MAHABIR SINGH Vs. ROHINI RAMANADHWAJ PRASAD SINGH

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Judicature at Allahabad dated 12 February 1929, which reversed a decree of the Subordinate Judge of Aligarh dated 2 June, 1925, and dismissed the suit. The suit was instituted by the appellant on 7 September 1923, claiming absolute possession of an estate called Biswan. The present respondent is now defendant as representative of his brother, the original defendant, who died pending the suit, and is in possession of the estate.

(2.) The following table will conveniently show the alternative pedigrees maintained by the parties: The main question at issue turns on the true parentage of Matmatangadhwaj Prasad Singh alias Misrilal (hereinafter called "M"). The appellant maintains that he was the son of Shivbaran Singh and Mt.Ram Kunwar, while the respondent maintains that his parents were Thakur Garurudhwaja Prasad Singh (hereinafter called "G.") and Rani Basant Kunwar. On the death of his father. Gir Prasad Singh in 1880, G. took possession of the estate as owner and held it till his death in 1912. On 30 June 1886, his brother, Saparan-dhwaja Prasad Singh, brought a suit to recover half of the estate from him on the ground that it was a joint estate. The Subordinate Judge dismissed the suit on 14 January 1889, on the ground that the estate was impartible and descended by a custom of primogeniture. On 7 February 1893 the High Court reversed this decision, but their judgment was reversed by this Board on 27 June 1900, and the estate was finally held to be impartible. On the death of G in 1912 mutation was effected into the name of M without objection, and M held the estate without challenge until his death in 1923. His elder son's application for mutation was granted against objection taken by the present appellant, who was left to vindicate his claim by ordinary suit, and the present suit was instituted by him on 7 September, 1923.

(3.) If M was not the son of G the appellant's father Hamir Singh was entitled to the estate on the death of G, and he died in October 1918, "without having claimed it; the, appellant would then have been entitled to it, but he was under four years old at the time of his father's death. The parties are agreed that M was born within a year or two after July 1886. The appellant's case is that he was the son of Shivbaran and his wife and was born at Jarki, and that at some indefinite time later, by an arrangement, he was taken by G and his wife, Rani Basant Kunwar, who was Shivbaran's sister, and was thereafter treated in every way as their natural son. The respondent's case is that M was the son of G and was born of Rani Basant Kunwar at Agra, while she was resident there for a period of a few mouths for medical treatment. Extensive evidence, both oral and documentary, was recorded at the trial, and it will be convenient to deal with the documentary evidence in the first place. The first group of documents relates to three litigations, subsequent in date to the decision of the High Court in February 1893, that the estate was partible and prior to the reversal of that decision by the Board in June 1900. In the first suit (102 of 1893) M was the plaintiff, and defendant 1, Madhuri Saran, a mortgagee, denied in his written statement dated 23 August 1893, that M was the son of G; on the same day the suit was allowed to be withdrawn on the ground of defects in the frame of the suit. Their Lordships agree with both the lower Courts that Madhuri's denial is not competent evidence of the fact, as there is no proof of special knowledge on his part. But while one may speculate as to an ulterior motive for the withdrawal of the suit, their Lordships are of opinion that no such inference may legally be drawn from it. Accordingly this document is of no evidential value. The other two suits, Beni Ram's suit (147 of 1893) and M's suit (248 of 1896), to set aside Beni Ram's decree, are merely of value as to two facts which are not now in dispute", namely, that M was also known as Misrilal, and that, during G's life, M was consistently treated by him as his son, which is consistent with the case of both parties.