue accordingly refused permission. Rani Gomti Bibi, however, executed a deed of adoption on November 6, 1924 in favour of Bindeshwari Prasad. A suit was filed by Parmeshwar Dayal (who was the first plaintiff in the persent suit) in 1925 against Rani Gomti Bibi, Bindeshwari Prasad and the Court of Wards challenging the adoption made by the Rani. On August 21, .1926, the suit was decreed, and it was held that the adoption was contrary to section 37 of the U.P. Court of Wards Act, 1912 and was thus 29 invalid inasmuch as permission to take the adoption was not obtained from the Court of Wards. Rani Gomti Bibi then applied to the Court of Wards for permission to adopt Bindeshwari Prasad 's brother 's son Dwarka Nath who is the present appellant. Fresh enquiries about the authority of the husband were made by the then Collector Mr. Thompson. He examined witnesses from a list filed by Gaya Prasad in the earlier suit of 1925. After considering the evidence, the Collector recommended grant of permission under section 37 of the U.P. Court of Wards Act and permission was accordingly granted by the Board of Revenue. On November 28, i929, the Rani adopted Dwarka Nath at Phulpur. Immediately after this adoption the Court of Wards released the Estate and assumed charge of it again on behalf of Dwarka Nath who was a minor. On january 5, 1943, Rani Gomti Bibi died and the present suit was filed by Parmeshwar Dayal and one Amarnath Agarwal to whom Parmeshwar Dayal had assigned 6/16th share in the Estate. This suit was decreed by the Civil Judge of Allahabad who held inter alia that Parmeshwar Dayal was the nearest reversioner of Rai Partap Chand and was entitled to succeed him, and further that the adoption was invalid as there was no proof of authority given by Rai Pratap Chand to Rani Gomti Bibi to make the adoption. The suit for declaration and possession was decreed with mesne profits amounting to Rs. 88,000 against Dwarka Nath and the Collector and the Court of Wards who was also made a party to the suit. Three appeals were filed against the judgment and by a common judgment dated March 24, 1959, the High Court affirmed the decree except in respect of mesne profits. The High Court certified the case as fit for appeal to his Court and the present appeal results. At the hearing, Mr. C.B. Agarwala stated on behalf of the appellant that he did not challenge that Parmeshwar Dayal was the nearest reversioner of Rai Pratap Chand. We are also not now concerned with the endowments. Mr. Agarwala contended that the findings about authority by Rai Pratap Chand to the adoption were erroneous an required to be reconsidered. In seeking reconsideration of this finding. Mr. Agarwala relied both on facts and law. In so far as his claim is to have the evidence reconsidered, it may be stated at once that it is not the practice of this Court to examine the evidence at large specially when the High Court and the Court below have drawn identical conclusion from it. In this case, the evidence about the authority, such as it was, was considered both by the Trial Judge and the High Court and they could not persuade themselves to accept it. Following the settled practice of this Court we declined to look into the evidence for the third time, but we permitted Mr. Agarwala to raise arguments of law and we shall deal with those arguments now. 30 Mr. Agarwala relies upon ss 37 and 53 of the U.P. Court of Wards Act, 1912 and contends that inasmuch as the Court of Wards made an enquiry into the truth of the allegations that Rai Pratap Chand had given express authority to Rani Gomti Bibi to make an adoption after his death and found in favour of authority, the conclusion of the Court of Wards to grant permission and the reasons for the decision cannot be questioned by a civil suit. This argument, in our judgment, cannot be accepted. Section 37, of the U.P. Court of Wards Act, in so far as it is material. reads as follows: 37. Disabilities of wards A ward shall not be competent (a). . . . . (b) to adopt without the consent in writing of the Court of Wards; (c) . . . . Provided	 first	 that the Court of Wards shall not withhold its consent under clause (b) . . if the adoption . . . is not contrary to the personal or special law applicable to the ward . . . ". lm0 The section obviously places a hurdle in the way of adoptions by the wards which must be removed before the adoption can be valid. The section affects the competence of the Wards to make the adoption and as the consent is a pre requisite	 any adoption made without such consent must be ineffective. The section	 however	 does not make the sanction of the Court of Wards to cure illegalities or breaches of the personal law. Nor does the sanction make up for incompetence arising under the personal law. It is obvious that if the adoption is void by reason of the personal law of the person adopting	 the consent of the Court of Wards cannot cure it. Nor would ' the consent take the place of the essential ceremonies or the religious observances where necessary. Those matters would have to be determined according to the personal law in civil court of competent jurisdiction. Mr. Agarwala argues that section 53 is a bar to any suit questioning the adoption made after the consent of the Court of Wards to the adoption has been given. That section cannot be used in this manner. It reads: "53. (i) The exercise of any discretion conferred on the State Government or the Court of Wards bythis Act shall not be questioned in any Civil Court. (2) . . . . The section merely puts the exercise of discretion by officers acting under the Court of Wards Act beyond question. Thus if the Court of Wards gave or refused its consent to a proposed adoption a suit would not He either to cancel the consent or to compel it. This section	 however	 does not go to the length that after the consent of the Court of Wards the adoption itself cannot be question 31 ed at all. There are no words in the section to this effect nor can such a result be implied. If the Court of Wards gave its concurrence to a proposed adoption	 the bar created by section 37 of the Act would be removed. but it would not make the adoption immune from attacks in a Civil Court on any ground on which adoptions are usually questioned there. Mr. Agarwala claims that the reasons for the consent of the Court of Wards are a part of the consent and are within section 53(1). This cannot be accepted. No doubt	 the Court of Wards reached its own conclusion for purpose of section 37 that Raj Pratap Chand had accorded authority to Rani Gomti Bibi to adopt a son. but if the adoption was questioned in a civil court. the civil court would not be ousted of its jurisdiction to decide the question. All that the civil court would be compelled hold would be that the requirements of the Court of Wards Act ds to the consent of the Court of Wards were fulfilled. In our judgment	 the legal argument that after the consent of the Court of Wards the Civil Court was incompetent to reconsider the question of the authority given by the husband cannot be accepted. In deciding the question of authority	 the High Court rejected the oral evidence led before it and affirmed the conclusions of the trial Judge. The High Court considered this evidence both intrinsically and in the light of the attending circumstances and found it unacceptable. The trial Judge pointed out that as lawyers were present when Rai Pratap Chand 'is alleged to have given authority to his widow and as it was also suggested that that fact should be recorded	 it was unbelievable	 if the statements were true	 that written authority would not have been prepared then and there. The High Court did not content itself with accepting the opinion of the trial Judge but discussed the evidence de novo and rejected it. The High Court pointed out that Rai Pratap Chand was only 30 years old at the time of his death and his wife was 25 years old and he could not have abandoned the hope of having an issue. Evidence shows that the writing was put off because it was not thought that Rai Pratap Chand was dying. The High Court also pointed out that Rani Gomti Bibi executed between November 24	 1901 and August 19	 1904 4 documents making different endowments. In none of these documents	 she mentioned that she had been asked by her husband to make them. The High Court pertinently pointed out that the oral evidence showed that the declaration of the authority to his wife and the oral will to make the endowments	 were made by Rai Pratap Chand at the same time and these facts would have figured as the reason for the endowments in these documents. Mr. Agarwala contends that even if the reasons for the endowments might be expected to be expressed. it is not logical to say that the deeds should have recited the irrelevant fact that authority was given to Rani Gomti Bibi to make the adoption. This is perhaps right	 but the fact remains that the two directions of Rai Pratap Chand went hand in hand; and even if the fact of authority was not 32 recited in the documents	 one would expect at least the oral will to make the endowments to be mentioned. This shows that the whole story about oral directions to Rani Gomti Bibi was untrue. Mr. Agarwala then seeks to use the statements made by Gaya Prasad and the witnesses before Mr. Thompson. In the High Court this claim was based upon sections 11	 32 and 157 of the Indian Evidence Act. The High Court rejected these statements and declined to attach any value to them. Section 11 was not relied upon before us; but the other two sections were referred to in an effort to have that evidence read. Section 157 of the Indian Evidence Act lays down: "157. Former statements of witness may be proved to corroborate later testimony as to same fact: In order to corroborate the testimony of a w:mess	 any former statement made by such witness relating to the same fact at or about the time when the fact took place	 or before any authority legally competent to investigate the fact	 may be proved. " Two circumstances	 which are alternative	 are conditions precedent to the proof of earlier statements trader this section. The first is that the statements must have been made at or about the time when a fact took place. The fact here is the authority said to have been given by the husband in 1901. The statements were made on December 18	 1928	 27 years after the event. They cannot be said to have been made "at or about the time when the fact took place". Further	 as rightly pointed 'out by i;he High Court	 the Court of Wards was making an enquiry for the purpose of according its consent. It was not enquiring into the fact of the giving of authority as an 'authority legally competent '. That authority	 as we have pointed out already	 is the civil court for the civil court alone can finally decide such a question. It can do so even after the Court of Wards had reached a conclusion	 and contrary to that conclusion. Section 157 therefore cannot make the statements provable. Mr. Agarwala next relies on section 32(7) of the Indian Evidence Act to introduce the earlier statements. That sub section reads: "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 them selves relevant facts in the following cases: * * * * (7) When the statement is contained in any deed	 will or other document which relates to any such transaction as is mentioned in section 13	 clause (a). * * * * 33 Clause (7) makes relevant statements made in deeds	 wills and such other documents which relate to transactions by which a right or custom in question "was created	 claimed	 modified	 recognised	 asserted or denied" (to add the words of cl. (a)of section 13). The clause does not allow introduction of parole evidence	 see Field on the Law of Evidence 8th Edn. p. 202. Such parole evidence may be relevant under cl. (5) of section 32	 but that is not relied upon. We questioned Mr. Agarwala whether he wished to rely upon clause (5)	 but he did not wish to put his case under that clause and we need not therefore consider the application of that clause. We think Mr. Agarwala is right in taking this course	 be cause cl. (5) requires that such a statement should have been made before the quest	 ion in dispute was raised. The statements in question were definitely made after the question in dispute in the suit had already arisen	 because one enquiry had already been made by Mi '. Knox and the statements now relied upon were made in the second enquiry before Mr. Thompson. Mr. Agarwala next wishes to use the statements made by Gaya Prasad on March 14	 1926 "exhibit 72"; but that clearly is not admissible	 because when it was made in the suit	 Gaya Prasad was being examined as a party before issues were framed. In fairness to Mr. Agarwala it may be mentioned that he did not press the point after noticing the above fact. Mr. Agarwala` contends lastly that as Dwarka Nath was adopted on November	 28	 1929 and the present suit was filed on May 21	 1945	 after more than 15 years	 and as during this time. Dwarka Nath had been considered by everyone to be legally and validly adopted the suit ought to have been dismissed. It may be pointed out that Parmeshwar Dayal never accepted the adoption of Dwarka Nath. He had filed an earlier suit and questioned the competence of Rani Gomti Bibi to make the adoption of Bindeshwari Prasad. In that suit he had denied that Rai Pratap Chand had given authority to his wife to make the adoption of a son after his death. He consistently denied the validity of the second adoption and in these circumstances	 it cannot be said that he was concluded by any rule of law from questioning the adoption of Dwarka Nath after Rani Gomti Bibi 's death. On an examination of all the legal pleas against the judgment of the High Court we are satisfied that none of them avails the appellant. In so far as the question of fact are concerned	 we have already stated that we do not propose to go into them as it did	 not appear to us that there was any legal reason for reaching a different conclusion. We accordingly dismiss the appeal but order that the parties shall bear their own costs throughout. Appeal dismissed.

Summary:
Held	 that an entry regarding agreement in a Wajib ul arz holds good during the currency of the Settlement and does not survive the expiry of the period of Settlement. Hira and Others vs Muhamadi and Others (16 P.R. 1915 at P. 89)	 Allah Bakhsh and Others vs Mirza Bashir ud Din and Others and Lieut. Chaudhri Chattar Singh vs Mt. Shugni and Another (A.I.R. referred to.