S.K.DAS - (1.) THE following Judgment of the courtwas delivered by
(2.) THIS appeal on a certificate granted by theHigh court of orissa is from the judgment and decree of thesaid High court dated 9/03/1951, by which itsubstantially affirmed the decision of the learnedSubordinate Judge of Sambalpur in Title Suit No. 16 of 1944except for a modification of the decree for damages awardedby the latter. Two questions of law arise in this appeal,one relating to the interpretation of s. 32, sub-s. (5) andthe other to S. 50 of the Indian Evidence Act (I of 1872),hereinafter referred to as the Evidence Act.916 The material facts relating to the appeal are susceptible ofa-simple and concise statement. Three persons Nimai CharanMisra, Lakshminarayan Misra and Baikuntha Pati brought asuit for a declaration of their title to and recovery ofpossession of certain properties details whereof are notnecessary for our purpose. This suit was numbered TitleSuit 16 of 1944 in the court of the Subordinate Judge ofSambalpur. The claim of the plaintiffs, now respondentsbefore us, was founded on the following pedigree:- JUDGEMENT_914_AIR(SC)_1959Image1.jpg The last male owner was Satyananda who died unmarriedsometime in 1902-1903, and his mother Haripriya succeeded tothe estate. She lived till 1942; but in 1916 she had sold aportion of the property to one Indumati, daughter ofDharanidhar Misra (plaintiffs' witness no. 4) and some ofthe reversioners, namely, Natabar and Janardan, who wereagnates of Haripriya's husband Lokenath Parichha, brought asuit challenging the alienation. This suit was Suit No. 31of 1917 in the court of the Subordinate Judge, Sambalpur.The suit was decreed on 31/08/1918, and the alienationwas declared to be without legal necessity and not bindingon the reversion after the death of Haripriya. In 1929 waspassed the Hindu Law of Inheritance (Amendment) Act (II of1929) which inter alia gave to a sister's -son a place inthe order of Mitakshara succession higher than the agnates;before the amending Act a sister's son ranked as a bandhu,but under it he succeeded next after the sister. Thequestion whether a half-sister was entitled to get thebenefit of the amending Act gave rise to a difference ofopinion, but the Privy council held in 1942, settling thedifference then existing between the various High courts,that the term I sister' included a 'half-sister'; but a fullsister and a half-sister did not take together and thelatter took only in default of the full sister. (See Mst.Sahodra v. Ram Babu (1) ). The plaintiffs-respondentsclaimed on the strength of the pedigree which they set upthat they were sons of the half-sister of Satyanand andtherefore came before the agnates. The suit was contested by some of the defendants who wereagnates of Lokenath Paricha and of whom the presentappellant was one. The contesting defendants challenged thecorrectness of the pedigree alleged by the plaintiffs-respondents and their main case was that Ahalya and Malabatiwere -not the daughters of Lokenath Parichha but weredaughters of Baidyanath Misra, father of Haripriya. Therelevant pedigree which the appellant set up was- JUDGEMENT_914_AIR(SC)_1959Image2.jpg Satyanand (died in 1803) (4) As the High essential controversyDayasaga = Sushila P. W"3 court has put between theDasarathi it, the partiesBaikuntha Piff.'3 centred round respondents Nimal Lakshminarayan Piff. 1 Piff. 2. the question if the plaintiffs were the sons of the daughters 917 As the High court has put it, the essential controversybetween the parties centred round the question if theplaintiffs-respondents were the sons of the daughters ofLokenath Parichha by his first wife Satyabhama. On thisquestion the parties gave both oral and documentaryevidence. On a consideration of that evidence the learnedSubordinate Judge held that they were the sons of thedaughters of Lokenath Parichha and on that finding the suitwas decreed. There was an appeal to the High court, and itaffirmed the finding Of the learned Subordinate Judge. TheHigh court relied on Ex. 1, a petition dated 2/11/1917, which Satyabadi on his own behalf and on behalf of hisbrothers Baikunth Pati and Dasarath Pati had filed in SuitNo. 31 of 1917; this petition contained a pedigree whichshowed that Ahalya, Brindabati, and Malabati were daughtersof Lokenath Parichha by his first wife and Satyabadi,Baikunth and Dasarath were the sons of Ahalya. The admissi-bility of this document was challenged on behalf of theappellant, but the learned Judges of the High court heldthat the document was admissible under s. 32(5) of theEvidence Act. The contention before us is that the documentwas not so admissible, and this is one of the questions fordecision before us. As to the oral evidence, Narasimham, J., held that thetestimony given by three of the witnesses of the plaintiffs-respondents, namely, Janardan Misra (plaintiffs' witness no.2), Sushila Misrain (plaintiffs' witness no. 3) andDharanidhar Misra (plaintiffs' witness no. 4)was admissibleunder s. 50 of the Evidence Act, andhe relied on that testimony in support of the pedigree setup by the plaintiffs-respondents. The learned chief justicerelied on the evidence of Dharanidbar Misra which be held tobe admissible but with regard to the. other two witnesses,he said-' With regard to the other two witnesses relied on by theplaintiffs namely that of P. Ws. 2 (Janardan Misra, aged 62)and 3 (Susila Misrani, aged 43) knowledge of relevant factsas to relationships can seldom be attributed to them. Theirevidence, though true, and otherwise acceptable, must bebased upon their having heard the declarations of suchmembers of the family as were their contemporaries or uponthe tradition or reputation as to family descent handed downfrom generation to generation and recognised and adopted bythe family generally. This may partly, if not wholly, bebased upon conduct within the meaning of section 50, such astreating and recognising the mothers of the plaintiffs asLokenath's daughters, and the plaintiffs as his daughter'ssons. They, judged from their respective ages, could not beconsidered to have direct knowledge of the matters in issue.Scanning their evidence closely, I find that they have in noway deposed about such conduct of the members of the familyof Lokenatb as could be attributed to the knowledge orbelief or consciousness of those who had special means ofknowledge of the relationships or that the relationship wasrecognised and adopted by the family generally. In thecircumstances, I entertain some doubt as to theacceptability of their statements in evidence.'On behalf of the appellant, it has been contended that thetestimony of none of the aforesaid three witnesses fellwithin the purview of s. 50 of the Evidence Act and the HighCourt was in error in admitting and accepting that evidenceor any part thereof, and according to learned counsel forthe appellant, the whole of it was hearsay pure and simple-some of it being even second or third-hand hearsay. Thusthe second question for our consideration is if the testi-mony of the witnesses mentioned above or of any of them, is'admissible evidence within the meaning of s. 50 of theEvidence Act.
(3.) WE proceed to consider the second question first. TheEvidence Act states that the expression ' facts in issue 'means and includes any fact from which either by itself orin connection with other facts the existence, non-existence, nature or extent of any right, liability ordisability asserted or denied in any suit or proceedingnecessarily follow; 'evidence' means and includes (1) allstatements which the court permits or requires to be madebefore it by witnesses in relation to matters of fact underenquiry ; and (2) all documents produced for the inspectionof the court. It further states that one fact is said to berelevant to another when the one is connected with the otherin any one of the ways referred to in the provisions of theEvidence Act relating to the relevancy of facts. S. 5of the Evidence Act lays down that evidence may be given inany suit or proceeding of the existence or non-existence ofevery fact in issue and 'of such other facts as are declaredto be relevant and of no others. It is in the context ofthese provisions of the Evidence Act that we have toconsider s. 50 which occurs in Ch. 11, headed ' Of theRelevancy of Facts Section 50, in so far as it is relevantfor our purpose, is in these terms:-' S. 50. When the court has to form an opinion as to therelationship of one person to another, the opinion,expressed by conduct, as to the existence of suchrelationship, of any person who, as a member of the familyor otherwise, has special means of knowledge on the subject,is a relevant factOn a plain reading of the section it is quite clear that itdeals with relevancy of a particular fact. It states ineffect that when the court has to form an opinion as to therelationship of one person to another the opinion expressedby conduct as to the existence of such relationship of anyperson who has special means of knowledge on the subject ofthat relationship is a relevant fact. The two illustrationsappended to the section clearly bring out the true scope andeffect of the section. It appears to us that the essentialrequirements of the section are-(I) there, must be a casewhere the court has to form an opinion as to therelationship of one person to another; (2) in such a,case,the opinion expressed by conduct as to the existence of suchrelationship is a relevant fact; (3)but the person whoseopinion expressed by conduct is relevant must be a,person who as a member of the family or otherwise hasspecial means of knowledge on the particular subject ofrelationship ; in other words,the person must fulfil thecondition laid down in the latter part of the section. Ifthe person fulfils that condition, then what is relevant ishis opinion expressed by conduct. Opinion means somethingmore than more retailing of gossip or of hearsay; it meansjudgment or belief, that is, a belief or a convictionresulting from what one thinks on a particular question.Now, the ' belief ' or conviction may manifest itself inconduct or behaviour which indicates the existence of thebelief or opinion. What the S. says is that suchconduct or outward behaviour as evidence of the opinion heldis relevant and may, therefore, be proved. WE are of theview that the true scope and effect of S. 50 of theEvidence Act has been correctly and succinctly put in thefollowing observations made in Chandu Lal Agarwala v.Khalilar Rahman (1):-'It is only opinion as expressed by conduct which is maderelevant. This is how -the conduct comes in. Theoffered item of evidence is the conduct', but what is madeadmissible in evidence is' the opinion', the opinion asexpressed by such conduct)The offered item of evidence thusonly moves the court to an intermediate decision : itsimmediate effect is only to move the court to see if thisconduct establishes any I opinion' of the person, whoseconduct is in evidence, as to the relationship in question.In order to enable the court to infer 'the opinion ', theconduct must be of a tenor which cannot well be supposed tohave been willed without the inner existence of the Iopinion'.When the conduct is of such a tenor, the court only gets toa relevant piece of evidence, namely, the opinion ofa person. It still remains for the court to weigh suchevidence and come to its own opinion asto the factum probandum-as to the relationship in question.'WE also accept as. correct the view that s. 50 does not makeevidence of mere general reputation (without conduct)admissible as proof of relationship: Lakshmi Reddi v.Venkata Reddi (1). It is necessary to state here that how the conduct orexternal behaviour which expresses the opinion of a personcoming within the meaning of s. 50 is to be proved is notstated in the section. The section merely says that suchopinion is a relevant fact on the subject of relationship ofone person to another in a case where the court has to forman opinion as to that relationship. Part 11 of the EvidenceAct is headed ' On Proof '. Ch. III thereof contains afascicule of S. relating to facts which need not beproved. Then there is Ch. IV dealing with oral evidenceand in it occurs s. 60 which says inter alia :-' S. 60. Oral evidence must, in all cases whatever, bedirect; that is to say-if it refers to a fact which could be seen, it must be theevidence of a witness who says he saw it;if it refers to a fact which could be heard, it must be theevidence of a witness who says he heard it; if it refers toa fact which could be perceived by any other sense or in anyother manner, it must be the evidence of a witness who sayshe perceived it by that sense in that manner;if it refers to an opinion or to the grounds on which thatopinion is held, it must be the evidence of the person whoholds that opinion on those grounds. ' If we remember thatthe offered item of evidence under s. 50 is conduct in thesense explained above, then there is no difficulty inholding that such conduct or outward behaviour must beproved in the manner laid down in s. 60; if the conductrelates to something which can be seen, it must be proved bythe person who saw it; if it is something which can beheard, then it must be proved by the person who heard it;and so on. The conduct must be of theperson who fulfils the essential conditions of s. 50, and itmust be proved in the manner laid down in the provisionsrelating to proof. It appears to us that that portion of s.60 which provides that the person who holds an opinionmust be called to prove his Opinion does not necessarilydelimit the scope of S. 50 in the sense that opinionexpressed by conduct must be proved only by the person whoseconduct expresses the opinion. Conduct, as an externalperceptible fact, may be proved either by the testimony ofthe person himself whose opinion is evidence under s. 50 orby some other person acquainted with the facts which expresssuch opinion, and as the testimony must relate to externalfacts which constitute conduct and is given by personspersonally acquainted with such facts, the testimony is ineach case direct within the meaning of s. 60. This, in ouropinion, is the true inter-relation between s. 50 and s. 60of the Evidence Act. In Queen Empress v. Subbarayan (1)Hutchins, J.,said :-' That proof of the opinion, as expressed by conduct, may begiven, seems to imply that the person himself is not to becalled to state his own opinion, but that, when he is deador cannot be called, his conduct may be proved by others.The section appears to us to afford an exceptional way ofproving a relationship, but by no means to prevent anyperson from stating a fact of which he or she has specialmeans of knowledge.While we agree that s. 50 affords an exceptional way ofproving a relationship and by no means prevents any personfrom stating a fact of which he or she has special. means ofknowledge, we do not agree with Hutchins, J., when he saysthat the S. seems to imply that the person whoseopinion is a relevant fact cannot be called to state his ownopinion as expressed by his conduct and that his conduct maybe proved by others only when he is dead or cannot becalled. We do not think that s. 50 puts any suchlimitation. Let us now apply the tests indicated above to the testimonyof the two witnesses, Janardan Misra andDharanidhar Misra. As to Sushila Misrain, she was agedabout 43 when she gave evidence in 1946. It is unnecessaryto consider in detail her evidence, because if the evidenceof the other two older witnesses be admissible, that wouldbe sufficient to support the finding arrived at by thecourts below another evidence would also be admissible onthe same criteria as the evidence of the other twowitnesses. ;