P L D 1965 (W (PLP)

____________| ____________| | | | Sardar Khan‑Mst. Jannat | |__________________ | ____________|__________________ | | | Talib Husain Ghulam Muhammad Sher Khan (alive) (alive) (alive) The case of the plaintiffs was that they are the sole surviving heirs of Sardar Khan deceased under the Shariat. They denied that the defendants‑respondents were related to the deceased and were entitled to any share in his estate. The defendants pleaded that the plaintiffs had a third brother Sher Khan who inherited the estate of Sardar Khan along with them. Defendants 1 to 6 are the sons and defendant No. 7 is the widow of Sher Khan. Defendant No. 8 is a relative of Mst. Jannat, the widow of Sardar Khan. Defendants 1 to 7 as the heirs through Sher Khan have claimed 1/4 share in the estate. Defendant No. 8 was impleaded because he got a part of the land in dispute by gift from defendants 1 to 7.

2. A number of issues were framed by the trial Court in the suit. But the only issue relevant for the disposal of this appeal is‑ Whether Sher Khan, ancestor of defendants 1 to 7 was a real brother of the plaintiffs or not?

3. Both the Courts below found this issue against the plaintiffs, and their suit and the first appeal were dismissed. In this second appeal it has been argued before me that the findings of the‑ two lower Courts are based on inadmissible evidence and are consequently vitiated. In order to prove their relationship, the defendants examined D. W. 1 Lal Khan, D. W. 2 Sada, D. W. 3 Gul Muhammad, D. W. 4 Hakam Khan and D. W. 5 Muhammad Khan, defendant No.

8. In addition to this, they have also put in a certified copy (Exh. D: 2) of the birth entry relating to Ghulam Husain, and a certified copy of mutation No. 917 for the estate of Pindi Maddoki for the gift of certain land by Sardar `Khan deceased in favour of plaintiff No.

2. Objections have been raised on behalf of the appellants to the admissibility of each of these items of proof and it is contended that none of them could have been admitted as legal evidence in the case.

4. As to the oral evidence of the five witnesses for the defendants, it has been argued that none of them is a competent witness to depose about the relationship between the parties as required by section 50 of the Evidence. Act, 1872. According to this section, when the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of family or otherwise, has special means of knowledge on the subject, is a relevant fact. It is the opinion expressed by conduct, of any person who has special means of knowledge about the relationship, which is relevant. The opinion of a competent witness must be "expressed by conduct" an in case it is not so relevant based on conduct it would be irrelevant. The two illustrations to this section full bring out the import of these significant words in the section. According to illustration (a), the fact that A and B were usually received and treated by their friends as husband and wife, is relevant. Similarly in illustration (b), the fact that A was always treated as the legitimate son of B by the members of the family, is relevant. In these cases the opinion of the friends and the members of the family who have the special means of knowledge is relevant because it is based on the conduct and treatment of the persons concerned. The opinion as expressed by conduct is evidence or in other words evidence of the conduct can be given in evidence and from that conduct given in evidence, the Court is to judge the result. Generally speaking the opinion cannot be a substitute for evidence of facts in issue and is e irrelevant. But this section is one of the few exceptions to the general rule. It is, therefore, all the more necessary that in order to lay the foundation for the admission of evidence of this kind all the necessary ingredients of this section must be brought out positively. Mere rumour or gossip that A is related to B unaccompanied by conduct on their part or on the part of their friends and relations is a mere hearsay and hence inadmissible as a piece of evidence to prove the issue. Section 50 enacts a rule different from the law in England where the evidence of general reputation is admissible to establish the fact of the parties being married. In this country the evidence is limited to the opinion as expressed by conduct and there is no other section in th Evidence Act under which the evidence of general reputation can be received in proof of relationship. In Lakshmi Redi v. Venkata Redf (A I R 1937 P C 201) after reference to sections 32 and 50, their Lordships of the Privy Council observed that the Indian Evidence Act does not contain any provision making the evidence about general reputation admissible as proof of relationship. This case is an illustration of the principles contained in section 50 and the following passage in that judgment is of great practical importance to the Courts in admitting evidence of this nature : "The learned trial Judge added to the difficulty of estimating the evidence by permitting witnesses to give their testimony as to matters which could not be within their own knowledge without first stating the source of their information. Time, trouble and expense would have been saved had Cl. (5), S. 32, Evidence Act, been properly applied and witnesses required to prove the statements relied upon with proper particularity and with due attention to the requirement that the person making the statement had special means of knowledge. In a number of cases witnesses were allowed simply to enunciate from the witness box the proposition which they desired to prove. Thus one witness aged 33 was allowed to say for the plaintiff (P. W. 7): "Appanna was the father of Chinna Venkatana." And another aged 45 for the defendants (D. W. 3): `I did not see Lakshmi Reddi. Venkata Reddi is the father of Lakshmi Reddi. Veera Reddi is the father of Venkata Reddi.' It cannot rightly be left to time or chance or cross‑examination to disclose whether a statement has any basis which could give it value or admissibility. In his judgment the learned trial Judge was at times duly scornful of such evidence but it would have been fairer and less troublesome to have taken the evidence in accordance with the Act. Their Lordships are of opinion that the evidence adduced by the defendants is plainly insufficient to establish their relationship, to Nagi Reddi."

5. In Kunji Lal and others v. Suba Lal (A I R 1952 M B 12) it is laid down that the witnesses must be first asked by the party producing them to state the source of their information about the relationship sought to be proved and it cannot be left to chance or cross‑examination to bring out these facts. In another case, the Supreme Court of India to Sitaji and others v. Bijendra Narain Chaudhry and others (A I R 1954 S C 601) it is mentioned: "A member of the family can speak in witness box of what he has been told and what has been learnt about his own ancestors, provided what he says is an expression of his own independent opinion (even though it is based on hearsay derived from deceased, not living, persons) and is not merely repetition of the opinion of others, provided the opinion is expressed by conduct. His sources of information and the time at which he acquired the knowledge (for example, whether before the dispute or not) would affect its weight but not its admissibility." In this connection Natabar Parichha v. Nimai Charan Misora (A I R 1952 Orissa 75) is another case which was cited before me and is to the same effect.

6. In the present, case the Courts below have failed to critically examine the statements of the witnesses as to the relationship from this angle and it has, therefore, become necessary for me to go into the evidence again to see if it was rightly admitted. D. W. 1, Lal Khan is a resident of Mauza Kaurewala, Tehsil Kabirwala and is a Sarbarah Lambardar. He knew Sardar Khan, son of Bahawal Khan. According to this witness, Shah Alam Khan, the brother of Bahawal Khan used to cultivate lands in Kauriwala. Sher Khan, the son of Shah Alam, was born to him from one of his wives. This statement of the witness about the relationship is not based on any opinion. He has spoken from his knowledge about one of the wives of Shah Alam Khan and the birth of Sher Khan from that wedlock. His evidence about the birth of the child is admissible independently of section 50 of the Evidence Act. D. W. 2 Sada is also a resident of Kaurewala. He has merely stated that he knew Sher Khan who was the son of Shah Alam Khan. D. W.

3. Gul Muhammad is a resident of Maddoki and is related to the family. He has deposed that Sher Khan was the real brother of the plaintiffs. D. W. 4 Hakam Khan is another resident of Maddoki and is related to the plaintiffs. He has also deposed that Sher Khan deceased was the brother of the plaintiffs. D. W. 5 is Muhammad Khan, defendant No. 8, who has similarly testified about this relationship. There is little doubt that the last mentioned four witnesses would be having special means of knowledge about the relationship of the parties but it is equally clear that they have given no evidence of the conduct on which their opinion about the relationship is based. In the light of the law discussed above, their opinion about the relationship of the parties is legally irrelevant and inadmissible in evidence. I shall, therefore, rule it out of my, consideration.

7. Exh. D. 2, is a certified copy of the entries from the register of births pertaining to the police station, Pirmahal, District of Lyallpur. These entries go to show that on 25th of December 1936, a son named Ghulam Hussain was born to Shera son of Shahram, caste Baluch Muslaman, resident of Shahpur, District Lyallpur. It is in evidence that Shah Alam Khan who was the brother of Bahawal Khan had migrated from their original village Kaurewala in Multan to Shahpur, District Lyallpur. But there is nothing on the record to connect Ghulam Husain defendant No. 4 with the entries in Exh. D.

2. There is no evidence to show that defendant No. 4 was born to Sher Muhammad of this case at Shahpur on 25th of December 1936. One cannot surmise that Shera son of Shahram in Exh. D. 2 is the same person as Sher Khan, son of Shah Alam who is the predecessor of respondents 1 to

7. In view of this ambiguity, no reliance can be placed on Exh. D. 2 in order to establish the relationship in dispute. The last remaining piece of evidence on which the two Courts below have based their judgments is Exh. D. 1, a certified copy of mutation No. 917 pertaining to. the estate of Pindi Maddoki. This deals with a gift of certain land made by Sardar Khan deceased in favour of Talab Husain, plaintiff No. 2 on the basis of a registered deed dated 25th of July 1944. The mutation was entered on 3rd of October 1944 by the revenue officer. In the remarks column of this mutation a pedigree table has been reproduced which gives the relationship of Sardar Khan (who had died in the meantime) with Talab Husain, the donee. In this pedigree table the name of Sher Khan as one of the three brothers is also mentioned. At the top of this pedigree table it is mentioned that it was prepared in accordance with the revenue records, as verified on the spot and the statement of Talab Husain, the donee. On 28th of August 1944, in the course of the proceedings before the revenue officer, Talab Husain was present. His other brother Ghulam Muhammad (plaintiff No. 1) also appeared on that date and admitted the gift made in favour of Talab Husain. Then the case was adjourned by the revenue officer for Talab Husain to produce his evidence. The revenue officer has noted in his order that Sher Khan, the other brother of Talab Husain should also appear on the next hearing. On the 21st of September 1944, which was the next date of hearing, some of the parties to the mutation appeared and asked for an adjournment to produce their counsel. The order passed by the revenue officer also shows that Talab Husain made a statement that he would produce Sher Khan within 5/7 days. On the 3rd of October 1944, after hearing the arguments, the revenue officer rejected all the objections of the contesting parties and gave effect to the registered gift deed in favour of Talab Husain. This mutation was attested by the revenue officer without insisting upon the appearance of Sher Khan.

8. These proceedings were conducted by the revenue officer while attesting the mutation in the discharge of his official duties and the facts stated in the mutation are relevant under section 35 of the Evidence Act. However, the learned counsel for the appellants contends that under law the revenue officer was bound to give effect to the registered deed of gift dated 25th of July 1944 in the revenue papers as a matter of course and there was no need for him to go into the question of the relationship of Sher Khan or to call for his statement before attesting the mutation. It is argued that these matters were extraneous to the limited scope of the enquiry before the revenue officer and, therefore, the recitals about the relationship of Sher Khan in the mutation Exh. D. 1 were not made by the revenue officer in the discharge of the duty enjoined upon him by law and should be treated as irrelevant and not admissible. This argument is devoid of any force. From the proceedings before the revenue officer, it is clear that by that time Sardar Khan, the donor, bad died and the mutation even though based on a registered deed had to be attested in the presence of his heirs and after notice to them. In this connection Talab Husain took upon himself the responsibility to produce Sher Khan who according to his own admission was one of the heir of Sardar Khan. The pedigree table was recorded in the mutation in order to ascertain the names of the parties interested in the proceedings. Moreover, during the course of the mutation, objections were raised that the land transferred to Talab Husain under the gift was ancestral and Sardar Khan had no powers under custom to alienate it and that no effect should be given to it in the revenue records after the death of the donor. This objection, as well, had to be decided by the revenue officer in the presence of the other interested parties and it became necessary for him to ascertain if Sher Khan was prepared to give his consent to the alienation like his other brothel. It cannot be denied that a revenue officer is not expected to go deeper into these questions of title which are to be left for 'the civil Court to decide finally. Nevertheless within the limited scope of the summary enquiry before him, the revenue officer has to decide the case before him in the presence of those who are parties to the dispute after notice to them. It is not the law that on the production of a registered deed before the revenue officer he is precluded from holding any enquiry into the transaction and has to act blind‑folded without hearing the interested parties. I therefore, hold the revenue officer recorded the proceedings in Exh. D. 1 in due course of law in the discharge of his officials duties, and the entries in Exh. D. 1 are relevant to establish the relationship. There is another way of looking at Exh. D.

1. It embodies the admission made by Talab Husain to the effect that Sher Khan was his brother. In his statement as a witness in the present case, he admitted that he got the mutation of gift entered by the Patwari of the village. He has, however, denied that he had made any admission at that time that Sher Khan was one of the sons of Shah Alam Khan. He did not remember if during the course of the proceedings before the Tehsildar in that connection he stated that he would produce Sher Khan within 5/7 days. Mohammad Khan, defendant No. 8 has appeared as a witness for the defendants. He was one of the contesting parties in the mutation Exh. D. I and has deposed that he used to appear during the course of proceedings for the attestation of the mutation of the gift. According to him, Talab Husain plaintiff himself gave the pedigree table recorded in the mutation and verified that Sher Knan was his brother. There is no reason to disbelieve this statement of Mohammad Khan which is fully corroborated by the recitals in Exh. D. "

1. Thus the admission by Talab Husain, plaintiff No. 2, about his relationship with Sher Khan stands fully proved.

8. There is yet another objection pressed by the learned counsel for the appellants against the admissibility of Exh. D.

1. The proceedings for the mutation in original containing the admission of the plaintiff ware not produced in Court and it is contended that no secondary evidence of the admission could be received by the production of the certified copy. This objection) cannot be allowed to be raised at this late stage for the first time in second appeal. Moreover the statement of Mohammad Khan (D. W. 5) to the effect that Talab Husain had admitted his relationship before the revenue officer in his presence is by its own force admissible and there is no reason to ignore that statement of the witness.

9. The appellants have sought to make a capital out of the fact that Mst. Bhagan widow of Sher Khan has not appeared in the witness box. I, however, decline to attach any undue importance to this omission. As discussed above, there is convincing evidence on the record to establish the relationship in question which stands fully proved.

10. For the foregoing reasons, this appeal fails and is dismissed with costs. K. B. A. Appeal dismissed.