STATE OF BIHAR v. RADHA KRISHNA SINGH & ORS.

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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, 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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, 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 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 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 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 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 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 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 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, 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 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 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 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 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 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 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 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 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 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, 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, 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, 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.