M.H. Beg, J. - (1.) THIS is a Defendant's appeal arising out of a suit for possession over property described in the plaint. The Plaintiff's case was that the Plaintiffs, together with Defendants 2 and 4 Defendants 7 to 10, were the nearest reversioners of Kashi Ram deceased, the last male owner of the property who died in 1918. The abovementioned Kashi Ram left a widow, Srimati Chandra Mati, and a daughter, Srimati Kaushalya. Srimati Chandra Mati had a Hindu widow's limited rights only in the property left by Kashi Ram. In 1926, the daughter, Smt. Kaushalya, married Defendant No. 1, and Smt. Chandra Mati executed two sale deeds, Exs. 4 and 5, in favour of her son in law, Defendant No. 1, by which she sold some of the properties which came to her from her husband. The object of this sale was to pay off decretal amounts due to Defendants Appellants as a result of decrees obtained on the basis of certain bonds and promotes. The sale -deeds in favour of the Defendant -Appellants were executed on 7th March 1935 and 10th June 1937. Smt. Chandra Mati is also alleged to have executed seven other sale -deeds in favour of Defendant No 2. All these sale deeds were in respect of properties which were owned by her husband Kashi Ram. Certain sale deeds were also executed in favour of Defendant No. 4. Other transactions also took place in respect of the property which originally belonged to Kashi Ram deceased. Hence, the suit filed by the Plaintiff for possession and for setting aside the transactions alleged to be illegal, Smt. Chandra Mati having died in the year 1942.
(2.) THE contesting Defendants Nos. 1, 5 and 6 denied that the Plaintiffs or the other Defendants were the nearest reversioners of Kashi Ram or that they were entitled to succeed to anything owned and possessed by him. They also pleaded that the transfers made in their favour were for legal necessity and that the suit was barred by time, but these questions have been decided in favour of the Plaintiffs. Both the courts below have gone into the evidence at some length and have come to the conclusion that the Plaintiffs are descended from Nidhi Ram, who was the brother of Gita Ram, and that both Nidhi Ram and Gita Ram were sons of one Tribhi Ram. This Tribhi Ram had an alias which was "Dina." His grandson, according to the concurrent findings of the courts below was Datram, the father of Kashi Ram mentioned above. In other words, according to the concurrent findings of the courts below, the Plaintiffs and the Defendant No. 2 and Defendant No. 4 and Defendants Nos. 7 to 10 are descended through Nidhi Ram who was the brother of Gita Ram. On the other hand, the case of the contesting Defendants is that Gita Ram was the son of a "Dina'' who was no relation of Tribhi Ram and that Nidbi Ram and Gita Ram were not brothers. It has been argued, in the second appeal before me on behalf of the Defendant -Appellants, that the courts below have erred in relying upon inadmissible evidence in giving their findings that Nidhi Ram and Gita Ram were real brothers descended from Tribhi Ram. The two documents which are said to be excluded from evidence are a letter Ex. A, written by one Pandit Tara Datt Uniyal Shastri in 1937, and an agreement, Ex. M, dated 21st July 1928, executed by all the reversioners of Kashi Ram with the object of settling their differences and providing for the maintenance of Smt. Chandra Mati, the widow of Kashi Ram. The argument advanced on behalf of the Defendant -Appellants is that neither Ex. A nor Ex. M were admissible under the provisions of Section 32 of the Indian Evidence Act. This necessitates a consideration of the nature of Exs. A and M and of the provisions of Section 32 of the Indian Evidence Act.
(3.) EX . A, which is the letter of Pt. Tara Datt Uniyal Shastri written in 1937, in reply to a letter written by the Plaintiff Rup Chandra. It is alleged that Pt. Tara Datt Uniyal Shastri, a teacher of Sanskrit in Chopra High School, was specially interested in preparing and keeping genealogical tables of Uniyal Brahmins. It was alleged by Rup Shanker, Plaintiff that his uncle had suggested to him to write to Pt. Tara Datt Uniyal Shastri in order to get the necessary information as he was a specialist possessed of all the knowledge relating to the pedigrees, and genealogies of Uniyal Brahmins. The family of Kashi Ram was a family of Uniyal Brahmins. In reply to this letter, Pt. Tara Datt Uniyal Shastri wrote stating that he had met Kashi Ram deceased while returning from Badrinath and had collected the information regarding the pedigree of Kashi Ram from Kashi Ram deceased himself. He also stated in that letter that he did not know about other Uniyals. This expression of ignorance about other Uniyals perhaps indicates that the letter was an honest response to a genuine enquiry. In any case, the letter has been accepted by both the courts below as a genuine and honest letter written by late Pt. Tara Datt Uniyal Shastri. The only question which has been argued before me, with regard to this letter, is that it is not admissible under the provisions of Section 32 of the Indian Evidence Act. The first condition that the maker of the statement should be dead or otherwise incapable of appearing in the witness box is certainly satisfied in the case of the writer of this letter who is dead. It was argued that such a statement must be a direct statement and not brought in indirectly through the statement of another dead person. The argument was that Pandit Tara Datt Uniyal Shastri was only conveying the information possessed by Pt. Kashi Ram and not giving his own views or knowledge at all. Hence, this statement, it was argued, did not fall within the purview of Section 32 at all. A number of authorities were cited by both sides. Mr. N.D. Pant, for the Defendants Appellants relied on : AIR 1931 Oudh 177 (1) (Mohammad Azim Khan and Ors. v. Raja Saiyid Mohd. Saadat Ali Khan and others) and AIR Rajasthan 45 (2) (Kishan Lal v. Sohanlal and Ors.) and also on : AIR 1947 Oudh 164 (3) (Mr. Jainath Kuer and Ors. v. Danpal Singh and Ors.). Mr. L.M. Pant for the Plaintiff -Respondents relied on : AIR 1952 Ori 75 (4) (Natbar Parichha and Ors. v. Nimal Charan Misra and Ors.) and, ILR. 30 All 510 PC (5) (Kalka Prasad and Ors. v. Mathura Prasad and Anr.) and, AIR 1959 SG 914 (6) (Dologobinda Paricha v. Nimal Charan Misra and Ors.). In none of these cases was the question raised it the precise form in which the Appellant's counsel has raised it in the present case. The learned Counsel for the Appellants, very logically, adopted the principle contained in Section 60 of the Indian Evidence Act. His argument was that all evidence which is hearsay is excluded. This is a logical result of the argument he advanced. Section 60 of the Indian Evidence Act, however, only bars hearsay evidence given by means of "oral evidence". Oral evidence is defined in Section 3 of the Indian Evidence Act as 'evidence given by witnesses who have adopted orally in court'. Now, statements Under Section 32 Indian Evidence Act may be brought upon the record either by means of writings, which are documentary evidence, or by means of oral evidence. All that Section 32 requires, as the first condition of admissibility, is that the statement sought to be admitted must be of a dead person or of a person otherwise not available as a witness. If such a statement falls within the purview of Section 32 Clause (5) of the Evidence Act, it becomes admissible irrespective of whether the information given by a person possessing "special means of knowledge" was based on hearsay or upon direct or personal knowledge. In the present case, the source of information is said to be late Pt. Kashi Ram himself from whom the Defendant -Appellants claimed. I can see no bar in Section 32 Clause (5) Indian Evidence Act against any particular source of information. Even if the information derived is based on hearsay, there is no statutory bar against the admission of such a statement. The statement would be inadmissible if it was not based on special means of knowledge possessed by the maker of the statement. Again, the statement would be inadmissible if it was not made before the question in dispute arose. On both these two points the findings of the courts below are against the Defendants -Appellants. Nevertheless, I have examined the statements closely. The reasons why all the tests of admissibility are passed by Ex. A will become clearer from my reasons for holding Ex. M to be admissible.;