Decided on November 22,1935

BHOJRAJ Appellant
SITA RAM Respondents


- (1.) THESE are consolidated appeals from two decrees of the High Court of Judicature at Allahabad dated March 26, 1930, which reversed the judgment and decree of the Subordinate Judge of Mainpuri and dismissed the plaintiffs' suit with costs.
(2.) THE dispute was as to the property of one Tej Raj, a wealthy Brahman landowner, which was situate at Kusyari and elsewhere in the district of Mainpuri. Tej Raj died in 1855 leaving surviving him three widows and a deceased son's widow, to whom Tej Raj's widows gave a portion of the property in lieu of her right to maintenance. THEse four ladies at various dates from 1873 onwards alienated the property in favour of the predecessors in title of the defendants, and by 1924 when Musummat Bakht Kunwar, the youngest widow of Tej Raj and the last survivor of the four ladies, died, all the property in question in the suit was in the possession of the defendants. In 1890 a declaratory suit had been brought by plaintiffs other than the present plaintiffs purporting to claim as reversioners to the property of Tej Raj and seeking to challenge the validity of the alienation of such property. This suit failed owing to the operation of the rules of limitation applicable to such declaratory actions and no question of pedigree was ever debated or decided in that suit. On the death of the last surviving widow, Mussummat Bakht Kunwar, the present suit was filed on November 17, 1924, claiming possession of the properties formerly belonging to Tej Raj and then held by the defendants. THE main issues which arose for decision and were decided by the Subordinate Judge were : (1) Were the plaintiffs entitled to maintain the suit as having or taking title from the next heirs or reversioners to the property of Tej Raj ? (2) Were the transfers to the defendants and their predecessors in title effected for legal necessity and valid ? THEre were other issues which were subsidiary or have now ceased to be of importance. THE only one of these which need be mentioned is an issue as to certain houses and groves in respect of which the Subordinate Judge excepted the houses, though not the groves, from the operation of his decree which was otherwise in accordance with the plaintiffs' claim. The Subordinate Judge found on both of the issues (1) and (2) in favour of the plaintiffs and in consequence granted them the relief they sought. Upon appeal, the Judges of the High Court agreed with the Subordinate Judge on issue (2) in holding that the transfers were not for legal necessity or valid. They also held as to the minor matter of the houses that the transfers were not for necessity and were not valid. But the main divergence of view was on issue (1 ). As to this the High Court held that the plaintiffs had failed to establish their pedigree and dismissed the suit on that ground. The appellant seeks the restoration of the decree of the Subordinate Judge, and the defendant-respondents seek to support the decree of the High Court both on the grounds upon which the Judges of the High Court based it and also by contending that the transfers were for necessity and are binding. This last matter can be shortly dealt with. There are concurrent findings in the Courts below in favour of the plaintiffs and their Lordships see no reason to doubt that those findings are correct. It was contended on behalf of the defendants that owing to the lapse of time, as a matter of law, necessity should be presumed, and in support of the contention the case of Chintamanibhatla Venkata Reddi v. Rani of Wadhwan (1919) L. R. 47 I. A. 6 : s. c. 22 Bom. L. R. 541 was relied upon. The judgment in that case does not in the opinion of their Lordships support the contention of the respondents. Here, as in the case cited, regard must be had to the amount of evidence likely to be available after the lapse of a long time and presumptions should be allowed to fill in gaps disclosed in the evidence but in this case there is evidence justifying the conclusions of the Courts below. Presumptions not to supplement but to contradict the evidence would be out of place. On the minor issue of the houses their Lordships are of opinion that the view of the High Court was preferable to that of the Subordinate Judge.
(3.) THE issue as to the plaintiffs' pedigree and right to maintain the suit is one of very considerable complexity and difficulty both by reason of the lapse of time between the death of Tej Raj and the present suit and by reason of the differences of view on the facts and evidence that have emerged in the Courts below. In both Courts very careful and able judgments have been delivered reviewing the evidence in detail and giving reasoned grounds for the conclusions arrived at. But after full consideration of those judgments and assisted by a close examination of the evidence by counsel, their Lordships have arrived at a clear opinion that the view of the Subordinate Judge on this issue is to be preferred to that of the Judges of the High Court. THE reasons which have led their Lordships to this conclusion are as follows : The material evidence was mainly oral evidence. Certain books of a bard and a priest upon which the plaintiffs sought at one stage to rely were not relied upon by the Subordinate Judge who based his judgment on his acceptance of a large body of oral evidence adduced to prove the plaintiffs' pedigree. The Judges of the High Court expressed some doubt as to the effect of the findings of the Subordinate Judge in the matter of credibility, but the position seems to be this : The learned Judge stated clearly what witnesses he did not believe whether for the plaintiffs or the defendants. His narrative of facts based on the evidence of witnesses other than these rejected witnesses was an acceptance of the evidence for the plaintiffs and the learned Judge in some cases added a specific refusal to reject the evidence of certain witnesses for the plaintiffs on the score of criticisms urged on behalf of the defendants. Their Lordships do not doubt that it is open to an Appellate Court to differ from the Court which heard the evidence where it is manifest that the evidence accepted by such Court of first instance is contradictory or is so improbable as to be unbelievable or is for other sufficient reasons unworthy of acceptance. But in the opinion of their Lordships no grounds exist here justifying a conclusion as to credibility opposed to that of the Judge who had the very great advantage of both seeing and hearing the witnesses. The evidence was not contradictory or in any substantial degree shaken in cross-examination nor was it in the opinion of their Lordships inherently improbable or unworthy to be accepted. The main drift of it which was to establish the pedigree relied upon and annexed to the plaint was confirmed by various circumstances appearing from the evidence of the deponents and was also to some extent corroborated by evidence and circumstances external to and independent of the plaintiffs' evidence and by evidence and documents adduced by the defendants.;

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