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1995 DIGILAW 36 (HP)

HAKAM DEVI v. BHAG SINGH

1995-06-21

KAMLESH SHARMA

body1995
JUDGMENT Miss Kamlesh Sharma, J.— This appeal is directed against the decree and judgment dated 18-4-1985 passed by Additional District Judge, Mandi, District Mandi, whereby the appeal of the respondents-plaintiffs 1 to 4 was accepted and decree and judgment dated 28-2-1983 of Sub-Judge, Sunder-nagar, was set aside. The Sub-Judge had dismissed their suit, which was for possession of the land, house and cattle-shed comprised in Khasra Nos. 699,671,674,678,683,706, 680, 692, 1619/703 measuring 8-4-0 Bighas (hereinafter called the property in dispute). 2. The brief facts of the case are that the property in dispute was owned and possessed by one Gauri Singh. On his death, it was succeeded by his widow Kamla Devi She had adopted one Ghatot Kach as her son on 26-9 1951, vide adoption deed Ex PA. As such, the mutation of inhe ritance of Gauri Singh was sanctioned in favour of Ghatot Kach on 9-12-1951 vide Ex D-2 and he came in possession of the property in dispute. The respondents-plaintiffs, who are the reversioners of Gauri Singh, felt aggrieved and filed a civil suit for cancellation of the said adoption deed, in the Court of Sub-Judge, Sundernagar, which was decreed on 27-2-1954, whereby the adoption deed was held to be inoperative qua the rights of the reversioners after the death of Kamla Devi. Thereafter, Kamla Devi died and the respondents-plaintiffs filed the suit, out of which the present appeal has arisen, for possession of the property in dispute, on 1-5-1968 In the meantime, Ghatot Kach had executed a gift deed of the property in dispute in favour of his sons and daughters on 6-12-1963, who are impleaded as defendants in the suit. 3. The defendants resisted the suit and denied that the adoption deed Ex. PA stood cancelled by judgment dated 27-2-1954 Ex. PB holding the respondents-plaintiffs entitled to the possession of the suit property as reversioners on the death of Kamla Devi. However, it was admitted that the suit property belonged to Gaud Singh, on whose death it was inherited by Kamla Devi and had been in possession of Ghatot Kach since 1952. The trial Court dismissed the suit holding it time-barred. PB holding the respondents-plaintiffs entitled to the possession of the suit property as reversioners on the death of Kamla Devi. However, it was admitted that the suit property belonged to Gaud Singh, on whose death it was inherited by Kamla Devi and had been in possession of Ghatot Kach since 1952. The trial Court dismissed the suit holding it time-barred. The trial Court found that the suit was filed on 1-5-1968 after a period of 12 years from the date of death of Kamla Devi on 13-5-1955 The findings of the trial Court have been set aside by the Additional District Judge in the impugned decree and judgment. It has been held by the Additional District Judge that on the basis of evidence on record the date of death of Kamla Devi was 13-5-1956 and not 13-5-1955, as found by the trial Court, as such, the suit of the respondents-plaintiffs was within limitation and it was decreed. Hence, the present appeal which is under Paragraph 32 of the Himachal Pradesh Courts Order and this Court will appreciate the evidence on record to find out whether the findings of fact arrived at by the Additional District Judge are correct or not. 4. This Court has heard the learned Counsel for the parties and gone through the record. The controversy has narrowed down that what was the date of death of Kamla Devi, whether it is 13-5-1955 or 13-54956. If it is 13-5-1955, the suit of the respondents-plaintiffs is time-barred and if it is 13-5-1956, the suit of the respondents-plaintiffs is within limitation and they will be entitled to decree prayed for. It is not disputed that adoption deed Ex. PA in favour of Ghatot Kach, the predecessor-in-interest of the defendants, was cancelled and the respondents-plaintiffs were held entitled . to possession of the property in dispute after the death of Kamla Devi as reversioners of Gauri Singh by decree dated 27-2-1954 Ex, PB, which was not executed by the respondents-plaintiffs and they filed the present suit on 1-5-1968, So far the defence of the defendants that they have become owners of the property in dispute by way of adverse possession is concerned, it has been rightly rejected and the learned Counsel appearing for them has not agitated it further before this Court. The possession of the defendants as well as their predecessor-in-interest had become adverse only on the death of Kamla Devi in view of Explanation (b) to Article 65 of the Limitation Act. 5. For proving the issue that on which date Kamla Devi died and whether the suit filed on 1-5-1968 was not within limitation, the onus of which was on the defendants, deceased appellant-defendant Dhian Singh has appeared as DW 1 besides producing Mangat Ram DW 2, Karam Singh DW 3 and Dhian Singh DW 4. On the other hand, respondent-plaintiff Piar Singh has appeared as his own witness as PW 1 and produced Rattan Singh PW 2. According to Dhian Singh DW 1 the date of death of Kamla Devi was 13-5-1955. He stated that he remembered the date of death of Kamla Devi because he was informed by telegram on 7-6-1955. His statement has rightly not been relied upon by the Additional District Judge, as it was not natural that he was informed about the death of Kamla Devi after about 23 days by a telegram and the name of the sender of the telegram was also not disclosed. In the normal course a person would not remember the exact date of death of a relation after about 25 years. Similarly, the statements of Mangat Ram DW 2 and Karam Singh DW 3 are not trustworthy, as Mangat Ram DW 2 was not able to tell the date of death of his own mother and Karam Singh DW 3 could not tell his own date of birth. It cannot be bdisysd that they would have remembered the date of death of Kamla Devi in the normal course when they are admittedly not close relations and were just having acquaintance. Dhjan Singh DW 4, who was Secretary of Municipal Committee, Sundernagar, has stated that record of the year 1955-56 was not maintained in the Office of the Municipal Committee, Sundernagar. 6. Coming to the evidence of respondents-plaintiffs, Piar Singh PW 1 has produced the Diary Ex P-l of original plaintiff Bavan Singh, in which he had entered the date of death of Kamla Devi as 13-5.-1956 The relevant entries in the said diary are Ex. P-2 to P-4 in respect of date and time of death of Kamla Devi. He has categorically stated that these entries are in the handwriting of Bavan Singh. P-2 to P-4 in respect of date and time of death of Kamla Devi. He has categorically stated that these entries are in the handwriting of Bavan Singh. According to him, he had come across the diary Ex. P-l after the death of Bavan Singh, which had taken place on 1-2-19*8 Rattan Singh PW 2, who is admittedly son of paternal uncle (Taya) of Bavan Singh, has also stated that the entries Ex. P-2 to P-4 in diary Ex P-i are in the handwriting of Bavan Singh, according to which the date of death of Kamla Devi is recorded as 13-5-1956. The Additional District Judge has relied upon the statements of both these witnesses as well as diary Ex. P-l and entries Ex P-2 to P-4 for holding that the date of death of Kamla Devi was 13-6 1956 7. Shri Chhabil Dass, learned Counsel for the appellants-defendants, has vehemently urged that the diary Ex P-l and the entries Ex. P-2 to P-4 are not admissible in evidence, as the statement contained therein is self- serving statement of original plaintiff Bavan Singh. According to Shri Chhabil Dass, this evidence was not in existence at the time of filing the suit on 1-3-1968 and was concocted after the death of original plaintiff Bavan Singh His submission is that had diary Ex. P-l been in existence, it would have been submitted or relied upon at the time of filing the suit by original plaintiff Bavan Singh In reply, Shri B. K. Malhotra, learned Counsel for the respondents plaintiffs, has submitted that though the date of death of Kamla Devi was mentioned as 13 5-1956 in the plaint, yet it was not denied and asserted by the defendants in their written statement that her date of death was 13-5-1955 till they amended their written statement in the year 1977, whereafter the issue in respect of the date of death of Kamla Devi was framed. As such, according to Shri Malhotra there was no occasion for the original plaintiff Bavan Singh to submit his diary Ex P-l or rely upon it at the time of filing the suit. By the time the issue was framed and evidence of the respondents-plaintiffs was to be recorded, Bavan Singh had died on 1-2-1978 and in these circumstances, his diary Ex. P-l was produced by Piar Singh another respondent-plaintiff who is cousin of Bavan Singh. By the time the issue was framed and evidence of the respondents-plaintiffs was to be recorded, Bavan Singh had died on 1-2-1978 and in these circumstances, his diary Ex. P-l was produced by Piar Singh another respondent-plaintiff who is cousin of Bavan Singh. Shri Malhotra has further pointed out that diary Ex. P-l and the entries Ex. P-2 to P-4 being the statement of deceased Bavan Singh, who had the special means of knowledge of the date of death of Kamla Devi and the said statement was made before the question in dispute in respect of date of death of Kamla Devi had arisen, is admissible under section 32 (5) read with section 21 of the Indian Evidence Act. In support of his submission he has relied upon the judgments in Mahadeo Prasad v. Ghulam Mohammad, AIR 1947 All 161; Pusaram and others v. Manmal and others, AIR 1955 Raj 186 and Kalidlndi Venkata Subbaraju and others v. Chintalapati Subbaraju and others, AIR 1968 SC 947. 8. After giving its best consideration, this Court does not find any substance in the submission made by Shri Chhabil Dass. This Court finds that the Additional District Judge has rightly relied upon the diary Ex. P-l and entries Exs. P-2 to P-4 recorded therein to bold that the date of death of Kamla Devi was 13-5-1956. Shri Malhotra is right in pointing out that the date of death of Kamla Devi was specifically mentioned in paragraphs 1, 4 and the prayer clause of the plaint as 13-5-1956 and in paragraph 4 of the written statement filed on behalf of the defendants, the date of death of Kamla Devi was given as 13-5-1958, from which date the suit of the respondents-plaintiffs was very much within limitation and it was the reason that no issue in respect of date of death of Karala Devi was initially framed. The defendants prayed for amendment of their written statement to substitute the date of death of Kamla Devi as 13-5-1955 instead of 13-5-1958, which was allowed vide order dated 14-3-1975 and the amended written statement was filed somewhere in the year 1977, whereafter issue in respect of date of death of Kamla Devi was framed. The defendants prayed for amendment of their written statement to substitute the date of death of Kamla Devi as 13-5-1955 instead of 13-5-1958, which was allowed vide order dated 14-3-1975 and the amended written statement was filed somewhere in the year 1977, whereafter issue in respect of date of death of Kamla Devi was framed. Therefore, this Court has no hesitation to hold that the question in dispute in respect of date of death of Kamla Devi was not in issue initially and it had arisen only after the amendment of the written statement and by the time the said issue was framed and the respondents-plaintiffs were to produce their evidence, Bavan Singh had died on 1-2-1978. As such, his diary Ex. P-l and the statements Exs P-2 to P 4 cannot be held as self-serving statements and are admissible under section 32 (5) read with section 21 of the Indian Evidence Act. 9. Section 32 (5) of the Indian Evidence Act is :—- "32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant—-Statements, written or verbal, or relevant facts made by a person who is dead, or who cannot b£ 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 :— (i) (2) .. ... (3) (4) ... (5) Or relates to existence of relationship.—When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship 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." Section 21 of the Indian Evidence Act says that admissions are relevant and may be proved as against the person who makes them, or his representative-in-interest ; but they cannot be proved by or on behalf of the person who makes them or by his representative-in-interest. But there are exceptions to this rule and one of such exceptions is that an admission may be proved by or on behalf of the person making it, when it is of such a nature that if the person making it was dead, it would be relevant as between third persons under section 32, Entries Exs. P 2 to P-4 in diary Ex. P-l are the statements of admission of Bavan Singh, who was dead, as such, these were relevant under section 32 of the Indian Evidence Act between the surviving respondents-plaintiffs and the defendants, 10. The question arises whether the statement in respect of date of death of Kamla Devi relates to the existence of any relationship by blood, marriage or adoption and deceased Bavan Singh had special means of knowledge to make said statement and also whether said statement was made before the dispute of date of death of Kamla Devi had arisen as envisaged under section 32 (5) of the Indian Evidence Act The answer is in affirmative. Being one of the reversioners and related to Kamla Devi, whose husband Gauri Singh was his uncle and having obtained decree in their favour under which they could get possession of the suit property after the death of Kamla Devi, Bavan Singh had the special means of knowledge and he was very much concerned and had all the reasons to record the date of death of Kanila Devi in his diary. Now the question arises whether the statement of Bavan Singh in respect of date of death of Kamla Devi is statement relating to existence of relationship by blood, marriage or adoption. As held in Mahadeo Prasad v. Ghulam Mohammad (supra), a statement relating to the existence of any relationship by blood, marriage or adoption also includes the question as to the commencement of that relationship as well as termination thereof by death. It is also observed by learned Judges of the Supreme Court in Kalidindl Venkata Subbaraju and others v. Chintalapati Subbaraju and others (supra) that the provisions of section 32 (5 and 6) are not to be construed literally. It is also observed by learned Judges of the Supreme Court in Kalidindl Venkata Subbaraju and others v. Chintalapati Subbaraju and others (supra) that the provisions of section 32 (5 and 6) are not to be construed literally. The question before their Lordships was whether the statement made in the Will at the time of its execution regarding the age of a person is one relating to existence of any relationship by blood or marriage or adoption and admissible under section 32 (5) of the Indian Evidence Act. Relying upon earlier judgment of Privy Council in Mohammed Syedol Ariffin v. Yeohooi Gark, AIR 1916 PC 242, and other judgments, their Lordships have answered in affirmative. In the judgment of Privy Council, their Lordships have held that statement as to the age of a member of a family made by a close relation is admissible under section 32 (5) of the Indian Evidence Act on the principle that date of birth is commencement of relationship by blood, therefore, statement of age made by a person having special knowledge relates to existence of such relationship. Applying the ratio of these judgments, this Court has no hesitation to hold that statement pertaining to date of death of a person by his relation who has special means of knowledge relates to existence of relationship by blood as existence of relationship also includes termination of relationship by death. Therefore, this Court holds that statement in respect of date of death of Kamia Devi contained in Ex. P-l and entries Exs. P-2 to P-4 made therein was admissible and rightly relied upon by the Additional District Judge to hold that the date of death of Kamla Devi was 13-5-1956 and the suit filed by the respondents-plaintiffs is within limitation and it has been rightly decreed in their favour. 11. This Court does not find any substance in the submission made by Shri Chhabil Dass that it is not proved in accordance with law that entries Exs P-2 to P-4 in diary Ex P-l are in the handwriting of deceased Bavan Singh, as PW I and PW 2 have not stated that they were acquainted with his handwriting. It is not disputed that both of them were close relations and had occasion to be acquainted with the handwriting of deceased Bavan Singh. It is not disputed that both of them were close relations and had occasion to be acquainted with the handwriting of deceased Bavan Singh. Moreover, from the trend of the cross-examination it is clear that the defendants never disputed that diary Ex. P-l did not belong to deceased Bavan Singh and PW 1 and PW 2 had no occasion to be acquainted with his handwriting. It was enough for PW 1 and PW 2 to state that they were acquainted with the handwriting of deceased Bavan Singh and if the defendants wanted to dispute this statement, they could test it by asking the question as to how did they get acquainted with his handwriting, which has not been done in the present case. (See: Pusaram and others v. Manmal and others, AIR 1955 Raj 186]. No other argument is addressed by Shri Chhabil Dass. The result of above discussion is that there is no merit in this appeal and it is dismissed. No costs. Appeal dismissed.