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PETITIONER: STATE OF BIHAR

       Vs.

RESPONDENT: RADHA KRISHNA SINGH & ORS.

DATE OF JUDGMENT20/04/1983

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1983 AIR  684            1983 SCR  (2) 808  1983 SCC  (3) 118        1983 SCALE  (1)789

ACT:      Genealogies considerations  to be  kept in  view  while considering.      Evidence Act, 1872-Enties in public records-Prepared by a public  officer  in  discharge  of  his  official  duties- Probative value  of-Sections 13,  40, 41, 42 and 43-Recitale in judgments  not inter  partes-Section 32-Doctrine  of post litem motam-Appreciation  of oral  evidence in the matter of proof of  pedigree-Hearsay evidence  section 60-Statement of person deposing a fact known from a different source-How far can be  relied on Escheat-State not entering apperance-Plea- If  can   be  accepted  without  public  notice  to  persons interested.      Interpretation-Dictionaries-How far can be used.

HEADNOTE:      Maharaja  Harindra   Kishore  Singh   was  the   direct descendant of Debi Singh who was the son of Bansidhar Singh. Maharaja  Harindra  Kishore  Singh  died  issueless  leaving behind vast  properties in  the states  of Uttar Pradesh and Bihar. The original plaintiff, Bhagwati Prasad Singh was the direct descendant of Ramruch Singh but his relationship with Bansidhar Singh  had not  been established.  The plaintiffs- respondents basing their title as the nearest revisioners of Maharaja Harindra  Kishore  Singh  claimed  that  they  were entitled to immediate possession of the properties after the death of the widows of the Maharaja.      The Trial  Court held  that the plaintiffs had not been able to  prove any  linkage or  connection  between  Ramruch Singh and  Bansidhar Singh.  But the  majority of  the  High Court held  that all  the links  were clearly  proved by the plaintiffs and  that it had been found to their satisfaction that Ramruch was the son of Bansidhar. It also held that Ex. J which  was an entry made by a Public Officer in a register in the  discharge of  his  official  duties  squarely  falls within the  four corners  of section  35 of the Evidence Act and, is  therefore, admissible  in evidence.  The appellants however, claimed that it was not admissible in evidence. ^      HELD: In  a hotly  contested point, there is a tendency on the  part of  an interested person or a party in order to

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grab, establish  or prove  an  alleged  claim,  to  concoct, fabricate or  procure false genealogy to suit their ends. In relying on  the genealogy  put forward,  courts  must  guard themselves against falling into the trap laid by a series of documents or  a labyrinth  of seemingly  old genealogies  to support their rival claims. [820 H, 821 A] 809      The principles governing such cases are:      (i) Genealogies admitted or proved to be old and relied on in  previous cases  are doubtless  relevant and  in  some cases may  even be conclusive of the facts proved, but there are several considerations which must be kept in mind viz.:      (a)  Source of the genealogy and its dependability.      (b)   Admissibility of the genealogy under the Evidence           Act.      (c)  A proper  use in  decisions or  judgments on which           reliance is placed.      (d) Age of genealogies.      (e)  Litigations  where   such  genealogies  have  been           accepted or rejected. [821 B-E]      (2) On  the question  of  admissibility  the  following tests must be adopted:      (a)  The genealogies  of the  families  concerned  must           fall within  the four-corners of s. 32(5) or s. 13           of the Evidence Act.      (b)  They must not be hit by the doctrine of post litem           motam.      (c)  The genealogies  or the claims cannot be proved by           recitals, depositions  or facts  narrated  in  the           judgment which  have been held by a long course of           decisions to be inadmissible.      (d)  Where genealogy  is proved  by oral  evidence, the           said evidence  must clearly  show special means of           knowledge disclosing  the exact  source, time  and           the circumstances  under which  the  knowledge  is           acquired,   and   this   must   be   clearly   and           conclusively proved. [821 B-H]      The  majority  view  that;  Ex.  J.  is  admissible  is correct.  Section  35  of  the  Evidence  Act  requires  the following conditions  to be  fulfilled before a document can be admissible under this section:      (1)  the document  must be in the nature of an entry in           any public  or other  official book,  register  or           record,      (2)  it must state a fact in issue or a relevant fact,      (3)  the entry  must be made by a public servant in the           discharge of his official duties or in performance           of his  duties specially enjoyed by the law of the           country in  which the  relevant entry is kept.[829           H, 830 A-B] 810      A perusal  of Ex.  J. clearly shows that it is a report made by  an officer  of the  Government in  discharge of his official  duties.   It  was  written  by  a  serishtadar,  a Government officer,  on the direction of a high governmental authority. Ex.  J. being  an entry  in a  Register made by a public officer  in the  discharge of  his  duties,  squarely falls within  the four corners of s. 35 of the Evidence Act. It is  clear that the officer was entrusted with the task of ascertaining the  possession of  various landlords  for  the purpose of  taking suitable steps in the matter. It mentions a number  of persons through whom the plaintiffs claim their title and,  therefore, it  relates to  a relevant  fact. The question as to whether the relevant fact is proved or not is quite a  different matter  which has  nothing to do with the

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admissibility of  the document  but which assumes importance only when  the court  considers the  probative  value  of  a particular document.  In short, all the essential conditions of section 35 are fully complied with. [830 C-E]      Admissibility of  a  document  is  one  thing  and  its probative value, quite another: a document may be admissible and yet  may not  carry any  conviction and  weight  or  its probative value may be nil. [832 A]      In the  instant case  Ex. J.  has  no  probative  value because it  does not  disclose the  source  from  which  the Sheristadar collected  his facts nor does it show whether he consulted either contemporary or previous records or entries therein to  satisfy himself  regarding  the  correctness  of various statements  pertaining to the genealogy of landlords who were  in possession of the lands. Although he has stated that he  had taken  these facts from an account book, he had not given  any description or the nature of the account book and its contents. The fact of the matter, therefore, is that there  was   no  proper  verification  by  the  Sherishtadar regarding the  facts stated  in the  Report from any source. Therefore, it  is difficult  to place  any reliance  on  the document even  though it may be admissible in evidence. [832 C-G]           P.C. Purushothama  Reddiar v.  S. Perumal [1972] 2      SCR 646, applied.           Ghulam Rasul  Khan v. Secretary of State for India      in Council 52 I.A. 201, distinguished.           Guar Shyam  Pratap Singh  v. Collector  of  Etawah      A.I.R. 1946  PC 103;  Meer Usd-oollah v. Mussumat Beeby      Imaman, widow  of Shah Khadim Hossain, 1 M.I.A. 19 held      inapplicable.      A  report   based  on   hearsay  evidence   or  on  the information  given   by  an   illiterate  person  cannot  be admissible even  under section  35 of the Evidence Act. [837 G]           Brij Mohan Singh v. Priya Brat Narain Singh [1965]      3 SCR 861, followed.      In the  instant case  the Sherishtdar  had to depend on some unknown  persons who were not mentioned in it to gather his facts and so even if it is 811 admissible its  probative value would be almost zero. Ex. J. was admissible  because its  author is  no longer  alive. It contains information  which is  based on  what he  may  have heard from  third parties and therefore much value cannot be attached to such a report. [838 C, 839 B]      Brain v.  Preece Lord,  152 English Reports 1017; Mario Mangini Sturla  & Ors.  v. Filippo  Tomasso Mattia  Freccia, Augustus Keppel  Stevenson &  Ors., 1880 A.C. 623; Mercer v. Denne [1905] 2 Ch. 538, referred to.      Briefly stated  the law  relating to  the admissibility and probative value of the Ex. J is:      (i)   The exhibit  is clearly admissible under s. 35 of           the Evidence  Act, and  the finding  of  the  High           Court on this point is correct;      (ii) The Sheristadar, started writing Ex. J in the year           1810 and completed it in 1813:      (iii) It  mentions names of some persons who, according           to the  plaintiffs, were  their ancestors,  but on           carefully analysing  the document  it is  not very           clear as  to how  Ramruch Singh was connected with           Bansidhar Singh or Debi Singh.      (iv) Its  probative value is insignificant and is of no           assistance in proving the plaint genealogy.      (v)     It  was  a  part  of  the  record  of  Mirzapur

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         Collectorate and was summoned therefrom.      (vi) A  bare perusal  of the  exhibit  shows  that  the           Sherishtadar was  directed to embark on an enquiry           regarding  the   persons  who   were   in   actual           possession of  lands at  the relevant  time and it           was not  a part  of his  duty  to  embark  on  any           enquiry regarding the title of the persons holding           the lands,  nor did  he  attempt  to  do  so.  The           heading af  Ex. J itself shows that it is a report           regarding the  possession of  Taluqa Majhwa.  [841           A-F]      Even if  the exhibit  is taken  into consideration,  it will prove  not the  title of the plaintiffs-respondents but only the  possession of  lands held by some of their alleged ancestors. In  other words,  the documents  will not  be any evidence of  title in  the suit  out of  which  the  present appeals arise  which are  mainly concerned with the question of title and not with the question of possession. This apart the scheme  followed and  the modus  operandi adopted by the plaintiffs are  based on  an incorrect translation and wrong interpretation of  the meaning  of actual  words in Persian. [841 G-H]      Judgments of  courts are  admissible in  evidence under the provisions  of sections 40, 41 & 42 of the Evidence Act. Section 43 provides that those 812 judgments which  do not  fall within  the  four  corners  of sections 40  to 42  are inadmissible unless the existence of such judgment,  order or decree is itself a fact in issue or a relevant  fact under  some other  provisions  of  Evidence Act. Some  Courts   have  used   section  13  to  prove  the admissibility of  a judgment  as coming under the provisions of section  43. But  where there  is  a  specific  provision covering the  admissibility of a document it i, not open to. the Court to call into aid other general provisions in order to make  a particular document admissible In other words, if a judgment is not admissible as not falling within the ambit of sections  40 to  42 it  must  fulfil  the  conditions  of section 43; otherwise it cannot be relevant under section 13 of the  evidence Act.  The words  "other provisions  of this Act" cannot  cover section  13 because this section does not deal with judgments at all. [860 H, 861 A, 861 C-D]      A judgment  in rem,  like judgments  passed in probate, insolvency,  matrimonial   or  guardianship  proceedings  is admissible in  all cases  whether such  judgments are  inter partes or  not.  In  the  instant  case,  however,  all  the documents consisting of judgments filed are not judgments in l em, and there fore, the question of their admissibility on that basis  does not  arise. The judgments filed as Exhibits in this  case are judgments in personam, and therefore, they do not  fulfil the conditions mentioned in section 41 of the Evidence Act. [861 E-F]           John Cockrane v. Hrrosoondurri Debia & Ors, 6      M.I.A. 494;  Jogendro Deb  Roy Kut v. Funindro Deb      Roy Kut  14 M.I.A.  367; Gujju Lall v. Fatteh Lall      ILR 6  Cal. 171;  Maharaja Sir  Kesho Prasad Singh      Bahadur v.  Bahuria Mt.  Bhagjogna Kuer & Ors. AIR      1937 PC 69, referred to.           Gadadhar Chowdhury  and Ors. v. Sarat Chandra      Chakravarty and  Ors 44  CWN 935,  Seethapati  Rao      Dora v.  Venkanna Dora  & Ors  ILR  45  Mad,  332;      approved.      It is also well settled that statements or declarations before persons  of competent knowledge made ante litem motam are receivable  to prove  ancient  rights  of  a  public  or

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general nature. [865 H]      The admissibility  of such  declarations  is,  however, considerably weakened  if it  pertains not  to public rights but to  purely private  rights. It  is equally  well settled that declarations  or statements made post litem motam would not be  admissible because  in cases or proceedings taken or declarations made  ante litem motam, the element of bias and concoction is eliminated. Before, however, the statements of the nature  mentioned above  can be admissible as being ante litem  motam  they  must  not  only  be  before  the  actual existence of any controversy, but should be made even before the commencement of legal proceedings. [866 C-E]      This position  however cannot  hold good  of statements made post litem motam which would be clearly inadmissible in evidence. The  reason for this rule seems to be that after a dispute  has  begun  or  a  legal  proceeding  is  about  to commence, the  possibility of bias, concoction or putting up false pleas cannot be ruled out. [866 G-H] 813           Kalka Prasad  and Ors.  v. Mathura Prasad ILR      30 All. 510, Hari Bakh v. Babu Lal & Anr. AIR 1924      PC 126; Dolgobinda Paricha v. Nimai Charan Misra &      Ors. [1959] Supp. 2 SCR 814; and Ralidindi Venkata      Subbaraju &  Ors v.  Chintalpati Snbbaraju  & Ors.      [1969] 2 SCR 292, referred to.      (i)   A judgment  in rem  e.g, judgments or orders           passed  in  admirally,  probate  proceedings,           etc, would  always be admissible irrespective           of whether they are inter partes or not;      (ii) judgment in personam not inter partes are not           at all  admissible in evidence except for the           three purposes mentioned above.      (iii) on  a parity  of  aforesaid  reasoning,  the           recitals In a judgment like findings given in           appreciation of evidence made or arguments or           genealogies referred to in the judgment would           be wholly  in  admissible  in  a  case  where           neither the  plaintiffs  nor  the  defendants           were parties.      (iv)  The  probative  value  of  documents  which,           however ancient  they may be, do not disclose           sources of  their  information  or  have  not           achieved sufficient  notoriety.  is  precious           little.      (v)    Statements,  declarations  or  depositions,           etc., would  not be  admissible if  they  are           post litem motam. [869 A-F]      In the  instant case,  a detailed  examination  of  the documents shows  that the  plaintiffs as  pointed out by the discenting judge  have not  proved that  they are in any way directly connected  with Ramruch  Singh, Bansidhar  Singh or Debi Singh.  The majority  on the  other hand  seems to have been greatly influenced by the age of the documents or their nature rather than their contents, relevancy and weight. The majority also  did not  focus attention  on the  most  vital question whether  or not  the plaintiffs  have  proved  that Gajraj Singh,  the ancertor of the plaintiff, was in any way connected with  Ramruch  Singh,  Devi  Singh  and  Bansidhar Singh. [869 G-H, 870 A-B]      In considering the oral evidence regarding a pedigree a purely mathematical  approach cannot be made because where a long line  of descent  has to  be proved  spreading  over  a century, it  is’ obvious that the witnesses who are examined to depose  to the  genealogy would  have to  depend on their special means  of knowledge  which may  have  come  to  them

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through their  ancestors but,  at the  same time,  there  is great risk  and a  serious danger involved in relying solely on the  evidence of  witness given  from pure memory because the witness  who are  interested normally have a tendency to draw more from their imagination or turn and twist the facts which they  may have  heard from their ancestors in order to help the parties for whom they are deposing. The court, must therefore safeguard  that the  evidence of  such witness may not be  accepted as  it is based purely on imagination or an imaginary or  illusory source  of  information  rather  than special means  of knowledge  as required  by law.  The  oral testimony or  the witness  on this  matter is  bound  to  be hearsay 814 and their  evidence is  admissible as  an exception  to  the general rule  where hearsay evidence is not admissible. [888 E-H, 889 A]      In the  appreciation of evidence of such witnesses, the principles to be borne in mind are:      (1)   The relationship  or the  connection however           close it  may be,  which the witness bears to           the persons  whose pedigree  is sought  to be           deposed by him.      (2)  The nature and character of the special means           of knowledge  through which  the witness  has           come to know about the pedigree.      (3)     The  interested   nature  of  the  witness           concerned.      (4)   The precaution  which must  be taken to rule           out any  false statement  made by the witness           post litem  motam or one which is derived not           by means of special knowledge but purely from           his imagination, and      (5)     The  evidence   of  the  witness  must  be           substantially corroborated as far as time and           memory admit. [889 [B-E]           Bahadur Singh & Ors. v. Mohan Singh & Ors. 29      I.A.  Pershad   Chowdhry  &  Ors.  v.  Rani  Radha      Chowdharain &  Ors. 31  I.A. 160;  Abdul Ghafur  &      Ors. v.  Hussain Bibi  & Ors.  58 I.A.  188;  Mewa      Singh &  Ors. v.  Basant Singh & Ors. AIR 1918 P.C      49; Bhojraj  v. Sita  Ram &  Ors. AIR  1936 PC 66,      referred to. Escheat:      When  a  claim  for  escheat  is  put  forward  by  the Government, the  onus lies heavily on the appellant to prove the absence  of any  heir of  the respondent anywhere in the world. Normally,  the court frowns on the estate being taken by escheat  unless the  essential conditions for escheat are fully and  completely satisfied. Further, before the plea of escheat can  be entertained,  there must  be a public notice given by  the Government  so that  if there  is any claimant anywhere in the country, or for that matter in the world, he may come  forward to  contest the  claim of  the State. [919 E-F]      In the  instant case,  the States  of Bihar  and  Uttar Pradesh merely  satisfied themselves  by appearing to oppose the claims  of the  plaintiffs  respondents.  Even  if  they succeeded in  showing  that  the  plaintiffs  were  not  the nearest reversioners  of the  late  Maharaja,  it  does  not follow as  a logical  corollary  that  the  failure  of  the plaintiffs claim  would lead  to the  irresistible inference that there  is no  other heir  who could  at any  time  come forward to claim the properties. [919 F-G]      Dictionaries can  always be  referred to  in  order  to

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ascertain not  only the  meaning of  a  word  but  also  the general use of it. [842 F] 815      Coca-Cola Company  of Canada Ltd. v. Pepsi-Cola Company of Canada Ltd., AIR 1942 PC 40 referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal Nos. 494- 496 of 1975.      From the  Judgment and  Decree dated the 15th December, 1982 of  the Patna  High Court in First Appeal Nos. 85, 86 & 87 of 1966 respectively.      Dr. L.M. Singhvi, S.C. Mishra, U.P. Singh, S.N. Jha and L.K Pandey for the Appellant.      V.M.  Tarkunde,   U.R.Lalit,  D.N.   Goburdhan  and  D. Goburdhan for Respondents Nos. S 22.      Dr. Y.S.  Chitale and  Mrs. Sobha Dikshit for the State of U.P.      S.K Verma for the Intervener.      The Judgment of the Court was delivered by      FAZAL ALI,  J. These  appeals are  directed  against  a judgment of  the Special  Bench of  the Patna  High Court by which the  High  Court  decreed  title  suit  No.5/61  after reversing the  Judgment of  the trial court. It appears that after  the   death  of   Maharaja  Harendra   Kishore  Singh (hereinafter  referred   to  as  the  ’Maharaja’)  who  died issueless on the 26th of March 1893, a serious dispute arose about the  impartible  estate  left  by  him.  The  Maharaja claimed to  be a  direct descendant  of Raja  Hirday  Narain Singh who  was the admitted owner of the properties. Several persons came forward with rival claims of being the heirs to the properties  left by  the  Maharaja  which  consisted  of immovable and  moveable properties,  such as  lands, houses, jewellery, etc.  As a  result of  the hot contest by each of the claimants, one suit was filed at Varanasi being T.S. No. 3/55. That  suit was  filed by one Ram Bux Singh who claimed to be  the nearest  reversioner of  the late  Maharaja. That suit, however, appears to have died its natural death during the preliminary stages and was ultimately withdrawn on April 9, 1956, leaving only three claimants in the field.      Another suit was filed on 16th August 1955 in the Court of  Sub-Judge,  Patna  which  was  registered  as  T.S.  No. 44/1955. The 816 claimant in this suit was one Suresh Nandan Singh of Sheohar who had  put in  his claim before the Board of Revenue which had taken over the management of the entrie properties after the death of the widows of the Maharaja.      The third  suit being  T.S. No.  25/58 was filed by two sets of  plaintiffs who  had  entered  into  some  agreement inter-se. That  suit was  filed in  the Court  of Sub-Judge, Patna on  April 11,  1958. In  that suit, the main claim was put forward  by Raja Jugal Kishore Singh who claimed to have succeeded to the gaddi of the Bettiah Raj in the capacity of putri ka  putra of  Raja Dhrub  and on the extinction of the line of  Raja Delip Singh by reason of the death of Maharaja Harendra Kishore Singh, the right devolved on the plaintiff, Ambika Prasad Singh.      The fourth  suit was  filed on  March 12,  1959 in  the court of  Sub-Judge, Chhapra  which was later transferred to the court of Sub-Judge, Patna and renumbered as T.S. 5/1961. In this  suit also,  there were  two sets  of plaintiffs-one consisting of  plaintiffs who  had entered into a champartus

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agreement with  the other  set of  plaintiffs. In this suit, the principal  plaintiffs, Shri  Radha Krishan Singh, one of the  sons   of  Bhagwati,  Prasad  Singh,  claimed  to  have succeeded to  the estate of the late Maharaja as his nearest reversioner      We might  mention here  that the main contest before us has  been   between  the   plaintiff,  Radha  Krishan  Singh (hereinafter referred  to as  the ’plaintiff’) and the State of Bihar, supported by the State of Uttar Pradesh. So far as the other  two suits were concerned they were dismissed both by the  trial court and the High Court but the suit filed by Radha Krishan  Singh (T.S.  5/1961) was  decreed by the High Court with  a majority  of 2:1 Mr. Justice G.N. Prasad, with whom Mr. Justice A.N. Mukherji agreed, reversed the judgment of the  Subordinate Judge  and derceed  the  suit  of  Radha Krishan Singh  and rejected the claim of the State of Bihar. Mr. Justice  M.M. Prasad, however, took a different view and agreed with  the trial  court holding  that the  suit of the plaintiff was  rightly  dismissed.  He  accordingly  have  a dissenting judgment dismissing the usit plaintiff.      It is not necessary for us to embark on the history and other circumstances  of the case because Justice G.N. Prasad has dexterously  detailed the facts and circumstances of the entire case  and has candidly narrated the historical events leading to  the various  crucial stages  through  which  the litigation regarding the disputed properties 817 had passed.  We, therefore, need not repeat what has already been fully  discussed by  the High  Court. Suffice it to say that the eventful story of the present litigation opens with the death  of Maharaja  Harendra Kishorc  Singh which took a more serious  turn when  his two  widows, Maharani Sheoratan Kuer died  on March  24, 1896  and Maharani  Janki Kuer  was declared incompetent  to manage  the estate,  as a result of which the  management of the entire estate was taken over by the Court  of Wards.  As the  properties  in  question  were situated in  both the  States of Bihar and Uttar Pradesh the Courts of  Wards of  Bihar and Uttar Pradesh jonitly carried on the  management of  the properties.  Maharani Janki  Kuer resided at  Allahabad and  died childless  on  November  27, 1954.      After her  unfortunate death or even before, interested persons started  casting their  covetous and avaricious eyes on the  huge  properties  left  by  the  late  Maharaja  and litigation started  by putting forward rival and conflicting claims thus  making strenuous  efforts to  "turn chance into good fortune".  The last  and inevitable  step of  the drama long in  process  reached  its  climax  with  the  death  of Maharani Janki Kuer when as many as four suits, as mentioned above, were  filed claiming  the properties of the Maharaja, some as reversioners and some as putri ka putra, etc.      We would  like to make it clear that the three appeals, i.e., civil  appeal Nos. 494 to 496 of 1975, have been filed by the  State of  Bihar arraying  the plaintiffs  and  other claimants as  the respondents  in each  of the  appeals. The pivotal dispute  centres round  appeal No.  494 between  the State of  Bihar, supported  by the State of Uttar Pradesh on one side  and the  plaintiff, Radha  Krishan Singh  and  his champarters on the other.      We,  therefore,  intend  to  discuss  and  analyse  the evidence-oral and  documentary-only so far as the parties in appeal No. 494 are concerned.      Before  dealing   with  the   oral,   documentary   and circumstantial evidence it may be necessary to refer briefly to the background of the case which has doubtless been fully

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discussed by  the  courts  below.  Some  of  the  historical aspects,  however,   have  to  be  reiterated  in  order  to understand the view which we take in this case.      Coming to the history of the Bettiah Raj, we have to go back to  the 17th  century. The  undisputed position is that Bettiah Raj 818 was an  impartible estate having properties in the States of Bihar and Uttar Pradesh. The Raj was established by one Raja Ugra Sen  as far  back as the middle of 17th century and was commonly known  as  the  Riyasat  of  Sirkar  of  Champaran, consisting of  four parganas,  viz,. Majhwa,  Simrown, Babra and Maihsi. Raja Ugra Sen was succeeded by Raja Dalip Singh, Raja Gaj  Singh and  ultimately by  Raja Dhrub  Singh in the year 1715.  Raja Dhrub  Singh died  in the year 1762 without leaving any  male issue,  but leaving a daughter named Benga Babui who  had  married  one  Raghunath  Singh,  a  Bhumihar Brahmin of  Gautam gotra.  On the death of Raja Dhrub Singh, his daughter’s  son, Raja  Jugal Kishore  Singh entered into possession  of   the  estate  of  Bettiah  Raj  and  was  in possession thereof  at the  time when the East India Company assumed the  Government of  the province.  The Company could not tolerate any resistance from the Rulers and a battle was fought in  the course  of which Raja Jugal Kishore Singh was driven into  the neighbouring  State of  Bundelkhand in 1766 and the  entire estate  of Bettiah Raj was seized and placed under the  management of the officers of the Company. During the absence  of Raja  Jugal Kishore  Singh, Sri Kishen Singh and Abdhoot  Singh who  were the  sons of  Prithi Singh  and Satrajit Singh  respectively and  were younger  brothers  of Raja Dalip  Singh, enjoyed the confidence of the Company and were placed  incharge of the Bettiah Raj. How ever, in 1771, the Company  reinstated Raja  Jugal Kishore  Singh obviously because he probably tendered his apologies and made a solemn promise to  be loyal  to the  Company, as  a result of which negotiations started  between the  Government and Raja Jugal Kishore  Singh   regarding  the   estate  in   question  and ultimately he  was allotted  the  Zamindari  of  Majwha  and Simrown which  formed part  of the  Bettiah Raj  estate  and Babra and  Maihsi were  left in  the possession of Srikishen Singh and Abdhoot Singh. The East India Company had formally announced this  arrangement by  a decision  dated  July  24, 1771. Soon  thereafter, there  was some dispute between Raja Jugal Kishore Singh and the Company, as a result of which he was again  dispossessed by  the Company  as he failed to pay the Government revenue. Thus, the entire Sirkar of Champaran passed into the possession of the Government and was held by small farmers  on temporary  settlements. Raja Jugal Kishore Singh  received   an  allowance  for  maintenance  and  died sometime in  the year  1783, leaving a son named Bir Kishore Singh who  was succeeded  by his  eldest son, Maharaja Anand Kishore Singh  in 1790. Upon his death, leaving no issue, he was succeeded by his younger brother, Maharaja Nawal Kishore Singh who  was succeeded by his eldest son, Rajendra Kishore Singh who was 819 ultimately succeeded  by Maharaja  Harendra  Kishore  Singh, whose estate is the subject matter of this suit.      On 22nd September, 1790, Lord Cornwallis recommended to the Board  of Revenue  that estate  of  Majhwa  and  Simrown should be restored ro Raja Jugal Kishore Singh but as he had died by  this, time,  the Company directed that the heirs of Raja Jugal  Kishore Singh, Srikishen Singh and Abdhoot Singh be restored  the possession  of their  respective Districts. Bir Kishore  Singh,  was  not  at  all  satisfied  with  the

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decision of  the Board,  mentioned above, because he claimed the entire  province (Sirkar  of Champaran) but in obedience to the  order of the Governor-General, he took possession of the parganas of Majhwa and Simrown.      Thereafter, a  long-term litigation started between Bir Kishore Singh  and the  heirs of Raja Jugal Kishore Singh in respect of  Majhwa and  Simrown and  ultimately  suits  were filed which  were followed  by Memorial  to  the  Lieutenant Governor. It  appears that whereas in the earlier suit, Raja Deoki Nandan Singh’s predecessor had pleaded that Raja Jugal Kishore Singh  was the  son of  Raja Dhrub  Singh’s duaghter and, therefore,  not a  member of  the family  of Raja Dhrub Singh, Bir Kishore Singh had pleaded that Raja Jugal Kishore Singh having  been adopted  by Raja Dhrub Singh had become a member of  his family.  It was  pleaded in the Memorial that Raja Jugal  Kishore Singh, who belonged to the Gautam gotra, had been,  adopted by  Raja Dhrub  Singh who belonged to the Kashyap gotra, and had been appointed as his successor.      To cut  the matter short, it may be stated that a spate of litigation  followed putting  forward rival claims to the estate left  by Raja  Dhrub Singh. It may, however, be noted that in none of the suits instituted in 1895, 1896 and 1905, the question  as to  whether Raja  Jugal Kishore  Singh  had become a member of the family of Raja Dhrub Singh, by virtue of his  adoption as  putri ka  putra, was  decided despite a plea having  been raised  in all  those  suits.  As  already mentioned, out  of the  four suits  that were  filed, one of them was  withdrawn. In  the present  appeals, we  are  only concerned with  two rival  claims put forward to the Bettiah Raj on  the death of Maharaja Harendra Kishore Singh and his two widows.  In suit  No. 25/1958, the claimants were Ambika Prasad Singh  and others  claiming the  estate on  the basis that as  Raja Jugal  Kishore Singh succeeded to the gaddi of Sirkar as the adopted son and successor to Raja 820 Dhrub Singh  and not  as his  daughter’s son,  Ambika Prasad being nearest among the reversioners was entitled to succeed to the  estate after  the death  of the  widows. The suit of Ambika Prasad Singh was dismissed by the trial court as also by the special Bench of the High Court and some appeals were brought to  this Court  by certificate.  The  said  appeals, being civil  appeal Nos.  114-119 of  1976, in  Shyam Sunder Prasad Singh  & Ors. v. State of Bihar & Ors.(1) came up for hearing before  a Bench consisting of P.N. Bhagwati, A.P.Sen and E.S. Venkataramiah, JJ. This Court dismissed the appeals and rejected  the claim  of Ambika Prasad Singh holding that as Raja Jugal & Kishore Singh could not in law be considered as putri ka putra his claim to the estate left by Raja Dhrub as being the nearest reversioner, cannot succeed.      The claim of Radha Krishan Singh and others in suit No. 5 of  1961 was left to be decided by another Bench and it is these appeals  that have  now  been  placed  before  us  for hearing.      However, it  is not  necessary for  us to make a deeper probe into  the early  history of Bettiah Raj because in the instant case  the relevant  genealogy  for  the  purpose  of ascertaining the  ancestors of  the parties starts from Raja Hirday Narain  Singh  and  his  descendants  who  have  been referred to  in Ex.  J, a  report of  the serishtedar, which appears to be the sheet-anchor of the plaintiffs’ case.      Ex. Q-2,  a genealogy  filed by  the plaintiffs clearly shows that  Thakur Hirday  Narain Singh, who was the Raja of Bettiah after  the death of his father, Thakur Hansraj Singh had five  sons. One  of his sons was Bansidhar Singh who was alleged to  be the  ancestor of  the  plaintiffs.  Bansidhar

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Singh had only one son named Debi Singh.      After a  brief narration of the facts, mentioned above, before going  to the  oral, documentary  and  circumstantial evidence, it  may be necessary to state the well established principles in  the light  of which  we have  to  decide  the conflicting claims  of the  parties.  It  appears  that  the plaint genealogy  is the  very fabric  and foundation of the edifice on  which is built the plaintiff’s case. This is the starting point  of the  case of the plaintiff which has been hotly contested by the appellant.      In such cases, as there is a tendency on the part of an interested person  or a party in order to grab, establish or prove an  alleged claim,  to concoct,  fabricate or  procure false genealogy to suit their ends, 821 the courts  in relying  on the  genealogy put  forward  must guard themselves  against falling  into the  trap laid  by a series  of   documents  or  a  labyrinth  of  seemingly  old genealogies to support their rival claims.      The principles  governing such  cases may be summarized thus:      (1)   Genealogies admitted  or proved  to  be  old  and relied on  in previous  cases are  doubtless relevant and in some cases  may even  be conclusive  of the facts proved but there are  several considerations which must be kept in mind by  the   courts  before   accepting  or   relying  on   the genealogies:      (a)      Source   of   the   genealogy   and   its           dependability.      (b)   Admissibility of  the  genealogy  under  the           Evidence Act      (c)   A proper  use of  the  said  genealogies  in           decisions or  judgments on  which reliance is           placed.      (d)  Age of genealogies.      (e)   Litigations where such genealogies have been           accepted or rejected.      (2)     On  the   question  of  admissibility  the           following tests must be adopted:      (a)   The genealogies  of the  families  concerned           must fall  within the  four-corners of  s. 32           (5) or s. 13 of the Evidence Act.       (b)  They must not be hit by the doctrine of post           litem motam.      (c)  The genealogies or the claim cannot be proved           by recitals, depositions or facts narrated in           the judgment  which have  been held by a long           course of decisions to be inadmissible.      (d)   Where genealogy  is proved by oral evidence,           the said  evidence must  clearly show special           means  of   knowledge  disclosing  the  exact           source,  time  and  the  circumstances  under           which the  knowledge is  acquired,  and  this           must be clearly and conclusively proved, 822      We shall  now proceed  to scan and analyse the evidence in the light of the principles adumbrated above referring to the important  authorities on  the questions  arising out of the  evidence,  oral  and  documentary,  Although  both  the parties have cited a very large number of decisions we would not like  to load  or  crowd  this  judgment  with  all  the authorities cited before us and would confine ourselves only to the  important and relevant authorities of this Court and those of  the Privy  Council  and  we  shall  refer  to  the judgments of  the High Court only if there is no decision of

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the Privy Council or of this Court directly in point.      To recapitulate, the plaintiffs-respondents based their title as  being the nearest reversioners of the Maharaja and claimed to  be entitled  to immediate  possession after  the death  of  the  widows  of  the  Maharaja.  The  plaintiffs’ therefore, claimed  to be  the direct  descendants of Gajraj Singh and  Ramruch Singh  which was  the branch of Bansidhar Singh’s  son   which  remained  in  Baraini  and  after  the extinction of  the line of the Maharaja, the properties were to revert to the descendants of Gajraj Singh. The attempt of the plaintiffs  has been to show to the Court that they were direct descendants  of Gajraj  Singh  who  was  the  son  of Ramruch, Ramruch being the son of Bansidhar Singh.      Thus, for the purpose of this case, Bansidhar Singh may be taken  to be admittedly the ancestor of Maharaja Harendra Kishore Singh.  The only  point of  dispute and  the pivotal controversy centres  round the question as to whether or not the plaintiffs  have proved  their case  that they were also the direct descendants of Bansidhar Singh so as to claim the properties in  dispute on  the death of the Mahraja. Both on the question  of genealogy and other matters, a mass of oral and documentary  evidence consisting  of documents, reports, judgments, plaints,  entries in  registers, etc.,  have been produced and will be considered at the relevant stage.      The defence of the appellant is of a negative character inasmuch as the defendants-appellants have denied the claims made by  the plaintiffs-respondents  and but  them to strict proof of their case. The defendants, however, have been fair enough to  concede that Bhagwati Prasad Singh, father of the plaintiff has  been proved  to be  a  direct  descendant  of Gajraj Singh  but have  flatly denied  that  Ramruch  Singh, father of  Gajraj Singh  had any connection either with Debi Singh or  Bansidhar Singh.  In other  words, the plaintiffs’ genealogy, 823 so far  as they  are concerned,  has been  accepted  by  the appellants, upto  the stage  of Ramruch  Singh.  The  courts below also  on a  consideration of  the oral and documentary evidence have  endorsed the  stand taken  by the  defendants that Bhagwati  Prasad Singh has been proved to be the direct descendant of Gajraj Singh being 7th in that line.      It is well settled that when a case of a party is based on a  genealogy consisting  of links, it is incumbent on the party to  prove every  link thereof  and even if one link is found to  be missing  then in  the eye  of law the genealogy cannot be  said to  have been  fully proved.  In the instant case,  although   the  plaintiffs  have  produced  oral  and documentary evidence  to show  that Ramruch  Singh and  Debi Singh were  brothers being  the sons of Bansidhar Singh this position was not accepted by the trial court as also by M.M. Prasad,  J.   who  dissented   from  the  other  two  Judges constituting the Special Bench who had taken a contrary view and had held that the plaintiffs had fully proved the entire genealogy set-up  in the  plaint. This, therefore, makes our task easier  because we  need  not  discuss  in  detail  the evidence  and  documents  to  show  the  connection  of  the plaintiffs upto the stage of Gajraj Singh though we may have to refer  to the  evidence for  the purpose  of deciding the main issue, viz., whether or not Gajraj Singh was the son of Ramruch Singh  and Ramruch Singh a brother of Debi Singh and son of Bansidhar Singh.      Before going  into  the  evidence,  we  would  like  to extract the  findings of the courts below on the question of title. The  trial court had clearly held that the plaintiffs had not been able to prove any linkage or connection between

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Ramruch and  Bansidhar but  the majority judgment consisting of G.N. Prasad and Mukherji, JJ. disagreed with this finding and held  that all  the links  were clearly  proved  by  the plaintiffs and it has been proved to their satisfaction that Ramruch Singh  was the son of Bansidhar Singh. On this point the finding of the majority may be extracted thus           "I have  considered the  oral and documentary      evidence adduced  by the  parties on  the point of      genealogy and  in my  opinion, it  has  been  well      established by  the evidence  adduced in this case      on behalf of the plaintiffs of Title Suit No. 5 of      1961 that Bansidhar Singh was a common ancestor of      Maharaja Harendra Kishore Singh and Bhagwati 824      Prasad Singh (father of plaintiffs 1 to 8 of Title      Suit No.  5 of  1961)." (Vol.  VII), p.  247, para      109)      M.M. Prasad,  J. however,  dissented from  the  majorty judgment and  agreed with the view taken by the trial court. In this connection, his finding may be quoted thus:           "A  discussion   of  the  entire  documentary      evidence on the point of genealogy thus shows that      there is  no document  which can  be safely relied      upon for  the purpose  of proving the two links in      the genealogy  of the  present  appellants.  viz.,      that (1)  Bansidhar was  the father of Ramruch and      (2) Ramruch the father of Gajraj.                                         (P-491 para 457)      ...                   ...                       ...           In conclusion,  therefore, I  find that there      is not  a single document which can be relied upon      to prove  the two  disputed  links,  namely,  that      Gajraj was  the son of Ramruch and Ramruch the son      of Bansidhar.                                         (P. 506 para 480)      ...                      ...                     ...           Turning to  the oral  evidence which  I  have      discussed above  I find that there is not a single      witness who  can be relied upon for the purpose of      proving the aforesaid two links. (P. 506 para 480)      ...                      ...                      ...           Therefore, I  find  that  the  two  links  in      respect of  which there is no reliable documentary      evidence have  also not  been proved  by the  oral      evidence  on   the  point   those  two  links  are      Bansidhar being  the father of Debi and Aini being      the father  of Raghunath.  The consequence thereof      is that the plaintiffs of Title Suit 5 have failed      to  prove  that  Bansidhar  was  the  ancestor  of      Maharaja Harendra  Kishore. I  have  already  held      that they have also failed to prove that Bansidhar      was their  ancestor, having  failed to  prove that      Bansidhar was  the father  of Ramruch  and Ramruch      the father of Gajraj. In the result, I hold that 825      the plaintiffs  of Title  Suit 5  have  failed  to      prove the  genealogy set  up by them and thus they      have failed  to prove  that they  are the  nearest      heirs of  Maharaja Harendra  Kishore". (Vol. VIII,      p. 533, para 533)      There  is,  however,  one  common  factor  between  the majority and  the dissenting  judgments and  it is  that the plaintiffs  have   proved  beyond   reasonable  doubt  their connection with  Gajraj Singh.  This, therefore, has reduced the controversy  to the  bare minimum  and has shortened the

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arena of  the dispute  that we  are called upon to consider. Even so,  this short controversy itself is a stupendous task to determine  and we  will have to approach this aspect with great care  and  caution,  deliberation  and  circumspection because two learned Judges of Patna High Court had negatived the plea of the defence and accepted that of the plaintiffs.      In order  to understand  the various shades and aspects of the  case  and  its  historical  background,  it  may  be necessary to  extract the  plaint genealogy even at the risk of repetition.  In fact,  the plaintiffs  themselves did not append any genealogy to their plaint but G.N. Prased, J. has constructed a  genealogy,  based  on  the  recitals  in  the plaint, for  the purpose  of convenience which is reproduced here (reproduced on pages 826-27).      The  position  that  emerges  from  a  perusal  of  the pleadings of  the parties is that so far as the left side is concerned, the  plaintiffs have  not  proved  their  linkage either with  Debi Singh or Bansidhar Singh or Ramruch Singh. The late  Maharaja (Harendra  Kishore Singh)  was  a  direct descendant of Debi Singh who appears on the Left Side of the genealogy whereas  the original  plaintiffs Bhagwati  Prasad Singh was  the direct  descendant of Ramruch Singh appearing on the Right Side of the genealogy while all other links are admitted the  dispute  centres  round  Ramruch  Singh  being related to  Bansidhar Singh in any way either as a father of Gajraj Singh  or as  a brother of Debi Singh. Apart from the majority judgment, even M.M. Prasad, J., as indicated above, has found  that the  plaintiffs have  proved that  they were direct descendants of Ramruch Singh. In this connection, the finding of M.M. Prasad, J. may be quoted thus:           "So far  as the genealogy of these plaintiffs      is concerned,  their claim to the effect that they      are descended  from Gajraj is not disputed in this      case. Learned counsel 826 LEFT SIDE | Bansidhar Singh | Debi Singh | Aini Singh    _____________________________________________________    |                          |                   | Raghunath Singh =         Pahalwan Singh =   Basant Singh Benga Babui (daughter      Basant Kuer       (Childless) of Raja Dhruva Singh,      17/15/1762            Tilak Singh =           |                Soman Kuer Raja Jugal Kishore Singh         | (D. 1784)                     _______________________      |                        |                     | Raja Bir Kishore Singh     Balbhadra Singh   Sangam Kuer      (1790-1816)             = Jaimed Kuer   (Daughter)           |                  (D. 1887)      (died childless)      ---------------------      |                   | Anand Kishore       Naval Kishore (D. 1838)           (D. 1855)                          |           ---------------------------           |                          |      Rajendra Kishore         Mahendra Kishore      (D. 26th March 1883)     (childless)           |

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    Harendra Kishore      (D. 26th March 1893)      =widow -      1.   Maharani Sheortan Kuer           (D. 24th March 1896)      2.   Maharani Janaki Kuer           (D. 27th November 1954) 827 RIGHT SIDE | Bansidhar Singh | Ram Ruch alias Ram Rup |   ---------------------------------------------------   |                 |              |              | Farman         Har Kuer       Bhup Narain    Avadhut Singh    |               |          (childless) Deo Narain     -----------------------------------    |           |              |                 |    |      Sheo Balak     Prithvi             Mohan Singh    |           |         (childless)              |    |      Chotku                             Pratap Narain    |      (childless)                             | --------------------                         Sheogulam   |                |                              | Bhoala Singh   Deep Narain                   Jagdamba Prasad   |                |                              | Nand Kumar                                   Jagat Bahadur (childless)        |                         = Amol Kuer                    |                              | --------------------------------------       Nand Prasad      |           |         |         |       (Adopted) Bansgopal  Hari Kishore   Ram     Sankata         |      |    (childless)    Kumar    Prasad       Ram Chandra      |                (childless) (childless)   (Living) -----------------------      |                | Bhagwati Prasad     Ilaka Singh (D. 29th      (childless) June, 1957)      | ----------------------------------------------------------   |       |       |      |         |     |      |       | Radha    Sri     Ram     Sheo    Ashta  Maina  Ram    Bhagi- Krishna  Krishna Krishna Krishna Bhuja         Kesari rathi (plain-          = Shail tiff)            Kumari   |                 | ---------------     ------------------  |            |     |                | Vidya     Malti     Parvati        Meera Devi Sagar     Devi      (Daughter)     (Daughter) (Son)     (Daughter) 828      appearing for  the plaintiffs  of Title Suit 25 as      also the State of Bihar have clearly stated before      us that  they do not dispute their genealogy up to      that point. The finding of the learned Subordinate      Judge is  also to the effect that they have proved      their genealogy  up to  that point. The point does      not, therefore. need a detailed consideration.      ...                    ...                   ...           378. The other documents, however, prove that      Bhagwati, the  father of  these appellants,  was a

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    descendant of Gajraj-" (Vol. VIII, pp. 442 & 444)      Thus, the dispute which we have to resolve in this case is whether  the plaintiffs  have been able to prove any link between Ramruch and Gajraj Singh on the one hand and Ramruch and Bansidhar  on the other. The plaintiffs can succeed only if they  prove both these links by showing that Gajraj Singh was son  of Ramruch  Singh and  Ramruch was son of Bansidhar Singh.      We  would   first  examine  the  principal  documentary evidence relied  upon by the plaintiffs to prove their case. The genuineness  of some  documents has not been disputed by the appellants, but according to them these documents do not assist the case of the plaintiffs. There are other documents whose genuineness  and admissibility  have  been  questioned before us by Dr. L.M. Singhvi, appearing for the appellants.      To start  with, the  main fabric and the cornerstone of the documents  produced by  the plaintiffs appears to be Ex. J.,  an   ancient  document   of  the   year  181   O  whose admissibility was  seriously disputed  by the appellants but all the  courts have  found this  document to be admissible. Apart from  the majority  judgment, even M.M. Prasad, J. has clearly held  that Ex.  J. being an entry in a Register made by a  public officer in the discharge of his duties squarely falls within  the four  corners of s. 35 of the Evidence Act and is, therefore, doubtless admissible. In this connection, the learned Judge observed thus:           "There can  thus be  no doubt  that it  is  a      report of a public officer in the due discharge of      his public and office duties. There can thus be no      doubt that  it is  admissible under  section 35 of      the Evidence Act." 829      Certain inferences  drawn by  M.M. Prasad,  J.  do  not appear to us to be correct because they are not borne out by the recitals  in Ex.  J. and  are really  based on  a  wrong interpretation  of   certain  expressions  used  in  Persian language. These  observations appear  at  page  483  of  his judgment (Vol.  VIII) where  the learned Judge says that the document shows  that Gajraj Singh was one of the descendants of Hirday  Narain Singh and that Debi Singh and Gajraj Singh belonged to  the, same  family. This anomaly appears to have crept in  because the  said document  (Ex. J)  is in Persian language and  on  a  very  close  reading  of  the  recitals pertaining to  these two  facts, the inferences drawn by the learned  Judge  do  not  appear  to  be  correct.  We  shall elaborate this point further when we deal with the merits of the document.  We agree  with the unanimous view of the High Court that  Ex. J  is admissible.  In fact, the said Exhibit itself would  show that  it was  written by a serishtadar, a Government  officer,   on  the  direction  of  a  very  high governmental authority  who had asked him to make a detailed enquiry regarding  the possession  of various  Zamindars and submit a  Report to the Government about possession. We are, therefore, of  the opinion  that all the conditions of s. 35 of the  Evidence Act  are fully complied with and fulfilled, and it  is difficult  to  accept  the  conclusion  that  the document is  not admissible  either under s. 35 or under any other provision  of the  Evidence Act.  It  is  a  different matter that  even though  a document  may be  admissible  in evidence its  probative value may be almost zero and this is the main  aspect of  the case  which we propose to highlight when we deal with the legal value of this document.      Before, however,  making any  comment on  the probative value of  the document  in question  it will be necessary to peruse and  analyse its  important contents  and their legal

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effect on  the case  put forward  by the  parties. We  might mention here that the appellants before us have not accepted the stand  taken by  the High  Court that  this document  is admissible in  evidence but  have argued at some length that it  is  totally  inadmissible.  Dr.  Singhvi  was  not  very vehement in  persuading us  to hold  that  the  document  is inadmissible but  Mr. Misra,  appearing for  one set  of the appellants,  forcefully   contended  that  the  document  is inadmissible. In  view of the arguments addressed before us, it  may   be  necessary   to  consider   the   question   of admissibility also.      In our  opinion, Ex.  J. squarely falls within the four corners of  s. 35  of the  Evidence Act  which requires  the following conditions  to be  fulfilled before a document can be admissible under this section. 830      (1)   the document  must be  in the  nature of  an           entry in  any public  or other official book,           register or record,      (2)   it must  state a fact in issue or a relevant           fact,      (3)  the entry must be made by a public servant in           the discharge  of his  official duties  or in           performance of his duties especially enjoined           by the  law  of  the  country  in  which  the           relevant entry is kept.      A perusal  of Ex.  J clearly  shows that it is a Report made by an officer of the Government in the due discharge of his official  duties because  the recitals  of the  document show that he was entrusted with the task of and enjoined the duty of ascertaining the possession of various landlords for the purpose  of taking  suitable steps  in the matter. It is beyond dispute  in this  case that  the  said  Exhibit  does mention a  number of  persons through  whom  the  plaintiffs claim their  title and  therefore, it  relates to a relevant fact. The question as to whether the relevant fact is proved or not  is quite  a different matter which has nothing to do with the  admissibility of  the document  but which  assumes importance only  when we consider the probative value - of a particular document. The fact that the Report was called for from the Mirzapur Collectorate has been amply proved both by oral and  documentary  evidence.  Thus,  all  the  aforesaid conditions of s. 35 are fully complied with in this case.      Mr. Misra, however, raised two formidable objections to the admissibility  of this  document. In the first place, he submitted that  there is  no reliable  evidence to show that Durga Prasad,  the author of Ex. J. was a Government officer at all  because the  possibility  of  his  being  a  private revenue agent  of a  Zamindar, who  also maintains  kutcheri (private office)  where papers  relating to  realisation  or rent  and  revenue  are  kept,  cannot  be  ruled  out.  The designation of Durga Prasad therefore, does not conclusively prove that  he was  a Government  officer. Secondly,  it was contended that  even if  Ex. J  contains a  seal,  there  is nothing to  show that  it was  not a  private seal.  In  our opinion, the contentions raised by Mr. Misra are without any substance and  cannot be accepted. Reading the document (Ex. J) as a whole and taking into consideration the occasion for the entrustment  of the  task to  Durga Prasad, its recitals and the  fact that  it  was  kept  in  a  purely  Government department, viz.,  the Mirzapur  Collectroate from  where it was  produced   before  the   trial   court,   clearly   and conclusively prove  that the  report was made by an official serishtadar 831

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appointed by  a very  high governmental  authority. Even the opening lines  of the  Exhibit clearly  indicate that  Durga Prasad was  a Government  servant, perhaps  in  the  Revenue Department, and  was asked  to submit  a report for official purposes. It  is also  established that  Durga Prasad made a roving enquiry  and ultimately  submitted his  Report in the year 1813.  Of course,  it is true that there is no evidence to show  as to  what happened  to this  Report, but  that is beside  the   point  so   far  as   the  relevancy   or  the admissibility of  this document  is concerned.  In fact,  we shall show  that although Exhibit J is admissible yet it has no  probative   value  at   all  for  the  reasons  and  the circumstance that  we shall  discuss hereafter. Furthermore, all the three Judges of the High Court have unanimously held that Ex.  J. is admissible in evidence whatever be its legal value.      In P.C.  Purushothama Reddiar  v. S.  Perumal, (1) this Court while  considering the effect of s. 35 of the Evidence Act observed as follows:-           "It was  lastly contended  that the  evidence      afforded by  the police  reports is  not relevant.      This again  is untenable  contention.  Reports  in      question were  made by government officials in the      discharge of their official duties. Those officers      had been  deputed by  their superiors to cover the      meetings in  question-.. ...  The first part of s.      35 of  the Evidence  Act says that an entry in any      public record  stating a fact in issue or relevant      fact and made by a public servant in the discharge      of his  official duty  is relevant evidence. Quite      clearly the  reports  in  question  were  made  by      public servants  in discharge  of  their  official      duty."      In view  of the  clear decision of this Court, referred to above, it is not necessary for us to multiply authorities on this point.      The admissibility  or Ex.  J or its genuineness is only one side  of the  picture and,  in our  opinion, it does not throw much light on the controversial issues involved in the appeal; We  may not  be understood, while holding that Ex. J is admissible,  to mean that all its recitals are correct or that it  has very  great probative  value merely  because It happens to be an ancient document. Admissibility of a 832 document is one thing and its probative value quite another- these two  aspects cannot  be combined.  A document  may  be admissible and  yet may  not carry any conviction and weight or its  probative value  may be  nil. Before  going  to  the contents of  Ex. J  which have  been fully  discussed by the High Court,  we would first like to comment on the probative value of this document.      In adjudicating  on this important aspect of the matter it may be necessary to mention a few facts and circumstances which go  to show  that Ex. J has no probative value at all. To begin with, a perusal of the Report (Ex. J) shows that it does not  at all disclose the source from which Durga Prasad collected his  facts or  gathered  the  materials  disclosed therein. There  is also  nothing to  show that the author of the Report consulted either contemporary or previous records or entries therein in order to satisfy himself regarding the correctness of  various statements  made pertaining  to  the genealogy of  landlords who were in possession of the lands, as stated  in the  said Report. It is true that at one place the author  has stated that he had taken these facts from an account book  (Tumar) but  he  has  not  at  all  given  any

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description or detalis or even the kind or the nature of the account book  and its  contents. Furthermore,  there  is  no evidence to  indicate as  to what  happened after the author had submitted  his Report  to the  Government and whether or not any  follow up  action was  taken on  the basis  of  his Report or  it was  just filed  and kept  on the record Lying lifeless and mute.      The fact  of the  matter is that no proper verification was made  by Durga  Prasad regarding the facts stated in his Report from  any source  and that  it did not form part of a revenue entry  or record  which was  ever referred to by any Executive, Judicial or statutory authority subsequent to the filing of this Report. In other words, the position seems to be that  the fate of the Report, after it was submitted, was shrouded in  mystery and  Report became  a  forgotten  story unheard unwept  and unsung  until the  present suit  by  the plaintiff was  filed. In  these circumstances, therefore, it is difficult  for us  to place  any reliance on the document (Ex. J) even though it may be admissible in evidence.      Mr. Tarkunde,  appearing for  the respondents,  however relied on  several authorities in support of his argument to show that  the  authenticity  of  this  document  cannot  be questioned. In  the first  place, reliance  was placed  on a decision of the Privy Council in Ghulam 833 Rasul Khan  v. Secretary  of State  for India in Council,(1) particularly on the following observations:           "In such a case as the present, statements in      public documents are receivable to prove the facts      stated on  the general grounds that they were made      by the  authorized agents  of the  public  in  the      course of official duty and respecting facts which      were of public interest or required to be recorded      for the  benefit of the community. Taylor’s Law of      Evidence, 10th  ed., s.  1591. In  many cases,  in      deed, in nearly all cases, after lapse of years it      would be  impossible to  give  evidence  that  the      statements, contained  in such  documents were  in      fact true,  and it is for this reason that such an      exception  is   made  to   the  rule   of  hearsay      evidence,"      The observations  extracted above  no doubt  presumably support the  contention  of  Mr.  Tarkunde  but  even  these observations have  to be  read in  the light  of the special facts of  that particular  case. In  that  case,  there  was evidence of  a clear Government revenue record maintained in due course  since 1852 showing that the term ’Khayyat Mohal’ did not  denote a  tribe but  merely a profession. Secondly, the revenue  record of  Mauza Shahna  clearly mentioned  the entire pedigree  of the  family which was found by the trial court to  have been  proved. The  question at  issue in that case was  whether Mohals  were of  Rajput origin  and it was conclusively proved  by the  lower courts  that Mohals  were doubtless Rajput  or had  a Rajput  origin. The entry relied upon in  that case was based on the extracts from settlement records of the District from 1852 and corrobortated by later entries up  to 1882.  The Privy Council took special note of the fact  that evidence  of the  character taken from public records for a series of years since 1852 could not be easily brushed aside.  In this connection, their Lordships observed as follows:           "Their Lordships cannot share the view of the      appellate Court  that evidence  of this character,      taken from  public records  for a  series of years      since 1852  and recorded  in accordance  with  the

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    requirements of the law, can in a pedigree case be      disregarded." 834      Thus, it  is absolutely  clear to  us that the facts of that   case    are   essentially   different   and   clearly distinguishable from  the nature  of the document that Ex. J is Ex.  J cannot  be regarded  as an entry of the type which was the  subject matter of Ghulam Rasul Khan’s case (supra). There is  absolutely no corroboration of the facts mentioned in Ex.  J either  by later entries or by any other document. There are  a number of other facts mentioned in the judgment of the  Privy Council (supra) which completely distinguishes that case from Ex. J in the present case. At least this much is clear,  as already  indicated, that  in the Privy Council case there  was positive evidence to show that the entry was acted  upon  for  several  years  and  that  by  process  of elimination the caste of the appellants as Mohal Rajputs was established. But  in the instant case there is absolutely no evidence to  corroborate  the  recitals  in  Ex.  J  by  any contemporary  or   subsequent  Government   record.  In  our opinion, therefore,  the decision relied upon by the counsel for respondents is of no assistance.      Reliance was  also placed on the decision in Kuar Shyam Pratap Singh  v. Collector  of Etawah  (1) where  the  Privy Council made the following observations:-           "This  document   therefore  is  an  official      document  prepared   by  a   public  authority  in      pursuance of  a statutory  duty,  and  it  is  not      disputed  that   it  is   evidence,   though   not      conclusive evidence of the fact stated therein....      No cross-examination of the two witnesses from the      Court of  Wards who  were called  was directed  to      ascertain the  sources on  which the  pedigree was      founded."      In our  opinion, this  decision far from supporting the case of  the respondents completely belies the importance or probative value of a document like Ex. J. To begin with, the document relied  upon by  the Privy  Council was  a pedigree which was  produced in  courts by an officer of the Court of Wards. Secondly.  the High Court had found that the Court of Wards Manual  was prepared under the U.P. Court of Wards Act which had  made a  provision for an Estate Notebook for each estate in  the Court  of Wards which had to be maintained in triplicate form, one copy being kept in the District office, one in  the Divisional  office and  one in the office of the Court of Wards. The object of the Notebook was to pro- 835 vide a  separate and succinct note of every estate under the management of the Court of Wards. It is, therefore, manifest that the  document concerned in that case was maintained not merely by  an officer  but under  a statute  which  required certain conditions  to be fulfilled. Furthermore, sufficient notoriety and publicity was given to this document because a copy of  the record  was kept  in the  District office which could be  inspected by  any member  of the  public. Tn the B instance case,  however,  we  find  that  after  Ex.  J  was submitted it faded into oblivion and on one ever heard of it until it  was produced for the first time in the trial court from the  Mirzapur Collectorate.  Another important  feature was that the Privy Council had found that the Court of Wards itself had  held an  enquiry and  being a  statutory body it must be  presumed to  have done  its duty to the best of its ability. Fourthly,  although two  witnesses were examined to prove the  documents from  the Court of Wards, they were not cross-examined at  all. In  the instant  case, a person from

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Mirzapur Collectorate  merely produced  the document  but he had no knowledge about its contents or about its being acted upon. In these circumstances, Ex. J cannot be equated in any respect with  Ex. which was the document under consideration by the  Privy Council  in Kuar  Shyam  Pratap  Singh’s  case (supra),      We would  like to  mention here that even if a document may be  admissible or  an ancient  one, it  cannot carry the same weight  or probative  value  as  a  document  which  is prepared either  under a  statute, ordinance or an Act which requires certain  conditions to  be fulfilled.  This was the case in  both Ghulam  Rasul Kltan’s  and Kuar  Shyam  Pratap Singh’s cases (supra).      The case  of Meer  Usd-oollah v. Mussumat Beeby Imaman, Widow of  Shah Khadim Hossain (1) appears to us to be a cler illustration of  a document  which while being an entry in a public record  is of  great probative  value and carries the utmost weight.  In this  case, the  Registers concerned were probably  under   Bengal  Regulations   and   the   act   of registration in  the Registers was made after a proclamation amounting to  a public,  open  and  notorious  assertion  of title. Such  a document  was held by the Privy Council to bn of  very  great  importance,  and  in  this  connection  the following observations were made: 836           "This fact is most important, not because the      registers themselves  are at  all of the nature of      conclusive evidence of title, (for the Regulations      provide against  that) but  because  this  act  of      registration after  a proclamation  amounts  to  a      public, open  and notorious  assertion of title on      the  one  side,  and  the  omission  to  register,      unexplained by  proof of  the ill  health  of  the      claimant, or  absence in  a  distant  country,  or      ignorance, afford an equally strong presumption of      the non-existence  of any  title  on  the  other."                                (Emphasis supplied)      This is  a clear  and  ’important  illustration  of  an admissible document  which  commands  great  confidence  and whose   probative   value   is   almost   irrebuttable   and impregnable.      In the  case  of  (Raja  Muttu  Ramalinga  Setupati  v. Perianayagum Pillai  (1) the  Privy Council was dealing with reports made  by Collectors  acting under  Regulation VII of 1817 of  the Madras  Presidency and  it was  held  that  the Report of  the Collectors  may  not  be  of  great  judicial authority so far as the opinions expressed on private rights of the  parties but being the reports made under a statutory Regulation  they   were  entitled   to  be  of  considerable importance. The  reason why the Privy Council attached great credence to these reports was that the report, when referred to the  Collector were based on the depositions taken by him (Collector) and other documents on the basis of which he had given his report. Furthermore, the Board of Revenue accepted the Report  of the collector and made a minute approving the same and  observing that  there was  no question of doubting the validity  of the  Report. In  this connection, the Privy Council observed thus: (1)           "This new  dispute was  referred to  the then      collector, Mr.  Wroughton. His  report upon  it is      dated the  7th of  January, l 834. It appears that      he  examined   the   depositions   sent   to   the      collectorate in  1815, and other documents, and he      records the  facts  which,  in  his  opinion,  are      adverse to  the claims  made in  the part  of  the

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    zemindar. He  also reported  to in  favour of  the      title  of   the  Pandaram  Venkatachellum  to  the      office. 837      "But being  the reports  of public officers made in the      course of duty, and under statutory authority, they are      entitled to  great consideration  so far as they supply      information  of  official  proceedings  and  historical      facts, and  also in  so far  as they  are  relevant  to      explain the conduct and acts of the parties in relation      to them,  and the proceedings of the Government founded      upon them."      With due  respect to  the Privy Council, we fully agree with the  view taken  by their  Lordships and  the test laid down by  them. The  document Ex.  J in the instant case does not contain  any of  the qaulities  or attributes which were present in  the Report  of the Collectors relied upon by the Privy Council.  As indicated  above, while the Collector had made a  thorough enquiry, based on the evidence of witnesses and other documents and had recorded his clear opinion which was accepted  by the  Board of  Revenue, in the instant case Ex. J  is a  God forsaken  document which  does  not  reveal either the  source on  the basis of which the materials were collected nor  does it  indicate that  the author  of Report recorded any  statements or  looked into  other documents to base the  truth  of  the  genealogy  or  the  possession  of landlords referred to in his report.      Finally, Ex.J,  unlike the  document in the case before the Privy  Council was  not a  Report  under  any  statutory authority  but   was  merely   a  report  submitted  on  the administrative orders  of a high Government official. In our opinion, therefore, where a report is given by a responsible officer,  which  is  based  on  evidence  of  witnesses  and documents and  has a  statutory flavour  in that it is given not merely  by  an  administrative  officer  but  under  the authority of  a statute, its probative value would indeed be very high so as to be etitled to great weight.      On a  parity of  reasoning mentioned  above, this Court had held  that a  Report based on hearsay evidence or on the information  given   by  an   illiterate  person  cannot  be admissible even  under s.  35 of  the Evidence  Act. In Brij Mohan Singh  v. Priya Brat Narain Singh & Ors.(1) this Court observed as follows.           "The entry therein showing the birth of a son      to Sarjoo Singh on October 15, 1935 can however be      of no 838      assistance to  the appellant  unless this entry is      admissible in  evidence under the Evidence Act. If      this entry  had been made by the Chowkidar himself      this entry would have been relevant under S. 35 of      the  Evidence   Act.  Admittedly,   however,   the      Chowkidar himself did not make it.       *                      *                         *      The reason  why an  entry made by a public servant      in a  public or  other official book, register, or      record stating  a fact in issue or a relevant fact      has been  made relevant  is  that  when  a  public      servant makes  it himself  in the discharge of his      official duty,  the probability of its being truly      and correctly  recorded is  high. That probability      is reduced  to a  minimum when  the public servant      himself  is   illiterate  and  has  to  depend  on      somebody else to make the entry."      In the instant case also, Durga Prasad had to depend on

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some unknown  persons, who  were not  even mentioned  in the document, to  gather his facts and, therefore, even if it is admissible its probative value will be almost zero.      Mr. Tarkunde  then relied on the following observations made by  Rupert Cross  in his  book ’Evidence’  (1967: Third Edition) at page 408:           "Entries  by  a  solicitor’s  clerk  may,  of      course, be received under exception to the hearsay      rule which  is now  being considered on account of      the duty owed to his employer, and, in some cases,      the duty  to record  may have  been  owed  by  the      solicitor to  his  client  When  speaking  of  the      reception of declartions in the course of duty Sir      Robert Philimore said;           "Entries in  a document  made by  a  deceased      person can  only be  admitted where  it is clearly      shown that  the entires  relate to  an act or acts      done by  the deceased  person  and  not  by  third      parties."      These observations,  however,  have  to  be  read  with reference to  the context.  Cross while making the aforesaid observations 839 emphasised that  Sir Robert Phillimore had said that entries in a document made by a deceased person can only be admitted where it is clearly shown that they relate to an act or acts done by the deceased person and not by third parties.      Thus, in  the instant case, though Ex. J was admissible because  its   author  is   no  longer   alive  it  contains information which  is obviously  based on  what he  may have heard from  third parties  and hence  much value  cannot  be attached to such a report.      In  Brain  v.  Preece  Lord(1)  C.B  Abinger  made  the following observations:           "The case of the attorney, in Deo v. Turford,      stands on  precisely the  same grounds  as that of      Price v. Lord Torrington. There it was proved that      the notices  were written,  and that  the attorney      had gone  out, and  indorsed the duplicate when he      came back,  and that  it was  his practice  so  to      indorse it  when he  had served  the original, and      that was  rightly held  to be proof of the service      of the  pnotice. There  is also  another case viz,      that of  the notary (Poole v. Dicas, supra), where      similar entries  were held  evidence; but a notary      is a  public officer,  and is sworn to do his duty      as a  notary, and in foreign countries the acts of      a notary  are like  the acts  of a court, although      that is not so here."      On the other hand, commenting on the probative value of documents like  Ex. J, it was held in Maria Mangini Sturla & Ors. v.  Filippo Tomasso  Mattia  Freccia,  Augustus  Keppel Stevenson & Ors (2) where Lord Blackburn observed thus:           "I think  an entry in the books of a manor is      public in  the sense  that  it  concerns  all  the      people interested in the manor... But it must be a      public document,  and it  must be made by a public      officer. I  understand a  public document there to      mean a  documnent that  is made for the purpose of      the public  making use  of it,  and being  able to      refer to it." 840      Same view  was taken  in a  later decision in Mercer v. Denne(1) where the following observations were made:           "There is  nothing to  show that  any of them

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    was  made  contemporaneously  with  the  doing  or      effecting of  a transaction  which it was the duty      of the  deceased person  to record.  There  is  no      evidence of  what his  instructions were or of the      relation of  those instructions  to  the  document      tendered in  evidence, or  of the  source  of  the      knowledge or  information on which the contents of      the report or estimate were based .....           These reports  in no  way resemble the field-      book entries  made by  a deceased surveyor for the      purpose of a survey on which he was professionally      employed, which  this Court  held to be admissible      in Mellor v. Walmesley(2)."      Although we  cannot hold that Ex. J in the present case is inadmissible  in view  of the express provisions of s. 35 of the  Evidence Act,  yet the  observations  of  the  Privy Council extracted  above would  directly and  aptly apply to the probative value or the weight to be attached to Ex. J in the absence  of any disclosure by the author of the document regarding the  source or the materials on the basis of which he had  mentioned the facts in his report. Assuming that the case, extracted above, had taken an extreme view in that the repot was  not  admissible  at  all  because  of  the  legal position in  England, the  hard fact  remains that so far as the probative  value of  a  document  is  concerned,  it  is reduced to  the  minimum  where  there  is  no  evidence  to disclose the  nature of the instructions given to the author of the  doucment tendered  in  evidence  or  the  source  or knowledge or  information on which the report is based. This is a serious legal infirmity from which Ex. J suffers and on that ground  alone it  cannot be regarded as a reliable or a dependable document.      In view  of the  reasons  given  above,  we  reach  the following conclusions  regarding the  law  relating  to  the admissibility and probative value of Ex. J:- 841      (1)   That Ex. J is clearly admissible under s. 35           of the  Evidence Act  and we  agree with  the           finding of the High Court on this point,      (2)   It appears  that Durga  Prasad, serishtadar,           started writing  Ex. J  in the  year 1810 and           completed the same in 1813.      (3)  That Ex. J mentions names of some persons who           according  to   the  plaintiffs   were  their           ancestors  but  on  carefully  analysing  the           document, it  is not  very clear  as  to  how           Ramruch Singh  was connected  with  Bansidhar           Singh or Debi Singh.      (4)    That  the  probative  value  of  Ex.  J  is           absolutely  insignificant   and  is   of   no           assistance  to   us  in  proving  the  plaint           genealogy.      (5)   That Ex.  J was  a part  of  the  record  of           Mirzapur  Collectorate   and   was   summoned           therefrom.      (6)   It would appear from a bare perusal of Ex. J           that Durga  Prasad was  directed to embark on           an enquiry  regarding the persons who were in           actual possession  of lands  at the  relevant           time and  it was  not a  part of  his duty to           embark on  any enquiry regarding the title of           the persons  holding the  lands, nor  did  he           attempt to  do so.  The heading of the Report           (Ex. J  ) itself  shown that  it is  a report           regarding the possession of Taluqa Majhwa.

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    Even if  Ex. J  is taken  into consideration,  it  will prove not  the title  of the plaintiffs-respondents but only the possession  of lands  held  by  some  of  their  alleged ancestors. In  other words,  the document  will not  be  any evidence of  title in  the suit  out of  which  the  present appeals arise  which are  mainly concerned with the question of title and not with the question of possession.      We now come to a detailed discussion of the contents of Ex. J to show the extent of its relevancy or importance. The original Exhibit  is in  Persian language  and had been kept separately in  a basta.  During the course of hearing of the appeal, the 842 said Exhibit  was got  retranslated and  the said translated English version  appears at pages 25-33 in Volume VII of the paperbook. The  document in  Rom In script is to be found at pages 120-123  in Volume  V which,  in our  opinion  is  the correct reproduction  of the  original Exhibit  with  slight discrepancies here and there.      As the  counsel for  the parties  have not been able to agree regarding  the meaning  and purport  of  some  of  the expressions used  by Durga  Prasad in  the said  Exhibit, we decided to  make a  detailed study  of the original document side by  side with  the translated  version. Fortunately, as one of  us (Fazal  Ali, J.)  happens to  possess  sufficient knowledge of  Persian language,  we found  no difficulty  in deciphering the  correctness of the disputed meanings of the expressions used  in the Exhibit. Even so, we have consulted the most  reliable  Persian-English  Dictionary  (Steingass- 1947-3rd Impression)  and  other  standard  dictionaries  to arrive at  the correct  import of  the meanings of the terms and expressions used in the document.      In the  case of  Coca-Cola Company  of Canada  Ltd.  v. Pepsi-Cola Company  of Canada  Ltd.(1) It  was clearly  held that Dictionaries  can always  be referred  to in  order  to ascertain not  only the  meaning of  a  word  but  also  the general use  of it.  In  this  connection,  their  Lordships observed as follows .           "While questions  may sometimes  arise as  to      the extent  to which  a Court may inform itself by      reference  to   dictionaries  there   can,   their      Lordships think, be no doubt that dictionaries may      properly be  referred to  in order  to . ascertain      not only  the meaning  of a word, but also the use      to which  the thing  (if it be a thing) denoted by      the word is commonly put."      This is  what we  have tried  to achieve in addition to the knowledge of Persian language that one of us possesses.      To begin  with, the  document clearly recites as to who had ordered Durga Prasad to make the necessary inquiries and this fact  assumes some  importance because there has been a serious controversy  between the parties as to whether Durga Prasad was  entrusted with  the task  of the  inquiry  by  a private landlord  or by a high Government official. The High Court on a perusal of the 843 Opening  portion   of  the  document  clearly  came  to  the conclusion that  the terms  used in  the opening portion and the manner  in which  he has addressed the person to whom he was directed  to submit  the Report  shows that he must have been a  high officer  of the  Government  though  the  exact designation of the said officer is not disclosed in the said Exhibit. On  perusing the  original as  also the  translated version, we  find ourselves in agreement with the view taken by the  High Court.  The actual  wolds used by Durga Prasad,

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when translated in English, are as follows:           "Beneficent Master,  generous, kind and Judge      of the time, May your prosperity be ever lasting."                          (p. 25, Vol. VII of the Paperbook)      We have  perused the original words in Persian and find that they  have been  correctly  translated  in  English  as above. In  these circumstances,  we overrule  the. Objection taken by  the appellants  regarding  the  document  being  a private  one   or  the   Report  being  made  by  a  private serishtadar.      After addressing  the official,  the document begins by using the word "Huzoor" and on the basis of this word it was contended that this shows that it must have been a very high official who  had ordered the inquiry. Nothing much turns on the use  of the  word ’Huzoor’  which  is  only  a  term  of courtesy used  to address  either elders or high dignitaries but the crucial word is ’Huzur-e-wala’. The word ’wala’ with Huzur qualifies  the nature of the official mentioned in the opening part of the document, viz., beneficent master, i.e., the high officer aforesaid.      Having determined  the opening  part of  the Report  we will now proceed to the main points mentioned therein:      (1)   It is  mentioned that  the order of the high           official was received by Durga Prasad on 26th           October 1810  directing the  humble author of           the Report  to peruse  the documents  kept in           the serishtadar’s  office and give a detailed           account as  to who in the past, in which year           and  in   what  manner  the  predecessors  of           Pahalwan Singh  were  in  possession  of  the           aforesaid Taluka  (by aforesaid  Taluka Mauza           Majhwa is  clearly intended  as would  appear           from the earlier 844           part of  the document.)  The word used in the           Roman script  are "buzurgan  Pahalwan Singh".           There was a serious controversy regarding the           actual  meaning   of  the   word  ’Buzurgan’.           According to  the plaintiffs respondents, the           word  ’Buzurgan’   means  ancestors  whereas,           according to  the appellant,  it means elders           of the  family of  Pahalwan Singh.  In  other           words, according to the appellant, what Durga           Prasad was required to do was to find out not           that the  ancestors of Pahalwan Singh were in           possession but  the elders of Pahalwan Singh,           which is  a much  wider term. In our opinion,           the interpretation  put by  the appellants on           the word ’Buzurgan’ appears to be correct. To           begin with, the word ’buzurgan’ does not mean           predecessors in the strict sense of the term.           The concept  of ’buzurgan’ in Persian or Urdu           language  is  to  denote  merely  an  elderly           person.      In  Steingass’s   Persian-English   Dictionary   (Third Impression: 1947) at page 183, the. word ’Buzurg’ is defined among  others   as  grandee,   adult  and  elder.  The  word ’Buzurgan’  is  merely  a  plural  of  Buzurg.  In  Forbes’s Hindustani-English  Dictionary   (1848)  ’Buzurg’  has  been defined as  an elder (p. 77). Similarly, ’buzurgan’ has been defined as elder (p. 89). Therefore in the instant case, the actual connotation  of the term ’buzurgan’ with reference to the context would mean not only predecessors or ancestors of Pahalwan Singh but also the elders of Pahalwan Singh who may or may  not be  directly related to him though they may form

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either near  or distant  relatives being  elder to  Pahalwan Singh. The High Court seems to have proceeded on the footing that the word ’buzurgan’ really means ancestors only and one of the  tasks entrusted  to Durga Prasad was to find out the names of  the  ancestors  of  Panalwan  Singh  who  were  in possession of  the taluka.  In view of the actual meaning of the word  ’buzurgan’ as  explained above, which is supported by the  dictionary meaning,  we are unable to agree with the connotation of  the word  ’buzurgan suggested by the counsel for  the   respondents  and   we  also  do  not  accept  the translation of  the. word  ’buzurgan’ in the Roman Script as ’predecessors’ only.      There  is   another  circumstantial   evidence  in  the document itself which fully supports the view taken by us. A little later,  Durga Prasad  while describing  the heirs  of Gautam tribe has used the word 845 ’warsha’ (to  be correctly  written as ’worasa’) which means descendants or  heirs (vide  p. 134  of Forbes’s Hindustani- English dictionary  & p. 1449 of Steingass’s dictionary & p. 141 of  Wollaston’s  English  Persian  dictionary)  ...  The translation of the word ’ancestor’ in Persian would be Moris or Jad  or Bapdada  (father &  grandfather) vide Wollaston’s dictionary at  p. 12 and Forbes’s dictionary at p. 10 and if highest ancestor  is intended,  it  will  be  translated  as Moris-e-ala’. Durga  Prasad who  was fully  conversant  with Persian language  has deliberately not used the word ’Moris, or ’Moris-e-ala’  or ’Jadd’ while referring to the elders of Pahalwan  Singh,   which  is  unmistakably  clear  from  the language and  the style  used by  him, but has used the word ’Buzurgan’ which  is of  a  much  wider  import  and  merely suggests that  he was directed to find out the possession of the elders  of Pahalwan  Singh whether  beloning to the same family or  not. If  the intention of the author was to refer to the direct ancestors of Pahalwan Singh he would have used the term  ’Morisane Pahalwan  Singh’ (ancestors  of Pahalwan Singh) which he has deliberately not done.      We are  fortified in our view by the dictionary meaning of the  words ’Moris’ and ’Moroos’. The meaning or Moroos is described  by   Steingass  at   page  1343  as  ’hereditary, possessed by  paternal succession’.  The word  ’Moris’ is  a root of Moroos which means hereditary possession and conveys the  sense  of  a  direct  ancestor.  Similarly,  the  other expressions have  been defined  by different dictionaries as shown below: -      Minjumla =  Among all;  from among  (p. 1323, Steingass                dictionary)      Minjumla = Upon the whole (p 510, Forbes’ dictionary)      Aulad = Descendant (p. 121, Steingass Dictionary)      Descendant =  Aulad (p.  72, Forbes’ Dictionary-English                     Part)      It follows  as a logical corollary that the translation of the  word ’Buzurgan’ as ’Predecessor’ in the Roman Script of Ex. J is not quite accurate.      Having sorted  out the problem of the word Buzurgan’ we now proceed  to consider  the meaning  of the  words used by Durga Prasad  in the  introductory part  of his  Report. The document (Ex.  J) proceeds  to mention  while addressing the high official  that the  zamindari of  taluka Majhwa Pargana Kaswar was previously in the possession 846 of the  descendants Gautam tribe and further emphasised that the descendants  of Gautam tribe were in possession there of by inheritance  according to  the shares of their respective family members.  The  translation  of  these  English  words

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though substantially  correct require some amplification. In the first  place, Durga  Prasad has  used the word ’Aulad-e- Gautam’. Auld  means ’heirs  or direct descendants’. This is followed by  the word  ’Biradari’. The actual sense which he wanted to  convey was  that the  lands in  the Mauza were in possession of  the  descendants  of  Gautam  tribe  and  his biradari. Biradari  was sought  to  be  interpreted  by  the respondents as  meaning the  members of the family of Gautam tribe. This,  however, is  wholly incorrect.  The concept of Baradari in  Persian is  much wider  than a  mere family. In Steingass’s  Dictionary   (supra)  at   page  167  the  word ’biradari’ is defined thus:      "biradari  -   Brotherhood,  the   fraternal  relation; relationship;-"      In Muhammed  Mustafa Khan’s  Urdu-Hindi dictionary, the word ’biradari’ has been defined thus:      "Baradari-one  tribe,   man  belonging  to  one  tribe, brother hood"                                       (P. 422: 1959 edition)      ’Baradari - Relationship, Brotherhood                (Forbes Hindustani-English Dictionary, p. 71)      It denotes  only brotherhood which does not mean merely members of  the family of a particular person but the entire brother hood  or caste  or tribe  in a  broader and  general sense of  a group  of persons  of which  some may or may not constitute one  family. Thus,  from  the  use  of  the  word ’baradari’ it  cannot be  argued with  any show offence that Mauza  Majhwa   was  in   possession  only   of  the  direct descendants and members of the family of Gautam tribe. Durga Prasad has  taken care  to use  different terms  to indicate different relationships.  Somewhere he  has  used  the  word ’aulad’ where  he wanted  to indicate  direct descendants or heirs; at other place he has used ’buzurgan’ where he wanted to indicate only the elders who may or may not be related to the  person  concerned;  sometimes  he  has  used  the  word ’biradari’ to  indicate not  only the  family but the entire brotherhood or members of the caste or tribe. 847      In the  last lines of first paragraph of the Report the following words are used           "ba beradari  Hirdeynarain  Singh  dar  qabza      mosamiyan Debi  Singh wo  Barisal Singh  wo Ramhit      Singh wo  Gajraj Sahi zamindaran boods." (The last      word should be ’bood’ and not ’boods’      From this,  the respondents as also the High Court seem to infer  that Debi  Singh, Barisal  Singh, Ramhit Singh and Gajraj Sahi  were the  direct  descendants  of  Hirdaynarain Singh or  the members  of his  family. This inference is not brone out  by the  aforesaid words used by Durga Prasad. The words only indicate the undoubted possession of Hirdaynarain Singh, and the persons who were in possession along with him were the  four persons  mentioned above who belonged only to the brotherhood  of Hirday Narain Singh. The question of all of them being direct descendants or relations does not arise on the  interpretation of the words used by Durga Prasad, as indicated above,  He has  further stated  that he had learnt the aforesaid  facts from  the  account  papers  of  Pargana Kaswar.      We might  mention that even M.M. Prasad, J. was carried away by  the language used by Durga Prasad, viz., the use of the word ’biradari’ to indicate that Hirday Narian Singh and four others  belonged to  the same  family which was neither his intention  nor the  meaning of the sentence used by him. To this extent, therefore, we do not agree with M.M. Prasad, J. It  may be  important to  remember this fact because much

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has been made of the sentence "Debi Singh and aforesaid four persons" to  contend that  the four persons, viz Debi Singh, Barisal Singh,  Ramhit  Singh  and  Gajraj  Sahi,  were  the descendants of  Hirday Narain  Singh or  Debi Singh which is also a  fallacious conclusion  reached by the High Court and not warranted by the words used in the documetlt (Ex.J.).      The word  ’minjoomle’ merely  means - among all or from among them-it  does not  mean ’including’.  The words in the last portion  of second  paragraph of  the Report  "Pahalwan Singh ham  az auladey  Debi Singh  minjoomle  chehar  kashan mazkuran asht. Faqat." - do not indicate that Pahalwan Singh alongwith his  descendants, viz.,  Debi Singh Barisal Singh, Ramhit Singh  and Gajraj  Sahi were  in possession. The word ’descendant’ qualifies  only Ramhit  Singh and not the other three persons as a logical consequence of the statement 848 made in the first paragraph, extracted above, indicating the baradari of Hirday Narain Singh.      The document  then proceeds  to  give  details  of  the settlements made  with various  persons,  and  the  relevant portion recites thus in Roman Script at page 121, Vol. VII:           "Khalispur 1 Mauza asli           Bawaqt bandobast Patta zamindari banam Audhan      Singh Ke  az  aulad  Hirday  Narain  Singh  mazkur      ashtshuda bood ........      The English translation runs thus:      "Khalispur 1 M Asli      At the  time of settlement the Zamindari Patta was      executed in  favour of Audhan Singh, who is one of      the   descendants    of   Hirday   Narain   Singh,      aforesaid.. "                                            (Vol. VII, p. 27)      We may  pause here to indicate an important point which arises out  of the  aforesaid recitals. Durga Prasad has not used the  word ’brotherhood’  or ’Buzurgan’ while describing Audhan Singh but has clearly stated that he was a descendant of Hirday  Narain Singh.  If it was true that Barisal Singh, Debi Singh  and Gajraj Singh were also direct descendants of Hirday Narain  Singh, he  would have  undoubtedly  mentioned their names also.      In the  Next column, Durga Prasad goes on narrating the history and  mentions that  at the  time of  settlement, the zamindari patta  was executed  in favour of Gurdat Singh who was one  of the  descendants of  Debi Singh.  Here also,  he clearly indicates  the relationship of Gurdat Singh as being a descendant  of Debi  Singh. What is most important is that in the  plaint genealogy  there is  absolutely no  reference either to  Audhan Singh  or to Gurdat Singh while describing the heirs  of Hirday Narain Singh. In fact, no person by the name of  Gurdat Singh  is mentioned as an heir of Debi Singh in the plaint genealogy.      On the next page it was mentioned that Babu Deep Narain Singh purchased  the village  at  an  auction  held  by  the Government for payment of arrears of Government revenue Deep Narain Singh 849 obtained  the  zamindari  sanad  from  the  huzoor  (a  high official of the Government) and patta was executed in favour of Ram  Baksh Singh, who is one of the descendants of Hirday Narain Singh  and is  alive. It  may be  noted that even Ram Baksh Singh  is not  at all  mentioned in  the genealogy  of Hirday Narain  Singh nor is he mentioned in the earlier part of Ex.  J as  being either  a member  of  the  family  or  a descendant of Hirday Narain Singh.      It has,  therefore, been  established beyond any shadow

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of doubt  that Barisal  Singh, Debi  Singh and  Gajraj Singh were not  the direct  descendants of  Hirday  Narain  Singh. Otherwise Durga  Prasad would  have mentioned  these persons also as heirs or direct descendants of Hirday Naram Singh as he has done in the case of Audhan Singh, Ram Baksh Singh and Ramhit Singh.  Furthermore, at page 28 on the left hand side of  the   document  (English   translation)  it  is  clearly mentioned that  zamindari patta  was executed  in favour  of Bhagat Singh,  Golami  Singh,  Harjan  Singh  who  were  the descendants of  Hirday Narain  Singh. Thus, it is clear from the scheme  followed by Durga Prasad that whenever he wanted to convey  a particular  person or  persons to  be heirs  or direct descendants of an ancestor he would expressly say so. On a  plain reading  of this  part of  the Report,  it would appear that  the descendants  of Hirday  Narain  Singh  were Bhagat Singh,  Golami Singh,  Audhan Singh, Ram Baksh Singh, Rahmit Singh  and Harjan Singh. The other persons, viz, Debi Singh, Barisal  Singh and Gajraj Sahi (or Gajraj Singh) have not been mentioned as descendants of Hirday Narain Singh and this, therefore,  completely  demolishes  the  case  of  the plaintiffs-respondents on  this aspect  of  the  matter  and throws serious  doubt on  their genealogy. Furthermore, this circumstance supports  our interpretation  that in the first part of  the Report the words used "among the aforesaid four persons"; connote that only Ramhit Singh and not others were descendants of  Hirday Narain  Singh; they may have belonged to same brotherhood      In the  right-hand column of Ex. J at page 28, vol. VII of the  English translation,  it is  clearly mentioned  that Pahalwan Singh is one of the descendants of Debi Singh. This statement corroborates  the plaintiffs’  case to this extent that Pahalwan Singh was one of the descendants of Debi Singh and shows  that a  part of the plaintiffs genealogy relating to Debi Singh is correct.      Referring to Baraini, Semri and Ramchandrapur villages, it is  mentioned that  zamindari patta  was given  to  Mohan Singh who was 850 a descendant  of Gajraj  Sahi. It may be noted that here the word used  is ’aulad’  which means son, or grandson being in the nature of a direct descendant. This entry throws a flood of light  on the actual position occupied by Gajraj Sahi and there is  absolutely no  reference nor anything to show that Gajraj Sahi was in any way directly related to Debi Singh or Hirday Narain  Singh. There  is also no reference to Ramruch Singh. As  the plaintiffs claim to be the direct descendants of Gajraj  Singh,  this  circumstance  completely  falsifies their case  that Gajraj  Singh or  Ramruch singh were in any way connected  with Debi  Singh or the descendants of Hirday Narain Singh.      Next item  relates to  villages  Badapur,  Kanak  Sarai where it  is mentioned  that  Hardarshan  Singh  who  was  a descendant of  Ramhit Singh  has been given the patta and is in possession. As regards village Gadoi it is mentioned that at the time of settlement zamindari patta was given to Nanku Singh and  Jitoo Singh who were descendants of Hirday Narain Singh. Nanku  Singh died  and thereafter  Deep Narain Singh, son of Nanku Singh, got the patta in his own name in respect of halfshare.      The  next  item  narrates  that  at  the  time  of  the settlement, the  zamindari patta  was executed  in favour of Gurdat Singh,  who was one of the descendants of Debi Singh, and he  paid rent  without obtaining  any fresh patta. It is further  mentioned  that  in  respect  of  village  Sabesar, zamindari  patta  was  given  to  Ramhit  Singh,  descendant

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(aulad) of  Hirday Narain  Singh and on his death, the patta was given to Nanku Singh.      It is  not necessary for US to wade through the details of the  settlement made  by various  zamindars pertaining to different villages  in the  Sirkar of Champaran, except some entries to which we would refer hereafter.      As regards  Jalalpur which was in Taluka of Madan Gopal and Kiswar  Das Thathar, the zamindari patta was executed in favour of  Farman Singh  and after his death Zalim Singh and Ramhit Singh,  sons of  Farman Singh,  obtained the patta in their names and were in possession thereof. Here also, there is no  reference either  to Gajraj  Sahi or  Gajraj Singh as being relations  of Debi  Singh nor  is the  name of Ramruch Singh mentioned at all. Again, in respect of Chak Lohani and Kalyanpur it  is mentioned  that Gurdat Singh was one of the descendants  of  Debi  Singh  and  Hardarshan  Singh  was  a descendant of Ramhit Singh. 851      As regards  Taluka Thathra and other villages they were sold to Raja Balwant Singh and one Gajraj Singh paid rent to the sirkar on behalf of Raja Balwant Singh. The parentage of Gajraj Singh  or his  relationship either with Hirday Narain Singh or  Debi Singh  is not indicated at all. Therefore, it appears that Gajraj Singh must be someone who had nothing to do with the family of Debi Singh.      These are  all the facts that can be collected from the document (Ex. J). Summing up, therefore, the contents of the Report, the position emerges as follows:-      (1)   the zamindari  patta of various villages had           been given  to Hirday  Narain Singh  and  his           descendants,      (2)   Neither Debi  Singh, nor  Gajraj Singh,  nor           Bansidhar Singh  have been mentioned as being           a direct descendants of Hirday Narain Singh,      (3)     Pahalwan  Singh   is  no  doubt  a  direct           descendant of  Debi Singh  but that  does not           solve the problem: the descendants of Pahlwan           Singh were later on given various pattas,      (4)   the Report (Ex. J) is purely confined to the           question  of   possession  of  various  patta           holders and  there is  not a  single word  to           indicate the  title of  any  of  these  patta           holders.                As already  indicated, Durga  Prasad was           not called  upon  to  embark  on  an  enquiry           regarding  the   question   of   title   and,           therefore, his Report is concerned solely and           mainly with  the question  of possession  and           not  in   any  manner  with  that  of  title.           However, if  any observations  have been made           by him  incidentally on the question of title           (though as far as we have seen the Report, no           such observation has been made) they would be           of no  consequence what  soever to  prove the           title of the parties.      (5)   As regards the facts contained in the Report           though Durga  Prasad says  that he  got  them           from Tumar, i.e., an account-book, he has not           given any particulars of the account-kook nor           has he appended 852           any relevant portion of the account-book with           the Report nor has he mentioned as to who was           the author  of the account books and when and           under what  circumstances the  account  books

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         were prepared.      In  these   circumstances,  therefore   we   are   kept completely in  the dark  as  to  what  those  account  books contained and  whether or  not the  facts mentioned  in them were properly  checked and verified. Even the fact as to who was the  accountant or  in whose  custody  the  account-book remained, is  conspicuously absent  from the Report of Durga Prasad. These  are additional circumstances which completely reduce the probative value of Ex. J.      Mr. Tarkunde  made an attempt to convince us that Ex. J is not  only admissible but is substantially corroborated by the oral and documentary evidence. It is true that a part of the plaintiffs’  genealogy which  is  not  disputed  by  the appellants, receives  some corroboration from Ex. J but that takes us  no where.  Our attention has not been drawn to any fact  mentioned   in  the  Report  which  shows  the  direct relationship or connection between Debi Singh, Ramruch Singh and Gajraj  Singh and unless this is done the corroboration, if any,  is of  no use  at all.  However, we shall deal with this argument for whatever it is worth.      In the  first place,  it was  contended that  the  oral evidence of  DWs 13,  21, 33,  34 and  35  corroborates  the entries made  in Ex.  J. We  propose at  this stage to refer briefly to the oral evidence only in so far as it is alleged to corroborate  Ex. J  and we  shall deal with the main oral evidence after  we have  completed  the  discussion  of  the documentary evidence.      It  was  contended  by  Mr.  Tarkunde,  which  is  also reiterated in  the Summary of arguments supplied to us, that the defence  witnesses referred to above support some of the statements made  in Ex. J. It was argued that while the said Exhibit mentions Barisal Singh and Ramhit Singh as among the four zamindars  who were in possession of Taluka Majhwa, the oral evidence  shows that  Barisal  Singh  was  son  of  Ram Faquira who was one of the sons of Bansidhar Singh and whose line became  extinct with  the  death  of  his  three  sons, including Barisal.  In the  first place,  this  argument  is based on  a wrong  interpretation of the terms used in Ex. J in respect  of Barisal  Singh who  has not been mentioned as being a  direct descendant  of Hirday  Narain Singh.  It  is possible that Barisal Singh may have been 853 distantly related  to or  formed a member of the brotherhood of Hirday  Narain Singh  but the  document does  not at  all indicate that  he was  a direct  descendant of Hirday Narain Singh.      Coming now to the oral evidence on this point, reliance was placed on the statement of DW 33 Bhairo Prasad who is 85 to 86  years old  and is a resident of Mirzapur. At page 436 of volume,  I, the  witness states  that Ram Fakir had three sons Barisal,  Ram Singh  and Ratan  Singh and  that all the three sons  of Fakir  Singh died  issuless. As  regards  the genealogy, he  states that  he came to know of the genealogy of Bansidhar Singh and his descendants from Nand Kumar Singh and Jugal  Bahadur Singh and from his own grandfather. There is, however,  nothing to  show as  to what  special means of knowledge regarding  the genealogy  he possessed.  Secondly, the witness  has nowhere  said that Barisal Singh and others were directly  related to  Hirday Narain  Singh because that seems to  be the main link and the pivotal base of the claim of the  plaintiff. This witness was born in 1879 whereas the Report is  of the  year 1810. It is obvious, therefore, that the memory  of Durga  Prasad would  be much  fresher and  he would have  better knowledge  than this witness to prove the plaintiffs’ genealogy  and  particularly  the  name  of  the

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elders of  Pahalwan Singh  about whom  he had  to submit his Report.      Furthermore, we  are unable  to see how the evidence of this witness  supports the plaintiffs which merely says that Ram Fakir  had three  sons, viz.,  Barisal,  Ram  Singh  and Rattan Singh.  He does not say anywhere in his evidence that either Ram  Fakir or his sons were in any way connected with Hirday Narain Singh. At another place, the witness says that Bansidhar Singh  had three  sons, viz.,  Ramruch Singh,  Ram Fakir and  Debi Singh and Gajraj Singh was Debi Singh’s son. In the  Report (Ex.  J) there  is  absolutely  no  reference either to  Bansidhar Singh  or to Ram Fakir Singh or Ramruch Singh. The  only person  who is  mentioned in  the Report is Debi Singh  who is  said to  be descendant  of Hirday Narain Singh. There  is also no reference to Bansidhar Singh in the entire Report.  Thus, the  starting point  of the  genealogy given by  him is  after the Report (Ex. J) was submitted. We are, therefore,  unable to  see how  the  evidence  of  this witness in any way corroborates Ex. J.      Reliance was  then placed  on the  evidence of  DW  34, Nagendra Kumar. At page 446 of Voume I. This witness is aged 60 years  and claims  to belong  to Gautam  gotra. He states that the ancestor 854 of the  members of his family was Babu Hansraj Singh who had two sons,  Hari Narain  Singh and  Hirday Narain Singh. Hari Narain had a son Sah Makund and he claims to be a descendant of Makund  separated by  several degrees  below. He  further states that  Bansidhar Singh  was the  son of  Hirday Narain Singh. If the facts spoken by him are correct then we should have expected a clear mention of the name of his ancestor in Ex. J.  On the other hand, though Durga Prasad was expressly entrusted the  task of finding out the details of the elders of Pahalwan Singh yet he does not mention that Hirday Narain Singh was  son of  Hansraj  Singh.  In  fact,  there  is  no reference to  Hansraj Singh  at all.  He further  goes on to state that Bansidhar Singh had three sons, namely, Ram Fakir Singh, Ramruch  Singh and  Debi Singh.  This  is  completely contradicted by  the statements  made in  Ex. J as discussed above. In the whole Report, there is absolutely no reference either  to   Ramruch  Singh  or  Bansidhar  Singh  as  being connected with  Hirday  Narain  Singh.  For  these  reasons, therefore, we  are unable  to agree with the argument of the plaintiffs’ counsel that Ex. J is corroborated in any way by the evidence of this witness.      Reliance was then placed on the evidence of DW 35, Debi Singh who claims to be a resident of mauza Majhwa and states that his  ancestors were residents of Majhwa and that Bikram Sah was  ten degrees  above him.  According to  his evidence Bikram Sah and Bansidhar Singh were full brothers being sons of Hirday  Narain Singh  who was  son of  Hansraj Singh. His evidence is  completely falsified  by the statements made in the Report  where there  is no  reference either  to Hansraj Singh or to Bansidhar Singh. We have shown from the contents of Ex.  J that  Durga Prasad bas clearly mentioned the names of the sons of direct descendants of Hirday Narain Singh. If Bansidhar Singh  and Bikram  Sah were  really sons of Hirday Narain Singh,  he could  not have missed this important fact which was  very pertinent for the purpose of his Report. The witness then goes on to state that Bansidhar Singh had three sons, viz.,  Debi Singh,  Ramruch Singh and Ram Fakir. While there is  clear reference  to Debi  Singh in Ex. J, there is absolutely no  reference to  Ramruch  Singh  or  Ram  Fakir. Therefore, far  from corroborating  the contents of Ex. J he positively contradicts  the same. Further comments regarding

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this witness would be made when we discuss the oral evidence of the parties. At present it is sufficient to show that the arguments  of   the  respondents   counsel  that  Ex.  J  is corroborated by  the evidence  of this  witness  are  wholly untenable. 855      Reliance was  then placed  on the  evidence of  DW  36, Mahadeo Singh  who seems to be an interested witness because according  to  his  evidence  his  ancestors  and  those  of Bhagwati Prasad  Singh, father of the plaintiff, had been on visiting, dining  and inviting terms with the family of Babu Bhagwati Prasad  Singh right from the time of his ancestors. He states  that Bhagwati  Prasad Singh  and Harendra Kishore Singh were  descendants from  a common ancestor who was Babu Bansidhar Singh.  Bansidhar Singh  had three  sons, Ramruch, Exam Fakir  Singh and Debi Singh, and Gajraj Singh was a son of  Ram   Fakir  Singh.  His  evidence  ex  facie  does  not corroborate the  Report (Ex.  J). As in the case of previous witnesses, so  here also  we do  not find  any reference  to either Bansidhar Singh or Ramruch Singh. It is impossible to believe that if Ramruch Singh or Gajraj Singh were connected with the  family of  Hirday Narain Singh this fact would not be mentioned  in the  Report. Furthermore, neither Bansidhar Singh nor  the fact  that Debi  Singh was a son of Bansidhar Singh has  been mentioned  in the Report, and this important event could  not have  been missed  by Durga  Prasad in  his detailed  and   copious  Report.  WE  shall  deal  with  the intrinsic merits  later but  what we have said is sufficient to demonstrate  that like  other witnesses, i e., DWs 33, 34 and 35  this witness also does not corroborate the Report of Durga Prasad.  There is  one important fact in the statement of this  witness which is that he says that Ramhit Singh was a son  of Madho  Singh who  was one  of the  sons of  Hirday Narain Singh.  This is, however, clearly contradicted by the Report of  Durga Prasad which mentions that Ramhit Singh was the son  of Hirday Narain Singh and not of Madho Singh whose name has  not been  mentioned at  all. This  fact  far  from corroborating the  Report (Ex.  J) directly  contradicts the said Report (Ex J).      As regards  the documentary  evidence which  is said to corroborate Ex.  J, we  might observe  at this stage that if the probative  value of  Ex. J  is zero,  it can  hardly  be corroborated by  any other  document which  will have  to be judged and examined on its own merits.      Reference was  made to  Ex. L which is a petition given by Raja Udit Narain Singh of Banaras seeking verification of his rights  from all  the zamindars,  lambardars  and  other revenue officials  as  also  the  respectable  residents  of Taluka Majhwa,  Pargana Kaswar,  Sirkar of  Banaras  to  the effect that  that the  entire taluka was the khas ancestoral zamindari interest of Babu Pahalwan Singh, owned and 856 possessed by  him generation after generation. This document is dated  March 14,  1818, about  5 years  after Ex.  J  was submitted by  Durga  Prasad.  Apart  from  the  question  of admissibility of  this document, it merely gives the history of the  Zamindari of  Raja of  Banaras and also mentions the fact that  this Zamindari was purchased by the father of the applicant for  a sum  of Rs. 59, 864. 11 annas. In the first place, the  only purpose  for which  support is sought to be mustered by  the plaintiffs  is that there is a reference to Pahalwan Singh  as being  a descendant of Udit Narain Singh. As Durga  Prasad was  asked to  find out  the  name  of  the ancestors of  Pahalwan  Singh,  this  document  is  said  to corroborate this statement made in Ex. J. It is, however not

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very clear  as to  what was  the occasion  for sending  this petition and  what was the eventual fate which it met. It is merely a  statement of  Udit Narain  Singh, and the document does not  show that it is based on his personal knowledge or that the  petitioner acquired  knowledge from his ancestors. However, as  it is  not disputed  that  Pahalwan  Singh  was undoubtedly an  ancestor of  the late  Manaraja and his name finds place in the plaintiffs’ genealogy, nothing turns upon this statement  because the  defendant does  not dispute the genealogy not  only up to Pahalwan Singh but even higher. As discussed above,  the main link is to be established between Gajraj Singh,  Ramruch Singh  and Debi Singh. On this point, this document  throws no  light  at  all  and  is  therefore valueless. Nobody  ever disputed that Pahalwan Singh was not a grandson of Debi Singh. Even otherwise, the document Ex. L is of doubtful admissibility,      It was  further contended  that this  document supports the statement in Ex J that Debi Singh, Barisal Singh, Ramhit Singh and  Gajraj Singh were family members of Hirday Narain Singh. This argument however, is utterly misconceived and is based on a wrong interpretation of Ex. J which nowhere shows that Debi  Singh, Barisal  Singh, Ramhit  Singh  and  Gajraj Singh were  family members  of Hirday Narain Singh. All that it says  is that  they belonged  to the  brotherhood of Debi Singh. In fact, as we have shown, the names mentioned in Ex. J regarding  the parentage of Barisal Singh and Ramhit Singh and Debi  Singh are  quite different  from the  case of  the plaintiffs. Furthermore,  assuming that  the aforesaid  four persons ere  members of  the family  of Hirday Narain Singh, Ex. J  does not  show in  what manner Ramruch and Debi Singh were related  or that  Gajraj Singh  was a  son  of  Ramruch Singh. 857      Reliance was  then placed  on Ex. DD (38)-vol. IV, page 251- which  is a  judgment delivered  on April 25, 1801 in a suit  between   Deo  Narain  Singh  and  Mohan  Singh,  who, according to  the plaintiffs, were grandsons of Gajraj Singh in respect  of zamindari  of village  Baraini. Reliance  was placed on  the mention  of  the  fact  in  Ex.  J  that  the settlement of  village Baraini  was made  in favour of Mohan Singh who  was a  descendant of  Gajraj Siugh or Gajraj Sahi Assuming that this statement is correct, it does not advance the case  of the  plaintiffs any  further because Ex. J does not at all show that Gajraj Singh was a son of Ramruch Singh and a grandson of Bansidhar Singh or a nephew of Debi Singh.      Reference was then made to Ex. (I)-Vol.III, page 72 Ex. at page  105 in  the same volume, and Ex.DD (44) at page 107 in Vol.  IV, as  being instances of various grants made from time to time by Debi Singh in taluka Majhwa. These documents merely corroborate  the statement  in Ex.  J that Debi Singh was one  of the  zamindars in  possession of  taluka Majhwa. This fact  is also  undisputed and  1 corroboration,  or  no corroboration the  appellants have not challenged either the authenticity of  this statement  or the fact that Debi Singh was a zamindar of taluka Majhwa.      Ex. NN  (6)-Vol. V, page 215- consists of extracts from the Banaras Gazeteer. This Gazeteer merely speeks of Barisal Singh as  being one  of the  persons who  ware killed in the battle of  Marui in  or about  the  year  1719.  It  is  not disputed that  Barisal Singh  was  undoubtedly  one  of  the zamindars of  the village  and was  in possession of village Majhwa  but  this  fact  alone  cannot  prove  any  link  or connection  between  the  plaintiffs  and  Gajraj  Singh  or between Gajraj Singh and Debi Singh.      Ex. TT (Vol. IV, page 238) is another document which is

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relied on for corroborating Ex. J. This document merely says that zamindari  patta of  village Jalalpur  in taluka Majhwa was executed  in favour  of Farman Singh and after his death his sons  Zalim  Singh  and  Ramhit  Singh  obtained  patta. Assuming that  the statement  made above is correct, it only takes us to Farman Singh who is said to be the son of Gajraj Singh. We  have already  indicated above  that so far as the plaintiffs’ genealogy  is concerned,  the link  upto  Gajraj Singh on the right side and upto Debi Singh on the left side is clearly proved but that does not substantiate the case of the plaintiffs  unless they  further prove that Gajraj Singh was son of Ramruch Singh and 858 a nephew  of Debi  Singh. If this link is missing, the claim of the plaintiffs must fail.      Similarly, Exhibits  GGG-3,  GGG-4,  GGG-5,  GGG-6  and GGG-8 at  pages 187,  192, 209,  188 and  208 (in volume lV) respectively are  documents in  the nature or mortgage deeds executed  by  the  heirs  of  Gajraj  Singh  in  respect  of Zamindari interest  in village Baraini. These documents also are  hardly   relevant  for   the  purpose  of  proving  the plaintiff’s genealogy  or to  show that  he was the next and nearest reversioner of the late Maharaja.      Similarly, Ex.  WW (Vol.  IV, page 185) proves that the zamindari patta in respect of village Baraini was granted to Mohan Singh,  a fact  mentioned in Ex. J which is not at all relevant for  our purpose  in determining the correctness of the plaintiff’s genealogy.      Ex. SS  (Vol. IV,  page 376) is a Report. Of Salik Ram, Serishtadar Sadar  (Deputy  Collector)  in  respect  of  the settlement of village Baraini and subsequent transactions in respect of  the zamindari  of that  village.  This  document refers to  the settlement  of the village in favour of Mohan Singh in  1197 Fasli and records subsequent transfers. Mohan Singh’s name  is also  mentioned in Ex. J and to this extent it corroborates  the Exhibit but this corroboration is of no use because  there is  no dispute  that Mohan  Singh  was  a grandson of Gajraj Singh.      Thus, all  the documents  referred to  above and relied upon by  the plaintiffs-respondents  for corroborating Ex. J are  practically   of  no  value  in  determining  the  real controversy in  issue. The  plaintiffs seem to have got hold of several  old documents  wherever they could find the same and wherever they found the names of the descendants of Debi Singh or  Gajraj Singh,  without laying  their pands  on any document  which  may  show  that  Debi  Singh,  was  son  of Bansidhar Singh  and own  brother of  Ramruch Singh who also was another son of Debi Singh, and that Gajraj Singh was son of Ramruch  Singh. In  fact, the last of the ancestors shown in the  plaint genealogy  is Bansidhar Singh whose name also does not  find any  mention in  Ex, J.  But, for purposes of this case we may assume that Bansidhar Singh was the highest ancestor-of the  late Maharaja and hence unless it is proved that Bansidhar  Singh had  two sons-Debi  Singh and  Ramruch Singh-and Ramruch’s  son was  Gajraj  Singh,  the  genealogy relied upon  by the  plaintiff cannot  be said  to have been proved. It is not 859 necessary for  us to  make any  further  comments  on  these documents because  they do  not show anything beyond what we have said.      The explanation  which is  sought to  be given  by  the respondents for  the absence of names of Bansidhar Singh and Ramruch Singh  is that  since Durga  Prasad was  writing the report in  the year  1810, by  which time both Bansidhar and

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Ramruch had  already died,  there could  be no  question  of their names  finding a place in the Report. This argument in our opinion,  is wholly  untenable. We  have already pointed out that the main task with which Durga Prasad was entrusted was to  find out  the ancestors  of Pahalwan  Singh  and  if Bansidhar and  Ramruch were really the ancestors of Pahalwan Singh, their  names could  not have escaped the attention of Durga Prasad  particularly when  the name  of Hirday  Narain Singh, who  is higher  than Bansidhar Singh, is mentioned in the Report  conspicuously. Secondly, in view of the scope of the enquiry  embarked upon  by Durga  Prasad, he had to find out the  ancestors from the records and he says very clearly in his  Report that  his information was based on records in the Serista,  particularly  the  Tumar  (account  book).  If Bansidhar and  Ramruch had  in fact  been directly connected with Debi  Singh or  Pahalwan Singh,  there is no reason why Durga Prasad  should not  have mentioned  their names  as  . being ancestors  of Pahalwan Singh who appeared to be only 2 to 3  degrees remote  from  them.  In  these  circumstances, therefore, the absence of the names of the aforesaid persons in Ex.  J is,  in our  opinion a  conclusive circumstance to show that  there  was  no  relationship  between  Bansidhar, Ramruch and  Pahalwan  Singh.  This  conclusion  is  further fortified by  the fact  that even  Gajraj  Sahi  (or  Gajraj Singh) who  was the  only son  of Ramruch  and a grandson of Bansidhar, finds  specific mention  in the Report. For these reasons, we  reject the  explanation given by the respondent on this point.      In view of our analysis of the document, we need not go into their admissibility though it is extremely doubtful how the statements  made by  various persons  without disclosing their means of knowledge can be said to be admissible.      It appears to us that what the plaintiff’s seem to have done in  this case  is that taking advantage of the recitals in Ex.  J and  of certain  names  of  persons  who  were  in possession of  Mauza Majhwa  and village  Baraini, they took Ex. J  as the  base fore  relying  on  some  statements  and observations made by Durga Prasad out of context 860 and tried to connect Gajraj Singh with Bansidhar Singh by an ingenious process  of joining  tits  and  bits,  pieces  and patches here  and there  so  as  to  reconstruct  an  exotic genealogy  by   inserting  willy-nilly   Gajraj  Singh   and Bansidhar Singh  as being  their ancestors.  The methodology adopted by  them has achieved precious little and is nothing but a futile and an acrimonious exercise.      We have  already shown that the scheme followed and the modus operandi  adopted by  the plaintiffs  are based  on an incorrect  translation   and  wrong  interpretation  of  the meaning of  actual words in Persian with the result that the entire scheme  followed by  them instead of effectuating the goal sought  to be achieved by them, has rendered their case totally abortive.  With these  findings and  observations we close  the   chapter  so  far  as  Ex.  J  and  its  alleged corroboration by documentary and oral evidence is concerned.      We now  pass on to the next limb of the argument of the plaintiffs-respondents, viz.,  that there  are unimpeachable documents  which   throw  a  flood  of  light  on  the  case propounded by them in their plaint. In this connection, they have relied on private documents, public documents, recitals in judgments, judgments inter parties as also judgment which are not  inter parties  sale deeds, mortgage deeds and other documents of  a simlar  nature which  we proceed  to discuss here after  but before doing so we would like to expound the legal position of the admissibility of most of the documents

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which have  been filed by the plaintiffs in support of their case. For  this purpose,  the documents  may  be  classified under three heads-      (1) documents which are per se inadmissible,      (2) recitals in judgments not inter patties, and      (3) documents or judgments post litem motam.      In order  to put  the record  straight we would briefly discuss the the case law on the subject and refer to some of the important  authorities of  this Court  and those  of the Privy Council  or some of the High Courts which appear to us to be very relevant.      Taking  the   first  head,  it  is  well  settled  that judgments of  courts are  admissible in  evidence under  the provisions of  sections 40,  41 and  42 of the Evidence Act. Section 43  which is  extracted below, clearly provides that those judgments which do not fall within the 861 four corners  of sections  40 to  42 are inadmissible unless the existence  of such judgment, order or decree is itself a fact in  issue or a relvant fact under some other provisions of the Evidence Act:-           "43.  Judgments,   etc.,  other   than  those      mentioned in  sections 40  to 42,  when  relevant-      Judgments, orders  or decrees,  other  than  those      mentioned  in   sections  40,   41  and   42,  are      irrelevant, unless the existence of such judgment?      order or decree is a fact in issue, or is relevant      under some other provision of this Act."      Some  Courts   have  used   section  13  to  prove  the admissibility of  a judgment  as coming under the provisions of s. 43, referred to above. We are, however, of the opinion that where  there  is  a  specific  provision  covering  the admissibility of  a document, it is not open to the court to call into  aid other  general provisions  in order to make a particular  document   admissible.  In  order  words,  if  a judgment is  not admissible  as not falling within the ambit of sections 40 to 42, it must fulfil the conditions of s. 43 otherwise it  cannot be relevant under s. 13 of the Evidence Act. The  words "other  provisions of this Act" cannot cover s. 13  because this  section does not deal with judgments at all      It is  also well  settled that  a judgment  in rem like judgments passed  in  probate,  insolvency,  matrimonial  or guardianship or  other similar proceedings, is admissible in all cases  whether such  judgments are inter parties or not. In the  instant case,  however, all the documents consisting of judgments  filed are  not judgments in rem and therefore, the question  of their  admissibility on that basis does not arise, As mentioned earlier, the judgments filed as Exhibits in  the   instant  case,   are  judgments  in  personam  and therefore, they do not fulfil the conditions mentioned in s. 41 of the Evidence Act.      It is  now settled law that judgments not inter parties are inadmissible in evidence barring exceptional cases which we  shall   point  out   hereafter.  In  Johan  Cockrane  v. Hurrosoondurri Debia  & Ors.,(1)  Lord Justice  Bruce  while dealing with  the question  of admissibility  of a  judgment observed as follows:           "With regard  to the  judgment of the Supreme      Court, it  is plain,  that considering the parties      to the suit in which 862      that judgment was given, it is not evidence in the      present case..  We must  recollect,  however,  not      only that  that suit  had a  different object from

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    the present,  independently of  the difference  of      parties, but that the evidence here is beyond, and      is different  from,  that  which  was  before  the      Supreme Court upon the occasion of delivering that      judgment."      It is  true that  in  the  above-mentioned  case  their Lordships felt that in some cases a decision proceeding from a Tribunal  must be  given due defference but cases like the one which  was being  dealt  with  by  their  Lordships  the judgment was not admissible.      In Jogendro Deb Roy Kut v. Funindro Deb Roy Kut(1) the following observeations were made:           "If such  a suit,  as  the  first  suit,  was      brought here  and tried  according to  the law  of      this Country  there could  not be  a pretence  for      saying, that  the judgment  in it  was any,  thing      like judgment in rem or that it could bind any but      the parties  to the  suit.. It  is sufficient  for      their Lordships  to say, that the judgment pleaded      in this  case in  bar cannot  be treated as one of      that nature  upon any  principles, whether derived      from the  English Law or from the Law and practice      of India, which can be applied to it."      In the  case of  Gujju Lall  v. Fatteh  Lall(2) a  Full Bench exhaustively  considered the  ambit and scope of ss 40 to 43 of the Evidence Act and observed thus:           "On the  other hand,  when in  a law prepared      for such  a purpose, and under such circumstances,      we find  a group  of several  sections prefaced by      the title  "Judgments of  Courts of  Justice  when      relevant," that  seems to  be a  good  reason  for      thinking  that,  as  far  as  the  Act  goes,  the      relevancy of  any particular  judgment  is  to  be      allowed or  disallowed  with  reference  to  those      sections.      ...                   ...                 ...           I have  had the  opportunity of  reading  the      judgment  which  the  Chief  Justice  proposes  to      deliver, as well the 863      observations of  my brother  Pontifex, in  both of      which I  generally concur,  and  for  the  reasons      there stated,  and  those  which  I  have  shortly      given, I consider the evidence inadmissible." And Garth, C. J. made the following observations:           "It is  obvious  that,  if  the  construction      which the  respondent’s counsel  would put upon s.      13 is  right, there  would be no necessity for ss.      40, 41,  and 42 at all. Those sections would then.      Only tend  to mislead, because the judgments which      are  made  admissible  under  them  would  all  be      equally admissible  as "transaction"  under s. 13,      and not  only those,  but an  infinite variety  of      other  judgments   which  had  never  before  been      admissible either  in this  country or in England.      And it  is difficult to conceive why, under s. 42,      judgments though  not  between  the  same  parties      should be  declared admissible  so  long  as  they      related to  matters of  a public  nature, if those      very  same   judgment  had   already   been   made      admissible under  s. 13,  whether they  related to      matters of a public nature or not.      ...                 ...                   ...           I am,  therefore, of  the  opinion  that  the      former judgment  was not admissible in the present

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    suit."                                              (Emphasis ours)      In  Gadadhar   Chowdhury  &   Ors.  v.   Sarat  Chandra Chakravarty & Ors.(1) it was held that findings in judgments not inter  parties are  not admissible  in evidence. In this connection a  Division Bench  of  the  Calcutta  High  Court observed as follows:           "Though  the   recitals  and  findings  in  a      judgment not  inter parties  are not admissible in      evidence, such  a judgment  and decree are, in our      opinion, admissible  Lo  prove  the  fact  that  a      decree was  made in a suit between certain parties      and for  finding out  for what  lands the suit had      been decreed."      This, in  our opinion,  is the  correct legal  position regarding the admissibility of judgments not inter parties, 864      In Maharaja  Sir Kesho  Prasad Singh Bahadur v. Bahuria Mt. Bhagjogna  Kuer &  Ors.(1) the  Privy Council  made  the following observations:           "Whether based  upon sound  general principle      or merely supported by reasons of convenience, the      rule that  so far  as regards  the  truth  of  the      matter  decided   a  judgment  is  not  admissible      evidence against one who is a stranger to the suit      has long  been  accepted  as  a  general  rule  in      English law.      Their Lordships  find themselves  in agreement with the observation of Ross, J:           ’The judgment is not inter parties, nor is it      a judgment  in rem, nor does it relate to a matter      of a  public nature. The existence of the judgment      is not  a fact  in issue;  and if the existence of      the  judgment   is  relevant  under  some  of  the      provisions of  the Evidence Act it is difficult to      see what inference can be drawn from its use under      these sections.           Serious consequences  might ensue  as regards      titles to land in India if it were recognised that      a judgment  against  a  third  party  altered  the      burden of  proof as  between rival  claimants, and      much ’indirect laying’ might be expected to follow      therefrom."                                     (Emphasis supplied)      This principle  was reiterated in the case of Coca-Cola Co. of  Canada Ltd.  (already referred to on the question of relevancy of  dictionary while  dealing with  Ex.  J)  where their Lordships in most categorical terms expressed the view that no  judgment which  was not inter parties or the one to which neither  the plaintiff  nor the defendant were parties could be  used in  evidence for any purpose. It appears that in the case referred to above the President of the Exchequer Court had  relied on  facts found  in the  judgment  of  the Chancellor  and   drawn  support  from  the  uncontradicated evidence  given   by  the   Chancellor.  The  Privy  Council diprected this  practice of  relying on judgments which were not inter  parties in  the sense  that a  judgment in  which neither the plaintiff nor the defendant were parties, and in this connection Lord Russell observed thus: 865           "The  learned   President  relied   on   this      judgment"  as   very  formidable  support  to  the      plaintiff’s contention that ...there is likelihood      of confusion";  but in their Lordships’ opinion he      was not  entitled to  refer  to  or  rely  upon  a

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    Judgment given in proceedings to which neither the      plaintiff  nor  the  defendant  was  a  party,  as      proving the facts stated therein."                                     (Emphasis supplied)      We entirely  agree with  the observations  made by  the Privy Council  which flow  from a  correct interpretation of sections 40 to 43 of the Evidence Act.      Same view  was taken by a full Bench of the Madras High Court in Seethapti Rao Dora v. Venkanna Dora & Ors(1). where Kumaraswami Sastri, J. Observed thus:           "I am  of opinion  that  section  35  has  no      application to  judgments, and  a  judgment  which      would not be admissible under sections 40 to 43 of      the Evidence  Act would not become relevant merely      because it  contains a  a statement  as to  a fact      which is  in issue  or relevant  in a suit between      persons who  are not  parties or privies. Sections      40 to  44  of  the  Evidence  Act  deal  with  the      relevancy of judgments in Courts of justice."      The cumulative  effect of  the decisions cited above on this point clearly is that under the Evidence Act a judgment which is  not inter  parties  is  inadmissible  in  evidence except for  the limited  purpose of  proving as  to who  the parties  were  and  what  was  the  decree  passed  and  the properties which  were the  subject matter  of the  suit. In these circumstances,  therefore,  it  is  not  open  to  the plaintiffs respondents  to derive  any support  from some of the judgments  which they  have filed  in order  to  support their title and relationship in which neither the plaintiffs nor the  defendants were  parties. Indeed,  if the judgments are used  for the  limited purpose  mentioned above, they do not take us anywhere so as to prove the plaintiffs case.      It is also well settled that statements or declarations before persons  of competent knowledge made ante litem motam are receivable  to prove  ancient  rights  of  a  public  or general nature vide 866 Halsbury’s Laws  of England  (Vol. IS:  3rd Edition, p. 308) where the following statement is to be found: ’           "Declarations   by    deceased   persons   of      competent knowledge,  made ante  litem motam,  are      receivable to  prove ancient rights of a public or      general nature.  The admission  of declarations as      to those rights is allowed partly on the ground of      necessity, since  without  such  evidence  ancient      rights could  rarely be established; and partly on      the ground  that the  public nature  of the rights      minimises the risks of mis-statement."      The admissibility  of such  declarations  is,  however, considerably weakened  if it  pertains not  to public rights but to  purely private  rights. It  is equally  well settled that declarations  or statements made post litem motam would not be  admissible because  in cases or proceedings taken or declarations made  ante litem motam, the element of bias and concoction is eliminated. Before, however, the statements of the nature  mentioned above  can be admissible as being ante litem  motam  they  must  be  not  only  before  the  actual existence of  any controversy  but they  should be made even before  the  commencement  of  legal  proceedings.  In  this connection, in  para 562  at page  308 of Halsbury’s Laws of England (supra) the following statement is made:           "To obviate  bias, the declarations must have      been made ante litem motam, which means not merely      before the  commencement of legal proceedings, but      before  even   the   existence   of   any   actual

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    controversy, concerning  the subject matter of the      declarations. So  strictly  has  this  requirement      been enforced  that the  fact that  such a dispute      was unknown  to the declarant, or was fraudulently      begun  with   a   view   to   shutting   out   his      declarations, has been held immaterial."      This position  however cannot  hold good  of statements made post  Item motam which would be clearly inadmissible in evidence. The  reason for this rule seems to be that after a dispute has begun or a legal proceeding is about to commence the possibility  of bias,  concoction or  putting  up  false pleas cannot  be ruled out. This rule of English law has now been crystallised  as one of the essential principles of the Evidence Act  on the  question of admissibility of judgments or documents. M.M. Prassd, J, has dealt with this 867 aspect of  the matter  fully and  we entirely agree with the opinion expressed  by him  on this  point In  fact,  section 32(5) of  the Evidence  Act itself  fully  incorporates  the doctrine of  post litem  motam the relevant portion of which may be extracted thus:      "32. Cases  in which statement of relevant fact by           person who  is dead or cannot be found, etc.,           is relevant      (5)   .... the  person making  the  statement  had           special means  of  knowledge,  and  when  the           statement was  made before  the  question  in           dispute was raised."      In Kalka  Prasad & Ors. v. Mathura Prasad (1) the Privy Council refused  to accept  a pedigree which was of the year 1892 because  the controversy  had originated  in  the  year 1891, that  is to say, a year before the pedigree was filed. In this  connection, commenting on the genealogy relied upon by the plaintiff their Lordships observed as follows:           "Taking them  in the  reverse order, the last      is  inadmissible,  having  been  made  post  litem      motam.      ...                  ...                       ...           In order  to make  the statement inadmissible      on  this   ground,  the  same  thing  must  be  in      controversy before  and  after  the  statement  is      made."      In Hari  Baksh v.  Babu Lal  & Anr.(2)  their Lordships observed as follows.           "It appears  to their  Lordships  that  these      statements  of   Bishan  Dayal  who  was  then  an      interested party  in the  disputes  and  was  then      taking a  position adverse to Hari Baksh cannot be      regarded  as   evidence  in   this  suit  and  are      inadmissible."      It appears  in that  case one  Bishan Dayal who was the defendant in  a suit  for partition  which  was  brought  on August 7,  1908 made a Will on the 26th November, 1908, that is to  say, about  two and  a half months after the suit was filed. The statement of Bishan 868 Dayal in the suit of 1908 was sought to be relied on but the Privy Council  held the statement to be inadmissible because he had  already become  an interested  party and  the  case, therefore, had been hit by the doctrine of post litem motam.      In Dolgobinda  Paricha v.  Nimai Charan Misra & Ors.(1) this  Court   held  that   the  statement  in  question  was admissible because  it  was  made  before  the  question  in dispute had  arisen. In other words, this Court held that in the facts  and circumstances  of that case the statement and

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the pedigree  relied upon were made ante litem motam and not post litem  motam, for  if the latter had been the case, the document  would   have  become   inadmissible  and  in  this connection the Court observed thus:           "That being  the position,  the statements as      to pedigree  contained in  Ex. I  were made before      the precise  question in  dispute in  the  present      litigation had arisen."      In Kalidindi  Venkata Subbaraju  & Ors. v. Chintalapati Supparaju &  Ors(2). while  construing the provisions of cl. (5) of  s. 32  of the  Evidence Act  this Court  observe  as follows:-           "Both sub-ss.  5 and 6 of s. 32, as aforesaid      declare  that   in  order  to  be  admissible  the      statement relied  on must be made ante litem motam      by  persons   who  are   dead,  i.e.,  before  the      commencement of  any controversy  actual or  legal      upon the same point."      Relying on  an earlier  case of  the Privy Council this Court further observed thus:           "In Kalka  Prasad  v.  Mathtlra  Prasad(3)  a      dispute arose in 1896 on the death of one Parbati.      In 1898  in a  suit brought  by one  Sheo Sahai  a      pedigree was  filed. After  this,  the  suit  from      which the  appeal went up to the Privy Council was      instituted in  1901. It  was held  there that  the      pedigree filed  in 1898  was not admissible having      been made post litem motam." 869      Thus,  summarising   the  ratio   of  the   authorities mentioned  above,   the  position   that  emerges   and  the principles that  are deducible  from the aforesaid decisions are as follows:-      (1)   A judgment in rem e. g., judgments or orders           passed  in  admiralty,  probate  proceedings,           etc., would always be admissible irrespective           of whether they are inter parties or not,      (2)   judgments in  personam not inter parties are           not at  all admissible in evidence except for           the three purposes mentioned above.      (3)   on a  parity  of  aforesaid  reasoning,  the           recitals in a judgment like findings given in           appreciation of evidence made or arguments or           genealogies referred to in the judgment would           be  wholly   inadmissible  in  a  case  where           neither the  plaintiff nor the defendant were           parties.      (4)   The  probative  value  of  documents  which,           however ancient  they may be, do not disclose           sources of  their  information  or  have  not           achieved  sufficient  notoriety  is  precious           little.      (5)    Statements,  declarotions  or  depositions,           etc., would  not be  admissible if  they  are           post litem motam.      We  would  now  discuss  the  evidence  both  oral  and documentary in  the light of the principles laid down by the aforesaid decisions. By way of introduction. it may be noted that in  the present  case the  onus lies  squarely  on  the plaintiff Radha  Kirshan Singh  to prove his case by showing that he  was the  next reversioner  of the late Maharaja and that every  link in  the genealogical  tree which he has set out in  the plaint  was proved. Only after he has discharged his  burden  by  proving  the  aforesaid  facts,  could  the defendents be  called upon to rebut their case. On a careful

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scrutiny of  the evidence  it seems  that what the plaintiff has done  is to  file any  and every  document,  deposition, statement, declaration,  etc., where  there is any genealogy which connects  him with  either the  Maharaja of Banaras or his gotias without making any attempt to prove the main link on which rests the entire fabric of his case. The result has been that  the plaintiffs  have  landed  themselves  into  a labyrinth of delusion and, 870 darkness from which it is difficult for them to come out and the case  made out  by them  has been reduced to smithereens and smoulders  and despite  all their  snaring and  snarling they have  miserably failed to prove the pivotal point viz., the link between Ramruch Singh, Gajraj Singh, Debi Singh and Bansidhar Singh.      With these  introductory  remarks  we  now  proceed  to discuss the  evidence led  by the  Plaintiffs on  the points indicated above.      In considering  the documentary evidence we shall begin with the  documents Exhibits  P/2, V., DD/30 and DD/31 which are closely  connected documents.  It would  appear from the plaintiffs,  genealogical   tree,  which  for  the  sake  of convenience has been put at one place in Volume VIII at page 131 and  which has  been extracted earlier in this judgment, that Balbhadra  Singh was  grandson of  Pahalwan  Singh  and Sangam Kuer  was his  sister who died issuless. Bhola Singh, on the  right hand  side of  the genealogy,  was grandson of Farman Singh and son of Deo Narain. It is therefore, obvious that after  the death  of Jaimed Kuer, Bhola Singh could not be her  next reversioner,  who  would  be  Harendra  Kishore Singh. Thus,  the title  conveyed by Bhola Singh to Maharaja of Banaras  under a sale which was the subject matter of Ex. DD/30 was  a bag of wind and is the surest proof of the fact that  the   transaction  in   question  was  merely  a  sham transaction. The  contents of the Sale Deed, Ex. V also show that  it  was  without  consideration  because  it  contains extraordinary terms  and recitals which will be discussed by us hereafter  and which were seriously commented upon by the judgment Ex. DD/30 rendered by the trial court in that suit.      Coming now  to the  Sale Deed (Ex. V) at pages 33-34 in Volume III,  it appears  that the property sought to be sold actually belonged  to Mst.  Jaimed Kuer who died in 1881. In the Sale  Deed Bhola  Singh claimed (in our opinion falsely) that he  was the  legal heir  of Jaimed  Kuer whereas as the true legal heir was the late Maharaja. According to the Sale Deed the  properties in  question were sold to Prabhu Narain Singh of  Kashi (Banaras)  for a  sum of  Rs. 25,000. In the sale deed,  Bhola Singh had clearly described himself as the sole heir  of Mst.  Jaimed Kuer,  which was admittedly false because even  according to  the  plaintiffs’  genealogy  the nearest  heir,  as  we  have  already  indicated,  would  be Harendra  Kishore  Singh  and  not  Bhola  Singh.  Secondly, another extraordinary  feature of  the Sale Deed is that out of the consideration money of Rs. 25,000 a sum of 871 Rs. 12,500 that is to say, half the amount, only was paid to the vendee.  Furthermore, a  set off  of Rs. 9979/10/8 (nine thousand nine  hundred seventy  nine and  annas ten and pies eight) was given to the vendee in respect of the rehan money payable to  him which  was said to have been taken by Jaimed Kuer from  the Maharaja of Banaras. Another sum of Rs. 5,000 was left  in deposit  with the  vendee in  order to meet the expenses  for   recovering  the  properties  which  were  in possession  of   other   persons.   The   balance   of   the consideration of Rs. 10,022.5.4 (ten thousand twenty two and

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annas S  and pies  four) was  received by  the vendor, Bhola Singh, in  cash out  of which  Rs.  2020-S-4  (two  thousand twenty and  annas  S  and  pies  four)  were  spent  on  the execution of  the sale  deed and Rs. 8,000 was again left in deposit with  the  vendee  for  his  satisfaction  till  the document was  executed. As  Bhola Singh  himself  was  fully aware that  he had no title to the properties at the time of the  sale,   he  on  the  one  hand,  deposited  the  entire consideration money, excepting a very small amount, with the vendee and,  on the  other hand,  made no secret of the fact that these  amounts were  to be  spent by the vendee to meet the expenses  of litigaton  arising out  of  the  defect  of title. Thus,  on a perusal of the recitals of the sale deed, it would  appear that  out of  a consideration amount of Rs. 25,000 a  paltry sum  of Rs.  1700 was  taken by Bhola Singh which shows  the very peculiar and pretentious nature of the transaction. In other words, Bhola Singh sold the properties for a  song knowing full well that he had no interest in the properties.  Although   the  sale  was  in  respect  of  the properties of  Mauza Majhwa, District Mirzapur, yet the sale Deed was  registered in  Banaras town  and in  order to give jurisdiction to the Sub Registrar of Banaras a miserable mud built house  covered with  earthen tiles  was given  to  the Maharaja Prabhu  Narain Singh.  Most of the witnesses to the sale deed  hailed from  Mirzapur. The  properties which were mortgaged to  Mahadev were  sold to  the Maharaja of Banaras under this  document. Most of the witnesses to the sale deed were from  Mauza Baraini  or Majhwa  and there  was only one witness from Banaras. The transaction, therefore, manifestly shows that  since all  the properties  sold were in District Mirzapur, just  to make a show of sale in respect of Banaras property also,  the mud house was included in the sale deed. Thus, the  main purpose  for which  this document  has  been relied upon by the plaintiffs-respondents is that it gives a genealogy which,  according to them, supports that they were the descendants  of Bansidhar  Singh. The  said genealogy is reproduced below: 872 Babu Bansidhar Singh First wife                    Second wife Babu Ramruch Singh, died      Babu Debi Singh, died Babu Gajraj Singh, died       Babu Aini Singh, died Babu Farman Singh, died       Babu Pahalwan Singh, died Babu Deonarain Singh, died    Babu Tilak Singh, died Babu Bhola Singh alive        Babu Balbhaddar Singh                               Thakurain Jaimed Kuer,                               deceased, wife of Babu                               Balbhaddar Singh,                               deceased      The contention of Mr. Tarkunde, was that this genealogy was filed  at a  time when  there was no dispute between the parties and  it fully  supports the  plaintiffs’ case  as it shows that Bhola Singh on one side is a direct descendant of Gajraj  Singh,   Ramruch  Singh  and  Bansidhar  Singh,  and Thakurain Jaimed Kuer was a direct descendant of Debi Singh, son of  Bansidhar Singh. It is impossible to infer that this genealogy is correct and connects all the necessary links in order to  prove the  plaintiffs’ case  as put forward in the plaint. For  instance, Deep  Narain Singh,  elder brother of Bhola Singh has not been mentioned at all in this genealogy. Similarly, Pratap  Narain Singh  who was a great-grandson of Gajraj Singh  has not  been mentioned in this genealogy, and also the  name of  Raghunath Singh who was son of Aini Singh is also  not mentioned  therein. Moreover, no legal value or significance can be attached to the genealogy when the terms

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and recitals of the document have been found to be false and the court in which the suit based on the sale deed was filed was clearly of the opinion that the entire transaction was a sham one.  Thus, there  can be  no guarantee of the truth of the statements  made by  Bhola Singh  or even  the genealogy given by  him in that sale deed. Therefore, the genealogy is incorrect, inaccurate  and incomplete  and no reliance could be placed  on this  document for  the purpose of proving the plaintiffs’ genealogical  tree. The trial court had rejected this document  (Ex. V)  and go  had one  of the Judges (M.M. Prasad, J.) in the High Court and, in our opinion. rightly.      Lastly, regarding  this document,  it may  be mentioned that soon  after the  execution of  the sale  deed the  late Maharaja had  already been substituted as the heir of Jaimed Kuer as  proved by  the documents  Ex.  U/3  and  DD/43  and ultimately Narendra  Kishore Singh  was held to be the legal heir of  Jaimed Kuer  by the  Allahabad High  Court  by  its judgement dated 13.4.88 (Ex. DD/43). In these 873 circumstances, since  the question  of succession had opened between the parties the document Ex. V would also but hit by the doctrine  of post  litem motam  and,  therefore,  it  is inadmissible in evidence under s. 35 of the Evidence Act and hence has to be excluded from consideration.      Coming now  to Ex.  DD/30 (Vol.  IV, page 116) which is the judgment given in respect of the Sale Deed (Ex. V) which we have  discussed above,  the trial  court after a full and complete consideration  of the contents of the document held that Bhola  Singh had no right to execute the sale deed, and that the  plaintiff did  not purchase  any legal  right. The court  also   held  that   Bhola  Singh  was  not  the  next reversioner of  Mst. Jaimed  Kuer and that the consideration was also  illusory. In other words, the trial court rejected the case of the plaintiff in toto in that suit.      Reliance was sought to be placed by the counsel for the plaintiff on  some recitals  in the  judgment regarding  the genealogy  and  the  statement  of  some  of  the  witnesses examined before  the Court.  However this  question need not detain us  any further because we have already held from the reported decisions  of this Court as also those of the Privy Council  that  a  recital  of  facts  or  evidence  or  even genealogy  in   judgments  not  inter  parties  are  totally inadmissible in  evidence. The judgment Ex. DD/30, was not a judgment  inter   parties  and   therefore  any  recital  or statement made  therein would not be admissible to prove the plaintiff’s case.  The argument  of Mr.  Tarkunde  that  Ex. DD/30 speaks  for the whole of the genealogical table of the family as  being correct,  is not an accurate description of the genealogy  because the  judgment also  mentions the fact that  the  genealogy  was  disputed.  Even  so,  taking  the judgment ex  facie it  would appear that Ex. DD/30 bases its conclusion that  Bhola Singh  was a  descendant of Bansidhar Singh solely  on the  deposition of  Har Nandan Singh but as the deposition  of this witness was not even produced in the present case,  any statement made with respect do Har Nandan Singh would  be completely  inadmissible and cannot be taken into consideration  for any purpose whatsoever. Furthermore, it has  not been  shown that Har Nandan Singh was in any way related to the family of Bhola Singh or to the late Maharaja so that  he may  have any  special means of knowledge and on this account  also his  statement is  hit by s. 32(5) of the Evidence Act. Again Har Nandan Singh’s evidence in the suit, which was  decided by Ex. DD/20, clearly shows that Bansidar Singh had a son known as Ramhit Singh whose 874

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descendants had appeared as witnesses but Ramhit Singh finds no  mention  at  all  in  the  plaint  genealogy.  In  these circumstances,  therefore,   we  are  unable  to  place  any reliance on the judgment Ex. DD/30.      Coming now  to the  appeal judgment. Ex. DD/31, (Volume IV, page  121) the  appellate court  affirmed the finding of the trial  court and  found  that  Bhola  Singh  was  not  a reversioner of  Jaimed Kuer  and, therefore, had no title to sell the properties to the late Maharaja The appellate court further found  that the  whole tenor  of the sale deed shows that  the   Maharaja  of  Banaras  purchased  a  litigation. Reliance was  placed by  Mr. Tarkunde  on  certain  recitals pertaining to  genealogy but even though the Judge held that the late  Maharaja was  a descendant  of Raghunath Singh yet there is  no mention  of Raghunath  Singh in  the  genealogy given in that suit. Moreover, the genealogy given in Ex. P-2 is  totally   inconsistent  with   and  different  from  the genealogy propounded  by the  plaintiffs. A  number of names and heirs  of the  two lines  of Bansidhar Singh, that is to say, Debi  Singh and  Ramruch Singh  have not  at  all  been mentioned in  this genealogy.  The name  of Raghunath Singh, one of the sons of Aini Singh, in Suit No. 130 of 1856 filed by Suman  Kuer in  respect of a pond known as Hansraj Pokhra in  Majwa   village  is  conspicuous  by  its  absence.  The explanation given  by the  counsel for  the respondents  was that it  was not necessary to give the name of all the heirs of Bansidhar  Singh or  for that matter of Debi Singh, hence these omissions  in the  genealogy. We  are, however, not at all impressed  with this  explanation because  some  of  the names not mentioned in the genealogy in Ex. P-2 are supposed to be based as links in order to prove the plaintiff’s right to be  the next  reversioner of the late Maharaja whose name also does  not find a place in this genealogy although he is supposed to be a direct descendant of Debi Singh.      Before closing the discussion of the documents referred to above,  viz.,  Exhibits,  V,  DD/30  and  DD/31,  it  may necessary to notice the arguments which were advanced by Mr. Tarkunde with  some amount  of vehemence.  As regards Ex. V, the sale-deed executed by Bhola in favour of Maharaja Prabhu Narain of  Banaras, it  was contended that even though Bhola may not  have been the actual reversioner of Jaimed Kuer yet as the  late Maharaja  was not  interested in the properties covered by  Ex. V he did not raise any objection although he knew about  the execution  of the  said sale deed. Hence, it could be  safely presumed  that Bhola was the defacto though not de jure reversioner of Jaimed Kuer because he 875 was next  in the  line after  the late Maharaja. In order to buttress this  argument reliance  was placed  by counsel for the respondents  on some  observations of Mukherji, J. to be found in  volume VIII,  para 69, page 219. With due respect, the observations  made by  the learned  Judge were  based on pure  speculation  and  were  not  supported  by  any  legal evidence. There is no evidence to show that the Maharaja was aware of  the sale  deed nor  was there any evidence to show that the  late Maharaja  did not want to take the properties of Jaimed Kuer by inheritance. The only reason given for the aforesaid  knowledge   of   the   Maharaja   regarding   the transaction was that he was a close relation of the Maharaja of Banaras and therefore it must be presumed that he must be in the know of the aforesaid transaction. In support of this argument, our  attention was  drawn to some documents of the year 1885  viz., Exhibits  F-4, 5,  7 and  8 to show that in 1885 Jaimed  Kuer had  made an  offer to  Maharaja  Harendra Kishore Singh  that she  would like to surrender or sell out

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her entire properties to him. The Maharaja, however, refused to take the properties, either by surrender or by sale. From this conduct it was sought to be inferred by the counsel for the respondents  that the Maharaja was not at all interested in the  properties of  Jaimed Kuer.  In our  opinion,  these arguments are  based on  surmises and  conjectures  and  are without any  legal basis.  The mere  fact that  the Maharaja spuerned the  offer  of  Jaimed  Kuer  of  surrendering  her properties to  him would not show that he was not interested in the  properties because  he knew full well that after her death the  properties were  bound to come to him as the next reversioner and  he would  have an  absolute interest in the same. It  is quite  possible that the offer of surrender may have hurt  the vanity  and self-respect of the Maharaja as a result of  which he  spurned the offer. At any rate, instead of wandering  amiss hither  and thither  into the  realm  of imagination and  speculation like  Alice in  Wonderland, the fact is  that  the  Maharaja  did  get  the  properties  and resisted all  claims against  the same  as would appear from the documents  Exhibits U/3  and DD/43 by which the Maharaja was substituted  as the heir of Jaimed Kuer on her death and was held  to be a legal heir by the judgment dated 13.4.1888 of the  Allahabad High  Court (Ex. DD/43). The said judgment shows that  the Maharaja  accepted the position of his being the legal  representative and  heir of  Jaimed  Kuer.  This, therefore, clearly  negatives  the  contention  advanced  on behalf of  the respondents  that the  Maharaja was extremely reluctant to take the properties of Jaimed Kuer. The conduct of the  Maharaja in  unconditionally accepting the ownership and the inheritance of the 876 properties of  Jaimed Kuer  far  outweighs  the  speculative argument of  Mr. Tarkunde  that the  the Maharaja was either not interested  or had  some reservations  or was in any way reluctant to  take the  properties of  Jaimed Kuer after her death. If  there  was  any  reluctance  at  all  before  the properties could  legally come to the Maharaja, it was fully justified and  in  keeping  with  the  self-respect  of  the Maharaja as  indicated above. Indeed, if there was any truth in the  facts adumbrated by the counsel for the respondents, the Maharaja  could very well have refused to be substituted as an  heir or  to take  the properties of Jaimed Kuer. This circumstantial   evidence   speaks   volumes   against   the speculative plea  of the  respondents that  the Maharaja was not at  all interested  in the properties of Jaimed Kuer. It was further  explained by  Mr. Tarkunde  that the Maharaja’s reluctance in  taking the  properties  was  because  of  the family history  of Bettiah  Raj ever  since the time of Raja Bir Kishore  Singh and  the Maharaja did not want to get rid of his  Jethria caste  and wanted to stick to the claim that Jugal Kishore  Singh got  the Bettiah  Raj  because  of  his adoption by  Raja Dhrub  Singh, a fact which we have already narrated in  tile earlier  part of the judgment. This again, is another  conjectual process  of reasoning  adopted by the learned counsel for the respondents.      In fact,  the main thrust of the respondents to rely on Ex.V. and  the two  judgments was  inspired by the fact that somehow or  the other the genealogy mentioned therein should be proved  to be  correct and  admissible. This is, however, not legally possible because the recitals of these documents have been  held to  be inadmissible  in evidence.  Moreover, even at  the risk of repetition, we might say that it is too much to  justify a  rejected, dejected,  sham  and  spurious transaction as  being valid on a fictitious supposition that Bhola the  executant was  a sort  of an  illusory  de  facto

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though not a de jure reversioner and that too half a century after the  judgment of  the trial  court and  the  appellate court Exs.  DD/30-31) had  rejected this  document as  being sham and  collusive which  had become final and irrevocable. And all  this futile  and amorphous exercise only to rely on the  genealogy   given  in   Exs.  V   and  P-2  which  both inadmissible and incorrect.      Dr. Singhvi,  appearing  for  the  appellants,  rightly pointed out  that the entire edifice of the arguments of the respondents is  based on  a pack of cards which must collaps the moment  the court makes a through probe into the various constituents or  bricks which  from the  foundation  of  the edifice. The  learned counsel  also pointed out that even in the judgment (Ex. DD/30) 877 it has  not been  said that  the  genealogy  was  wholly  or undisputedly correct  but the  exact expression used is "the whole genealogical  table of  the family which is disputed". Since the  genealogy was  not admitted by the parties to the sale  deed,  it  carries  no  value  particularly  when  the judgment  was   not  inter   parties.  For   these  reasons, therefore, the  arguments of  Mr. Tarkunde  must necessarily fail.      Finally, all the three documents, Exhibits V, DD/30 and DD/31 are  hit by  the doctrine  of  post  litem  motam.  We therefore, agree  with the  conclusions arrived  at by  M.M. Prasad, J.  On this point. As regards Ex. P-2 which was only a plaint  in the  suit which  was the  subject matter of Ex. DD/30, whatever  is true of DD/30 equally applies to Ex. P-2 (Vol. IV page 245).      Ex. 0/3  (Vol. 3, page 85) is a written statement filed in title suit No. 55 of 1893 (the suit which was the subject matter of Ex. DD/30 and DD/31) in which Mahadev Prasad Singh denied all the allegations made by Bhola Singh and expressly stated that  Bhola Singh was not an heir of Jaimed Kuer, and that the  sale deed  and ekrarnama executed in favour of the plaintiff was  without consideration and are not vaild. This document, therefore,  far  from  supporting  the  plaintiffs negatives their case and is of no assistance to us.      We would  next deal  with Ex. Q-2 (Vol. V, page 239) on which great  reliance has  been placed  by counsel  for  the respondents. This  document appears  to be a genealogy which is said  to have  been produced on behalf of the defendants, Ramratan Singh and Harkhan Singh. This document is primarily used as the sheet-anchor of the plaintiffs’ case in order to prove their  genealogy. Unfortunately, however, the history, the manner  and the  circumstances under which this document has taken  several different  forms  throws  a  considerable doubt on  the genuineness  or authenticity of this document. One version  of Ex.  Q-2 is  to be found in Vol. IV at pages 437-440 and  another in Vol. V at page 239 and a third which was sent to this Court by the Deputy Registrar of Patna High Court who  claimed that  it was  taken out  of a  bundle  of miscellaneous   papers    lying   with   the   summons   and vakalatnamas.  The   Deputy  Registrar   claims  that   this documents (Ex.  Q-2) is  the one which was before the Judges of the  High Court  and was  considered by  them, but  which seems to  have been  relied upon by the majority judgment of G.N. Prasad  and Mukherjee,  JJ and rejected by the minority judgment of  M.M.Prasad, J.  Unfortunately, however,  we are not in  a position  to determine as to which of the versions of Ex. Q/2 was actually considered by the 878 court. According to the appellants, Ex. Q/2 is not a genuine document, which seems to have been introduced in the records

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of the present suit allegedly by the present plaintiffs.      To being  with, Ex.  Q/2 was brought to the trial court by the Head clerk of the Civil and Sessions Judge, Mirzapur. The original  document was  also called  for and  the  stand taken by  the appellant  was that the document was of a very suspicious nature.  At any rate, since the original document was marked  in evidence, M.M.Prasad, J. had rightly observed that the  points urged  by the appellants about the document being suspicious  do not  survive. It  appears that the Head clerk who  was examined  as DW-6  stated that  the certified copy was  marked as Ex. Q/2 although the earlier entry shows that the original itself was marked as Ex. Q/2. DW-6 further admitted that  there was a table of contents attached to the records which  he had brought but the number of suit was not mentioned in  the aforesaid  table. He further admitted that he was  unable to  decipher item  No.  5  in  the  table  of contents and, therefore, could not say whether any genealogy was mentioned  as being  a part  of the  aforesaid  list  of documents.      Lastly, the  learned Judge  pointed out that DW-6 could not vouch-safe  that the  document was a part of the records of Title  suit No. 130 of 1856. Indeed, if this document had been filed  in the  said suit since a number of documents of that time  had been produced in the present suit there could not have  been any  difficulty for  the plaintiffs  to  have obtained a  copy of the order-sheet or the list of documents to dispel  any  doubt  regarding  the  authenticity  of  the original document (Ex. Q/2).      M.M. Prasad,  J. relies  on another  circumstance  that there is  no mention  of either the name of the court or the number of the suit or the names of the parties, nor any seal of the  court which  could have identified or connected this document with  the aforesaid suit. The document merely bears the date 15.8.1856. It appears from Ex. DD/39, a judgment in suit No.  13()/1856, that Ramadhin was not the vakil for the defendants. There  are other circumstances which were relied upon by  the learned Judge in order to doubt the veracity of this document.  After considering  a number of circumstances which it  is not  necessary for  us to detail in the present case, the learned Judge observed as follows.           "It is, therefore, impossible to believe that      those  endorsements   had  been  existing  in  the      genealogy at the 879      time of  the filing  of the  document if at all in      the suit.  There cannot  be the  slightest  doubt,      even assuming  that the document had been filed in      the aforesaid  suit, that  it  has  been  tampered      with.   Somebody   interested   in   showing   the      relationship between  Bansidhar and Bettiah family      must have  done it  without considering that other      documents would belie it.      ...                 ...                  ...           It cannot  be said  that the  fact  that  the      defendant’s    lawyer    filed    the    genealogy      conclusively shows  that the  statements contained      therein had been made by one of the two defendants      or both.  The genealogy  could have  as well  been      prepared on the instruction of anybody else making      pairvi  in   the  suit   or  behalf   of  the  two      defendants. It  is not  signed by  either  of  the      defendants. The  authorship of  this  genealogical      table cannot,  therefore, be  said  to  have  been      proved. This  is another  difficulty in the way of      its admissibility."              (Vol . VIII pp. S

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    15, S 17)      Apart from the aforesaid circumstance the learned Judge has relied  on the  following circumstances  to hold against the genuineness of the contents of this document:      (1)   Although it was a genealogy which formed the           cornerstone of  the case  of the  parties  no           Exhibit mark  has been  put on  the  document           which  one   usually  finds   in  a  document           accepted in any suit.      (2)   All the  important documents  filed  in  the           aforesaid  suit   have  been   enumerated  or           mentioned in  the judgment  (Ex.  DD/39)  but           there is  no  mention  of  this  genealogical           table.      (3)  There is no reliable evidence in this case to           show   that   Harkhan   and   Ramratan   were           descendants of  one  Bikram  Sahi  or  Bikram           Singh who was shown as a brother of Bansidhar           Singh. There  are lot  of other discrepancies           pointed out by M.M. Prasad, J. which have not           been  adequately   rebutted  either   by  the           majority judgment  or by  the counsel for the           respondents, 880      We now  come to  the most serious problem regarding the contents of  Ex. Q/2.  It is  also worth  noting  that  each version of  Ex.  Q/2  is  distinctly  different  and  it  is difficult to  ascertain and  choose as to which of the three versions is  correct. Another  circumstantial evidence which throws serious  doubt on  the genuineness of the document is as to  what had  happened to  the  document  which  was  got translated by the High Court, as observed by M M. Prasad, J. in his  judgment. The  letter of the Deputy Registrar of the Patna High  Court seems  to suggest  that the  third version which he  suddenly found  in the bundle of papers containing summons and  vakalatnamas was the real one. It is not at all understandable how an important document like Ex. Q/2, which was the subject matter of a very serious controversy between the parties  in the  High Court,  could find  a place in the miscellaneous paper  which do not contain important Exhibits or documents  but are  meant only  for purposes  cf  keeping formal papers  like summons,  vakalatnamas, etc.  We find it difficult to believe the explanation of the Deputy Registrar of the  Patna High Court that he suddenly found the real Ex. Q/2 in  a bundle  of papers  and then despatched the same to this Court.  But the  fact is  that this  document  was  not despatched at  the time  when the  records were sent to this Court though the other two versions had been sent.      It would  appear from  Ex. DD/39  (Vol. IV p. 108) that Soman Kuer  and Jaimed  Kuer were  related to  the last male holder of  the Bettiah  Raj and  were the  plaintiffs of the suit where  as Ramratan  and  others  were  the  defendants. Ramratan has  not been proved to be related to the family of the late Maharaja or to that of the plaintiff. His name also was  not   mentioned  by  the  plaintiffs  in  the  pedigree propounded by  them in  the present  suit As Ramratan had no connection either with Bansidhar Singh or Ramruch Singh, the genealogical  table  filed  by  his  pleader  would  not  be admissible in evidence.      Realising these  defacts, Mr. Tarkunde submited that he would prefer  to rely  on Ex. Q/2 as brought out at page 239 in Volume  V of  the Paperbook in the present suit though he did not  give any particular reason of justification for the same. Assuming  that Ex.  Q/2 printed  in Volume  V  is  the correct version,  there are a number of errors and omissions

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in the  aforesaid genealogy.  It would  appear  that  Thakur Hirday  Narain   Singh  had  five  sons  viz.,  Amar  Singh, Bansidhar Singh,  Rudra Sahi,  Chhatra Sahi and Bikram Sahi. The name of Hirday Narain Singh finds clear mention in Ex. J where Durga  Prasad mentioned  the names  of  his  sons  but neither Bansidhar, 881 nor Amar  Singh, nor Rudra Sahi, nor Chhatra Sahi find place among  the  names  of  the  sons  of  Hirday  Narain  Singh. Secondly, there  is no  mention of  Ramruch Singh  as  being connected in  any way  with either  Bansidhar or  Debi Singh which completely  falsifies the  plaint genealogy,  and  the fundamental link  which may  connect the plaintiffs with the late Maharaja  is absolutely  wanting and  even the  name of Gajraj  Singh  does  not  find  a  place  anywhere  in  this genealogy.      There   are   a   number   of   other   omissions   and contradictions but  it is  sufficient for  us to  state that since the  main links are not connected this genealogy is of no assistance  to  the  plaintiffs.  Apart  from  that  this genealogy is  not a  public document but is a purely private document and  it has  not been shown as to who prepared this genealogy, in  what manner,  at what  time  and  under  what circumstances. No  person having  special means of knowledge of the  various heirs  mentioned in  this document  has been examined  in  these  circumstances  and  for  the  foregoing reasons  we   are  unable  to  place  any  reliance  on  the mysterious and murky document which Ex. Q-2 is.      Exhibit Q-5  is another  genealogical table of the late Maharaja which shows that he was a direct descendant of Debi Singh. A  portion of  this document  is, however,  torn  and hence we  cannot make  out as  to who the ancestor of Farman Singh was,  nor is  there any reference to Ramruch or Gajraj Singh. At  any rate,  both the  majority  and  the  minority judgments of  the High Court as also of the trial court have rejected this  document as  being a  purely spurious one. In this connection, Mukherji, J. speaking for the majority, has clearly  found  that  this  document  is  in  admissible  in evidence because  it is  alleged to  have  been  written  by Shital who  had no  special means  of knowledge  about  this family.  The   learned  Judge   also  found   a  number   of inconsistencies and  contradictions in the evidence of Avadh Behari, DW/32,  who purported  to prove Ex Q-5. M.M. Prasad, J. had also taken great pains to show that this document was per se  not genuine  as the paper on which it was written is old but  the writing  thereon is  fresh. He  also found that this document  was somehow  planted or introduced in a basta in which  the papers  of the  Bettiah Raj case were kept. He fully agreed  with Mukherji,  J. that  DW/32 was an entirely unrealiable witness who purported to prove the signatures of Shital on  Ex. Q-5.  For these  reasons, therefore,  without travelling further into the domain of 882 speculation and  surmises we  reject both  these  documents, Exhibits Q-2  and Q-5, as being totally irrelevant and of no consequence.      The defects  pointed out  in the  genealogies  and  the absence of  vital links  therein were  explained away by Mr. Tarkunde on  the ground  that since  it was not necessary in the case  of some  of the  genealogies filed  to mention the entire line  of ancestors  or other connected relations, the incompleteness  of   the  genealogies   would  not  put  the plaintiffs out  of court  or affect  the correctness  of the genealogies.  We   are,  however,   unable  to  accept  this explanation  which,   apart  from   being   fallacious,   is

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ambivalent  and   enigmatic,  for  the  very  purpose  of  a genealogy is  to connect  all the  important  and  essential links and  if falls  short  of  doing  so  then  it  becomes destitute of  any legal  effect and  has to  be discarded in toto.      Reliance was also placed on Ex. P-S (Vol. IV, page 407) which is a plaint filed in suit No. 108 of 1909 in the court of Sub  Judge, Mirzapur, by Bhagwati Prasad Singh, father of one of  the plaintiffs, This document has been filed for the purpose of  adding force and weight to the genealogical tree filed and relied upon by the plaintiffs in this case. In the first place,  Mr. Tarkunde  did not  place much  reliance on this document; secondly the plaint being in a suit not inter parties, the  recitals therein are inadmissible in evidence; thirdly, this  pedigree, even  if correct,  stops at  Gajraj Singh  who  is  shown  to  be  the  final  ancestor  of  the plaintifis. This  fact is  not disputed  by  the  appellants because, as  already pointed  out, the  essential dispute is regarding the  parentage and  ancestry of  Gajraj Singh, and this document throws no light on this vital question.      Reliance was  placed on Ex. KK/1 (Vol. VII P. 2) before the trial court but Mr. Tarkunde appearing for the plaintiff has merely  referred to  this document  without  asking  the court to  place implicit reliance on it and, in our opinion, rightly, because this document is wholly irrelevant to prove the  controversy  in.  dispute  and  merely  relates  to  an Ekrarnama executed  by Rajendra  Kishore Singh  nominating a Committee for  the purpose of managing the properties of his son, Chiranjiv  Rajkumar Harendra  Kishore Singh  (the  late Mabaraja) until  he attained majority. This merely shows the connection of  Maharaja of  Banaras and the late Maharaja of Bettiah. Therefore, this document is not relevant at all and it may  therefore, be  ruled out  of consideration so far as the present dispute about genealogy is concerned. 883      Exhibits K  and K-l  have been rejected not only by the majority judgment  but also  by the  trial court.  In  these circumstances it  is not  necessary for us to consider these documents in  any detail.  We would,  however, just  make  a passing reference  to these  documents to  show that they do not support  the case  of the  plaintiffs.  These  documents don’t bear any seal or signature, nor is it possible to find out when,  how and  under what circumstances these documents came into existence. Ex facie, they are not public documents and are  not admissible  in evidence  under  s.  35  of  the Evidence Act.  Mukherji, J.,  speaking for the majority, has clearly held  that these  documents are  a  inadmissible  in evidence and observed thus:-           "These  documents,   Exts.  K  and  K-l,  are      alleged to  be public  and official  documents and      according to the plaintiffs of Title Suit No. S of      1961 they  are in  the  nature  of  appendices  or      annexures to a report. Ex. J which is stated to be      a public document. In our opinion, it has not been      proved that  these documents Exts-K and K-1 are in      any way  connected with Ext. J. These documents do      not bear  any seal  or any  signature  and  it  is      difficult to  say as  to when these documents came      into existence.  Under these  circumstances, I  do      not accept  the contention  urged on behalf of the      plaintiffs of  Title Suit No. S of 1961 that these      documents are  dublic  documents  These  documents      cannot be  said to be admissible in evidence under      section 35  of the  Evidence Act."  (Vol.-VII,  P.      207)

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    Similarly, M.M.  Prasad, J.  while commenting  on these two documents  and pointing  out their infirmities concluded thus:           In  the   absence  of   any  evidence  either      intrinsic or  extrinsic to  that effect, it is not      known whether it is a public or official document.      In  consideration  of  all  these  facts  the  two      documents are  neither admissible under section 35      of the Evidence Act nor have any evidentiary value      whatsoever  even   if  they   were  held   to   be      admissible." (Vol. VIII, P. 489)      These documents are supposed to be appendices to Ex. J, the report  of Durga  Prasad, and  have given  some  details regarding the  relationship  of  Pahalwan  Singh  with  some persons mentioned  in these  documents. But there is nothing to show that these documents were either appendices or parts of Ex. J nor have they been referred to at 884 any place  either expressly  or by  necessary implication in the report Ex. J. Furthermore, he has clearly stated that he had looked  into ’Tumar’  i. e. account books for collecting some of  the necessary materials. These documents are not in the nature  of account books at all. In these circumstances, therefore, all  the courts  rightly rejected these documents both as being inadmissible and unworthy of credence.      Ex. P-7  (Vol. V,  P. 148)  is also a certified copy of the plaint  in suit  No. 139  of 1895  in the  court of  Sub Judge, Mirzapur.  It would appear that this plaint was filed on 26th  July 1895,  that is  to say,  after  the  death  of Maharani Sheoratan  Kuer, senior widow of the late Maharaja. The plaintiff  in that  case was  Ram Nandan  Singh. In  the first place,  this document  is hit  by the doctrine of post litem motam  because the  dispute to  the succession  of the late Maharaja  (Harendra Kishore  Singh) had  already stated with his  death in the year l 893 and the suit was filed two years thereafter, and it is therefore, irrelevant. Secondly, the plaint  filed in  the suit  not being inter parties, its recitals are  in admissible  in evidence. The only claim put forward was that as the Bettiah Raj estate was an impartible estate, the widows ef the late Maharaja could not succeed to his properties  even  as  limited  owners.  Nothing  of  any significance turns upon the contents of this document and it was rightly not relied upon by M.M. Prasad, J.      Ex. G.  II (Vol. III, P. 31) merely shows that the late Maharaja had  made a  gift of  a portion  of land in Pargana Majhwa,  District   Champaran  for   making   a   road   for constructing a  railway line in Bettiah but we are unable to find any  relevancy of  this document  to the  facts of  the present case.      Ex. G. II/ 1 (Vol. III, P. 32) is another deed executed by the  late Maharaja  making a gift of a land for a similar purpose. This  document also appears to be wholly irrelevant and does not prove anything of consequence.      Ex. H-II (Vol. III, P. 163) is a genealogy filed by the plaintiff of  title suit  No. 34  of 1905  after the present dispute had already arisen. Apart from the fact that in this genealogy a number of important names are missing, the names of Gajraj  Singh, Ramruch  Singh, Debi  Singh  or  Bansidhar Singh are  not at  all mentioned  but the  highest  ancestor mentioned is Raja Ugra Sen Singh. This genealogy, therefore, apart from being hit by the doctrine of post 885 litem motam  does not  appear to be of any assistance to the plaintiffs   and   must,   therefore,   be   excluded   from consideration.

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    Ex. R (2) (Vol. III, page 95) is merely a will executed by Maharaja  Nawal Kishore  Singh  in  favour  of  his  son, Rajendra Kishore  Singh. There  does not  appear to  be  any nexus between  this document  and the case of the plaintiffs as put  forward in  the present suit. This document is also, therefore, wholly irrelevant for the purpose of deciding the question at issue.      Ex. Q-3  (Vol. IV,  page 423)  is a  genealogical table filed in  title suit  No. 254  of 1868  and it describes the heirs of  Raja Gaj  Singh and  appears to have been filed in order to  prove the  relationship of the Sheohar family with Maharaja Rajendra  Kisoore Singh  who was  the father of the Late Maharaja.  This also  does not  throw any  light on the relationship of  Gajraj Singh  with Ramruch Singh, Bansidhar Singh and Debi Singh and is, therefore, of no consequence.      Other documents  like Exhibits NN/8 (Vol V, p. 219) and B/3 (Vol.  III, p.205)  have been  filed merely  to show the genealogy of the late Maharaja and to prove that Bhola Singh was the  next reversioner of Janki Kuer. The fact that Bhola Singh was not the next reversioner of Janki Kuer at the time when  he  made  the  sale  deed  has  been  demonstrated  by judgments Exhibits DD/30 and DD/31. It is a different matter that he  may have  become the  next  reversioner  some  time afterwards. These  documents also  show that  Pahalwan Singh and Raghunath  Singh were brothers, yet Raghunath Singh does not find  a place  in the  various genealogies  filed by the plaintiffs, as  already shown.  These were  mearly filed  to show that  Raghunath  Singh  was  a  gotia  of  Maharaja  of Bettiah. This fact is also proved by DW-36 but that does not help us at all.      There are a series of documents filed by the plaintiffs to prove that Bhola Singh was an ancestor of Bhagwati Prasad Singh. Even  if these documents are proved, they merely take us up to Bhola Singh and some of them even upto Gajraj Singh but that  linkage is  not sufficient  to determine the vital issue in  this case,  viz.,  as  to  how  Gajraj  Singh  was connected with  Ramruch,  Deci  Singh  and  Banisidhar.  For instance, Exhibits GGG/13, 14 and 16 are recitals in several documents in  the nature  of Rehan deeds, mortgage deeds and plaint in  suits for  declaration as  also  Exhibits  DD/33, DDD/4 & 5, GGG/8 which at the most prove that the plaintiffs were direct descendants of Gajraj Singh, and we shall assume for the purpose of this case, as 886 the High  Court has  done, the fact that the plaintiffs were direct descendants  of Gajraj  Singh has  been amply  proved both by  oral and  documentary evidence.  This fact  is also proved by  another set  of documents, viz., Exhibits; GGG/3, 4, 5  and 8,  WW/l, 3 & 4, DD/40 & 38, XX/20, WW/2, YY/4 and P/4. All these documents by and large prove the relationship of the  plaintiffs with  Bhola Singh and his ancestors right up to Gajraj Singh but they completely fall short of proving the vital "links."      Ex. H  merely shows  that some  time in  the year 1829, after the  death of  Pahalwan Singh  the name  of  Balbhadra Singh was substituted. This fact, as we have already pointed out, is  not disputed. This document also does not throw any light on  the crucial  question regarding  the link  between Gajraj Singh,  Debi Singh  and Ramruch Singh and takes us no where.      Similar is  the case with Ex. M (Vol. III, p. 66) which is a deed of conditional sale executed by Pahalwan Singh and takes us  at the  most up  to Debi  Singh and shows that the late maharaja  was a  direct descendant  of Debi  Singh. The question still  remains as  to what  the  direct  connection

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between Gajraj  Singh and  Ramruch Singh.  Nor does it prove the connection  of Gajraj  Singh either  with Debi  Singh or Bansidhar Singh.  In other words, no light is thrown by this document on the question that, (even if it be conceded as it must be)  the plaintiffs  were direct  descendants of Gajraj Singh or  to the  question of  parentage of Gajraj Singh and his connection  with Ramruch Singh, Debi Singh and Bansidhar Singh and unless this is done, the document does not take us anywhere.      Similarly, Ex. DD/44 is a Rubakar which shows that Debi Singh was  son of  Bansidhar Singh  and  this  fact  is  not disputed though  the vital  link  between  Debi  Singh,  and Gajraj Singh  has  not  been  shown.  In  other  words,  the plaintiffs, in  order to succeed, must prove that he was the own nephew of Debi Singh, being the son of Debi Singh’s full brother Ramruch Singh. This link has not been established by any of  these documents.  Taking these documents, therefore, ex facie  they do  not appear to be of any assistance to the plaintiffs’ case.      Exhibits Q-l  and T-68 are also documents falling under this class  relating to  the proof  of relationship  between Bhagwati Prasad,  Bhola  Singh  and  Gajraj  Singh  but  the evidence stops there and there alone.      Exhibits F/1 and are various remarks made by Debi Singh about lands  in Taluka  Majhwa which  proved that Debi Singh was 887 one of  the zamindars  in possession  of Taluka  Majhwa,  as mentioned in Ex. J. These facts, however, cannot be disputed because Debi  Singh who  was the  son of Bansidhar Singh and whose final ancestor was Hirday Narain Singh was undoubtedly in possession of Majhwa lands. But this does not improve the case of  the plaintiffs unless the direct connection between Debi Singh, Ramruch and Gajraj Singh is proved.      Ex. NN/6  consists of extracts from the Banrag Gazetter which shows  that Barisal  Singh of  Majhwa was  one of  the persons who  was killed  in the  battle of  Marui which took place near  about the year 1719. This fact is also mentioned in Ex-J  but that  does not  mean that  the plaintiffs  have proved their case by virtue of these documents.      The other  documents have  already been discussed by us while referring  to the  documents said  to have corrobrated Ex. J.      This is  all the  documentary evidence  produced by the plaintiffs in  support of  their case.  After a detailed and microscopic  consideration   of  these   documents  we  find ourselves in complete agreement with the dissenting judgment of M.M.  Prasad, J. that the plaintiffs have not proved that they were  in any way directly connected with Ramruch Singh, Bansidhar Singh  or Debi  Singh. With  due  respect  to  the Judges constituting  the majority,  we  are  constrained  to remark that  they did  not fully  consider the factual legal and relevant  aspects of the documents produced nor did they consider what  on an  ultimate analysis could be the correct conclusion reached  on a  fuller and  proper application  of mind having regard to the vital issues involved in the case. The Majority  Judges seem to have been greatly influenced by the age  of the documents or their nature rather than by the contents, relevancy  and weight. The plaintiffs seem to have by a  process of various combinations and permutations tried to present a very plausible case which at first sight seemed to be extremely attractive and appealing but on a very close analysis of  the evidence  produced  by  the  plaintiffs  we cannot think  of any  other conclusion  that could  be drawn except the  one drawn by M.M. Prasad, J. It is no doubt true

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that the judgments of Mukherji and G.N. Prasad, JJ show that they have  taken great  pains in  applying their mind to the documents  before   them  but,   unfortunately,  either  the comprehensive aspects both of facts and law placed before us were not  argued before  them or  with due respect they were carried away  by the  apparent importance  of the  documents without making  a deeper  probe  or  a  scientific  approach regarding the same. 888      With due  deference to  the  learned  Judges  we  might reiterate at  the risk  of  repetition  that  they  did  not concentrate  their  pointed  attention  at  the  most  vital question, viz.,  as to  whether or  not the  plaintiffs  had proved that  Gajraj Singh,  who was undoubtedly the ancestor of the  plaintiffs, was  in any  way connected  with Ramruch Singh,   Debi   Singh   and   Bansidhar   Singh.   We   have demonstratively shown  that-from the  documents filed by the plaintiffs, the  fundamental missing  link  between  Ramruch Singh, Devi  Singh, Gajraj Singh and Bansidhar Singh has not been proved  and we  are sure  that if  the majority  Judges would have  laid greater stress and attention on this aspect of the  case, in  all probability  they might  have found  a large measure  of agreement  with the  judgment rendered  by M.M. Prasad, J.      This now  brings us to the finale of the highly complex and extremely complicated historical case in which we had to travel and  traverse through  diverse fact and figures, data and  documents   spreading  over  a  period  of  almost  two centuries. The last chapter consists of the oral evidence of the pedigree  propounded by the plaintiffs and we shall deal with the  same for  whatever it  is worth  after a  complete consideration of  the opinions expressed in the majority and the minority judgments of the High Court.      Before,  however,   opening  this  chapter  it  may  be necessary to  restate the norms and the principles governing the proof  of a  pedigree by  oral evidence  in the light of which the  said evidence would have to be examined by us. It is true  that in  considering the  oral evidence regarding a pedigree a  purely  mathematical  approach  cannot  be  made because where  a long  line of  descent  has  to  be  proved spreading over  a century,  it is obvious that the witnesses who are  examined to  depose to  the genealogy would have to depend on  their special  means of  knowledge which may have come to  them through their ancestors but, at the same time, there is  a great  risk and  a serious  danger . involved in relying solely  on the evidence of witnesses given from pure memory because  the witnesses  who are  interested  normally have a  tendency to draw more from their imagination or turn and twist  the facts  which they  may have  heard from their ancestors in  order to  help the  parties for  whom they are deposing. The  court must,  there fore  safeguard  that  the evidence of  such witnesses  may not be accepted as is based purely on  imagination or an imaginary or illusory source of information rather  than special  means of  knowledge as  is required by law. The oral testimony of the witnesses on this matter bound  to be hearsay and their evidence is admissible as an exception 889 to  the   general  rule   where  hearsay   evidence  is  not admissible. This is culled out from the law contained in cl. (5) of  s. 32 of the Evidence Act which must be construed to the letter and to the spirit in which it was passed.      In order  to appreciate the evidence of such witnesses, the following principles should be kept in mind:      (1)   The relationship  or the  connection however

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         close it  may be,  which the witness bears to           the persons  whose pedigree  is sought  to be           deposed by him.      (2)  The nature and character of the special means           of knowledge  through which  the witness  has           come to know about the pedigree.      (3)     The  interested   nature  of  the  witness           concerned.      (4)   The precaution  which must  be taken to rule           out any  false statement  made by the witness           post litem  motam or one which is derived not           by means of special knowledge but purely from           his imagination, and      (5)     The  evidence   of  the  witness  must  be           substantially corroborated as far as time and           memory admit.      These are  the broad  outlines on the basis of which in cases whose  facts start  from very  olden times  such  oral testimony has to be judged and evaluated.      In the  case of  Bahadur Singh  & Ors  v.  Mohan  Singh Ors.(1) the  Privy  Council  cautioned  the  courts  against accepting statements which may be inadmissible under cl. (5) of s.32  of the  Evidence Act  and which have been made post litem motam.  This aspect  of the matter has been dealt with while dealing  with the  doctrine of  post litem  motam.  We might mention  that in  this particular case the evidence of almost all the witnesses is post litem motam.      In  Debi   Pershad  Chowdhry   &  Ors.  v.  Rani  Radha Chowdhrain &  Ors.(2) the  law on  the subject was very well expounded and  clearly  defined  and  while  describing  the nature of  dependable evidence  in  such  cases,  the  Privy Council made the following observations: 890           "It cannot  be doubted  that, in its quality,      this  is   admissible   evidence.   The   singular      criticism of  the High Court is that it comes from      relatives’ of  the appellant,  but it is difficult      to see where else such evidence could be found, or      that in  the mouth  of strangers it would have any      value at  all. Each  of the persons who has spoken      to  this   pedigree  has   been  carefully  cross-      examined, and  each  proves  circumstances,  apart      from the pedigree, which support his knowledge and      credit. This is not the case of a pedigree learned      by rote,  but it circumstantially corroborated, as      far as time and memory admit."                                               (Emphasisours)      In Abdul  Ghafur &  Ors v.  Hussain Bibi  & Ors.(1) the Privy Council  briefly summed  up the  law in this regard in the following words:           "It has  been established  for a  long  while      that in  questions of pedigree, I suppose upon the      ground that  they were  matters relating to a time      long past,  and that  it was  really necessary  to      relax the  strict rules  of evidence there for the      purpose of  doing justice-but for whatever reason,      the statements  of deceased  members of the family      made ante  litem motam,  before there wag anything      to throw  doubt upon  them, are  evidence to prove      pedigree. And  such statements by deceased members      of the  family may  be proved  not only by showing      that they  actually made  the statements,  but  by      showing that  they acted upon them, or assented to      them, or  did anything  that amounted  to  showing      that they recognised them."

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                 (Sturla v. Freccia-(1880) S A.C. 623)           "The rule  of evidence  thus enunicated is in      accord with  the terms  of s.  32, sub-s. 6 of the      Indian Evidence  Act, 1812, which is applicable to      the present case."      In Mewa  Singh &  Ors. v.  Basant Singh  & Ors.(2)  the Privy  Council  made  very  apt  and  valuable  observations regarding the manner in which a pedigree could be proved and pointed out  that in  order to  succeed, the plaintiffs must bring  themselves   within  fourteen  degrees  and  in  this connection obverved thus: 891           "The oldest names in a pedigree are naturally      the first  to  be  learnt  and  the  first  to  be      learned, and the names of the earliest generations      may well  survive in their proper order long after      all trustworthy  memory of  their lives has passed      away.      ...                   ...                      ...           Those who  claim to be the reversionary heirs      must bring  themselves within the necessary number      of pedigree  viz., fourteen.  They must  show that      they are both next heirs and near enough."      To the  same effect  is another  decision of  the Privy Council in  Bhojraj v.  Sita Ram  & Ors.(1)  We have already pointed out  that in  the aforesaid  cases,  the  principles enunciated by  us are  wholly consistent with what the Privy Council says  and we  fully endorse  the same. None of these cases  lays  down  that  the  courts  should  suspend  their objective appraisal  of the veracity or dependability of the witnesses in  pedigree cases,  nor have  the decisions given any concrete  formula of  universal application for adducing oral evidence which may pass the judicial scrutiny.      Mr. Tarkunde relied particularly on the observations of the Privy  Council in  Debi Pereshed Chowdhry’s case (supra) extracted above  to show  the approach  to be  made  by  the court. The ratio of that case is in no way inconsistent with what we  have said  above. The  Privy Council did not accept the view  of the High Court because in their own opinion the High Court  had rejected  the oral  testimony  only  on  the ground that  the witnesses  were relations of the appellant. That was obviously wrong.      Similarly, other  cases on  which reliance  was placed, which have already been discused above, do not lay down that wherever witnesses  speak of  old  genealogy  it  should  be accepted as  a gospel  truth. The  evidence of the witnesses must  be  scanned  very  thoroughly  and  according  to  the standards laid down by the Privy Council and this Court.      Apart from  the aforesaid  authorities, there  are some famous  text   books  which  also  have  laid  down  certain principles for the appraisement of pedigree evidence. Taylor on ’Treatise on Evidence’ has 892 pointed out in para 648 at page 414 that the declarations by the deceased  relatives deposed  to by  interested claimants rarely deserve  much weight  because these  declarations are made by  the relations  for the first time after the contest of claim has arisen. In accepting this kind of evidence, the court  runs   the  risk  of  being  deceived  by  deliberate falsehood. The author further goes on to state thus:           "Little reliance can be placed on accuracy of      his  testimony,   for  men,  without  deliberately      intending to falsify facts, are extremely prone to      believe what  they wish,  what they  believe  with      what they have heard and to ascribe to memory what

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    is merely the result of imagination."      Similar view  was expressed  in Lovat  Peerage(1)  case which is an example of how hearsay evidence can sometimes be fraught with  serious consequences.  In this  case,  it  was emphasised that  the time  occasion and  manner of acquiring knowledge of  pedigree to  prove the statement of a deceased relation is crucial to the test of veracity and an imaginary story related by the witness may ultimately turn out to be a mere gossip.  It was  pointed out by Lord Watson at page 783 of  the  Report  that  in  taking  the  depositions  of  old witnesses, the court must take into consideration that there may have  been an erroneous impression in the minds of those who proved the claimant’s case.      Wigmore on  ’Evidence’ in Volume V at pages 296 and 297 has expressed  more or  less the  same views and observes as follows:           "Accordingly the  only sound rule for the use      of individual  declarations is  that the declarant      himself must be shown to be unavailable.      ...                 ...                        ...           The circumstantial indication of trustworthi-      ness has  been found  in the  probability that the      ’natural effusions’  (to use  Lord Eldon’s  of ten      quoted phrase)  of those  who talk bias or passion      exists are fairly trustworthy, and should be given      weight by  judges and  juries, as  they are in the      ordinary affairs of life." 893      It has  also been  pointed out  by the  author that the declarations which  have been  made before  any  controversy arises must  be given  greater weight.  This aspect has also been emphasised  in one  of the Privy Council cases referred to above.      The majority  judges  and  the  dissenting  Judge  have vitally differed  in the  appreciation of  the oral evidence but in  the case of some witnesses all the three Judges have refused to rely on the evidence of the said witnesses, which has to  be ruled  out at  the  very  outset.  The  witnesses examined by the plaintiffs have been labelled as DWs because at one  time the  plaintiffs were  defendants  in  the  suit brought  by   other  defendants-claimants   but   when   the plaintiffs  themselves  filed  the  present  suit  laying  a formidable claim  as being the next reversioners of the late Maharaja, their  witnesses continued  to be labelled Defence Witnesses  though   they  were   really  witnesses  for  the plaintiffs. The  trial court  ought to have put some mark in order to  differentiate the  witnesses of the plaintiffs and the defendants  but unfortunately  that has  not been  done. However, there is no dispute on the aforesaid description of the witnesses;  so  this  matter  need  not  detain  us  any further.      To begin  with, before dealing with the evidence of the plaintiffs’ witnesses  on the  point of  genealogy we  would like to  preface our  discussion with the description of the imperfections and  infirmities of  human memory  which alone would determine the dependability of the evidence.      Indeed, as  a mortal man is not infalliable so is human memory. It records facts and events seen with some amount of precision and  accuracy, but  with the  lapse or distance of time, unless  the facts  or events  are noted or recorded in writing, the  facts or  events  fade,  sequences  get  lost, consistency gives  way to  inconsistency, realities yield to imagination,  coherence  slowly  disappears,  memory  starts becoming  blurred,   confusion  becomes   worse  confounded, rememberance is substituted by forgetfulness resulting in an

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erosion of  facts  recorded  by  the  memory  earlier.  This equally applies to facts merely heard by one from some other person. Thus, if a person having only heard certain facts or events repeats  them after  a long  time  with  mathematical precision  or   adroit  accuracy,   it  is   unnatural   and unbelievable and  smacks of concoction and fabrication being against normal human conduct, unless he repeats some special or strikingly  unusual incidant  of life which one can never forget or  where a  person is  reminded of  some conspicuous fact on the happening of a 894 particular contingency  which lights  up the  past  such  as marriage, death,  divorce, accident disappointment, failure, wars, famine,  earthquake, pestilence, (personally affecting the subject  and the  like) etc.,  and revives the memory in respect of the aforesaid incidents. Of course, if the person happens to  be an inimitable genius or an intellectual giant possessing a  very sharp and shocking memory, the matter may be different.  But, such  persons are not born every day. To say, in this case, that all the witness one after the other, were geniuses  is  to  tell  the  impossible.  Weakness  and uncertainty of  human memory  is the  rule. The witnesses of the plaintiffs examined in this case are normal human beings suffering from  the usual  defects and drawbacks of a common man.      Describing the  vagaries of  human memory, Ugo Betti so aptly and correctly observes:           "Memories are  like stones, time and distance           erode them like acid."                          (p.  395,   The  International                          Theasaurus   of    Quotations:                          Rhoda Thomas Tripp)      In the  same strain,  Sir Richard Burton in his article ’Sind Revisited’  expresses his thoughtful experience in the following words:           "How strange are the tricks of memory, which,      often hazy  as a  dream about  the most  important      events of  a man’s  life, religiously preserve the      merest trifles."                          (p.  395,   The  International                          Theasaurus   of    Quotations.                          Rhoda Thomas Tripp)      Similarly, Baltasar  Gracian in  ’The  Art  of  Worldly Wisdom’ very aptly puts the frailties of human memory thus:           "The things we remember best are those better      forgotten."      We shall  now endeavour  to approach  and  analyse  the evidence  of  plaintiffs  witnesses  in  the  light  of  the principles enunciated above. 895      The oral  evidence led by the plaintiffs group consists of the  testimony of  DWs 13,  21, 32, 33, 34, 35, 36 and to some extent  PW 40. Some of these witnesses were examined on commission which  will be  made clear  when we deal with the evidence of individual witnesses.      To start  with, so  far as  the evidence of DW-32 Awadh Bihari Lall.  (Vol. I.  p. 41  l ) is concerned, it has been rejected both  by the majority and the minority judgments in the High  Court as  also by  the trial  court. Mukherji,  J. speaking for  the  majority  after  carefully  scanning  the evidence of DW-32, observed as follows:-           ’I have  already adverted  to above about the      statement made  by DW-32  in the  Court below  and      since he  appears to  be an  omnibus  witness  and      there are lots of inconsistencies in his evidence,

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    it will  not be  proper for  this Court  to  place      reliance on his statement."                                    (Vol. VIII, P. 241)      Similarly,  M.M   Prasad,  J.,  who  had  rendered  the dissenting judgment  rejected the  statement of this witness in the following words:           "Ultimately, the Witness has admitted that he      was a  classmate of  Bhagwati  Prasad  Singh,  the      father  of   these  1  plaintiffs.  That  explains      everything  the   witness  represents   a  typical      partisan witness  who can  go out  of the  way  to      support one  party  and  expose  himself  even  to      ridicule for the sake of such support. In my view,      no reliance can be placed at all on his evidence."      The trial  court also did not place any reliance on the evidence of  this witness. In these circumstances, it is not necessary for us to deal with the evidence of DW-32, nor was any reliance  placed by  the counsel  for the respondents on his evidence.      The evidence  of DW-33,  Bhairo Prasad (Vol. I, p. 433) was rejected  by M.M.  Prasad, J.  though  accepted  by  the majority but,  in our  opinion, wrongly. Before dealing with the evidence of this witness we might clarify that the trial court had  numbered two  witnesses as  DW-33,  viz.,  Bhairo Prasad, who was the main witness in trial suit No. 5/61, and Kamla Prasad  Singh (Vol.  I, p.  299) who  was a witness in trial suit No. 25/58. The trial court as also the High Court rejected the  evidence of  Kamla Prasad Singh, with which we are not concerned at all. We are mainly concerned with 896 DW-33, Bhairo  Prasad who  was  examined  on  the  point  of genealogy in suit No. 5/1961 and it is his evidence which we have to consider while dealing with the present case.      It is true that both the trial court and the dissenting judge in  the High  Court rejected  the evidence  of  Bhairo Prasad but  Mukherji, J. speaking for the majority came to a different conclusion  and held that Bhairo Prasad was not an interested witness  and there  was no  reason to discard his evidence.  With   due  respect,   after  going  through  his evidence, we  find ourselves  unable to agree with Mukherji, J. and for the reasons given hereafter we are satisfied that no reliance can be placed on the evidence of this witness.      To begin  with, we  might state  that he  is one of the witnesses who  is almost  an octogenarian. While the witness gave his age as 85-86 years, the Commissioner before whom he was examined  estimated his  age at 75 years, which seems to have been  accepted by  Mukherji, J. Although this is a very minor discrepancy,  Mukherji, J.  seems to  have  overlooked that there  is a  tendency on  the part  of the villagers to support a  case of  this kind by overstating their age so as to introduce  an element  of personal  knowledge in order to prove old  genealogies. On  the  other  hand,  the  Pleader- Commissioner, who  recorded the  evidence being a lawyer and an educated  person, would  be in  a much better position to estimate the  correct age  of the  witness. However, nothing much turns  on this discrepancy and we shall presume that in view of the very old age of the witness, his evidence merits serious consideration.  There is  no doubt that this witness was closely  connected with  the family  of Bhagwati  Prasad Singh, father of the Plaintiff Radha Kirshan Singh as he has admitted to  have scribed  many documents  on behalf  of the family of  Bhagwati Prasad  Singh. Mukherji,  J. also  found that the witness was intimately connected with the family of Bhagwati Prasad Singh as this witness and his ancestors have scribed numerous  documents for  different  members  of  the

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family and  on this ground the learned Judge thought that he would be  a more  competent  witness  to  depose  about  the genealogy than any other witness. Assuming what Mukherji, J. says is  correct, the  fact remains  that  being  intimately connected with  the family  of the  plaintiffs  the  witness cannot be  said to  be an  independent one and he was deeply interested in  the success  of their  case. Therefore, while this may  not be  a sole  ground for rejecting his testimony his evidence  has to  be taken  with great  care and caution particularly when he is Dot deposing as an eye-witness 897 but as  a witness  to the  genealogy which he may have heard from his  ancestors. The  approach made  by Mukherji, J., in appreciating his evidence does not appear to be correct. The learned Judge  has referred  to several documents which have nothing to  do  with  the  genealogy  in  question.  On  the question of  genealogy, which  was the  vital question to be determined, the learned Judge has not examined the intrinsic evidence of  this witness  on merits.  We would,  therefore, examine his  evidence on the question of genealogy which was the only point to prove which he was examined.      After narrating  the genealogy  of the plaintiffs right from Bansidhar  Singh he  states that  he came  to know  the genealogy from Nand Kumar Singh, Jagat Bahadur Singh as also from his  grandfather, Kamta Prasad Bhagwati Prasad, Mahadeo Singh. According  to this evidence all the persons concerned from whom  he had  learnt the  genealogy, excepting  Mahadeo Singh, were  dead. So  far as  his information  derived from Mahadeo Singh  is concerned,  it  will  be  inadmissible  as hearsay because, according to him Mahadeo Singh is alive. At page 439,  para 51  of his  evidence,  he  states  that  the narration of  the genealogy  by the persons mentioned by him took place  in Chait  1894 (Hindi  Samvat year)-he  did  not remember the  corresponding Fasli  year- that is to say when he was  15 years  old, if  his estimate  of his  own age  is correct. If  we accept  the estimate of the Commissioner who recorded his  evidence, then  he was  only about  5 years in which case it is impossible to believe that he would be in a position to  remember such a long drawn genealogy after such a long time when he heard the same as a boy of only 5 or 15, as the  case may  be. This  aspect of  the metter  has  been completely overlooked  by Mukheriji,  J. Assuming,  however, that he  was 85 years and therefore 15 years of age when the narrating  incident   took  place,  he  does  not  give  any particular  occasion  on  which  so  many  persons  went  on narrating the  genealogy to  him. He admits that he does not remember the  exact date  when the  narration took place nor did he  make any note on any paper but was speaking entirely from his  memory. He  further admits  that all  the  persons mentioned by  him narrated  the genealogy at one sitting and yet he  is unable  to give the special occasion on which the narration was done. So far as his grandfather was concerned, he says  that the  genealogy was narrated by his grandfather in 1895.  Though he  does not remember the month, nor did he make a  note of  it on  any paper,  it is  curious  that  he remembers the  exact time  of narration  which, according to him, was  7. 00  p.m. Another  pertinent statement  which he made and  which completely  falsifies his  evidence  may  be extracted thus; 898           "The family members of Nand Kumar Singh, were      weeping  over   the  death  of  Maharaja  Harendra      Kishore  Singh  and  told  the  said  fact  to  my      grandfather who in reply narrated the genealogy of      Babu Bansidhar’s family of Manjhwa"

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    According to  this statement  it is clear that both the family members  of Nand  Kumar  Singh  and  his  grandfather narrated the  genealogy of Bansidhar’s family when they were weeping over  the  death  of  the  late  Maharaja  (Harendra Kishore Singh)  and the  weeping took  place at the house of Thakur Nandkumar  Singh. It  is common  ground that the late Maharaja died  in  the  year  1893  while  the  incident  or narration took  place in  1895. It is absurd to believe that the weeping of the family members would take place two years after the  death of  the Maharaja.  Similarly, when  he  was further cross-examined  about the  time and  the  manner  in which he  acquired the knowledge of the genealogy, he made a number of inconsistent statements: sometimes he said that he acquired knowledge  of genealogy from Nandkumar Singh but he did not reduce it in writing. In answer to another question, he admits  that the  entire genealogy was narrated to him at one stretch  but he  did not  learn the the same at once but from time  to time.  He could  not say how far he learnt the genealogy when  it was narrated to him and then said that he learnt the same on hearing it repeatedly.      Indeed, of  this  is  the  primordial  and  rudimentary reflex  of   his  memory,  then  it  is  strongest  possible circumstance to  discredit his  testimony and it leads to an irresistible inference  that the story of repeated narration of the  plaintiffs’ genealogy  is nothing but a pure figment of  his   imagination  concocted  to  help  and  oblige  his relation, friend,  philosopher and  guide  (Bhagwati  Prasad Singh). Again  he makes a very strange statement which fully belies the  false story  of the  narration. He gays that the late Maharaja  died in  Chait 1894 A.D. whereas the Maharaja died on 26th March 1893, a year before. This  is   the  best test and  proof of  his weak  or frail  memory. A person who could not  remember the  date of  the  death  of  his  close relation, the  late Maharaja  who furnished the occasion for the narration  of the  genealogy by various relations of the family, is  not expected  to remember the genealogy narrated to him  long before  the death  of the  late Maharaja.  This circumstance, therefore,  completely destroys  his  evidence regarding the  proof of genealogy. From a general reading of his evidence on the point of genealogy we are 899 convinced that  he has  been set  up to repeat parrot like a concocted story  to prove a genealogy. which, in fact, never appeared to  have been narrated to him. His evidence on this point, therefore,  is not  free from  suspicion and  we  are unable to place any reliance on the same. We are constrained to observe  that in  spite of  these serious infirmities and manfest  defects,  Mukherji,  J.  Overlooked  the  aforesaid infirmities in  believing the  evidence of  this witness. On the other  hand, M.M.  Prasad, J.  the dessenting  Judge has made a  correct approach to his evidence and has pointed out a number  of defects  and infirmities  which show  that  his evidence is  absolutely ridiculous.  For instance, ia cross- examination, the  witness was  put  questions  to  test  his memory and  he denied  knowledge of  the families of his own near relations  whose names he could not give. How can it be believed that if he could not even remember the names of his own  near   relations,  he   would  remember  the  names  in genealogies running  into 12 degrees. He also laid stress on the facts  referred to  above, and  little did  the  witness relies that  although the  late Maharaja  died in  1893, the weeping took place in 1895, i. e. two years after his death, which is  impossible to  believe. The learned Judge observes that there could be no better proof of a witness being hired and tutored  to say  a thing than the aforesaid discrepancy.

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None of  the important circumstances relating to testing the memory of this witness relied on by the dissenting Judge has been considered by Mukherji, J. For these reasons, therefore we entirely  agree with  the conclusion  of  the  dissenting Judge that  it is  impossible to  place any  reliance on the evidence of this witness.      Narbadeshwar Dutt Sharma, PW 40 (Vol. I, p.l58) who was essentially a  witness for  the plaintiffs of title suit No. 44 of  1955 has incidentally deposed to the genealogy of the plaintiffs-respondents. His  evidence was  considered by the majority  and   rejected  on  the  ground  that  he  had  no connection with  the family of Bansidhar Singh and as he did not hear  the name  of Farman  Singh or Gajraj Singh, he was not competent  to prove  the plaintiffs’  genealogy. In this connection, Mukherji, J observed thus:           "This witness was also an unsummoned witness.      He cannot  even tell  the name  of the  father  of      Bhagwati Prasad  Singh. He  did not  even hear the      name of  Farman Singh  or Gajraj  Singh of village      Baraini. In  this circumstance,  this witness does      not appear  to be a competent witness on the point      of genealogy."                          (Vol. VIII, p. 247, para 108) 900      Thus it  is not  necessary for  us to  make any further probe into  the intrinsic  merits of  the evidence  of PW-40 which stands rejected.      The other  witnesses who  are relevant  on the point of genealogy are DWs 13, 21, 32, 34, 35 and 36 (the evidence of DWs 32  having been  rejected by  all the Judges of the High Court). Mr.  Tarkunde mainly relied on the evidence of these five witnesses  and submitted in the course of his arguments that if he. was not able to persuade the Court to accept the evidence of these witnesses, then the plaintiffs-respondents would not  succeed on  the basis of the oral evidence led by him.      We how  propose  to  deal  with  the  evidence  of  the aforesaid witnesses  individually. We will, however, take up the evidence  of DW-13, Radha Krishna Singh (Vol. I, p. 335) at the  end because  he  is  one  of  the  main  plaintiffs- respondents and therefore a highly interested witness, which may by  itself be no ground to distrust his testimony but is undoubtedly a  circumstance to  scan his  evidence with some amount of caution.      This brings  us to  the evidence  of DW-21,  Bhuneshwar Prasad Singh,  (Vol. I,  p. 385). To begin with, the witness gives his  age as only 38 years hence, it would be necessary to scrutinise the sources of his information with great care and caution  before his  statment  can  be  admissible.  The witness states  that Bansidhar  Singh had  three sons, viz., Ramruch Singh,  Ram Fakir  and Debi  Singh and Gajraj Singh, the alleged  ancestor of the plaintiff, was a son of Ramruch Singh. It  is pertinent to not that Ram Fakir Singh, who was another  son  of  Bansidhar  Singh,  is  not  shown  in  the plaintiffs’ genealogy  at all.  This lacuna was sought to be explained by Mr. Tarkunde on the ground that Ram Fakir Singh had already died and therefore, his name is not mentioned in the genealogy. As the genealogy mentions a number of person, who had  died childless, in the list of his ancestors, there is no  reason why Ram Fakir Singh’s name, who was actually a brother  of   Debi  Singh,   should  not  be  shown  in  the plaintiffs: genealogy.  We are,  therefore unable  to accept the some  what unconvincing  reasons given  by Mr.  Tarkunde regarding the  absence of the name of Ram Fakir Singh in the plaintiffs’ genealogy.  This omission  is  rather  important

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because it  would throw  a flood  of light on the sources of information of  the witness  and his  competency  to  depose about the genealogy.      The witness  further claims that one of the brothers of Bansidhar Singh  was his  ancestor and goes an to state that Hirday Narain 901 Singh, who  according to  the plaintiff,  was the  father of Bansidhar Singh was son of Hansraj Singh. The witness claims his ancestory  from Madho  Singh, who  was one  of the seven sons of  Hirday Narain  Singh. It may be noted that there is absolutely no  mention of  either Hansraj  Singh  or  Hirday Narain Singh  or Madho  Singh or  any  of  the  brothers  of Bansidhar Singh  or even  of Ramhit  Singh  or  any  of  his descendants in  the plaint  genealogy. It would be pertinent to note in this context that the descendants of Ramhit Singh had appeared  as witnesses  in suit  No. 55 of 1983. and had declared that  Ramruch Singh  was not  the son  of Bansidhar Singh. In  these circumstances,  this witness  cannot now be heard to  say that  Ramruch Singh  was the  son of Bansidhar Singh and  not of Mangal Sah. The witness admits that he has not seen  and written  genealogy in  respect of which he had deposed in  the court.  He appears  to be  closely connected with Gauri  Babu who  is the Pairvikar of the plaintiffs and admits in  his evidence  that Gauri  Babu had gone to him in village  Baraini  two-three  years  before  his  deposition; thereby he  indirectly admits  that he  was  brought  to  D, depose in  the court at the instance of Gauri Babu. Although the witness  has denied  that he was staying at the house of Gauri Babu  for about a month and was being tutored, reading within the  lines of his testimony it does appear that Gauri Babu had  no doubt  brought the  witness  to  Patna  and  he (Gauri) being  a Pairvikar of the plaintiffs, as admitted by the witness, must have brought him for a certain purpose.      Coming now  to the  intrinsic merits of his evidence we would first  trace the  source of knowledge of this witness. To begin  with, he  states that  his  father  told  him  the genealogy about 50 times but he does not remember as to when the genealogy  was told  to him  last time.  He admits  that there was  no special  occasion for  his father to have told him the  genealogy. He  also admits  that he  had no written genealogy. This  statement is  obviously  incorrect  because normally a genealogy is recited on certain festive occasions like marriage,  shradh, etc.,  and  not  just  by  the  way. Further, it  is difficult to believe that even if his father had narrated  the genealogy  he would  do it  as many  as 50 times without  any rhyme  or reason.  The witness goes on to state that  his father had told him as many as 1000 names of Bhumihar  Brahmins   living  in  villages  Majhwa,  Garauli, Baraini and lot of other villages. He further states that he was also  told the  names of  gotias only  who lived  in the aforesaid villages. The entire tenor of his evidence 902 shows that  the source  of his  knowledge, which is from his father,  appears   to  be   a  tainted   one  and  has  been manufactured for  the purpose  of  this  case.  The  witness further admits  that he had not seen any papers showing Raja Jugal Kishore Singh as the son of the daughter of Raja Dhrub Singh. He  pretends to  know that  Bhagwati Prasad Singh was the nearest  legal heir of the late Maharaja but he does not disclose the  source of  his information. Furthermore, while deposing about the relationship with the Maharaja of Banaras he says  that he  has  not  seen  any  papers  showing  that Maharaja of Banaras belonged to Dionwar sub-sect. He further says that  he heard  this fact  from his  father when he was

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only 10-12 years old.      The clear  and categorical  statement of  DW-33, Bhairo Prasad, shows  that none  of the  descendants  or  Bansidhar Singh had  settled in  village  Baraini  and  that  Bhagwati Prasad  Singh   of  village   Baraini  had  no  genealogical connection with Majhwa. Thus, DW-21 is sadly contradicted by the evidence of DW-33. Furthermore, according to DW-21, Babu Debi Singh had five sons but this is completely falsified by the plaintiffs’  genealogy as also the case made out by them and sought to be proved by other witnesses.      It was further contended by Mr. Tarkunde that according to DW-21,  he was  a descendant of Hirday Narain Singh or of Madho Singh and therefore he would be, second in the line of claim to  the reversionary interest of the late Maharaja and as  such  he  is  not  likely  to  depose  against  his  own interests. The  witness is  a young  man and we have already shown that  the source  of his  information about the plaint genealogy is not believable. The manner in which the witness was brought  from his  village to  Patna by the Pairvikar of the plaintiff  and  the  incorrect  statement  made  by  him regarding the  genealogy clearly  show that  whatever he may profess he  does not  seem to  be in  any way connected with Hirday Narain  Singh. In  fact, DW-21 himself admits that he had no concern or interest in Bettiah Raj. He further admits in para  18 of  his evidence  that he came to know about the case from  the plaintiff,  Radha Krishan  Singh, and that he did not  know the  claim of  the respective  parties.  While deposing regarding the genealogy he could not tell the order of death  of any of his ancestors nor could he tell in which period Hansraj  and Hirday  Narain Singh  existed. He admits that when  his father  repeated the  names of  his ancestors fifty times  he was  only 16  years old.  It is difficult to believe that  a casual  recitation of  the names fifty times would be  remembered by  him after  a lapse  of more than 20 years. M. M. Prasad, J. has given very cogent and 903 convincing reasons  for disbelieving  the evidence  of  this witness. The  learned Judge  has pointed out, apart from the facts mentioned, above, that the witness has not come across any written  genealogy even of his own family, what to speak of  the  family  of  the  plaintiff.  Finally,  the  witness admitted that  he is a cousin of Kamla Singh, DW-33. If this was so,  then the  genealogies given  by Kamla Singh and the witness should  have tallied  but it  would appear  from the evidence of  DW-33 that  he gave  a genealogy different from the  one  given  by  this  witness.  Having  regard  to  the circumstances and  the statements  made by  this witness, we find it impossible to place any reliance on the testimony of this witness.  We therefore  agree with the opinion of M. M. Prasad, J.  that the  evidence of this witness is not worthy of credence.      Nagendra Kumar,  DW-34 (Vol. I, p. 445) sought to prove the genealogy of the family. The witness was 60 years old at the time  of his deposition and was a resident of Majhwa. He claimed to  be a  descendant of Hansraj Singh, the father of Hari Narain  Singh and  Hirday Narain  Singh, as the witness says. According  to the witness, Hari Narain Singh had a son named Sah  Makund and  the witness  claims to  be  from  the branch of  Sah Makund.  Coming to  the genealogy,  he states that Hirday  Narain Singh  had a son, named Bansidhar Singh, and than  Bansidhar Singh  had three  sons, viz., Ram Fakir, Ramruch and  Devi Singh.  We have  already pointed  out that although the  name of Hirday Narain Singh finds place in Ex. J yet  there is  absolutely no reference to Bansidhar Singh. We shall  presently show that there is an important document

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Ex. B/32  (vol. llI, p. 42) where Ramruch Singh has not been mentioned as  the son  of Bansidhar Singh but instead Gajraj Singh has been mentioned as the son of Bansidhar Singh. This document is  rather important because it is a certified copy of a  deposition of  one Bhupraj,  who was  a witness as far back as  1909 in  the earlier  suit. The  statement of  this witness that  Bansidhar  Singh  had  three  sons,  including Ramruch Singh,  is therefore  clearly  contradicted  by  Ex. B/32, a  document which  came into existence long before the plaintiff’s suit  of 1961  entered the  arena of the present case. Moreover,  in 1909,  the memory  of Bhupraj would have been much fresher than that of this witness.      In order  to test  the veracity  of this witness on the touchstone of  the principles  enunciated by  this Court and the Privy  Council we  would refer  to  the  source  of  his knowledge.  Admittedly,   ’the  witness   had  no   personal knowledge about the genealogy of the family of the 904 plaintiffs. He  however represented  in his evidence that he had learnt  the genealogy  from his  grand uncle Hari Sharan Singh and  Bhagwati Prasad  Singh,  father  of  one  of  the plaintiffs, both  of whom  are now  dead. He  further admits that his  grand-uncle, Hari  Sharan Singh,  died in or about the year  1936. This means that at the time when the witness was told  about the family genealogy of the plaintiffs By he was only  14-15 years  and was  studying in  class VI  of  a middle school.  He then  goes on  to state  that at the time when the  genealogy was  narrated, 5-6 persons of his family were present  but he  does not even remember the name of any of them. It is rather strange that he does not even remember the names of the persons in whose persence the genealogy was narrated by  his grand-uncle and yet he traces the genealogy of the  family  told  to  him  about  45  years  back.  This important circumstance  shows that  his memory is very weak, in which  case it is well-high impossible to believe that he would remember  the genealogy  narrated to  him by his grand uncle though  he could  not give the names of the persons in whose presence  the genealogy  was narrated  to him. He does not appear  to have  made any  note of  the genealogy on any paper when  his grand  uncle repeated  the same,  nor has he mentioned any particular occasion on which the genealogy was narrated to  him which  may have enabled him to remember the same. The  graphic details  about the  relationship of  Hari Narain Singh  right up  to Harendra  Kishore Singh could not have been  given by  him in these circumstances. It appears, therefore, as  rightly contended  by the appellant. that he, being  a   highly  interested  witness,  has  concocted  all conversations, chances and coincidences when his grand uncle told him  the genealogy.  Moreover, human  memory, faint and vulnerable as  it is  not likely  to reflect  facts of 40-50 years back  unless there  is something  in the  shape  of  a particular document,  mode, occasion or something to remined him. At the time when the genealogy was narrated to him, the witness was  only a boy 14-15 years and he would not have at that time cared to make any particular note of the genealogy as he would be least interested in the same at that time. He further admits  that his  grand uncle  narrated to  him  the genealogy from his memory and not from any note, nor was the said genealogy written on any place of paper.      The witness  admitted that  he could remember only some portion of  the genealogy  then and there and not the whole. He clearly  admits in  his deposition  that  he  learnt  the genealogy from  Bhagawati Prasad  Singh in the winter season after the death Maharani 905

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Janki Kuer,  that is  to say  after the  present dispute had already started  and in  these circumstances his evidence is inadmissible under  s. 35  of the Evidence Act on a point of law, viz.,  being hit  by the  doctrine of post litem motam. Again, he  embarks on  a flight  of fancy  and  goes  on  to narrate facts  which  he  could  never  have  known  without reading some authentic historical book. He relates the facts of the battle of Marui which took place as far back as 1719.      Finally, he  attributes five sons to Debi Singh whereas in the plaint it is stated that Debi Singh had only one son, viz.,  Aini   Sihgh.  Thus,   far  from   corroborating  the genealogy,   his   evidence   positively   contradicts   the plaintiff’s genealogy.  He has  also made a number of errors in describing  the genealogy  which does  not tally with the plaintiff’s genealogy.  In our opinion, the evidence of this witness appears  to be  got up  and  does  not  inspire  any confidence. This is demonstrated by the fact that he admitts that the  plaintiff Radha Krishan Singh had told him to give evidence in  the case  and yet  he says  that he  had  never nrrated the  genealogy to  Radha Krishan  Singh. Indeed,  if this was  so, it  is not  understandable why  Radha  Krishan Singh would have asked him to depose in his favour.      To crown it all, DW-34 admits that there is no document either to  show that  he was originally a resident of Majhwa or that  Hansraj Singh was a common ancestor of this witness and Bhagwati  Prasad Singh.  Mukherji, J.  who delivered the majority judgment,  has dealt  with  the  evidence  of  this witness rather  summarily without  alluding or  referring to the important  facts,  infirmities,  flaws  and  defacts  as discussed above  which makes  the evidence  of this  witness both faulty  and imperfect.  All these  circumstances  taken together render him an unreliable witness.      The next  evidence that falls for consideration is that of Debi  Singh, DW-35  (Vol. 1, p. 453) who belongs to Mauza Majhwa. It  is curious  that he  claims his  descent through Harkhan Singh  who was disclaimed and disowned by Soman Kuer and Jaimed  Kuer in the plaint filed by them in suit No. 130 of 1856  relating to Hansraj Talab (Pokhar), which falsifies the  evidence   of  this  witness  at  the  very  inception. According to  the witness, there were some cases relating to Hansraj Talab  between Harkhan  Singh and  Ramratan Singh on the one  side and  Soman Kuer  and Jaimed Kuer on the other. The witness  claims to belong to the family of Rarnratan and Harkhan who are descendants of Bikram Sah. He admits that 906 Harkhan Singh  was in the service of Bettiah Raj and also of Soman Kuer  and Jaimed  Kuer and after the dispute resulting from the  suit, Harkhan’s  services were  terminated. In the said plaint  Jaimed Kuer  and Soman  Kuer vehemently  denied having any  relationship either  with  Harkhan  or  Ramratan Singh. It  seems to us that he has claimed Harkhan Singh and Bikram Sah  as his  ancestors in  order to make his evidence admissible so as to trace the source of his information from the aforesaid  two persons  who are  now  dead.  The  plaint genealogy does  not mention  the name  of Harkhan  Singh and Bikram Sah  as having  any connection  with Jaimed  Kuer  or Soman Kuer.  According to  the plaintiff’s  own case  Jaimed Kuer was  the wife of Balbhadra Singh whereas Soman Kuer was the wife of Tilak Singh, son of Pahalwan Singh. According to his evidence,  he learnt  the genealogy  of the  family from Jadunandan  Singh,   Vasisht  Singh,   Bhupraj  Upadhya  and Bhagwati Prasad  Singh. All  these persons  are dead  and he seems to  have traced  the  source  of  his  information  to deceased persons  in order  to make  his evidence admissible under sub-s.  (5) of  s. 32 or the Evidence Ast. The witness

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goes on  to state  that Jadunandan Singh was his grand uncle and one of the descendants of Bikram Sah. In order to give a touch of truth and a cover of legal admissibility he gives a twist and  turn by  asserting that  Bhupraj Upadhya  was the Purohit of  his family and wants us to believe that since he had heard  the plaintiff’s genealogy from the Purohit, there could  be  no  doubt  about  the  correctness  of  the  said genealogy.      As usual  with the other witnesses, this witness states that Jadunandan  Singh gave  out  the  family  genealogy  of Bansidhar Singh  and Bikram  Sah when he was aged only 15-16 years. He further asserts that Dalthumbhan, Prayag Singh and Parsidh Singh were also present and none else. None of these witnesses have  been produced  to support  the testimony  of this witness.  It is  also not known whether these witnesses are dead  or alive. He then states that at the time when the genealogy was narrated to him he could remember only 10 or 5 names but  he could  not name those 10 or 5 names exactly. A person who  is not  able to  remember the names disclosed to him about  40-46 years  ago could  not possibly remember the names of  all the ancestors of Jadunandan Singh after such a long lapse of Time. This part of his evidence is against the balance of  probabilities and  fails to consider infirmities and infalibility  of human memory. He admits that he did not make any  note of  the genealogy  of Bikram Sah or Bansidhar Singh but heard the same from 907      Bhagwati Prasad  Singh. He  further stated  that before hearing the  genealogy from  Bhagwati Prasad  Singh  he  had occasion to  narrate the same to his son, Sarju Prasad. This part of  his evidence is wholly unintelligible because if he himself had  not heard  the genealogy  from Bhagwati  Prasad Singh, how could he narrate it to Sarju Prasad      In order  to further test his memory he was asked a few questions and  he admitted that he did not remember the year of his own marriage although he was married at the age of 18 years. He further admitted that he did not remember the year when his  mother died. It is not understandable how he could remember the  genealogy narrated  to him  long before  if he could not  remember the facts which were directly within his personal knowledge, viz., either the year of his marriage or of the  death of  his mother.  Another person  from whom the witness is  said to have acquired knowledge of the genealogy is, according  to him, Vashist Singh. He admits that he does not remember the time, year or even the occasion for hearing the genealogy  from Vashist  Singh nor  does he remember how many other  persons were present when Vashist Singh narrated the genealogy.      Doubtless, this  witness is  highly interested  being a close relation  and friend  of Bhagwati Prasad Singh (father of the plaintiffs. Though that circumstance alone may not be sufficient to discard his evidence, yet it is a factor to be reckoned with  and shows  that the testimony of this witness is tainted. As the stakes in the present case are very high, his evidence  has to  be viewed with great care and caution. We have  already adverted  to his  previous statement in the evidence where  he has  said that  he did  not remember more then 10  or 5  names in  the genealogy  narrated to  him  by Jadunandan Singh  yet he  claims that Vashist Singh gave out exactly the  same genealogy  as given  by  Jadunandan  Singh which in  fact consisted  of the  entire family of Bansidhar Singh up  to  12  degrees  and  8  degrees  commencing  from Bansidhar Singh  to Bhagwati  Prasad Singh. Thus, this clear inconsistency in his statement completely belies the fact of narration of the genealogy by Vashist Singh.

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    Another circumstance  to falsify  his evidence  on  the point of  genealogy is  that one of the persons from whom he claims to  have learnt  the genealogy  is  Bhupraj  Upadhya, Priest of  the late  plaintiff, Bhagwati  Prasad Singh.  The witness says that Bhupraj narrated 908 the genealogy  but he could not say whether it was 50 times, 100 times,  20 times,  10 times or only 5 times, nor does he recollect the  time when  the genealogy  was repeated on the second or  the third  occasion. So  far as Bhupraj Upadhya’s knowledge is  concerned, it  has been clearly proved in this case that  he could  not at  all be  aware  of  the  correct genealogy of  the family  of the late Maharaja. In the title suit of  .1908 filed  by the late plaintiff (Bhaawati Prasad Singh), Bhupraj  deposed as a witness and the certified copy of his  evidence is  Ex. B/32.  A perusal  of his deposition would  show   that  Bhupraj  had  himself  given  a  written genealogy on  the most  vital point  by saying  that  Gajraj Singh was  the son  of Bansidhar  Singh,  thereby  giving  a complete go-by  to the  case of  the present plaintiffs that Gajraj Singh  was son  of Ramruch  Singh. In  fact,  in  his statement  Bhupraj   omitted  the   existence   of   Ramruch altogether. Indeed,  if this  was so, how could this witness (Debi Singh)  have learnt  the  genealogy  from  Bhupraj  in respect of  a point  of which  Bhupraj himself appears to be totally  ignorant.   This  is   a  very   strong   intrinsic circumstance to  discard  the  testimony  of  this  witness. Furthermore, while  the witness attempts to give a very long and complicated genealogy which would show that he possesses an excellent  and shocking memory yet he admits that he does not remember  the date  of the  death of  his own father and mother or  even of  his own  marriage. It  is impossible  to believe that  a person  who had such a short and week memory so much so that who could not remember even important events of which  he had  personal knowledge,  would remember a long and complicated  genealogy running into more than a century. Thus,  the   hurly-burly,  skinny  and  scrawny  process  of repeating the  huge crowd of names of so-called ancestors of the plaintiffs  said to  have been  narrated to him has been proved to be unreliable on his own evidence, with the result that he has made confusion worse confounded. This shows that he was out to support his plaintiffs’ case without any sense of responsibility or regard for truth.      As regards  the fact  that he  heard the genealogy from Bhagwati Prasad  Singh in  1934 at  the Shradh  ceremony  of Janki Kuer,  this is  inadmissible in  evidence  being  post litam motam  because of  the death of Janki Kuer the dispute had already  arisen and  the question as to who would be the nearest reversioner had come out in the open.      Having    regard,    therefore,    to    the    glaring inconsistencies and  discrepancies  in  his  statement,  the shortcomings of his memory 909 which has  been  demonstratively  shown  by  his  subsequent statements as  referred to above, it seems that his evidence regarding the  narration of the genealogy by various persons is nothing  but a  cock and  bull story.  For these reasons, therefore, we are not a-t all inclined to place any reliance on his  evidence. We  might mention  here that  the  various discrepancies, circumstances  and infirmities pointed out by us in  his evidence  discussed above  have not  been noticed much less  explained by  the majority  judgment delivered by Mukherji, J.      This is  sufficient to  vitiate the appreciation of the evidence of the aforesaid witness by Mukherji, J.

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    This  brings   us  now  to  the  last  witness  of  the plaintiffs, who  is plaintiff  No. 1  himself,  i  e.  Radha Krishan Singh,  DW-13. It  is manifest that being the son of Bhagwati Prasad Singh and the main plaintiff, he is the most interested person  and is bound to support his case on which depends the  fate  of  this  litigation  so  far  as  he  is concerned. His  evidence  also,  therefore,  as  a  rule  of prudence has  to be  examined with  great care  and  caution because he  is interested  in making statements which may go to support  his case.  Even so,  his evidence  shows that he knows very  little about  the conduct of the case as it does not support  the genealogical  tree set  forth in the plaint itself. In  his statement,  he mentions that Bansidhar Singh had three  sons, viz.  Ramruch Singh,  Accho Singh and Fakir Singh and  expressly states  that Debi  Singh was not one of his  three   sons,  which  knocks  the  bottom  out  of  the plaintiffs’ entire  case. Further,  his  evidence  does  not establish any Link between Debi Singh and Aini Singh even in his examination-in-chief,  as a result of which he is forced to make a substantial change in his version at a later stage after several days realising that he had committed a serious blunder  which  might  discredit  his  case  altogether.  To illustrate our  point,  we  might  extract  a  part  of  his evidence regarding  his ancestor,  Bansidhar Singh  where he says, "Bansidhar  Singh  had  three  sons,  namely,  Ramruch Singh, Accho Singh and Fakir Singh". It is pertinent to note that he  does not  name Gajraj  Singh at  all. Realising his mistake he  adds that  Gajraj Singh  was the  son of Ramruch Singh. It  is obvious  that before  coming to  the court, he must have been fully prepared with at least his own family’s genealogy on  the basis of which he wished to succeed hl the suit filed  by him  and yet  the omission of Gajraj Singh at the first  flush seems  to indicate  the poor  state of  his knowledge.      Disclosing  his  knowledge  about  the  genealogy,  the witness states  that he  had learnt  the genealogy  from his father, Bhagawati 910 Prasad  Singh   and  one  Bishwanath  Singh  Balwaria  About Bishwanath Singh  he says  that he  had heard  the genealogy when he  was only  12 years  old.  He  makes  a  very  stark admission which  shows the  state of  his memory. He says in paragraph 26  of his evidence that he could not say the year of his  birth and  that of  his brother  according to  Hindi Samvat and  Fasli Year.  In order  to conceal  his  lack  of knowledge he  makes out  a case  that his  horoscope as also that of  his brother,  Sri Kishan  were lost.  He  later  on changed his  statement immediately  by saying  that he could not say  if the  horoscope of  his other  two brothers  were still in  his house or they were also lost. In order to test his memory,  some vital  questions were asked and he replied thus:           "My father at times used to tell me about the      different sub-sects  of Bhumihar  Brahmins. When I      was aged 17 or 18 years, my father told me for the      first  time   about  the  different  sub-sects  of      Bhumihars and  this  he  had  told  me  about  one      hundred times.  He never tested me if I remembered      the different sub-sects which he had told me."                               (Vol. I, p. 343: para SO)      When questioned  expressly regarding the genealogy, the witness makes the following pertinent statement:           "One of  those papers was a written genealogy      which would  show that  the  persons  named  above      belong to  his family  as stated  by me. About two

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    years ago that I saw the above genealogy. I cannot      say who  is the writer of that genealogy. I cannot      say if the name of the writer is mentioned in that      genealogy which  is from the time of Hansraj up to      the time of Adity Singh and . his brother. Harkhan      Singh in  the line  of Bikram  Singh and  upto the      time of  Ram Rupan  Singh in  the line  of Chhatan      Singh. I do not remember if in their genealogy the      last  member   in  the  line  of  Rudra  Singh  is      mentioned. In  that genealogy the name of Musammat      Jai (?)  Raj Kuar  and Raghuanth Singh in the line      of Devi  Singh one  of the sons of Bansidhar Singh      are  mentioned.   There  is   no  mention  of  the      descendants of Ram Ruch Singh in that genealogy as      they had  gone away to Baraini. In that genealogy,      there is no mention of the brothers of 911      Bansidhar Singh or their descendants or the descendants      of Bansidhar Singh who had left village Majhawa."                                    (Vol. 1, p. 349, para 79)      This shows  his complete  lack of  knowledge of his own family’s genealogy  which conclusively  proves the fact that he has  been asked to depose parrot like just to support his case. To  begin with,  he says that one of the papers he had seen was  a written  genealogy in which the persons named in an earlier  part of  the statement were mentioned. He admits that he saw that genealogy about two years back but he could not say  who was the writer of that genealogy and whether or not his  name was  mentioned in  that genealogy.  He has not cared to  produce that  particular genealogy or to prove the same along  with the  number of genealogical tables filed by the plaintiffs.  Further, in  the genealogy which he appears to have  seen, according  to him, the names of Mst. Raj Kuer and Raghunath Singh in the line of Debi Singh are mentioned. A reference  to the plaint genealogy will show that the name of Mst.  Raj Kuer is not mentioned at all. He further admits that there  is no  mention at  all  of  the  descendants  of Ramruch Singh  which is  the most  vital factor to determine the truth  of the  plaintiffs’ case.  Ramruch Singh  is  not proved to  be the father of Gajraj Singh, and therefore, the suit must necessarily fail. The witness who is the plaintiff himself is unable to explain this serious lacuna and gives a most feeble  and unconvincing  explanation that the omission was due  to the  fact that  Ramruch Singh  had gone  away to Baraini. A number of other heirs in the plaint genealogy are mentioned who  also had  gone to Baraini and, therefore, the explanation given  by  him  is  to  be  stated  only  to  be rejected. He  further admits  that in  the  said  genealogy, there is  no mention  of the  brothers of Bansidhar or their descendants. This, therefore. completely disproves his case.      The witness  further goes  on to  state that he had not asked Gauri Babu, one of the plaintiffs in this case who was also the  Pairvikar, about  the papers filed by him, nor did Gauri Babu  tell him  what papers  had been filed. He admits that Gauri Babu went to the lawyers to explain the papers to them and  he has  all along  been present in court since the cases were taken up for hearing. In this view of the matter, his statement  is most  unnatural and improbable and even if believed it does not prove the vital missing links. 912      M.M. Prasad,  J. rightly  inferred from  the  aforesaid statements A  made by  the witness  that he had not produced the most important document, viz., the genealogy about which he had  stated in  his evidence mentioned above. The counsel for the  respondents, however,  submitted that  the  learned

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Judge was  wrong because  the  genealogy  mentioned  by  the witness in  paragraph 79  of his  deposition was  really the genealogy (Ex.  Q-2).  We  are  unable  to  agree  with  the contention advanced  by  the  counsel  for  the  respondents because in  the first  place. DW-13 has not at all mentioned that the  genealogy which  he had  seen was produced in this case. Secondly, the genealogy (Ex. Q-2) was not at all shown to him  by  the  counsel  for  the  plaintiff  in  order  to elucidate the  fact that it was the genealogy referred to in his evidence  in para 79 extracted above. Indeed, if Ex. Q-2 was really  the genealogy  referred to  by the  witness,  as contended for  the respondents,  then the  first thing which should have  been done by the plaintiffs’ counsel would have been to  put  Ex.  Q-2  to  the  witness  at  once.  It  is, therefore, clear that M. M. Prasad, J. was correct in making adverse comments  regarding this part of the evidence of DW- 13.      It was  further argued  before us  by Mr. Tarkunde that there was  another mistake  committed in the appreciation of the evidence  of DW-13  and that  was the fact that much was made of  the statement  of the witness that while naming the sons of Bansidhar Singh Accho Singh was mentioned instead of Devi Singh.  This is an unmistakably clear statement made by the witness  and there  is no  question of  there being  any lapse on  this part  of the  case. It  is a different matter that the  witness may have realised the omission of the name of Devi  Singh later  but truth  comes out first. Apart from this, the  learned dissenting  Judge has  given a  number of reasons for disbelieving DW-13. The learned Judge has relied on the  omission on  the part  of the  witness to  give  the genealogy of  the Babus  of Sheohar,  Madhuban and Sirsa. It was further  pointed out  by the  learned Judge  that  DW-13 stated that  his source  of information of the genealogy was his father  but it  is doubtful  if his father himself would have known  the genealogy  of all the branches if, according to the  statement of  the witness,  he was living in Baraini since long  and would  therefore have  lost contact with all his  relations.   In  this  connection,  the  learned  Judge observed thus:  "Could his  father himself  have  known  the genealogy from  Bansidhar down  to himself, the genealogy of Raja 913      Dhruba and  the members of his family and the genealogy      of the ancestors and descendants of Raja Jugal Kishores      Circumstances do  not show that he could have known all      these. Thus  simply because this witness states to have      learnt it  from his  father, it  cannot  be  taken  for      granted that  his father  must have known all these and      had communicated  to him  the entire genealogy of these      branches."                                          (Vol. VIJI, p. 492)      In these circumstances, we entirely agree with the view taken by  M. M. Prasad, J. that no reliance can be placed on the evidence of this witness, DW-13.      The last  witness whose  evidence was  not relied on by Mr. Tarkunde is Mahadeo Singh, DW-36 (Vol. I, p. 462) but as the witness  is an  octogenarian we may just as well briefly deal with  his evidence.  To begin with, the witness gives a complete genealogy  of Bhagwati  Prasad Singh  and the  late Maharaja right  from Bansidhar  Singh up  to the plaintiff’s father Bhagwati  Prasad Singh  and tries  to connect the two families as  having  a  common  ancestor,  Bansidhar  Singh. Mukherji,  J.   has  held   that  the  witness  was  closely associated with  the family of Bhagwati Prasad Singh and the late Maharaja  and being  an old  man he must be presumed to

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have special means of knowledge. The learned Judge, however, does not  appear to  have considered the intrinsic merits of the evidence  of this  witness. In  the first  place,  DW-36 admits in  his cross-examination  that he  could not say how Bansgopal Singh,  who is  a descendant in the line of Gajraj Singh, was  related to  Raghunath Singh  in the line of Devi Singh. He  further admits  that he  has forgotten about this relationship. This  is an important circumstance to negative the fact  that he  had any special means of knowledge of the ancestors of  the family  of the late Maharaja. This crucial omission seems  to have  been brushed aside by Mukherji, J., without  realising  the  importance  of  the  aforementioned omission. On  the other  hand, M.  M. Prasad,  J. has  fully discussed the  evidence of  this witness  and found that the witness is  an unreliable one. In order to prove his special means of  knowledge of  the  genealogy  of  the  plaintiff’s family he  claims that  he was  a  close  neighbour  of  the plaintiff’s and  was on  visiting, dining and inviting terms with their family. H      He also  states that  he and  his ancestors were in the service of  Bettiah Raj,  more  particularly,  Hanuman,  his grand-father, Salik. 914 Singh,  his   great-grand-father  and  Baijnath  Singh,  his greatgreat-grandfather. There  is, however,  no evidence  to show that  Baijnath, Salik or Hanuman were in the service of Bettiah Raj,  nor has  any document been produced in support of this  statement. There  is also no document to prove that he was a personal attendant of the late Maharaja, as claimed by him;  although he  claims to  be a personal attendant for three years, it is rather strange and curious that he cannot give the  age of  the Maharaja  at the time of his death nor the time  of the  marriage of  the Maharaja with Janki Kuer. This is  rather important because it is the admitted case of the parties that Maharaja Harendra Kishore Singh died within a month of his marriage with Janki Kuer. He goes on to state that he  learnt the genealogy from the late Maharaja and his uncle Ram  Kumar Singh,  Bhagwati  Prasad  Singh  and  Bhola Singh. He first stated that Bhola was the son of Deep Narain but immediately  changed his  statement and  said that Bhola Singh was the son of Deo Narain.      Some questions  were put  to him  in order  to test his memory and  he made  a very specific statement to the effect that he  does not  know his  own genealogy except up to five degrees, that  is to  say, up  to Baijnath Singh. He further admitted that  he does  not know  the genealogy  even of his close relations,  not even  the names  of fathers of some of his close  relations, nor  even of  his own  maternal  grand uncle. Indeed,  if the witness was not in a position to know the genealogy  of his own family how could he be expected to remember the  genealogy of the late Maharaja whom he is said to have merely served.      Further, in  order to  test the  truth of the genealogy given by  him he was asked to repeat the twenty names of any genealogy which  he remembered  but the  witness  failed  to respond and  took refuge  under the plea that as he was very old his  memory had  faded though  he used to remember facts only up  to the age of twenty years. It is rather surprising that although  he claims  that his memory has not failed him in respect of all the names that he learnt at the age of 16- 17 years  yet it  completely failed  at the time when he was giving evidence.      Similarly,  when   asked  as  to  when  his  ancestor’s connection with  the ancestors  of Bhagwati  Prasad Singh on inviting terms  began the  witness answered  ’Bansidhar  and

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Baijnath’. This  was a  positively false  statement  because Baijnath being his ancestor in the 6th 915 degree could not have been a contemporary of Bansidhar Singh who lived  long before  Baijnath and  therefore there  is no question of  A Bansidhar  Singh or  Baijnath Singh  being on inviting terms.      None of  these circumstances or admissions made by this witness were  noticed or  considered by Mukherji, J. In view of these  confused and  conflicting statements  we  find  it difficult to place any reliance on the evidence of DW-36 and we agree  with M.M.  Prasad, J.  that the  witness  was  not worthy of credence.      It was  to meet  and save  such or  similar  situations resulting from the shortcomings and frailties of the failing and fading  human memory that Sir George Rankin, in the case of Rokkam  Lakshmi Reddi  & Anr.  v. Rokkam  Venkata Reddi & Ors.(1) like a sage counsel sounded a note of caution in the following prophetic and classic words:           "It cannot  rightly be  left to  time or chance or      cross examination  to disclose  whether a statement has      any basis which could give it value or admissibility."      To sum  up, the ingenious and imaginative, fanciful and foggy, nasty  and nebulous  narration of  genealagies by the plaintiffs witnesses  one  after  the  other  looks  like  a ’sleeping beauty’  or Cinderella’s  Dream or as Shakespeares Macbeth would  say "A  tale told  by an idiot, full of sound and fury, signifying nothing."      Thus, on  a complete  and careful  consideration of the oral evidence  also the  plaintiffs have miserably failed to prove the  two important  links, viz., that Gajraj Singh was the son of Ramruch Singh, and that Ramruch Singh was the son of Bansidhar Singh and brother of Debi Singh.      Before closing  our comments  on the  oral evidence, we might say  a few  words about  the  methodology  adopted  by Mukherji, J.  speaking for the majority, in appreciating and analysing the evidence of the witnesses of the plaintiffs:      (1)   The manner  in which  Mukherji, J.  seems to have           approached the evidence does not appear to be 916           correct or scientific. On the other hand, he has A           dealt  with   the  evidence   of  the  plaintiffs’           witnesses in  a very casual and cursory manner, as           pointed out  by us,  and has completely overlooked           striking facts  and circumstances which render the           evidence of the witnesses unworthy of credence.      (2)  No attempt was made by the learned Judge to adhere           to  the  rules  of  evidence  regarding  proof  of           genealogy which  we have  discussed above, nor was           any  importance   attached  to  the  most  notable           feature of  the  evidence  of  witnesses  for  the           plaintiffs that  while  testing  their  memory  in           order to  find out  if they  could really remember           the names narrated to them, they completely failed           to  pass   the  usual   tests  laid  down  by  the           authorities, as  indicated by  us, both before and           after, while  dealing with  the evidence  of these           witnesses.      (3)   The learned  Judge  appears  to  have  taken  the           evidence of  the plaintiffs’ witnesses for granted           and accepted  the same to be true ex facie without           making  a   thorough  probe   into  the   apparent           inconsistencies and glaring infirmities from which           the evidence of these witnesses suffers.      We are  therefore, unable  to uphold  the view taken by

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the majority judgment in respect of the oral evidence on the point of genealogy.      A similar  approach seems  to have  been  made  by  the majority judgment so far as the documents are concerned, the reliance was  placed by  the majority  judgment on  a  large number  of   documents   which   were   either   irrelevant, inadmissible or  of no  assistance to  the  plaintiffs.  For instance, Mukerji,  J. relied  on Exhibits  DD-30 and  31 to prove the genealogy mentioned therein, little realising that in the  first place  the recitals  in the judgments were not admissible as  the judgments  were not inter parties and the genealogy given  therein was also a part of the recitals and therefore, could  not be made y use of in law. We have fully discussed both  the legal  and the  factual position  of the documents relied  on by the plaintiffs and have demonstrated that the said documents ought not have beenrelie 917 On the majority judgment. It is not necessary to burden this judgment by repeating what we have already said. A      In fact,  it seems to us that the majority judgment was greatly impressed  by the  fact that  as the  plaintiffs had proved their  case of genealogy right up to Gajraj Singh and thereafter seem  to have  presumed without  any  cogent  and reliable evidence  that Gajraj Singh must have been a direct descendant of  Bansidhar Singh even if there was no reliable evidence to  prove this  fact. On  the other hand, there was positive evidence  to show  that Gajraj  Singh was  not  the grandson of  Bansidhar Singh  from the circumstances and the documents in  which the  name of  Ramruch Singh as being the father of Gajraj Singh was completely omitted as pointed out by as above. C      On  a   close  and  careful,  detailed  and  exhaustive discussion  of   the  oral  and  documentary  evidence,  the inescapable conclusions  and  the  firm  findings  which  we arrive at are us follows:      (1)  That the plaintiff has no doubt proved that he was           a direct descendent of Gajraj Singh but that is of           no assistance  to him  so long  as it is not shown           that the  missing links-the relationship of Gajraj           Singh with  Ramruch Singh,  and Ramruch Singh with           Bansidhar Singh, and that Bandsidhar Singh was one           of the  sons of  Hirday  Narain  Singh  have  been           established.      (2)   That the  plaintiff has miserably failed to prove           that Gajraj  Singh was  in any  way connected with           Bansidhar Singh, or that Ramruch Singh was the son           of Bansidhar Singh and brother of Debi Singh.      (3)   That Ex.  J. was admissible in evidence though of           no assistance to the plaintiffs.      (4)     That  the  documents,  transactions  judgments,           rebkars,   plaints,   written   statements,   etc.           produced by  plaintiffs are either inadmissible or           irrelevant.      (5)   That the  oral evidence on the point of genealogy           is utterly unrealiable and unworthy of credence. H      (6)  That neither the documentary nor the oral evidence           adduced by  the plaintiffs  is sufficient to prove           their 918           case and  hence  the  plaintiffs  have  failed  to           discharge A  the initial onus which lay on them to           prove their case.      (7)   That the majority judgment is wrong in law and on           facts and  has  arrived  at  factually  wrong  and           legally  incorrect   conclusions  and,  therefore,

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         cannot be upheld.      (8)   That we  entirely agree with the judgment of M.M.           Prasad, J.  so far  as  the  plaintiffs’  case  is           concerned.      (9)   The plaintiffs  have not proved that they are the           next and  the nearest  reversioners  of  the  late           Maharaja (Harendra Kishore Singh).      We must  confess however  that to discover and sift the truth from  a huge mass of materials relevant or irrelevant, ancient and  archaic, varied  and diverse, heterogeneous and sundry, has  not been  a bed of roses but indeed a Herculean task. With  due deference to the majority Judges we dare say that despite  their strenuous and perhaps genuine efforts to reach  legally   correct  conclusions  on  important  issues involved in  the case,  in the  ultimate analysis  they have only been  able to  do poetic  rather than legal justice. We have, therefore,  taken great  care to  rely only  on  those documents. Or  evidence which  appeared to us to be reliable and dependable:  thus eliminating  any chance of mistake. No mortal person  whether he  be a  Judge or  a Jurist can ever claim to  be infallible  and all  that is  required is to do justice  on  the  materials  and  records  uninfluenced  and undaunted by  any extraneous  circumstances. This is what we have endeavoured  to do in the present case which may be one of the  many cases before us but doubtless a prestigious one for the parties involved in the appeal.      It may  be stated  as a sort of a postscript that great reliance was placed by the respondents on the admission made by the State of Bihar in its application for leave to appeal to this  Court which  is to  the effect  that  there  is  no dispute regarding  the links  from Bansidhar  Singh to  Debi Singh, Aini Singh, Pahalwan Singh, Tilak Singh and Balbhadra Singh. We  have earlier  mentioned quite  8 few  times  that though these  links arc proved but they are of no use to the plaintiffs unless  the links  between  Ramruch  Singh,  Debi Singh 919 and Bansidhar  Singh are  proved. We have already shown that the  plaintiffs   have  miserably   failed  to  prove  these important links.  In A  other words,  the left-hand  side of plaintiffs genealogy starting from Debi Singh up to the late Maharaja has  undoubtedly been  proved but  that  by  itself cannot show  that the plaintiffs are the next or the nearest reversioners of the late Maharaja.      In view  of the  findings given  by us, the plaintiffs’ suits have to be dismissed.      Before closing the colourful chapter of this historical case we  would now  like t  o deal with the last point which remains to  be  considered  and  that  is  the  question  of Escheat. So  far as  this question is concerned, M.M Prasad, J. has  rightly pointed  out that  as the State of Bihar did not enter  the arena  as a plaintiff to claim the properties by pleading  that the  late Maharaja had left no heir at all and, hence,  the properties  should vest  in  the  State  of Bihar, it  would be  difficult to  hold that  merely in  the event of  the failure of the plaintiffs’ case the properties would vest in the State of Bihar.      It is  well settled that when a claim of escheat is put forward by  the Government  the onus  lies  heavily  on  the appellant to prove the absence of any heir of the respondent anywhere in  the world.  Normally, the  court frowns  on the estate  being   taken  by   escheat  unless   the  essential conditions for  esheat are  fully and  completely satisfied. Further, before  the plea  of escheat  can  be  entertained, there must  be a  public notice  given by  the Government so

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that if there is any claimant anywhere in the country or for that matter in the world, he may come forward to contest the claim of the State. In the instant case, the States of Bihar and Uttar  Pradesh merely  satisfied themselves by appearing to oppose  the claims of the plaintiffs-respondents. Even if they succeed  in showing  that the  plantiffs were  not  the nearest reversioners of late Maharaja, it does not follow as a logical  corollary that  the failure  of  the  plaintiffs’ claim would lead to the irresistible inference that there is no other  heir who  could at  any time come forward to claim the properties.      The trial  court was  wrong in  accepting the  case  of escheat  put  forward  by  the  appellants  without  at  all considering  the   well-known   rules   and   considerations governing the vesting of properties in the state by escheat. M.M. Prasad,  J. has  explained the  position very cleary in his judgment and has concluded thus: 920           "In view,  however, of what I have held that the A      finding or declaration of the property having vested in      the State  of Bihar  itself cannot  be  sustained,  the      question of making a declaration in favour of the State      of Uttar Pradesh regarding the property in suit in that      State does not arise.                                          (Vol. VIII, p. 535)      We entirely  agree with  the opinion  expressed by  the learned Judge  on this  question. However,  we would like to leave this  question open without deciding it one way or the other because  for the  purpose of deciding the appeal it is not at  all necessary  to go  into the  question of  escheat which may  have to be determined when the State of Bihar and Uttar Pradesh  come forward  to claim  escheat in a properly constituted action. The plea taken by both the States on the question of escheat is therefore left undecided.      It is  obvious that  the majority judgment expressed no opinion on  the question  of escheat  in view of its finding that the plaintiffs’ suit had to be decreed.      We might further state that as the properties are under the management  of the  Court of wards of the State of Bihar and Uttar  Pradesh, the  status quo will be maintained until any of  the State  is able to prove its plea of escheat in a properly constituted action.      The  result  is  that  the  appeals  are  allowed,  the dissenting judgment  of M.M.  Prasad, J. is affirmed and the plaintiffs’ suit is dismissed with costs throughout. P.B.R.                                   Appeals allowed and                                  Plaintiff’s suit dismissed. 921