State of Bihar Vs. Radha Krishna Singh & Ors [1983] INSC 45 (20 April 1983)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA VARADARAJAN, A. (J) ERADI, V. BALAKRISHNA (J)
CITATION: 1983 AIR 684 1983 SCR (2) 808 1983 SCC (3) 118 1983 SCALE (1)789
ACT:
Genealogies considerations to be kept in view while considering.
Evidence Act, 1872-Enties in public records-Prepared by a public officer in discharge of his official duties- Probative value of-Sections 13, 40, 41, 42 and 43-Recitale in judgments not inter partes-Section 32-Doctrine of post litem motam-Appreciation of oral evidence in the matter of proof of pedigree-Hearsay evidence section 60-Statement of person deposing a fact known from a different source-How far can be relied on Escheat-State not entering appearance-Plea- If can be accepted without public notice to persons interested.
Interpretation-Dictionaries-How far can be used.
HEADNOTE:
Maharaja Harindra Kishore Singh was the direct descendant of Debi Singh who was the son of Bansidhar Singh.
Maharaja Harindra Kishore Singh died issueless leaving behind vast properties in the states of Uttar Pradesh and Bihar. The original plaintiff, Bhagwati Prasad Singh was the direct descendant of Ramruch Singh but his relationship with Bansidhar Singh had not been established. The plaintiffs- respondents basing their title as the nearest revisioners of Maharaja Harindra Kishore Singh claimed that they were entitled to immediate possession of the properties after the death of the widows of the Maharaja.
The Trial Court held that the plaintiffs had not been able to prove any linkage or connection between Ramruch Singh and Bansidhar Singh. But the majority of the High Court held that all the links were clearly proved by the plaintiffs and that it had been found to their satisfaction that Ramruch was the son of Bansidhar. It also held that Ex.J which was an entry made by a Public Officer in a register in the discharge of his official duties squarely falls within the four corners of section 35 of the Evidence Act and, is therefore, admissible in evidence. The appellants however, claimed that it was not admissible in evidence.
HELD: In a hotly contested point, there is a tendency on the part of an interested person or a party in order to grab, establish or prove an alleged claim, to concoct, fabricate or procure false genealogy to suit their ends. In relying on the genealogy put forward, courts must guard themselves against falling into the trap laid by a series of documents or a labyrinth of seemingly old genealogies to support their rival claims. [820 H, 821 A] 809 The principles governing such cases are:
(i) Genealogies admitted or proved to be old and relied on in previous cases are doubtless relevant and in some cases may even be conclusive of the facts proved, but there are several considerations which must be kept in mind viz.:
(a) Source of the genealogy and its dependability.
(b) Admissibility of the genealogy under the Evidence Act.
(c) A proper use in decisions or judgments on which reliance is placed.
(d) Age of genealogies.
(e) Litigations where such genealogies have been accepted or rejected. [821 B-E] (2) On the question of admissibility the following tests must be adopted:
(a) The genealogies of the families concerned must fall within the four-corners of s. 32(5) or s. 13 of the Evidence Act.
(b) They must not be hit by the doctrine of post litem motam.
(c) The genealogies or the claims cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible.
(d) Where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved. [821 B-H] The majority view that; Ex. J. is admissible is correct. Section 35 of the Evidence Act requires the following conditions to be fulfilled before a document can be admissible under this section:
(1) the document must be in the nature of an entry in any public or other official book, register or record, (2) it must state a fact in issue or a relevant fact, (3) the entry must be made by a public servant in the discharge of his official duties or in performance of his duties specially enjoyed by the law of the country in which the relevant entry is kept.[829 H, 830 A-B] 810 A perusal of Ex. J. clearly shows that it is a report made by an officer of the Government in discharge of his official duties. It was written by a serishtadar, a Government officer, on the direction of a high governmental authority. Ex. J. being an entry in a Register made by a public officer in the discharge of his duties, squarely falls within the four corners of s. 35 of the Evidence Act.
It is clear that the officer was entrusted with the task of ascertaining the possession of various landlords for the purpose of taking suitable steps in the matter. It mentions a number of persons through whom the plaintiffs claim their title and, therefore, it relates to a relevant fact. The question as to whether the relevant fact is proved or not is quite a different matter which has nothing to do with the admissibility of the document but which assumes importance only when the court considers the probative value of a particular document. In short, all the essential conditions of section 35 are fully complied with. [830 C-E] Admissibility of a document is one thing and its probative value, quite another: a document may be admissible and yet may not carry any conviction and weight or its probative value may be nil. [832 A] In the instant case Ex. J. has no probative value because it does not disclose the source from which the Sheristadar collected his facts nor does it show whether he consulted either contemporary or previous records or entries therein to satisfy himself regarding the correctness of various statements pertaining to the genealogy of landlords who were in possession of the lands. Although he has stated that he had taken these facts from an account book, he had not given any description or the nature of the account book and its contents. The fact of the matter, therefore, is that there was no proper verification by the Sherishtadar regarding the facts stated in the Report from any source.
Therefore, it is difficult to place any reliance on the document even though it may be admissible in evidence. [832 C-G] P.C. Purushothama Reddiar v. S. Perumal [1972] 2 SCR 646, applied.
Ghulam Rasul Khan v. Secretary of State for India in Council 52 I.A. 201, distinguished.
Guar Shyam Pratap Singh v. Collector of Etawah A.I.R. 1946 PC 103; Meer Usd-oollah v. Mussumat Beeby Imaman, widow of Shah Khadim Hossain, 1 M.I.A. 19 held inapplicable.
A report based on hearsay evidence or on the information given by an illiterate person cannot be admissible even under section 35 of the Evidence Act. [837 G] Brij Mohan Singh v. Priya Brat Narain Singh [1965] 3 SCR 861, followed.
In the instant case the Sherishtdar had to depend on some unknown persons who were not mentioned in it to gather his facts and so even if it is 811 admissible its probative value would be almost zero. Ex. J.
was admissible because its author is no longer alive. It contains information which is based on what he may have heard from third parties and therefore much value cannot be attached to such a report. [838 C, 839 B] Brain v. Preece Lord, 152 English Reports 1017; Mario Mangini Sturla & Ors. v. Filippo Tomasso Mattia Freccia, Augustus Keppel Stevenson & Ors., 1880 A.C. 623; Mercer v.
Denne [1905] 2 Ch. 538, referred to.
Briefly stated the law relating to the admissibility and probative value of the Ex. J is:
(i) The exhibit is clearly admissible under s. 35 of the Evidence Act, and the finding of the High Court on this point is correct;
(ii) The Sheristadar, started writing Ex. J in the year 1810 and completed it in 1813:
(iii) It mentions names of some persons who, according to the plaintiffs, were their ancestors, but on carefully analysing the document it is not very clear as to how Ramruch Singh was connected with Bansidhar Singh or Debi Singh.
(iv) Its probative value is insignificant and is of no assistance in proving the plaint genealogy.
(v) It was a part of the record of Mirzapur Collectorate and was summoned therefrom.
(vi) A bare perusal of the exhibit shows that the Sherishtadar was directed to embark on an enquiry regarding the persons who were in actual possession of lands at the relevant time and it was not a part of his duty to embark on any enquiry regarding the title of the persons holding the lands, nor did he attempt to do so. The heading af Ex. J itself shows that it is a report regarding the possession of Taluqa Majhwa. [841 A-F] Even if the exhibit is taken into consideration, it will prove not the title of the plaintiffs-respondents but only the possession of lands held by some of their alleged ancestors. In other words, the documents will not be any evidence of title in the suit out of which the present appeals arise which are mainly concerned with the question of title and not with the question of possession. This apart the scheme followed and the modus operandi adopted by the plaintiffs are based on an incorrect translation and wrong interpretation of the meaning of actual words in Persian.
[841 G-H] Judgments of courts are admissible in evidence under the provisions of sections 40, 41 & 42 of the Evidence Act.
Section 43 provides that those 812 judgments which do not fall within the four corners of sections 40 to 42 are inadmissible unless the existence of such judgment, order or decree is itself a fact in issue or a relevant fact under some other provisions of Evidence Act. Some Courts have used section 13 to prove the admissibility of a judgment as coming under the provisions of section 43. But where there is a specific provision covering the admissibility of a document it i, not open to.
the Court to call into aid other general provisions in order to make a particular document admissible In other words, if a judgment is not admissible as not falling within the ambit of sections 40 to 42 it must fulfil the conditions of section 43; otherwise it cannot be relevant under section 13 of the evidence Act. The words "other provisions of this Act" cannot cover section 13 because this section does not deal with judgments at all. [860 H, 861 A, 861 C-D] A judgment in rem, like judgments passed in probate, insolvency, matrimonial or guardianship proceedings is admissible in all cases whether such judgments are inter partes or not. In the instant case, however, all the documents consisting of judgments filed are not judgments in l em, and therefore, the question of their admissibility on that basis does not arise. The judgments filed as Exhibits in this case are judgments in personam, and therefore, they do not fulfil the conditions mentioned in section 41 of the Evidence Act. [861 E-F] John Cockrane v. Hrrosoondurri Debia & Ors, 6 M.I.A. 494; Jogendro Deb Roy Kut v. Funindro Deb Roy Kut 14 M.I.A. 367; Gujju Lall v. Fatteh Lall ILR 6 Cal. 171; Maharaja Sir Kesho Prasad Singh Bahadur v. Bahuria Mt. Bhagjogna Kuer & Ors. AIR 1937 PC 69, referred to.
Gadadhar Chowdhury and Ors. v. Sarat Chandra Chakravarty and Ors 44 CWN 935, Seethapati Rao Dora v. Venkanna Dora & Ors ILR 45 Mad, 332;
approved.
It is also well settled that statements or declarations before persons of competent knowledge made ante litem motam are receivable to prove ancient rights of a public or general nature. [865 H] The admissibility of such declarations is, however, considerably weakened if it pertains not to public rights but to purely private rights. It is equally well settled that declarations or statements made post litem motam would not be admissible because in cases or proceedings taken or declarations made ante litem motam, the element of bias and concoction is eliminated. Before, however, the statements of the nature mentioned above can be admissible as being ante litem motam they must not only be before the actual existence of any controversy, but should be made even before the commencement of legal proceedings. [866 C-E] This position however cannot hold good of statements made post litem motam which would be clearly inadmissible in evidence. The reason for this rule seems to be that after a dispute has begun or a legal proceeding is about to commence, the possibility of bias, concoction or putting up false pleas cannot be ruled out. [866 G-H] 813 Kalka Prasad and Ors. v. Mathura Prasad ILR 30 All. 510, Hari Bakh v. Babu Lal & Anr. AIR 1924 PC 126; Dolgobinda Paricha v. Nimai Charan Misra & Ors. [1959] Supp. 2 SCR 814; and Ralidindi Venkata Subbaraju & Ors v. Chintalpati Snbbaraju & Ors.
[1969] 2 SCR 292, referred to.
(i) A judgment in rem e.g, judgments or orders passed in admirally, probate proceedings, etc, would always be admissible irrespective of whether they are inter partes or not;
(ii) judgment in personam not inter partes are not at all admissible in evidence except for the three purposes mentioned above.
(iii) on a parity of aforesaid reasoning, the recitals In a judgment like findings given in appreciation of evidence made or arguments or genealogies referred to in the judgment would be wholly in admissible in a case where neither the plaintiffs nor the defendants were parties.
(iv) The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety. is precious little.
(v) Statements, declarations or depositions, etc., would not be admissible if they are post litem motam. [869 A-F] In the instant case, a detailed examination of the documents shows that the plaintiffs as pointed out by the discenting judge have not proved that they are in any way directly connected with Ramruch Singh, Bansidhar Singh or Debi Singh. The majority on the other hand seems to have been greatly influenced by the age of the documents or their nature rather than their contents, relevancy and weight. The majority also did not focus attention on the most vital question whether or not the plaintiffs have proved that Gajraj Singh, the ancertor of the plaintiff, was in any way connected with Ramruch Singh, Devi Singh and Bansidhar Singh. [869 G-H, 870 A-B] In considering the oral evidence regarding a pedigree a purely mathematical approach cannot be made because where a long line of descent has to be proved spreading over a century, it is' obvious that the witnesses who are examined to depose to the genealogy would have to depend on their special means of knowledge which may have come to them through their ancestors but, at the same time, there is great risk and a serious danger involved in relying solely on the evidence of witness given from pure memory because the witness who are interested normally have a tendency to draw more from their imagination or turn and twist the facts which they may have heard from their ancestors in order to help the parties for whom they are deposing. The court, must therefore safeguard that the evidence of such witness may not be accepted as it is based purely on imagination or an imaginary or illusory source of information rather than special means of knowledge as required by law. The oral testimony or the witness on this matter is bound to be hearsay 814 and their evidence is admissible as an exception to the general rule where hearsay evidence is not admissible. [888 E-H, 889 A] In the appreciation of evidence of such witnesses, the principles to be borne in mind are:
(1) The relationship or the connection however close it may be, which the witness bears to the persons whose pedigree is sought to be deposed by him.
(2) The nature and character of the special means of knowledge through which the witness has come to know about the pedigree.
(3) The interested nature of the witness concerned.
(4) The precaution which must be taken to rule out any false statement made by the witness post litem motam or one which is derived not by means of special knowledge but purely from his imagination, and (5) The evidence of the witness must be substantially corroborated as far as time and memory admit. [889 [B-E] Bahadur Singh & Ors. v. Mohan Singh & Ors. 29 I.A. Pershad Chowdhry & Ors. v. Rani Radha Chowdharain & Ors. 31 I.A. 160; Abdul Ghafur & Ors. v. Hussain Bibi & Ors. 58 I.A. 188; Mewa Singh & Ors. v. Basant Singh & Ors. AIR 1918 P.C 49; Bhojraj v. Sita Ram & Ors. AIR 1936 PC 66, referred to.
Escheat:
When a claim for escheat is put forward by the Government, the onus lies heavily on the appellant to prove the absence of any heir of the respondent anywhere in the world. Normally, the court frowns on the estate being taken by escheat unless the essential conditions for escheat are fully and completely satisfied. Further, before the plea of escheat can be entertained, there must be a public notice given by the Government so that if there is any claimant anywhere in the country, or for that matter in the world, he may come forward to contest the claim of the State. [919 E-F] In the instant case, the States of Bihar and Uttar Pradesh merely satisfied themselves by appearing to oppose the claims of the plaintiffs respondents. Even if they succeeded in showing that the plaintiffs were not the nearest reversioners of the late Maharaja, it does not follow as a logical corollary that the failure of the plaintiffs claim would lead to the irresistible inference that there is no other heir who could at any time come forward to claim the properties. [919 F-G] Dictionaries can always be referred to in order to ascertain not only the meaning of a word but also the general use of it. [842 F] 815 Coca-Cola Company of Canada Ltd. v. Pepsi-Cola Company of Canada Ltd., AIR 1942 PC 40 referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 494- 496 of 1975.
From the Judgment and Decree dated the 15th December, 1982 of the Patna High Court in First Appeal Nos. 85, 86 & 87 of 1966 respectively.
Dr. L.M. Singhvi, S.C. Mishra, U.P. Singh, S.N. Jha and L.K Pandey for the Appellant.
V.M. Tarkunde, U.R.Lalit, D.N. Goburdhan and D.
Goburdhan for Respondents Nos. S 22.
Dr. Y.S. Chitale and Mrs. Sobha Dikshit for the State of U.P.
S.K Verma for the Intervener.
The Judgment of the Court was delivered by FAZAL ALI, J. These appeals are directed against a judgment of the Special Bench of the Patna High Court by which the High Court decreed title suit No.5/61 after reversing the Judgment of the trial court. It appears that after the death of Maharaja Harendra Kishore Singh (hereinafter referred to as the 'Maharaja') who died issueless on the 26th of March 1893, a serious dispute arose about the impartible estate left by him. The Maharaja claimed to be a direct descendant of Raja Hirday Narain Singh who was the admitted owner of the properties. Several persons came forward with rival claims of being the heirs to the properties left by the Maharaja which consisted of immovable and moveable properties, such as lands, houses, jewellery, etc. As a result of the hot contest by each of the claimants, one suit was filed at Varanasi being T.S. No. 3/55. That suit was filed by one Ram Bux Singh who claimed to be the nearest reversioner of the late Maharaja. That suit, however, appears to have died its natural death during the preliminary stages and was ultimately withdrawn on April 9, 1956, leaving only three claimants in the field.
Another suit was filed on 16th August 1955 in the Court of Sub-Judge, Patna which was registered as T.S. No. 44/1955. The 816 claimant in this suit was one Suresh Nandan Singh of Sheohar who had put in his claim before the Board of Revenue which had taken over the management of the entrie properties after the death of the widows of the Maharaja.
The third suit being T.S. No. 25/58 was filed by two sets of plaintiffs who had entered into some agreement inter-se. That suit was filed in the Court of Sub-Judge, Patna on April 11, 1958. In that suit, the main claim was put forward by Raja Jugal Kishore Singh who claimed to have succeeded to the gaddi of the Bettiah Raj in the capacity of putri ka putra of Raja Dhrub and on the extinction of the line of Raja Delip Singh by reason of the death of Maharaja Harendra Kishore Singh, the right devolved on the plaintiff, Ambika Prasad Singh.
The fourth suit was filed on March 12, 1959 in the court of Sub-Judge, Chhapra which was later transferred to the court of Sub-Judge, Patna and renumbered as T.S. 5/1961.
In this suit also, there were two sets of plaintiffs-one consisting of plaintiffs who had entered into a champartus agreement with the other set of plaintiffs. In this suit, the principal plaintiffs, Shri Radha Krishan Singh, one of the sons of Bhagwati, Prasad Singh, claimed to have succeeded to the estate of the late Maharaja as his nearest reversioner We might mention here that the main contest before us has been between the plaintiff, Radha Krishan Singh (hereinafter referred to as the 'plaintiff') and the State of Bihar, supported by the State of Uttar Pradesh. So far as the other two suits were concerned they were dismissed both by the trial court and the High Court but the suit filed by Radha Krishan Singh (T.S. 5/1961) was decreed by the High Court with a majority of 2:1 Mr. Justice G.N. Prasad, with whom Mr. Justice A.N. Mukherji agreed, reversed the judgment of the Subordinate Judge and derceed the suit of Radha Krishan Singh and rejected the claim of the State of Bihar.
Mr. Justice M.M. Prasad, however, took a different view and agreed with the trial court holding that the suit of the plaintiff was rightly dismissed. He accordingly have a dissenting judgment dismissing the usit plaintiff.
It is not necessary for us to embark on the history and other circumstances of the case because Justice G.N. Prasad has dexterously detailed the facts and circumstances of the entire case and has candidly narrated the historical events leading to the various crucial stages through which the litigation regarding the disputed properties 817 had passed. We, therefore, need not repeat what has already been fully discussed by the High Court. Suffice it to say that the eventful story of the present litigation opens with the death of Maharaja Harendra Kishorc Singh which took a more serious turn when his two widows, Maharani Sheoratan Kuer died on March 24, 1896 and Maharani Janki Kuer was declared incompetent to manage the estate, as a result of which the management of the entire estate was taken over by the Court of Wards. As the properties in question were situated in both the States of Bihar and Uttar Pradesh the Courts of Wards of Bihar and Uttar Pradesh jonitly carried on the management of the properties. Maharani Janki Kuer resided at Allahabad and died childless on November 27, 1954.
After her unfortunate death or even before, interested persons started casting their covetous and avaricious eyes on the huge properties left by the late Maharaja and litigation started by putting forward rival and conflicting claims thus making strenuous efforts to "turn chance into good fortune". The last and inevitable step of the drama long in process reached its climax with the death of Maharani Janki Kuer when as many as four suits, as mentioned above, were filed claiming the properties of the Maharaja, some as reversioners and some as putri ka putra, etc.
We would like to make it clear that the three appeals, i.e., civil appeal Nos. 494 to 496 of 1975, have been filed by the State of Bihar arraying the plaintiffs and other claimants as the respondents in each of the appeals. The pivotal dispute centres round appeal No. 494 between the State of Bihar, supported by the State of Uttar Pradesh on one side and the plaintiff, Radha Krishan Singh and his champarters on the other.
We, therefore, intend to discuss and analyse the evidence-oral and documentary-only so far as the parties in appeal No. 494 are concerned.
Before dealing with the oral, documentary and circumstantial evidence it may be necessary to refer briefly to the background of the case which has doubtless been fully discussed by the courts below. Some of the historical aspects, however, have to be reiterated in order to understand the view which we take in this case.
Coming to the history of the Bettiah Raj, we have to go back to the 17th century. The undisputed position is that Bettiah Raj 818 was an impartible estate having properties in the States of Bihar and Uttar Pradesh. The Raj was established by one Raja Ugra Sen as far back as the middle of 17th century and was commonly known as the Riyasat of Sirkar of Champaran, consisting of four parganas, viz,. Majhwa, Simrown, Babra and Maihsi. Raja Ugra Sen was succeeded by Raja Dalip Singh, Raja Gaj Singh and ultimately by Raja Dhrub Singh in the year 1715. Raja Dhrub Singh died in the year 1762 without leaving any male issue, but leaving a daughter named Benga Babui who had married one Raghunath Singh, a Bhumihar Brahmin of Gautam gotra. On the death of Raja Dhrub Singh, his daughter's son, Raja Jugal Kishore Singh entered into possession of the estate of Bettiah Raj and was in possession thereof at the time when the East India Company assumed the Government of the province. The Company could not tolerate any resistance from the Rulers and a battle was fought in the course of which Raja Jugal Kishore Singh was driven into the neighbouring State of Bundelkhand in 1766 and the entire estate of Bettiah Raj was seized and placed under the management of the officers of the Company. During the absence of Raja Jugal Kishore Singh, Sri Kishen Singh and Abdhoot Singh who were the sons of Prithi Singh and Satrajit Singh respectively and were younger brothers of Raja Dalip Singh, enjoyed the confidence of the Company and were placed incharge of the Bettiah Raj. How ever, in 1771, the Company reinstated Raja Jugal Kishore Singh obviously because he probably tendered his apologies and made a solemn promise to be loyal to the Company, as a result of which negotiations started between the Government and Raja Jugal Kishore Singh regarding the estate in question and ultimately he was allotted the Zamindari of Majwha and Simrown which formed part of the Bettiah Raj estate and Babra and Maihsi were left in the possession of Srikishen Singh and Abdhoot Singh. The East India Company had formally announced this arrangement by a decision dated July 24, 1771. Soon thereafter, there was some dispute between Raja Jugal Kishore Singh and the Company, as a result of which he was again dispossessed by the Company as he failed to pay the Government revenue. Thus, the entire Sirkar of Champaran passed into the possession of the Government and was held by small farmers on temporary settlements. Raja Jugal Kishore Singh received an allowance for maintenance and died sometime in the year 1783, leaving a son named Bir Kishore Singh who was succeeded by his eldest son, Maharaja Anand Kishore Singh in 1790. Upon his death, leaving no issue, he was succeeded by his younger brother, Maharaja Nawal Kishore Singh who was succeeded by his eldest son, Rajendra Kishore Singh who was 819 ultimately succeeded by Maharaja Harendra Kishore Singh, whose estate is the subject matter of this suit.
On 22nd September, 1790, Lord Cornwallis recommended to the Board of Revenue that estate of Majhwa and Simrown should be restored or Raja Jugal Kishore Singh but as he had died by this, time, the Company directed that the heirs of Raja Jugal Kishore Singh, Srikishen Singh and Abdhoot Singh be restored the possession of their respective Districts.
Bir Kishore Singh, was not at all satisfied with the decision of the Board, mentioned above, because he claimed the entire province (Sirkar of Champaran) but in obedience to the order of the Governor-General, he took possession of the parganas of Majhwa and Simrown.
Thereafter, a long-term litigation started between Bir Kishore Singh and the heirs of Raja Jugal Kishore Singh in respect of Majhwa and Simrown and ultimately suits were filed which were followed by Memorial to the Lieutenant Governor. It appears that whereas in the earlier suit, Raja Deoki Nandan Singh's predecessor had pleaded that Raja Jugal Kishore Singh was the son of Raja Dhrub Singh's duaghter and, therefore, not a member of the family of Raja Dhrub Singh, Bir Kishore Singh had pleaded that Raja Jugal Kishore Singh having been adopted by Raja Dhrub Singh had become a member of his family. It was pleaded in the Memorial that Raja Jugal Kishore Singh, who belonged to the Gautam gotra, had been, adopted by Raja Dhrub Singh who belonged to the Kashyap gotra, and had been appointed as his successor.
To cut the matter short, it may be stated that a spate of litigation followed putting forward rival claims to the estate left by Raja Dhrub Singh. It may, however, be noted that in none of the suits instituted in 1895, 1896 and 1905, the question as to whether Raja Jugal Kishore Singh had become a member of the family of Raja Dhrub Singh, by virtue of his adoption as putri ka putra, was decided despite a plea having been raised in all those suits. As already mentioned, out of the four suits that were filed, one of them was withdrawn. In the present appeals, we are only concerned with two rival claims put forward to the Bettiah Raj on the death of Maharaja Harendra Kishore Singh and his two widows. In suit No. 25/1958, the claimants were Ambika Prasad Singh and others claiming the estate on the basis that as Raja Jugal Kishore Singh succeeded to the gaddi of Sirkar as the adopted son and successor to Raja 820 Dhrub Singh and not as his daughter's son, Ambika Prasad being nearest among the reversioners was entitled to succeed to the estate after the death of the widows. The suit of Ambika Prasad Singh was dismissed by the trial court as also by the special Bench of the High Court and some appeals were brought to this Court by certificate. The said appeals, being civil appeal Nos. 114-119 of 1976, in Shyam Sunder Prasad Singh & Ors. v. State of Bihar & Ors.(1) came up for hearing before a Bench consisting of P.N. Bhagwati, A.P.Sen and E.S. Venkataramiah, JJ. This Court dismissed the appeals and rejected the claim of Ambika Prasad Singh holding that as Raja Jugal & Kishore Singh could not in law be considered as putri ka putra his claim to the estate left by Raja Dhrub as being the nearest reversioner, cannot succeed.
The claim of Radha Krishan Singh and others in suit No. 5 of 1961 was left to be decided by another Bench and it is these appeals that have now been placed before us for hearing.
However, it is not necessary for us to make a deeper probe into the early history of Bettiah Raj because in the instant case the relevant genealogy for the purpose of ascertaining the ancestors of the parties starts from Raja Hirday Narain Singh and his descendants who have been referred to in Ex. J, a report of the serishtedar, which appears to be the sheet-anchor of the plaintiffs' case.
Ex. Q-2, a genealogy filed by the plaintiffs clearly shows that Thakur Hirday Narain Singh, who was the Raja of Bettiah after the death of his father, Thakur Hansraj Singh had five sons. One of his sons was Bansidhar Singh who was alleged to be the ancestor of the plaintiffs. Bansidhar Singh had only one son named Debi Singh.
After a brief narration of the facts, mentioned above, before going to the oral, documentary and circumstantial evidence, it may be necessary to state the well established principles in the light of which we have to decide the conflicting claims of the parties. It appears that the plaint genealogy is the very fabric and foundation of the edifice on which is built the plaintiff's case. This is the starting point of the case of the plaintiff which has been hotly contested by the appellant.
In such cases, as there is a tendency on the part of an interested person or a party in order to grab, establish or prove an alleged claim, to concoct, fabricate or procure false genealogy to suit their ends, 821 the courts in relying on the genealogy put forward must guard themselves against falling into the trap laid by a series of documents or a labyrinth of seemingly old genealogies to support their rival claims.
The principles governing such cases may be summarized thus:
(1) Genealogies admitted or proved to be old and relied on in previous cases are doubtless relevant and in some cases may even be conclusive of the facts proved but there are several considerations which must be kept in mind by the courts before accepting or relying on the genealogies:
(a) Source of the genealogy and its dependability.
(b) Admissibility of the genealogy under the Evidence Act (c) A proper use of the said genealogies in decisions or judgments on which reliance is placed.
(d) Age of genealogies.
(e) Litigations where such genealogies have been accepted or rejected.
(2) On the question of admissibility the following tests must be adopted:
(a) The genealogies of the families concerned must fall within the four-corners of s. 32 (5) or s. 13 of the Evidence Act.
(b) They must not be hit by the doctrine of post litem motam.
(c) The genealogies or the claim cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible.
(d) Where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved, 822 We shall now proceed to scan and analyse the evidence in the light of the principles adumbrated above referring to the important authorities on the questions arising out of the evidence, oral and documentary, Although both the parties have cited a very large number of decisions we would not like to load or crowd this judgment with all the authorities cited before us and would confine ourselves only to the important and relevant authorities of this Court and those of the Privy Council and we shall refer to the judgments of the High Court only if there is no decision of the Privy Council or of this Court directly in point.
To recapitulate, the plaintiffs-respondents based their title as being the nearest reversioners of the Maharaja and claimed to be entitled to immediate possession after the death of the widows of the Maharaja. The plaintiffs' therefore, claimed to be the direct descendants of Gajraj Singh and Ramruch Singh which was the branch of Bansidhar Singh's son which remained in Baraini and after the extinction of the line of the Maharaja, the properties were to revert to the descendants of Gajraj Singh. The attempt of the plaintiffs has been to show to the Court that they were direct descendants of Gajraj Singh who was the son of Ramruch, Ramruch being the son of Bansidhar Singh.
Thus, for the purpose of this case, Bansidhar Singh may be taken to be admittedly the ancestor of Maharaja Harendra Kishore Singh. The only point of dispute and the pivotal controversy centres round the question as to whether or not the plaintiffs have proved their case that they were also the direct descendants of Bansidhar Singh so as to claim the properties in dispute on the death of the Mahraja. Both on the question of genealogy and other matters, a mass of oral and documentary evidence consisting of documents, reports, judgments, plaints, entries in registers, etc., have been produced and will be considered at the relevant stage.
The defence of the appellant is of a negative character inasmuch as the defendants-appellants have denied the claims made by the plaintiffs-respondents and put them to strict proof of their case. The defendants, however, have been fair enough to concede that Bhagwati Prasad Singh, father of the plaintiff has been proved to be a direct descendant of Gajraj Singh but have flatly denied that Ramruch Singh, father of Gajraj Singh had any connection either with Debi Singh or Bansidhar Singh. In other words, the plaintiffs' genealogy, 823 so far as they are concerned, has been accepted by the appellants, upto the stage of Ramruch Singh. The courts below also on a consideration of the oral and documentary evidence have endorsed the stand taken by the defendants that Bhagwati Prasad Singh has been proved to be the direct descendant of Gajraj Singh being 7th in that line.
It is well settled that when a case of a party is based on a genealogy consisting of links, it is incumbent on the party to prove every link thereof and even if one link is found to be missing then in the eye of law the genealogy cannot be said to have been fully proved. In the instant case, although the plaintiffs have produced oral and documentary evidence to show that Ramruch Singh and Debi Singh were brothers being the sons of Bansidhar Singh this position was not accepted by the trial court as also by M.M. Prasad, J. who dissented from the other two Judges constituting the Special Bench who had taken a contrary view and had held that the plaintiffs had fully proved the entire genealogy set-up in the plaint. This, therefore, makes our task easier because we need not discuss in detail the evidence and documents to show the connection of the plaintiffs upto the stage of Gajraj Singh though we may have to refer to the evidence for the purpose of deciding the main issue, viz., whether or not Gajraj Singh was the son of Ramruch Singh and Ramruch Singh a brother of Debi Singh and son of Bansidhar Singh.
Before going into the evidence, we would like to extract the findings of the courts below on the question of title. The trial court had clearly held that the plaintiffs had not been able to prove any linkage or connection between Ramruch and Bansidhar but the majority judgment consisting of G.N. Prasad and Mukherji, JJ. disagreed with this finding and held that all the links were clearly proved by the plaintiffs and it has been proved to their satisfaction that Ramruch Singh was the son of Bansidhar Singh. On this point the finding of the majority may be extracted thus "I have considered the oral and documentary evidence adduced by the parties on the point of genealogy and in my opinion, it has been well established by the evidence adduced in this case on behalf of the plaintiffs of Title Suit No. 5 of 1961 that Bansidhar Singh was a common ancestor of Maharaja Harendra Kishore Singh and Bhagwati 824 Prasad Singh (father of plaintiffs 1 to 8 of Title Suit No. 5 of 1961)." (Vol. VII), p. 247, para 109) M.M. Prasad, J. however, dissented from the majorty judgment and agreed with the view taken by the trial court.
In this connection, his finding may be quoted thus:
"A discussion of the entire documentary evidence on the point of genealogy thus shows that there is no document which can be safely relied upon for the purpose of proving the two links in the genealogy of the present appellants. viz., that (1) Bansidhar was the father of Ramruch and (2) Ramruch the father of Gajraj.
(P-491 para 457) ... ... ...
In conclusion, therefore, I find that there is not a single document which can be relied upon to prove the two disputed links, namely, that Gajraj was the son of Ramruch and Ramruch the son of Bansidhar.
(P. 506 para 480) ... ... ...
Turning to the oral evidence which I have discussed above I find that there is not a single witness who can be relied upon for the purpose of proving the aforesaid two links. (P. 506 para 480) ... ... ...
Therefore, I find that the two links in respect of which there is no reliable documentary evidence have also not been proved by the oral evidence on the point those two links are Bansidhar being the father of Debi and Aini being the father of Raghunath. The consequence thereof is that the plaintiffs of Title Suit 5 have failed to prove that Bansidhar was the ancestor of Maharaja Harendra Kishore. I have already held that they have also failed to prove that Bansidhar was their ancestor, having failed to prove that Bansidhar was the father of Ramruch and Ramruch the father of Gajraj. In the result, I hold that 825 the plaintiffs of Title Suit 5 have failed to prove the genealogy set up by them and thus they have failed to prove that they are the nearest heirs of Maharaja Harendra Kishore". (Vol. VIII, p. 533, para 533) There is, however, one common factor between the majority and the dissenting judgments and it is that the plaintiffs have proved beyond reasonable doubt their connection with Gajraj Singh. This, therefore, has reduced the controversy to the bare minimum and has shortened the arena of the dispute that we are called upon to consider.
Even so, this short controversy itself is a stupendous task to determine and we will have to approach this aspect with great care and caution, deliberation and circumspection because two learned Judges of Patna High Court had negatived the plea of the defence and accepted that of the plaintiffs.
In order to understand the various shades and aspects of the case and its historical background, it may be necessary to extract the plaint genealogy even at the risk of repetition. In fact, the plaintiffs themselves did not append any genealogy to their plaint but G.N. Prased, J. has constructed a genealogy, based on the recitals in the plaint, for the purpose of convenience which is reproduced here (reproduced on pages 826-27).
The position that emerges from a perusal of the pleadings of the parties is that so far as the left side is concerned, the plaintiffs have not proved their linkage either with Debi Singh or Bansidhar Singh or Ramruch Singh.
The late Maharaja (Harendra Kishore Singh) was a direct descendant of Debi Singh who appears on the Left Side of the genealogy whereas the original plaintiffs Bhagwati Prasad Singh was the direct descendant of Ramruch Singh appearing on the Right Side of the genealogy while all other links are admitted the dispute centres round Ramruch Singh being related to Bansidhar Singh in any way either as a father of Gajraj Singh or as a brother of Debi Singh. Apart from the majority judgment, even M.M. Prasad, J., as indicated above, has found that the plaintiffs have proved that they were direct descendants of Ramruch Singh. In this connection, the finding of M.M. Prasad, J. may be quoted thus:
"So far as the genealogy of these plaintiffs is concerned, their claim to the effect that they are descended from Gajraj is not disputed in this case. Learned counsel 826 LEFT SIDE | Bansidhar Singh | Debi Singh | Aini Singh _____________________________________________________ | | | Raghunath Singh = Pahalwan Singh = Basant Singh Benga Babui (daughter Basant Kuer (Childless) of Raja Dhruva Singh, 17/15/1762 Tilak Singh = | Soman Kuer Raja Jugal Kishore Singh | (D. 1784) _______________________ | | | Raja Bir Kishore Singh Balbhadra Singh Sangam Kuer (1790-1816) = Jaimed Kuer (Daughter) | (D. 1887) (died childless) --------------------- | | Anand Kishore Naval Kishore (D. 1838) (D. 1855) | --------------------------- | | Rajendra Kishore Mahendra Kishore (D. 26th March 1883) (childless) | Harendra Kishore (D. 26th March 1893) =widow -
1. Maharani Sheortan Kuer (D. 24th March 1896)
2. Maharani Janaki Kuer (D. 27th November 1954) 827 RIGHT SIDE | Bansidhar Singh | Ram Ruch alias Ram Rup | --------------------------------------------------- | | | | Farman Har Kuer Bhup Narain Avadhut Singh | | (childless) Deo Narain ----------------------------------- | | | | | Sheo Balak Prithvi Mohan Singh | | (childless) | | Chotku Pratap Narain | (childless) | -------------------- Sheogulam | | | Bhoala Singh Deep Narain Jagdamba Prasad | | | Nand Kumar Jagat Bahadur (childless) | = Amol Kuer | | -------------------------------------- Nand Prasad | | | | (Adopted) Bansgopal Hari Kishore Ram Sankata | | (childless) Kumar Prasad Ram Chandra | (childless) (childless) (Living) ----------------------- | | Bhagwati Prasad Ilaka Singh (D. 29th (childless) June, 1957) | ---------------------------------------------------------- | | | | | | | | Radha Sri Ram Sheo Ashta Maina Ram Bhagi- Krishna Krishna Krishna Krishna Bhuja Kesari rathi (plain- = Shail tiff) Kumari | | --------------- ------------------ | | | | Vidya Malti Parvati Meera Devi Sagar Devi (Daughter) (Daughter) (Son) (Daughter) 828 appearing for the plaintiffs of Title Suit 25 as also the State of Bihar have clearly stated before us that they do not dispute their genealogy up to that point. The finding of the learned Subordinate Judge is also to the effect that they have proved their genealogy up to that point. The point does not, therefore. need a detailed consideration.
... ... ...
378. The other documents, however, prove that Bhagwati, the father of these appellants, was a descendant of Gajraj-" (Vol. VIII, pp. 442 & 444) Thus, the dispute which we have to resolve in this case is whether the plaintiffs have been able to prove any link between Ramruch and Gajraj Singh on the one hand and Ramruch and Bansidhar on the other. The plaintiffs can succeed only if they prove both these links by showing that Gajraj Singh was son of Ramruch Singh and Ramruch was son of Bansidhar Singh.
We would first examine the principal documentary evidence relied upon by the plaintiffs to prove their case.
The genuineness of some documents has not been disputed by the appellants, but according to them these documents do not assist the case of the plaintiffs. There are other documents whose genuineness and admissibility have been questioned before us by Dr. L.M. Singhvi, appearing for the appellants.
To start with, the main fabric and the cornerstone of the documents produced by the plaintiffs appears to be Ex.
J., an ancient document of the year 181 O whose admissibility was seriously disputed by the appellants but all the courts have found this document to be admissible.
Apart from the majority judgment, even M.M. Prasad, J. has clearly held that Ex. J. being an entry in a Register made by a public officer in the discharge of his duties squarely falls within the four corners of s. 35 of the Evidence Act and is, therefore, doubtless admissible. In this connection, the learned Judge observed thus:
"There can thus be no doubt that it is a report of a public officer in the due discharge of his public and office duties. There can thus be no doubt that it is admissible under section 35 of the Evidence Act." 829 Certain inferences drawn by M.M. Prasad, J. do not appear to us to be correct because they are not borne out by the recitals in Ex. J. and are really based on a wrong interpretation of certain expressions used in Persian language. These observations appear at page 483 of his judgment (Vol. VIII) where the learned Judge says that the document shows that Gajraj Singh was one of the descendants of Hirday Narain Singh and that Debi Singh and Gajraj Singh belonged to the, same family. This anomaly appears to have crept in because the said document (Ex. J) is in Persian language and on a very close reading of the recitals pertaining to these two facts, the inferences drawn by the learned Judge do not appear to be correct. We shall elaborate this point further when we deal with the merits of the document. We agree with the unanimous view of the High Court that Ex. J is admissible. In fact, the said Exhibit itself would show that it was written by a serishtadar, a Government officer, on the direction of a very high governmental authority who had asked him to make a detailed enquiry regarding the possession of various Zamindars and submit a Report to the Government about possession. We are, therefore, of the opinion that all the conditions of s. 35 of the Evidence Act are fully complied with and fulfilled, and it is difficult to accept the conclusion that the document is not admissible either under s. 35 or under any other provision of the Evidence Act. It is a different matter that even though a document may be admissible in evidence its probative value may be almost zero and this is the main aspect of the case which we propose to highlight when we deal with the legal value of this document.
Before, however, making any comment on the probative value of the document in question it will be necessary to peruse and analyse its important contents and their legal effect on the case put forward by the parties. We might mention here that the appellants before us have not accepted the stand taken by the High Court that this document is admissible in evidence but have argued at some length that it is totally inadmissible. Dr. Singhvi was not very vehement in persuading us to hold that the document is inadmissible but Mr. Misra, appearing for one set of the appellants, forcefully contended that the document is inadmissible. In view of the arguments addressed before us, it may be necessary to consider the question of admissibility also.
In our opinion, Ex. J. squarely falls within the four corners of s. 35 of the Evidence Act which requires the following conditions to be fulfilled before a document can be admissible under this section.
830 (1) the document must be in the nature of an entry in any public or other official book, register or record, (2) it must state a fact in issue or a relevant fact, (3) the entry must be made by a public servant in the discharge of his official duties or in performance of his duties especially enjoined by the law of the country in which the relevant entry is kept.
A perusal of Ex. J clearly shows that it is a Report made by an officer of the Government in the due discharge of his official duties because the recitals of the document show that he was entrusted with the task of and enjoined the duty of ascertaining the possession of various landlords for the purpose of taking suitable steps in the matter. It is beyond dispute in this case that the said Exhibit does mention a number of persons through whom the plaintiffs claim their title and therefore, it relates to a relevant fact. The question as to whether the relevant fact is proved or not is quite a different matter which has nothing to do with the admissibility of the document but which assumes importance only when we consider the probative value - of a particular document. The fact that the Report was called for from the Mirzapur Collectorate has been amply proved both by oral and documentary evidence. Thus, all the aforesaid conditions of s. 35 are fully complied with in this case.
Mr. Misra, however, raised two formidable objections to the admissibility of this document. In the first place, he submitted that there is no reliable evidence to show that Durga Prasad, the author of Ex. J. was a Government officer at all because the possibility of his being a private revenue agent of a Zamindar, who also maintains kutcheri (private office) where papers relating to realisation or rent and revenue are kept, cannot be ruled out. The designation of Durga Prasad therefore, does not conclusively prove that he was a Government officer. Secondly, it was contended that even if Ex. J contains a seal, there is nothing to show that it was not a private seal. In our opinion, the contentions raised by Mr. Misra are without any substance and cannot be accepted. Reading the document (Ex.
J) as a whole and taking into consideration the occasion for the entrustment of the task to Durga Prasad, its recitals and the fact that it was kept in a purely Government department, viz., the Mirzapur Collectroate from where it was produced before the trial court, clearly and conclusively prove that the report was made by an official serishtadar 831 appointed by a very high governmental authority. Even the opening lines of the Exhibit clearly indicate that Durga Prasad was a Government servant, perhaps in the Revenue Department, and was asked to submit a report for official purposes. It is also established that Durga Prasad made a roving enquiry and ultimately submitted his Report in the year 1813. Of course, it is true that there is no evidence to show as to what happened to this Report, but that is beside the point so far as the relevancy or the admissibility of this document is concerned. In fact, we shall show that although Exhibit J is admissible yet it has no probative value at all for the reasons and the circumstance that we shall discuss hereafter. Furthermore, all the three Judges of the High Court have unanimously held that Ex. J. is admissible in evidence whatever be its legal value.
In P.C. Purushothama Reddiar v. S. Perumal, (1) this Court while considering the effect of s. 35 of the Evidence Act observed as follows:- "It was lastly contended that the evidence afforded by the police reports is not relevant.
This again is untenable contention. Reports in question were made by government officials in the discharge of their official duties. Those officers had been deputed by their superiors to cover the meetings in question-.. ... The first part of s.
35 of the Evidence Act says that an entry in any public record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty is relevant evidence. Quite clearly the reports in question were made by public servants in discharge of their official duty." In view of the clear decision of this Court, referred to above, it is not necessary for us to multiply authorities on this point.
The admissibility or Ex. J or its genuineness is only one side of the picture and, in our opinion, it does not throw much light on the controversial issues involved in the appeal; We may not be understood, while holding that Ex. J is admissible, to mean that all its recitals are correct or that it has very great probative value merely because It happens to be an ancient document. Admissibility of a 832 document is one thing and its probative value quite another- these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil. Before going to the contents of Ex. J which have been fully discussed by the High Court, we would first like to comment on the probative value of this document.
In adjudicating on this important aspect of the matter it may be necessary to mention a few facts and circumstances which go to show that Ex. J has no probative value at all.
To begin with, a perusal of the Report (Ex. J) shows that it does not at all disclose the source from which Durga Prasad collected his facts or gathered the materials disclosed therein. There is also nothing to show that the author of the Report consulted either contemporary or previous records or entries therein in order to satisfy himself regarding the correctness of various statements made pertaining to the genealogy of landlords who were in possession of the lands, as stated in the said Report. It is true that at one place the author has stated that he had taken these facts from an account book (Tumar) but he has not at all given any description or detalis or even the kind or the nature of the account book and its contents. Furthermore, there is no evidence to indicate as to what happened after the author had submitted his Report to the Government and whether or not any follow up action was taken on the basis of his Report or it was just filed and kept on the record Lying lifeless and mute.
The fact of the matter is that no proper verification was made by Durga Prasad regarding the facts stated in his Report from any source and that it did not form part of a revenue entry or record which was ever referred to by any Executive, Judicial or statutory authority subsequent to the filing of this Report. In other words, the position seems to be that the fate of the Report, after it was submitted, was shrouded in mystery and Report became a forgotten story unheard unwept and unsung until the present suit by the plaintiff was filed. In these circumstances, therefore, it is difficult for us to place any reliance on the document (Ex. J) even though it may be admissible in evidence.
Mr. Tarkunde, appearing for the respondents, however relied on several authorities in support of his argument to show that the authenticity of this document cannot be questioned. In the first place, reliance was placed on a decision of the Privy Council in Ghulam 833 Rasul Khan v. Secretary of State for India in Council,(1) particularly on the following observations:
"In such a case as the present, statements in public documents are receivable to prove the facts stated on the general grounds that they were made by the authorized agents of the public in the course of official duty and respecting facts which were of public interest or required to be recorded for the benefit of the community. Taylor's Law of Evidence, 10th ed., s. 1591. In many cases, in deed, in nearly all cases, after lapse of years it would be impossible to give evidence that the statements, contained in such documents were in fact true, and it is for this reason that such an exception is made to the rule of hearsay evidence," The observations extracted above no doubt presumably support the contention of Mr. Tarkunde but even these observations have to be read in the light of the special facts of that particular case. In that case, there was evidence of a clear Government revenue record maintained in due course since 1852 showing that the term 'Khayyat Mohal' did not denote a tribe but merely a profession. Secondly, the revenue record of Mauza Shahna clearly mentioned the entire pedigree of the family which was found by the trial court to have been proved. The question at issue in that case was whether Mohals were of Rajput origin and it was conclusively proved by the lower courts that Mohals were doubtless Rajput or had a Rajput origin. The entry relied upon in that case was based on the extracts from settlement records of the District from 1852 and corrobortated by later entries up to 1882. The Privy Council took special note of the fact that evidence of the character taken from public records for a series of years since 1852 could not be easily brushed aside. In this connection, their Lordships observed as follows:
"Their Lordships cannot share the view of the appellate Court that evidence of this character, taken from public records for a series of years since 1852 and recorded in accordance with the requirements of the law, can in a pedigree case be disregarded." 834 Thus, it is absolutely clear to us that the facts of that case are essentially different and clearly distinguishable from the nature of the document that Ex. J is Ex. J cannot be regarded as an entry of the type which was the subject matter of Ghulam Rasul Khan's case (supra).
There is absolutely no corroboration of the facts mentioned in Ex. J either by later entries or by any other document.
There are a number of other facts mentioned in the judgment of the Privy Council (supra) which completely distinguishes that case from Ex. J in the present case. At least this much is clear, as already indicated, that in the Privy Council case there was positive evidence to show that the entry was acted upon for several years and that by process of elimination the caste of the appellants as Mohal Rajputs was established. But in the instant case there is absolutely no evidence to corroborate the recitals in Ex. J by any contemporary or subsequent Government record. In our opinion, therefore, the decision relied upon by the counsel for respondents is of no assistance.
Reliance was also placed on the decision in Kuar Shyam Pratap Singh v. Collector of Etawah (1) where the Privy Council made the following observations:- "This document therefore is an official document prepared by a public authority in pursuance of a statutory duty, and it is not disputed that it is evidence, though not conclusive evidence of the fact stated therein....
No cross-examination of the two witnesses from the Court of Wards who were called was directed to ascertain the sources on which the pedigree was founded." In our opinion, this decision far from supporting the case of the respondents completely belies the importance or probative value of a document like Ex. J. To begin with, the document relied upon by the Privy Council was a pedigree which was produced in courts by an officer of the Court of Wards. Secondly. the High Court had found that the Court of Wards Manual was prepared under the U.P. Court of Wards Act which had made a provision for an Estate Notebook for each estate in the Court of Wards which had to be maintained in triplicate form, one copy being kept in the District office, one in the Divisional office and one in the office of the Court of Wards. The object of the Notebook was to pro- 835 vide a separate and succinct note of every estate under the management of the Court of Wards. It is, therefore, manifest that the document concerned in that case was maintained not merely by an officer but under a statute which required certain conditions to be fulfilled. Furthermore, sufficient notoriety and publicity was given to this document because a copy of the record was kept in the District office which could be inspected by any member of the public. Tn the B instance case, however, we find that after Ex. J was submitted it faded into oblivion and on one ever heard of it until it was produced for the first time in the trial court from the Mirzapur Collectorate. Another important feature was that the Privy Council had found that the Court of Wards itself had held an enquiry and being a statutory body it must be presumed to have done its duty to the best of its ability. Fourthly, although two witnesses were examined to prove the documents from the Court of Wards, they were not cross-examined at all. In the instant case, a person from Mirzapur Collectorate merely produced the document but he had no knowledge about its contents or about its being acted upon. In these circumstances, Ex. J cannot be equated in any respect with Ex. which was the document under consideration by the Privy Council in Kuar Shyam Pratap Singh's case (supra), We would like to mention here that even if a document may be admissible or an ancient one, it cannot carry the same weight or probative value as a document which is prepared either under a statute, ordinance or an Act which requires certain conditions to be fulfilled. This was the case in both Ghulam Rasul Kltan's and Kuar Shyam Pratap Singh's cases (supra).
The case of Meer Usd-oollah v. Mussumat Beeby Imaman, Widow of Shah Khadim Hossain (1) appears to us to be a cler illustration of a
