Suba Raut vs Dindeual Choudhury and Others

Chatterji, J.—This is an appeal by the plaintiff, Suba Raut, who brought a suit for a declaration that the mortgage decree obtained by defendant 1 against defendants 2 to 4 in Suit No. 19 of 1934 in the first Court of the Munsif at Arrah and the sale held in execution thereof are not binding upon him and his share in the disputed property. He claims relationship with defendants 2 to 4 according to the following genealogy which is given in the plaint:

BIHAEI RAUT | ____________________ | | Mahadeo Kanhaiya | | Suba | | __________________________ | | | Mewa Chota Ramsewak | | (defendant 3) Kukur Jugeshwar | (defendant 2) Ramdeo (defendant 4). 2. The plaintiff''s case is that there was separation between Mahadeo and Kanhaiya and that Kanhaiya''s branch had only a half share in the disputed property. Defendants 2 and 3 however executed a mortgage in respect of the entire property in favour of defendant 1 who obtained a collusive mortgage decree in Suit No. 19 of 1934 and thereafter sold the property in execution of that decree and purchased it himself. The plaintiff has got a half share in the disputed property and he claims that his half share is not bound by the mortgage decree or the execution sale. The suit was contested by defendant l. His defence is that the plaintiff does not belong to the family of the mortgagors at all and that the entire disputed property belonged to the mortgagors Ramsewak and Kukur. He also pleaded that the suit was barred u/s 42, Specific Relief Act, inasmuch as he took delivery of possession, though subsequent to the institution of the suit. The learned subordinate Judge has disbelieved the evidence of the plaintiff and held that he is not the son of Mahadeo. He has also held that the suit is barred u/s 42, Specific Relief Act.

The mortgage bond which formed the basis of the mortgage decree in question is Ex. A dated 2nd March 1923. It was executed by Ramsewak (defendant 3) and Kukur (defendant 2). In it there is a recital that Mahadeo died issueless. The learned subordinate Judge has placed some reliance upon this recital in coming to the finding that the plaintiff is not the son of Mahadeo. Mr. Naqui Imam on behalf of the appellant contends that the executants of Ex. A not having been examined, its recitals cannot be used as evidence against the plaintiff. But it is to be remembered that Kukur, one of the executants, died sometime before the hearing of the suit. The learned subordinate Judge seems to think that the recital, so far as it is a statement of Kukur who is dead is evidence u/s 32, Clause (5), Evidence Act.

Under that clause, a statement made by a deceased person is admissible in evidence if it relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption a person making the statement had a special means of knowledge and when the statement was made before the question in dispute was raised.

Mr. Naqui Imam contends that the recital in question does not relate to the existence of any relationship between Mahadeo and the present plaintiff and therefore does not fall within Clause (5) of Section 32. To accept this contention to my mind, would be putting a narrow construction upon the clause. The question now at issue is whether Mahadeo died issueless or left a son. The statement that Mahadeo died issueless does in my opinion amount to a statement relating to the existence of a relationship by blood, because the question whether Mahadeo left a son involves the question whether there is any blood relationship between him and the per-son who claims to be his son. "The existence of any relationship" within the meaning of the clause includes the non-existence of such relationship. If a statement relating to the existence of such relationship is evidence under that clause, any statement which implies that there is no existence of such relationship between two persons also comes under the clause.

I do not therefore think that the learned subordinate Judge was wrong in relying upon the recital in question in Ex. A. It may, however, be said that as Ex. A relates to the very transaction which has been impugned by the plaintiff, the learned subordinate Judge should not have attached much weight to it. But having regard to the nature of the recital in question, it cannot be lightly brushed aside. If in fact Mahadoo left a son who was living, it is hardly conceivable that his first cousin and nephew would dare to ignore his existence altogether.

Even apart from the recital in Ex. A, if we consider the evidence that has been adduced by the plaintiff it is difficult to hold that the view taken by the learned subordinate Judge is wrong. The evidence is entirely oral and consists of the statements of five witnesses, all residents of village Gorhana to which the mortgagor''s family belonged. Witness 1 is no doubt an old man aged 85 and he says that the plaintiff is the son of Mahadeo. But it is significant that he took a kebala and rehan from Ramsewak and Kukur only including Suba''s share although Suba was in the village. The explanation given by the witness is that "Kukur and Ramsewak transferred the share of Suba as managers.

This explanation can hardly be accepted. Suba''s own case is that his father had separated and therefore the question of Kukur and Ramsewak having transferred the sharo of Suba as managers cannot possibly arise. P.W. 2 of course says that the plaintiff is a son of Mahadeo, but he was conferred with the fact that it was he who signed the mortgage bond (Ex. A) for Kukur and Eamsewak both of whom were illiterate. He admits that the document was read over to him.

The recital in the document that Mahadeo died issueless is in direct conflict with his evidence now given in Court. P.W. 3 is chaukidar of the village. He says that Suba had a separate house after partition, but curiously enough no chaukidari tax is assessed in the name of Suba. No doubt Suba''s case is that he was a minor when his father died and Ramsewak and Kukur were looking after his affairs; but he had attained majority long since, his age being 25 at the time of the hearing of the suit. P.W. 4 supports the plaintiff''s case that he is the son of Mahadeo, but he says that Mahadeo and Kanhaiya were joint and not separate which is quite contrary to the plaintiff''s own case. P.W. 5 is the plaintiff himself. He has not been able to produce a scrap of paper to show that he has been in possession of Mahadeo''s properties. If really he was a son of Mahadeo and was in possession of his house and properties, we would have expected him to produce chaukidari receipts and rent receipts. The oral evidence of the nature which he has produced can hardly be regarded as sufficient to discharge the onus that lay upon him to establish his case.

As regards the objection u/s 42, Specific Belief Act, I am of opinion that it is well founded. It appears that defendant 1 took delivery of possession of the disputed property on 2nd August 1936. On the next day, that is on 3rd August 1936, the plaintiff amended the plaint by adding the following words in para. 5: "Although the plaintiff has been and is in possession and occupation of his share." The learned subordinate Judge has found that the plaintiff is not in possession. It is difficult to believe that after the delivery of possession taken by defendant 1 the plaintiff would be in possession of his undivided half share in the disputed property.

I think the decision of the learned subordinate Judge is right. I would therefore dismiss the appeal with costs.

Manohar Lall J.

I agree. I have nothing to add except that in my opinion, Ex. A appears to be admissible u/s 50 Evidence Act, also.