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PETITIONER: DOLGOBINDA PARICHA

       Vs.

RESPONDENT: NIMAI CHARAN MISRA & OTHERS

DATE OF JUDGMENT: 27/04/1959

BENCH: DAS, S.K. BENCH: DAS, S.K. SARKAR, A.K. SUBBARAO, K.

CITATION:  1959 AIR  914            1959 SCR  Supl. (2) 814  CITATOR INFO :  RF         1977 SC2002  (5)  R          1983 SC 684  (140)

ACT: Evidence-Admissibility--Joint  statement of  three  Persons- Admissibility under s. 32(5) of the Evidence Act, when  only one  is dead-Opinion as to Relationship-Conduct as  evidence of  opinion-  Proof of  conduct-Direct  evidence--"Opinion", meaning  of--Indian  Evidence  Act, 1872 (1  of  1872),  ss. 32(5),50, 60.

HEADNOTE: On the death of H, who as the mother of the last male  owner had  succeeded  to the estate, the respondents  claimed  the estate  and brought a suit for its recovery on the  strength of the pedigree which they set up that they were the sons of the  halfsisters of the last male owner and  therefore  came before  the agnates.  The suit was contested by some of  the agnates,  of whom the appellant was one, who challenged  the correctness  of  the  pedigree,  and  maintained  that   the respondents’  mothers were not the half-sisters of the  last male  owner.  The trial court agreed with  the  respondents’ case and decreed the suit and this was confirmed by the High Court.   The  High Court relied on Ex. 1, a  petition  dated November 2, 1917, which S, one of the brothers of the  third plaintiff,  on his own behalf and on behalf of his  brothers had filed in Suit NO. 31 Of 19I7 which was a suit instituted by  some  of  the agnates of  H’s  husband  questioning  the alienations made by H. In the petition,, S alleged that  the applicants were the legal claimants to the properties in the suit  and prayed to be added as co-defendants to  the  suit. The  petition  contained  a  pedigree  which  supported  the pedigree set up 815 by the respondents, and the High Court held that Ex.  I  was admissible  under S. 32(5) of the Indian Evidence Act.   The oral   evidence  of  P.W.  2  and  P.W.  4   supported   the respondents’ case as to the pedigree set up by them and  the High Court held that their evidence was admissible under  s. 50  Of  the Indian Evidence Act.  On appeal to  the  Supreme Court,  it was contended for the appellant (1) that  Ex.   I

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was not admissible under s. 32(5) Of the Indian Evidence Act because  (a) the statement therein was a joint statement  of three persons of whom one alone was dead, and (b) it was not made before disputes had arisen ; and (2) that the testimony of  P.W. 2 and P.W. 4 did not fall within the purview Of  s. 50 Of the Indian Evidence Act and that the High Court  erred in admitting and accepting such evidence. Held:     (1)  that s. 32(5) Of the Indian Evidence Act  was applicable  to  the  statements as to  pedigree  in  Ex.   I because  :  (a) they were really made by S for self  and  on behalf of his brothers, and that, in any case, they were  as much  statements of S as of the other two brothers  who  are alive. Chandra Nath Roy v. Nilamadhab Bhattacharjee, (1898)  I.L.R. 26 Cal. 236, approved. (b)  they  were made before the precise question in  dispute in  the  present litigation had arisen, as  the  respondents were not preferential heirs at the time of the previous suit and  no question arose or could have arisen then as  to  the relationship between them and the last male owner. (2)  that  the evidence of P.W. 2 and P.W. 4 that they  were present   at the marriage of the mother of plaintiffs 1  and 2 as also at   the Upanayanam ceremonies of plaintiffs 1 and 2,  showed  the  opinion  of  those  witnesses  as  to   the relationship   as  expressed  by  their  conduct,  and   was admissible under s. 50 Of the Indian Evidence Act. The  word  " opinion " in S. 50 Of the Indian  Evidence  Act means  something  more  than mere  retailing  of  gossip  or hearsay; it means judgment or belief, that is, a belief or a conviction  resulting from what one thinks on  a  particular question.  Such belief or conviction may manifest itself  in conduct  or behaviour which indicates the existence  of  the belief or opinion. Under S. 50 such conduct or outward behaviour as evidence of the opinion held is relevent and may be proved. Chander  Lal  Agarwala v. Khalilay Rahman, I.L.R.  [1942]  2 Cal. 299, approved. Conduct,  as  an external perceptible fact,  may  be  proved either by the testimony of the person himself whose  opinion is  evidence under s. 50 or by some other person  acquainted with  the  facts  which express such  opinion,  and  as  the testimony  must  relate to external facts  which  constitute conduct  and is given by persons personally acquainted  with such facts, the testimony is in each case direct within  the meaning of s. 60 of the Indian Evidence Act. 816 The  observations  ’of  Hutchins, J., in  Queen  Empress  v. Subbarayan, (1885) I.L.R. 9 Mad. 9, that s. 50 of the Indian Evidence Act seems to imply that a person whose opinion is a relevant  fact cannot be called to state his own opinion  as expressed by his conduct and that his conduct may be  proved by  others  only  when  he is  dead  or  cannot  be  called, disapproved.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 206 of 1954. Appeal from the judgment and decree dated March 9, 1951,  of the Orissa High Court in- Appeal from Original decree No. 14 of  1946,  arising  out of the  judgment  and  decree  dated January  31,  1946,  of the Court of  Subordinate  Judge  at Sambalpur in Title Suit No. 16 of 1944. L.   K.  Jha,  Rameshwar  Nath,  S.  N.  Andley  and  J.  B. Dadachanji, for the appellant.

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S. C. Issacs and R. Patnaik, for the respondents. 1959.  April 27.  The Judgment of the Court was delivered by S.   K. DAS, J.-This appeal on a certificate granted by  the High Court of Orissa is from the judgment and decree of  the said   High  Court  dated  March  9,  1951,  by   which   it substantially   affirmed   the  decision  of   the   learned Subordinate Judge of Sambalpur in Title Suit No. 16 of  1944 except for a modification of the decree for damages  awarded by  the latter.  Two questions of law arise in this  appeal, one relating to the interpretation of s. 32, sub-s. (5)  and the  other to S. 50 of the Indian Evidence Act (I of  1872), hereinafter referred to as the Evidence Act. The material facts relating to the appeal are susceptible of a-simple and concise statement.  Three persons Nimai  Charan Misra,  Lakshminarayan  Misra and Baikuntha Pati  brought  a suit  for  a declaration of their title to and  recovery  of possession  of  certain properties details whereof  are  not necessary  for  our purpose.  This suit was  numbered  Title Suit  16  of 1944 in the court of the Subordinate  Judge  of Sambalpur.   The  claim of the plaintiffs,  now  respondents before us, was founded on the following pedigree:- 817                   Sankarsan    Balaram                                 Bhubana Baidyanath   Raghunath  Purushottam  Satyabhama=   Lokanath=                               Haripriya                               alias Srihari                               (died 1942)                               (2nd wife)                               Satyananda                             (died 1902) Natabar Deft. 1               Janardan                        Devendra Deft. 3 Radha Krushna                 Dolgovind      Ramhari Deft. 4                       Deft. 5        Deft. 6    Must. Ahalya     Mst. Brindabati     Mst. Malabati   (dead) married    (dead) married.     (dead) married.   Lakhan Pati.      Raghumani.          Mandhata Misra. Satyabadi Dasarath  Baikuntha   Nimai     Lakshminarayanm (dead)    (Deft.8)  (Plaintiff3) Plaintiff1  Plaintiff2    (given in    adoption    in another    family). 818 The  last  male  owner was  Satyananda  who  died  unmarried sometime in 1902-1903, and his mother Haripriya succeeded to the estate.  She lived till 1942; but in 1916 she had sold a portion  of  the  property  to  one  Indumati,  daughter  of Dharanidhar  Misra (plaintiffs’ witness no. 4) and  some  of the  reversioners,  namely, Natabar and Janardan,  who  were agnates of Haripriya’s husband Lokenath Parichha, brought  a suit challenging the alienation.  This suit was Suit No.  31 of  1917 in the court of the Subordinate  Judge,  Sambalpur. The suit was decreed on August 31, 1918, and the  alienation was  declared to be without legal necessity and not  binding on the reversion after the death of Haripriya.  In 1929  was passed  the Hindu Law of Inheritance (Amendment) Act (II  of 1929)  which inter alia gave to a sister’s -son a  place  in the order of Mitakshara succession higher than the  agnates; before  the amending Act a sister’s son ranked as a  bandhu, but  under  it  he succeeded next  after  the  sister.   The question  whether  a  half-sister was entitled  to  get  the benefit  of  the amending Act gave rise to a  difference  of opinion,  but the Privy Council held in 1942,  settling  the

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difference  then existing between the various  High  Courts, that the term I sister’ included a ’half-sister’; but a full sister  and  a  half-sister did not take  together  and  the latter  took only in default of the full sister.  (See  Mst. Sahodra  v.  Ram  Babu  (1)  ).  The  plaintiffs-respondents claimed  on the strength of the pedigree which they  set  up that  they  were sons of the half-sister  of  Satyanand  and therefore came before the agnates.  The  suit was contested by some of the defendants who  were agnates  of  Lokenath  Paricha  and  of  whom  the   present appellant was one.  The contesting defendants challenged the correctness  of  the  pedigree alleged  by  the  plaintiffs- respondents and their main case was that Ahalya and Malabati were  -not  the  daughters of  Lokenath  Parichha  but  were daughters  of  Baidyanath Misra, father of  Haripriya.   The relevant pedigree which the appellant set up was- (1)  (1942) L.R. 69 I.A. I45. 819         Baidyanath Misra Haripriya  Bisseswar     AliaJ     Malabati (died on      Misra Laksh     Pati Mandhata 6-4-1942)      Dayasagar Satyanand  Sushila P. W. 3 (died in 1903)         Dasarathi   Baikuntha                             Plff. 3                  Nimai      Lakshmi-                  Plff.1     narayan.                            Plff. 2. As  the  High Court has put it,  the  essential  controversy between  the  parties  centred round  the  question  if  the plaintiffs-respondents  were  the sons of the  daughters  of Lokenath  Parichha  by his first wife Satyabhama.   On  this question   the  parties  gave  both  oral  and   documentary evidence.   On a consideration of that evidence the  learned Subordinate  Judge  held  that they were  the  sons  of  the daughters of Lokenath Parichha and on that finding the  suit was decreed.  There was an appeal to the High Court, and  it affirmed the finding Of the learned Subordinate Judge.   The High  Court  relied on Ex. 1, a petition dated  November  2, 1917, which Satyabadi on his own behalf and on behalf of his brothers  Baikunth Pati and Dasarath Pati had filed in  Suit No.  31  of 1917; this petition contained a  pedigree  which showed that Ahalya, Brindabati, and Malabati were  daughters of  Lokenath  Parichha  by his  first  wife  and  Satyabadi, Baikunth and Dasarath were the sons of Ahalya.  The admissi- bility  of  this document was challenged on  behalf  of  the appellant,  but  the learned Judges of the High  Court  held that the document was admissible under s.    32(5)  of   the Evidence Act.  The contention before us is that the document was not so admissible, and this is one of the questions  for decision before us. As  to  the  oral evidence, Narasimham, J.,  held  that  the testimony given by three of the witnesses of the plaintiffs- respondents, namely, Janardan Misra (plaintiffs’ witness no. 2),   Sushila  Misrain  (plaintiffs’  witness  no.  3)   and Dharanidhar Misra (plaintiffs’ witness no. 4)was  admissible under s. 50 of the Evidence Act, and 820 he  relied on that testimony in support of the pedigree  set up by the plaintiffs-respondents.  The learned Chief Justice relied on the evidence of Dharanidbar Misra which be held to be  admissible but with regard to the. other two  witnesses, he said- "  With regard to the other two witnesses relied on  by  the

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plaintiffs namely that of P. Ws. 2 (Janardan Misra, aged 62) and 3 (Susila Misrani, aged 43) knowledge of relevant  facts as to relationships can seldom be attributed to them.  Their evidence,  though  true, and otherwise acceptable,  must  be based  upon  their  having heard the  declarations  of  such members  of the family as were their contemporaries or  upon the tradition or reputation as to family descent handed down from generation to generation and recognised and adopted  by the  family generally.  This may partly, if not  wholly,  be based upon conduct within the meaning of section 50, such as treating  and recognising the mothers of the  plaintiffs  as Lokenath’s  daughters, and the plaintiffs as his  daughter’s sons.  They, judged from their respective ages, could not be considered to have direct knowledge of the matters in issue. Scanning their evidence closely, I find that they have in no way deposed about such conduct of the members of the  family of  Lokenatb  as  could be attributed to  the  knowledge  or belief  or consciousness of those who had special  means  of knowledge of the relationships or that the relationship  was recognised  and  adopted by the family  generally.   In  the circumstances,   I   entertain   some  doubt   as   to   the acceptability of their statements in evidence." On  behalf of the appellant, it has been contended that  the testimony  of  none of the aforesaid  three  witnesses  fell within the purview of s. 50 of the Evidence Act and the High Court was in error in admitting and accepting that  evidence or  any part thereof, and according to learned  counsel  for the appellant, the whole of it was hearsay pure and  simple- some  of it being even second or third-hand  hearsay.   Thus the  second question for our consideration is if the  testi- mony of the witnesses mentioned above or of any of them,  is ’admissible evidence within the meaning of s.     50 of  the Evidence Act. 821 We  proceed  to  consider the second  question  first.   The Evidence  Act states that the expression " facts in issue  " means  and includes any fact from which either by itself  or in   connection  with  other  facts  the   existence,   non- existence,  nature  or  extent of any  right,  liability  or disability  asserted  or denied in any  suit  or  proceeding necessarily  follow; "evidence" means and includes  (1)  all statements  which the Court permits or requires to  be  made before it by witnesses in relation to matters of fact  under enquiry ; and (2) all documents produced for the  inspection of the Court.  It further states that one fact is said to be relevant to another when the one is connected with the other in any one of the ways referred to in the provisions of  the Evidence Act relating to the relevancy of facts.  Section  5 of the Evidence Act lays down that evidence may be given  in any suit or proceeding of the existence or non-existence  of every fact in issue and ’of such other facts as are declared to  be relevant and of no others.  It is in the  context  of these  provisions  of  the  Evidence Act  that  we  have  to consider  s. 50 which occurs in Chapter 11, headed " Of  the Relevancy  of Facts Section 50, in so far as it is  relevant for our purpose, is in these terms:- "  S. 50.  When the Court has to form an opinion as  to  the relationship   of  one  person  to  another,  the   opinion, expressed   by  conduct,  as  to  the  existence   of   such relationship,  of any person who, as a member of the  family or otherwise, has special means of knowledge on the subject, is a relevant fact On a plain reading of the section it is quite clear that  it deals  with  relevancy of a particular fact.  It  states  in effect that when the Court has to form an opinion as to  the

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relationship of one person to another the opinion  expressed by  conduct as to the existence of such relationship of  any person who has special means of knowledge on the subject  of that relationship is a relevant fact.  The two illustrations appended to the section clearly bring out the true scope and effect of the section.  It appears to us that the  essential requirements  of the section are-(I) there, must be  a  case where the court has to form an opinion as to the    822 relationship  of one person to another; (2) in such  a,case, the opinion expressed by conduct as to the existence of such relationship  is  a relevant fact; (3)but the  person  whose opinion expressed by conduct is    relevant   must   be   a, person who as a member of the family   or   otherwise    has special  means  of knowledge on the  particular  subject  of relationship  ;  in other words,the person must  fulfil  the condition  laid down in the latter part of the  section.  If the person fulfils that condition, then what is relevant  is his  opinion expressed by conduct. Opinion  means  something more than more  retailing of gossip or of hearsay; it  means judgment  or  belief,  that is, a  belief  or  a  conviction resulting  from  what one thinks on a  particular  question. Now,  the  " belief " or conviction may manifest  itself  in conduct  or behaviour which indicates the existence  of  the belief  or  opinion.  What the section  says  is  that  such conduct or outward behaviour as evidence of the opinion held is  relevant  and may, therefore, be proved. We are  of  the view that the true scope and effect of  section  50  of  the Evidence  Act has been correctly and succinctly put  in  the following  observations  made  in  Chandu  Lal  Agarwala  v. Khalilar Rahman (1):- "It  is only opinion as expressed by conduct which  is  made relevant. This is how -the conduct      comes    in.     The offered  item of evidence is the conduct’, but what is  made admissible  in  evidence is’ the opinion’,  the  opinion  as expressed by such conduct)The offered item of evidence  thus only  moves  the  Court to an intermediate  decision  :  its immediate  effect is only to move the Court to see  if  this conduct  establishes  any I opinion’ of  the  person,  whose conduct is in evidence, as to the relationship in  question. In order to enable the Court to infer   ’the opinion ’, the conduct must be of a tenor which cannot well be supposed  to have  been  willed  without the inner  existence  of  the  I opinion’. When the conduct is of such a tenor, the Court only gets  to a relevant piece of evidence, namely, the         opinion of a  person.  It  still remains for the Court  to  weigh  such evidence and come to its own opinion as (1)  I.L.R. [1942] 2 Cal. 299, 309. 823 to the factum probandum-as to the relationship in question." We also accept as. correct the view that s. 50 does not make evidence  of  mere  general  reputation  (without   conduct) admissible  as  proof  of  relationship:  Lakshmi  Reddi  v. Venkata Reddi (1). It  is  necessary  to state here that  how  the  conduct  or external  behaviour which expresses the opinion of a  person coming  within the meaning of s. 50 is to be proved  is  not stated  in the section.  The section merely says  that  such opinion is a relevant fact on the subject of relationship of one person to another in a case where the court has to  form an opinion as to that relationship.  Part 11 of the Evidence Act  is headed " On Proof ". Chapter III thereof contains  a fascicule  of sections relating to facts which need  not  be proved.  Then there is Chapter IV dealing with oral evidence

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and in it occurs s. 60 which says inter alia :- "  S.  60.  Oral evidence must, in all  cases  whatever,  be direct; that is to say- if  it refers to a fact which could be seen, it must be  the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be  the evidence of a witness who says he heard it; if it refers  to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who  says he perceived it by that sense in that manner; if  it refers to an opinion or to the grounds on which  that opinion  is held, it must be the evidence of the person  who holds that opinion on those grounds.  " If we remember  that the  offered item of evidence under s. 50 is conduct in  the sense  explained  above,  then there  is  no  difficulty  in holding  that  such  conduct or outward  behaviour  must  be proved  in  the manner laid down in s. 60;  if  the  conduct relates to something which can be seen, it must be proved by the  person  who  saw it; if it is something  which  can  be heard,  then it must be proved by the person who  heard  it; and so on.  The conduct must be of the (1)  A.I.R. 1937 P.C. 201. 824 person who fulfils the essential conditions of s. 50, and it must  be  proved in the manner laid down in  the  provisions relating to proof.  It appears to us that that portion of s. 60  which provides that the person    who  holds  an opinion must  be called to prove his   Opinion does  not necessarily delimit  the  scope  of  S. 50 in  the  sense  that  opinion expressed by conduct must be proved only by the person whose conduct  expresses  the opinion.  Conduct,  as  an  external perceptible  fact, may be proved either by the testimony  of the person himself whose opinion is evidence under s. 50  or by some other person acquainted with the facts which express such  opinion, and as the testimony must relate to  external facts  which  constitute  conduct and is  given  by  persons personally  acquainted with such facts, the testimony is  in each case direct within the meaning of s. 60.  This, in  our opinion, is the true inter-relation between s. 50 and s.  60 of  the  Evidence Act.  In Queen Empress v.  Subbarayan  (1) Hutchins, J., said :- " That proof of the opinion, as expressed by conduct, may be given,  seems to imply that the person himself is not to  be called  to state his own opinion, but that, when he is  dead or  cannot be called, his conduct may be proved  by  others. The  section appears to us to afford an exceptional  way  of proving  a  relationship,  but by no means  to  prevent  any person  from stating a fact of which he or she  has  special means of knowledge. While  we  agree that s. 50 affords an  exceptional  way  of proving  a relationship and by no means prevents any  person from stating a fact of which he or she has special. means of knowledge,  we do not agree with Hutchins, J., when he  says that  the  section  seems to imply  that  the  person  whose opinion is a relevant fact cannot be called to state his own opinion as expressed by his conduct and that his conduct may be  proved  by  others only when he is  dead  or  cannot  be called.   We  do  not  think  that  s.  50  puts  any   such limitation. Let us now apply the tests indicated above to the  testimony of the two witnesses, Janardan Misra and (1)  (1885) I.L.R. 9 Mad. 9, 11. 825 Dharanidhar  Misra.   As to Sushila Misrain,  she  was  aged

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about 43 when she gave evidence in 1946.  It is  unnecessary to consider in detail her evidence, because if the  evidence of  the other two older witnesses be admissible, that  would be  sufficient  to  support the finding arrived  at  by  the courts  below another evidence would also be  admissible  on the  same  criteria  as  the  evidence  of  the  other   two witnesses. The  first  question which we must consider is  if  Janardan Misra and Dharanidhar Misra had special means of knowing the disputed relationship.  Janardan Misra was aged about 62  in 1946, and he was related to the family of Baidyanath  Misra. Kashi  Nath Misra was his grand-father and was a brother  of Baidyanath Misra.  Obviously, therefore, Janardan Misra  had special  means of knowing the disputed  relationship,  being related  to Baidyanath and therefore to Haripriya,  who  was the  second wife of Lokenath.  He said in his evidence  that he   knew  Lokenath  Parichha,  had  seen  his  first   wife Satyabhama  and  remembered the marriage of  Haripriya  with Lokenath Parichha.  Obviously, therefore, he ’fulfilled  the condition  of  special knowledge.  He further said  that  he attended  the  marriage of Malabati, daughter  of  Lokenath, when  Lokenath was living.  That marriage took place in  the house  of Lokenath.  He also said that he was  present  when the first two daughters of Malabati were married and also at the  time of the Upanayan ceremonies of plaintiffs I and  2. According  to the witness, Shyam Sundar Pujari, a son  of  a sister of Lokenath, acted as a maternal uncle at the time of the  marriage  of  the  eldest  daughter  of  Malabati   and Dayasagar   Misra  carried  Radhika,  second   daughter   of Malabati, at the time of her marriage. The  question is whether these statements of Janardan  Misra as to his conduct are admissible under s. 50, Evidence  Act. Learned  counsel for the respondent has contended before  us that  even apart from s. 50, the evidence of Janardan  Misra is direct evidence of facts which he saw and which should be treated  as  .directly  proving  the  relationship   between Lokenath 104 826 and his daughters.  We do not think that learned counsel for the  respondent is right in his submission  that  Janardan’s evidence  directly proves the relation between Lokenath  and his  alleged  daughters, Abalya,  Brindabati  and  Malabati. Janardan  does not say that he ’was present at the birth  of any of these daughters.  What be says is that he was present at  the marriage of Malabati which took place when  Lokenath was  living and in Lokenath’s house; he was also present  at the  marriages  of the first two daughters of  Malabati  and also at the time of the Upanayan ceremonies of plaintiffs  I and 2. This evidence, in our opinion, properly comes  within s. 50, Evidence Act; it shows the opinion of Janardan  Misra as  expressed  by  his conduct, namely,  his  attending  the marriage  of  Malabati  as  daughter  of  Lokenath  and  his attending  the  marriages  and Upanayan  ceremonies  of  the grandchildren  of Lokenath.  We do not think that it can  be suggested  for one moment that Janardan Misra  attended  the marriage and other ceremonies in the family as a mere casual invitee.   He  must have been invited as a relation  of  the family  and unless he believed that Malabati was a  daughter of  Lokenath and the others were grand-children of  Lokenath to whom the witness was related, he would not have said that he  attended those ceremonies as those of the  children  and grand-children,  of  Lokenath.  This, in our opinion,  is  a reasonable  inference from the evidence and if that  is  so, then  the  evidence of Janardan Misra was  clearly  evidence

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which  showed his belief as expressed by his conduct on  the subject  of  the  relationship  between  Lokenath  and   his daughters and Lokenath and his grandchildren. Janardan  also  said that one Shyamsundar  Pujari  acted  as maternal  uncle  at the time of the marriage of  the  eldest daughter of Malabati.  There is some evidence in the  record that Shyamsundar Pujari was son of Lokenath’s sister.   This was, however, disputed by the appellant.  The High Court has not  recorded  any finding on the  relation  of  Shyamsundar Pujari to Lokenath.  If it were proved that Shyamsundar  was a son of Lokenath’s sister, he would have special 827 means  of  knowledge  as a relation of the  family  and  his conduct  at the time of the marriage of Malabati’s  daughter would also be admissible under s. 50.  But in the absence of any finding as to any special means of knowledge on the part of Shyamsundar, the latter’s conduct will not be  admissible under   s.  50.   We  need  not  say  anything  more   about Shyamsundar, as the High Court has not based its finding  on the conduct of Shyamsundar. The  same  criteria  apply to the  evidence  of  Dharanidhar Misra,  who was aged 96 at the time when he  gave  evidence. He was the maternal uncle of Janardan Misra.   Dharanidhar’s evidence  showed that he knew Lokenath Parichha and his  two wives, Satyabhama and Haripriya.  He also had special  means of  knowing  the disputed relationship, though  he  was  not directly related to Lokenath.  He said that Lokenath was two years older than him and the witness attended the  marriages of  Radhika  and  Sarjoo and the " thread  "  ceremonies  of Lakshminarayan  and Nimai.  The witness further  added  that though he did not remember if he was invited to the marriage of Mandhata’s daughters, he was invited to the feasts  which followed  the marriage.  He said that the feasts took  place in the house of Mandhata and he attended the " gansana " and marriage feasts of Mandhata’s daughters.  The same  criteria which  make the evidence of Janardan Misra admissible  under s. 50 also make the evidence of Dharanidhar Misra admissible under the same section. We may in this connection refer to one of our own decisions, Sitaji  v. Bijendra Narain Choudhary wherein  the  following observations were made: "  A member of the family can speak in  the  witness-box  of what he has been told and what he has learned about his  own ancestors, provided what he says is an expression of his own independent  opinion  (even though it is  based  on  hearsay derived  from  deceased,  not living, persons)  and  is  not merely  repetition  of the hearsay opinion  of  others,  and provided  the opinion is expressed by conduct.  His  sources of (1)  A.I.R 1954 S.C. 601. 828 information and the time at which he acquired the  knowledge (for  example,  whether  before the dispute  or  not)  would affect  its  weight  but not  its  admissibility.   This  is therefore legally admissible evidence which, if believed, is legally sufficient to support the finding ". It is true that Dharanidhar Misra was not directly related to the family  of Lokenath.  He was, however, distantly related to  Haripriya. He  was a friend of Lokenath Parichha and lived in the  same neighbourhood.  His evidence showed that he knew him and the members of his family quite well.  That being the  position, his  evidence that he attended the marriage  ceremonies  and the  Upanayan  ceremonies of several members of  the  family undoubtedly showed his opinion as expressed by his conduct. We  are  accordingly of the view that the evidence  of  both

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Janardan Misra and Dharanidhar Misra was admissible under s. 50  and  the learned Judges of the High Court  committed  no error of law in admitting and considering that evidence.  We are concerned here with the question of admissibility  only. As  to  what weight should be given to  their  evidence  was really  a matter for the courts below and both  the  learned Chief Justice and Narasimham, J., accepted the testimony  of Dharanidhar Misra and Narasimham, J., further relied on  the testimony of Janardan Misra also. We  now  proceed to a consideration of the  first  question, namely,  the admissibility of the document Ext. 1. The  High Court  has  held the document to be  admissible  under  sub- section  (5)  of s. 32 of the Evidence Act.  We  must  first read s. 32 (5): "  S. 32.  Statements, written or verbal, of relevant  facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot  be  procured without an amount of delay  or  expense which,  under the circumstances of the case, appears to  the Court  unreasonable,  are themselves relevant facts  in  the following cases:- (1)................................................... (2)...................................................... 829 (3)...................................................... (4)......................................... (5)  When  the  statement relates to the  existence  of  any relationship by blood, marriage or adoption between  persons as to whose relation-ship by blood, marriage or adoption the person making the statement had special means of  knowledge, and  when  the  statement was made before  the  question  in dispute was raised. (6)........................................... (7)............................................. (8)...................................... Now,  four conditions must be fulfilled for the  application of sub-s. (5) of s. 35: firstly, the statements, written  or verbal,  of relevant facts must have been made by  a  person who  is dead or cannot be found, etc., as mentioned  in  the initial  part of the section; secondly, the statements  must relate  to  the  existence of  any  relationship  by  blood, marriage  or  adoption;  thirdly,  the  person  making   the statement  must  have special means of knowledge as  to  the relationship  in question ; and lastly, the statements  must have  been made before the question in dispute  was  raised. There is no serious difficulty in the present case as to the first two conditions.  Exhibit I contained a pedigree  which showed that Lokenath had three daughters by his first  wife, the daughters being Ahalya, Brindabati and Malabati; it also showed  that Ahalya had three sons Satyabadi, Baikuntha  and Dasarath, of whom Baikuntha was one of the plaintiffs in the present  suit  and  the  other  two  plaintiffs  Nimai   and Lakshminarayan  were shown as sons of Malabati.   Exhibit  I was  signed by Satyabadi on his own behalf and on behalf  of his brothers Baikuntha and Dasarath.  Satyabadi is now dead. So far as Satyabadi is concerned, there can be no doubt that the  first two conditions for the application of sub-s.  (5) of  s.  32  are fulfilled.  It has been  contended  that  as Dasarath and Baikuntha are alive (Baikuntha being one of the plaintiffs) and as the statement was the joint statement  of three  persons  of  whom one alone is dead,  the  first  and preliminary condition necessary for the application of s. 32 is not 830 fulfilled.  We do not think that this contention is correct,

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and we are of the view that the position is correctly stated in  Chandra Nath Roy v. Nilamadhab Bhattacharjee  (1);  that was  a  case in which the statements were recitals as  to  a pedigree  and  were contained in a patta executed  by  three sisters,  two of whom were dead and it was pointed out  that the statement in the patta was as much the statement of  the sisters  who were dead as of the sister who was  alive.   In the  case before us the statements as to pedigree in  Ex.  I were really the statements of Satyabadi, who signed for self and on behalf of his brothers.  Assuming, however, that  the statements were of all the three brothers, they were as much statements of Satyabadi as of the other two brothers who are alive.   We,  therefore, see no difficulty in  treating  the statements as to pedigree in Ex.  I as statements of a  dead person  as  to  the existence of  a  relationship  by  blood between  Lokenath and his daughters Ahalya,  Brindabati  and Malabati-the relationship which is in dispute now. The  more  important  point  for  consideration  is  if  the statements as to pedigree in Ex.  I were made, to use  the*- words  of  sub-s. (5), before the question  in  dispute  was raised.   The High Court held that the statements were  made ante  litem  motam.  Learned counsel for the  appellant  has very  strongly contended before us that the High Court  took an  erroneous  view in this matter.  Let us  first  see  the circumstances  in which Ex.  I was filed and dealt  with  in Suit  No. 31 of 1917.  We have said earlier what  that  suit was   about.   It  was  a  suit  brought  by  some  of   the reversioners  for a declaration that the alienation made  by Haripriya in favour of Indumati was without legal  necessity and, therefore, not binding on the reversion after the death of  Haripriya.  The suit was filed on August 27,  1917.   On November 2, 1917, certain other persons made an  application to be added as parties to the suit on the footing that  they had  the same interest in the suit as the plaintiffs.   That application was disposed of by the learned Subordinate Judge by  the following order-- "In a suit like the present, it is not necessary (1)  (1898) I.L.R. 26 Cal. 236. 831 that  all  the reversioners should be made  parties.   So  I reject the petition." Exhibit  I was filed on November 5, 1917.  In that  petition Satyabadi alleged: " The applicants are the legal  claimants to  inherit  the  properties left  by  Lokenath  ......  the applicants  therefore beg that they may kindly be  made  co- defendants ". It was further alleged that the plaintiffs  of that suit had no legal right over the share in dispute,  and this  was followed by a pedigree given in para.  IV  of  the petition.  This petition (Ex. 1) was put up on November  27, 1917,  and  the learned Subordinate Judge  disposed  of  the petition by the following order:- "  The petition of Satyabadi Pati and others was put  up  in the  presence of the plaintiffs pleader.  He objects to  the same.  The petition is, therefore, rejected." Ultimately, the suit was decreed on August 31, 1918, on  the finding  that the alienation by Haripriya was without  legal necessity and did not bind the reversion after her death. The  learned Judges of the High Court took the view that  in Suit  No.  31  of 1917 no dispute arose as  to  the  alleged relation between Lokenath on one side and Ahalya, Brindabati and  Malabati  on the other.  The dispute in that  suit  was about  the validity of the alienation made by Haripriya  and the  suit having been filed by some of the  reversioners  on behalf  of  the reversion, no issue was raised or  could  be raised as to whether Lokenath had any daughters by his first

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wife,  Such  an  issue  was not relevant  to  the  suit  and furthermore nobody could anticipate in 1917 that the sons of a  sister or half-sister would be preferential heirs in  the order of Mitakshara succession.  They, therefore, held  that the statements in Ex. 1 were ante litem motam and admissible under sub-s. (5) of s. 32, Evidence Act. On  behalf  of the appellant it has been argued that  for  a declaratory  decree  in respect of an alienation made  by  a Hindu widow or other limited heir, the right to sue rests in the  first  instance  with  the  next  reversioner  and  the reversioner next after him is not entitled to sue except  in some special circumstances 832 and  therefore the question as to who the  next  reversioner was arose in the suit of 1917; and Ex.  I did     raise    a dispute  as  to  who the last male  owner  was  Lokenath  or Satyanand-and also showed that there      was a  dispute  if the plaintiffs of that suit were entitled    to the property in  dispute there.  The existence of such a dispute, it  has been argued, affected the statements    in  Ex.  I and  what Satyabadi said therein were not " the natural effusions of a party  who  must  know  the truth and  who  speaks  upon  an occasion  when his mind stands in an even  position  without any  temptation to exceed or fall short of the truth  "  (as per  Lord  Chancellor  Eldon in Whitelocke  v.  Baker)  (1). Learned  counsel has also relied on the decision in  Naraini Kuar  v. Chandi Din (2) where it was held that s. 32(5)  did not  apply  to  statements made  by  interested  parties  in denial, in the course of litigation, of pedigrees set up  by their opponents. We do not think that in Suit No. 31 of 1917 any question  as to the relationship of Lokenath with Ahalya, Brindabati  and Malabati  arose  at all.  It is to be remembered  that  even according to the pedigree set up by the appellant one of the plaintiffs  is  a son of Ahalya and two others are  sons  of Malabati.   What  is now in dispute is  whether  Ahalya  and Malabati  were  daughters of Lokenath Parichha.  That  is  a question  which  did Dot at all arise for  consideration  in Suit  No. 31 of 1917 ; nor did it arise in  the  proceedings which  the  application of Satyabadi (Ex. 1) gave  rise  to. Prima  facie, there is nothing to show that a dispute as  to the relationship of Lokenath with Ahalya and Malabati  arose at  any stage prior to or in the course of  the  proceedings which  arose  out of Ex.  I ; that would  be  sufficient  to discharge  the onus of proving that the statements in Ex.  1 were  ante litem motam.  Natabar, one of the  plaintiffs  in the suit of 1917, who might have given evidence of any  such dispute  if  it  existed, said nothing about  it.   We  have referred to the circumstances in which Ex.  I was filed  and disposed  of.   It  is true that the order  of  the  learned Subordinate Judge rejecting the -petition Ex. 1 is  somewhat cryptic and it does not show what objection the (7) (1807)  13 ves. 510, 514. (8) (1886) I.L.R. 9 All. 467. 833 plaintiff  of that suit took and on what ground the  learned Subordinate  Judge rejected the petition.  If, however,  the various  orders  made  by  the  learned  Subordinate  Judge, particularly the orders dated November 2, 1917, and November 27,  1917,  to  which we have  earlier  made  reference  are examined, it seems clear to us that the learned  Subordinate Judge  was proceeding on the footing that in a suit of  that nature  it  was not necessary to make all  the  reversioners parties,  because  the  reversioners who  brought  the  suit represented  the  entire  body of  reversioners.   From  the

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judgment  passed  in the suit (Ex.  Cl) it does  not  appear that  the question as to who the next reversioners were  was at  all  gone into.  That may be due  to  the  circumstance, pointed  out by the High Court, that Purushottam,  uncle  of Janardan and Natwar, was then alive.  He was admittedly then the  nearest  reversioner,  but  as he did  not  join  as  a plaintiff  he  was made a proforma defendant.   The  nearest reversioner  having been added as a party defendant  in  the suit  of  1917, no question of title arose in that  suit  as between the reversioners inter se.  Such a question of title was  wholly foreign to the nature of that suit.  Nor, do  we find anything in the judgment, Ex.  Cl, to show that it  was ever suggested in that suit that the last male owner was not Satyanand.   The sons of the half-sister of  Satyanand  were not  preferential  heirs at the time and we agree  with  the learned  Judges of the High Court that no question arose  or could  have arisen in that suit as to the. relation  between Lokenath  on one side and Ahalya and Malabati on the  other. That being the position, the statements as to pedigree  con- tained  in  Ex. 1 were made before the precise  question  in dispute in the present litigation had arisen. It has next been argued by learned counsel for the appellant that  in  admitting Ex.  I under s. 32(5) the  courts  below assumed that Satyabadi had special means of knowledge as  to the  relation  between Lokenath and  his  alleged  daughters Ahalya  and Malabati.  The argument has been that unless  it is  assumed that Satyabadi is the grand-son of Lokenath,  he can have 105 834 relationship.    Learned  counsel  for  the  appellant   has referred  us to the decision in Subbiah Mudaliar  v.  Gopala Mudaliar  (1)  where it was held that for a statement  in  a former  suit to be admissible under s. 32(5) the  fact  that the  person  who  made the statement had  special  means  of knowledge  must  be  shown  by  some  independent  evidence, otherwise  it would be arguing in a circle to hold that  the document  itself  proves the relation  and  therefore  shows special means of knowledge.  In Hitchins v. Eardley (2)  the question of the legitimacy of the declarant was in issue and the  same  question was necessary to be proved in  order  to admit his declarations.  That was a jurv case and the  ques- tion  relating  to  the admissibility of  evidence  being  a question  of law had to be determined by the Judge; but  the same  question being the principal question for decision  in the case had to be determined by the jury at the  conclusion of the trial.  In the difficulty thus presented, prima facie evidence only was required at the time of admission.  We  do not  think that any such difficulty presents itself  in  the case  under  our consideration.  As to  Satyabadi’s  special means  of  knowledge, we have in this case the  evidence  of Janardan.   Misra  and  Dharanidhar  Misra,  which  evidence independently  shows  that Satyabadi was  the  grand-son  of Lokenath, being the son of his daughter, Ahalya.  It may  be stated  here  also  that it was  admitted  that  Ahalya  was Satyabadi’s  mother, and that would show that Satyabadi  had special  means  of knowledge as to who his  mother’s  father was. Therefore,  we  agree  with  the  High  Court  that  Ex.   I fulfilled  all the conditions of s. 32(5), Evidence Act  and was admissible in evidence. We have already said that it is not for us to consider  what weight should be given to the oral evidence of Janardan  and Dharanidhar or to the statements in Ex. 1. The courts  below have  considered that evidence and have assessed it.  We  do

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not  think that we shall be justified in going  behind  that assessment. Learned counsel for the appellant wished also to (1) A.I.R. 1936 Mad. 808. (2) (1871) L.R. 2 P. & D. 248. 835 argue  the  point that the Privy Council  decision  in  Mst. Sahodra’s  case (1) was wrong and that a halfsister was  not entitled  to  get the benefit of the amending Act  of  1929. The  Privy Council decision was given at a time when it  was binding on the courts in India and it settled differences of opinion  which  then existed in the different  High  Courts. That  decision was taken as settling the law on the  subject and  on  the faith of that decision a half-sister  has  been held  in subsequent cases to be entitled to the  benefit  of the  Amending  Act.  The High Court dealt with the  case  in 1951  after  the Constitution had come into  force  and  the Privy Council jurisdiction in Indian appeals had ceased.  No point was taken on behalf of the appellant in the High Court that  the Privy Council decision should be reopened and  the question  of  the right of a  half-sister  re-examined.   In these  circumstances, we did not allow learned  counsel  for the  appellant to argue the correctness or otherwise of  the Privy Council decision. The  contentions  as to the admissibility of Ex. 1  and  the oral evidence of Janardan Misra and Dharanidhar Misra  being devoid  of merit, the appeal fails.  We accordingly  dismiss the   appeal  with  costs  in  favour  of   the   contesting respondents. Appeal dismissed. (1) (1942) L.R. 69 I.A. 145. 836