Chopra, J. -
(1.) THE main point involved in this second appeal is whether Chanan Singh (sic) has locus standi to impugn an alienation effected by one Mt. Ram Kaur widow of Asa, in favour of Chater Singh, father of the applta. Agricultural land measuring 35 bighas & 15 biswas was mortgaged for Rs. 3000 by a registered deed dated 14 -2 -2003 & the declaratory suit giving rise to this appeal was filed by Chanan Singh on the ground that he was a sister's son of Asa, & that the mtge. was effected for no valid necessity. The mtgae, controverted the allegations & inter alia pleaded that the collaterals of Asa being alive the pltf. even if he be the sister's son of Asa which in fact he was not, had no locus standi to challenge the alienation. The trial Sub -Judge dismissed the suit holding that the pltf. had failed to prove his relationship with Asa & that the latter's collaterals were alive. The mtge. was held to have been effected for necessity. The first appellate Ct. differed from all these findings & decreed the suit holding the necessity to the extent of Rs. 800 only. Chatar Singh the alienee, having in the meantime died his sons come in second appeal.
(2.) MR . Dalip Chand does not seriously contest the finding of the Dist. J., regarding necessity. The land was previously mortgaged for Rs. 800 & it has been found to be for necessity to that extent. Rs. 2200 were paid in cash before the Sub -Registrar for a number of items of necessity none of which however, stands proved. One of these to which reference has been made by the counsel was redemption of some other land. He has drawn my attention to an entry in the Jamabandi of 1995 which showed that 6 bighas & 4 biswas of alienor's land stood mortgaged for Rs. 700; and argued that it was probably for the redemption of this land that the mtge. in question had been effected. I, however, do not see any force in the argument. It has been abundantly proved that the widow was possessed of more than 120 bighas of unencumbered land which yielded much more than what was required for her necessities. It was even enough to enable her to get the land redeemed, if she so desired. This coupled with the fact that the land was not in fact redeemed, goes to show that this item, like so many others was, also a bogus one. I, therefore, see no reason to differ from the finding of the Dist. J. on the point. Mr. Dalip Chand seriously contends that the evidence on record does not prove that the pltf. is a sister's son of Asa. (After discussion of the oral and documentary evidence the judgment proceeds.) Relying upon the oral evidence, however, I have no hesitation to hold that the pltf. has proved himself to be the sister's son of Asa.
(3.) THE next question that comes up for decision is whether the pltf. is the next heir of, or has a chance of succession to Mt. Ram Kaur, & has thus a loans standi to impugn the mtge. in question. The applts. contend that several collaterals of Asa are still alive, & they again have sons who would be the next heirs; and that the pltf. being only a sister's son, can succeed only after the lines of all those collaterals, howsoever, remote they may be, get extinct. This proposition of Customary Law, which admittedly governs the parties, is so well -recognised that it has been frankly conceded by Mr. Puran Chand, the learned Counsel for the resp. He however, stresses that the pltf. is the next heir, because Asa, the last mala holder, has left no agnate connected with him in any degree of propinquity. It is now to be seen if any agnate of Asa who could be entitled to succeed in preference to the pltf. is alive. The onus of proving his right to challenge, which depended on his right to inherit, was on the pltf. He has produced no evidence on the point & the witnesses examined by him prove the contrary. (After discussion of oral evidence the judgment proceeds.) The deft. has also brought on record several documents in support of his contention. One of these is a statement of Asa himself, recorded by Tehsildar Sudam on 21 -5 -84. The proceedings in which the statement was recorded were started on an appln. by Chattar Singh the alienee, for correction of the pedigree table prepared during the last settlement. His contention was that this family recorded as family No. 22 in the pedigree table was connected with the family of Asa & others which was shown as a separate family at No. 23. The Tehsildar after recording the evidence produced by the appct. including the statement of a Prohat from Hardwar, reported in favour of the appct. on 21 -5 -84. The Revenue Assistant & also the Collector found favour with that report. The proceedings were finally dropped as unnecessary because the appct. according to his own showing was related to members of family No. 23 beyond fifth degree & a Hidayat had newly been promulgated which restricted the right of inheritance upto the fifth degree. It was during these proceedings that Asa gave a statement & admitted that the pedigree table propounded by the Prohit of the family was correct. He farther admitted that the descendants of Jai Singh out of whom Boota, Chatar Singh Gujjar Singh, Santa, Rup Singh Wazir Singh, Kaka, Sawan & Prem Singh were then in existence, were his collaterals. The declaring is admittedly dead & the statement falls under Section 32(5), Evidence Act. Mr. Puran Chand objects to its admissibility on the ground that it had been made after the question in dispute had arisen. He argues that a dispute regarding the relationship had already cropped up, but he has not been able to satisfy me as to when & between whom that dispute had arisen. The appct. in those proceedings considered the pedigree table to be wrong & applied for its correction. No one denied his claim & there was no dispute regarding his relationship. The proceedings in my view were not for the purpose of settling any dispute between any of the parties; they were rather started for the purpose of avoiding a dispute that might arise in future. I am, therefore, of the opinion that the statement falls under Section 32(5), Evidence Act & is admissible. The pltf's own witnesses Shahzada & Rulia come from another family No. 21 & they also claim to be connected with the family of Asa which as already observed is shown as family No. 23 in the pedigree table B. Dalip Chand wants to rely upon the pedigree table propounded by the Tehsildar in his report which was based upon the statement of the Prohit. The Prohit's statement recorded in those proceedings cannot be treated as evidence in this case. He could have boon examined here again & allowed to be cross -examined by the other party. The pedigree table propounded by the Tehsildar from that statement, therefore cannot be acted upon in the present case. Moreover, that report was not finally accepted in those proceedings. Although I am of the view that the exact relationship of the collaterals of Asa, who are now in existence, has not been proved in this case, yet I am positively of the opinion that some collaterals of Asa are in existence before it goes to the pltf.;