SRI JADAV SINGH AND ANR. Vs. SRI BORHAN SINGH AND ORS.

JUDGEMENT

(1.) THE principal defendants are the appellants. The plaintiffs' suit for declaration of title in respect of properties described in lot No. 1 and lot No. 2 of schedule 2 of the plaint and for recovery of possession of the lot No. 1 and confirmation of possession or in the alternative for recovery of possession of the lot No. 2 and mesne profits past and future, has been decreed by the learned Subordinate Judge, Barh. The appellants have questioned the validity of the said decree.

(2.) THE defendants' case in short is that the genealogy given by the plaintiff's is not correct. The common ancestor Hanumant Singh had a son Sibu. Sibu had two sons Mahadeo and Butai. Butai's son was Jublal and through his wife Paro, his son Gurucharan was born. Mahadeo had two sons Ganga and Kedar Nath. Ganga had three sons Dhanukdhari, Ramsahai and Tota. Principal defendants are sons and grand sons of Dhanukdhari. According to them, they are the only surviving nearest agnate of Gurucharan after his death and after the death of Paro and they are entitled to inherit the properties belonging to Gurucharan.

(3.) THE plaintiffs have proved the deed of surrender dated 23.3.1956 (Ext. 1) and the deed of agreement dated 27.6.50 (Ext. 2) which refer to the geneology. They have also proved an affidavit filed by Paro on 18.8.56 in a proceeding under section 144of the Code of Criminal Procedure (Ext. 25) and another affidavit filed by Paro on 26.6.1956 in a proceeding under section 145of the Code of Criminal Procedure (Ext. 25(a). They have also proved the geneology prepared by one Munu Singh (Ext. 16). Besides these documents, they have also led oral evidence and examined P.Ws. 5, 6, 8, 9, 10, 11, 12 and 26 on the question of relationship of the plaintiffs with Gurucharan and Paro. The defendants on the other hand have proved a claim filed by the plaintiff's (Ext. 'O') and deposition of Gurucharan Ext. 'X' in the suit instituted on the basis of Ext. 'C'. Besides these two documents, they have also examined D.Ws. 1, 7, 8, 9, 10 and 11 to prove the relationship of the principal defendants with Gurucharan and Paro. For a proper adjudication on the question of relationship and the correctness of the genealogy of the parties, learned counsel appearing on behalf of the parties, have agreed, the evidence just noticed by me alone has to be considered. Mr. Shiva Nandan Roy. learned counsel for the appellants has contended that Exts. 2, 25 and 25(a) are inadmissible. He has placed reliance upon the provisions under sections 32(5) and (6) and submitted that statements in Exts. 2, 25 and 25(a) by Most. Paro on the instance of relationship or relating to family affairs will be admissible, since she is dead, only when such statement was made before the question in dispute was raised. He has submitted that Ext. 2 may stand the test of a deed relating to family affairs and thus may fall under section 32(2) of the Evidence Act but the statements made therein shall not be admissible unless the deed is shown to be one executed before the question in dispute was raised. Exts. 25 and 25(a), no doubt, are statements by Most. Paro who is dead and thus may fall under section 32(S) of the Evidence Act but for the same reason that the statements made therein were not made before the question in dispute was raised, are inadmissible. In Kalidini Venkata Subbaraja and others versus Chintalapati Subbaraju and others (AIR 1968 S.C. 947) it has been pointed out that both sub -sections (5) and (6) of section 32declare that in order to be admissible, the statement relied on, must be made ante litem mortem by persons who are dead that is to say before the commencement of any controversy actual ox legal upon the same point. The word 'before the question in issue was raised' does not necessarily mean before it Was raised in particular litigation it which such statement is sought to be adduced in evidence. A passage from Halsbury's Laws of England, 3rd Edition, Vol. 15 p. 308 has been quoted with approval which runs as follows : - -