Research › Browse › Judgment

Madhya Pradesh High Court · body

1951 DIGILAW 18 (MP)

Kunji Lal v. Suba Lal

1951-03-12

DIXIT

body1951
JUDGMENT : This is an appeal by the plaintiffs in the suit from the decision of the District Judge, Bhind reversing the judgment and decree of the trial Court and dismissing the plaintiff's claim for a declaration of their title to the rights of a mortgagee and for possession of the mortgaged property together with the mesne profits. The plaint 6tated that the land in suit was mortgaged by the owner one Har Prashad with Kishan one of the granduncles of the plaintiffs, that on his death the mortgaged property was in possession of Kishan's son Murli and that after Murli's death his widow Musammat Khemarni took possession of the land as a successor in title to the original mortgagee. It was further alleged by the plaintiffs that on the death of Musammat Khemarni, the plaintiffs applied to the revenue authorities for entering their names in the revenue papers as mortgagees in respect of the land as the nearest reversioners; but that the revenue authorities allowed the defendant's objection that they were entitled to succeed to the land on the basis of a will made by Mt. Khemarni in their favour. The plaintiffs claimed that Kishan had a brother Pratap and that the plaintiffs are the grandsons of Pratap. It was also alleged by the plaintiffs that Kishan Pratap and another person Asharam were the sons of one Lalju and that the plaintiffs are now the sole surviving collateral heirs of Kishan and are entitled to the property. The defendant admitted the fact that Murli was the son of Kishan and Mt. Khemarni was Murli's wife. They denied the alleged relationship between Kishan and the plaintiffs. The defendant claimed to be entitled to the property on the basis that he was the daughter's son of Mt. Khemarni, and that she was the full owner of the land in suit and that she made a valid disposition of the property in his favour. 2. The trial Court decreed the plaintiff's claim. On appeal to the District Judge by the defendant, the plaintiffs' claim was dismissed on the sole ground that they failed to establish the alleged relationship between Kishan and them, and to show who the common ancestor was from whom they derived title. The learned District Judge did not think it necessary to express any view on the other issue in the suit. The learned District Judge did not think it necessary to express any view on the other issue in the suit. This appeal is directed against the decision of the District Judge, Bhind. 3. After hearing the learned counsel for the parties, I think the judgment of the Courts below should be affirmed upon the single ground that the appellants have failed to show that they are the heirs of Kishan and to show who the common ancestor was through whom they claimed title to the property in question from Kishan. The evidence of the appellants on the point consists of the depositions of Mahadeo Prashad, the plaintiff and of the witnesses Baldeo, Mahendra Singh, Ochhelal and Chhabiram. The defendant respondent did not lead any evidence in rebuttal as he thought that the plaintiff's evidence was utterly insufficient to prove the alleged relationship between them and Kishan. No party has put forward evidence of the kind contemplated in Section 32, Cls. 5, 6 and 7, Evidence Act or S. 50 of the Act as to the existence of the alleged relationship between Kishan and the plaintiff's father, grandfather and grand-grandfather who are now deceased. As has been observed by the Privy Council in 'Lakshmi Reddi v. Venkata Reddy', AIR (24) 1937 PC 201, the Evidence Act does not contain any express provision making evidence of general reputation admissible as proof of relationship. Their Lordships pointed out the necessity of putting forward evidence of the kind described in S. 32, Cls. 5, 6 and 7 and S. 50, Evidence Act to prove the existence of relationship between persons deceased whenever the question is in issue. The plff. Mahadeo Prashad and his witnesses in their evidence simply made ipse dixit statements as to the relationship between Kishan and the plaintiffs and as to the names of the plaintiffs' father and grandfather. To use the word of their Lordships of the Privy Council in 'AIR (24) 1937 PC 201, "These witnesses simply enunciated from the witness-box the proposition which they desired to prove". None of the witnesses made any statement showing that they had special means of knowledge about the relationship between the plaintiff and Kishan. The plaintiff Mahadeo Prashad said that his father was Jhandelal, that his grandfather's name was Pratap, and that his grandfather Pratap, Asharam and Kishan were three brothers. None of the witnesses made any statement showing that they had special means of knowledge about the relationship between the plaintiff and Kishan. The plaintiff Mahadeo Prashad said that his father was Jhandelal, that his grandfather's name was Pratap, and that his grandfather Pratap, Asharam and Kishan were three brothers. Mahadeo Prashad admits that he never saw Kishan, and that Kishan died long before the witness was born. Mahadeo Prashad also did not say whether he saw his grand father Pratap. Nor did he say whether his father Jhandelal had made the statement that Pratap was his grandfather, that Kishan was a brother of Pratap and that both Kishan, Pratap and Asharam were real brothers. The plaintiffs' witness Baldeo said that Kishan had two brothers. He then proceeded to say that he did not remember the names of the brothers. Subsequently, the witness stated that Pratap was the brother of Kishan and the plaintiffs are the grandsons of Pratap. Baldeo admitted that he did not know the name of the Kishan's father. The witnesses Ochhe Lal and Mahendra Singh do not say anything about the relationship between Kishan and the plaintiffs. Their deposition is mostly with regard to the relationship of the defendant with Mt. Khemarni. Mahendrasingh, however, stated that Pratap was the grandfather of the plaintiff. He does not speak to having seen Pratap or Kishan. Bearing in mind the age of these witnesses it is clear that the statements which they have made about the relationship of the plaintiff's grandfather Pratap and Kishan are statements as to matters which could not be within their personal knowledge. The witnesses did not state the source of information and special knowledge about the relationship between the plaintiffs' grandfather and Kishan. These witnesses should have been first asked by the parties producing them to state the source of their information about the relationship sought to be proved. As observed by the Privy Council in the decision referred to above, "it cannot be left to time or chance or cross-examination to disclose whether a statement has any basis which could give it value or admissibility". The plaintiffs' witnesses failed to show the basis on which they made the statements about the relationship between Kishan and the plaintiff's grandfather. That being so it cannot be held on such evidence that the appellants have succeeded in showing that they are the collateral heirs of Kishan. The plaintiffs' witnesses failed to show the basis on which they made the statements about the relationship between Kishan and the plaintiff's grandfather. That being so it cannot be held on such evidence that the appellants have succeeded in showing that they are the collateral heirs of Kishan. 4. Again, there is no evidence to show who the common ancestor was from whom the plaintiffs claimed to derive title to the land in suit from Kishan. Both the lower Courts have held that it is not proved that Lalju was the common ancestor. The learned counsel for the appellant did not challenge this finding but he contended that it was not necessary to prove who the common ancestor was. I am unable to accept this contention. The general rule of Hindu Law is that where the plaintiff claims as a collateral heir, he is bound to allege and prove his title through the common ancestor in all its stages, and the most important stage is of course the common ancestor himself. (See 'Kedarnath Doss v. Protab Chunder Doss', 6 Cal 626). As observed by the Calcutta High Court on 6 Cal 626, "though some persons may be said by the witnesses to be brothers, it is possible that they may in fact be cousins or related in some other degree or that their legitimacy may be doubtful or that they may have other brothers, who, if alive would take as heirs in priority to the plaintiffs." The decision of the Calcutta High Court was cited before the Privy Council in AIR (24) 1937 PC 201, and their Lordships of the Privy Council expressed the opinion that while they were not prepared to hold that any standard of special strictness is applicable to the proof of collateral relationship in India, the rule laid down in 6 Cal 626', should be followed with special strictness, where the evidence led by the party to establish the relationship is untrustworthy and insufficient. Here, also the evidence falls short of a reasonable standard in accordance with the Evidence Act required to prove the relationship existing between the persons deceased. Here, also the evidence falls short of a reasonable standard in accordance with the Evidence Act required to prove the relationship existing between the persons deceased. In these circumstances the learned District judge was, in my opinion, right in dismissing the plaintiff-appellant's claim on the simple ground that they have not shown the alleged relationship between them and Kishan and have also not proved the common ancestor through whom they claimed the title to the property in question from Kishan. 5. In the result, this appeal must be and is dismissed with costs.