STATE OF BIHAR v. RADHA KRISHNA SINGH & ORS.

made in the first paragraph, extracted above, indicating the baradari A of Hirda y Narain Singh. -.,.-- ·+-- • The docnment then proceeds to give details of the settlements made with various persons, and the relevant portion recites thus in Roman S.cript at page 121, Vol. VII: B "Kha!ispur 1 Mauza asli '· Bawaqt bandobast Patta zamindari banam Audhan Singh Ke az aulad Hirday Narain Singh mqzkur ashtshuda bood ... ...... i c The English translation runs thus :

"Kha!ispur 1 M Asli

At the time of settlement the Zamindari Patta was D 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 E 'brotherhood' or. 'Bjlzurgan' 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 undoub- . tedly mentioned their names also. F 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. Jlere also, he clearly indicates the relationship .of Gurdat Singh as being a descendant of Debi Singh. What is most G 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 ihe plaint genealogy. ----~-

H On the next page it was mentioned that Babu Deep Narain Singh purchased the village at an auction held by the Government for paymen~ of arrears of Government revenue. Deep Narain Singh

BJHAR v. RADHAKRISHNA (Fazal Ali, J.) 849

obtained the zamindari sanad from the huzoor (a high official of the Government) and patta. was executed in favour of Ram Baksh Singh, A 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. B It has, therefore, been established beyond any shadow 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 Narain Singh as he has done in the case of . c Audhan Singh, Ram Baksh Singh and Ramhit Singh. Furthermore, at page 28 on the lefthand side.of the document (English translatfon) 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 foliowed by Durga Prasad that whenever he 'wanted to convey D a particular person or persons to be heirs or direct descendants of an ancestor he would expressly say so. 011 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 E persons, viz , Debi Singh, Barisal Singh and Gajraj Sabi (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 tlie 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 F "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 l)rotherhood .. > In the righthand colninn of Ex. J at page 28, vol. VII of the G English translation, it is clearly mentioned that Pahalwan Singh is one of the descendants of Debi Singh. This statement corroborates the • .plaintiffs' case t(\ this extent that Pahalwan Singh was one 9f the descendants of Debi .Singh and shows that a part of the plaintiffs genealo·gy relating to Debi Singh is correct. H Referring· to Baraini, Semri and Ramchandrapur villages, it is mentioned that zamindari patta was ~ven t(). Mohan Sin$h who wa~

850 ' ' 'SUPR!iME COURT REPORTS · c (!983} 2 S.C.ll.•

a descendant of Gajraj Sabi. 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 Sabi and there is .absolutely no reference nor anything to show that Gajraj Sabi wa' in any way directly related to.D~bi.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 c . mentioned that Hardarshan Singh who was a descendant of Ramhit Singh has been given the patta and is in possession. As rega'rds 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 H!rday Narain Singh. Nanku Singh died and there~ after 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 Rain hit Singh, descendant (aulad) of Hirday Narain Singh and on his death·, the ' T

patta was given to Nanku Singh.

. It is not necessary for us to wade through the details of the F seWement 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 G Kiswar Das Thathar, the zainindari 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· pqssession thereof. Here also, there is no' reference either· to. • Gajraj Sahi or Gajraj Singh as being relations of Debi Singh nor is H · the name of Ramruch .Singh mentioned at all. Again, in respect of Chak Lohani and Kalyanpur it is mentioned that Gurdat Singh was 1 oneofthe'descendants of Debi Singh and ·tta.rdarshan Singh"was a descendant of Ramhit Singh'. ·. • · ·

' • l'" - ' I 'J' . BIHAR v. l\ADllAKRISHNA {FilzarA/i; J.) 851

As regards Taluka Thathra ~nd other village's 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 Siitgh or his relationship either· with Hirday Narain Singh or Debi Singh is not indicated at all. Therefore, it appears that <;Jajraj Singh Il)ust be somepne who had nothing to· do with the family of Deb\ Singh: .

These are all the,facts that can be collected from the document B (Ex. J). · Summing up, therefore, the contents of the Report, the ·position emerges as follows :-: ·

(I) · the zamindari paita of various villages had been given to Hirday Narain Singh and his descendants,

(2) Neither Debi Singh, nor Gajraj Singh, nor Batisidhar Singh have been mentioned as being ·a direct descendants of Hirday Narain S,ingh,. ·

(3) Pahalwan Singh is no doubt .a direct descendant of D 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 oµ' the question of title I though as. far as . G we have seen the Report, no such observation. has· .. been made) .they would be· of no consequence 'what- soever to prove ihe title of the p~rties. ·• . ( 5) As regards the facts contained in the Report though H Durga Prasad says that he got them from Tumar, i.e., an account-book, .he has not given any.. particulars of the account-book nor has he appended

852 SUPREME COURTS REPORTS [!9S3) ~ s.t. , • any relevant portion of the account-book with the A Report nor has he mentioned as to who was the author of the account books aud ·when and under what Circumstances the acc~unt books were prepared. •

In these circumstances, therefore we are kept completely in the dark as to what those account books contained and whether or not B !he 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 c~nspicuously absent from the Report of Durga Prasad. These are additional circumstances which completely reduce the probative value of E.x. J. c Mr. Tarkunde made an attempt to convince us that Ex. J is not only admissible but is substantially corroborated by the oral and d<fcumentary evidence. It is true that a part of the plaintiffs' genealogy, which is not disputed by the appellants, receives some corroboration frcim Ex. J but that takes us no where. Our attention D 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 shaH deal with this argument for whatever it is wort~. E 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 discussioh of the F documentary evidence.

It was contended by Mr. Tarkunde, which is also reiterated in the Summary of arguments supplied to us, that the defence witnes~es referred to above support some of the statements made in Ex. J. It was argued that while the said Exhibit mentions Barisal Singh and G Ramhit Singh.as among the fou~ 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 H Barisal. . In the first place, this argument is based on a wrong interpretation of the terms used in Fx. J in respect of Barisal Singh who has not been mentioned as being a direct descendant of Hirday Narain Sin~h. .It is possible that Barisal Singh may have been

n1iwl v. RADHAKRISHNA (Pazal A'ii, J.) 853 distantly related to or formed a member of the brotherhood of Hirday Narain Singh but the document does not at ali indicate that A 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 Barisidhar 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 c knowledge regarding the genealogy he possessed. Secondly, ·the witness has nowhere said that Barisal Singh arid others were directly · rela:ted 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 D' 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 elders of Pahalwan Singh ·about whom he had to submit his Report. ,

E .. Furthermore, we are nnable to see how the evidence of this witness supports the. plaintiffs which merely says that Ram Fakir . had three sons, viz., Barisal, Ram Singh aµd 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,, F Ramruch Singh, Ram Fakir and Debi Singh and •Gajrai Singh was Debi Singh's son. In .the Report (Ex. J) there is abfolutely 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 ."aid to be a aOscendant of Hirday Narain Singh. There is:also Iio 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 subrnirted. 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 H Kumar. Ai page ~46 of Voume I. This wiiness is aged 60 years and claims to belong to Gautarn.gotra. He states that th~ 'l~cesto( .

854, . SUPREME COURT .REPORTS j198~j i s.c.lt

A . of the mem.bers of his family was Babu Hansraj Singh who had two son~, Harl 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 B ·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 C. 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 Singi) 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 . '-o Singh who was son of Hansraj Singh. His evidence is completely falsified by the statemertts 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 this witness would be made when we discuss the oral evidence of the parties. At present it is sufficient to . to show· that the arguments of the respondents counsel that Ex. J is ~orroborated by the evidence of this witness are wholly untenable .

• • iliiiAR v. -ilADHAkRISHNA (frazal Ali, J) sss Reliance was then. placed on. the evidence of DW 36, Mahadeo Singh .who seems to lie 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 invit.ing terms with the family of Babu Bhagwati Prasad Singh right from the time of h.is ancestors. He states that Bhagwati Prasad Singh and Harendra. Kishore Singh w_ere descendants from a common .ancestor who was Babu Bansidhar Singh. Bansidhar Singh had three sons, Ramruch, B Jlam 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 Ramnich Singh. · It is impossible to believe that if Ramruch Singh or Gajraj · c Singh were connected with· the f~mily 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 noi have been missed by Durga Prasad in his detailed and copious Report. We shall deal with the intrinsic merits later but D what we have said is sufficient to demonstrate that like other witnesses, i.' e., DWs 33, 34 and 35 this witness also does not corro- borate the Report of Durga Prasad. There is one important fact in. 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 · E Narain Singh. This is, however, clearly contradicted by the Report of Durga Prasad which mentions that Rainhit 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); · F As regards the documentary evidence which is said to corrobo- rate· 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. G

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 ofTaluka Majhwa, Pargana Kaswar, Sirkar of 'Banaras to the effect that that the entire taluka was the khas ancestoral zamindari interest of Babu Pahalwan Singh, owne4 ~nd

856 SUPREME COURT REPORTS [!9S3j 2 S.C'R.

possessed by him generation after generation. This document is A dated Match 14, 1818, ·about 5 years after Ex. J was submitted by Darga .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 B 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 very clear as to what was the occasion for c 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 defcnda·nt does not dispute the genealogy not only up to Pahalwan Singh but even h]gher. As discussed above, the.main link is to be_estab!ished between Gajraj Singh, Ramruch Singh and Debi Singh. On this point, this document throws no light at all and is therefore valueless. Nobody E ever · disputed that Pahalwan Singh was not a grandson of Debi 'Singh. Even otherwise, the document Ex. L is of doubtful admissibi- lity,

It was further contended that this .document supports the F 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, Baiisa:l 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 ~entioned in Ex. J regarding the parentage of Barisal Singh and Rahl.hit Singh and Debi Singh are quite different from the case of the plaintiffs. Furthermore, assuming that the aforesaid four persons ere members of thefalnily of Hirday Narain Singh, Ex. J does not ----- H show in what manner Ramruch and Debi Singh were related or that Gajraj Singh was a son of Ramruch Shgh.

BitlAR v. RADHAKRISHNA (Pazal Ali, J.) 857

Reliance was then placed on Ex. DD (38)-vol. iv, page 251- which is a judgment delivered on April is, 1801 in a suit between A Deo Narain Singh and Mohan Singh, who, according to the. plaintiffs, were grandsons of Gajraj !lingli 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 Whb was a descendant of Gajraj Siugh or Gajraj Sahi Assuming B that this siathient is coriect, it does not .advance the case of the plaintiffs imy ftirther becat1se ·Ex. J does not at .all show that Gajraj Sirigh was a son of Ramruch Singh 1an\1 a grandson of Bansidhar Singh or a nephew of Debi Singh.

Refererice was then made to Ex. F (!)-Vol.III, page 72 Ex. n c at page 105 in the same volume, and Ex.DD (44) at page 107 in Vol. IV, as being instances oi various grants made from time to time by Debi Singh in taluka Majhwa. These documents merely corroborate the statment in Ex. J that Debi Singh was one of the zamindars in possession of taluka Majhwa. This fact is also undisputed and D corroboration, or no corroboratiOn the appellants have not challenged either the authenticity of this statement or the fact that Debi Singh L . was a zainindar 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 E \, f, being one of the persons who ware killed in the battle of Marui fa ·or about the year 1719. It is not disputed that Barisal Singh was un· doubtedly one of the zamindars of the village and was in possessjon' of village Majhwa but this fact alone cannot prove any link or conhection between the plaintiffs and ·Gajraj Singh or between Gajraj F Singh and .Debi Singh.

. Ex.+r (Vol. IV, page 238) is another document which ·is reiied ori Tot cormbotating Ex. J. This tlocument merely says that zamirt· . dati patta of village falalpnr in t.aluka Majhwa was executed in favour of Farman Singh and aftey 'his deatji his sons Zalim .Singh ·and G Ramhit Sirigh oiltaiil.ed 'Patti!. Assuming ihat the statement tnade ab'oVe Is cbrrect, it only ·tak'es us fo Farman Singh who -is said to be the·sbrt oT 'Gajraj Singh. We ·have already inilicated above that so far as the plaintiffs' genealogy is concerned, the link upto Gajraj H Singh on 'the tight siile atid up'to Debi Singh-0n the left side is clearly prove\1 bat thilt .Q~s not substantiate the case oftlie plaintiffs unless they 'further prove that ·Gajraj 'Singh was ~oii of Ratiiruch SinJlh aJid.

SUPkEME COUR'f REPORTS · [t98~l 2s.c.k. a nephew of Debi Singh. If this link is· missing, the claim of the plaintiffs must fail. --...- r --..., .- Similarly, Exhibits GGG-3, GGG-4, GGG-5, GGG-6 and <;lGG-8 at pages 187, 192, 209, 188 and 208 {in volume lV) respec· tively are documents in the nature or mortgage deeds executed by the heirs of Gairaj · Singh in respect of Zamindari interest in viJlage 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 m~arest_ reversioner of the. late Maharaja.

• Similarly, Ex. WW {Vol. IV, page 185) proves that the c zamindari patta in respect of village Baraini was granted to Mohan Singh, a fact mentione.d 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, D S.erishtadar Sadar (Deputy Collectqr) in respect of the settlement of village Baraini and subsequent transact.ions in respect of. the zamin· dari of that village •. This document refers to the settlement of the vill~ge in favour ~f Mohan s£ngh in 1197 Fas!i and records subse: quent 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 . F; value in determining the -real controversy in issue. The plainiiffs seem to have got hold of several old documents wherever they. coyld·. 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 whic)l may show that Debi Singh, was son of ~ansidhar . Singh and own brother of Ramruch Singh who ·also was another son . of Debi Singh, and that Gajraj Singh was son of Rarriruch 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 assum~ tbat 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. ~t is uot. '"'·,, - - - .. - ', ' " - 1

.. · lllliAR v. iW'>HAKRISHNA (Pazal Ali, J.)

necessary for us to make any further comments on these documents because they do not show· anything beyond what we have said. A

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 Ramruch had already died, there B could be no. question of their names finding a place in the Report. This argument.in our opinion, is wholly untenable. We have already point- ed 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 c 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 qis Report !hat his. information was based on records in the Serista, D particularly the Tumar (accou_nt book). Jf Bansidhar and Ramruch had in fact been directly connected with Debi Singh or Pahalwan Singh, th~re is no reason why Durga Prasad should not have men- tioned their ~ames. as being ·anc_estors. of pahalwan Singh who appeared to be only 2 to 3 degrees remote from them. In these cir- · cµmstances, 'therefore, the absence of the names of the aforesaid persons in Ex. J is, in our opinion a conclusive circumstance to; show thaf there was no· relationship between Bansidhar, Raniruch and Paba]wan Singh. This conclusion is further fortified by the fact that even Gajraj Sahi. (or Gajraj Singh) who was the only son or' Ramruch and a grandson o_f Bansjdhar, finds specific mention in the Report. For these reasons, we reject. the explanation given by the respondent on this point.

In view of ·out analysis of the docull)ent, we need not go into t~eir admissibility though it is extremely doubtful, how the .statements lllad~ by various persons without disclosing their means of knowledge can be said to be admissible. ·

lt appears to us that what the.plaintift's seelll _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 Manza Majhwa H ahd village Baraini, they took Ex: J as the b_ase fore ;elying on some statments ... , ,. and observations made by Durga Prasad out of context

SUPREME ·COuRT REPORTS tt 983) 2 s.c.R. 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 ancesto.rs. The methodoiogy adopted by them. has achieved precious little and is nothing but a futile and an acrimonfous exercise. B We have already shown that the scheme followed and the modus operandi adopted by the plaintiffs are based on an incorrect translation artd wrong interpretation of the meaning of actual 'words hi Persian with ihe result that the entire scheme followed by them instead of effectuating the goal sought to be achieved by them, has c . rendered their case totally abortive. With these findings and obser- vations we cfose the chapter so far as Ex. J and its alleged corrobo- ration by documentary and oral evidence is concerned.

We· now pass on to the next limb of the argument of the plaintilfs-responderits, viz.;that there are utiimpeacheable documents which throw ii flood of light on the case propounded by them lri their plaint. fa this connectio'n, they have relied on private docu- ments, public documents, recitals in judgnients, judgments inter parties as also judgment which are not inter parties saledeeds, mort- gage deeds arid other documents of a simlar nature which we :Proceed E to discuss here after but before doing so we would like to expound the legal position of the admissibility of most of the documents . which ·hilve been flied liy the plaintiffs in support of their case. For this purpose, the documents may be classified under three heads-

(I) documents which are per Se inadmissible,

(2) recitals in judgments not inter parties, and

(3) documents or judgments post /item mota,i1,

, In order to put the record straight we would briefly discuss the \ ·, G the case law cin the subject and refer to s!'me 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 court~ ·are aomissible in evidence under the .provisions of sections 40, 41 ' aiid 42 of the Evidence Act. Section 43 which ·is extracted below, cleai'Iy provides that those judgments whkh. do' not fall within the

llJHAR v. MDl!AlCRISll);A ' - . ' (Fa;:a/ ' . ' . Ali, /.} ~ ,861 .,_,, ~--

four corners of sections 40 to 42 are inadmissible unles~ the existence >--'-" 'Y-- of such judgment, order or decree is itself a fact in issue or a relvant A fact under some other provisions of the Evidence Act :-'-

"43. Judgments, etc., other than those mentioned in Sections 40 to 42, when relevant:._· Judgmenis, oqiers OF . decrees, other than those mentioned in sections 40, 4i and B 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 tliis Act."

Some Courts have used section 13 to prove the admissibility of a judgment as coming under the prov\sions- of s. 43, referred to c above: 'we ar~. how~ver, of the opinion that ~here there is a specific provision covering the admissibility of a documeni, 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. judgment is a • not a\im'issible as not falling-within th~-ambit of section~ 40 to 42, it must fulfil the conditions of s. 43 otherwise it cannot be relevant under s. 13 of the Evid~nce Act. The ,;,ords "other' pr>ivisio~s of this Act" cannot cover s. 13 because thi~ section does not. deal with judgments at all.

It is also well settled that a judgment in rem like judgments .E passed in p-robate, 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 ihe documents consisting of judgments filed are ·not judgments in rem and therfore, the question of their admissibility on that basis does· not arise, As mentioned earlier, the judgments filed as Exhibits . in the F instant · case, are judgmenis in personam and therefore, they do not fulfil the condit'ions mentioned in s. 41 of the Evidence Act.

It is now settled · law that judgments not inter parties· are - inadmissible in evidence barring ex_ceptional eases which we shall point out hereafter. 'In Johan Cockrane v. Hurroso'ond1p7i ·Debia & G Ors.,( 1) Lord Justice Bruce while dealing with the question of admis- sibitlity of a judgment observed as follows:

"With r~g~r~ to t~~ judgm~tit_ 9,f the SuP,!eme Court, it is plain; t1Jat c9nsi~eri~g the parties !O, tile s\lit \~ V(hich H

(l) 6 M.J,A. 494, '

- '· '1 . SUPREME COURT REP<iRTS ' '· [1983 2 S.C.R.

that judgment was given, it is not evidence in the present A case... We must recollect, however, not only that that . suit had a different object from the present, independently. of the. difference of parties, but that the evidence here is beyond, and is different from, that which was before th.e . Supreme Court upon the occasion of delivering that judg• B ment." Itis 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 Lordshl_ps the judgment was not ·admissible. ., . \ c In Jogendro Deb Roy Kut v. Funindro Deb Roy Kut(') the following observeations were made : a "lf such suit, as the first suit, was brought here and . tried according to the law of this Gountry there co_uld 1101 D 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 Lord- ships 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 E the Law and practice of India, which can be applied to it." In the case of Gujju Lall v.' Fatteh La/1(2) a Full Bench exhausiively considered the ambit and scope of ss 40 to 43 of the . Evidence Act and observed thus : F "On the other .hand, when in a law. prepared for such a purpose, ancl under such- circumstances, we find a group of several sections prefaced by _the·iitle "Judgments of Courts ofJustice when _i:~Ievant," that' seems to be a g0od: reason for thinking that, as far · as :the Act goes, the G · 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 H. which the Chief Justice proposes to deliver, as· well the

(I) 14 M.I·A. 367 . . (2) I.T.R.. 6 Cal. 171.

. ' BlllAR v. RADHAKR!SHNA (Fazal:Ali, J.) 863'.

observations of niy brother Pontifex, in both of which I generally concur, and for the reasons there stated, and A . 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 B 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 othor judg- c ments ·which had never before been· admissibl€ 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 dec/are'd admissible so Jong as they related to matters of a public nature, if those very same judgment had already been made admissible under · s. B, whether they relilted to matters of a public nature or not,. ..

I am, therefore, of the. opinion ..that the former judgment was not admissible in the present'.suit." . · .(Emphasis ours)

In· Gadadhar Chowdhury & Ors .. v. Sarai Chandra Chakravarty & Ors.(') it was held tpat 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 .G to prove the fact that a decree was made ·ill a suit . between certain parties and for finding out .for what lands the suit had been decreed." ..

Thi~, in our. opinion, is. the correct legal positipn regan)ing the admis'sibility of judgments not inter parties, · ·'

(') 44 c.w.N. 392.

864 SUPREME COUR'I' REPORTS [1983] 1 S.C.R,

In Maharaja Sir Kesho Prasad Singh .Bahadur v. Bahuria Mt. A 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 B admissible .evidence against one who is a stranger to the ·suit has long been accepted as a genera/ rule in English law.

Their Lordships find themselves in agreement with the - ·C observation of Ross, J :

'The judgment is not inter parties, nor is it a judgment in rem, nor does it refate to a ma.tter of· a public nature .• The existence of the judgment is not a . · fact in !issue; and if the existence of the ·judgment is · D relevant under some of the provisions of the Evidence t Act it is difficult to see what inference can be drawn from its use under these sections. • Serious consequences might ensue as regards tities to E 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 T to follow therefrom." (Emphasis supplied)

This principle was reite1ated.in the case of Coca-Co/a Co. of. F Canada Ltd. (already referred to on ihe question of relevancy of dtctionary 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 de- fendant were parties could be used in evidence for 'any purpose. It appears that in the •case referred to above the President of the G 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 1.~>- H parties, and jli this connection Lord Russell observed thus ;

(I) A l.R. 1937 p:c. 69.

BIHAR v~ RADHAKRISHNA (Fazal Ali. J.) 865

"The learned President relied on this judgment" as very formidable support to the plaintiff's contention that A .••there is likelihood of confusion"; but in their Lordships' opinion he was not entitled to refer to or rely upon a judgment given in proceedings to which neither the plaintiff nor the defendant was a party, as proving the facts stated therein." (Emphasis supplied) B 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 C Court in Seethapti Rao Dora v. Venkanna Dora & Ors( 1). where Kumaraswami Sastri, J. observed thus :

"I am of opinion that sectiort 35 has no application to judgments, and a judgment which would not be ad- missible under sections 40 to 43 of the Evidence Act D 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 patties or privies. Sections 40 to 44 of the Evidence Act deal with the rele- vancy of judgments in Courts of justice." E

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 ··---< F 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, G 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 /item motam are recei- vable to prove ancient rights of a public or general nature vide H

(I) I.L.R. 45 Mad. 332,

866 SUPREM!l COURT REPORTS [1983] 2 S.C.R. Halsbury's Laws of England (Vol. 15: 3rd Edition, p. 308) where the following statement is to be found :

"Declarations by deceased persons of competent knowledge, made ante /item 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." ,. "" c 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 /item motam would not be admissible because in cases or proceedings taken or declarations made ante /item motam, the element of bias and concoction is eliminated. Before, however, the statements of the nature mentioned above can be admissible as being r ante /item motam they must be not only before the actual existence of any controversy but they should be made even before the commence- ment 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 /item motam, which means not merely before the commencement of legal proceedings, but before even the existence of any actual controversy, concerning the F 'ubject 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 fraudulen- tly begun with a view to shutting out his declarations, has been held immaterial." G • 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, H 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 docuwents. M.M. Prased, J, bas dealt with this

BIHAR v. llADHAXRISHNA (Fazal Ali, /.) 867

~ r 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 A Evidence Act itself fully incorporates the doctrine of post /item 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 B (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 c because the controversy had originated in the year 1891, that is to say, a year before the pedigree was filed. In this connection, com- menting on the genealogy relied upon by the plaintiff their Lordships observed as follows : D "Taking them in the reverse order, the last is inad- missible, having been made post /item mo tam.

In order to make the statement inadmissible on this E ground, the same thing must be in controversy before and after the statement is made."

In Hari Baksh v. Babu Lal & Anr.(') their Lordships observed as follows: F "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." G 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 afther the suit was filed, The statement of Bishan H (I) I.LR. 30 All. 510. (2) A.l.R. 1924 P.C, 126.

868 SUPRl!MB COURT llEPOllTS . ( 1983) 2 S.C.R.

Dayal in the suit of 1908 was sought to be relied on but the Privy A Council held the statement to be inadmissible because he had 1· ·· already become an interested party and the case, therefore, had been hit by the do~trine of post /item motam.

In Do/gobinda Paricha v. Nimai Charan Misra & Ors. (1) this B 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 the pedigree relied upon were made ante /item motam and not post /item motam, for if the latter had been the case, the · --1 document would have become madmissible and in this connection C 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." D Jn Kalidindi Venkata Subbaraju &Ors. v. Chinta/apati 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 E be made ante /item 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 ) F further observed thus : I "In Kalka Prasad v. M(lthura Prasad('} 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 ·G 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 /item motam."

..ff (1) [1959] Supp. 2 S.C.R. at p. 356. (2) [1968] 2 S.C.R. 292. (3) 35 I.A. 166.

. li1llAR. v. RADltAKIUSHNA (Pazal Ali, J.) 869

Thus, summarising the ratio of the authorities mentioned above, the position that emerges and the principles that are deducible A .,.,.... r from the aforesaid dicisions are as follows:-

(I) A judgment in rem e. g., judments or orders passed in admiralty, probate proceedings, etc., would always be admissible irrespective of whether they are inter parties or not, B

(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 c 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. D (4) The probative value of documents which, however J. ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little. E (5) Statements, declarotions or depositions, etc., would not be admissible if they are post !item 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 plantiff 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 F

set out in the plaint was proved. Only after he has discharged his burden by proving the aforesaid facts, could the defendents be called npon to rebut their case. On a careful scrutiny of the evidence it seems that what the plaintiff has done is to file any and every docu• ment, 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 delusjon an<l

StlPREMB COURT RBi'ORts

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 --r· ~· to prove the pivotal point viz., the link between Ramruch Singh, · Gajraj Singh, Debi Singh and Bansidhar Singh.

B 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, c 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 D 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, whe 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 E sham transaction. Tte 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. F 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. Jn the Sale Deed Bhola Singh claimed (in our opinion falsely) that he was the legal heir of G 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 . Dei;d is that out of the consideration money of Rs. 25,000 a sum of

BJHAR v. llAo!IAkR1sllNA (Fazal Ali, i.) 87\

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 persorrs. The balance of the consideration of Rs. 10,022.5.4 (ten thousand twenty two and annas 5 and pies four) was received by the vendor, Bhola Singh, in cash out of which Rs. 2020-5-4 (two thousand twenty and annas 5 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 c 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 D r 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 J pretentious nature of the transaction. In other words, Bhola Singh sold the properties for a song knowing full well that he had no E 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 F 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, mani- festly shows that since all the properties sold were in District G 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, .ff The said genealogy is reproduced below : · ·

sUPREi.iB cotiRT RBPollTs l!~SM 2s.c.~.

Babu Bansidhar Singh A 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 B Babu Bhola Singh alive Babu Balbhaddar Singh Thakurain ]aimed Kuer, deceased, wife of Babu Balbhaddar Singh, deceased

c 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 plaitiffs' case as it sho ~ s 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 descen- dant of Debi Singh, son of Bansidhar Singh. It is impossible to D 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 E 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 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 F 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 cowt had rejected this document (Ex. V) and so 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 H 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 Hit;1h Court by its judgement dated 13.4.88 (Ex. DD/43). In these

lll!Wt v. RAfJltAKRISHNA (Pazai Aii, J.)

circumstances, since the question of succession had opened between the parties the document Ex. Y would also but rut by the doctrine A -' r· r of post /item 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 B judgment given in respect of the Sale Deed (Ex. V) which we have discussed above, the trial court after a full and complete considera- tion 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 c also illusory. In other words, the tiral 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 heUI 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 no(\ a judgment inter parties and therefore any recital or statemei:it made therein would not b' admissible to prove the plaintiff's case. The argument of Mr. Tarkunde that Ex. DD/30 speaks for the whole of the genalogical table of the family as being correct, is tiot 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 G Har Nandan Singh would be completely inadmissible and cannot be taken into consideration for <iny 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 .....___ hav~ 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, whlch was decided by Ex. DD/20, clearly · shows that Banai<thar Singh h.ad a son ~nown as Ramhit Sinjh whose

·. SUPREME COURT REPoRTS t1983i 2 s.c.lt 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, B 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 c 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 D 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 E was that itwas 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 F 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 de facto though not de jure reversioner of Jaimed Kuer because he

iliJtAll. v. RAbliAKR1SHNA (Paza/ Ali, J.) · 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 B 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 c 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 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 D Maharaja was not at all interested in the properties of Jaimed Kuer. In our opioion, these arguments are based on surmises and conjectur- es 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 Al;ce 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 ]aimed 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

SUPREME cotlRT REPORTS !t9S3} 2 s.C.R. properties of Jaimed Kuer far outweighs the speculative argument of A 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 B in the facts adumbrated by the counsel for the respondents, the Mabaraja 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 c Kuer. It was further explained by Mr. Tarkunde that the Maharaja's reluctance in taking the properties was because of the family history of Betti ah 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 the 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 inadmissble in evidence. Moreover, even at the risk of repetition, · we might say that it is too much to justify a rejected, dejected, sham · .and spnrious transaction a.s being valid on a fictitious supposition that Bhola the executant was a sort of an illusory de facto though not a de jure reversioner and that too half a century after the judg- ment of the trial court and the appellate court (Exs. DD/30-31) had rejected this document as being sham and collusive which had be- come final and irrevocable. And all this futile and amorphous exercise only to rely on the genealogy given in Exs. V and P-2 which are both inadmissible and incorect. 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)

BIHAR v. RADHAllRISHNA (Fazal Ali, J.j 877

it has not been said that the genealogy was wholly or undisputedly _. >- ---..,.- correct but the exact expression med 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 parti- cularly when the judgment was not inter parties. For these reasons, therefore, the arguments of Mr. Tarkunde must necessarily fail. B Finally, all the three documents, Exhibits V, DD/30 and DD/31 are hit, by the doctrine of post /item 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). c Ex. 0/3 (Vol. 3, page 85) is a written statment 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 :;llegations made by Bhola Singh and expressly stated that Bhola Singh was not an heir \)f Jaimed Kuer, and that the sale deed and D ekrarnama executed in favour of the plaintiff was without considera- tion and are not vaild. This document, therefore, far from support- ing 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 E > 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 bas taken several different forms thlows a considerable F

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 G 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 H 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 considerd by the

878 SUPREME COURT REPORTS (1983] 2 S.C.R.

court. According to the appellants, Ex. Q/2 is not a genuine docu· A ment, which seems to have been introduced in the records 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 B 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 rigntly 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 c the original itself was marked as Ex. Q/2. DW· 6 further admitted that there was a table ofcontents attached to the records which he had brought but the number of suit was not mentioned in the afore· said table. He further admitted that he was unable to decipher item No.5 in the table of contents and, therefore, could not say whether , D 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 E snit since a number of documents of that time had been produced in the present suit there could not nave 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). '-.,_-- F 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. G DD/39, a judgment in suit No. 130/1856, 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 H 'observed as follows:

"It is, therefore, impossible to believe that those endorsements had been existing in the genealogy at the

lllHAlt v. RADHAKRISHNA (Fazal Ali, J.) 879

time of the filing of the document if at all in the suit. There cannot be the slightest doubt, even assuming that A 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. B

It cannot be said that the fact that the defendant's lawyer filed the genealogy conclusively shows that the state- ments contained therein had been made by one of the two defendants or both. The genealogy could have as well been c 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 genea- logical table cannot, therefore, be said to have been proved. This is another difficulty in the way of its D admissibility." (Vol. VIII pp. 515, 517)

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 : E • (!) 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. F (2) All the important documents filed in the aforesaid suit have been enumerated or mentioned in the judg- ment (Ex. DD/39) but there is no mention of this genealogical table. G (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 II have not been adequately rebutted either by the majority judgment or by the counsel for the respondents,

880 SUPREME COURT REPORTS •. [1983] 2 s.c.R.

We now come to the most seriom problem regarding the contents of Ex. Q/2. It is also worth noting that each version of 1 "' .... 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 docu· ment is as to what had happened to the document which was got translated by the High Court, as observed by MM. 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 c 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 of keeping formal papers like summons, vakalatnamas, ect. 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 whe;i the records were sent to this Court though the other two versions bad 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 F 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 G 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 in the aforesaid genealogy. It would appear that H Thakur Hirday Narain Singh had five sons viz., Amar Singh, Bansidhar Singh, Rudra Sabi, Ch\latra Sabi and Bikram Sahi. The name of Hirday Narain Singh finds clear mention in Ex. J where Dnrga Prasad mentioned the names of his sons but neither Bansidhar,

1JIHAR v. RADHAKRISIINA (Fazol Ali, J.) 881

not Amar Sipgh, nor Rudra Sabi, nor Chhatra Sahi find place > ) among the names of the sons of Hirday Narain Singh. Secondly, A 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 absQlutely wanting and even the name of Gajraj Singh does not find a place 'anywhere in this • genealogy. B

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 cir- cumstallces. No person having special means of knowledge of the various heirs mentioned in this document has been examined. in these circuinstances and for the foregoing reasons we are unable to D 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 por- E tion 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 F 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, G 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 fu'ly agreed with Mukherji, J. that DW /32 was an entirely unrealiable witness H who purported to prove the signatures of Shila! on Ex. Q-5. For . these reasons, therefore, without travellins further into the domain of

882 SUPREMH COURT REP<>RTS [1983] 2 s.c.ll..

speculation and surmises we reject both these documents, Exhibits A 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 B genealogies filed to mention the entire line of ancestors or other con- nected relations, the incompleteness of the genealogies would not pnt the plaintiffs out of court or affectthe correctness of the genealogies. We are, however, unable to accept this explanation which, apart from being fallacious, is ambivalent and enigmatic, for the very purpose of -\. · a genealogy is to connect all the important and essential links and if c ·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-5 (Vol. IV, page 407) which is a plaint filed in suit No. 108 of 1909 in the court of Sub D Judge, Mirzaput, 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; E thirdly, this pedigree, even if correct, stops at Gajraj Singh who is shown to be the final ancestor of the p!aintifis. This fact is not dis- puted 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. F Reliance was placed on Ex. KK/l (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 G relates to an Ekrarnama executed by Rajendra Kishore Singh nomi- nating a Committee for the purpose of managing the properties of his son, Chiranjiv Rajkumar Harendra Kishore Singh (the late Maharaja) until he attained.majority. This merely shows the connec- H tion . 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 (lenealoiiy:is concernei;I.

BIHAR v, RAJ>HAKRISHNA.(Fazal Ali, J.) 883

Exhibits K and K-1 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. A . We would, however, just make a passing reference to these docu- ments to show that they do not support the case of the plaintiffs. These documents donot bear any seal or signature, nor is it possible to find out when, how and under what circumstances these B documents came into existence. Ex facie, they are not public docu- ments 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. Kand K-1, are alleged to be public and official documents and according to the c plaintiffs of Title Suit No. 5 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 D documents do not bear any seal or any signature and it is difficult to say as to when these documents. came into existance. Under these circumstances, I do not accept the contention urged on behalf of the plaintiffs .of Title Suit No. 5 of 1961 that these documents are dublic E documents. These documents cannot be said to be admissible in evidence under section 35 of the Evidence Act." (Vol.-VII, P. 207) Similarly, M.M. Prasad, J. while commenting on these two · documents and pointing out their infirmities c~ncluded thus: F 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 whatsover 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 referre\i t\l at

884 SUPRBMB COURT REPORTS [1983} 2 s.c.R.

ab.y place either expressly or by necsssary implication in the report A Ex. J. Furthermore, he has clearly stated that he had looked into - --< , 'Tnmar' i. e. account books for collecting some of the necessary 1 materials.. These docnments are not in the nature of account books at all. In these circumstances, therefore, all the courts rightly reject· ed these documents both as being inadmissible and unworthy of ' credence. B 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 c Maharaja. The plaintiff in that case was Ram Nandan Singh.. In the first place, this document is hit by the doctrine of post /item motam because the dispute to the succession of the late Maharaja (Harendra Kishore Singh) had already stated· with his death in the year 1893 and the suit was filed two years thereafter, and it is 'there· fore, irrelevant. Secondly, the plaint filed in the suit not being inter D 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 signfi.cance turns upon the contents of this document and i{ was rightly not relied upon by E 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 clocument to F the facts of the present case. 'l"f' Ex. G. II/I (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 G 1tnything 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 H 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 bein!l hit by the cloctrine of pos(

iltti:AR v. RADHAutISllNA (Fazai A.Ii,/.}

/item motam does not appear to be of any assistance to the plaintiffs and must, therefore, 9e excluded from consideration. A T 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 R 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 c 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 D (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 rever- sioner of Janki Kuer at the time when he made the sale deed has been demonstrated by judgments Exhibits DDJ30 and DD/31. It is a different matter that he may have become the next reversioner some E 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. F

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 G and some of them even upto Gajraj Singh but that linkage is not suffi- cient 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, ll~

SUPREME ColiRT REPORTS · [198M 2 s.c.ll.. the High Court has done, the fact that the plaintiffs were direct descendants of Gajraj Singh has been amply proted 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/I, 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 1 disputed. This document also does not throw any light on the crucial c 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. Ill, 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 D descendant of Debi Singh. The question still remains as to what the direct connection 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 ifit be conceded as it must be) E . 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 F 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-1 and T-68 are also documents falling under thi~ class relating to the proof of relationship between Bhagwati Prasad, Bhola Singh and Gajraj Singh but the evidence stops there and there H alone. Exhibits F/l and Gare various remarks inade by Debi $il)gh about lands in Taluka Majhwa which proved that Debi Singh \Vas

· 1!1itAR v. ilAbBAKRISllNA (Fazai Aii, J.) 8s7 one of the zaniindars 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. B Ex. NN/6 consists of extracts from the Banras Gazetter which ·shows· that Barisal Singh of Majbwa was one of the persons who was killed in the battle of Marni 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 C 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 aQd microscopic considera- D tion·'of these documents we find ourselves in complete agreement with the dissenting judgment of M.M. Pnisad, 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 tbey 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 i.n- lluenced by the age of the documents ot 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 attrac- tive and appealing but on a very close analysis of the evidence produc- ed 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 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 re§pect they were carried away by the apparent impor- . tance of the documents without making a deeper probe or a scientific approach regarding the same.

Ms SUPRllMll COUll'l' REPOR'l'S (198312 s.c.R. 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 funda· meutal missing link between Ramruch Singh, Devi Singh, Gajraj Singh and Bansidhar· Singh has not been p'roved and we are sure that if the majority Judses would have laid greater stress and atten· tion on this aspect of the case, in all probability they might have found a large measure of agreement with the judgment rendered by -~ c 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-sprea- ding over a period of almost two centuries. The last chapter consists of the wal evidence of th~ 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.

E 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 tht 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 o_r 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