Holding

Ex. J is admissible but carries no probative value, and the plaintiffs failed to prove the crucial genealogical links, so their title claim fails.

Summary

The State of Bihar appealed against a Patna High Court judgment that upheld the title suit of Radha Krishna Singh, who claimed to be the nearest reversioner of the late Maharaja Harendra Kishore Singh's estate. The dispute centered on whether the plaintiffs could prove the genealogical links connecting them to the Maharaja, particularly the relationships between Gajraj Singh, Ramruch Singh, and Bansidhar Singh. The Supreme Court held that while Ex. J, an 1810‑13 report by a serishtadar, was admissible under Section 35 of the Evidence Act, it had no probative value because it did not disclose its source or verify its contents. The Court found the oral testimonies unreliable, the majority of documentary evidence either inadmissible or irrelevant, and concluded that the plaintiffs failed to establish the essential genealogical links. Consequently, the State's appeal was allowed and the plaintiffs' suit was dismissed.

Issues considered

The admissibility of Ex. J under Section 35 of the Evidence Act, 1872.
The probative value of a public document that lacks source verification.
The applicability of the doctrine of post‑litis motam to genealogical statements.
The burden of proof and required evidence to establish a pedigree in a title suit.
The admissibility of judgments not inter parties under Sections 40‑43 of the Evidence Act.
The requirements for a claim of escheat by the State.

Legislation cited

Indian Evidence Act, 1872s. 13, s. 32(5), s. 35, s. 40, s. 41, s. 42, s. 43

Subjects

genealogyevidenceadmissibilitypublic documentsection 35post‑litis motamtitle suitescheatinheritancepedigree

Judgment

808
STATE OF BIHAR
A
v.

RADHA KRISHNA SINGH & ORS.

April 20, 1983
B
[S: MuRTAZA FAZAL Au, A. VAllADARAJAN
AND V. BALAKRISHNA ERADI, JJ.]

..-
Genealogies considerations to be kept in view while considering.·
c Evidence Act; 1872-Entries in public records-Prepared by a public officer
in discharge of his official duties-Probative value of-Sections 13, 40, 41, 42 and
43-J?ecitale in judgments not inter partes-Section 32-Doctrine of post Iitem
motafll-Appreciation of oral evidence in the 1natter of proof ofpedigree-Hearsay
· evidence seCtio11 60-S.tatement of person deposing a/act known from a different
source-How far can be relied on Escheat-State not entering apperance-P/ea-Jf
D can be arcepted without public notice to persons interested.

Interpretation-Dictionaries-How far can be used.

Maharaja Hariodra Kishore Singh was the direct descendant of Debi
Singh who was the son of Bansidhar Singh. Maharaja Harindra Kish ore Singh
died issueless leaving behind vast properties in the states of Uttar Pradesh and
E :Bihar. The original plaintiff, Bhagwati Prasad Singh was the direct descendant
of Ramruch Singh but his relationship with Bansidhar Singh had not been
established. The plaintiffs-respondents basing their title as the nearest
reversionors of Maharaja Harindra Kishore Singh claimed that they were
entitled to immediate possession of the properties after the death of the widows
of the Maharaja.
F The Trial Court held that the plaintiffs had not been able to prove any '
<
linkage or connection between Ramruch Singh and Bansidhar Singh. But the
majority of the High Court held that all the links were clearly proved by the
plaintiffs and that it had been found to their satisfaction that.Ramruch was the ...
son of Bansidhar. It also held that Ex. J which Was an entry made by a Public
Officer in a register in the discharge of his official duties squarely falls within
G the four corners of section 35 of the Evidence Act and, is therefore, admissible
in evidence. The appellants however, claimed that it was not admissible in
evidence.

HELD : In a hotly contested point, there is a tendency on the part of
an interested person or a party in order to grab, establish or prove an alieged
H claim, to concoct, fabrica~e or procure false gellc·alogy to suit their ends. In
relying on the genealogy Put forward, courts must guard themselves against
falling into the trap laid by a series of documents or a labyrinth of seemingly
Qld ~enealogies to support their rival clain1s. (820 H, 821 A]
'

i
The Prillciples governing such cases are•:
A
(i) Geneaiogies admitted or proved to -be old and relied on in previous
cases are doubtless relevant and in some cases may even ·be conclusive of the
facts proved, but there are several considerations which must be kept In mind
viz. :

(a) Source of the genealogy and its dependability.
t B
(b) Admiosibility of the genealogy under the Evidence Act.

(c) A proper use in decisions or judgments on which' reliance is
placed.

(d) Age of genealogies. c

"" . (e) Litigations where such · genealogies have been accepted .or
rejected. [821 B-E]

(2) On the question of admissibility the following tests ·must be
adopted ; D ·

(a) The genealogies of the families concerned roust fall within the
four-corners of s. 32(5) or s. 13 of the Evidence Act.

l (b) They must not be hit by the doctrine ofpost /item motam.

(c) The genealogies or the claiffis cannot be proved by recitals, · E
depositions or facts narrated in the judgment which have been
held by a long course of decisions to be inadmissible.

(d) Where genealogy is proved by oral evidence, the said evidence
must clearly shew special means of knowledge disclosing the
exact source, time and the circumstl\nces under which the
F
knowledge is acquired, and this must be clearly and conclusively
proved. [821 B-HJ

The majority view that, Ex. J. is admissible js correct. Se•tion 35 of
the Evidence Act requires the following conditions to be fulfilled before a
document can be admissible under this section :
G
(I) the document must be in the nature of an entry ln any public
or other official book, register or record,

(2) it must stat� a fact in issue or·a releva.nt f�ct,

(3) the entry must be made by a public servant lo the discharge of ·H
his official duties or in performance of his duties especi�lly
enjoined by the law of the country in which the relevant entry
is kept. [829 H, 830 A·B]
•

810 SUPREMB COURT REPORTS {19s~j 2·s.c.R.

A pcrusel of Ex. J. clearly ·shows that it is a report made by an officer
A of the GOverment in discharge of his official duties. It was wriitcn by a
serishtadar, a Governm~nt officer, on t~e direction of a high gover~ental 1 -.. .__
authority. Ex. J. being an entry in a Register mad\': by a public officer in th'e
discharge of his duties. squarely falls within the four corners of s. 35 of the
Evidence Act. It is clear that the officer was entrusted with the task of
ascertaining. the possession of various landlords for the purpose of taking
suitable steps in the matter. It mentions a number of persons through whom
B the plaintiffs clain1 their title and, therefore, it relates to a relevant fact. '.fhe
question as to whether the relevant fact iS proved or not is quite a different~
matter which has nothing to do with the (ldmissibility of the document but
which assumes importance only when the court considers the probative Value
of a particular document. In short, all the essential conditions of section 35 --4
are fully complied with. [830 C-E] ..
c Admissibility of a docume~t is On~ thi~g and its probative vcilue, quite
another : a docunient may be admissible and yet mey not carry any Conyiction
and weight or its probative value may be nil. [832 AJ

In the instant case Ex. J. has no probative value because it does not
disclose the source from which the Sheristadar co11ected his facts nor does it
D show whether he consulted either conteinporary or previous records or entries
therein to satisfy himself regarding the co9l-ectness of various statements
pertaining to the genealogy of landlords Who were in possession of the lands.
Although he has stated that he had taken these facts from an account book, he
had not given any description or the nature of the account book and its
contents. The fact of the matter, tberefore, is that there was no proper
E verification by the Sherishtadar regarding the facts stated in· the Report ·from
any source. Therefore, it is difficult to place any reli~nce on the document
even though,it may be admissible in evidence. [832 c..:01

P.C. Purus/lot/lama Reddiar v. S. •Perumal [1972] 2 SCR 646,
applied.

F Ghulam Rasul Khan v. Secretary of State for India in Council 52
I.A. 201. distinguished.

Cuar Shyam Pratap Singh v .. Collector of Etawah A.l.R. 1946 PC
103; Meer Usd-oollah v. Mussumat Beeby Imanian, widow of Shah
Khadim Hossain, 1 M.l.A. 19 held inapplicable.

G A report based on hearsay evidence or on the irtfortnation gi v·en by an
illiterate person cannot be admissible even under section 35 of the Evidence
Act. [837 G] •

· Brij Mohan Singh v. Priya Brat Narain Singh [1965] 3 SCR 861,
H followed.
'
In the instant case the Sherishtdar had to depend on some unknown
persons who were not mentioned iri it to gather "his facts and so even if it is
li1ltAR V, MDiiAKR1sllNA
admissible its probathe value would be almost zero. Ex. j, was admissible.
because its author is nO longer alive. It contains illformation which· is
A
based on what he may have heard from third parties and therefore much value
cannot be attached to such a report. [S38 C, 839 BJ

Brain v. Preece Lord, 152 English Reports 1017; Mario Mangini Stur/a &
Ors. v. Filippo Tomasso Mattia Freccia, Augustus Keppel Stevenson & Ors., '1880
A.C. 623; Mercer v. Denne (1905] 2 Ch. 538, referred to. B
Briefly stated the law relating to the admissibility and probative value of
the Ex. J iS:
•
(i)" The exhibit is clearly admissible under s. 35 of the Evidence Act,
and the finding of the High Corlrt oh this point is correct ;
c
(ii) The Sheristadar, started writing EX. J in the year 1810 and
~i;u~pleted it in 1813;

(iii) It n1entions names of some persons who, according to the
plaintiffs, were.their ancestofs, but on carefully analysing the D
document it is not very clear as "to how Ramruch Singh was·
connected with Bansidhar ·singh ·or Debi Singh.

(iv) Its probative value is insignificant and is of no assistance in
proving the plaint genealogy~
E
(v) 1t was a part of the record of Mirzapur·, Collectorate and was
sutnmoned therefrom.

(vi) A bare perusal of the exhibit sfiows that the Sherisbtadar was
directed to embark on· an en.quiry regarding the persons· who"
, were in actual possession of lands at the relevant time and it
( was not a part of his duty to ernb'afk o~any enquirY regarding F
the title of the persons holding the 'lands, nor did he attempt to
do so. "The heading of Ex. J itself shows that it is a report
regarding the. possession of Taluqa Majhwa. (841 A-Fl

Even if the exhibit is taken into consideratiOn, it will prove not the
title of the plaintiffs-respondents but only the possession of lands held by G
some of thei~ alleged ancestors. In other Words, the· documents will not be
any evidence of title in the suit out of ·which tbe present appeals arise which
are mainly concerned with the question of title and not with the question of
possession. This apart the sche~e followed and the f!10dus operandi adopted
by the plaintiffs are based on an incorrect transl.ation and. wrong interpretation
or' the meaning of actual words in Persian. [841 G-H] ff
Judgments of courts are admissible in evid;,nce_ unde; the provisions ·of
sections 40, 41 & 42 of tho Evidence Act. Section 43 provides that those
812 SUPREME COURT REPoRTS tJ9B3) i S.C.R.
Ju.dgments which dQ not fall within the four corners of sections 40 to 42 are
A inadmissible unless the existence of such judgment, order or detree is itself a -T -
fact in issue or a relevant fact under some oth~r provisions of Evidence Act.
Some Courts have used section 13 to prove the adn1issibility of a judgment as
coming under the provisions of section 43. But where there is a specific
provision covering the admissibility of a docun1ent it h not open to the Court
to call into aid othec general.provisions in order to make a particular document
admissible. In other- words, if a judgment is not admissible as not falling
B within the ambit of sections 40 to 42 it must fulfil _the conditions of section 43;
otherwise it cannot be relevant under sectiOn 13 of the Evidence Act. The
words "other provisions of this Act" cannot cover section 13 because this
section does not deal with judgment.s at all. [860 H, 861 A, 861 C-D]
•
A judgment in rcn1, like judgments passed in probate, insolvency,
c matrimonial or guardianship. proceedings is admissible in all cases whether
such judgn1ents are Inter parteS.or not. Jn the instant case, however, all the
docu1nents consisting.of judgn1cnts filed are riot judgn1ents in rem, and there-
fore, the question of their admissibility on that basis does not a.rise. The judg-
ments filed as Exhibits in this case arc judg.nents in persona111, and therefore,
they do not fulfil the conditions mentioned in section 41° of the Evidence
Act. [861 E-F]
D
John Cockrane v. Hurrosoondurri Debia & Ors. 6 M.I.A. 494;
Jogendro Deb Roy Kut v. Funind10 Deb Roy Kut. 14 ;.-1.1.A. 367;
Gujju Lall v. Fatteli Lall ILR 6 Cal. 171; Maharaja Sir Kesha Prasad
Singh Bahadur v. Bahuria Mt. Bhagjogna Kuer & Ors .AIR 1937 PC 69,
referred to.

E Gadadlrar Chowdhury and Ors. v. Sarai Chandra Chakravarty and
Ors'. 44 CWN 935, Seethapati Rao Dora v. Venkanna Dora & Ors. ILR
4~ Mad, 332; approved.

It is also well settled that statements or declarations before persons of
competent knowledge made ante liten1 mota111 are receivable to prove ancient
F rights of a public or general nature. [865 H] '
•
The admissibility of such declarations is, however, considerably
weakened if it pertains not to-public rights but to purely private rights. It is
equally well settled that declarations or staten1ents made "post liten1 1nota1n
would not be ad1nissible because in cases or proceedings taken or declarations
made ante liten1 1nota1n, the ele1nent of bias and concoction is .elimina"ted.
G Before however, the staten1ents of the nature mentioned above can be
admis;ible as being ante /item n:otam they must not only be before the actual
existence of any controversy, but should be n1ade even before the commence ..
ment of legal proceedings. [866 C·E] -

This position however. cannot hold good of statements made post lite1n
H 111ota1n which would be clearlyinadmissible in evidence. The reaso-':1 for this
rule seems to be that after a dispute has begun or a legal proceeding is about
to commence, the possibility of bias, concoction or putting up false pleas
~annot be ruled out. [866 G-H]
•
BIHAR V. RADHAKRISHNA 813

Kalka Prasad and Ors. v. Mathura Prasad !LR 30 All. 510, Hari
Bakh v. Babu Lal & Anr. AIR 1924 PC 126; Dolgobinda Paricha v. A
Nimai Charan Misra & Ors. [1959] Supp. 2 SCR 814; and Ralidindi
·Venkata Subbaraju & Ors. v. Chintalpati Snbbaraju & Ors. [1969] 2
SCR 292, referred to.

(i) A judgment ifi rem e.g, judgments or orders passed in
admirally, probate proceedings, etc, would always be adn1issible
irrespective of whether they are inter part es or not ; B

(ii) judgment in p,.rsonam not inter partes are not at. all adg1issible
in evidence except for the three purposes mentioned above. ·

(iii) On a parity of aforesaid reasoning, the recitals In a judgn1ent
like findings given in appreciation of eVidence n1ade or argu· c
ments or genealogies referred to in the judgrqent would be
wholly in admissible in a case where neither the plaintiffs nor
the defendants were parties.

(iv) The probative value of doCuments which, however ancient they
may be, do not disclose sources of their inforn1ation or have D
not achieved sufficient notoriety, is precious little.

(v) Statement!>, .declarations or depositions, etc., would not be
admissible if they arc post lite111111otan1. [869 A-F]

In the instant ca~e, a detailed examination of the documents shows that
the pJaintiff~ as pointed out by the dis~enting judge have not proved that they E
are in any way directly connected wiih Ramruch Singh, Bansidhar Singh or
Debi Singh. The majority on the other hand seems to have been greatly in-
fluenced by the age of the documents or thefr nature rather than their contents,
·relevancy and weight. The majority also did not focus attention on the most
vital question whether or n.6t the plaintiffs have Proved that Gajraj Singh, the
ancertor of the plaintiff, was in any way connected with Ramruch Singh, Devi
Singh and Bansidhar Singh. (869 G-H, 870 A-Bl
F

In considering the oral ~vident;:e regarding a pedigree a purely n1athema-
tlcal approach cann'ot be made because where a long line of descent has to b~
proved spreading over a century, it is obvious that the witnesses. who are
examined to depose to the genealogy would have to depend on their special ·
means of kflowledge which may ha\e con1e to them through their ancestors G . ._
but, at the same time, there is great ·risk and a serious danger involved. in
relying solely on the evidence of witness given fn.:>n1 pure memory beca~se
the witness who ~re interested normally have a tendency to draw more from
their imagination or turn and twist the facts which tbey n1ay have heard from
th~ir anceStors in order to heIP the parties for whon1 they are deposing. The
court, must therefore, safeguard that the evidence of such witness may not be H
accepted as it is based purely on imagination or !ln imaginary or illusory
source of information rather than special means of knowlege as required by
law. TJi.e or~l testimony of the witne§s Qn (hi$ µJ.:,:itter ~s boun<;l to b~ hearsay
814 SUPREME COURT REPORTS [I 983) 2 s.c.R.

and their evidence is admissible as an exception to the general rule where
A hearsay evidence is not admissible. [888 E-H, 889 A]

In ~the appreciation ·of evidence of such witnesses, the principles to be
borne in mind are :
1
(1) The relationship or the connection however close it may be,
which. the witness bears to the persons whose pedigree is sought
B to be deposed by him. · ·

·(2) The nature and character of the.special means of knowledge
.through which the witness has ·come to know about the
pedigree.

c (3) The interested nature of the witness concerned.

(4) The precaution which must be taken to rule out any false
statement made by th.e witness post /item 1notam or one which
is derived not by means of special knowledge but purely from
his imagination, and ~

(5) The evidence of the witness must be subetantially corroborated
as far as time and memory admit. [889 [B-E]

Bahadur Singh & Ors. v. Mohan Singh & Ors. 29 LA. I; Pershad
Chowdhry & Ors. v. Rani Radha Chowdharain & Ors. 31 1:A. 160; )
Abdul GJiaiur & Ors. v. Hussain Bibi & Ors. 58 I.A. 188; Mewa Singh
& Ors. v. Basant Singh & Ors. AIR 1918 P.C. 49; Bhojraj v. Sita Ran1
1
E & Ors. AIR 1936 PC 66, referred to.

Escheat:

When a claim for escheat is put forward by the Government, the onus'•
lies heavily on the appellant to pro\'e the absence of any heir of the respondent
anywhere in the world. Normally, the court frowns on the estate being taken
F by escheat unless the essentiat·conditions for escheat are fully and completely
sa'isfied~ Fort.her, befor~ the plea of escheat can be entertained, there must
be a public notice given by the Government so that if there is any claimant
· anywhere in the country, or for that matter in the world, he may come forward
to contest·the claim of the State. [919 E•F]

G In the instant case,, the States of Bihar and Uttar Pradesh merely
satisfied themselves by appearing to oppose the claims of the plaintiffs-
respondents. Even if they succeeded in showing that the plaintiffs were not
the nearest reversioners of the late Maharaja, it does not follow as a logical
corollary that the failure of the plaintiffs claim would lead to the irresistible
inference that there is no other heif who could at any time come forward to
H claim the pro~erties. [919 F-G]

Dictionaries can always be referred to in order to ascertain -not on~y
\h~ meaning of a word ~ut ?ls9 the ~eneral use of it. [842 F]
BIHAR v. RADllAKRISHNA (Fazal Ali, I.) . 815

Coca-Co/a Company of Canada Ltd. v. Pepsi-Cola Company of Canada
r · Ltd., AIR 1942 PC 40 referred to. A
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 494-496
of 1975.

From the Judgment and Decree dated the 15th December,
1982 of the Patna High Court in First Appeal Nos. 85, 86 & 87 of
B
1966 respectively.

Dr. L.M. Singhvi, S.C. Mishra, U.P. Singh, S.N. Iha and L.K.
Pandey for the Appellant.
c
V.M. Tarkunde, U.R.La/it, D.N. Goburdhan and D. Goburdhan
for Respondents Nos. 5-22.

Dr. Y.S. Chiiale and Mrs. 'Sobha Dikshit for the State of U.P.
D
S.K. Verma for the Intervener.

< The Judgptent of the Court was delivered by
. .
....
FAZAL Au, J. These appeals are directed against a judgment
of the Special Bench of the Patna High Court by which the High
Court decreed title suit No.5/61 after reversing the Judgment of the
E •
trial court. It appears that after the death of Maharaja Harendra
Kishore Singh (hereinafter referred to as the 'Maharaja') who died
lssueless on the 26th of March 1893, a serious dispute arose about
the impartible estate left by him. The Maharaja claimed to be a direct ·
descendant of Raja Hirday Narain Singh who was the admitted owner
of the properties. Several persons came forward with rival claims of
being the heirs to the properties left by the Maharaja which consisted
of immoveable arid moveable properties, such as lands, houses,
jewellery, etc. As a result of the hot contest by. each of the claimants,
one suit was filed at Varanasi being T.S. No. 3/55. That stiit was filed
G
by one Ram Bux Singh who claimed to be the nearest reversioner of
the late Maharaja. That suit, however, appears to have died its
natural death during the preliminary stages aud was ultimately with- . ·
drawn on April 9, 1956, leaving only three claimants in the field.
H
Another suit was filed on 16th August 1955 in the Court of
Sub-Judge, Patna ':)lich was rel;listered as T.S. :t<o. 44/1955. T!W
816 . SUPREME COURT RE)?ORTS (1983) 2 S.C.R.

claimant in this suit was one Suresh Nandan Singh of Sheohar who·
A had put in his claim before the Board of Revenue which had taken
over the management of the entrie properties after the death of the
widows of the Maharaja.

The third suit being T.S. No. 25/SS was filed by two sets of
B ' entered into some agreement inter-Se. That suit
plaintiffs who had
was filed in the Court of Sub-Judge, Patna on April 11, 1958. In
that suit, the main claim was put forward by Raja Jugal Kishore Singh
who claimed to have succeeded to the gaddi of the Bettiah Raj in the
capacity of putri ka putra of Raja Dhrub and on the· extinction of
the line.of Raja Delip Singh by reason of the death of Maharaja
1
c Ha~endra ·Kishore Singh, the right devolved on the plaintiff, Ambika
Prasad Singh.

The fourth suit was filed on March 12, 1959 in the court of
Sub-Judge, Chhapra. which was later transferred to the court of
Sub-Judge, Patna and renumbered as T.S. 5/1961. In this suit also,
D there were two sets of plaintiffs-one consisting of plaintffs who had
entered into a champartus agreemen\ with the other set of plaintiffs.
In this suit, the principal plaintiffs,· Shri Rad ha Krishan Singh, one
of the sons of Bhagwati, Prasad Singb., claimed to havG succeeded to >
the estate of the late Maharaja as his nearest reversioner.
E
• We might mention here that the main . contest before us has
been between the plaintiff, Radha Krishan Singh (hereinafter referred
to as the 'plaintiff') and the State of Bihar, supported by the State of
Uttar Pradesh. So far as the other two suits were concerned they were
dismissed both by the trial court and the High Court but the suit
F filed by Radha Krishan Singh (T.S. 5/1961) was decreed by the High
Court with a majority of z:l Mr. Justice G.N. Prasad, with whom
Mr. Justice A.N. Mukherji agreed, reversed the judgment ·of the
Subordinate Judge and derceed the suit of Radha Krishan Singh and
rejected the claim of the State of Bibar. Mr. fostice M.M. Prasad,
G however, took a different view and agreed with the trial court holding
that ·the suit of the plaintiff was rightly dismissed. He accordingly
gave a dissenting judgment dismissing the usit plaintiff.

It is not necessary for us to embark on the history and other
H circumstances of the case because Justice G.N. Prasad bas dextrously
detailed the facts and circumstances of the entire ·case and has can-
didly narrated the historical events leading to the various crucia\
s !ages throullh which the litigation regarding th; disputed {lroperties
BIHAR v. RADHAKIRSHNA.(Faza/Ali, i.) 817

had passed. We, therefore, need not repeat what has already been
fully discussed by the High Court. Suffice it to say that the eventful A
story .of the present litigation opens with the death of Maharaj a
Harendra Kishore Singh which took a more serious turn when his
two widows, Maharani Sheoratan Kuer died on March 24, 1896 aµd
Maharani Janki Kuer was declared incompetent to manage the estate,
as a result of which the management of the entrire estate was taken B
over by the Court of Wards. As the properties in question were
situated in both the States of Bihar and Uttar Pradesh the Courts of
Wards ofBihar and Uttar Pradesh jonitly carried on _the management
of the properties. Maharani Janki Kuer resided at Allahabad and died
_childless on November 27, 1954.
c
After her unfortunate death or even before; interested persons
started casting their covetous and avaricious eyes on 'the huge
properties left by the late Maharaja and litigation started .by putting
forward rival .and conflicting claims thus making strenuous efforts to
"turn chance into good fortune". The last and inevitable step of the ·D
drama long_ in process reached its climax with the death of
Maharani Janki Kuer when as many as four suits, as mentioned
above, ·were filed claiming the properties· of the Maharaja, some
as reversioners and some as put ri ka putra, etc.

We would like to make it clear that the three appeals, i.e., E
civil appeal Nos. 494 to 496 of 1975, have been filed by the State of
Bihar arraying the plaintiffs and other claimants as the respondents in
each of the appeals. The pivotal dispute centres round appeal No.
494 betweenthe State. of Bihar, supported by the State of Uttar
Pradesh on one side and the plaintiff, Radha Krishan Singh and his
champarters on the other. F

· We, therefore, intend to discuss and analyse the evidence - oral
and documentary-only so far as the parties in appea] No. 494 are
concerned.
G
Before dealing with the oral, documentary and circumstantial
evidence it may be necessary to refer briefly to the background of the
_case which has doubtless been fully discussed by the courts below.
_Some of the historical aspects, however, have to be reiterated in
·order to understand the view which we take in this case. H
Coming to the history of the Bettiah Raj, we have to go back
to the 17th century. The undisputed position js that Bettiah Ra,j
,
' . SIS SUPREME COURT REPORTS (1983) 2. S.C.l!..

was an impartible estate having properties'in the States ofBihar and
A Uttar Pradesh. The Raj was established by one Raja Ugra Sen as far
back as the middle of 17th century and was commonly known as the
Riyasat of Sirkar of Champaran, consisting of four parganas, viz,.
Majhwa, Simrown, Babra and Maihsi. Raja Ugra Sen was succeeded
by Raja Dalip Singh, Raja Gaj Singh and ultimately by Raja Dhrub
Singh in the year 1715. Raja Dhrub Singh died in the year 1762
B without leaving any male issue, but leaving a daughter named Benga
Babui who had married one Raghunath Singh, a Bhumihar Brahmin
of Gautam gotra. On the death of Raja Dhrub Singh, his daughter's
son, Raja Jugal Kishore Singh entered into possession of the estate
of Bettiah Raj and was in possession thereof at the time when the
c East India Company assumed the Government of the province. The
Company could not tolerate any resistance from the Rulers and a
battle was fought in the course of which Raja Jugal Kishore Singh
was driven into the neighbouring State of Bundelkhand in 1766 and
the entire estate o' Bettiah Raj was seized and placed under the
management of the officers .of the Company. During the absence of
D Raja Jugal Kishore Singh, Sri Kishen Singh and Abdhoot Singh who
were· the sons · of Prithi Singh and Satrajit Singh respectively and
were younger brothers of Raja Dalip Singh, enjoyed the confidence )

of the Company and were placed incharge of the Bettiah Raj. How-
ever, in 1771, the Company reinstated Raja Jugal Kishore Singh
E obviously because he probably tendered his apologies and made a
solemn promise to be Joyal to the Company, as a result of which
negotiations started between the Government and Raja Jugal Kishore
Singh regarding the estate in question and ultimately he v,:as allotted the
Z.amindari of Majwha and Simrown which formed part of the Bettiah
Raj estate and Babra and Maihsi were left in the possession of Sriki-
F shen Singh and Abdhoot Singh. The East India Company had formally
announcecd this arrangment by a decison dated July 24, 1771. Soon
thereafter, there was some dispute between Raja Jugal Kishore Singh
and the Company, as a result of wh;ch he was again dispossessed by •
the Company as he failed to pay the Government revenue. Thus, the
entire Sirkar of Champaran passed into the possession of the Govern-
G
ment and was held by small farmers on temporary settlements. Raja
Jugal Kishore Singh received an allowance for maintenance and died
sometime in the year 1783, leaving a son named Bir Kishore Singh
who wa> succeeded by his eldest son, Maharaja Anand Kishore
H Singh ·in 1790. Upon his death, leaving no issue, he was succeeeded
·by his younger brother, Maharaja Nawal Kishore Singh who was
~ucceeded by his eldest son, Rajendra Kishore Sin~h who was

- ...
BIHAR v. RADHAKRISHNA (Fazal Ali, J.) 819.

ultimat~ly succeeded by Maharaja Harendra Kishore Singh, whose
estate is the subject matter of this suit. A

On 22nd September, · 1790, Lord Cornwallis recommended to
the Board of Revenue that estate of Majhwa and Simrown should
be restored ro Raja Jugal Kishore Singh but as he had died by this,
time, the Company directed that the· heirs. of Raja Jugal Kishore
Singh, Srikishen Singh and Abdhoot Singh be restored the possession
B
of their respective Districts. Bir Kishore Singh, was not at all satis·
lied with the decision of the· Board, mentioned above, because he .
claimed the entire province (Sirkar·or Champaran) but in obedience
to the. order .of tbe Governor-General, he took possession of the '
parganas of Majhwa and Simrown . c
.Thereafter, a long-term litigation started between Bir. Kisbore
Singh and the heirs of Raja Jugal Kishore Singh in respect of Majhwa
· and Simrown and ultimately suits were filed which were followed by
Memorial to the 'Lieutenant Governor. It appears·that whereas in the D
earlier suit, Raja Deoki Nandan Singh's predecessor had pleaded that
Raja J ugal Ki shore Singh was the son of Raja Dhrub Singh's
duaghter and, therefore, not a member oft.he family of Raja Dhrub
Singh, Bir Kishore Singh had pleaded that Raja Jugal Kishore Singh
having been adopted by Raja Dhrub Singh· had become a member
of his family. It was pleaded in the Memorial that Raja Jugal Kishore ·E
Singh, who belonged to the Gautam gotra, had been, adopted .by
Raja Dhrub Singh who belonged to the Kashyap. gotra, and had been
appointed as his successor.

To cut the matter short, ·it may be stated that a spate of F
litigation followed putting forward rival claims to the estate left by
Raja Dhrub Singh. It may, however, be noted that in none of the
suits instituted in 1895, 1896 and 1905, the question as to whether
·Raja Jugal Kisho.re Singh had become· a member of the family Of
Raja Dhrub Singh, by virtue of his adoption as putri ka putra, was ·
decided despite a plea having been raised in all those suits. As
already mentioned, out of the four suits that were filed, one of them
was withdrawn. In the present appeals, we are only concerned with
two rival claims put forward to the Bettiah Raj on the death of
Maharaja Harendra Kishore Singh and bis two widows. In suit No. H
25/1958, the claimants were Ambika Prasad Singh and others claim·
ing the estate on the basis that as Raja Jugal Kishore Singh succeeded .
to the gaddi of Sirkar as the adopted s9n and successor to Raja
820 SUPREME COURT REPORTS. (1983] 2 S.C.R.

Dhrub Singh and not as his daughter's son, Ambika Prasad being
nearest among the reversioners was entitled to s1.1cceed to the estate
after the death of the widows. The suit of Ambika Prasad Singh was
dismissed by the trial court as also by the special Bench of the High
Court and some appeals· were brought to this Court by certificate.
The said appeals, being civil appeal Nos. 114-119 of 1976, in Sh yam
B Sunder Prasad Singh & Ors. v. State of Bihar & Ors. (1) came up
for hearing before. a Bench consisting of P.N. Bhagwati, A.P.Sen and .
E.S. Venkataramiah, JJ. This Court dismissed the appeals and reject-
ed the claim of Ambika Prasad Singh holding that as Raja Jugal
Kishore Singh could not'in law be consiqered as putri ka putra his
claim to the estate left by Raja Dhrub as being the nearest reversioner,
c cannot succeed.

The claim of Radha Krishan Singh and others in suit ·No. 5 of
1961 was left to be decided by another Bench and it is these appeals
that have now been placed before us for hearing.
D However, it is not necessary for us to make a deeper probe
into the early history of Bettiah Raj because in the instant case the
relevant genealogy for the purpose of ascertaining the ancestors of the
parties starts from Raja Hirday Narain Singh, and· his descendants / '
who have been referred to.in Ex. J, a report of the serishtedar, which
E appears to be the sheet-anchor of 1he plaintiffs' case.

Ex. Q-2, a genealogy filed by the plaintiffs clearly shows that
Thakur Hirday Narain Singh, who was the Raja of Bettiah after the
death of his father, Thakur Hansraj Singh had five sons. One of his
sons was Bansidhar Singh who was alleged to be the ancestor of the
F plaintiffs. Bansidhar Singh had only one son named Debi Singh.

After a brief narration of the facts, mentioned above, before
going to the oral, documentary and circumstantial evidence, it may be
necessary to state the well established principles in the light of which
we have to decide the conflicting claims of the parties. It appears that
G the plaint genealogy is the very fabric and foundation of the edifice
on which is built the plaintiff's case. This is the starting point of the
case of the plaintiff which has been hotly contested by the appellant.
In such cases, as there is a tendency on the part of an interested per-
son or a party in order to grab, establish or prove an aUeged claim,
H. to concoct, fabricate or procure false genealogy to sujt their ends,

(I) !198lj 1SCR1 1
ii1n,.R v. ilAmtAKRISHNA (Fazai Ali,~J.)

the courts in relying on the genealogy pµt forward must guard them•
selves against falling into the trap laid by a series ·of documents or a A
labyrinth of seemingly old genealogies to support their rival claims.

The principles governing such cases may be summarised thus-:

(I) Genealogies admitted or proved to be old and relied on in
previous cases are doubtless .relevant and in some cases may even be
B
conclusive of the facts proved but there are several considerations
which must be kept in mind by the courts before accepting or relying
on the genealogies :

(a) Source of the genealogy and its dependability ..

(b) Admissibility of the genealogy under the Evidence
·Act.

(c) A proper use of the said genealogies in decisions or
judgments on which reliance is placed. ' D

(d) Age of genealogies.
( (e) Litigations where such genealogies have been accepted
or rejected.
E
(2) On the question of admissibility the following tests mu.~t be
adopted: •
(a) The genealogies of the families concerned must
fall within the four-corners of s. 32 (5) or s. 13 of the
F
< Evidence Act.
(b) They must not be hit by the doctrine of post /item
molam.

(c) The genealogies· or the claim cannot be proved by
recitals, depositions or facts narrated in the judgment G
which have been held by a long course of decisions to
be inadmissible.

(d) Where genealogy is proved by oral evidence, the said
evidence must clearly show special means of know- H
ledge disclosing the exact source, time and the
circumstances under which the knowledge is acquired,
and this must be clearly and conclusively proved.
822 SUPREME COURT REPORTS [19s3j 2s.c.i
We shall now proceed to scan and analyse the evidence in the
A light of the principles adumbrated above referring to the important
authorities on the questions arising out of the evidnce, oral and docu- ··y ·
mentary, Although both the parties have cited a very large number
of decisions we would not like to load or crowd this· judgment with
all the authorities cited before us and would confine ourselves only to
the important and relevant authorities of this Court and those of the
B Privy Council and we shall refer to the judgments of the High Court
only if there is no decision of. the Privy Council or of this Court
directly in point.

To recapitulate, the plaintiffs-respondents based their title as - ·1
being the nearest reversioners of the Maharaja and claimed . to be
entitled to immediate possession after the death of the widows of the
Maharaja. The plaintiffs' therefore, claimed to be the direct descen·
dants of Gajraj Singh and Ramruch Singh which was the branch of
Bansidhar Singh's son which remained in Baraini and after the
D extinction .of the line of the Maharaja, the properties were fo
revert to the descendants of Gajraj Singh. The attempt of
the plaintiffs. has been to ·show to the Court that they were . direct
descendants of Gajraj Singh who was the son of Ramruch, Ramruch
being the son of Bansidhar Singh. )<

E Thus, for the purpose of this case, Bansidhar Singh may be
taken to be admittedly the ancestor of Maharaja Harendra Kishore
Singh. .The only point of dispute and the pivotal controversy cen·
tres round the question as to whether or not the plaintiffs have
proved their case that they were also the direct descendants of
F Bansidhar Singh so as to claim the-properties in dispute on the death
of the Mahraja. Both on the question of genealogy and other matters,
a mass of oral and documentary evidence consisting of documents,"
reports, judgments, plaints, entries in registers, etc., have been pro·
duced and will be considered at the relevant stage.

G
The defence of the appellant is of a negative character inasmuch
as the defendants-appellants have denied the claims made by the
plaintiffs-respondents and but them to strict proof of their case. the
defendants, however, have .been fair rnough to concede that Bhagwati
II Prasad Singh, father of the plaintiff has been proved to be a direct
descendant of Gajraj Singh but have flatly denied that Ramrnch
Singh, father of Gajraj Singh had any connection either with Debi
Singh or Bansidhar Singh. In other words, the . plaintiffs' genealogy,
.
· BIHAR v· RADHAKRISHNA (Fazai Ali, 1.) 823-.

so far as they are-concerned, has been accepted by the appellants,
upto the stage of Ramruch Singh. The courts below also <;>n a A
consideration of the oral and documentary evidence have endorsed
the stand takeri by the defendants that Bhagwati Prasad Singh has
been proved to be the direct descendant of Gajraj Singh being 7th in
that line.
B
It is well settled ·that when a case of a party is based on a
genealogy consisting of links, it is incumbent on the party to prove
every link thereof and. even if one link is found to be missing then in
the eye of law the genealogy cannot be said to have been fully proved.
In the instant case, although the plaintiffs have produced oral and
documentary evidence to show that Ramruch Singh and Debi Singh c
were brothers being the sons of Bansidhar Singh tbis position was
·not accepted by the trial court as also by M.M. Prasad, J. wh0 dis-
sented from the other two Judges constituting the Special Bench who
had taken a contrary view and had held that the plaintiffs had fully
prove_d the entire genealogy set-up in the plaint, This, therefore, .D
makes our task easier because we need not discuss in detail the evi-
dence and documents to show the connection of the plaintiffs upto
the stage of Gajraj Singh though we may. have to refer to the evi-
dence for the purpose of deci~ing the main issue, viz., whether or· not
Gajraj Singh was the son of Ramruch Singh and Ramruch Singh a
brother of Debi Singh and son of Bansidhar Singh. -E

Before going into the evidence; we would like to exiract the
findings of the courts -below_ on the question of title. The trial court
had clearly held that the plainiffs had not been able to prove any
linkage or connection between Ramruch and Bansidhar but the F
majority judgment consisting of G ~N. Prasad and Mukherji, JJ. dis·
agreed with this finding and held that all the links were cleariy
proved by the plaintiffs an.d it has been proved to
their satisfaction that Ramruch Singh was ·the son· of Bansidhar
Singh. On this point the finding of the majority may be extracted
thus G

"I have considered the oral and documentary evidence
adduced by the parties on the point of genealogy and in
my opinion, it has been well established by the evidence H
adduced in.tJJ,is case on- behalf of the plarutiffs of Title Suit
No. 5of1961 that BansidharSingh·was a common ances·
tor of Maharaja Harendra Kishpre Singh and Bhagwati
StlPREME COuRT REPORTS (1983) 2 s.c.ti..

Prasad Singh (father of plaintiffs 1 to 8 of Title Suit No.
A 5of1961)." (Vol. VIII, p. 247, para 109)·

M.M~ Prasad,}. however, dissented from the majorty judgment
and agreed with the view taken by the trial court. 1n this connection,
his finding may be quoted thus :
B "A discussion of the entire documentary evidence on
the point of genealogy thus shows that there is no docu•·
ment which can be safely relied upon for the purpose of

c
proving the two links in the genealogy of the present
appellants. viz., that ( 1) Bansidhar was the father of
Ramruch and (2) Ramruch the father of Gajraj.
(P-491 para 457)
-
'In conclusion, therefore, I find that there is not a
D single document which can be relied upon to prove the
two disputed links, namely, that Gajraj was the son of
Ramruch and Ramruch the son of Bansidhar.
(P. 506 para 4SO)

E
Turning to the oral evidence which I have discussed
above I find that there is not a single witness who can be
relied upon for the purpose of proving the aforesaid two
links. (P. 506 para 480)
F
... (

Therefore, I find that the two links in respect _of which
there is no reliable documeniary evidence have also not
G been proved by the oral evidence on the point those two
links are Bansidhar being the father of Debi and Aini
being the father of Raghunath. The conseqi1ence thereof
is that the plaintiffs of Title Suit 5 have failed to prove
that Bansidhar was the ancestor of' Maharaja Harendra
H Kishore. I have already held that they have also failed.
to prove that Bansidhar was their ancestor, having failed
to prove that Bansidhar was the father ofRamruch and
~amruch the father of Gajraj. In the result, I hold that
lliitAR Ji. RAi>HAKRISHNA (Pazat"Ali, J.)

the plaintiffs of Ti tie Suit 5 have failed to prove the
genealogy set up by them and thus they have failed A
to prove that they are the nearest heirs of Maharaja
Harendra Kishore". (Vol. VIII, p. 533, para 533)

There js, however, one common factor between the majority
and the ilissenting judgments and· it is tliat the plaintiffs have proved
beyond reasonable doubt their connection with Gajraj Singh. B
This, therefore, has reduced the controversy to the bare minimum and
has shortened the arena of the dispute that we are called upon to
consider. Even so, this short controversy itself is a stupendous task
to determfoe and we will have to approach tj).is aspect with great
care and caution, deliberation and circumspection because two c
learned Judges of Patna High Court had negatived the plea of the
defence and accepted that of the plaintiffs.

In order to understand the :various shades ·and aspects of the
. case and its hi.storical background, it may be necessary to extract
the plaint genealogy even at the risk of repetition. In fact, the D
plaintiffs themselves did not append any genealogy to their plaint
but G.N. Prased, J. has constructed a genealogy, based on the
recitals in the plaint, . for. the purpose of· convenience which is
reproduced here (reproduced on pages 826·27).
E
The position that emerges from a· perusal of the pleadings of
the parties is that so far as the left side is concerned, .the plaintiffs
have not proved their linkage either with Debi Singh or Bansidhar
Singh or Ramruch Singh. The late Maharaj~ (Harendra Kishore
Singh) was a ditect descendant of Debi Singh who appears on the
Left Side of the genealogy whereas the original plaintiffs Bbagwati F
Prasad Singh was the direct descendant of Ramruch Singh appearing
on the Right Side of the genealogy while all other links are a.dmitted
the dispute centres round Ramrucb Singh being related to Bansidhar
Singh in any way either as a father of Gajraj Singh or as a brother
of Debi Singh. Apart from the majority judgment, even
G
M,M, Prasad, J., as indicated above, has found that the plaintiffs
have proved that they were direct descend.ants of Ramruch Singh.
In this conection, the finding of M.M. Prasad, J. may be quoted
thus.:

"So far as the genealogy of these plaintiffs is concer•
ned, their claim to the effect that they are descended
from Gajraj is not disputed in this case. Learned counsel
826· ' . .SUPREME COURT REPORTS _iI983i 2 s.c.R..
LEFT SIDE
A
Bansidhar Singh
I
Debi Singh
I
Aini Singh
B I I I
'Raghunath Singh Paha! wan Singh Basant Smgh
Benga Babui (daughter Basant Kuer (Childless)
of Raja Dhruva Singh, I
17/15/1762 Tilak Singh =
I • . Soman Kuer
c Raja Jugal Kishore Singh I
- ' (D. 1784)
I • ·1 .I
Raja Bir Kishore Singh Balbhadra Singh Sangam Klier
(1790 - 1816) - = Jaimed Kuer _ (Daughter)
I (D. 1887) (died childless)
D
I I
Anand Kishore NavaljKishore
(D. 1838) (D. 1855)
I
E I I
Rajendra Kishore Mahendra Kishore
'(D. 26th March 1883) (childless)
t
I
.Harendra Kishore
D. 26th March 1893
F =widow -

1. Maharani Sheortan Kuer
(D. 24th March 1896)

G 2. Maharani Janaki Kuer
(D. 27th November 1954)

H·
BlilAR v. RADHAKRISHNA (Fazai Ali, J.) 827
RIGHT SIDE
A
Bansidhar Singh
I
Ram Rnch alias Ram Rnp
I. I
r I I I
Farman Har Kuer Bhup Narain Avadhut Singh B
I I (childless)
Deo Narain
I I I I
I Sheo Balak Prithvi Mohan Singh
I I (childless) I
I Chotku Pratap Narain
c
I (childless) . I
. Sheogulam
i I I
Bhoala Singh Deep Narain. Jagdamba Prasad
I I I
NandKumar· I Jagat Bahadur
(chil~less). I =Amo! Kuer D
I I
Naud Prasad
I I I I (Adopted)
Bansgopal Hari Kishore Ram Sankata I
I (childless) Kumar Prasad Ram Chandra
I (childless) (childless) (Living)
E
I I •
Bhagwati Prasad Ilaka
Singh (D. 29th (childless)
iune, 1957)
I
F
···~ I l I I I I I I
Radha · Sri Ram Sheo Ashta Maina Ram Bba:gi- .
Krishna Krishna Krishna Krishna Bhuja : Kesari rathi
(plain- =. Shail
tiff) Kumari
I G
I I .
Vidya Mal ti Parvati Meera Devi
Sagar Devi (Daughter) (Daughter).
(Son) (Daughter). H
828 SUPREME COURT REPORTS [i 9S3j 2 s.c.R. ·
appearing for thi plaintiJfs of Title Suit 25 as also the
A State of Bihar have clearly stated before us that they do
not dispute their genealogy up to that point. The finding
of the learned Subordinate Judge is also to the effect that
they have proved their genealogy up to that point. The
point does no!, therefore, need a detailed consideration.
B

378. The other documents, however, prove that
Bhagwati, the father of these appellants, was a descendant
of Gajraj-" (Vol. VIII, pp. 442 & 444)
c
Thus, the dispute which we have to resolve in this case is.
whether the. plaintiffs have been able to prove any link between
Ramruch and Gajraj Singh on the one hand and Ramruch ·and
Bansidhar on the other. The plaintiffs can succeed only if they
prove.both these links by showing that Gajraj Singh was son of
D Ramruch Singh and Ramruch was son of Bansidhar Singh.

We would first examine the principal documentary eviden~e
relied upon· by the plaintiffs to prove their case. The genuineness
of some documents has not been disputed by the appellants, but
x ,_
according to them these documents do not assist the case of the
E
plaintiffs. There are other documents whose genuineness and
admissibility. have been questioned before us by Dr. L.M. Singhvi,
appearing for the appellants.

To start with, the main fabric and the cornerstone of the
F documents produced by the plaintiffs appears to be Ex. J., an
arlcient document of the year 1810 whose admissibility was
seriously disputed by the appellants but all the couris have found
this document •to be admissible. Apart from the majority judg-
ment, even M.M. Prasad, J. has clearly held that Ex. J. being an entry
in 'a Register made by a public officer in the discb.arge · of his duties
G squarely falls within the four corners of _s. 35 of the Evidence Act
and is, therefore, doubtless· admissible. In this connection, the
learned Judge observed thus :

H "There can thus be no doubt that it is a report of a
· public officer in the due discharge of his public and office
duties. There can thus be no doubt that it is .admissible
under section 35 of the Evidence Act."
BIHAR .v. RADHAKRISHNA (Fazul Ali, J.) .829

Certain inferences drawn by M.M. Prasad, J. do not appear to
us to be correct because they are not borne out by the recitals in A
Ex. J. and are really based on a wrong interpretation of certain
expressions used in Persian language. These observations appear at
page 483 of his judgment (Vol. VIII) where the learned Judge says
that the document shows that Gajraj Singh was one of the descen-
dants of Hirday Narain Singh and. that Debi Sjngh .and .Gajraj Singh B
belonged to the same family. This anomaly appears to have crept
in because the said document (Ex. J) is in Persian language and on a
very close reading of the recitals pertaining to these two facts, the
inferences drawn by the learne.d Judge do not appear to be' correct.
We shall elaborate this point further when we deal with the merits
.of the document. We Rgree with the unanimous view of the High c
Court that Ex. J is admissible. In fact, the said f xhibit itself would
_show that it was written by a serishtadar, a Government officer, on
the direction of a very high governmental authority who had asked
him to make a detailed enquiry regarding the possession of various
Zamindars and submit a Report to the Government about posses- D
sion. We are, therefore, of the opinion that all the conditions of
s. 35 of the Evidence Act are fully.complied with and fulfilled, and it
is difficult to accept the conclnsion that the document is not admis-
sible either under s. 35_ or under any other provision of the Evidence
Act. It is a different matter that even though a ·document may be
admissible in evidence its probative value may be almost zero and E
this is the main aspect of the case which we propose to highlight
when we deal with the legal value of this document. _

Bofore, however, makini any comment on the probative value
of the document ill. question it will be necesary to peruse and .analyse
its important contents and their legal effei:t on the case· put forward F
by the parties. We might mention her~ that the appellants ·before
us have not accepted the stand taken by the High Court that this
document is admissible .in evidence but have argued at some length
that it is totally inadmissible. Dr. Singhvi was not very vehement i.n
persuading us to hold that the document is inadmissible but Mr. -G
Misra, appearing for one set of the appellants, forcefully
contended that the document is inadmissible. In view of the argu-
ments addressed before us, it may be necessary to consider the ques-
tion of admissibility also.
H
In our opinion, Ex. J. squarely falls within the four corners of
s. 35 of the Evidence Act which requires the following conditions to
b~ . fµlfilled before a docume11t ca11 l;>e admjssjble unqer
. ibis section,
830 . SUPREME COURT REPORTS (1983) 2 S.C.R

(I) the document must be in the nature of an entry in
A any public or other official book, register or record,

(2) it must state a fact in issue or a relevant fact,

(3) the entry must be made by a public servant in the
discharge of his official duties or in performance of
B his duties especially enjoined by the law of the coun-
try in which the relevant entry is kept:

A perusal of Ex. J clearly shows that it is a Report made by
an officer of the Government in the due discharge of his official duties
c because the recitals of the document show that he was entrusted with
the task of and enjoined the duty of ascertaining the possession of
various landlords for the purpose of taking suitable steps in the
matter. It is beyond dispute in this case that the said Exhibit does
mention a number of persons through whom the plaintiffs claim their
title and therefore, it relates to a relevant fact. The question as to
D whether the relevant fact is proved or not is quite a different matier
which has nothing to do with the admissibility of the document but
which assumes importance only-when we consider the probative value
of a particular document. The fact that the Report was called for
from the Mirzapur Collectorate has been amply.proved both by oral
and documentary evidence. Thus, all the aforesaid conditions of s.
E
35 are fully complied with in this case.

Mr. Misra, however, raised two formidable objections to the.
admissibility of this document. In the first place, he submitted that
there is no reliable evidence to show that Durga Prasad, the author
F of Ex: J. was a Government officer at all because the possibility of
his being a private revenue agent of a Zamindar, who also maintains
kutcheri (private office) where papers relating to realisation or rent
and revenue are kept, cannot be ruled out. The designation of Durga
Prasad therefore, does not conclusively prove that he was a Govern·
ment officer. Secondly, it was contended that even if Ex. J contains
G a seal; there is nothing to show. that it was not a private seal. In -our
opinion, the contentions raised by Mr. Misra are without any subs-
tance and cannot be accepted. Reading the document (Ex. J) as a
whole and taking into con5ideration the occasion for th~ entrustment
H of the task to Durga Prasad, its recitals and the facnhat it was kept
in a purely Government department; viz., .the Mirzapur Coliectroate
from where it was produced before the trial court, clearly and con-
clusively prove that the repo1 t was wa\le by an cjlicial serishtad!ir
~Jl!All v. RADHAKRISHNA (Faza/ Ali, J.) 831

appointed by a very high governmental authority. Even the opening
lines of the Exhibit clearly indicate that Durga Prasad was a Govern· A
ment servant, perhaps in the Revenue Department, and was asked
to submit a repordor official purposes. It is also established that
Durga Prasad made a roving enquiry. and ultimately submitted his
Report in the year 1813. Of course, it is true that there is no evidence
to show as to what happened to this Report, but that is beside the
point so far as the relevancy or the admissibility of this document .is
B
concerned. In fact, we shall show that although fahibit J is admissble
yet it has no probative value at all for the reasons and the circums-
tance that we shall discuss hereafter. Furthermore, all the three
Judges of the High Court have· unanimously held that Ex. J. is
admissible in evidence whatever be its legal value. · c
In P.C. Puru~hothama Reddiar v. S. Peruma/, ( 1) this Court
while considering the effect of s. 35 of the Evidence Act observed ·as
follows:-

"It was lastly contended that the evidence afforded by
D
the police reports is not relevant. This again is untenable
contention. Reports in question were made· by government
~:
officials in the discharge of their official duties. Those
officers had been deputed by their superiors to cbver the
meetings in question- ........... The first part of s. 35 of E
the Evidence Act says that an entry in any public record
stating a fact in issue or relevant fact and made by a
public servant in. the discharge of his official duty is rele-
vant evidence. Quite clearly the reports in question were
lllade by public servants in discharge of their official
duty." F

In view of the clear decision of this Court, referred to above, it
is not necessary for us to multiply authorities on this point.

The admissibility or Ex. J or its genuineness is only one side. of G
the picture and, in our opinion, it does not throw much light on the
controversial issues involved in the appeal. We may not be under-
stood, while holding that Ex. J is admissible, to mean that all its
recitals are corre.ct or that it has very great probative value merely
because 1t happens to be an ancient document, Admissibilily of a H
• • •
·~,

832 SU~REME COURT REPORTS (1983J 2 S.C.R.

docqment is one thing and its probative value quite another - these
A two aspects cannot be combined. A document may be admissible and ·-,.~·
yet may not carry any conviction and weight or its ·probative value ·
may be nil. Before going to the contents of Ex. J which have been
. fully discussed by the High Court, we would first like to comment on
the probative value of this document.
B
.Jn adjudicating on this important aspect of the matter it may be
necessary to mention a few facts and circumstances which go to show
·that Ex. J has no probative value at all. To begin with, a perusal of
the Report (Ex. J) shows that it does not at all disclose the source
from which Durga Prasad collected his facts or gathered the materials
c disclosed therein. There is also nothil)g to show that the author of
the Report consulted either contemporary or previous records or
entries therein in order to satisfy himself regardin~ the correctness of
various statements made pertaining to the genealogy of landlords who
were in possession of the lands, as stated in the said Report. It is true
D that at one place the author has stated that he had taken these facts
from an account book (Tumar) but he has not at all given any des-
cription or detalis or even the kind or the nature of the account-book
and its contents. Furthermore, there is no evidence to indicate as
to what happened after the author had submitted his Report to the
Government and whether or not any follow up action was taken on
E the basis of his Report or it was just filed and kept on the record
lying lifeless and mute.

The fact of the matter is that no proper verification was made
by Durga Prasad regarding the facts stated in his Report from any
F source and that it did not form part of a revenue entry or ·record
which was ever referred to by any Executive, Judicial or statutory
authority subsequent to the filing of this Report. In other words, the
position seems to be that the fate of the Report, after it was submit-
ted, was shrouded in mystery and Report became a forgotten story
unheard unwept and unsung until the present suit by the plaintiff
G was filed. In these circumstances, therefore, it is difficult for us to
place any reliance on the document (Ex. J) even t)lough it may be
admissible in evidence.

H Mr. Tarkunde, appearing for the respondents, however relied
on several aajhorities in support of his argument to show that the
authenticity of this document cannot be questioned. In the first place,
reliance was placed on a decisio1l of t)le Privy C_ouµcil .in Ghulam
Bl!Wl v. RADHAJ(RJSHNA (Fazal Ali, J.) 833

Rasul Khan v. Secretary oi State for India in Council,(') particularly on
' .
the following observations : · A

"In such a· case as the present, statements in public
documents are receivable to prove the facts stated on the
general grounds that they were made by the -authorized
agents of the public in the course of official duty and ·B
respecting facts which were of public interest or_ required
to be recorded for the benefit of the community. Taylor's
Law of Evidence, 10th ed., s. 1591. In many cases, in-
deed, in nearly all cases, after lapse of years it .would be
impossible to give evidence that the statements, contain-
ed in such documents were in fact true, and it is for c
this reason that such an exception is made to the rule of
hearsay evidence."

t The observations extracted above no doubt presumably support
the contention of Mr. Tarkunde but even these observations have to D
be read in the light of the special facts of that particular sase. In that
case, there was evidence of a clear Government revenue record
maintained in due course since 1852 showing that the term 'Khayyat
Mohal' did not denote a tribe but merely" profession. Secondly, the
. revenue record of Mauza Shahna clearly mentioned the entire pedi-
E
gree of the family which was fpund by the trial court to have been
proved. The question at issue in that case was whether Mohals were
of Rajput origin and it was conclusiv~ly proved by the lower courts
that Mohals were doubtless Rajput or had a Rajput origin. The entry
.relied upon in that case was based on the extracts from settlement
records of the District from .1852 and corrobortated by later entries F
up to 1882. The Privy Council took special· note of the fact that
• -evidence .of the character taken from public records for a series of
years since 1852 could not be easily brushed aside. In this connec-
'tion, their Lordships observed as follows:-

"Their Lordships cannot share the. view of the G
·appellate Court that evidence of this character, taken from
pµblic records for a series of years since 1852 and recor-
ded in accordance with the requirements of the law, can
in a pedigree case be disregarded.". ·
H
(I) 52 I.A. 2Ql.
834 SUPI\EME COURT l\EPORTS (1983) 2 S.C.R.

A
Thus, it is absolutely clear to us that the facts of that case are
. essentialiy different and clearly distinguishable from the nature of the .
r--·
document that Ex. J is. Ex. J cannot be regarded as an entry of the
type which was the subject matter of Ghu/am Rasul Khan's case
(supra). There is absolutely no corroboration of the facts mentioned
in Ex. J either by later entries or by any other document. There are
B a number of other facts mentioned in the judgment of the Privy
Counci/(supra) which completely distinguishes that case from Ex .. J
in the present case. At least this much is clear, as already indicated,
tharin the Privy Council case there. was positive evidence to show
that the entry was acted upon for several years and that by process
of elimination the caste of the appellants as Mohal Rajputs was
c established. But in the instant case there is absolutely no evidence
to corroborate the recitals in Ex .. J by any contemporary or subse-
quent Government record. In our opinion, ·therefore,. the decision
relied ilpon by the counsel for respondents is of no assistance.
. '
Reliance was also placed on the decision in Kuar Shyam Pratap
D Singh v. Collector of Etawah (1) where the Privy Council made the
· following observations :-

"This docume11t therefore is an official document
prepared by a public authority in pursuance of a statutory
E duty, and it fa not disputed that it is evidence, though
not conclusive evidence of the fact stated therein ......... No
cross-examination of the two witnesses from the Court
of Wards who were called was directed to ascertain the
sources on which the pedigree was founded."

F In our opinion, this decision far from supporting the case of
the respondents completely belies the importance or probative value
of a document like Ex. J. To begin with, the document relied upon
by the.Privy Council was a pedigree which was produced in courts. by
an officer of the Court of Wards. Secondly, the High Court had
G found that the Court of Wards Manual was prepared under the
U.P. Court of Wards Act which had made a provision for an
Estate Noiebook for each· estate in the Court of Wards which had
to be maintained in triplicate form, one copy being kept in the
District office, one in the Divisional Office and one in the office of
II the Court of Wards. The object of the Notebook was to pro-

(1) A.l.R. 1946 P.C. 1Q3,
Bll!AR v. RADl!AKIUSHNA (Fazal Ali, J.) 835
vide a separate and succinct note of every estate under the manage•
ment.of the Court of Wards. It is, therefore, manifest that the docu- A
ment concerned in that case was maintained not merely by an officer
but under a statute which required certain conditions to -be fulfilled.
Furthermore, sufficient notoriety and publicity was given to this docu-
ment because a copy of the record was kept in the District office
which could be inspected by any member of the public. In the B
instance case, however, we find that after Ex. J was submitted it
faded into oblivion and on one ever heard of it until it was produced
for the first time in the trial · court from the Mirzapur Collectorate.
·Another important feature was that the Privy Council had found
that the Court of Wards itself had held an enquiry and 'being a
statutory body it must be presumed to have done its duty to the best c
of its ability. Fourthly, although two witnesses were examined to
prove the documents from the Court of Wards, they were not cross-
examined at all. In the instant case, a person from Mirzapur
Collectorate merely produced the document but he had no knowledge
about its contents or about its being acted upon. In these circum-
stances, Ex. J cannot be equated in any respect with Ex. B. which D
was the document under consideration by the ·Privy Council in Kuar
Shyam Pratap Singh's case (supra).

We would like to mention here that even if a doucment may be E
admissible or an ancient one, it cannot carry the sai'.ne weight or
probative value as a document which is prepared either under a
statute, ordinance or an Act which requires certain conditions to be
fulfilled. This was the case in both Ghulam Rasul Khan's and Kuar
$hyam Pratap Singh's cases (supra). '
F

The case of Meer Usd-ool/ah v. Mussumat Beeby Imaman,
Widow of Shah Khadim Hossain (1) appears to us to be a cler illus-
tration of a document which while being an entry in a public ·record
• is of great probative value and carries the utmost weight. In this 91se,
the Registers concerned were probably under Bengal Regulations and G
the act of registraiion in .the Registers was made after a proclamation
amounting to a public, open and notorious assertion of title. Such a
document was held by the Privy Council to ·bn of very great -impor-
tance, and in this connection the following observations were made :
H

(I) I M.J.A. 19.
836 SUPREME COURT REPORTS [1983] 2 s.c.ll..

"This fact is most important, not because the ·
A registers themselves are at all cif the nature of conclusive
·evidence of title, (for the Regulations provide against
., that) bu( because this act of registration after a proclama·
tion amounts to a public, open and notorious assertion of
title on the one side, and the omission to register, unexplai-
ned by proof of the ill health of the claimant, or absence
B
in a distant country, or ignorance, afford an equally
strong presumption of the non-existence of any title on
...
the other." (Emphasis supplied)

This is a clear and important· illustration of an admissible
' c document which com_mands great confidence and whose probative
value is almost irrebuttable and impregnable.

In the case of (Raja Muttu Rama/inga Setupati v. Perianayagum
Pillai (I) the Privy Council was dealing with reports made by Colle-
ctors acting under Regulation VII of 1817 of the Madras Presidency
D and it.was held that the Report of the Collectors may not be of
great judicial authority. so far as the opinions expressed on private
rights of the parties but being the reports made under a statutory
Regulation they were entitled to be of considerable importance . The
reason why the Privy Council attached great credence to these reports
E was that the report~ when referred to .the Collector were based on
the depositions taken by him (Collector) and other documents on the
basis of which he had given bis report. Furthermore, the Board of
Revenue accepted the Report of the Collector and made a minute
approving the same and observing that there was no question of
doubting the validity of the Report. In this· connection, the Privy
F Council observed thus: (1)

"This new dispute was referred to the then collector,
Mr. Wroughton. His report upon it is dated the 7th of .
January, 1834. It appears that he examined the deposi- •
:G tions sent to the collectorate in 1815, and other docu-
. ments, and he records the facts which, in his opinion, are
' adverse to the claims made in the part of the zemindar.
He also reported to in favour of the title of the Pandaram
'.Venkatachellum to the office.
H • • •
(I) I M.!.A. 209,
'
BIHAR v. RADHAKRISHNA (Fazal Ali, /.) 837
"But being the reports of public officers made in the course
of duty, and under statutory authority, they are entitled
to great consideration so far as they supply information
of official proceedings and. historical facts, and also in so
far as they are relevant to explain the conduct and acts
of the parties in relaiion to them, and the proceedings of
the Government founded upon them."
B
With due respect to the Privy Council, we fully agree with the
view taken by their Lordships and the . test laid down by them. The
document Ex. ) in the instant case does not contain any of the
qaulities or attributes which were present in the Report of the Colle·
· ctors relied upon by ·the Privy Council. As ini:!icated. above, while the c
Coliector had made a thorough e_nquiry, ba.sed on the evidence of
wjtnesses and other documents and had recorded his dear opinion
which was accepted by the Board of Revenue, in the instant case Ex.
J is a God forsaken document which does not reveal either the source
on the basis of which the material1 were collected nor does it indicate
D
that the author of Report recorded any statements or looked into·
other documents to base the truth of the genealogy or the possession
of landlords referred to in his report. ·

FinalJy, Ex.J, unlike the document in the case before the Privy
Council was not a Report under any statutory authority but was E
merely a report submitted on the administrative orders ·of a high
Government offic_ial. In our opinion, therefore, where a:report is
given by a responsibe officer, which is based on evidence of witnesses.
and documents and has a statutory flavour in that it is given not
merely by an administrative officer but under the ·authority of a
·statute, its probative value would indeed be very high so as· to be F
etitled to great weight.

.. On a parity of reasoning mentioned above, this Court had
held that a Report based on hearsay evidence or on the information
given by an illiterate person cannot be admissible even under s. 35 G
of the Evidence Act. In Brij Mohan Singh v. Priya Brat Narain
Singh&. Ors. (1) this Court observed as follows:

"'l'he entry therein showing the birth of· a son to
-------- Sarjoo Singh on October 15, 1935 can .however be Of no II

(1) _(1965J 3 SCR 861 1
SUPREME COURT REPORTS ii983l 2 s.c.it
a~sistance to the appellant unless this entry is admissible
A. iil evidence under the Evidence Act. If this entry had
been made by the Chowkidar himself this entry would
have been relevant under S. 3 S of the Evidence Act.
Admittedly, however, the Chowkidar himself did not
make it....

• • •
·-··
The reason why an entry made by a public servant in a
public or other official book, register, or rec6d stating a
fact in issue or a relevant fact has been· made relevant is·
c that when a public servant makes it himself in the dis-
charge of his official duty, the probability of its being
truly and correctly recorded is high. That probability is
reduced to a minimum when the public servant himself is
illiterate and has to depend on somebody else to make the /

entry."
D
In the instant case case also, Durga Prasad had to depend on
some unknown persons, who were not even mentioned in the
document, to gather his facts and, therefore, even ifit is admissible its
probative value will be almost zero.

E Mr. Tarkunde then relied on the following observations made
- by Rupert Cross in his book 'Evidence' (1967: Third Edition) at
page 408:

"Entries··by a solicitor's clerk may, of course, be
F received under exception to the heargay rule which is now
being considered on account of the duty owed to his ·
employer, and, in some cases, the duty to record may have
been owed by the solicitor to his client.. ................... ..
Wherl speaking of the reception of declartions in the
course of duty Sir Robert Philimore said;
.
G ·- ,
· ''Entries ih a document made by a deceased person
can only be admitted where it is clearly shown that the '.
entires relate to an act or acts done by the deceased
/ person a:nd not by third parties."
H
These observations, however, have to be read with reference
to the context. Cross while making the aforesaid observations
BIHAR 1'. RADHAKAJSHNA (Faza/ Ali, J.)

emphasised that Sir Robert Phillimore had said that entries .in a
document made by a deceased person can only be admitted where it is A
~,_- -y · clearly shown that they relate to an act or acts doue by· the
deceased person and not by third parties.

Thus, in the instant case, though Ex. J was admissible because its
author is no longer alive it contains information which is obviously B
based on what he may have heard from third parties and hence much
value cannot be· attached to such a report. . .

-~
In Brain v. Preece Lord(1) C.B. Abinger made the following
, observations :
• c
"The case of the attorney, .in Deo v. Turford, stands
on precisely the same grounds as that of Price v. Lord
Torrington. There it was proved that the notices were
written, and that the attorney had gone out, and indorsed
the duplicate wheu he came back, and that it was his prac- D
tice so to indorse it when he had served the original; and ·
that was rightly held to be proof of the service of the
pnotice. There is also another case viz , that of the notary
(Poole v. Dicas, supra), where similar entries were held
evidence; but a notary is a public officer, and is sworn to
do his duty as a notary, and in foreign countries the acts E
of a notary are like the acts of a court, although that is
not so here.''
•
On the other hand, commenting on the probative value of
documents like Ex. J, it was held in Maria Mangini Sturla & Ors. v. F
Filippo Tomasso Mattia Freccia, Augustus Keppel Stevenson & Ors(')
where Lor~ BlaGkburn ·observed thus :

"I think an entry in the books of a manor is public
in the sense that it concerns all the p~ople interested in the
. manor ......... But it must be a public document, and it G
must be made by a public officer. I understand a public
· docuinent' there to mean a docurnnent that is made for the
· purpose of tlie public making use of it, and being able to

-- · refer to it."

(I) 152 English Reports 1017.
(2) [1880] A.C. 623,.
H·
SUPREME COURT REPORTS !1983) 2 s.c.i\..

Same view was taken in a later decision in Mercer v. Denne(')
A where the following observations were made :
,.
"There is nothing to show .that any of them was
made contemporaneously with the doing or effecting of a
transaction which i! was the duty of the deceased person
B to record. There is no evidence of what his instructions
were or of the relation of those instructions to the docu-
• ment tendered in evidence, or of the source of the know-
/edge or information on which the contents of the report or
estimate were based .......... ..

c These reports in no way resemble the field-book
. entries made by a deceased surveyor for the purpose of a
survey on which he was professionally employed, which
this· Court held to be admissible in Mellor v.
Wa/mesle)'(.')."
D
Although we cannot hold that I;x. J in the present case is
inadmissible in view of the express provisions of s. 35 of the Evidence
Act, yet the observations of the Privy Council extracted above would
directly and aptly apply to the probalive' value or the weight tl> be
E attached to Ex. J in the absence of any disclosure by the author of
the document regarding the source or the materials on the basis of
which he had mentioned the facts in his report. Assuming that the
case, ·extracted above, had taken an extreme view in that the repot
was not admissible at all because of the legal position in England,
the hard fact remains that so far as the probative value'. of a document
F is concerned, it is.reduced to the minimum where there is no evidence
to disclose the nature cf the instructions given to the author of the
doucment tendered in evidence or the source or knowiedge or infor·
mation on which the report is based. Th.is ·is a serious legal infirmity
from which Ex. J suffers and on that ground alone it cannot be regar·
ded as a reliable or a dependable document.
G
_ in view of the reasons given above, we reach the following
conclusions regardh1g the Jaw relati_ng·to the admissibility and pro•
bative value of Ex. J:~ ·
H
(l) [1905] 2 Ch. 5j8,
(2) (1905] Ch.164,
ll11iAR v. RADHAKRISHNA (Faza/ Ali, J.)
(1) That Ex. j is clearly admissible under s. 35 of the
Evidence Act and we agree with the finding of the A
High Court on this point,

(2) It appears that Durga . Prasad, serishtadar, started
writing Ex. J in the year 1810 and completed the •
same in 1813. B
(3) That Ex. J mentions names of~ome perons who accor-
ding to the plaintiffs were their ancestors but on
carefully analysing the document, it is not very clear.
as to how Ramruch Singh was connected with
Bansidhar Singh or Debi Singh. c
(4) That the probative value of Ex. J is absolutely insigni-
ficant and is of no assistance to us in proving the
plaint genealogy.
D
(5) That Ex. J was. a part of the record of Mirzapur
Collectorate and was summoned therefrom.

"(6) It would appear from a bare perusal of Ex. J that
Durga Prasad was directed to embark on an enquiry
regarding the persons who were in actual possession E
of lands at the relevant time .and it was not a ·part of
his duty to embark on any enquiry regarding the
title of the _persons holding the lands, nor did he
attempt to d·o so. The heading of the Report (ExU.)
itself shown that it is a report regarding the posses- F
sion of Taluqa Majhwa. ·

Even if Ex. J is taken into consideration, it will prove not the
title of the plaintiffs-respondents. but only the possession of. lands
held by some of their alleged ancestors. In other words, the document
will not be any evidence of title in the9uit out of, which the present G
appeals arise which are mainly concerned with the question of title
and not with the question of possession;

We now come to a detailed discussion of the contents of H
Ex. J to show the extent of its relevancy or importance. The
original Exhibit is in Persian language and had been kept separately
in a basta. During the course of hearing of the (!ppeal, the
·stiPREME COURT REPORTS h983l 2 s.c.R.
said Exhibit was got retranslated and the said translated English
A version appears at pages 25-33 in Volume VII of the paperbook. The
document in Roman script is to be found at pages 120-123 in
Volume V w:tich, in our opinion is the correct reproduction of the
original Exhibit with slight discrepancies here and there.

B As the coumel · for the parties have not been able to agree
regarding the m~aning and purport of some of the expressions used
by Durga Prasad in the said Exhibit, we decided to make a detailed
study of the original document side by side with the translated version.
Fortunately,
. . us (Fazal Ali, J.) happens to possess sufficient
as one of
knowledge of Persian language, we found no difficulty in deciphering
c the correctness of the disputed meanings of the expressions used in the
Exhibit. Even so, we have consulted the most reliable Persian-English
Dictionary (Steingass-1947-3rd Impression) and other . standard
dictionaries to arrive at the correct import of the meanings of the
terms and expressions used in the document.
D In the case of Coca-Co/a Company of Canada Ltd, v. Pepsi-Co/a
Company of Canada Ltd.( 1) It was clearly held that Dictionaries can
always be referred to in order to ascertain not only the meaning of a
word but also the general use of ·it. In this connection, their
Lordships observed as follows :
E
"While questions may sometimes arise as to the
extent to which a Court may inform itself by reference to
diction.aries there can, their Lordships think, be n.o doubt
that dictionaries may properly be referred to in order to
.ascertain not only the meaning of a word, but also the
F use to which the thing (if it be a thing) denoted by the
word is commonly put."

This is what we have tried to achieve in addition to the know·
ledge of Persian language. that one of us possesses.
G To begin with, the document clearly recites as to w)lo had
brdered Ourga Prasad to make the necessary inquiries and. this
fact assumes some importance because there has been a serious ·
coniroversy between the parties as to whether Durga .Prasad was
entrusted with the·task of the inquiry by a private landlord or by
H a· high Governnl.ent ciffiCial. The· High· Co.urt on a perusal of the
--"-
(L), A.LR: 1942P.C. 40 •.
. ' BlllAR v. RADHAKRISttNA (Fazal Aii, J.)

opening portion of the document clearly came to the conclusion that
the terms used in the opening portion and the manner in which he· A.
has addressed the person to whom he was directed to submit the
Report shows that-he must have been a high officer of the Govern·
ment though the exact designation of the said officer is not disclosed
in the said Exhibit. On perusing the original as also ·the translated
version, we find ourselves in agreement with the view taken by the B
High Court. The actual words used by Durga Prasad, when
translated in English, are as follows :

"Beneficent Master, generous, kind and Judge of the
time, May your prosperity be ever .lasting."
(p. 25, Vol. VII of the Paperbook)
c
We have perused the .original words in Persian and find that
they have been correctly translated in E_nglish as above. In these
circumstances, we overrule the objection. taken by the appellants
regarding the document being a private one or the Report being D
made by a private serishtadar. ·

After addressing the official, the document begins by using the -
word "Huzoor" and on the basis of this word it was contended that
this shows that it must have been a very high official who had
. ordered the inquiry. Nothing much turns on the use of the word· E
'Huzoor' which is only a term of· courtesy used to address either
elders or high dignitaries but the crucial word is 'Huzur·e-wala'.
The word 'wala' with Huzur qualifies the nature of the official
mentioned in the opening part of the document, viz.,. beneficent
master, i.e .., the high officer aforesaid: . F
Having determined the opening part of the Report we will now
proceed to the main points mentioned therein : . ·

(I) It is mentioned that the order of the high official was
G
received by Durga Prasad on 26th October 1810
directing the humble author of the Report to peruse
the docutllents kept .in .the serishtadar's office and
give a detailed account as to who in the past, in
which year and in what manner the predecessors of H
. Pahalwan ·Singh. were in possession of the·aforesaid· ·
• Taluka . (by aforesaid Taluka Manza Majh;.a · is
clearly intended as would appear [from the earlier ·
844 SUPREME COURT REPORTS [1983j 2s.c.R.
part of the document.) The word used in the Roman
A script are "buzurgan Pahalwan Singh". There was
a serious controversy regarding the actual meaning of
the· word 'Buzurgan'. According to the plaintiffs·
respondents, the word 'Buzurgan' means ancestors
whereas, according to the appellant, it means elders
B of the family of Pahalwan Singh. In other words,
according to the appellant, what Durga Prasad was
required to do was to find out not that the. ancestors
of Pahalwan Singh were in possession but the elders
of Pahalwan Singh, which is a much wider term. In
our opinion, the interpretation put by the appellants
c on the word 'Buzurgan' appears to be correct. To
begin with, the word 'buzurgan' does not mean
predecessors ·in the strict sense of the term. The
concept of 'buzurgan' in Persian or Urdu language
is to denote merely an elderly person.
D
In Steingass's Persian-En_glish Dictionary (Third Impression:
1.947) at page 183, the word 'Buzurg' is defined among· others as
·grandee, adult and elder. The word 'Buzurgan' is merely a plural
of Buzurg. In Forbes's Hindustani-English Dictionary (1848)
· 'Buzmg' has been defined as an elder (p. 77). Similarly, 'buzurgan'
E has been defined as elder (p. 89). Therefore in the instant case, the
a,ctual connotation of the term 'buzurgan' with reference to tne
context would ·mean not only predecessors or ancestors of Pahalwan
Singh but also the elders of Pahalwan Singh who may or may not be
directly related to him though they may form either near or distant
relatives being elder to Pahalwan· Singh. The High Court seems to
F have proceeded on the footing that the word 'buzurgan' really means ·
ancestors only and one of the tasks entrusted to Durga Prasad was
y
to find 'out the names of the ancestors of Pana!wan Singh who were
'
in possession of the t11luka. In view of the actual meaning of the "
word 'buzurgan' as explained above, which is supported by the
G dictionary meaning, we are unable to agree with the connotation of ·
the word 'buzurgan suggested by the counsel for the respondents
and we also do not accept the translation of the word 'buzurgan' in
the Roman Script as 'predecessors' only.

H - ~-
There is another circumstantial evidence in the document citself
which fully supports the view taken by us. A little later, Durga
Prasad while describing the heirs of Gautam tribe has used the word
BIHAR v. RAD!lAKRiSHNA (Fazal Ali, J.) '845

'warsha' (to be correctly -written as 'worasa') which means ·descen-
dants or heirs (vide p. q4 of Forbes's Hindustani-English dictionary.·
&;"p. 1449 ofSteingass's dictionary & p. 141 ofWollaston's English
Persian dictionary) . . . The translation of the word 'ancestor' in
persia~ would be Moris or Jad or Bapdada (father & grandfather)·
vide Wollaston's dictionary at p. 12 and Forbes's dictionary at p. IO
and if highest ancestor is intended, it will be translated as Moris-e- B
ala'. Durga Prasad who was fully conversant with Persian language
has deliberately not used the word _'Moris, or 'Moris-e-ala' or 'Jadd'
while referring to the elders of Pahalwan Singh, which is unmistaka-
bly clear from the language and the style used by him, but has used ·
the.word 'Buzurgan' which is of a mucJi wider import and merely
sugge~ts that he was directed to find out the possession of the elders c
of Pahalwan Singh whether beloning to the same family or not. If
the intention of the author was to refer to the direct . ancestors Of
Pahalwan Singh he would have used the term 'Morisane Pahalwan
Singh' (ancestors of Pahalwan Singh) which he has deliberately not
done.
D
We are fortified in our v,iew by the dictionary meaning of the
words 'Moris' and_'Moroos'. The meaning of Moroos is described by
SteingaHs at page 1343 as 'hereditary, possessed by paternal succes-
sion'. The word 'Moris' is a root of Moroos which means hereditary
possession and conveys the sense of a direct ancestor. Similarly, the
E
other expressions have been'·defined by different dictionaries as shown
below:
Minjumla = Among ali; from among (p. 1323, Steingass ·
dictionary)
Minjumla = Upon the Whole (p-510, Forbes' dictionary). F
Aulad = Descendant (p. 121, Steingass Dictionary)
Descendant = ~ulad (p. 72, Forbes' Dictionary-English Part)

It follows as a logical corollary that the translation of the word · G
'Buzurgan' as 'Predecessor' in the Roman Script of Ex. J is not quite
~ccurate.

Having sorted out the problem of the word 'Buzurgan' we now
proceed to consider the meaning of the words used by Durga Prasad H
in the introductory part of his Report. The document (Ex. J) pro-
ceeds to mention while addressing the high official that the zamindari
of ta]uka Majhwa Pargana Kaswar was previously in -the poossession
846 . SUPREME COURT REPORTS [1983] 2 s.c.R•

of the descendants Gautam tribe and further emphasised ·that the
A descendants of Gautam tribe were in possessionthere of by inheritance
according to the shares of their respective family members. The trans-
lation of these English words though substantially correct require
some amplification. In the first place, Durga Prasad has used the word
'Aulad-e-Gautam'. Auld means 'heirs or direct descendants'. This is
B followed by the word 'Biradari': The actual sense which he wanted
to convey was that the lands in the Mauza were in possession of the
descendants of Gautam tribe and his biradari. Biradari was sought

-J\
to be interpreted by the respondents as meaning the members of the
family of Gautam tribe. This, however, is wholly incorrect. The con-
cept of Baradari in Persian is much wider than a mere family. In
c Steingass's Dictionary (supra) at page 167 the word 'bira!fari' is
defined thus :

"biradari-Brotherhood, the fraternal relation; relationship; -"

In Muhammed Mustafa Khan's Urdu-Hindi. dictionary, the
D
word 'biradari' has been defined thus :

"Baradari-one tribe, man belonging to one tribe, brother- ~'
hood"
(P. 422 : 1959 edition)
E
'Baradari-Relationship, Brotherhood

(Forbes Hindustani-English Dictionary, p. 71)

It denotes only brotherhood, which does not mean merely
F members of the family of a p];rticular person but the entire brother-
hood ·or caste or tribe in a broader and general sense of a group of
persons of which some may or may not cons\itute one family. Thus,
from the· use of the word 'baradari' it cannot be argued with any
show of force that Mauza Majhwa was in possession only of the
·G direct descendants and members of the family of Gautam tribe.
Durga Prasad has taken care to use different terms to indicate diffe-
rent relationships. Somewhere he has used the word 'aulad' where he
wanted to indicate direct descendants or heirs; at other place he has
used 'buzurgan' where he wanted to indicate only the elders who
H may or may not be related to the person concerned; sometimes he
has used the word 'biradari' to indicate not only the family but the
eqtire l)ro\herhood or !llembers of the caste or tribe.
BIHAR v. RADHAKRIS!lNA (Faza/ Ali, J.) 847
Jn the last lines of first paragraph of the Report. the following
words are used ._:. A
•
"ba beradari Hirdeynarain Singh dar qabza
mosamiyan Debi Singh wo Barisal Singh wo · Ramhit
Singh wo Gajraj Sahi zamindaran boods." (The last word
should be 'bood' and not 'hoods' J
B
From this, the respondents as also the High Court. seem to infer
that Debi Singh, Barisal Singh, Ramhit Singh and Gajraj Sabi were
the direct ·descendants of Hirdaynarain Singh or the members of his
family. This inference is not brone out by the aforesaid wprds used
by Durga Prasad. The words only indicate the undoubted. posses- c
sion of Hirdaynarain Singh, and the persons who were in possession
along with 4im were the four persons mentioned above who belonged
only to the brotherhood of Hirday Narain'Singh. · The question of all
of them being direct descendants or relations does not arise on the
interpretation of the words used by Durga Prasad, as indicated above,
He has further stated that he had learnt the aforesaid facts from the D
account papers of Pargana Kaswat. ·

We might mention that even M.M. Prasad, J. was carried
away by the language used by Durga Prasad, viz., the use of the
.. word 'biradari' to indicate that Hirday Narian Singh and four others
belonged to the same family which was neither his intention nor the
E
meaning o(the sentence used by him. To this extent, therefore, we
do not agree with M.M. J'rasad, J. It may be important to remember
this fact because much has neen made of the sentence "Debi Singh
and aforesaid four persons" to contend that the four persons, viz
Debi Singh, Barisal Singh, Ramhit Singh and Gajraj Sabi, were the F
descendants of Hirday Narain Singh or Debi Singh which is also a
fallacious cc;mclusion reached by the High Court and not· warranted
by the words used in the document (Ex.J. ).

The word 'minjoomle' merely means-among all or from among
them-it does not mean 'including'. The words in the last portion of G
second paragraph of the Report "Pahalwan Singh ham az auladey
Debi Singh minjoomle chehar kashan mazkuran asht Faqat." - do
not indicate that Pahalwan Singh alongwith his descendants, viz.,
Debi Singh Barisal Singh, Ramhit Singh and Gajraj Sabi were in
possession. The word 'descendant' qualifies only· Ramhit Singh and H
not the other three persons as a logical consequence· of the statement
848 SUPREME COURT REPORTS [ 1983] 2 s.c.R.

made in the first paragraph, extracted above, indicating the baradari
A of Hirda y Narain Singh. -.,.-- ·+--
•
The docnment then proceeds to give details of the settlements
made with various persons, and the relevant portion recites thus in
Roman S.cript at page 121, Vol. VII:
B
"Kha!ispur 1 Mauza asli '·
Bawaqt bandobast Patta zamindari banam Audhan
Singh Ke az aulad Hirday Narain Singh mqzkur
ashtshuda bood ... ...... i
c
The English translation runs thus :

"Kha!ispur 1 M Asli

At the time of settlement the Zamindari Patta was
D executed in favour of Audhan Singh., who is one of the
descendants of Hirday Narain Singh, aforesaid ...... . "
(Vol. VII, p. 27)

We may pause here to indicate an important point which arises
out of the aforesaid recitals. Durga Prasad has not used the word
E 'brotherhood' or. 'Bjlzurgan' while describing Audhan Singh but has
clearly stated that he was a descendant of· Hirday Narain Singh. If ...
it was true that Barisal Singh, Debi Singh and Gajraj Singh were also
direct descendants of Hirday Narain Singh, he would have undoub-
. tedly mentioned their names also.
F In the next column, Durga Prasad goes on narrating the history
and mentions that at the time of settlement, the zamindari patta was.
executed in favour of Gurdat Singh who was one of the · descendants·
of Debi Singh. Jlere also, he clearly indicates the relationship .of
Gurdat Singh as being a descendant of Debi Singh. What is most
G important is that in the plaint genealogy there is absolutely no
reference either to Audhan Singh or to Gurdat Singh. while describing
the heirs of Hirday Narain Singh. In fact, no person by the name of
Gurdat Singh is mentioned as an heir of Debi Singh in ihe plaint
genealogy. ----~-

H
On the next page it was mentioned that Babu Deep Narain
Singh purchased the village at an auction held by the Government
for paymen~ of arrears of Government revenue. Deep Narain Singh
BJHAR v. RADHAKRISHNA (Fazal Ali, J.) 849

obtained the zamindari sanad from the huzoor (a high official of the
Government) and patta. was executed in favour of Ram Baksh Singh, A
who is one of the descendants of Hirday Narain Singh and is alive.
It may be noted· that .even Ram Baksh Singh is 'not at all mentioned
in the 'genealogy of Hirday Narain Singh nor is he .mentioned in the
earlier part of Ex. J as being either a.member of the family or a
descendant of Hirday Narain Singh.
B
It has, therefore, been established beyond any shadow of doubt
that Barisal Singh, Debi Singh and Gajraj Singh were not the direct
descendants Of Hirday Narain Singh. Otherwise Durga Prasad
would have mentioned these persons also as heirs or direct
descendants of Hirday Narain Singh as he has done in the case of . c
Audhan Singh, Ram Baksh Singh and Ramhit Singh. Furthermore,
at page 28 on the lefthand side.of the document (English translatfon)
it is clearly mentioned that zamindari patta was executed in favour
of Bhagat Singh, Golami Singh, · Harjan Singh ·who· were the
descendants of Hirday Narain Singh. Thus,' it is clear from the
-· scheme foliowed by Durga Prasad that whenever he 'wanted to convey D
a particular person or persons to be heirs or direct descendants of
an ancestor he would expressly say so. 011 a plain reading of this
part of the Report, it would appear that the descendants of Hirday
Narain Singh were Bhagat Singh, Golami Singh, Audhan Singh,
Ram Baksh Singh, Rahmit Singh and Harjan Singh. The other E
persons, viz , Debi Singh, Barisal Singh and Gajraj Sabi (Or Gajraj
Singh) have not been mentioned as descendants of Hirday Narain
Singh and this, therefore, completely demolishes the case of the
plaintiffs-respondents on this. aspect of tlie matter and throws serious
doubt on their genealogy. Furthermore, this circumstance supports
our interpretation that in the first part of the Report the words used F
"among .the aforesaid four persons" ; connote that. only Ramhit
. Singh and not others were descendants of Hirday' Narain Singh;
they·may have belonged to same l)rotherhood ..
>
In the righthand colninn of Ex. J at page 28, vol. VII of the G
English translation, it is clearly mentioned that Pahalwan Singh is one
of the descendants of Debi Singh. This statement corroborates the
• .plaintiffs' case t(\ this extent that Pahalwan Singh was one 9f the
descendants of Debi .Singh and shows that a part of the plaintiffs
genealo·gy relating to Debi Singh is correct. H
Referring· to Baraini, Semri and Ramchandrapur villages, it is
mentioned that zamindari patta was ~ven t(). Mohan Sin$h who wa~
850 ' ' 'SUPR!iME COURT REPORTS · c (!983} 2 S.C.ll.•

a descendant of Gajraj Sabi. It may be noted that here the word
A used is 'aulad' which means son, or grandson being in the nature of ~ ._,,_.,.
a direct descendant. This entry throws a flood of light on the actual
position occupied by Gajraj Sabi and there is .absolutely no reference
nor anything to show that Gajraj Sabi wa' in any way directly related
to.D~bi.Singh or Hirday Narain Singh. There is· also no reference
to Ramruch Singh. As the plaintiffs claim to be the direct descendants
B of Gajraj Singh, this circumstance completely falsifies their case that
Gajraj Singh or Ramruch Singh were in any way connected with
Debi Singh or the descendants of Hirday Narain Singh.

Next item relates to villages Badapur, Kanak Sarai where ·it is
c . mentioned that Hardarshan Singh who was a descendant of Ramhit
Singh has been given the patta and is in possession. As rega'rds
village Gadoi it is mentioned that at the time of settlement zamindari
patta was given to Nanku Singh and Jitoo Singh who. were
descendants of H!rday Narain Singh. Nanku Singh died and there~
after Deep Narain Singh, son of Nanku Singh; got the patta· in his
D own name in respect of halfshare.

The next item narrates that at the time of the settlement, the
zamindari patta was executed in favour of Gurdat Singh, who was
one of the descendants of Debi Singh, and he paid rent without
obtaining any fresh patta. It is further mentioned that in respect
E of ·village Sabesar, zamindari patta was given to Rain hit Singh,
descendant (aulad) of Hirday Narain Singh and on his death·, the ' T

patta was given to Nanku Singh.

. It is not necessary for us to wade through the details of the
F seWement made by various zamindars pertaining to different villages
in the Sirkar of Champaran, except some entries to which we would
refer hereafter.

As regards Jalalpur which was in Taluka of Madan Gopal and
G Kiswar Das Thathar, the zainindari patta was executed in ·favour of
Farman Singh and after his death Zalim Singh and Ramhit Singh;
sons of Farman Singh, obtained the patta in their names and were
in· pqssession thereof. Here also, there is no' reference either· to. •
Gajraj Sahi or Gajraj Singh as being relations of Debi Singh nor is
H · the name of Ramruch .Singh mentioned at all. Again, in respect of
Chak Lohani and Kalyanpur it is mentioned that Gurdat Singh was 1
oneofthe'descendants of Debi Singh and ·tta.rdarshan Singh"was a
descendant of Ramhit Singh'. ·. • · ·

...
' • l'" - ' I 'J'
. BIHAR v. l\ADllAKRISHNA {FilzarA/i; J.) 851

As regards Taluka Thathra ~nd other village's they were sold.to
Raja Balwant Singh and one Gajraj Singh paid rent to the sirkar on
behalf of Raja Balwant Singh. The parentage of Gajraj Siitgh or his
relationship either· with Hirday Narain Singh or Debi Singh is not
indicated at all. Therefore, it appears that <;Jajraj Singh Il)ust be
somepne who had nothing to· do with the family of Deb\ Singh: .

These are all the,facts that can be collected from the document B
(Ex. J). · Summing up, therefore, the contents of the Report, the
·position emerges as follows :-: ·

(I) · the zamindari paita of various villages had been given
to Hirday Narain Singh and his descendants,

(2) Neither Debi Singh, nor Gajraj Singh, nor Batisidhar
Singh have been mentioned as being ·a direct
descendants of Hirday Narain S,ingh,. ·

(3) Pahalwan Singh is no doubt .a direct descendant of D
Debi Singh but that does not solve the problem: the
descendants of Pahlwan Singh were later. on given
various pattas, ·

(4) the Report (Ex. J) is purely confined to the . question
E
of possession of various patta holders and there Is
not a single word to indicate the title of any of these ·
patta holders.·
• '. ..
As . already ·indicated, Durga Prasad .was· not
called upon to· embark on an enquiry regarding the F
question of title and,· therefore, his Report .is.
concerned ·solely and mainly with the question of .
possession and. not in any manner with that of title.
However, if any observations have. been made. by him
incidentally oµ' the question of title I though as. far as .
G
we have seen the Report, no such observation. has· ..
been made) .they would be· of no consequence 'what-
soever to prove ihe title of the p~rties.
·• .
( 5) As regards the facts contained in the Report though H
Durga Prasad says that he got them from Tumar,
i.e., an account-book, .he has not given any..
particulars of the account-book nor has he appended
852 SUPREME COURTS REPORTS [!9S3) ~ s.t. ,
•
any relevant portion of the account-book with the
A Report nor has he mentioned as to who was the
author of the account books aud ·when and under
what Circumstances the acc~unt books were prepared. •

In these circumstances, therefore we are kept completely in the
dark as to what those account books contained and whether or not
B
!he facts mentioned in them were properlY.. checked and verified.
Even the fact as to who was the accountant or in whose custody the
account-book remained, is c~nspicuously absent from the Report of
Durga Prasad. These are additional circumstances which completely
reduce the probative value of E.x. J.
c
Mr. Tarkunde made an attempt to convince us that Ex. J is not
only admissible but is substantially corroborated by the oral and
d<fcumentary evidence. It is true that a part of the plaintiffs'
genealogy, which is not disputed by the appellants, receives some
corroboration frcim Ex. J but that takes us no where. Our attention
D has not been drawn to any fact mentioned in the Report which shows
the direct relationship or connection between Debi Singh, Ramruch
Singh and Gajraj Singh and unless this is done the corroboration,
if any, is of no use at all. However, we shaH deal with this argument
for whatever it is wort~.
E
In the first place, it was contended that the oral evidence of
DWs 13, 21, 33, 34 and 35 corroborates the entries made in Ex. J.
We propose at this stage to refer briefly to the oral evidence only in
so far as it is alleged to corroborate Ex. J and· we· shall deal with the
main oral evidence after we have completed the discussioh of the
F documentary evidence.

It was contended by Mr. Tarkunde, which is also reiterated in
the Summary of arguments supplied to us, that the defence witnes~es
referred to above support some of the statements made in Ex. J. It
was argued that while the said Exhibit mentions Barisal Singh and
G Ramhit Singh.as among the fou~ zamindars who were in possession
of Taluka Majhwa, the oral evidence shows that Barisal ·Singh was
son of Ram Faquira who was one of the sons of Bansidhar Singh and
whose line became extinct with the death of his three sons, including
H Barisal. . In the first place, this argument is based on a wrong
interpretation of the terms used in Fx. J in respect of Barisal Singh
who has not been mentioned as being a direct descendant of Hirday
Narain Sin~h. .It is possible that Barisal Singh may have been
n1iwl v. RADHAKRISHNA (Pazal A'ii, J.) 853
distantly related to or formed a member of the brotherhood of
Hirday Narain Singh but the document does not at ali indicate that A
he was a direct descendant of Hirday Narain Singh.

Coming now to the -oral evidence on this point; reliance was
placed on the statement of DW 33 Bhairo Prasad who is 85 to 86
years old and is a resident of Mirzapur.. At page 436 of volume, I,
the witness states that Ram Fakir had three sons Barisal; Ram Singh
and Ratan Singh and that all the"three sons of Fakir Singh died
issuless. As regards the genealogy, he states that he came to · know
of the genealogy of Barisidhar Singh and his descendants from Nand
Kumar Singh and Jugal Bahadur Singh and from his own grandfather.
There is, however, nothing to show as to what special .means of c
knowledge regarding the genealogy he possessed. Secondly, ·the
witness has nowhere said that Barisal Singh arid others were directly ·
rela:ted to Hirday Narain Singh because that seems to be the main
link and the pivotal base of :the claim of the plaintiff. This witness·
was born in 1879 whereas the Report is of the year.1810. It is D'
obvious, therefore, that the. memory of Durga Prasad would be much
fresher and he would have better· knowledge than this witness to
prove the plaintiffs' genealogy and particularly the name of the
elders of Pahalwan Singh ·about whom he had to submit his Report. ,

E
.. Furthermore, we are nnable to see how the evidence of this
witness supports the. plaintiffs which merely says that Ram Fakir
. had three sons, viz., Barisal, Ram Singh aµd Rattan Singh. He ·does
not say anywhere in his evidence that either Ram -Fakir or his sons
were in any way connected with Hirday Narain Singh.. At another
place, the witness says .that Bansidhar Singh had three sons, ·viz,, F
Ramruch Singh, Ram Fakir and Debi Singh and •Gajrai Singh was
Debi Singh's son. In .the Report (Ex. J) there is abfolutely no
'reference either to Bansidhar Singh or to Ram Fakir Singh or
Ramruch Singh. The only person who' is mentioned in the Report
is Debi Singh who is ."aid to be a aOscendant of Hirday Narain
Singh. There is:also Iio reference to Bansidhar Singh ·in the entire
Report. Thus, the starting point of the genealogy given by him is
after the Report.(Ex. J) was subrnirted. We,are, therefore, unable to
see how the evidence· of this witness in any way corroborates Ex. J.

Reliance was then placed on "the evidence of DW 34, Nagendra
H
Kumar. Ai page ~46 of Voume I. This wiiness is aged 60 years
and claims to belong to Gautarn.gotra. He states that th~ 'l~cesto( .

•
854, . SUPREME COURT .REPORTS j198~j i s.c.lt

A .
of the mem.bers of his family was Babu Hansraj Singh who had two
son~, Harl Narain
.
Singh.and Hirday Narain. Singh. Hari Narain had
a son Sah, Makund and he claims to be a descendant of Makund
separated by several degrees below. He further states that Bansidhar
Singh was the son of Hirday Narain Singh. If the facts spoken by
him are ·correct then we should have expected a clear mention of the
name of his ancestor in Ex. J. On the other· hand. though Durga
B ·Prasad was expressly entrusted the task of finding out the details of
the elders of Pahalwan Singh yet he does·not mention that Hirday
Narain Singh was son of Hansraj Singh. In fact, there is no reference
to Hansraj Singh at all." He further goes on to state that Bansidhar·
Singh had three sons, namely, Ram Fakir Singh, Ramruch Singh and
C. Debi Singh. This is completely contradicted by the statements made
in Ex. J as discussed above. In the whole Report, there is absolutely
no reference either to Ramruch Singi) or Bansidhar Singh as being
connected with Hirday Narain Singh. For these reasons, therefore,
we are unable to agree with· the argument of the plaintiffs' counsel
that Ex. J is corroborated in any way by the evidence of this
D witness.

Reliance was then placed on the evidence of DW 35, Debi
Singh who claims to be a resident of mauza Majhwa and states that
his ancestors were residents of Majhwa and that Bikram Sah was ten
E degrees above him. According to his evidence Bikram Sah and
Bansidhar Singh were full brothers being sons of Hirday Narain
. '-o
Singh who was son of Hansraj Singh. His evidence is completely
falsified by the statemertts made in the Report where there is no
reference either to Hansraj Singh or to Bansidhar Singh. We have
shown from the contents of Ex. J that Durga Prasad bas clearly
F mentioned .the names of the ·sons of direct descendants of Hirday
Narain Singh. If Bansidhar Singh and Bikram Sah were really sons
of Hirday Narain Singh, he could not have missed this important
fact which was very pertinent for the purpose of his Report. The
witness then goes on to state that Bansidhar Singh had three sons,
G viz., Debi Singh, Ramruch Singh and Ram Fakir. While there
is clear reference to Debi. Singh in Ex. J, there is absolutely no
reference to Ramruch · Singh or Ram Fakir. Therefore, far from
corroborating the contents of Ex. J he positively contradicts the same;
Further ·comments regarding this witness would be made when we
H discuss the oral evidence of the parties. At present it is sufficient to .
to show· that the arguments of the respondents counsel that Ex. J is
~orroborated by the evidence of this witness are wholly untenable .

•
. ,..
• • iliiiAR v. -ilADHAkRISHNA (frazal Ali, J) sss
Reliance was then. placed on. the evidence of DW 36, Mahadeo
Singh .who seems to lie an interested witness because according to A
his .evidence his ancestors and those of Bhagwati Prasad Singh, father
. of the plaintiff, had been on visiting, dining and invit.ing terms with
the family of Babu Bhagwati Prasad Singh right from the time of h.is
ancestors. He states that Bhagwati Prasad Singh and Harendra.
Kishore Singh w_ere descendants from a common .ancestor who was
Babu Bansidhar Singh. Bansidhar Singh had three sons, Ramruch,
B
Jlam Fakir Singh and Debi Singh, and Gajraj Singh was a son of
Ram Fakir· Singh. His evidence ex facie does not corroborate the
Report (Ex. J). As in the case of previous witnesses, so here also·
we do not find any reference to either Bansidhar Singh or Ramnich
Singh. · It is impossible to believe that if Ramruch Singh or Gajraj · c
Singh were connected with· the f~mily of Hirday Narain Singh this
fact would not be mentioned in. the Report. Furthermore, neither
Bansidhar Singh nor the fact that Debi Singh was a son of Bansidhar
Singh has been mentioned in the Report, and this important event
could noi have been missed by Durga Prasad in his detailed and
copious Report. We shall deal with the intrinsic merits later but D
what we have said is sufficient to demonstrate that like other
witnesses, i.' e., DWs 33, 34 and 35 this witness also does not corro-
borate the Report of Durga Prasad. There is one important fact in.
in the statement of this witness which is that he says that Ramhit
Singh was a son of Madho Singh who was one of the sons of Hirday · E
Narain Singh. This is, however, clearly contradicted by the Report
of Durga Prasad which mentions that Rainhit Singh was the son of
Hirday Narain Singh and not of Madho Singh whose name has not·
been mentioned at all. This fact far from corroborating the Report
(Ex. J) directly contradicts. the said Report (Ex J); ·
F
As regards the documentary evidence which is said to corrobo-
rate· Ex. J, we might observe at this stage that if the probative value
Of Ex. J is zero, it can hardly be corroborated by any other document
which will have to be judged and examined on its own merits.
G

Reference was made to Ex. L which is a petition given by Raja
Udit- Narain Singh of Banaras seeking verification of his rights from
all the zamindars, lambardars and other revenue officials as also the
· respectable residents ofTaluka Majhwa, Pargana Kaswar, Sirkar of
'Banaras to the effect that that the entire taluka was the khas
ancestoral zamindari interest of Babu Pahalwan Singh, owne4 ~nd
856 SUPREME COURT REPORTS [!9S3j 2 S.C'R.

possessed by him generation after generation. This document is
A dated Match 14, 1818, ·about 5 years after Ex. J was submitted by
Darga .Prasad. Apart from the question of admissibility of this
document, it merely gives the history of the Zamindari of Raja of
Banaras and also mentions the fact that this Zamindari was purchased
by the father of the applicant for a sum of Rs. 59, 864. 11 annas. In
B the first ·place, the only purpose for which support is sought to be
mustered by the plaintiffs' is that there is a reference to Pahalwan
Singh as being a descendant of Udit Narain Singh. As Durga
Prasad was asked to find out the name of the ancestors of Pahalwan
Singh, this document is said to corroborate this statement made in
Ex. J. It is, however not very clear as to what was the occasion for
c sending this petition and what was the eventual fate which it met. It
is- merely a statement of Udit Narain Singh, and the document does
not show that it is based on his personal knowledge or that the
petitioner acquired knowledge from his ancestors. However, as it
is not disputed that Pahalwan Singh was undoubtedly an ancestor· of
the late Manaraja and his name finds place in the plaintiffs' genealogy,
nothing turns upon this statement because the defcnda·nt does not
dispute the genealogy not only up to Pahalwan Singh but even
h]gher. As discussed above, the.main link is to be_estab!ished between
Gajraj Singh, Ramruch Singh and Debi Singh. On this point, this
document throws no light at all and is therefore valueless. Nobody
E ever · disputed that Pahalwan Singh was not a grandson of Debi
'Singh. Even otherwise, the document Ex. L is of doubtful admissibi-
lity,

It was further contended that this .document supports the
F statement in Ex J that Debi Singh, Barisal Singh, Ramhit Singh and
Gajraj Singh were family members of Hirday Narain Singh. This
argument however, is utterly misconceived and is-based on a wrong
interpretation of Ex. J which nowhere shows that Debi Singh, Baiisa:l
Singh, Ramhit Singh and Gajraj Singh were family members of
Hirday Narain Singh. All that it says is that they belonged to the
brotherhood of Debi Singh. In fact, as we have shown, the names
~entioned in Ex. J regarding the parentage of Barisal Singh and
Rahl.hit Singh and Debi Singh are quite different from the case of the
plaintiffs. Furthermore, assuming that the aforesaid four persons
ere members of thefalnily of Hirday Narain Singh, Ex. J does not -----
H
show in what manner Ramruch and Debi Singh were related or that
Gajraj Singh was a son of Ramruch Shgh.
BitlAR v. RADHAKRISHNA (Pazal Ali, J.) 857

Reliance was then placed on Ex. DD (38)-vol. iv, page 251-
which is a judgment delivered on April is, 1801 in a suit between A
Deo Narain Singh and Mohan Singh, who, according to the. plaintiffs,
were grandsons of Gajraj !lingli in respect of zamindari of village
Baraini. Reliance was placed on the mention of the fact in Ex. J that
the settlement of village Baraini was made in favour of Mohan Singh
Whb was a descendant of Gajraj Siugh or Gajraj Sahi Assuming B
that this siathient is coriect, it does not .advance the case of the
plaintiffs imy ftirther becat1se ·Ex. J does not at .all show that Gajraj
Sirigh was a son of Ramruch Singh 1an\1 a grandson of Bansidhar
Singh or a nephew of Debi Singh.

Refererice was then made to Ex. F (!)-Vol.III, page 72 Ex. n c
at page 105 in the same volume, and Ex.DD (44) at page 107 in Vol.
IV, as being instances oi various grants made from time to time by
Debi Singh in taluka Majhwa. These documents merely corroborate
the statment in Ex. J that Debi Singh was one of the zamindars in
possession of taluka Majhwa. This fact is also undisputed and D
corroboration, or no corroboratiOn the appellants have not challenged
either the authenticity of this statement or the fact that Debi Singh
L . was a zainindar of taluka Majhwa.

Ex. NN (6)-Vol. V, page 215-consists of extracts from the
Banaras Gazeteer. This ·Gazeteer merely speeks of Barisal Singh as E
\, f,
being one of the persons who ware killed in the battle of Marui fa ·or
about the year 1719. It is not disputed that Barisal Singh was un·
doubtedly one of the zamindars of the village and was in possessjon'
of village Majhwa but this fact alone cannot prove any link or
conhection between the plaintiffs and ·Gajraj Singh or between Gajraj F
Singh and .Debi Singh.

. Ex.+r (Vol. IV, page 238) is another document which ·is reiied
ori Tot cormbotating Ex. J. This tlocument merely says that zamirt·
. dati patta of village falalpnr in t.aluka Majhwa was executed in
favour of Farman Singh and aftey 'his deatji his sons Zalim .Singh ·and
G
Ramhit Sirigh oiltaiil.ed 'Patti!. Assuming ihat the statement tnade
ab'oVe Is cbrrect, it only ·tak'es us fo Farman Singh who -is said to be
the·sbrt oT 'Gajraj Singh. We ·have already inilicated above that so
far as the plaintiffs' genealogy is concerned, the link upto Gajraj H
Singh on 'the tight siile atid up'to Debi Singh-0n the left side is clearly
prove\1 bat thilt .Q~s not substantiate the case oftlie plaintiffs unless
they 'further prove that ·Gajraj 'Singh was ~oii of Ratiiruch SinJlh aJid.
SUPkEME COUR'f REPORTS · [t98~l 2s.c.k.
a nephew of Debi Singh. If this link is· missing, the claim of the
A plaintiffs must fail. --...-
r --...,
.-
Similarly, Exhibits GGG-3, GGG-4, GGG-5, GGG-6 and
<;lGG-8 at pages 187, 192, 209, 188 and 208 {in volume lV) respec·
tively are documents in the nature or mortgage deeds executed by the
B heirs of Gairaj · Singh in respect of Zamindari interest in viJlage
Baraini. These documents also are hardly relevant for the purpose of
proving the plaintiff's genealogy or to show that he was the next . and
m~arest_ reversioner of the. late Maharaja.

• Similarly, Ex. WW {Vol. IV, page 185) proves that the
c zamindari patta in respect of village Baraini was granted to Mohan
Singh, a fact mentione.d in Ex. J which is not at all relevant for our
purpose in.determining the correctness of the plaintiff's genealogy.

,.. Ex. SS (Vol. IV, page 376) is a Report of Salik Ram,
D S.erishtadar Sadar (Deputy Collectqr) in respect of the settlement of
village Baraini and subsequent transact.ions in respect of. the zamin·
dari of that village •. This document refers to the settlement of the
vill~ge in favour ~f Mohan s£ngh in 1197 Fas!i and records subse:
quent transfers. Mohan Singh's name is also mentioned in Ex. J and
to this extent it corroborates the Exhibit but this corroboration is of
no use because there is no dispute that Mohan Singh was a grandson.
of Gajraj Singh.

. Thus, all the documents referred to above and ·relied upon by
the· plaintiffs-respondents for corroborating Ex. J are practically of no .
F; value in determining the -real controversy in issue. The plainiiffs
seem to have got hold of several old documents wherever they. coyld·.
find the same and wherever they found the names of.the descendants
of Debi Singh or Gajraj Singh, without laying their pands on. any
document whic)l may show that Debi Singh, was son of ~ansidhar .
Singh and own brother of Ramruch Singh who ·also was another son .
of Debi Singh, and that Gajraj Singh was son of Rarriruch Singh. In ..
fact, the last of the ancestors shown in the plaint genealogy is.:
Bansidhar Singh whose name also does not find any mention in Ex.·
J. But, for purposes of this case we may assum~ tbat Bansidhar Singh
was
'
the highest .ancestor of the 'late Maharaja and hence unless it is
proved that Bansidhar Singh had two sons-'-Debi Singh and Ramruch ·
Singh;-and Ramruch's son was Gajraj Singh, the genealogy relied
upon by the plaintiff cannot be said to have been proved. ~t is uot.
'"'·,, - - - .. - ', ' " - 1
.. · lllliAR v. iW'>HAKRISHNA (Pazal Ali, J.)

necessary for us to make any further comments on these documents
because they do not show· anything beyond what we have said. A

The explanation which is sought to be given by _the respondents
for the absence of names of Bansidhar Singh and Ramruch Singh .is
that since Durga Prasad_ was writing the report in the year 1810, by
which time both Bansidhar and Ramruch had already died, there B
could be no. question of their names finding a place in the Report. This
argument.in our opinion, is wholly untenable. We have already point-
ed out that .the main task with which Durga Prasad was entrusted was.
to find out the ancestors. of Pahalwan Singh and if Bansidhar and
Ramruch were really the ancestors of Pahalwan Singh, their names
could not have escaped the attention of Durga Prasad particularly c
when the name of Hirday Narain Singh, who is higher than Bansidhar
Singh, is mentioned in the Report conspicuously. Secondly, in view
of the scope of the enquiry embarked upon by Durga Prasad, he had
to find out the ancestors. from the records and he says very clearly in
qis Report !hat his. information was based on records in the Serista, D
particularly the Tumar (accou_nt book). Jf Bansidhar and Ramruch
had in fact been directly connected with Debi Singh or Pahalwan
Singh, th~re is no reason why Durga Prasad should not have men-
tioned their ~ames. as being ·anc_estors. of pahalwan Singh who
appeared to be only 2 to 3 degrees remote from them. In these cir- ·
cµmstances, 'therefore, the absence of the names of the aforesaid E
persons in Ex. J is, in our opinion a conclusive circumstance to; show
thaf there was no· relationship between Bansidhar, Raniruch and
Paba]wan Singh. This conclusion is further fortified by the fact that
even Gajraj Sahi. (or Gajraj Singh) who was the only son or'
Ramruch and a grandson o_f Bansjdhar, finds specific mention in the
Report. For these reasons, we reject. the explanation given by the F
respondent on this point.

In view of ·out analysis of the docull)ent, we need not go into
t~eir admissibility though it is extremely doubtful, how the .statements
lllad~ by various persons without disclosing their means of knowledge G
can be said to be admissible. ·

lt appears to us that what the.plaintift's seelll _to have done in
this case is that· taking advantage of the recitals in Ex. J and of
certain names of persons who were in possession of Manza Majhwa H
ahd village Baraini, they took Ex: J as the b_ase fore ;elying on some
statments
... , ,.
and observations made by Durga Prasad out of context
SUPREME ·COuRT REPORTS tt 983) 2 s.c.R.
and tried to connect Gajraj Singh with .Bansidhar Singh by an
ingenious process of joining tits and bits, pieces and patches 'here
and there so as to reconstruct an exotic genealogy by inserting 'Willy-
nilly Gajraj. Singh and Bansidhar Singh as being their ancesto.rs. The
methodoiogy adopted by them. has achieved precious little and is
nothing but a futile and an acrimonfous exercise.
B
We have already shown that the scheme followed and the
modus operandi adopted by the plaintiffs are based on an incorrect
translation artd wrong interpretation of the meaning of actual 'words
hi Persian with ihe result that the entire scheme followed by them
instead of effectuating the goal sought to be achieved by them, has
c . rendered their case totally abortive. With these findings and obser-
vations we cfose the chapter so far as Ex. J and its alleged corrobo-
ration by documentary and oral evidence is concerned.

We· now pass on to the next limb of the argument of the
plaintilfs-responderits, viz.;that there are utiimpeacheable documents
which throw ii flood of light on the case propounded by them lri
their plaint. fa this connectio'n, they have relied on private docu-
ments, public documents, recitals in judgnients, judgments inter
parties as also judgment which are not inter parties saledeeds, mort-
gage deeds arid other documents of a simlar nature which we :Proceed
E to discuss here after but before doing so we would like to expound
the legal position of the admissibility of most of the documents
. which ·hilve been flied liy the plaintiffs in support of their case. For
this purpose, the documents may be classified under three heads-

(I) documents which are per Se inadmissible,

(2) recitals in judgments not inter parties, and

(3) documents or judgments post /item mota,i1,

, In order to put the record straight we would briefly discuss the \ ·,
G the case law cin the subject and refer to s!'me of the important
authorities of this Court and those of the Privy Council or some of
the High Courts which appear to us to be very relevant.

Taking the first head, it· is well settled that judgments of court~
·are aomissible in evidence under the .provisions of sections 40, 41 '
aiid 42 of the Evidence Act. Section 43 which ·is extracted below,
cleai'Iy provides that those judgments whkh. do' not fall within the
llJHAR v. MDl!AlCRISll);A
' - . '
(Fa;:a/
' . ' .
Ali, /.}
~
,861
.,_,,
~--

four corners of sections 40 to 42 are inadmissible unles~ the existence
>--'-" 'Y-- of such judgment, order or decree is itself a fact in issue or a relvant A
fact under some other provisions of the Evidence Act :-'-

"43. Judgments, etc., other than those mentioned in
Sections 40 to 42, when relevant:._· Judgmenis, oqiers OF
. decrees, other than those mentioned in sections 40, 4i and
B
42, are irrelevant, unless the existence of such judgment,
order_ or decree . is ·a fact in issue, or is relevant under
some other provision of tliis Act."

Some Courts have used section 13 to prove the admissibility of
a judgment as coming under the prov\sions- of s. 43, referred to c
above: 'we ar~. how~ver, of the opinion that ~here there is a specific
provision covering the admissibility of a documeni, it is not open .to
the court to call into aid other general provisions in order to make a
particular document admissible. In order words: if. judgment is a
• not a\im'issible as not falling-within th~-ambit of section~ 40 to 42, it
must fulfil the conditions of s. 43 otherwise it cannot be relevant
under s. 13 of the Evid~nce Act. The ,;,ords "other' pr>ivisio~s of this
Act" cannot cover s. 13 because thi~ section does not. deal with
judgments at all.

It is also well settled that a judgment in rem like judgments
.E
passed in p-robate, insolvency, matrimonial or guardianship or other
similar proceedings, is admissible in all cases whether such judgments
are inter parties or not. In the instant case, however, all ihe
documents consisting of judgments filed are ·not judgments in rem
and therfore, the question of their admissibility on that basis does· not
arise, As mentioned earlier, the judgments filed as Exhibits . in the F
instant · case, are judgmenis in personam and therefore, they do not
fulfil the condit'ions mentioned in s. 41 of the Evidence Act.

It is now settled · law that judgments not inter parties· are -
inadmissible in evidence barring ex_ceptional eases which we shall
point out hereafter. 'In Johan Cockrane v. Hurroso'ond1p7i ·Debia & G
Ors.,( 1) Lord Justice Bruce while dealing with the question of admis-
sibitlity of a judgment observed as follows:

"With r~g~r~ to t~~ judgm~tit_ 9,f the SuP,!eme Court,
it is plain; t1Jat c9nsi~eri~g the parties !O, tile s\lit \~ V(hich H

(l) 6 M.J,A. 494,
'
-
'· '1
. SUPREME COURT REP<iRTS ' '· [1983 2 S.C.R.

that judgment was given, it is not evidence in the present
A case... We must recollect, however, not only that that .
suit had a different object from the present, independently.
of the. difference of parties, but that the evidence here is
beyond, and is different from, that which was before th.e
. Supreme Court upon the occasion of delivering that judg•
B ment."
Itis true that in the above-mentioned case their Lordships felt
that in some cases a decision. proceeding. from : a Tribunal must be
given· due defference but cases like the one which was being dealt --".
with by their Lordshl_ps the judgment was not ·admissible. ., . \
c In Jogendro Deb Roy Kut v. Funindro Deb Roy Kut(') the
following observeations were made :
a
"lf such suit, as the first suit, was brought here and
. tried according to the law of this Gountry there co_uld 1101
D
be a pretence for saying, that the judgment in it was any" •
thing like judgment in rem or that it could_ bind any but
the. parties to the suit. ..... It is sufficient for their Lord-
ships to say, that the judgment pleaded in this case in bar
cannot be treated as one . of that nature upon any
principles, whether derived from the English Law or from
E the Law and practice of India, which can be applied to
it."
In the case of Gujju Lall v.' Fatteh La/1(2) a Full Bench
exhausiively considered the ambit and scope of ss 40 to 43 of the
. Evidence Act and observed thus :
F
"On the other .hand, when in a law. prepared for such
a purpose, ancl under such- circumstances, we find a group
of several sections prefaced by _the·iitle "Judgments of
Courts ofJustice when _i:~Ievant," that' seems to be a g0od:
reason for thinking that, as far · as :the Act goes, the
G · relevancy of any particular judgment is to· be allowed or
disallowed with reference to those sections .

. I have had. the opportunity of reading the judgment
H. which the Chief Justice proposes to deliver, as· well the

(I) 14 M.I·A. 367 .
. (2) I.T.R.. 6 Cal. 171.

- 1'
' .... - - -

. ' BlllAR v. RADHAKR!SHNA (Fazal:Ali, J.) 863'.

observations of niy brother Pontifex, in both of which I
generally concur, and for the reasons there stated, and A
. those which I have shortly given, I consider the evidence
inadmissible,"

And Garth, C. J. made the following observations :

"It is obvious that,. if the construction which · the B
respondent's counsel would put upon s. 13 is· right, there
would be no necessity for ss. 40, 41, and 42 at all. Those ·
sections would then only tend to mislead, because the -
judgments which are made admissible under. them would
all be equally admissible as "transaction" .under s. 13,
and not only those, but an infinite variety "of othor judg- c
ments ·which had never before been· admissibl€ either in
this country or in England. And it is difficult to conceive
why, under s. 42; judgments though not between the same
.·parties should be dec/are'd admissible so Jong as they related
to matters of a public nature, if those very same judgment D
had already been made admissible under · s. B, whether
they relilted to matters of a public nature or not,. ..

I am, therefore, of the. opinion ..that the former E
judgment was not admissible in the present'.suit." .
· .(Emphasis ours)

In· Gadadhar Chowdhury & Ors .. v. Sarai Chandra Chakravarty
& Ors.(') it was held tpat findings in judgments not inter· parties are
not admissible in evidence. In this connection ·a Division Bench of F
the Calcutta High Court observed as follows :

"Though the recitals and findings in a judgment
not inter parties are not- admissible in. evidence, such a
judgment and decree are, in our opinion, admissible .G
to prove the fact that a decree was made ·ill a suit .
between certain parties and for finding out .for what lands
the suit had been decreed." ..

Thi~, in our. opinion, is. the correct legal positipn regan)ing
the admis'sibility of judgments not inter parties, · ·'

(') 44 c.w.N. 392.
...

864 SUPREME COUR'I' REPORTS [1983] 1 S.C.R,

In Maharaja Sir Kesho Prasad Singh .Bahadur v. Bahuria Mt.
A Bhagjogna 'Kuer & Ors.( 1)., the Privy Council made the following
observations :

"Whether based upon sound general principle or merely
supported by reasons of convenience, the rule that so far as
regards the truth of the matter decided a judgment is not
B admissible .evidence against one who is a stranger to the
·suit has long been accepted as a genera/ rule in English law.

Their Lordships find themselves in agreement with the -
·C observation of Ross, J :

'The judgment is not inter parties, nor is it a
judgment in rem, nor does it refate to a ma.tter of· a
public nature .• The existence of the judgment is not a .
· fact in !issue; and if the existence of the ·judgment is ·
D relevant under some of the provisions of the Evidence t
Act it is difficult to see what inference can be drawn from
its use under these sections.
•
Serious consequences might ensue as regards tities to
E land in India if it were recognised that a judgment against
a third party altered the burden of proof as between rival
claimants, and much 'indirect laying' might be expected T
to follow therefrom." (Emphasis supplied)

This principle was reite1ated.in the case of Coca-Co/a Co. of.
F Canada Ltd. (already referred to on ihe question of relevancy of
dtctionary while dealing with Ex. J) where their Lordships in most
categorical terms expressed the view that no judgment which was
not inter parties or the one to which neither the plaintiff nor the de-
fendant were parties could be used in evidence for 'any purpose. It
appears that in the •case referred to above the President of the
G Exchequer Court had relied on facts found in ·the judgment of the
. Chancellor and drawn support from the uncontradicated. evidence
given by the Chancellor. The Privy Council diprected this practice
of relying on judgments which were not inter parties in the sense
that a judgment in which neither the plaintiff nor the defendant were 1.~>-
H parties, and jli this connection Lord Russell observed thus ;

(I) A l.R. 1937 p:c. 69.
BIHAR v~ RADHAKRISHNA (Fazal Ali. J.) 865

"The learned President relied on this judgment" as
very formidable support to the plaintiff's contention that A
.••there is likelihood of confusion"; but in their Lordships'
opinion he was not entitled to refer to or rely upon a
judgment given in proceedings to which neither the plaintiff
nor the defendant was a party, as proving the facts stated
therein." (Emphasis supplied) B
We entirely agree with the observations made by the Privy
Council which flow from a correct interpretation of sections 40 to 43
of the Evidence Act.

Same view was taken by a full Bench of the Madras High C
Court in Seethapti Rao Dora v. Venkanna Dora & Ors( 1). where
Kumaraswami Sastri, J. observed thus :

"I am of opinion that sectiort 35 has no application
to judgments, and a judgment which would not be ad-
missible under sections 40 to 43 of the Evidence Act
D
would not become relevant merely because it contains a
a statement as to a fact which is in issue or relevant in a
suit between persons who are not patties or privies.
Sections 40 to 44 of the Evidence Act deal with the rele-
vancy of judgments in Courts of justice." E

The cumulative effect of the decisions cited above on this point
clearly is that under the Evidence Act a judgment which is not inter
parties is inadmissible in evidence except for the limited purpose of
proving as to Who the parties were and what was the decree passed
··---< F
and the properties which were the subject matter of the suit. In
these circumstances, therefore, it is not open to the plaintiffs-
respondents to derive any support from some of the judgments which
they have filed in order to support their title and relationship in
which neither the plaintiffs nor the defendants were parties. Indeed,
if the judgments are used for the limited purpose mentioned above, G
they do not take us anywhere so as to prove the plaintiffs case. •

It is also well settled that statements or declarations before
persons of competent knowledge made ante /item motam are recei-
vable to prove ancient rights of a public or general nature vide H

(I) I.L.R. 45 Mad. 332,
..... ----
_

866 SUPREM!l COURT REPORTS [1983] 2 S.C.R.
Halsbury's Laws of England (Vol. 15: 3rd Edition, p. 308) where the
A following statement is to be found :

"Declarations by deceased persons of competent
knowledge, made ante /item motam, are receivable to
prove ancient rights of a public or general nature. The
admission of declarations as to those rights is allowed
B partly on the ground of necessity, since without such
evidence ancient rights could rarely be established; and
partly on the ground that the public nature of the rights
minimises the risks of mis-statement."
,. ""
c The admissibility of such declarations is, however, considerably
weakened if it pertains not to public rights but to purely private
rights. It is equally well settled that declarations or statements made
post /item motam would not be admissible because in cases or
proceedings taken or declarations made ante /item motam, the
element of bias and concoction is eliminated. Before, however, the
D statements of the nature mentioned above can be admissible as being r
ante /item motam they must be not only before the actual existence of
any controversy but they should be made even before the commence-
ment of legal proceedings. In this connection, in para 562 at page 308
of Halsbury's Laws of England (supra) the following statement is
E made:

"To obviate bias, the declarations must have been
made ante /item motam, which means not merely before
the commencement of legal proceedings, but before even
the existence of any actual controversy, concerning the
F 'ubject matter of the declarations. So strictly has this
requirement been enforced that the fact that such a
dispute was unknown to the declarant, or was fraudulen-
tly begun with a view to shutting out his declarations, has
been held immaterial."
G
• This position however cannot hold good of statements made
• post Item motam which would be clearly inadmissible in evidence.
The reason for this rule seems to be that after a dispute has begun
or a legal proceeding is about to commence, the possibility of· bias,
H concoction or putting up false pleas cannot be ruled out. This rule
of English law has now been crystallised as one of the essential
principles of the Evidence Act on the question of admissibility of
judgments or docuwents. M.M. Prased, J, bas dealt with this
BIHAR v. llADHAXRISHNA (Fazal Ali, /.) 867

~ r aspect of the matter fully and we entirely agree with the opinion
expressed by him on this point In fact, section 32 (5) of the A
Evidence Act itself fully incorporates the doctrine of post /item motam
the relevant portion of which may be extracted thus :

"32. Cases in which statement of relevant fact by person
who is dead or cannot be found, etc., is relevant
B
(5) .... the person making the statement had special
means of knowledge, and when the statement was
made before the question in dispute was raised."

In Kalka Prasad & Ors. v. Mathura Prasad (1) the Privy
Council refused to accept a pedigree which was of the year 1892
c
because the controversy had originated in the year 1891, that is to
say, a year before the pedigree was filed. In this connection, com-
menting on the genealogy relied upon by the plaintiff their Lordships
observed as follows :
D
"Taking them in the reverse order, the last is inad-
missible, having been made post /item mo tam.

In order to make the statement inadmissible on this E
ground, the same thing must be in controversy before and
after the statement is made."

In Hari Baksh v. Babu Lal & Anr.(') their Lordships observed
as follows:
F
"It appears to their Lordships that these statements
of Bishan Dayal who was then an interested party in the·
disputes and was then taking a position adverse to Hari
Baksh cannot be regarded as evidence in this suit and
are inadmissible."
G
It appears in that case one Bishan Dayal who was the defendant
in a suit for partition which was brought on August 7, 1908 made a
Will on the 26th November, 1908, that is to say, about two and a
----- half months afther the suit was filed, The statement of Bishan
H
(I) I.LR. 30 All. 510.
(2) A.l.R. 1924 P.C, 126.
868 SUPRl!MB COURT llEPOllTS . ( 1983) 2 S.C.R.

Dayal in the suit of 1908 was sought to be relied on but the Privy
A Council held the statement to be inadmissible because he had 1· ··
already become an interested party and the case, therefore, had been
hit by the do~trine of post /item motam.

In Do/gobinda Paricha v. Nimai Charan Misra & Ors. (1) this
B Court held that the statement in question was admissible because it
was made before the question in dispute had arisen. In other words,
this Court held that in the facts and circumstances of that case the
statement and the pedigree relied upon were made ante /item motam
and not post /item motam, for if the latter had been the case, the · --1
document would have become madmissible and in this connection
C the Court observed thus :

"That being the position, the . statements as to
pedigree contained in Ex. I were made before the precise
question in dispute in the present litigation had arisen."
D Jn Kalidindi Venkata Subbaraju &Ors. v. Chinta/apati Supparaju
& Ors( 2). while construing the provisions of cl. (5) of s. 32 of the
Evidence Act this Court observe as follows:-

"Both sub-ss. 5 and 6 of s. 32, as aforesaid declare
that in order to be admissible the statement relied on must
E be made ante /item motam by persons who are dead, i.e.,
before the commencement of any controversy actual or
legal upon the same point."

Relying on an earlier case of the Privy Council this Court )
F further observed thus : I
"In Kalka Prasad v. M(lthura Prasad('} a dispute
arose in 1896 on the death of one Parbati. In 1898 in a
suit brought by one Sheo -Sahai a pedigree was filed. After
·G this, the suit from which the appeal went up to the Privy
Council was instituted in 1901. It was held there that
the pedigree filed in 1898 was not admissible having been
made post /item motam."

..ff
(1) [1959] Supp. 2 S.C.R. at p. 356.
(2) [1968] 2 S.C.R. 292.
(3) 35 I.A. 166.
. li1llAR. v. RADltAKIUSHNA (Pazal Ali, J.) 869

Thus, summarising the ratio of the authorities mentioned
above, the position that emerges and the principles that are deducible A
.,.,.... r from the aforesaid dicisions are as follows:-

(I) A judgment in rem e. g., judments or orders passed
in admiralty, probate proceedings, etc., would always
be admissible irrespective of whether they are inter
parties or not, B

(2) judgments in personam not inter parties are not at all
admissible in evidence except for the three purposes
mentioned above.

(3) On a parity of aforesaid reasoning, the recitals in a
c
judgment like findings given in appreciation of
evidence made or arguments or genealogies referred
to in the judgment would be wholly inadmissible in a
case where neither the plaintiff nor the defendant
were parties. D
(4) The probative value of documents which, however
J. ancient they may be, do not disclose sources of their
information or have not achieved sufficient notoriety
is precious little.
E
(5) Statements, declarotions or depositions, etc., would
not be admissible if they are post !item motam.

We would now discuss the evidence both oral and documentary

- in the light of the principles laid down by the aforesaid decisions.
By way of introduction, it may be noted that in the present case the
onus lies squarely on the plantiff Radha Kirshan Singh to prove his
case by showing that he was the next reversioner of the late
Maharaja and that every·link in the genealogical tree which he has
F

set out in the plaint was proved. Only after he has discharged his G
burden by proving the aforesaid facts, could the defendents be called
npon to rebut their case. On a careful scrutiny of the evidence it
seems that what the plaintiff has done is to file any and every docu•
ment, deposition, statement, declaration, etc., where there is any
genealogy which connects him with either the Maharaja of Banaras or H
his gotias without making any attempt to prove the main link on
which rests the entire fabric of his case. The result has been that the
plaintiffs have landed themselves into a labyrinth of delusjon an<l
StlPREMB COURT RBi'ORts

darkness from which it is difficult for them to come out and the case
A made out by them has been reduced to smithereens and smoulders
and despite all their snaring and snarling they have miserably failed --r· ~·
to prove the pivotal point viz., the link between Ramruch Singh, ·
Gajraj Singh, Debi Singh and Bansidhar Singh.

B With these introductory remarks we now proceed to discuss the
evidence led by the Plaintiffs on the points indicated above.

In considering the documentary evidence we shall begin with
the documents Exhibits P/2, V., DD/30 and DD/31 which are closely
connected documents. It would appear from the plaintiffs,
c genealogical tree, which for the sake of convenience has been put at
one place in Volume VIII at page 131 and which has been extracted
earlier in this judgment, that Balbhadra Singh was grandson of
Pahalwan Singh and Sangam Kuer was his sister who died issuless.
Bhola Singh, on the right hand side of the genealogy, was grandson
D of Farman Singh and son of Deo Narain. It is therefore, obvious that
after the death of Jaimed Kuer, Bhola Singh could not be her next
reversioner, whe would be Harendra Kishore Singh. Thus, the title
conveyed by Bhola Singh to Maharaja of Banaras under a sale which
was the subject matter of Ex. DD/30 was a bag of wind and is the
surest proof of the fact that the transaction in question was merely a
E sham transaction. Tte contents of the Sale Deed, Ex. V also show
that it was without consideration because it contains extraordinary
terms and recitals which will be discussed by us hereafter and which
were seriously commented upon by the judgment Ex. DD/30 rendered
by the trial court in that suit.
F
Coming now to the Sale Deed (Ex. V) at pages 33-34 in Volume
III, it appears that the property sought to be sold actually belonged
to Mst. Jaimed Kuer who died in 1881. Jn the Sale Deed Bhola
Singh claimed (in our opinion falsely) that he was the legal heir of
G Jaimed Kuer whereas as the true legal heir was the late Maharaja.
According to the Sale Deed the properties in question were sold to
Prabhu Narain Singh of Kashi (Banaras) for a sum of Rs. 25,000.
In the sale deed, Bhola Singh had clearly described himself as the
sole heir of Mst. Jaimed Kuer, which was admittedly false because
H even according to the plaintiffs' genealogy the nearest heir, as we
have already indicated, would be Harendra Kishore Singh and not
Bhola Singh. Secondly, another extraordinary feature of the Sale
. Dei;d is that out of the consideration money of Rs. 25,000 a sum of
BJHAR v. llAo!IAkR1sllNA (Fazal Ali, i.) 87\

Rs. 12,500 that is to say, half the amount, only was paid to the
vendee. Furthermore, a set off of Rs. 9979/10/8 (nine thousand nine A
hundred seventy nine and annas ten and pies eight) was given to the
vendee in respect of the rehan money payable to him which was said
to have been taken by Jaimed Kuer from the Maharaja of Banaras.
Another sum of Rs. 5,000 was left in deposit with the vendee in order
to meet the expenses for recovering the properties which were in B
possession of other persorrs. The balance of the consideration of
Rs. 10,022.5.4 (ten thousand twenty two and annas 5 and pies four)
was received by the vendor, Bhola Singh, in cash out of which
Rs. 2020-5-4 (two thousand twenty and annas 5 and pies four) were
spent on the execution of the sale deed and Rs. 8,000 was again left
in deposit with the vendee for his satisfaction till the document was c
executed. As Bhola Singh himself was fully aware that he had no
title to the properties at the time of the sale, he on the one hand,
deposited the entire consideration money, excepting a very small
amount, with the vendee and, on the other hand, made no secret of
the fact that these amounts were to be spent by the vendee to meet
the expenses of litigaton arising out of the defect of title. Thus, on
D
r
a perusal of the recitals of the sale deed, it would appear that out
of a consideration amount of Rs. 25,000 a paltry sum of Rs. 1700
was taken by Bhola Singh which shows the very peculiar and
J pretentious nature of the transaction. In other words, Bhola Singh
sold the properties for a song knowing full well that he had no E
interest in the properties. Although the sale was in respect of the
properties of Mauza Majhwa, District Mirzapur, yet the sale Deed
was registered in Banaras town and in order to give jurisdiction to
the Sub Registrar of Banaras a miserable mud built house covered
with earthen tiles was given to the Maharaja Prabhu Narain Singh.
Most of the witnesses to the sale deed hailed from Mirzapur. The F
properties which were mortgaged to Mahadev were sold to the
Maharaja of Banaras under this document. Most of the witnesses
> to the sale deed were from Mauza Baraini or Majhwa and there was
only one witness from Banaras. The transaction, therefore, mani-
festly shows that since all the properties sold were in District G
Mirzapur, just to make a show of sale in respect of Banaras property
also, the mud house was included in the sale deed. Thus, the main
purpose for which this document has been relied upon by the
plaintiffs-respondents is that it' gives a genealogy which, according to
them, supports that they were the descendants of Bansidhar Singh, .ff
The said genealogy is reproduced below : · ·
'·

sUPREi.iB cotiRT RBPollTs l!~SM 2s.c.~.

Babu Bansidhar Singh
A
First wife Second wife
Babu Ramruch Singh, died Babu Debi Singh, died
Babu Gajraj Singh, died Babu Aini Singh, died
Babu Farman Singh, died Babu Pahalwan Singh, died
Babu Deonarain Singh, died Babu Tilak Singh, died
B Babu Bhola Singh alive Babu Balbhaddar Singh
Thakurain ]aimed Kuer,
deceased, wife of Babu
Balbhaddar Singh, deceased

c The contention of Mr. Tarkunde, was that this genealogy was
filed at a time when there was no dispute between the parties and it
fully supports the plaitiffs' case as it sho ~ s that Bhola Singh on one
side is a direct descendant of Gajraj Singh, Ramruch Singh and
Bansidhar Singh, and Thakurain Jaimed Kuer was a direct descen-
dant of Debi Singh, son of Bansidhar Singh. It is impossible to
D infer that this genealogy is correct and connects all the necessary
links in order to prove the plaintiffs' case as put forward in the
plaint. For instance, Deep Narain Singh, elder brother of Bhola
Singh has not been mentioned at all in this genealogy. Similarly,
Pratap Narain Singh who was a great-grandson of Gajraj Singh has .'+
not been mentioned in this genealogy, and also the name of
E Raghunath Singh who was son of Aini Singh is also not mentioned
therein. Moreover, no legal value or significance can be attached to
the genealogy when the terms and recitals of the document have been
found to be false and the court in which the suit based on the sale
deed was filed was clearly of the opinion that the entire transaction
F was a sham one. Thus, there can be no guarantee of the truth
of the statements made by Bhola Singh or even the genealogy
given by him in that sale deed. Therefore, the genealogy is
incorrect, inaccurate and incomplete and no reliance could be
placed on this document for the purpose of proving the plaintiffs'
genealogical tree. The trial cowt had rejected this document (Ex. V)
and so had one of the Judges (M.M. Prasad, J.) in the High Court
and, in our opinion, rightly.
Lastly, regarding this document, it may be mentioned that soon
after the execution of the sale deed the late Maharaja had already
H been substituted as the heir of Jaimed Kuer as proved by the __ __......_-
documents Ex. U/3 and DD/43 and ultimately Narendra Kishore
Singh was held to be the legal heir of Jaimed Kuer by the Allahabad
Hit;1h Court by its judgement dated 13.4.88 (Ex. DD/43). In these
lll!Wt v. RAfJltAKRISHNA (Pazai Aii, J.)

circumstances, since the question of succession had opened between
the parties the document Ex. Y would also but rut by the doctrine A
-' r· r of post /item motam and, therefore, it is inadmissible in evidence
under s. 35 of the Evidence Act and hence has to be excluded from
consideration.

Coming now to Ex. DD/30 (Vol. IV, page 116) which is the B
judgment given in respect of the Sale Deed (Ex. V) which we have
discussed above, the trial court after a full and complete considera-
tion of the contents of the document held that Bhola Singh had no
right to execute the sale deed, and that the plaintiff did not purchase
any legal right. The court also held that Bhola Singh was not the
next reversioner of Mst. Jaimed Kuer and that the consideration was
c
also illusory. In other words, the tiral court rejected the case of the
plaintiff in toto in that suit.

Reliance was sought to be placed by the counsel for the plaintiff
on ·some recitals in the judgment regarding the genealogy and the D
statement of some of the witnesses examined before the Court.
However this question need not detain us any further because we
have already heUI from the reported decisions of this Court as also
those of the Privy Council that a recital of facts or evidence or even
genealogy in judgments not inter parties are totally inadmissible in E
evidence. The judgment Ex. DD/30, was no(\ a judgment inter
parties and therefore any recital or statemei:it made therein would
not b' admissible to prove the plaintiff's case. The argument of
Mr. Tarkunde that Ex. DD/30 speaks for the whole of the genalogical
table of the family as being correct, is tiot an accurate description of

-
the genealogy because the judgment also mentions the fact that the F
genealogy was disputed. Even so, taking the judgment ex facie it ,
would appear that Ex. DD/30 bases its conclusion that Bhola Singh
was a descendant of Bansidhar Singh solely on the deposition of
Har Nandan Singh but as the deposition of this witness was not even
produced in the present case, any statement made with respect do G
Har Nandan Singh would be completely inadmissible and cannot be
taken into consideration for <iny purpose whatsoever. Furthermore, it
has not been shown that Har Nandan Singh was in any way related
to the family of Bhola Singh or to the late Maharaja so that he may
.....___ hav~ any special means .of knowledge and on this account also his H
statement is hit by s. 32(5) of the Evidence Act. Again Har Nandan
Singh's evidence in the suit, whlch was decided by Ex. DD/20, clearly
· shows that Banai<thar Singh h.ad a son ~nown as Ramhit Sinjh whose
·.
SUPREME COURT REPoRTS t1983i 2 s.c.lt
descendants had appeared as witnesses but Ramhit Singh finds no
A mention at all in the plaint genealogy. In these circumstances
therefore, we are unable to place any reliance on the judgment Ex'.
DD/30.

Coming now to the appeal judgment, Ex. DD/31, (Volume IV,
B page 121) the appellate court affirmed the finding of the trial court
and found that Bhola Singh was not a reversioner of Jaimed Kuer
and, therefore, had no title to sell the properties to the late Maharaja
The appellate court further found that the whole tenor of the sale
deed shows that the Maharaja of Banaras purchased a litigation.
Reliance was placed by Mr. Tarkunde on certain recitals pertaining
c to genealogy but even though the Judge held that the late Maharaja
was a descendant of Raghunath Singh yet there is no mention of
Raghunath Singh in the genealogy given in that suit. Moreover, the
genealogy given in Ex. P-2 is totally inconsistent with and different
from the genealogy propounded by the plaintiffs. A number of names
and heirs of the two lines of Bansidhar Singh, that is to say, Debi
D Singh and Ramruch Singh have not at all been mentioned in this
genealogy. The name of Raghunath Singh, one of the sons of Aini
Singh, in Suit No. 130 of 1856 filed by Suman Kuer in respect of a
pond known as Hansraj Pokhra in Majwa village is conspicuous by
its absence. The explanation given by the counsel for the respondents
E was that itwas not necessary to give the name of all the heirs of
Bansidhar Singh or for that matter of Debi Singh, hence these
omissions in the genealogy. We are, however, not at all impressed
with this explanation because some of the names not mentioned in
the genealogy in Ex. P-2 are supposed to be based as links in order
to prove the plaintiff's right to be the next reversioner of the late
F Maharaja whose name also does not find a place in this genealogy
although he is supposed to be a direct descendant of Debi Singh.

Before closing the discussion of the documents referred to
above, viz., Exhibits, V, DD/30 and DD/31, it may necessary to
G notice the arguments which were .advanced by Mr. Tarkunde with
some amount of vehemence. As regards Ex. V, the sale-deed
executed by Bhola in favour of Maharaja Prabhu Narain of Banaras,
it was contended that even though Bhola may not have been the
actual reversioner of Jaimed Kuer yet as·the late Maharaja was not
H interested in the properties covered by Ex. V he did not raise any
objection although he knew about the execution of the said sale
deed. Hence, it could be safely presumed that Bhola was the
de facto though not de jure reversioner of Jaimed Kuer because he
iliJtAll. v. RAbliAKR1SHNA (Paza/ Ali, J.)

· was next in the line after the late Maharaja. In order to buttress
this argument reliance was placed by counsel for the respondents on A
some observations of Mukherji, J. to be found in volume VIII, para
69, page 219. With due respect, the observations made by the
learned Judge were based on pure speculation and were not supported
by any legal evidence. There is no evidence to show that the
Maharaja was aware of the sale deed nor was there any evidence to
show that the late Maharaja did not want to take the properties of
B
Jaimed Kuer by inheritance. The only reason given for the aforesaid
knowledge of the Maharaja regarding the transaction was that he
was a close relation of the Maharaja of Banaras and therefore it must
be presumed that he must be in the know of the aforesaid transaction.
In support of this argument, our attention was drawn to some c
documents of the year 1885 viz., Exhibits F-4, 5, 7 and 8 to show
that in 1885 Jaimed Kuer had made an offer to Maharaja Harendra
Kishore Singh that she would like to surrender or sell out her entire
properties to him. The Maharaja, however, refused to take the
properties, either by surrender or by sale. From this conduct it was
sought to be inferred by the counsel for the respondents that the D
Maharaja was not at all interested in the properties of Jaimed Kuer.
In our opioion, these arguments are based on surmises and conjectur-
es and are without any legal basis. The mere fact that the Maharaja
spuerned the offer of Jaimed Kuer of surrendering her properties to
him would not show that he was not interested in the properties E
because he knew full well that after her death the properties were
bound to come to him as the next reversioner and he would have an
absolute interest in the same. It is quite possible that the offer of
surrender may have hurt the vanity and self-respect of the Maharaja
as a result of which he spurned the offer. At any rate,
instead of wandering amiss hither and thither into the realm of F
imagination and speculation like Al;ce in Wonderland, the fact is
that the Maharaja did get the properties and resisted all claims
against the same as would appear from the documents Exhibits U/3
and DD/43 by which the Maharaja was substituted as the heir of
Jaimed Kuer on her death and was held to be a legal heir by the G
judgment dated 13.4.1888 of the Allahabad High Court (Ex. DD/43).
The said judgment shows that the Maharaja accepted the position of
his being the legal representative and heir of ]aimed Kuer. This,
therefore, clearly negatives the contention advanced 'on behalf of the
respondents that the Maharaja was extremely reluctant to take the H
properties of Jaimed Kuer. The conduct of the Maharaja in
unconditionally accepting the ownership and the inheritance of the
SUPREME cotlRT REPORTS !t9S3} 2 s.C.R.
properties of Jaimed Kuer far outweighs the speculative argument of
A Mr. Tarkunde that the the Maharaja was either not interested
or had some reservations or was in any way reluctant to take
the properties of Jaimed Kuer after her death. If there was any
reluctance at all before the properties could legally come to the
Maharaja, it was fully justified and in keeping with the self-respect
of the Maharaja as indicated above. Indeed, if there was any truth
B in the facts adumbrated by the counsel for the respondents, the
Mabaraja could very well have refused to be substituted as an heir
or to take the properties of Jaimed Kuer. This circumstantial evidence
speaks volumes against the speculative plea of the respondents that
the Maharaja was not at all interested in the properties of Jaimed
c Kuer. It was further explained by Mr. Tarkunde that the Maharaja's
reluctance in taking the properties was because of the family history
of Betti ah Raj ever since the time of Raja Bir Kishore Singh and the
Maharaja did not want to get rid of his Jethria caste and wanted to
stick to the claim that Jugal Kishore Singh got the Bettiah Raj
because of his adoption by Raja Dhrub Singh, a fact which we have
D already narrated in the earlier part of the judgment. This again, is
another conjectual process of reasoning adopted by the learned
counsel for the respondents.
In fact, the main thrust of the respondents to rely on Ex.V. and
the two judgments was inspired by the fact that somehow or the
E other the genealogy mentioned therein should be proved to be
correct and admissible. This is, however, not legally possible
because the recitals of these documents have been held to be
inadmissble in evidence. Moreover, even at the risk of repetition,
· we might say that it is too much to justify a rejected, dejected, sham
· .and spnrious transaction a.s being valid on a fictitious supposition
F that Bhola the executant was a sort of an illusory de facto though
not a de jure reversioner and that too half a century after the judg-
ment of the trial court and the appellate court (Exs. DD/30-31) had
rejected this document as being sham and collusive which had be-
come final and irrevocable. And all this futile and amorphous
G exercise only to rely on the genealogy given in Exs. V and P-2 which
are both inadmissible and incorect.
Dr. Singhvi, appearing for the appellants, rightly pointed
out that the entire edifice of the arguments of the respondents is
H based on a pack of cards which must collaps the moment the
court makes a through probe into the various constituents or
. bricks which from the foundation of the edifice. The learned
counsel also pointed out that even in the judgment (Ex. DD/30)
BIHAR v. RADHAllRISHNA (Fazal Ali, J.j 877

it has not been said that the genealogy was wholly or undisputedly
_. >- ---..,.-
correct but the exact expression med is "the whole genealogical A
table of the family which is disputed". Since the genealogy was not
admitted by the parties to the sale deed, it carries no value parti-
cularly when the judgment was not inter parties. For these reasons,
therefore, the arguments of Mr. Tarkunde must necessarily fail.
B
Finally, all the three documents, Exhibits V, DD/30 and
DD/31 are hit, by the doctrine of post /item motam. We therefore,
agree with the conclusions arrived at by M .M. Prasad, J. on this
point. As regards Ex. P-2 which was only a plaint in the suit
which was the subject matter of Ex. DD/30, whatever is true of
DD/30 equally applies to Ex. P-2 (Vol. IV page 245). c
Ex. 0/3 (Vol. 3, page 85) is a written statment filed in title suit
No. 55 of 1893 (the suit which was the subject matter of Ex. DD/30
and DD/31) in which Mahadev Prasad Singh denied all the
:;llegations made by Bhola Singh and expressly stated that Bhola
Singh was not an heir \)f Jaimed Kuer, and that the sale deed and
D
ekrarnama executed in favour of the plaintiff was without considera-
tion and are not vaild. This document, therefore, far from support-
ing the plaintiffs negatives their case and is of no assistance to us.

We would next deal with Ex. Q-2 (Vol. V, page 239) on which E
> great reliance has been placed by counsel for the respondents. This
document appears to be a genealogy which is said to have been
produced on behalf of the defendants, Ramratan Singh and Harkhan
Singh. This document is primarily used as the sheet-anchor of the

........ plaintiffs' case in order to prove their genealogy. Unfortunately,
however, the history, the manner and the circumstances under which
this document bas taken several different forms thlows a considerable
F

doubt on the genuineness or authenticity of this document. One
version of Ex. Q-2 is to be found in Vol. IV at pages 437-440 and
another in Vol. V at page 239 and a third which was sent to this
Court by the Deputy Registrar of Patna High Court who claimed
G
that it was taken out of a bundle of miscellaneous papers lying with
the summons and vakalatnamas. The Deputy Registrar claims that
this documents (Ex. Q-2) is the one which was before the Judges of
the High Court and was considered by them, but which seems to
have been relied upon by the majority judgment of G.N. Prasad and H
Mukherjee, JJ and rejected by the minority judgment of M.M.Prasad,
J. Unfortunately, however, we are not in a position to determine as
to which. of the versions of Ex. Q/2 was actually considerd by the
878 SUPREME COURT REPORTS (1983] 2 S.C.R.

court. According to the appellants, Ex. Q/2 is not a genuine docu·
A ment, which seems to have been introduced in the records of the
present suit allegedly by the present plaintiffs.
To being with, Ex. Q/2 was brought to the trial court· by the
Head clerk of the Civil and Sessions Judge, Mirzapur. The original
document was also called for and the stand taken by the appellant
B was that the document was of a very suspicious nature~ At any rate,
since the original document was marked in evidence, M.M.Prasad, J.
had rigntly observed that the points urged by the appellants about
the document being suspicious do not survive. It appears that the
Head clerk who was examined as DW-6 stated that the certified
copy was marked as Ex. Q/2 although the earlier entry shows that
c the original itself was marked as Ex. Q/2. DW· 6 further admitted
that there was a table ofcontents attached to the records which he
had brought but the number of suit was not mentioned in the afore·
said table. He further admitted that he was unable to decipher item
No.5 in the table of contents and, therefore, could not say whether ,
D any genealogy was mentioned as being a part of the aforesaid list of
documents.

Lastly, the learned Judge pointed out that DW-6 could not
vouch-safe that the document was a part of the records of Title suit
No. 130 of 1856. Indeed, if this document had been filed in the said
E snit since a number of documents of that time had been produced in
the present suit there could not nave been any difficulty for the •
plaintiffs to have obtained a copy of the order-sheet or the list of
documents to dispel any doubt regarding the authenticity of the
original document.(Ex. Q/2).
'-.,_--
F M.M. Prasad, J. relies on another circumstance that there is no
mention of either the name of the court or the number of the suit or
the names of the parties, nor any seal of the court which could have
identified or connected this document with the aforesaid suit. The
document merely bears the date 15.8.1856. It appears· from Ex.
G DD/39, a judgment in suit No. 130/1856, that Ramadhin was not the
vakil for the defendants. There are other circumstances which were
relied upon by the learned Judge in order to doubt the veracity of
this document. After considering a number of circumstances which it
is not necessary for us to detail in the present case, the learned Judge
H 'observed as follows:

"It is, therefore, impossible to believe that those
endorsements had been existing in the genealogy at the
lllHAlt v. RADHAKRISHNA (Fazal Ali, J.) 879

time of the filing of the document if at all in the suit.
There cannot be the slightest doubt, even assuming that A
the document had been filed in the aforesaid suit, that it
has been tampered with. Somebody interested in showing
the relationship between Bansidhar and Bettiah family
must have done it without considering that other
documents would belie it.
B

It cannot be said that the fact that the defendant's
lawyer filed the genealogy conclusively shows that the state-
ments contained therein had been made by one of the two
defendants or both. The genealogy could have as well been
c
prepared on the instruction of anybody else making pairvi
in the suit or behalf of the two defendants. It is not signed
by either of the defendants. The authorship of this genea-
logical table cannot, therefore, be said to have been
proved. This is another difficulty in the way of its D
admissibility." (Vol. VIII pp. 515, 517)

Apart from the aforesaid circumstance the learned Judge has
relied on the following circumstances to hold against the genuineness
of the contents of this document :
E
• (!) Although it was a genealogy which formed the
cornerstone of the case of the parties no Exhibit mark
has been put on the document which one usually
finds in a document accepted in any suit.
F
(2) All the important documents filed in the aforesaid
suit have been enumerated or mentioned in the judg-
ment (Ex. DD/39) but there is no mention of this
genealogical table.
G
(3) There is no reliable evidence in this case to show that
Harkhan and Ramratan were descendants of one
Bikram Sahi or Bikram· Singh who was shown as a
brother of Bansidhar Singh. There are lot of other
discrepancies pointed out by M.M. Prasad, J. which II
have not been adequately rebutted either by the
majority judgment or by the counsel for the
respondents,
880 SUPREME COURT REPORTS •. [1983] 2 s.c.R.

We now come to the most seriom problem regarding the
A contents of Ex. Q/2. It is also worth noting that each version of 1 "' ....
Ex. Q/2 is distinctly different and it is difficult to ascertain and choose
as to which of the three versions is correct. Another circumstantial ·
evidence which throws serious doubt on the genuineness of the docu·
ment is as to what had happened to the document which was got
translated by the High Court, as observed by MM. Prasad, J. in his
B judgment. The letter of the Deputy Registrar of the Patna High
Court seems to suggest that the third version which he suddenly
found in the bundle of papers containing summons and vakalatnamas
was the real one. It is not at all understandable how an important
document like Ex. Q/2, which was the subject matter of a very
c serious controversy between the parties in the High Court, could find
a place in the miscellaneous paper which do not contain important
Exhibits or documents but are meant only for purposes of keeping
formal papers like summons, vakalatnamas, ect. We find it difficult
to believe the explanation of the Deputy Registrar of the Patna High
Court that he suddenly found the real Ex. Q/2 in a bundle of papers
D and then despatched the same to this Court. But the fact is that this
document was not despatched at the time whe;i the records were sent
to this Court though the other two versions bad been sent.

It would appear from Ex. DD/39 (Vol. IV p. 108) that Soman
Kuer and Jaimed Kuer were related to the last male holder of
E
the Bettiah Raj and were the plaintiffs of the suit where as
Ramratan and others were .the defendants. Ramratan has not
been proved to be related to the family of the late Maharaja or
to that of the plaintiff. His name also was not mentioned by the
plaintiffs in the pedigree propounded by them in the present suit As
F Ramratan had no connection either with Bansidhar Singh or
Ramruch Singh, the genealogical table filed by his pleader would not
be admissible in evidence. '
Realising these defacts, Mr. Tarkunde submited that he would
prefer to rely on Ex. Q/2 as brought out at page 239 in Volume V
G
of the Paperbook in the present suit though he did not give any
particular reason of justification for the same. Assuming that Ex. Q/2
printed in Volume V is the correct version, there are a number of
errors and omissions in the aforesaid genealogy. It would appear that
H Thakur Hirday Narain Singh had five sons viz., Amar Singh,
Bansidhar Singh, Rudra Sabi, Ch\latra Sabi and Bikram Sahi. The
name of Hirday Narain Singh finds clear mention in Ex. J where
Dnrga Prasad mentioned the names of his sons but neither Bansidhar,
1JIHAR v. RADHAKRISIINA (Fazol Ali, J.) 881

not Amar Sipgh, nor Rudra Sabi, nor Chhatra Sahi find place
> ) among the names of the sons of Hirday Narain Singh. Secondly, A
there is no mention of Ramruch Singh as being connected in any way
with either Bansidhar or Debi Singh which completely falsifies the
plaint genealogy, and the fundamental link which may connect the
plaintiffs with the late Maharaja is absQlutely wanting and even the
name of Gajraj Singh does not find a place 'anywhere in this
• genealogy.
B

There are a number of other omissions and contradictions but
it is sufficient for us to state that since the main links are not
connected this genealogy is of no assistance to the plaintiffs. Apart
from that this genealogy is not a public document but is a purely
private.document and it has not been shown as to who prepared this
genealogy, in what manner, at what time and under what cir-
cumstallces. No person having special means of knowledge of the
various heirs mentioned in this document has been examined. in
these circuinstances and for the foregoing reasons we are unable to D
place any reliance on the mysterious and murky document which Ex.
Q-2 is.

Exhibit Q-5 is another genealogical table of the late Maharaja
which shows that he was a direct descendant of Debi Singh. A por-
E
tion of this document is, however, torn and hence we cannot make
out as to who the ancestor of Farman Singh was, nor is there any
reference to Ramruch or Gajraj Singh. At any rate, both the majority
and the minority judgments of the High Court as also of the trial
court have rejected this document as being a purely spurious one. In
this connection, Mukherji, J. speaking for the majority, has clearly F
found that this document is in admissible in evidence because it is
alleged to have been written by Shital who had no special means of
knowledge about this family. The learned Judge also found a
number of inconsistencies and contradictions in the evidence of
Avadh Behari, DW /32, who purported to prove Ex. Q-5,
G
M.M. Prasad, J. had also taken great pains to show that this
document was per se not genuine as the paper on which it was
written is old but the writing thereon is fresh. He also found that
this document was somehow planted or introduced in a basta in
which the papers of the Bettiah Raj case were kept. He fu'ly agreed
with Mukherji, J. that DW /32 was an entirely unrealiable witness H
who purported to prove the signatures of Shila! on Ex. Q-5. For
. these reasons, therefore, without travellins further into the domain of
882 SUPREMH COURT REP<>RTS [1983] 2 s.c.ll..

speculation and surmises we reject both these documents, Exhibits
A Q-2 and Q-5, as being totally irrelevant and of no consequence,

The defects pointed out in the genealogies and the absence of
vital links therein were explained away by Mr. Tarkunde on the
ground that since it was not necessary in the case of some of the
B genealogies filed to mention the entire line of ancestors or other con-
nected relations, the incompleteness of the genealogies would not pnt
the plaintiffs out of court or affectthe correctness of the genealogies.
We are, however, unable to accept this explanation which, apart from
being fallacious, is ambivalent and enigmatic, for the very purpose of -\.
· a genealogy is to connect all the important and essential links and if
c ·falls short of doing so then it becomes destitute of any legal effect
and has to be discarded in toto.

Reliance was also placed on Ex. P-5 (Vol. IV, page 407)
which is a plaint filed in suit No. 108 of 1909 in the court of Sub
D Judge, Mirzaput, by Bhagwati Prasad Singh, father of one of the
plaintiffs, This document has been filed for the purpose of adding
force and weight to the. genealogical tree filed and relied upon by the
plaintiffs in this case. In the first place, Mr. Tarkunde did not place
much reliance on this document; secondly the plaint being in a suit
not inter parties, the recitals therein are inadmissible in evidence;
E thirdly, this pedigree, even if correct, stops at Gajraj Singh who is
shown to be the final ancestor of the p!aintifis. This fact is not dis-
puted by the appellants because, as already pointed out, the essential
dispute is regarding the parentage and ancestry of Gajraj Singh,
and this document throws no light on this vital question.
F
Reliance was placed on Ex. KK/l (Vol. VII P. 2) before the
trial court but Mr. Tarkunde appearing for the plaintiff has merely
referred to this document without asking the court to place implicit
reliance on it and, in our opinion, rightly, because this document is
wholly irrelevant to prove the controversy in dispute and merely
G
relates to an Ekrarnama executed by Rajendra Kishore Singh nomi-
nating a Committee for the purpose of managing the properties of
his son, Chiranjiv Rajkumar Harendra Kishore Singh (the late
Maharaja) until he attained.majority. This merely shows the connec-
H tion . of Maharaja · of Banaras and ·the late Maharaja of Bettiah.
Therefore, this document is not relevant at all and it may therefore,
be ruled out of consideration so far as the present dispute about
(lenealoiiy:is concernei;I.
BIHAR v, RAJ>HAKRISHNA.(Fazal Ali, J.) 883

Exhibits K and K-1 have been rejected not only by .the
, ). ' majority judgment but also by the trial court. (In these circumstances
. it is not necessary for us to consider these documents in any detail.
A
. We would, however, just make a passing reference to these docu-
ments to show that they do not support the case of the plaintiffs.
These documents donot bear any seal or signature, nor is it possible
to find out when, how and under what circumstances these
B
documents came into existence. Ex facie, they are not public docu-
ments and are not admissible in evidence under s. 35 of the Evidence
Act. Mukherji, J., speaking for the majority, has clearly held that
these documents are a inadmissible in evidence and observed thus:-

"These documents, Exts. Kand K-1, are alleged to
be public and official documents and according to the
c
plaintiffs of Title Suit No. 5 of 1961 they are in the
nature of appendices or annexures to a report. Ex. J
which is stated to be a public document. In our opinion,
it has not been proved that these documents Exts-K and
K-1 are in any way connected with Ext. J. These D
documents do not bear any seal or any signature and it
is difficult to say as to when these documents. came into
existance. Under these circumstances, I do not accept
the contention urged on behalf of the plaintiffs .of Title
Suit No. 5 of 1961 that these documents are dublic E
documents. These documents cannot be said to be
admissible in evidence under section 35 of the Evidence
Act." (Vol.-VII, P. 207)
Similarly, M.M. Prasad, J. while commenting on these two
· documents and pointing out their infirmities c~ncluded thus: F
In the absence of any evidence. either intrinsic or
extrinsic to that effect, it is not known whether it is a
public or official document. In consideration of all these
facts the two documents• are neither admissible under
section 35 of the Evidence Act nor have any evidentiary G
value whatsover even if they were held to be admissible."
(Vol. VIII, P. 489)

These documents are supposed to be appendices to Ex. J, the
report of Durga Prasad, and have given some details regarding the H
relationship of Pahalwan Singh with some persons mentioned in these
documents. But there is nothing to· show that these documents were
either appendices or parts of Ex. J nor have they been referre\i t\l at
884 SUPRBMB COURT REPORTS [1983} 2 s.c.R.

ab.y place either expressly or by necsssary implication in the report
A Ex. J. Furthermore, he has clearly stated that he had looked into - --< ,
'Tnmar' i. e. account books for collecting some of the necessary 1
materials.. These docnments are not in the nature of account books
at all. In these circumstances, therefore, all the courts rightly reject·
ed these documents both as being inadmissible and unworthy of
' credence.
B
Ex. P-7. (Vol. V, P. 148) is also a certified copy of the plaint
in suit No, 139 of 1895 in the court of Sub Judge, Mirzapur. It would
appear that this plaint was filed on 26th July 1895, that is to say, after
the death· of Maharani Sheoratan Kuer, senior widow of the late
c Maharaja. The plaintiff in that case was Ram Nandan Singh.. In
the first place, this document is hit by the doctrine of post /item
motam because the dispute to the succession of the late Maharaja
(Harendra Kishore Singh) had already stated· with his death in the
year 1893 and the suit was filed two years thereafter, and it is 'there·
fore, irrelevant. Secondly, the plaint filed in the suit not being inter
D parties, its recitals are in admissible in evidence. The only claim put
forward was that as the ·Bettiah Raj estate was an impartible estate,
the widows ef the late Maharaja could not succeed to his properties
even as limited owners. Nothing of any signfi.cance turns upon the
contents of this document and i{ was rightly not relied upon by
E M.M. Prasad, J.
>
Ex. G. II (Vol. III, P. 31) merely shows that the late Maharaja •·
had made a gift of a portion of land in Pargana Majhwa, District
Champaran for making a road for constructing a railway line in
Bettiah but we are unable to find any relevancy of this clocument to
F the facts of the present case. 'l"f'
Ex. G. II/I (Vol. III, P. 32) is another deed executed by the late -'
Maharaja making a gift of a land for a similar purpose. This
document also appears to be wholly irrelevant and does not prove
G 1tnything of consequence.

Ex. H-II (Vol. III, P. 163) is a genealogy filed by the plaintiff
of title suit No. 34 of 1905 after the present dispute had already
arisen. Apart from the fact that in this genealogy a number of
H important names are missing; the names of Gajraj Singh, Ramruch ~
Singh, Debi Singh or Bansidhar Singh are not at all mentioned but
the highest ancestor mentioned is Raja Ugra Sen Singh. This
genealogy, therefore, apart from bein!l hit by the cloctrine of pos(
iltti:AR v. RADHAutISllNA (Fazai A.Ii,/.}

/item motam does not appear to be of any assistance to the plaintiffs
and must, therefore, 9e excluded from consideration. A
T
Ex. R (2) (Vol. III, page 95) is merely a will executed by
Maharaja Nawal Kishore Singh in favour of his son, Rajendra
Kishore Singh. There does not appear to be any nexus between this
document and the case of the plaintiffs as put forward in the present R
suit. This document is also, therefore, wholly irrelevant for the
purpose of deciding the question at issue.

Ex. Q-3 (Vol. IV, page 423} is a genealogical table filed in title
suit No. 254 of 1868 and it describes the heirs of Raja Gaj Singh
and appears to have been filed in order to prove the relationship of c
the Sheohar family with Maharaja Rajendra Kisoore Singh who was
the father of the Late Maharaja. This also does not throw any light
on the relationship of Gajraj Singh with Ramruch Singh, Bansidhar
Singh and Debi Singh and is, therefore, of no consequence.

Other documents like Exhibits NN/8 (Vol V, p. 219) and B/3 D
(Vol. III, p.205) have been filed merely to show the genealogy of the
late Maharaja and to prove that Bhola Singh was the next reversioner
of Janki Kuer. The fact that Bhola Singh was not the next rever-
sioner of Janki Kuer at the time when he made the sale deed has
been demonstrated by judgments Exhibits DDJ30 and DD/31. It is
a different matter that he may have become the next reversioner some E
time afterwards. These documents also show that Pahalwan Singh
and Raghunath Singh were brothers, yet Raghunath Singh does not
find a place in the various genealogies filed by the plaintiffs, as
already shown. These were mearly filed to show that Raghunath
Singh was a gotia of Maharaja of Bettiah. This fact is also proved
by DW-36 but that does not help us at all. F

There are a series of documents filed by the plaintiffs to prove
that Bhola Singh was an ancestor of Bhagwati Prasad Singh. Even
if these documents are proved, they merely take us up to Bhola Singh
G
and some of them even upto Gajraj Singh but that linkage is not suffi-
cient to. determine the vital issue in this case, viz., as to how Gajraj
Singh· was connected with Ramruch, Deci Singh and Banisidhar.
For instance, Exhibits GGG/13, 14 and 16 are recitals in several
documents in the nature of Rehan deeds, mortgage deeds and plaint H
in suits for declaration as also Exhibits DD/33, DDD/4 & 5, GGG/8
which at the most prove that the plaintiffs were direct descendants of
Gajraj- Singh, and we shall assume for the purpose of this case, ll~
SUPREME ColiRT REPORTS · [198M 2 s.c.ll..
the High Court has done, the fact that the plaintiffs were direct
A descendants of Gajraj Singh has been amply proted both by oral and
documentary evidence. This fact is also proved by another set of
documents, viz., Exhibits; GGG/3, 4, 5 and 8, WW/I, 3 & 4,
DD/40 & 38, XX/20, WW/2, YY/4 and P/4. All these documents by
.and large prove the relationship of the plaintiffs with Bhola Singh
and his ancestors right up to Gajraj Singh but they completely fall
B short of proving the vital "links."
Ex. H merely shows that some time in the year 1829, after the
death of Pahalwan Singh the name of Balbhadra Singh was
substituted. This fact, as we have already pointed out, is not 1
disputed. This document also does not throw any light on the crucial
c question regarding the link between Gajraj Singh, Debi Singh and
Ramruch Singh and takes us no where.
Similar is the case with Ex. M (Vol. Ill, p. 66) which is a deed
of conditional sale executed by Pahalwan Singh and takes us at the
most up to Debi Singh and shows that the late maharaja was a direct
D descendant of Debi Singh. The question still remains as to what the
direct connection between Gajraj Singh and Ramruch Singh. Nor
does it prove the connection of Gajraj Singh either with Debi Singh
or Bansidhar Singh. In other words, no light is thrown by this
document on the question that, (even ifit be conceded as it must be)
E . the plaintiffs were direct descendants of Gajraj Singh or to the
question of parentage of Gajraj Singh and his connection with
Ramruch Singh, Debi Singh and Bansidhar Singh and unless this is
done, the document does not take us anywhere.
Similarly, Ex. DD/44 is a Rubakar which shows that Debi Singh
F was son of Bansidhar Singh and this fact is not disputed though the ·)'".
vital link between Debi Singh, and Gajraj Singh has not been shown.
In other words, the plaintiffs, in order to succeed, must prove that he
was the own nephew of Debi Singh, being the son of Debi Singh's
full brother Ramruch Singh. This link has not been established by
any of these documents. Taking these documents, therefore, ex facie
they do not appear to be of any assistance to the plaintiffs' case.
Exhibits Q-1 and T-68 are also documents falling under thi~
class relating to the proof of relationship between Bhagwati Prasad,
Bhola Singh and Gajraj Singh but the evidence stops there and there
H alone.
Exhibits F/l and Gare various remarks inade by Debi $il)gh
about lands in Taluka Majhwa which proved that Debi Singh \Vas
· 1!1itAR v. ilAbBAKRISllNA (Fazai Aii, J.) 8s7
one of the zaniindars in possession of Taluka Majhwa, as mentioned
in Ex. J. These facts, however, cannot be disputed because Debi Singh
who was the son of Bansidhar Singh and whose final ancestor was
Hirday Narain Singh was undoubtedly in possession of Majhwa
lands. But this does not improve the case of the plaintiffs unless· the
direct connection between Debi Singh, Ramruch and Gajraj Singh
is proved. B
Ex. NN/6 consists of extracts from the Banras Gazetter which
·shows· that Barisal Singh of Majbwa was one of the persons who
was killed in the battle of Marni which took place near about the
year 1719. This fact is also mentioned in Ex-J but that does not
mean that the plaintiffs have proved their case by virtue of these C
documents.
The other documents have already been discussed by us while
referring to the documents said to have corrobrated Ex. J.
This is all the documentary evidence produced by the plaintiffs
in support of their case. After. a detailed aQd microscopic considera-
D
tion·'of these documents we find ourselves in complete agreement with
the dissenting judgment of M.M. Pnisad, J. that the plaintiffs have
not proved that they were in any way directly connected with
Ramruch Singh, Bansidhar Singh or Debi Singh. With due respect
to the Judges constituting the majority, we are constrained to remark E
that tbey did not fully consider the factual legal and relevant aspects
of the documents produced nor did they consider what on an ultimate
analysis could be the correct conclusion reached on a fuller and
proper application of mind having regard to the vital issues.involved
in the case. The Majority Judges seem to have been greatly i.n-
lluenced by the age of the documents ot their nature rather than by F
the contents, relevancy and weight. The plaintiffs seem to have by a
process of various combinations and permutations tried to present
a very plausible case which at first sight seemed to be extremely attrac-
tive and appealing but on a very close analysis of the evidence produc-
ed by the plaintiffs we cannot think of any other conclusion that could G
be drawn except the one drawn by M.M. Prasad, J .. It is no doubt
true that the judgments of Mukherji and G.N. Prasad, JJ show that
they have taken great pains in applying their mind to the documents
before them but, unfortunately, either the comprehensive aspects
both of facts and law placed before us were not argued before them H
or with due re§pect they were carried away by the apparent impor-
. tance of the documents without making a deeper probe or a
scientific approach regarding the same.
Ms SUPRllMll COUll'l' REPOR'l'S (198312 s.c.R.
With due deference to the learned Judges we might reiterate at
A the risk of repetition that they did not concentrate their pointed·
attention at the most vital question, viz., as to whether or not the ,- .... -~
plaintiffs had proved that Gajraj Singh, who was undoubtedly the
ancestor of the plaintiffs, was in any way connected with Ramruch
Singh, Debi Singh and Bansidhar Singh. We have demonstratively
shown that from the documents filed by the plaintiffs, the funda·
meutal missing link between Ramruch Singh, Devi Singh, Gajraj
Singh and Bansidhar· Singh has not been p'roved and we are sure
that if the majority Judses would have laid greater stress and atten·
tion on this aspect of the case, in all probability they might have
found a large measure of agreement with the judgment rendered by -~
c M.M. Prasad, J.

This now brings us to the finale of the highly complex and
extremely complicated historical case in which we had to travel and
traverse through diverse fact and figures, data and documents-sprea-
ding over a period of almost two centuries. The last chapter consists
of the wal evidence of th~ pedigree, propounded by the plaintiffs and
we shall deal with the same for whatever it is worth after a complete
consideration of the opinions expressed in the majority and the
minority judgments of the High Court.

E Before, however, opening this chapter it may be necessary to
restate the norms and the principles governing the proof of a pedigree
by oral evidence in the light of which ·the said evidence would have
to be examined by us. It is true that in considering the oral evidence
regarding a pedigree a purely mathematical approach cannot be made
because where a long line of descent has to be proved spreading over
a century, it is obvious that tht witnesses who are examined to depose
to the genealogy would have to depend on their special means of
knowledge which may have come to them through their ancestors
but, at the same time, there is a great risk and a serious danger·
involved in relying solely on the evidence of witnesses given from
pure memory because the witnesses who are interested normally have
a tendency to draw more from their imagination or turn and twist
the facts which they may have heard from their ancestors in order to
help the parties for whom they are deposing. The court must, there·
fore safeguard that the evidence of such witnesses may not be
accepted as is based purely on imagination o_r an imaginary or illusory
source of information rather than special means of knowledge as
is required by law. The oral testimony of the witnesses on this matter
bound to be hearsay and their evidence is admissible as an exception
lllttAR '· RADiiAKRISHNA (Pazo/ A.Ii, J.)

to the general rule where hearsay evidence is not admissible. Thia is
culled out from the law contained in cl. (5) of s. 32 of the Evidence A
Act which must be construed to the Jetter and to the spirit in which
it was passed.
In order to appreciate the evidence of such witnesses, the
following principles should be kept in mind.:
B
(I) The relationship or the connection however close it
may be, which the witness bears to the persons whose
pedigree is sought to be deposed by him.

(2) The nature and character of the special means of
knowledge through which the witness has come to c
know about the pedigree.

(3) The i.nterested nature of the witness concerned.

(4) The precaution which must be taken to rule out any
false statement made by the witness post /item motam D
or one which is derived not by means of speciaf
knowledge but purely from his imagination, and
-l
(5) The evidence of the witness must be substantially
corroborated as far as time and memory admit.
E
These are the broad outlines on the basis of which in cases
whose facts start from very olden times such oral testimony has to be
judged and evaluted.

In the case of Bahadur Singh & Ors v. Mohan Singh Ors.(1) the
Privy Council cautioned the courts against accepting statements F
which may be inadmissible under cl. (5) of s.32 of the Evidence Act
and which have been made post /item motam. This aspect of the
matter has been dealt with while dealing with the doctrine of post /item
motam. We might mention that in this particular case the evidence of
almost all the witnesses is post /item motam. G
In Debi Pershad Chowdhty & Ors. v. Rani Radha Chowdhrain &
Ors.(') the law on the subject was very well expounded and clearly
defined attd while describing the nature of dependable evidence in
such cases, the Privy ·council made the following observations : H

(I) 29 I.A. 1.
(2) 311.A. 160.
SUPJl.M coti'R'r R.EPbil.'rS lt9S3l 2 s.c.R..
"It cannot be doubted that, in its quality, this is
A admissible evidence. The singular criticism of the High
Court is that it comes from relatives of the appellant; but
it is difficult to see where else such evidence could be
found, or that in the mouth of stranders it would have any
value at all. Eacho/the persons who has spoken to this
pedigree has been carefully cross-examined, and each
B
proves circumstances, apart from the pedigree, which
support his khowledge and credit. This is not the case of
a pedigree learned by rote, but it circumstantially corrobo-
rated, as far as time and memory admit."
(Emphasisours)
c In Abdul Ghafur & Ors. v. Hussain Bibi & Ors.(') ~he Privy
Council briefly summed up the law in this regard in the following
words:

"It has been established for a long while that in
D questions of pedigree, I suppose upon the ground that they
were matters relating to a time long past, and that it was
really necessary to relax the strict rules of evidence there
for the purpose of doing justice-but for whatever reason,
.the statements of deceased members of the family made
ante /item motam, before there was anything to throw
E doubt upon them, are evidence to prove pedigree. And
such statements by deceased members of the family may
be proved not only by showing that they actually made
the statements, but by showing that they acted upon them,
or assented to them, or did anything that. amounted to
F showing that they recognised them."
(Sturla v. Freccia---'(1880) 5 A.C. 623)

"The rule of evidence thus enunicated is in accord
with the terms of s. 32, sub-s. 6 of the Indian Evidence
·Act, 1872, which is applicable to the present case."
G
In Mewa Singh & Ors. v. Basant Singh & Ors.(') the Privy
Council made very apt and valuable observations regarding the man•
ner in which a pedigree could be proved and pointed out that ·in
order to succeed,' the plaintiffs must bring themselves within fourteen
H degrees and in this connection obverved thus :

(1) 58 I.A.• 188.
(2) A.I.R. 1918 P.C. 49.
- l'!IltAlt V. RADHAKRISHNA (Fazai Ali, J.)

"The oldest names in a pedigree are naturally the first
to be learnt and the first to be recited, and the names of A
the earliest generations may well survive in their proper
order long after all trustworthy memory of their lives has
passed away.

B
Those who claim to be the reversionary heirs must
bring themselves within the necessary number of pedigree
viz., fourteen. They must show that they are both next
heirs and near enough."

To the same effect is another decision of the. Privy Council in c
Bhojraj v. Sita Ram &Ors.(1) We have already pointed out that in the
aforesaid cases, the principles enunciated by us are wholly consistent
with what the Privy Council says and we fully endorse the same.
None of these cases lays down that the courts should suspend their
objective appraisal of the veracity or dependability of the witnesses D
in pedigree cases, nor have the decisions given any concrete formula
of universal application for adducing oral evidence which may pass
the judicial scrutiny.

Mr. Tarkunde relied particularly on the observations of the
Privy Council in Debi Pereshed Chowdhry's case (supra) extracted E
above to show the approach to be made by the court. The ratio of
that case is in no way inconsistent with what we have said above. The
Privy Council did not accept the view of the High Court because in
their own opinion the High Court had' rejected the oral testimony
only on the ground that the witnesses were relations of the appellant.
That was obviously wrong. F

Sitru1arly, other cases on which reliance was placed, which have
already been dicussed abo.ve, do not lay down that wherever witnesses
speak of old genealogy it should be accepted as a gospel truth. The
evidence of. the witnesses must be scanned vel'} thoroughly and G
according to- the standards laid down by the Privy Council and this
Court.

Apart from the aforesaid authorities, there are some famous text
books which also have laid down certain principles for the appraise·
ment of pedigree evidence. Taylor . on 'treatise on Evidence' has
H

(I) AJ.R. 19~6 P.C. 60.
'stJPRi!ME COURT RBPOllTS t19s~j 2s.c.i.

pointed out in para 648 at page 414 tha:t the declarations by the
A deceased relatives deposed to by interested claimants rarely deserve
much weight because these declarations are made by the relations for
the first time after the contest of claim bas arisen. In accepting this
kind of evidence, the court runs the risk of being deceived by deli-
berate falsehood. The author further goes on to state thus :
B
"Little reliance can be placed on accuracy of his
testimony, for men, without deliberately intending to
falsify facts, are extremely prone to believe what they
wish, what they believe with what they have heard and to
ascribe to memory what is merely the result of imagina-
c tion."

Similar view was expressed in Lovat Peerage(1) case which is
an example of how hearsay evidence can sometimes be fraught with
serious consequences. In this case, it was emphasised tbat the time
. occasion and manner of acquiring knowledge of pedigree to prove
D
the statement of a deceased relation is crucial to the test of veracity
and an imaginary story related by the witness may ultimately turn
out to be a mere gossip. It was pointed out by Lord Watson at
page 783 of the Report that in taking the depositions of old
witnesses, the court must take into consideration that there may
E have ·been an erroneous impression in the minds of those who proved
the c!aimant's case.

Wigmore on 'Evidence' in Volume Vat pages 296 and 297 has
expressed more or less the same views and observes as follows :

F "Accordingly the only . sound rule for the use of
individual declarations is that the declarant himself must
be shown- to be unavailable.

~ ..
G fhe circumstantial indication of trustworthiness has
been found in the probability that the 'natural effusions'
(to use Lord Eldon's of ten quoted phrase) of those who
talk bias or passion exists are fairly trustworthy, and
should be given weight by judges and juries, ·as they are
H · in the ordinary affairs of )ife .."

(I) [1884-85] IO A.C. 763.
BI!lAR v. RAI>HAKRISl!NA (Fazal Ali, J.) 8~3

It has also been pointed out by the author that the declarations
which have been made before any controversy arises must be given A
greater weight. This aspect has also been emphasised in one of the
Privy Council cases referred to above.

The majority judges and the dissenting Judge have vitally
differed in the appreciation of the oral evidence but in the .case of
some witnesses all the three Judges hav~ refused to rely on the
B
evidence of the said witnesses, which has to be ruled out at the very
outset. The witnesses examined by the plaintiffs have been labelled
as DWs because at one time the plaintiffs were defendants in the snit
brought by other defendants-claimants but when the- plaintiffs them-
selves filed the present suit laying a formidable claim as being the c
next reversioners of the late Maharaja, their witnesses continued to
be labelled Defence Witnesses though they were really witnesses for
the plaintiffs. The trial court ought to have put some mark in order
to differentiate the witnesses of the plaintiffs and the defendants but
unfortunately that has not been done. However, there is no dispute
on the aforesaid description of the witnesses; so this matter need not D
detain us any further.

To begin with, before dealing with the evidence of the plaintiffs'
witnesses on the point of genealogy we would like to preface our
discussion with the description of the imperfections and infirmities of E
human memory which alone would determine the dependability of
the evidence.

• Indeed, as a mortal man is not infalliable so is human memory.
It records facts and events seen with some amount of precision and
. '"'\ accuracy, but with the lapse or distance of time, unless the facts or F
I events are noted or recorded in writing, tbe facts or events fade,
sequences get lost, consistency gives way to inconsistency, realities
yield to imagination, coherence slowly disappears, memory starts
becoming blurred, confusion becomes worse confounded, remem-
berance is substituted by forgetfulness resulting in an erosion of facts
G
recorded by the memory earlier. This equally applies to facts merely
heard by one from some other person. Thus, if a person having
only heard certain facts or events repeats them after a long time with
mathematical precision or adroit accuracy, it is unnatural and
unbelievable and smacks of concoction and fabrication being against H
normal human conduct, unless he repeats some special or strikingly
unusual incidant of life which one can never forget or where a person
is reminded :of some .-conspicuous fact on the happening of a
: 894 SUPIUlMll COURT REPORTS (1983] 2 s.c.a.

particular contingency which lights up the past such as marriage,
A · death, divorce, accident disappointment, failure, wars, famine, earth·
. quake, pestilence, (personally affecting the subject and the like) etc.,
and revives the memory in respect of the aforesaid incidents. Of
course, if the person happens to be an inimitable genius or an
intellectual giant possessing a very sharp and shocking memory, the
B matter may be diffrent. But, such persons are not born every day.
To say, in this case,. that all the witness one after the other, were
. geniuses is to tell the impossible. Weakness and uncertainty of
human memory is the rule. The witnesses of the plaintiffs examined
in this case are normal human beings suffering from·the usual defects
and drawbacks of a comman maa ..
c
Describing the vagaries of human memory, Ugo Betti so aptly
and correctly observes:

"Memories are like stones, time and distance erode
D them like acid."

(p. 395, The International
Theasaurus of Quotations:
Rhoda Thomas Tripp)

E In the same strain, Sir Richard Burton in his article 'Sind
Revisited' expresses his thoughtful experience in the following words:

"How strange are the tricks of memory; which, often •
hazy as a dream about the most important events of a
F man's life, religiously preserve the merest trifles."

(p. 395, The International
Theasaurus of Quotations:
Rhoda Thomas Tripp)
G Similarly, Baltasar Gracian in 'The Art of Worldly Wisdom'
very aptly puts the frailties of human memory thus:

"The things we remember best are those better
H forgotten."

We shall now endeavour to approach and analyse the evidence
of plaintiffs witnesses in the light of the principles _enunciated above.
BlllAR V, lWJW.IIBISGNA (Fazal:Ali, J.)

The oral evidence led by the plaintiffs group consists of the
" y· .testimony of .DWs 13, 21, 32, 33, 34, 35, 36 and to some extent A
PW 40. Some of these witnesses were exanined on commissio.n
which will be made clear when we deal with the evidence of
individual witnesses.
To start with, so far as the evidence of DW-32 Awadh Bihari
Lall (Vol. I. p. 411) is concerned, it has been rejected both by the B
majority and the minority judgments in the High Court as also by
the trial court. Mukherji; J. speaking for the majority after carefully
· scanning the evidence of DW-32, observed as follows:-

"! have already adverted to above about the
statement made by DW-32 in the Court below and since c
he appears to be an omnibus witness and there are lots
of inconsistencies in his evidence, it will not be proper for
this Court to place reliance on his statement."
(Vol. VIII, P. 241)
i
Similarly, M.M Prasad, J., who had rendered the dissenting .D
·· judgment rejected the statement of this witness in the following
words:
"Ultimately, the Witness has admitted that he was a
classmate of Bhagwati Prasad Singh, the father of these
plaintiffs. That explains everything the witness represents
a typical partisan witness who can go out of the way to
support one party and expose himself even to ridicule for
the sake of such support. In my view, no reliance can
be placed at all on his evidence."
F
The trial court also did not place any reliance on the evidence
of this witness. In these circumstances, it is not necessary for us to
deal with the evidence of DW-32, nor was any reliance placed by the
· counsel for the respondents on his evidence.
The evidence of DW-33, Bhairo Prasad (Vol. I, p. 433) was G
rejected by M.M. Prasad, J. though accepted by the majority but,
in our opinion, wrongly. Before dealing with the evidence of this
witness we might clarify that the trial court had numbered two
witnesses as DW-33, viz., Bhairo Prasad, who was the main witness
in trial suit No. 5/61, and Kamla Prasad Singh (Vol. I, p. 299) who H
was a witness in trial suit No. 25/58. The trial cou.rt as also the
High Court rejected the evidence of Kamla Prasad Singh, with which
we are not concerned at all. We are mainly .concerned . with
SUPP,EMll COURT REPORTS (1983) 2 S.C,R.

DW-33, Bhairo Prasad who was examined on the point of genealogy
A in suit No. 5/1961 and it is his evidence which we have to consider l ,. -
while dealing with the present case.

It is true that both the trial court and the dissenting judge in
the High Court rejected the evidence of Bhairo Prasad but Mukherji,
B J. speaking for the majority came to a different conclusion and held
that Bhairo Prasad was not an interested witness and there was no
reason to discard his evidence. With due respect, after going throlJ8h
his evidence, we find ourselve.s unable to agree with Mulclierji, J. and
for the reasons given hereafter we are satisfied that no reliance can be
c placed on the evidence of this witness.

To begin with, we might state that he is one of the witnesses
who is almost an octogenarian. While the witness .gave his age iis
85-86 years, the Commissioner before whom he was examined
estimated his age at 75 years, which seems to have been accepted by
D Mukherji, J. Although this is a very minor discrepancy, Mukherji, J.
seems to have overlooked that there is a tendency on the part of the.
villagers to support a case of this kfod by overstating their age so as
to introdnce an element of personal knowledge in order to prove old .).
genealogies. On the other hand, the Pleader-Commissioner, who
E recorded the evidence being a lawyer and an educated person, would
be in a: much better position to estimate the correct age of the
witness. However, nothing much turns on this discrepancy and. we "'
shall presume that in view of the· very old age of the witness, his
evidence merits serious consideration. There is no doubt that this
witness was closely connected with the family of Bhagwati Prasad
F Singh, fa'her of the Plaintiff Radha Kirshan Singh as he has \,....--
admitted to have scribed many documents on behalf of the family /
of Bhagwati Prasad Singh. Mukherji, J. also found that the witness >-
was intimately connected with the family of Bhagwati Prasad Singh
as this witness and his ancestors have scribed numerous documents
for different members of the family and on this ground the learned
G
Judge thought that he would be a more competent witness to depose
about the genealogy than any other witness. Assuming. what
Mukherji, J. says is correct, the fact remains that being intimately
connected with the family of the plaintiffs the witness cannot be said
to be an independent one and he was deeply interested in the success ~-+ -
H
of their case. Therefore, while this may not be a sole ground for

• rejecting his testimony his evidence has to be taken with great care
and caution particularly when he is 11ot deposing as an eye-witness
Bll!AR v. RAPl!AKJlISllNA (Faza/ Ali, J.) 897

but as a witness to the genealogy which he may have heard from his
ancestors. The approach made by Mukherji, J., in appreciating bis A
evidence does not appear to be correct. The learned Judge has
referred to several documents which have nothing to do with the
genealogy in question. On the question of genealogy, which was the
vital question to be determined, the learned Judge has not examined
the intrinsic evidence of this witness on merits. We would, therefore,
examine his evidence on the question of genealogy which was the
B
only point to prove which he was examined.

After narrating the genealogy of the plaintiffs right frCl!n
Bansidbar Singh he states that he came to know the genealogy
from Nand Kumar Singh, Jagat Bahadur Singh as also from his c
grandfather, Kamta Prasad Bhagwati Prasad, Mahadeo Singh.
According to this evidence all the persons concerned from whom he
had learnt the genealogy, excepting Mahadeo Singh, were dead. So
far as his information derived from Mahadeo Singh is concerned, it
will be inadmissible as hearsay because, according to him Mahadeo
Singh is alive. At page 439, para 51 of his evidence, he states that D
the narration of the genealogy by the persons mentioned by him took
place in Chait 1894 (Hindi Samvat year)--he did not remember the
-I corresponding Fasli year-- that is to say when he was 15 years old,
if his estimate of his own age is correct. If we accept the estimate
of the Commissioner who recorded his evidence, then he was only E
about 5 years in which case it is impossible to believe that he would
be in a position to remember such a long drawn genealogy after such
a long time when he heard the same as a boy of only 5 or 15, as the
case may be. This ~spect of the metter has been completely over-
looked by Mukherji, J. Assuming, however, that he was 85 years
and therefore 15 years of age when the narrating incident took place, F
he does not give any particular occasion on which so many persons
went on narrating the genealogy to him. He admits that he does not
remember the exact date when the narration took place nor did he
make any note ·on any paper but was speaking entirely from his
memory. He further admits that all the persons mentioned by him
G
narrated the genealogy at one sitting and yet he is unable to give the
special occasion on which the narration was done. So far as his
grandfather was concerned, he says that the genealogy was narrated
by his grandfather in 1895: Though he does not remember the
month, nor did he make a note of it on any paper, it is curious that
H
he remembers the exact time of narration which, according to him,
was 7. 00 p.m. Another pertinent statment which he made and
which completely falsifies his evi<.lenre may be extracted thus;
898 SUPREME COURT PEPORTS (1983) 2 S.C.R,

"The family members· of Nand Kumar Singh, were
A weeping over the death of Maharaja Harendra Kishore
Singh and told the said fact to my grandfather who in
reply narrated the genealogy .of Babu Bansidhar's family
of Manjhwa."

B According to this statement it is clear that both the family
members of Nand Kumar Singh and his grandfather narrated the
genealogy of Bansidhar's family when they were weeping over the
death of the late Maharaja (Harendra Kishore Singh) and the
weeping took place at the house of Thakur Nandkumar Singh. It is
common ground that the late Maharaja ·died in the year 1893 while
c the incident or narration took place in 1895. It is absurd to believe
that the weeping of the family members would take place two years
after the death of the Maharaja. Similarly, when he was further
cross-examined about the time and the manner in which he
acquired the knowledge of the genealogy, he made a number of
D inconsistent statements: sometimes he said that he acquired know-
ledge of genealogy f~om Nandkumar Singh but he did not reduce it
in writing. In answer to another question, he admits that the entire
genealogy was narrated to him at one stretch but he did not learn '
the the same at once but fron{ time to time. He could not say how
far he learnt the genealogy when it was narrated to him and ·then
E said that he learnt the same on hearing it repeatedly.

Indeed, of this is the primordial and rudimentary reflex of his
memory, then it is strongest possible circumstance to discredit his
testimony and it leads to an irresistible inference that the story of
F repeated narration of the plaintiffs' genealogy is nothing but a pure
I
figment of bis imagination concocted to help and oblige his relation,
friend, philosopher and guide (Bhagwati Prasad Singh). Again he
makes a very strange statement which fully belies the false story of
the narration. He says that the late Maharaja died in Chait 1894
A.D. whereas the Maharaja died on 26th March 1893, a year before.
G This is the best test and proof of his weak or frail memory. A per-
son who could not remember the date of the death of his close
relation, the late Maharaja who furnished the _occasion for the
narration of the genealogy by various. relations of the family, is not
H expect<Xl to remember the genealogy narrated to him long before the
death of the late Maharaja. This circumstance, therefore, completely
destroys his evidence regarding the proof of genealogy. From a
general readin$ of bis evidence on the point of \lenealogy we ar~
BIHAR v. RADHA!Cl\JSHNA (Fazal Ali, J.) 899· •
convinced that he has been set up to repeat parrot like a concocted
story to prove a genealogy which, in fact, never appeared to have A
been narrated to him. His evidence on this point, therefore, is not
free from suspicion and we are,pnable to place any reliance on the
same. We are constrained to observe that in spite of these serious
infirmities and manfest defects, Mukherji, J. overlooked the aforesaid
infirmities in believing the evidence of this witness. On the other
hand, M.M. Prasad, J. the dcssenting Judge has made a correct
B
approach to his evidence and has pointed out a number of defects
and infirmities which show that his evidence is absolutely ridiculous.
For instance, ia cross-examination, the witness was put. questio.ns to
test his memory and he denied know ledge of the families of his own
near relations whose names he could not give. How. can it be believed
that if he could not even remember the names of his own near
c
relations, he would remember the names in genealogies runing into
12 degrees. He also laid stress on the facts referred to above, and
little did the witness relies that although the late Maharaja died in
1893, the weeping took place in 1895, i.e. two years after his death,
which is impossible to believe. The learned Judge observes that D
there could be no better proof of a witness being hired and tutored
to ,ay a thing than the aforesaid discrepancy. None of the important
circumstances relating to testing the memory of this witness relied
on by the dissenting Judge has been c.o!1sidered by Mukherji, J. For
these reasorrs, therefore we entirely agree with the conclusion .of the
dissenting Judge that it is impossible to place any reliance on the
E
evidence of this witness.

Narbadeshwar Dutt Sharma, PW 40 (Vol. I,. p.158) who was
essentially a witness for the plaintiffs of title suit No. 44 of 1955 has
incidentally deposed to the genealogy of the plaintiffs-respondents. F
His evidence was considered by the majority and rejected on the
ground that he had no connection with the family of llansidhar Singh
and as he did not hear the name of Farman Singh or Gajraj Singh,
he was not competent to prove the plaintiffs' genealogy. In this
connection, Mukherji, J observed thus: G
"This witness was also an unsummonecl witness. He
cannot even tell the name of the father of Bhagwati
Prasad Singh. He did not· even hear the name of Farman
Singh or Gajraj Singh of village Baraini. In this circums· H
tance, this witness docs not appear to be a competent
witness on the point of genealogy."
(Vol. VIII, p. 247, para 108)
• 900 SUl"l\EME COURT REPORTS (1983) 2 S.C.R.

Thus it is not necessary for us to make any further probe into
A the intrinsic merits of the evidence of PW-40 which stands rejected.

The other witnesses who are relevant on the .point of genealogy
are .DWs 13, 21, 32, 34, 35 and 36 {the evidence of DWs 32 having
been rejected by all the Judges of the High Court). Mr. Tarkunde
mainly relied on the evidence of these five witnesses and submitted
B in the course of his arguments that if he was not able to persuade
the Court to accept the evidence of these witnesses, then the
plaintiffs-respondents would not succeed on the basis of the oral
evidence h;d by him.
. .,.(,.

We \J.ow propose to deal with the evidence of the aforesaid
witnesses individually. We will, however, take up the evidence of
DW·l3, Radha Krishna Singh (Vol. I, p. 335) at the end because b.e
is one of the main plaintiffs-respondents and ·therefore a highly
interested witness, which may by itself be no ground to distrust his
testimony but is undoubtedly a circumstance to scan his evidence
D with some amount of caution.

This brings us to the evidence of DW-21, Bhuneshwar. Prasad
Singh, (Vol. I, p. 385). To begin with, the witness gives his age as
only 38 years hence, it would be necessary to scrutinise the sources of
his information with great care and caution before his statment can
be admissible. The witness states that Bansidhar Singh had three
sons, viz., Ramruch Singh, Ram Fakir and Debi Singh and Gajraj
Singh, the alleged ancestor of the plaintiff, was a son of Ramruch
Singh. It is pertinent to not that Ram Fakir Singh, who was another
son of Bansidhar Singh, is not shown in the plaintiffs' genealogy at
all. This lacuna was sought to be explained by·Mr. Tarkunde on
F the ground that Ram Fakir Singh had already died and thdrefore, his
name is not mentioned in the genealogy. As the genealogy mentions
·a number of person, who had died .childless, in the list of his
ancestors, there is no reason why Ram Fakir Singh's name, who was
actually a brother of Debi Singh, should not be shown in the
G plaintiffs' genealogy. We are, therefore unable to accept the some·
what unconvincing reasons given by Mr. Tarkunde regarding the
absence of the name of Ram Fakir Singh in the plaintiffs' genealogy.
Th's omission is rather important because it would throw a flood of
light on ·the sources of information of the witness and his competency
H to depose about the genealogy. ·

The witness further claims that one of the.brothers of Bansidhar
Singh was his ancestor and ~oes on to state that Hitday Narai11
BIHAR v. RAtiHAKRISHNA (Fazai Ali, J.) 9oi
Singh, who according to the plai•_tilf, was the father of Bansidhar
Singh was son of Hansraj Singh. The witness claims his ancestory A
from Madho Singh, who was one of the seven sons of Hirday
Narain Singh. It may be noted that there is absolutely no mention
of either Hansraj Singh or Hirday Narain Singh or Madho Singh or
any of the brothers of Bansidhar Singh or even of Ramhit Singh or
any of his descendants in the plaint genealogy. It would be pertinent
to note in this context that the descendants of Ramhit Singh had
appeared as witnesses in suit No. 55 of 1983 and had declares! that
' Ramruch Singh was not the son of Bansidhar Singh. In these
·~· circumstances, this witness cannot now be heard to say that
Ramruch Singh was the son of Bansidhar Singh and not of
Mangal Sah. The witness admits that he has not seen and written c
genealogy in respect of which he had deposed in the court.· He
appears to be closely connected wi:h Gauri Babu who is the
Pairvikar of the plaintiffs and admits in his evidence that Gauri
Babu had gone to him in village Baraini two-three years before his.
depos;tion; thereby he indirectly admits that he was brought to
depose in the court at the instance of Gauri Babu. Although the
D
witness has denied that he was staying at the house of Gauri Babu
for about a month and was being tutored, reading within the lines
of his testimony it does appear that Gauri Babu had no doubt
brought the witness to Patna and he (Gauri) being a Pairvikar of
the plaintiffs, as admitted by the witness, must have brought him
for a certain purpose.

Coming now to the intrinsic merits of his evidence we would
first trace the source of knowledge of this witness. To begin with,
he states that his father told him the genealogy about 50 times but
he does not remember as to when the genealogy was told to him
last time. He admits that there was no special occasion for
his father to have told him the genealogy. He also admits
that he had no written genealogy. This statement is obviously
incorrect because normally a genealogy is recited on certain festive
occasions like marriage, shradh, etc., and not just by the way:
Further, it is difficult to believe that even if his father had narrated
the genealogy he would do it as ·many as 50 times without any
rhyme or reason. The witness goes on to state that his father had
told him as many as 1000 names of Bhumihar Brahmins living in
villages Majhwa, Garauli, Baraini and lot of other villages. He
further states that he was also told the names of gotias only who
lived in th~ aforesaid'. villages. The' en'tire tenor of · his evide)lCe'
902 SUPREME cotiRr REPoRTS [198~} 2 s.c.R.

shows that the source of his knowledge, which is from his father,
A ·appears to be a tainted one and h~s been. manufactured for the pur-
pose of this case. The witness further admits that he had not seen anY.
papers showing Raja Jugal Kishore Singh as the son of the daughter
of Raja Dhrub Singh. He. pretends to know that Bhagwati Prasad
·Singh was the nearest legal heir of the late Maharaja but he does
"not disclose the source of his information. Furthermore, while
B deposing about the relationship with the Maharaja of Banaras he
says that he has not seen any papers showing that Maharaja of
· Banaras belonged to Dionwar sub-sect. He further says that he
heard this fact from his father when he was only 10-12 years old."
-1.,
c The clear and categorical statement of DW-33, Bhairo Prasad,
shows that none of the descendants of Bansidhar Singh had settled
in village Baraini and that Bhagwati Prasad Singh of village Baraini
had no genealogical connection with Majhwa. Thus, DW-21 is
sadly contradicted by the evidence of DW-33. Furthermore, accord-
"ing to DW-21, Babu Debi Singh 11;\d ,. five sons but this is completely
D falsified by the plaintiffs' genealogy as also the case made out by
them and sought to be proved by other witnesses.

It was further contended by Mr. Tarkunde that according to
DW-21, he was a descendant of Hirday Narain Singh or of Madho
E Singh and therefore he would be second in the line of claim to the
reversionary interest of the late Maharaja and as such he is not
likely to depose against his own interests. The witness is a young
man and we have already shown that the source of his information
about the plaint genealogy is not believable. The manner in which
the witness was brought from his village to Patna by the Pairvikar
F of the plaintiff and the incorrect statement made by him regarding
the genealogy clearly show that whatever he may profess he does
>- -
not seem to be in any way connected with Hirday Narain Singh.
In fact, DW-;21 himself admits that he had no concern or interest in
Bettiah Raj. He further admits in para 18 of his evidence that he
came to know about the case from the plaintiff, Radha Krishan
G Singh, arid that he did not know the claim of the respective parties.
While deposing regarding the genealogy he could not tell the order
of death of any of his ancestors nor could he tell in which period
Hansraj and Hirday Narain Singh existed. He admits that when
his father repeated the·namcs of his ancestors fifty times he was only
H l 6 years old. It is difficult to believe that a casual recitation of the
names fifty times would be remembered by him after a lapse of
·J.ll</fe th.an 20 years. M. M. frasad, J. has given very cogent and
i\1llAR v. RA])HAKRISHNA (Faza/ Ali, i.) 9o~

convincing reasons for disbelieving the evidence of this witness. The
learned Judge has pointed out, apart from the facts mentioned, A
above, that the witness has not come across auy written genealogy
even of his own family, what to speak of the family of the plaintiff.
Finally, the witness admitted that he is a cousin of Kamla Singh,
DW-33. If this was so, then the genealogies given by Kamla Singh
and the witness should have tallied but it would appear from the B
evidence of DW-33 that he gave a genealogy different from the one
given by this witness. Having regard to the circumstances and the
statements made by this witness, we find it impossible to place any
reliance on the testimony of this witness. We therefore agree with
the opinion of M. M. Prasad, J. that t.he evidence of this witness is
not worthy of credence. c
Nageridra Kumar, DW-34 (Vol. I, p: 445) sought to prove the
genealogy of the family. The witness was 60 years ·old at the time
of his deposition and was a resident of Majhwa. He claimed to be
.
a descendant of Hansraj Singh, the father of Hari Narain Singh and
·Hirday Narain Singh, as the witneos says. According to the witness, D '
Hari Narain Singh had a son named Sah Makund and the
witness claims to be from the branch of Sah Makund. Coming to the
genealogy, he states that Hirday Narain Singh had a son:named
Bansidhar Singh, and thar Bansidhar Singh had three sons, viz., Ram
Fakir, Ramruch and Devi Singh. We have already pointed out that E
although the name of Hirday Narain Singh finds place in Ex. J yet
there is absolutely no reference to Bansidhar Singh. We shall
presently show that there is an important document Ex. B/32 (vol.
III, p. 42) where Ramruch Singh has not hbeen mentioned as the son
of Bansidhar Singn but instead Gajraj Singh has been mentioned as
·~. the son of Bansidhar Singh. This document is rather important F
because it is a certified copy of a deposition of one Bhupraj, who
was a witness as far back as 1909 in the earlier suit. The statment
of this witness "that Bansidhar Singh had three sons, including
Ramruch Singh, is therefore clearly contradicted by Ex. B/32, a
document which came into existence long before the plaintiff's suit
of 1961 entered the arena of the present case. Moreover, in 1909,
G
the memory of Bhupraj would have been much fresher than that of
this witness.
•
In order to test the veracity of this witnes..s on the touchstone H
of the principles enunciated by this Court and the Privy Council we
would refer to the source of his knowledge. Admittedly, ithe witness
had no personal knowledge about the genealogy of the family pf the
SUPREME COURT REPORTS it983l 2 s.c.!l.

plaintiffs. He however represented in his evidence that he had learnt
A the genealogy from his grand uncle Hari Sharan Singh and Bhagwati
Prasad Singh, father of one of the plaintiffs, both of whom are now
dead. He further admits that his grand-uncle, Hari Sharan Singh,
died in or about the year 1936. This means that at the time when
the witness was told aboui the the family genealgoy of the plaintiffs
he was only 14-15 years and was studying in class VI of a middle
school. He then goes on to state that at the time when the genealogy
was narrated, 5-6 persons of his family were present but he does
not even remember the name of any of them. It is rather strange
that he does not even remember the names of the persons in whose
persence the genealogy was narq1ted by his grand-uncle and yet he
c traces the genealogy of the family told to him about 45 years back.
This important circ.umstance shows that his memory is very weak, in
which case it is well-high impossible to believe that he would remem-
ber the genealogy narrated to him by his grand uncle though he could
not give the names of the persons in whose presence the genealogy
D was narrated to him. He does not appear to have made any note of
the genealogy on any paper when his grand uncle repeated the same,
nor has he mentioned any particular occasion on which the genealogy
was narrated to him which may have enabled him to remember the
same. The graphic details a~out the relationship of of Hari Narain
Singh right up to Harendra Kishore Singh could not have been given
E by him in these circumstances. It appears, _therefore, as rightly
contended by the appellant, that he, being a highly interested witness,
has concocted all conversations, chances and coincidences when his
grand uncle told him the genealogy. Moreover, human memory,
faint and vulnerable as it is not likely to reflect facts of 40-50 years
back unless there ·;s something in the shape of a particular document,
F mode, occasion or something to remined him. At the time when
the genealogy was narrated to him, the witness was only a boy 14-15
years and he would not have at that time cared to make any parti-
cular note of the genealogy as he would be least interested in the
same at that time. He further admits that his grand uncle narraied
to b.im the genealogy from bis memory and not from any note, nor
· was the said genealogy wtitten on any place of paper.

The wit,ness admitted that he could remember· only some
portion of the genealogy then and there . and not the whofo. He
clearly admits in his deposition that he learnt the genealogy from·
Bha~wati Prasad Singh in the winter season after the death Maharani
BlliAR Y. RADHAKRISHNA (Fazal Aii, J.) 9os
Janki Kuer, that is to say after the present dispute had already started
and in these circumstanses his evidence is inadmissible under s. 35 of A
the Evidence Act on a point of law, viz., being hit by the doctrine of
post /item motam. Again, he embarks on a flight of fancy and goes
on to narrate facts which he could never have known without read·
ing some authentic historical book. He relates the facts of the battle
of Marni which took place as far back as 1719. B
Finally, he attributes five sons to Debi Singh whereas in the plaint
it is stated that Debi Singh had only one son, viz., Aini Sihgh. Thus,
far from corroborating the genealogy, his evidence positively contra-
dicts the plaintiff's genealogy. He has also made a number of errors
in describing the genealogy which does not tally with the plaintiff's c
genealogy. In our opinion, the evidence of this witness appears to be
got up and does not inspire any confidence. This is demonstrated by
the fact that he admitts that the plaintiff Radha Krishan Singh had
told him to give evidence in the case and yet he says that he had
. never nrrated the genealogy to Radha Krishan Singh. Indeed, if
this was so, it is not understandable why Radha Krishan Singh would
D
have asked him to depose in his favour.

To crown it. all, DW-34 admits that there is no document
either to show that he was originally a resident of Majhwa or that
Hansraj Singh was a common ancestor of this witness and Bhagwati
Prasad Singh. Mukherji, J. who delivered the majority judgment,
has dealt with the evidence of this witness rather summarily without
alluding or referring to the important facts, infirmities, flaws and
defacts as discussed above which makes the evidence of this witness
both faulty and imperfect. All these circumstances taken together
render him an unreliable witness. F

The next evidence that falls for consideration is that of
Debi Singh, DW-35 (Vol. I, p. 453) who belongs to Mauza
Majhwa. It is curious that he claims his descent through Harkhan
Singh who was disclaimed and disowned by Soman Kuer and Jaimed
G
Kuer in the plaint fried by them in suit No. 130 of 1856 relating to
Hansraj Talab (Pokhar), which falsifies.the evidence of this witness
at the very inception. According to the witness, there were some
cases relating to Hansraj Talab between Harkhan Singh and
H
Ramratan Singh cin the one side and Soman Kuer and Jaimed Kuer
on the other. The witness claims to belong to the family of Ramratan
a:nd Harkhan who are 'descendants of Bikram Sah. He admits that
sul>RilMB OOURt REPORTS ' (1983} ~ S.C.R.
Harkhan Singh was in the service of Bettiah Raj and also of Soman
A Kuer and Jaimed Kuer and after the dispute resulting from the suit,
Harkhan's services.were terminated. In the said plaint, Jaimed Kuer
and Soman Kuer vehemently denied having any relationship either
with Harkhan or Ramratan Singh. It seems to us that he has
claimed Harkhan Singh and Bikram Sah as his ancestors in order
B to make his evidence admissible so as to trace the source of his
information from the aforesaid two persons who are now dead. The
plaint genealogy does not mention the name of Harkhan Singh and
Bikram Sah as having any connection with Jaimed Kuer or Soman
Kuer. According to the plaintiff's own case Jaimed Kuer was the Wife
of Balbhadra Singh whereas Soman Kuer was the wife of Tilak Singh,
c son of Pahalwan Singh. According to his evidence, he learnt the
genaleogy of the family from Jadunandan Singh, Vasisht Singh,
Bhupraj Upadhya and Bhagwati Prasad Singh. All these persons are
dead and he seem> to have traced the source of his information to
deceased persons in order to make his evidence admissible under
sub-s. (5) of s. 32 of the Evidence Act. The witness goes on to
D state that Jadunaudan Singh was his grand uncle and one of the
descendants of Bikram Sah. In order to give a touch of truth and
a cover of legal anmissibility he gives a twist and turn by asserting
that Bhupraj Upadhya was the Purohit of his family and wants us to
believe· that since he had heard the plaintiff's genealogy from the
Purohit, there could be no doubt about the correctness of the said
E genealogy.

As usual with the other witnesses, this witness states that
Jadunandan Singh gave out the family genealogy of Bansidhar Singh
F and Bikram Sah when he was aged only 15-16 years. He further
asserts that Dalthumbhan, Prayag Singh and Parsidh Singh were also
present and none else. None of these witnesses have been produced
to support the testimony of this witness. It is also not known
whether these witnesses are dead OJ alive. He then states that at the
time when the genealogy was narrated to him he could remember
G only 10 or 5 names but he could not name those 10 or . 5 names
exactly. A person who is not able to remember the names disclosed
to him about· 40-46 years ago could not possibly remember the
names of all the ancestors of Jadunandan Singh after such a long
lapse of Time. This part of his evidetice is against the balance of
H probabilities and fails to consider infirmities and infalibility of human
memory. He admits that he did not mak~ any note of the genealogy
11f Bikram Sah or B.ansidhar Singh but ]:ieard the same from
BtltAR v. RADHAKRISHNA (Jlaza/ Ali, J.)

Bhagwati Prasad Singh. He further stated that before hearing the
y genealogy from Bhagwati Prasad Singh he had occasion to narrate A
the same to his son, Sarju Prasad. This part of his ev;dence is
wholly unintelligible because if he himself had not heard the
genealogy from Bhagwati Prasad Singh, how could he narrrate it to
Sarju Prasad.

In order to further test his memory he was asked a few questions
B
and he admitted that he did not remember the . year of his own
marriage although he was married at the age of 18 years. He further
admitted that .he did not remember the year when his mother died.
Ii is not understandable how he could remember the genealogy
narrated to him long before if he could not r~member the facts which c
were directly within his personal knowledge, viz., eithedhe year of ·
his marriage or of the death of his mother. Another person from
whom the witness is said to have acquired knowledge of the
genealogy is, according to him, Vashist Singh. He admits that he
does not remember the time, year or even the occasion for hearing
the genealogy from Vashist Singh nor does he remember how many
D
·other persons were present when Vashist Singh narrated the
genealogy.
i
Doubtless, this witness is highly interested being a close relat:on
and friend of Bhagwati Prasad Singh (father of the plaintiff) . E
.,l'hough that circumstance alone may not be sufficient to discard his
evidence, yet it is a factor to be reckoned with and shows that the
testimony of this witness is tainted. As the stakes in the present case
are very high, his ·evidence has to be viewed with great care and
caution. We have already adverted to his previous statement in the F
evidence where he has said that he did not remember more then 10
or 5 names in the genealogy narrated to him by Jadunandan Singh
yet he claims that Vashist Singh gave out exactly the same genealogy
as giuen by Jadunandan Singh which in fact consisted of the entire
family of Bansidhar Singh up to 12 degrees and 8 degrees commenc·
ing ·from Bansidhar Singh to Bhagwati" Prasad Singh. Thus, this G
clear inconsistency iri his statement completely .belies the fact of
narration of the genealogy by Vashist Singh.

Another citcumstance to falsify his evidence on the point of H
genealogy is that one of the persons from whom he claims to have
learnt the genealogy is Bhupraj Upadhya, Priest of the late plaintiff,
Bhagwati J;>rasad Singh. The witness says that llhupraj narrated

~-. '
SUPREME COURT REPORTS (i983j ~ s.c.k..
the genealogy but he could not say whether it was 50'times, 100
A times, 20 times, 10 times or only 5 times, nor does he recollect the
time when the genealogy was repeated on the second or the third
occasion. So far as Bhupraj Upadhya's knowledge is concerned.,
ithas been clearly proved in this case that he could not at all be
aware of the correct genealogy of the family of the late Maharaja;
In the title suit of 1908 filed by the late plaintiff (Bhagwati Prasad
B Singh), Bhupraj deposed as a witness and the certified copy of his
evidence is Ex. B/32. A perusal of his deposition would show that
Bhupraj had himself given a written genealogy on the most vital
point by saying that Gajraj Singh was the son of Bansidhar Singh,
thereby giving a complete go-by to the case of the present plaintiffs
€ that Gajraj Singh was son of Ramruch Singh. In fact, in his state-
ment Bhupraj omitted the existence of Ramruch altogether. Indeed,
if this was so, how could this witness (Debi Singh) have learnt the
genealogy from Bhupraj in respect of a point of which Bhupraj
himself appears to be totally ignorant. This is a very strong intrinsic
circumstance to diicard the testimony of this witness. Futhermore,
D while the witness attempts to give a very long and complicated
genealogy which would · show that he possesses an excellent and .
shocking memory yet he admits that he does not remember the date
of the death of his own father and mother or even of his own
marriage. It is impossible to believe that a person who had such a
E short and week memory so much so that who could not remember
even important events of which he had personal knowledge, would
remember a !Ong and complicated genealogy running into more than
a century. Thus, the hurly-burly, skinny and scrawny process of
repeating the huge crnwd of names of so-called ancestors of the
plaintiffs said to have been narrated to him has been proved to be
F unreliable on his own evidence, with the result that he has made
confusion worse confounded. This shows that he was out to support
his plaintiffs' case without any sense of responsibility or regard for
truth.

G As regards the fact that he heard the genealogy from '.Bhagwati
Pi'asad Singh in 1954 at the Shradh ceremony of Janki Kuer, this is
inadmissible in evidence being post litam motam because of the death
of Janki Kuer the dispute had already arisen and the question as to
who would be the nearest reversioner had come out in the open.

Having regard, therefore, to .the glilring inconsistencies and
discrepancies in his statement, the shortcomings of his me111oey
B!HAR v. RADHA_j{RISHNA (Fozal AJi, J.) . 909

which has been demonstrati'{ely shown by his subseqnent statements
as referred to above, it seems that bis evidence regarding the narra-
r tion of the genealogy by various persons is nothing but a cock and
bull story. For these reasons, therefore, we are not 11t all inclined
to place any reliance on bis evidence. We might 1llention here thllt
the various discrepancies, circumstances and in1\rmities pointed out
by us in his evidence discussed above have not been noticed 111UCh
less explained by the majority. judgment delivered by M.ukherji, J.
B
This is sufficient to vitiate the appreciation of the evidence of the
aforsaid witness by Mukherji, J.

This brings us now to the last witness of the plaintiffs, who is
plaintiff No. I himself, i e. Radha Krishan Singh, DW-13. It is c
1llanifest that being the son of Bbagwati Prasad Singh and the main
plaintiff, he is the most interest_ed person and is bound to support
his case on which depends the fate of this litigation so far as he is
concerned. His evidence also, therefore, as a rule of prudence has
to be examined with great care and caution because he 1s interested
in making statements which may go to support his case. Even so, D
his evidence shows that he knows very little about the conduct of
the case as it does not support the genealogical tree set forth in the
plaint itself. In his statement, he mentions that Bansidhar Singh
had three sons, viz. Ramruch Singh, Acebo Singh and Fakir Singh
and expressly states that Debi Singh was not one of nis three sons, E
which knocks the bottam out of the plaintiffs' entire case. Further,
his evidence does not establish any link between Debi Singh and
Aini Singh even in his examination-in-chief, as a result of which he
is forced to make a substantial change in his version at a later stage
after several days realising that he had committed a serious blunder
which might discredit his case altogether. To illustrate our point, F
we might extract a part of his evidence regarding his ancestor,
Bansidhar Singh where he says, "Bansidhar Singh had three sons,
namely, Ramruch Singh, AcQho Singh and Fakir Singh". It is
pertinent to note that he does not name Gajraj ·Singh at all. Realising
his mistake he adds that Gajraj Singh was the son of Ramruch
Singh. It is obvious that before coming to the court, he must have G
been fully prepared with at least his own family's genealogy on the
basis of which he wished to s11cceed in the suit filed by him. and yet
the omission of Gajraj Singh at the first flush seems to indicate the
poor state of his knowledge.
H
Disclosing his knowledge about the genealogy, the witness
s~tes that·be had learnt the !jenealo$Y from 'his father, Bha~a(j
910 SUPREME COURT REPbRTS · [1983] 2 s.c.R.

Prasad Singh and one Bishwanath Singh Balwaria. About Bishwanath
Singh he says that he had heard the genealogy when he was only
12 years old. He makes a very stark admission which shows the
state of his memory. He says in paragraph 26 of his evidence that
he could not say the year of bis birth and that of his brother accord-
ing to Hindi Samvat and Fasli Year. In order to conceal his lack
of knowledge he makes out a case that his horoscope as also that of
B
his brother, Sri ·Kishan were lost. He later on changed his statement
immediately by saying that he could not say if the horoscope of bis
other two brothers were still in his house . or they were also lost. In
order to test his memory, some vital questions were asked and he
replied thus :
c
"My father at times used to tell me about the
different sub-sects of Bhumihar Brahmins. When I was
was aged 17 or 18 years, my father told me· for the first
time about the different sub-sects of Bhumihars and this
he had told me about one hundred times. He never
D. tested me if I remembered the different sub-sects which
he had told me."

(Vol. I, p. 343 : para 50)

E When questioned expressly regarding the genealogy, the witness
makes the following pertinent statement :

"One of those papers was a written genealogy which
would show that the persons named above belong to
his family as stated by me. About two years ago that
I saw the above genealogy. I cannot say who is the
.writer of that genealogy. I cannot say if the name of
the writer is mentioned in that genealogy which .is from
the time of Hansraj up to the time of Adity Singh and
• his brother. Harkhan Singh in the line of Bikram Singh
and upto the time of Ram Rupan Singh in the line of
G Chhatan Singh. I do not remember if in their genealogy
the last member in the line of Rudra Singh is mentioned.
In that genealogy the name of Musammat Jai (?) Raj
Kuar and Raghuanth Singh in the line of Devi Singh
one of the sons of Bansidhar Singh are mentioned. There
H
is no mention of the descendants of Ram Ruch Singh
in]that genealogy as they had gone away to Baraini. In
thatfgenealO!lY• there is no mention of the brothers of
· B!HAR v. RADHA1'RISHNA (Fazal Ali, J.) 911

Bansidhar Singh or their descendants or the descendants
of Bansidhar Singh who had left village Majhawa," A
(Vol. I, p. 349, para 79)

This shows his complete lack of knowledge of his own family's
genealogy ·~hich conclusively proves the fact that he has been asked B
to depose parrot like just to support his case. To begin with, he
says that one of the papers he had seen was a written genealogy in
which the persons named in an earlier part of the statement were
mentioned. He admits that he saw that genealogy about two years
back but he could not say who was the write! of that genealogy and
whethe( or not his name was mentioned in that genealogy. He has c
not cared to produce that particular genealogy or to prove the .
same along with the number of genealogical tables filed by the
plaintiffs. Further, in the genealogy which he appears to have seen,
according to him, the names of Mst. Raj Kuer and Raghunath Singh
in the line of Debi Singh are mentioned. A reference to the plaint
D
genealogy will show that the name of Mst. Raj Kuer is not men·
tioned at all. He further admits that there is no mention at all of
the descendants of Ramruch Singh which is the most vital factor to
determine the truth of the plaintiffs' case. Ramruch Singh is not
proved to be the father of Gajraj Singh, and therefore, the suit must
necessarily fail. The witness who is the plaintiff himself is unable E
to explain this serious lacuna and gives a most feeble and uncon·
vincing explanation that the omission was due to the fact that
Ramruch Singh had gone away to Baraini. A number of other
heirs in the plaint genealogy are mentioned who also had gone to
Baraini and, therefore, the explanation given by him is to be stated F.
only to be rejected. He further admits that in the said genealogy,.
there is no mention of the bro.thers of Bansidhar or their descen-
dants. This, therefore, completely disproves his case.

The witness further goes on to state thai be had not asked
G
Gauri Babu, one of the plaintiffs in this case who was also the
Pairvil<;ar, about the papers filed by him, nor did Gauri Babu tell
him what papers had been filed. He admits that Gauri Babu went
to the lawyers to explain the papers to them and he has all along
been present in court since the cases were taken up foi: hearing.
In this view of the matter, his statement is mosq;unnatural and
improbal)k anc! even if believed it does not prove ;the vital missing
Jinks.
912 SUPREME COUR,T REPORTS (1983) 2 s.c.R.

M.M. Prasad, J. rightly inferred from the aforesaid statements
made by the witness that he had not produced the most important
document, viz., the genealogy about which he had .stated in his
evidence mentioned above. The counsel for the respondents, how-
ever, submitted that the learned Judge was wrong because the genea-
logy mentioned by the witness in paragraph 79 of his deposition
was really the genealogy (Ex. Q-2). We are unable to <tgree with
B
the contention advanced by the counsel for the respondents because
in the first place. DW-13 has not at all mentioned that the genealogy
which be ha.d seen was produced in this case. Secondly, the genea-
logy (Ex. Q-2) was not at all shown to .him by the counsel for the
plaintiff in order to elucidate the fact that ·it was the genealogy
c referred to in bis evidence in para 79 extracted above. Indeed, if
Ex. Q-2 was really the genealogy referred to by the witness, as
contended for the respondents, then the first thing which should
have been done by the plaintiffs' counsel would have been to put
Ex. Q-2 to the witness at once. It is, therefore, clear that M. M.
Prasad, J. was correct in making adverse comments regarding this
D part of the evidence ofDW-13.

It was further argued before us. by Mr. Tarkunde that there
was another mistake committed in the appreciation of the evidence
of DW-13 and that was the fact that much was made of the state-
E ment of the witness that while naming the sons of Bansidhar Singh
Acebo Singh was mentioned instead of Devi Singh. This is an un-
mistakably clear statement made by the witness and there is no ques-
tion of there being any lapse on this part of the case.'· It is a different
matter that the witness may have realised the omission of the name
F · · of Devi Singh later but truth comes out first. Apart from this, the
learned dissenting Judge bas given a number of reasons for dis-
believing DW-13. The learned Judge-ha·s relied on the OPlission on
the part of the witness to give the genealogy of the Babus of Sheohar,
Madhuban and Sirsa. It : was further pointed out by the learned
Judge that DW-13 siated that bis source of information of the genea-
G logy was his father but it is doubtful if his father himself would have
known the genealogy of all the branches if, according to the state-
ment of the witness, he was living in Baraini since long and would
therefore have lost contact with all bis relations. In this connection,
the learned Judge observed thus : --+---
'
"Could his father himself have known the genealogy
from Bansidbar down to himself, the genealogy of Raja
lllHA1l 11. RADHAKIUSBNA (FazaJ All, J.) 913
Dhruba and the members of bis family and the genealogy
of the ancestors and descendants of Raja Jugal Kishore ?
Circumstances do not show that he could have known
,all these. Thus simply beeause this witness states to have
tea.mt it from his father, it cannot be taken for granted
that his father must have known all these and had com·
municated to him the entire genealogy of these branches."
B
(Vol. VIJI, p. 492)

In these circumstances, we entirely agree with the· View taken
)- .. by M. M. Prasad, J. that no reliance can be placed on the 'evidence
of this witness, DW-13. c
The last witness whose evidence was not relied on by
Mr. Tarkunde is Mahadeo Singh, DW-36 (Vol. I, p. 462) but as the
witness is an octogenarian we may just as well briefly deal with bis
evidence. To begin with, the witness gives a complete genealogy of
Bhagwati Prasad Singh and the late Maharaja right from Bansidhar D
Singh np to the plaintiff's father Bhagwati Prasad Singh and tries to
connect the two families as having a common ancestor, Bansidhar
Singh. Mukherji, J. has held that the witness was closely associated
with the family of Bhagwati Prasad Singh and the late Maharaja
and being an old man he must be presumed to have special means of
knowledge. The learned Judge, however, does not appear to have E
considered the intrinsic merits of the evidence of this witness. In
the first place, DW-36 admits in his cross-examination that he could
not say how Bansgopal Singh, who is a ·descendant in the line of
Gajral Singh, was related to Raghunath Singh in the line of Devi
Singh. He further admits that he has forgotten about this relation· F
ship. Tbis is an important circumstance to negative the fact that
he had any special means of knowlege of the· ancestors of the family
of the late Maharaja. This crucial omission seems to ·have been
brushed aside by Mukherji, J., without realising the importance of
the aforementioned ommission. On the other hand, M. M. Prasad,
J. has fully discussed the evidence of this witness and found that the
G
witness is an unreliable one. In order to prove his 'pecial means of
knowledge of the genealogy of the plaintiff's family he claims that he
wvs a close neighbour of the plaintiff's and was on visiting, dining
and invitingterms with their family. H
He also states that he and his ancestors were in the servi~ of
· Bettiah Raj; more particularly, Hanuman, his grand· father, Salik
914 SVl'IUllrlll COV:V.T REPORTS [!983] 2 s.c.R.
•
,.Singh, his great-grand-father and Baijnath Singh, his greatgreat·grand·
father. There is, however, no evidence to show that Baijnath, Salik or ··~
Hanuman were in the service of Bettiah Raj, nor has any document
been produced in support of this statement. There is also no docu·
ment to prove that he was a personal attendant of the late Malfliraja,
as claimed by him; although he claims to be a personal attendant
.B for three years, it is rather strange and curious ·that he cannot give
the age of the Maharaja at the time of his death nor the time of the
marriage of the Maharaja with Janki Kuer. This is rather important
becauseit is the admitted case of the parties that Maharaja Harendra
Kishore Singh died within a month of his marriage with Janki Kuer.
He goes on to state that he learnt the genealogy from the late
c Maharaja and his uncle Ram Kumar Singh, Bhagwati Prasad Singh
and Bhola Singh. He first stated that Bhola was the son of Deep
Narain but immediately changed his statement and said that Bhola
· Singh was the son of Deo Narain.

Some questions were put to him in order to test his memory ·
D '
and he made a very specific statement to the effect that he does not
know )tis own genealogy except upto five degrees, that is to say, ·
upto Baijnath Singh. He further admitted that he does not know
the genealogy even of his .close relations, not even the names of
fathers of some of his close relations, nor even of bis own maternal
grand uncle. Indeed, if the witness was not in a position to know
E the genealogy of his own family how could he be expected to remem·
ber the genealogy of the late Maharaja whom he is ~aid to have
merely served.

F Further, in order to test the truth of the genealogy given by
him he was asked to repeat the. twenty names of any genealogy
which he remembered but the witness failed to respond and took
refuge under the plea that as he was very old his memory had faded
though he used to remember facts only up to the age of -twenty
years. It is rather surprising that although he claims that bis
G memory has not failed him in respect of all the names that he learnt
at the age of 16·17 years yet it completely failed at the time when he
was giving evidence.

Similarly, when asked as to when his ancestor's connection
H
with the ancestors of Bhagwati Prasad Singh on inviting terms began
the witness answered 'Bansidhar and Baijnath'. This was a posi·
tively false statement because Eaijnath· being his ancestor in the•6th
llJHAR v. RADl!AKRISHNA (Fazal Ali, J.) 915

degree could not have been a contemporary of Bansidbar Singh who
_ Jived long before Baijnath and therefore there is nQ question of A
'r Bansidhar Singh or Baijnath Singh being on inviting terms. ·
None of these circumstances or admissions made by this witness
were noticed or considered by Mukherji, J. In view of these confused
and conflicting statements we find it difficult to place any reliance on B
the evidence of DW-36 and we agree with M.M. Prasad, J. that the
witness was not worthy of credence.

It was to meet and save such or similar situations resulting
. from the shortcomings and frailties of the failing and fading human
memory that Sir George Rankin, in the case of Rokkam Lakshmi c
Reddi & Anr. v. Rokkam Venkata Reddi & Ors.( 1) like a sage counsel
sounded a note of caution in the following prpphetic and classic
words: ·

"It cannot rightly be left to time or chance or cross- D
examination to disclose w]:iether a statement has any
basis which _could give it value or admissibility."

To sum up, the ingenious and imaginative, fanciful and foggy,
nasty and nebulous narration of genealagies by the plaintiffs
witnesses one after the other looks like a 'sleeping beauty' or E
Cinderella's Dteam or as Shakespeares Macbeth would say "A tale
·'
told by an idiot, full of sound and fury, signifying nothing."

Thus, on a complete and careful consideration of the oral
evidence also the plaintiffs have miserably failed to prove the 'two F
important links, viz., that Gajraj Singh was the son of Ramruch
Singh, and that Ramruch Singh was the son of Bansidhar Singh and
brother of Debi Singh.

Before closing our comments on the oral evidence, we might
say a few words about the methodology adopted by Mukherji, J. G
speaking for the majority, in appreciating and analysing the evidence .
of the witnesses of the plaintiffs :

(1) The manner in which Mukherji, J. seems to have
approached the evidence does not appear to be B

(1) A.l.R. 1937 P.C. 201 at 203.
916 · SUPREME' COVl\T llEpOllTS (1983) 2 S,C,Ji,

correct or scientific. On the other hand, he ·has
A dealt with the evidence of the plaintiffs' witnesses. in
a very casual and cursory manner, as pointed out by
us, and has completely overlooked striking facts and
circumstances which render the evidence of the
witnesses unworthy of credence.
B
(2) No attempt was made by the learned Judge to adhere
to the rules of evidence regarding proof of genealogy
which we have discussed above, nor was any impor-
tance attached to the most notable feature of the
evidence of witnesses for the plaintiffs that while
c testing their memory in otder to find out if they could
really remember the names narrated to them, they
completely failed to pass the usual tests laid down by
the authorities, as indicated by us, both before and
after, while dealing with the evidence of these
D witnesses.

(3) The learned Judge appears to have taken the
evidence of the plaintiffs' witnesses fo{granted and
accepted the same to be true exfacie without making
a thorough probe into the apparant inconsistencies
and glaring infirmities from which the evidence of
these witnesses suffers.

We are therefore, unable to uphold the view taken by the
majority judgment in respect of the oral evidence on the point of
F genealogy.

A similar approach seems to have been made by the· majority
judgment so far as the documents are concerned, the reliance was
placed by the majority judgment on a large number of documents
which were either irrelevant, inadmissible or of no assistance to the
G plaintiffs. For instance, Mukerji, J. relied on Exhibits DD-30 and
3 I to prove the genealogy mentioned therein, little realising that in
the first place the recitals in the judgments were not admissible as
the judgments were not inter parties and the genealogy given therein
was also a part of the recitals and therefore, could not be made
.H use of in law. We have fully discussed both the legal and the ··--t-
factual position of the documents relied on by the plaintiffs and
b,ave <;lemonstrated that the said documents ought not have beenrelie
lniiAR v. RAi>HAKllISRNA (Fazat All, J.) Pi1
on the majority judgment. It is not necessary to burden this judg·
r·ment by repeating what we have already said. A·
In fact, it seems to us that the majority judgment was greatly
impressed oy the fact that as the plaintiffs had. proved their case
of genealogy right upto Gajraj Singh and thereafter seem to have
presumed without any cogent and reliable evidence that Gajraj
B
Singh must have been a direct descendant of Bansidhar Singh even
if there was no reliable evidence to prove this fact. On the other
hand, there was positive evidence to show that Gajraj Singh was not
the grandson of Bansidhar Singh from" the circumstances and the
documents in which the name of Ramnich Singh as being the father
of Gajraj Singh was complet~ly omitted as pointed out by as above. c
On a close and careful, detailed and exhaustive discussion of
the oral and documentary evidence, the inescapable condusions and
the firm findings which we arrive at are us follows :
D
(1) That the plaintiff has no doubt proved that he was
a direct descendent of Gajraj Singh but that is of no
...,; assistance to him so long as it is not shown that the
missing links-the relationship of Gajraj Singh with
Ramruch Singh, and Ramruch Singh with Bansidhar
Singh, and that Bandsidhar Singh was one of the E
> sons of Hirday Narain Singh h~ve been established.

(2) That the plaintiff has miserably failed to prove that
Gajraj Singh was in any way connected with
Bansidhar Singh, or that Ramruch Singh was the.
son of Bansidhar Singh and brother of Debi Bingh. F
(3) That Ex. J. was admissible in evidence though of no
assistance to the plaintiffs.

(4) That the documents, transactions judgments, G
rebkars, plaints, written statements, etc. produced by
plaintiffs are either inadmissible or irrelevant.

(5) That the oral evidence on the point of genealogy is
utterly unrealiable and unworthy of credence. H.
(6) That neither the documentary nor the oral evidence•
adduced by the plaintiffs is sullicient to prove their ·
SUPllmtE. COURT REPORTS h983l 2 S.C.i\..
'case and hence the plaintiffs have failed to discharge
A the initial onus which lay on them to prove their
case.

(7) That the majority judgment is wrong in law and on
facts and has arrived at factually wrong and· legally
B incorrect conclusions and, therefore, cannot be
upheld. '
(4) That we entirely agree with the judgment of M.M.
Prasad, J. so far as t'be plaintiffs' case is concerned .

.c (9) The plaintiffs have not proved that they are the next
and the nearest reversioners of the· late Maharaja
(Harendra Kishore Singh).

We must confess however that to discover and sift the truth
D from a huge mass of materials relevant or irrelevant, ancient and
archaic, varied. and diverse, heterogenous and sundry, has not been
a bed of roses but indeed a herculean task. With due deference to the
majority Judges we dare say that despite their strenous and perhaps
.genuine efforts to reach . legally correct conclusions on important
issues involved in the case, in the ultimate analysis they have only
E been able to do poetic rather than legal justice. We have, therefore,
taken great care to rely only on those documents or evidence which
appeared to us te be reliable and dependable : thus eliminating any
chance of mistake. No mortai'person whether he be. a Judge or a
Jurist can ever claim to be infalliable and all that is required is to
F do justice on the materials and records uninfluenced and undaunted
bi any extraneous circumstances. This is what we have endeavoured
to do in the present case which may be one of the many cases before
us but doubtless a prestigious one for the parties involved in. the
appeal.

It may be stated as a sort of a ppst•script that great reliance
was placed by the respondents on ·the admission made by the State
of Bihar in its application for leave to appeal to this Court· which is
to the effect that there is no dispute regarding the links from
Bansid\Jar Siugh to Debi Singh, Aini Singh, . Pahalwan Singh, Tilak
H Singh and Balbhadra Singh. We have earlier mentioned quite a
few times that though these "links are proved but they are of no use
to the plaintiffs unless the links between Ramruch Singh, Debi Singh
llltWl v. ~IIAIGUSllNA (l'azal Ali, J.) ~19

and Bansidhar Singh are proved. We have already shown that the
Y plaintiffs have miserably failed to prove these important links. In A
other words, the left-hand side of plaintiffs genealogy starting from
Debi Singh ~p to the late Maharaja has undoubtedly been proved
but that by itself cannot ~how that the plaintiffs are the next or the
nearest reversioners of the late Maharaja.
B
fa view of the findings given by us, the plaintiffs' suits have to
1ie dismissed.

Before closing the colourful chapter of this historical case we
would now like to deal with the last point which remains to be
considered and that is the question of Escheat. So far as this question c
is concerned, M.M Prasad, J. has rightly pointed out that as the
State of Bihar did not enter the arena as a plaintiff to claim the
properties by pleading that the late Maharaja had left no heir'
at all and, hence, the properties should vest in the State of Bihar, it
would be difficult to hold that merely in the event of the failure of
the plaint_iffs' case the properties would vest in the State of Bihar.
D

It is well settled that when a claim of escheat is put forward by
the Government the onus lies heavily on the appellant to prove the
absence of any heir of the respondent anywhere in the world.
Normally, the court frowns on the estate being taken by escheat
, unless the essential conditions for esheat are fully and completely
satisfied. Further, before the plea of escheat can be entertained,
there must be a public notice given by the Government so that if
there is any claimant anywhere in the country or for that matter in
the world, he may come forward to contest the claim of the State.
In the instant case, the States of Bihar and Uttar Pradesh merely F
satisfied themselves by appearing to oppose the claims of the
plaintiffs-respondents·. Even if they succeed in showing that the
· plantiffs were not the nearest reversioners of late Maharaja, it does
not follow as a logical corollary that the failure of the plaintiffs'
claim would lead to the irresistible inference that there is no other G
heir who could at any time come forward to claim the properties.

· · The trial court was wrong in accepting the case of escheat put
forward by the appellants without at all considering the well-
known rules and considerations governing the vesting of properties in H
the state by escheat. M.M. Prasad; J. has explained the position
very cleary in his judgment an_d has concluded thus :
SUPREMll,.COURT RBPoRTS [1983! i s.e.il
·"In view, however, of what I have held that the
A finding or declaration of the property having vest.ed in
the State of Bihar itself cannot be sustained, the question
of making a declaration in favour of the State of Uttar
Pradesh regarding the property in suit in that State does
not arise.''
B (Vol. VIII, p. 535)

We entirely agree with the op1mon expressed by the learned
Judge on this question .. However, ·we would like to leave this
question open without deciding it one way or the other because for
the purpose of deciding the appeal it is not at all necessary to go
c into the question of escheat which may have to be determined when
the State of Bihar and Uttar Pradesh come forward to claim escheat
in a properly constituted action. The plea taken by both the States
on the question of escheat is therefore left undecided.

It is obvious that the majority judgment expressed no opm10n
D on the question of escheat in view of its finding that the plaintiffs' suit
had to be decreed.

We might further state that as the properties are under the
management of the Court of wards of the State ofBihar and Uttar
E Pradesh, the status quo will be maintained untill any of the State
is able to prove its plea of escheat in a properly constituted action.

The result is that the appeals are allowed, the. dissenting
judgment .of M.M. Prasad, J. is affirmed and the plaintiffs' suit is
dismissed with costs throughout.
F
P.B.R. Appeals allowed and
Plaintiff's suit dismjssed.