# DOLGOBINDA PARICHA v. NIMAI CHARAN MISRA & OTHEH,S

- **Citation:** [1959] Supp. 2 S.C.R. 814
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeal No. 206 of 1954
- **Bench:** S. K. Das; A. K. Sarkar, K. SUBBA RAo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dolgobinda-paricha-v-nimai-charan-misra-otheh-s-1676
- **Pages:** 22

## Headnote

Evidence-Admissibility-Joint statement of thr.e personsAdmissibility under s. 32(5) of the Evidence Act, when only one is
dead-Opinion as to relationship-Conduct as evidence of opinionProof of conduct-Direct evidence-" Opinion", meaning of-Indian
Evidence Act, I872 (I of r872), ss. 32(5), 50, 60.
On the death of H, who as the mother of the last male
owner had succeeded to the estate, the respondents claimed the
estate and brought a suit for its recovery on the strength of the
pedigree which they set up that they were the sons of the halfsisters of the last male owner and therefore came before the
agnates. The suit was contested by some of the agnates, of
whom the appellant was one, who challenged the correctness of
the pedigree, and maintained that the respondents' mothers \Vere
not the half-sisters of the last male owner. The trial court
agreed with the respondents' case and decreed the suit and this
was confirmed by the High Court.
The High Court relied on
Ex. I, a petition dated November 2, 1917, which S, one of the
brothers of the third plaintiff, on his own behalf and on behalf
of his brothers had filed in Suit No. 31 of I917 which was a suit
instituted by some of the agnates of H•s husband questioning
the alienation~ made by H. In the petition, S alleged that the
applicants were the legal claimants to the properties in the suit
and prayed' to be added as co-defendants to the suit. The petition contained a pedigree which supported the pedigree set up
(2) s.c.R.
SUPREME COURT REPORTS
815
by the respondents, and the High Court held that Ex. I was
admissible under s. 32(5) of the Indian Evidence Act.
The oral
evidence of P.W. 2 and P.W. 4 supported _the respondents' case
as to the pedigree set up by them and the High Court held that
their evidence was admissible under s. 50 of the Indian Evidence
Act. On appeal to the Supreme Court, it was contended for the
appellant (1) that Ex. I was not admissible under s. 32(5) of the
Indian Evidence Act because (a) the statement therein was a
joint statement of three persons of whom one alone was dead,
and (b) it was not made before disputes had arisen; and (2) that
the testimony of P.W. 2 and P.W. 4 did not fall within the purview of s. 50 of the Indian Evidence Act and that the High Court
erred in admitting and accepting such evidence.
Held: (1) that s. 32(5) of the Indian Evidence Act was
applicable to the statements as to pedigree in Ex. I because: (a)
they were really made by S for self and on behalf of his brothers,
and that, in any case, they were as much statements of S as of
the other two brothers who are alive.
Chandra Nath Roy v. Nilamadhab Bhattacharjee, (1898) I.L.R.
26 Cal. 236, approved.
(b) they were made before the precise question in dispute
in the present litigation had arisen, as the respondents were not
preferential heirs at the time of the previous suit and no question arose or could have arisen then as to the relationship
between them and the last male owner.
(2) that the evidence of P.W. 2 and P.W. 4 that they were
present at the marriage of the mother of plaintiffs l and 2 as
also at the Upanayanam ceremonies of plaintiffs l and 2, showed
the opinion of those witnesses as to the relationship as expressed
by their conduct, and was admissible under s. 50 of the Indian
Evidence Act.
The word " opinion " in s. 50 of the Indian Evidence Act
means something more than mere retailing of gossip or hearsay ;
it means judgment or belief, that is, a belief or a conviction
resulting from what one thinks on a particular question. Such
belief or conviction may manifest itself in conduct or behaviour
which indicates the existence of the belief or opinion.
Under s. 50 such conduct or outward behaviour as evidence
of the opinion held is relevent and may be proved.
Chander Lal Agarwala v. Khalilar Rahman, I.LR (1942] 2 Cal.
299, approved.
Conduct, as an external perceptible fact, may be proved
either by the testimony of the person himself whose opinion is
evidence under s. 50 or

## Text

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814
SUPREME COURT REPORTS
[1959] Supp.
I959
Bhin,ka & Others
petitions filed by the appellants to the Revenue Board,
and the latter by its order dated September 6, 1953,
held against them and that order has become final.
For the said reasons, we must hold that the suits could
not be abated under r. 5 of the amended Rules.
v.
Charan Singh
Subba Rao ],
1959
April a7.
In the result, the appeals fail and are dismissed with
costs.
Appeals dismissed .
•
DOLGOBINDA PARICHA
v.
NIMAI CHARAN MISRA & OTHEH,S
(S. K. DAS; A. K. SARKAR and K. SUBBA RAo, JJ.)
Evidence-Admissibility-Joint statement of thr.e personsAdmissibility under s. 32(5) of the Evidence Act, when only one is
dead-Opinion as to relationship-Conduct as evidence of opinionProof of conduct-Direct evidence-" Opinion", meaning of-Indian
Evidence Act, I872 (I of r872), ss. 32(5), 50, 60.
On the death of H, who as the mother of the last male
owner had succeeded to the estate, the respondents claimed the
estate and brought a suit for its recovery on the strength of the
pedigree which they set up that they were the sons of the halfsisters of the last male owner and therefore came before the
agnates. The suit was contested by some of the agnates, of
whom the appellant was one, who challenged the correctness of
the pedigree, and maintained that the respondents' mothers \Vere
not the half-sisters of the last male owner. The trial court
agreed with the respondents' case and decreed the suit and this
was confirmed by the High Court.
The High Court relied on
Ex. I, a petition dated November 2, 1917, which S, one of the
brothers of the third plaintiff, on his own behalf and on behalf
of his brothers had filed in Suit No. 31 of I917 which was a suit
instituted by some of the agnates of H•s husband questioning
the alienation~ made by H. In the petition, S alleged that the
applicants were the legal claimants to the properties in the suit
and prayed' to be added as co-defendants to the suit. The petition contained a pedigree which supported the pedigree set up
(2) s.c.R.
SUPREME COURT REPORTS
815
by the respondents, and the High Court held that Ex. I was
admissible under s. 32(5) of the Indian Evidence Act.
The oral
evidence of P.W. 2 and P.W. 4 supported _the respondents' case
as to the pedigree set up by them and the High Court held that
their evidence was admissible under s. 50 of the Indian Evidence
Act. On appeal to the Supreme Court, it was contended for the
appellant (1) that Ex. I was not admissible under s. 32(5) of the
Indian Evidence Act because (a) the statement therein was a
joint statement of three persons of whom one alone was dead,
and (b) it was not made before disputes had arisen; and (2) that
the testimony of P.W. 2 and P.W. 4 did not fall within the purview of s. 50 of the Indian Evidence Act and that the High Court
erred in admitting and accepting such evidence.
Held: (1) that s. 32(5) of the Indian Evidence Act was
applicable to the statements as to pedigree in Ex. I because: (a)
they were really made by S for self and on behalf of his brothers,
and that, in any case, they were as much statements of S as of
the other two brothers who are alive.
Chandra Nath Roy v. Nilamadhab Bhattacharjee, (1898) I.L.R.
26 Cal. 236, approved.
(b) they were made before the precise question in dispute
in the present litigation had arisen, as the respondents were not
preferential heirs at the time of the previous suit and no question arose or could have arisen then as to the relationship
between them and the last male owner.
(2) that the evidence of P.W. 2 and P.W. 4 that they were
present at the marriage of the mother of plaintiffs l and 2 as
also at the Upanayanam ceremonies of plaintiffs l and 2, showed
the opinion of those witnesses as to the relationship as expressed
by their conduct, and was admissible under s. 50 of the Indian
Evidence Act.
The word " opinion " in s. 50 of the Indian Evidence Act
means something more than mere retailing of gossip or hearsay ;
it means judgment or belief, that is, a belief or a conviction
resulting from what one thinks on a particular question. Such
belief or conviction may manifest itself in conduct or behaviour
which indicates the existence of the belief or opinion.
Under s. 50 such conduct or outward behaviour as evidence
of the opinion held is relevent and may be proved.
Chander Lal Agarwala v. Khalilar Rahman, I.LR (1942] 2 Cal.
299, approved.
Conduct, as an external perceptible fact, may be proved
either by the testimony of the person himself whose opinion is
evidence under s. 50 or by some other person acquainted with the
facts which express'such opinion, and as the testimony must
relate to external facts which constitute conduct and is given by
persons personally acquainted with such facts, the testimony is
in each case direct within the meaning of s. 60 of the Indian
Evidence Act.
r959
Dolgobinda
Paricha
v.
Nimai Charan
Misra <!> Others
I959
Dolgobinda
Paricha
v.
Nitnai Charan
A1isra G Othtrs
816 SUPREME COURT REPORTS [1959] Supp.
The observations of Hutchins, J., in Queen Empress v.
Sitbbarayan, (1885) I.L.R. 9 Mad. 9, that s. 50 of the Indian
Evidence Act seems to imply that a person whose opinion is a relevant fact cannot be called to state his own opinion as expres~ed
by his conduct and that his conduct may be proved by others
only when he is dead or cannot be called, disapproved.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
206 of 1954.
Appeal from the judgment and decree dated March
9, 1951, of the Orissa High Court in Appeal from
Original decree No. 14 of_l946, arising out of the judgment and decree dated January 31, 1946, of the Court
of Subordinate Judge at Sambalpur in Title Suit No.
16 of 1944.
L. K. Jha, Rameshwar Nath, S. N. Andley and J.B.
Dadachanji, for the appellant.
S. C. Issacs and R. Patnaik, for the respondents.
1959.
April 27.
The Judgment of the Court was
delivered by
s. K. Das J.
S. K. DAs, J.-This appeal on a certificate granted
by the High Court of Orissa is from the judgment and
decree of the said High Court dated March 9, 1951,
by which it substantially affirmed the decision of the
learned Subordinate Judge of Sambalpur in Title Suit
No. 16 of 1944 except for a modification of the decree
for damages awarded by the latter.
Two questions
of law arise in this appeal, one relating to the interpretation of s. 32, sub-s. (5) and the other to s. 50 of
the Indian Evidence Act (I of 1872), hereinafter referred to as the Evidence Act.
The material facts rel a ting to the appeal are susceptible of a simple and concise statement. Three persons
Nirnai Charan Misra, Lakshminarayan Misra and
Baikuntha Pati brought a suit for a declaration of
their title to and recovery of possession of certain properties details whereof are not necessary for our purpose. This suit was numbered Title S_uit 16 of 1944 in
the court of the Subordinate Judge of Sambalpur.
The claim of the plaintiffs, now respondents before us,
was founded on the following pedigree :-
M
ell
Sankarsan
I
lla!aram
1-----------1Baidyanath
Raghunath
I
I
-1
_
Anirudha Deft. 7
I
.
Purushottam
I
Sri pa ti Deft. 2
1------1
Natabar Deft. l
Janardan
.,
I
.
Devendra Deft. 3
I
I .
--~r----1
Radha Krushna
Deft. 4
I
Satyabadi
(dead)·
Dolgovind
Ramhari
Deft. 5
Deft. 6
I
Must. Ahal ya
(dead) married.
Lakhan Pati.
I
I
Dasarath
(Deft. 8)
(given in adoption
in another family).
I
Baikuntha
(Plaintiff 3)
l
Sa tyabhama
=
(rst wife) married
1861 (died 1886)
I
I
Bhubana
I
Lokanath
=
I
Mst. Malabati
Mst. Brindabati
(dead) married.
Raghumani.
' {dead) married,
-~Iandhata Misra.
I
Haripriya
alias Srihari
(died 1942)
(2nd wife)
I
Satyananda
(died 1902)
N
_I
•
1ma1
Plaintiff l
I
Lakshminarayan
Plaintiff 2
!"
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I.
I959
Dolgobinda
Paricha
v.
Nitnai Charan
Misra & Others
S. /{, Das ].
818
SUPREME COURT REPORTS [1959] Supp.
The last male owner was Satyananda who died unmarried sometime in 1902-1903, and his mother Haripriya succeeded to the estate. She lived till 1942;
but in 1916 she had sold a portion of t,he property to
one Indumati, daughter of Dharanidhar Misra (plaintiffs' witness no. 4) and some of the reversioners,
namely, Natabar and Janardan, who were agnates of
Haripriya's husband Lokenath Parichha,. brought a
suit challenging the alienation. This suit was Suit
No. 31of1917 in the court of the Subordinate Judge,
Sambalpur. The suit was decreed on August 31, 1918,
and the alienation was declared to be without legal
necessity and not binding on the reversion after the
death of Haripriya. In 1929 was passed the Hindu
Law of Inheritance (Amendment) Act (II of 1929)
which inter alia gave to a i,ister's son a place in the
order of Mitakshara succession higher than the agnates ; before-the amending Act a sister's son ranked as
a bandhu, but under it he succeeded next after the
sister. The question whether a half-sister was entitled to get the benefit of the amending Act gave rise
to a difference of opinion, but the Privy Council held
in 1942, settling the difference then existing between
the various High Courts, that the term 'sister' included a ' half-sister ' ; but a full sister and a half-sister
did not take together and the latter took only in
default of the full sister.
(See Mst. Sahodra v. Ram
Babu (1) ).
The plaintiffs-respondents claimed on the
strength of the pedigree which they set up that they
were sons of the half-sister of Satyanand and therefore
came before the agnates.
The suit was contested by some of the defendants
who were agnates of Lokenath Paricha and of whom
the present appellant was one. The contesting defendants challenged the correctness of the pedigree
alleged by the plaintiffs-respondents and their main
case was that Ahalya and Malabati were not the
daughters of Lokenath Parichha but were daughters
of Baidyanath Misra, father of Haripriya. The relevant pedigree which the appellant set up was-
(1) (1942) L,R. 69 LA. 145.
(2) S.C.R.
SUPREME COURT REPORTS
819
I
Haripriya
(died on
6-4-1942)
I
Satyanand
(died in 1903)
Baidyanath Misra
I
-i--
I
I
Bisseswar
Ahal ya=
Malabati =
Misra
Lakshan Pa ti
Mandha ta
DayaLgar=
I
IJ
Sushila P. W. 3
I-~--· I
Dasarathi
Baikuntha I
Pllf. 3
I
,-.-·-··
Nimai
PHI. I
I
Lakshminarayan.
Plff. 2.
As the High Court has put it, the essential controversy between the parties centred round the question
if the plaintiffs-respondents were the sons of the
daughters of Lokenath Parrohha by his first wife
Satyabhama. On this question the parties gave both
oral and documentary evidence. On a consideration
of that evidence the learned Subordinate Judge held
that they were the sons of the daughters of Lokenath
Parichha and on that finding the suit was decreed.
There was an appeal to the High Court, and it affirmed the finding of the learned Subordinate Judge. The
High Court relied on Ex. 1, a petition dated November 2, 1917, which Satyabadi on bis own behalf and
on behalf of his brothers Baikunth Pa ti and Dasarath
Pati had filed in Suit No. 31of1917; this petition contained a pedigree which showed that Abalya, Brindabati, and Malabati were daughters of Lokenath
Parichha by his first wife and Satyabadi, Baikunth
and Dasarath were the sons of Ahalya. The admissibility of this document was challenged on behalf of
the appellant, but ,the learned Judges of the High
Court held that the document was admissible under
s. 32(5) of the Evidence Act.
The contention before
us is that the document was not so admissible, and this
is one of the questions for decision before us.
As to the oral evidence, N arasimham, J., held that
the testimony given by three of the witnesses of the
plaintiffs-respondents, namely, Janardan Misra (plaintiffs' witness no. 2), Sushila Misrain (plaintiffs' witness
no. 3) and Dharanidhar Misra (plaintiffs' witness no.
4) was admissible under s. 50 of the Evidence Act, and
I959
Dolgobinda
Paricha
v.
Nimai Charan
Misra & Others
S. [(. Das].
I959
Dolgobinda
Paricha
v.
Nimai Charan
Misra G Others
S. !{. Das].
820
SUPREME COURT REPORTS [1959) Supp."
he relied ·on that testimony in support of the pedigree
set
11 p by the plaintiffs-respondents. The learned
Chief Justice relied on the evidence of Dharanidhar
Misra which he held to be admissible but with regard
to the other two witnesses, he said-
" With regard to the other two witnesses relied on
by the plaintiffs namely that of P. Ws. 2 (Janardan
Misra, aged 62) and 3 (Susi]a Misrani, aged 43) knowledge of relevant facts as to relationships can seldom
be attributed to them.
Their evidence, though true,
and otherwise acceptable, must be based upon their
·having heard the declarations of such members of the
family as were their contemporaries or upon the tradition or reputation as to family descent handed down
from generation to geaeration and recognised and
adopted by the family generally. This may partly, if
not wholly, be based upon conduct within the meaning of section 50, such as treating and recognising the
mothers of the plaintiffs as Lokenath's daughters, and
the plaintiffs as his daughter's sons.
They, judged
from their respective ages, could not be considered
to have direct knowledge of the matters in issue.
Scanning their evidence closely, I find that they
have in no way deposed about such conduct of the
me.mbers of the familv of Lokenat.h as could be attributed to the knowledge or belief or consciousness of
those who had special means of knowledge of the
relationships or that the relationship was recognised
and adopted by the family generally. In the , circumstances, I entertain some doubt as to the acceptability
of their statements in evidence."
On behalf of the appellant, it has been contended that
the testimonv of none of the aforesaid three witnesses
fell within the purview of s. 50 of the Evidence Act
and the High Court was in error in admitting and
accepting that evidence or any part thereof, and
according to learned counsel for the appellant, the
whole of it was hearsay pure and simple-some of it
being even second or third-hand hearsay. Thus the
second question for our consideration is if the testimony of the witnesses mentioned above or of any of
them, is "admissible evidence within the meaning of
s. 50 of the Evidence Act.
(2) S.C.R.
SUPREME COURT REPORTS
821
We proceed to consider the second question first.
The Evidence Act states that the expression " facts in
issue " means and includes any fact from which either
by itself or in connection with other facts the
existence, non-existence, nature or extent of any right,
liability or disability asserted or denied in any suit or
proceeding necessarily follow ; " evidence " means and
includes (1) all statements which the Court permits or
requires to be made before it by witnesses in relation
to matters of fact under enquiry; and (2) all documents produced for the inspection of the Court. It
further states that one fact is said to be relevant to
another when the one is connected with the other in
any one of the ways referred to in the provisions of the
Evidence Act relating to the relevancy of facts. Section 5 of the Evidence Act lays down that evidence
may be given in any suit or proceeding of the existence
or non-existence of every fact in issue and 'of such
other facts as are declared to be relevant and of no
others. It is in the context of these provisions of the
Evidence Act that we have to considers. 50 which
occurs in Chapter II, headed "Of the Relevancy of
Facts". Section 50, in so far as it is relevant for our
purpose, is in these terms :-
" S. 50. 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 .
the family or otherwise, has special means of knowledge on the subject, is a relevant fact".
l
On a plain reading of the section it is quite clear that
it deals with relevancy of a particular fact. It states
in effect that 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 has special means
of knowledge on the subject of that relationship is a
relevant fact.
The two illustrations appended to the
section clearly bring out the true scope and effect of
the section. It appears to us that the essential requirements of the section are-(1) there must be a case
where the court has to form an opinion as to the
1959
Dolgobinda
Paricha
v,
Nimai Charan
Misra & Others
S. [{. Das ].
I959
Dolgobinda
Paricha
v.
N 11nai Charan
Misra & Others
S. I<. Das j.
822
SUPREME COURT REPORTS [1959] Supp.
relationship of one person to another ; (2) in such a
case, the opinion expressed by conduct as to the
existence of such relationship is a relevant fact; (3)
but the person whose opinion expressed by conduct is
relevant must be a person who as a member of the
family or otherwise has special means of knowledge on
the particular subject of relationship; in other words,
the person must fulfil the condition laid down in the
latter part of the section. If the person fulfils that
condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than
mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question.
Now, the "belief" or conviction may manifest itself
in conduct or behaviour wh\ch indicates the existence
of the belief or opinion. What the section says is that
such conduct or outward behaviour as evidence of the
opinion held is relevant and may, therefore, be proved.
We are of the view that the true scope and effect of
section 50 of the Evidence Act has been correctly and
succinctly put in the following observ:ations made in
Chandu Lal Agarwala v. Khalilar Rahman('):-
" It is only ' opinion as expressed by condltct '
which is made relevant. This is how the conduct
comes in. The ·offered item of evidence is ' the conduct', but what is made admissible in evidence is' the
opinion ', the opinion as expressed by such conduct.
The offered item of evidence thus only moves the
Court to an intermediate decision: its immediate effect
is only to move the Court to see if this conduct establishes any 'opinion' of the person, whose conduct is
in evidence, as to the relationship in question. In
order to enable the Court to infer 'the opinion', the
conduct must be of a tenor which cannot well be
supposed to have been willed without the inner existence of the ' opinion '.
When the conduct is of such a tenor, the Court
only gets to a relevant piece of evidence, namely, the
opinion of a person. It still remains for the Court to
weigh such evidence and come to its own opinion as
(r) I.L.R. [1942] 2 Cal. 299, 309.
(2) S.C.R. SUPREME COURT REPORTS
823
to the factum probandum-as to the relationship in
question."
We also accept as correct the view that s. 50 does not
make evidence of mere general reputation (without
conduct) admissible as proof of relationship: Lakshmi
Reddi v. V enkata Reddi (1 ).
It is necessary to state here that how the conduct
or external behaviour which expresses the opinion of
a person coming within the meaning of s. 50 is to be
proved is not stated in the section. The section merely says that such opinion is a relevant fact on the
subject of relationship of one person to another in a
case where the court has to form an opinion as to
that relationship. Part II of the Evidence Act is
headed "On Proof". Chapter III thereof contains a
fascicule of sections relating to facts which need,not
.be proved. Then there is Chapter IV dealing with
oral evidence and in it occurs s. 60 which says inter
alia :-
" S. 60. Oral evidence must, in all cases whatever,
be direct; that is to sayif it refers to a fact which could be seen, it must
be the evidence of a witness who says he saw it;
if it refers to a fact which could be heard, it
must be the evidence of a witness who says he heard it;
if it refers to a fact which• could be perceived by
any other sense or in any other manner, it must be
the evidence of a witness who says he perceived it by
that sense in that manner ;
if it refers to an opinion or to the grounds on
which that opinion is held, it must be the evidence of
the person who holds that opinion on those grounds. "
If we remember that the offered item of evidence
under s. 50 .is conduct in the sense explained above,
then there is no difficulty in holding that such conduct or outward behaviour must be proved in the
manner laid down in s. 60; if the conduct relates to
something which can be seen, it must be proved by
the person who saw it; if it is something which can
be heard, then it must be proved by the person who
heard it; and so on. The conduct must be of the
(1) A.I.R. 1937 P.C. 201.
I959
Do/gobinda
Paricha
v.
Nimai Charan
Misra & Others
S. K. Das].
'959
Dolgobinda
Paricha
v.
Niniai Charan
Misra 6' Others
S. K. Das].
824
SUPREME COURT REPORTS
[1959] Supp.
person who fulfils the essential conditions of s. 50, and
it must be proved in the manner laid down in the
provisions relating to proof. It appears to us that
that portion of s. 60 which provides that the person
who holds an opinion must be called to prove his
opinion does not necessarily delimit the scope of s. 50
in the sense that opinion expressed by conduct must
be proved only by the person whose conduct expresses
the opinion. Conduct, as an external perceptible fact,
may be proved either by the testimony of the person
himself whose opinion is evidence under s. 50 or by
some other person acquainted with the facts which
express such opinion, and as the testimony must relate to external facts which constitute conduct and is
given by persons personally acquainted with such
facts, the testimony, is in each case direct within the
meaning of s. 60.
This, in our opinion, is the true.
inter-relation between s. 50 and s. 60 of the Evidence
Act. In Queen Empress v. Subbarayan (1) Hutchins, J.,
said:-
"That proof of the opinion, as expressed by conduct, may be given, seems to imply that the person
himself is not to be called to state his own opinion,
but that, when he is dead or cannot be called, his conduct may be proved by others. The section appears
to us to afford an exceptional way of proving a relationship, but by no means to prevent any person from
stating a fact of which he or she has special means of
knowledge. "
While we agree that s. 50 affords an exceptional way
of proving a relationship and by no means prevents
any person from stating a fact of which he or she has
special means of knowledge, we do not agree with
Hutchins, J., when he says that the section seems to
imply that the person whose opinion is a relevant fact
cannot be called to state his own opinion as expressed
by his c"nduct and that his conduct may be proved
·by others only when he is dead or cannot be called.
We do not think that s. 50 puts any such limitation.
Let us now apply the tests indicated above to the
testimony of the two witnesses, J anardan Misra and
(1) (1885) l.L.R. 9 Mad. g, II.
(2) S.C.R. SUPREME COURT REPORTS
825
Dharanidhar Misra.
As to Sushila Misrain, she was
aged about 43 when she gave evidence in 1946. It is
unnecessary to consider in detail her evidence, because
.if the evidence of the other two older witnesses be
admissible, that would be sufficient to support the
finding arrived at by the, courts below and her evidence ·would also be admissible on the same criteria
as the evidence of the other two witnesses.
The first question which we must consider is if
Janardan Misra and Dharanidhar Misra had special
means of knowing the disputed relationship. Janardan Misra was aged about 62 in H!46, and he was
related to the family of Baidyanath Misra.
Kashi
Nath Misra was his grand-father and was a brother of·
Baidyanath Misra.
Obviously, therefore, J anardan
Misra had special means of knowing the disputed
relationship, being related to Baidyanath and therefore to Haripriya, who was the second wife of Lokenath. He said in his evidence that he knew Lokenath
Parichha, had seen his first wife Satyabhama and
remembered the marriage of Haripriya with Lokenath
Parichha. Obviously, therefore, he fulfilled the condition of special knowledge. He further said that he
attended the marriage of Malabati, daughter of Lokenath, when Lokenath was living. That marriage took
place in the house of Lokenath. He also said that he
was present when the first two daughters of Malabati
were married and also at the time of the Upanayan
ceremonies of plaintiffs 1 and 2.
According to the
witness, Shyam Sundar Pujari, a son of a sister of
Lokenath, acted as a maternal uncle at. the time of
the marriage of the eldest daughter of Malabati and
Dayasagar Misra carried Radhika, second daughter of
Malabati, at the time of her marriage.
The question is whether. these statements of Janardan Misra as to his conduct are admissible under s. 50,
Evidence Act. Learned counsel for the respondent
has contended before us that even apart from s. 50,
the evidence of Janardan Misra is direct evidence of
facts which he saw and which should be treated as
directly proving the relationship between Lokenath
1?4
r959
Dolgobinda
Paricha
v.
Nimai Charnn
Misra & Others
S. !(. Das].
I959
Dolgobinda
Paricha
v.
Nimai Chaf'an
Misra £. Others
S. ](. Das ].
826
SUPREME COURT REPORTS [1959] Supp.
and his daughters. We do not think that learned·
counsel for the respondent is right in his submission
that Janardan's evidence directly proves the relation
between Lokenath and his alleged daughters, Ahalya,
Brindabati and Malabati. J anardan does not say
that he was present at the birth of any of these
daughters. What he says is that he was present at
the marriage of Malabati which took place when
Lokenath was living and in Lokenath's house; he was
also present at the marriages of the first two daughters
of Malabati and also at the time of the Upanayan
ceremonies of plaintiffs 1 and 2. This evidence, in our
opinion, properly comes within s. 50, Evidence Act ;
it shows the opinion of Janardan Misra as expressed
by his conduct, namely, his attending the marriage of
l\falabati as daughter of Lokenath and his attending
the marriages and Upanayan ceremonies of the grandchildren of Lokenath. We do not think that it can be
suggested for one moment that Janardan Misra
attended the marriage and other ceremonies in the
family as a mere casual invitee. He must have been
invited as a relation of the family and unless he
believed that Malabati was a daughter of Lokenath
and the others were grand-children of Lokenath to
whom the witness was related, he would not have said
that he attended those ceremonies as those of the
children and grand-children of Lokenath. This, in
our opinion, is a reasonable inference from the evidence and if that is so, then the evidence of J anardan
Misra was clearly evidence which showed his belief as
expressed by his conduct on the subject of the relationship between Lokenath and his daughters and
Lokenath and his grand-children.
Janardan also said that one Shyamsundar Pujari
acted as maternal uncle at the time of the marriage of
the eldest daughter of Malabati. There is some evidence in the record that Shyamsundar Pujari was son
of Lokenath's sister. This was, however, disputed by
the appellant. The High Court has not recorded any
finding on the relation of Shyamsundar Pujari to
Lokenath. If it werl) proved that Shyamsundar was
a son of Lokenath's sister, he would have special
(2) S.C.R.
SUPREME COURT REPORTS
827
means of knowledge as a relation of the family and his
conduct at the time of the marriage of Malabati's
daughter would also be admissible under s. 50.
But
in the absence of any finding as to any special means
of knowledge on the part of Shyamsundar, the latter's
conduct will not be admissible under s. 50.
We need
not say anything more about Shyamsundar, as the
High Court has not based its finding on the conduct
of Shyamsundar.
The same criteria apply to the evidence of Dharanidhar Misra, who was aged 96 at the time when he
gave evidence.
He was the maternal uncle of Janardan Misra. Dharanidhar's evidence showed that he
knew Lokenath Parichha and his two wives, Satyabhama and Haripriya. He also had special means of
knowing the disputed relationship, though he was not
directly related to Lokenath. He said that Lokenath
was two years older than him and the witness attended
the marriages of Radhika
and
Sarjoo and the
" thread " ceremonies of Lakshminarayan and Nimai.
The witness further added that though he did not
remember if he was invited to the marriage of Mandhata's daughters, he was invited to the feasts which
followed the marriage. He said that the feasts took
place in the house of Mandhata and he attended the
"gansana " and marriage feasts of Mandhata's daughters.
The same criteria which make the evidence of
J anardan Misra admissible under s. 50 also make the
evidence of Dharanidhar Misra admissible under the
same section.
We may in this connection refer to one of our own
decisions, Sitaji v. Bijendra Narain Choudhary (1),
wherein the following observations were made:-
" A member of the family can speak in the witness-box of what he has been told and what he has
learned 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 hearsay opinion of others, and provided
the opinion is expressed by conduct. His sources of
(r) A.LR 1954 S,C, 6or.
I959
Dolgobinda
Paricha
•
v.
Nimai Charan
Misra & Others
S. [(, Das }.
828
SUPREME COURT REPOliTs [1959] Supp.
information and the time at which he acquired the
knowledge (for example, whether before the dispute or
. D~:~::::•
not) would affect its weight but not its admissibility.
This is therefore legally admissible evidence which, if
I959
v.
Nimai Cha.an believed, is legally sufficient to support the finding".
Misra & 01hm It is true that Dharanidhar Misra was not directly
related to the family of Lokenath. He was, however,
s. K. Das f.
distantly related to Haripriya. He was a friend of
Lokenath Paricbha and lived in the same neighbourhood.
His evidence showed that he knew him and
the members of his family quite well. That being the
position, his evidence that he at;tern;led the marriage
ceremonies and the Upanayan ceremonies of several
members of the family undoubtedly showed his
opinion as expressed by his conduct.
'We are accordingly of the view that the evidence
of both Janardan Misra and Dharanidhar Misra was
admissible under s. 50 and the learned Judges of the
High Court committed no error of law in admitting
and considering that evidence. We are concerned
here with the question of admissibility only.
As to
what weight should be given to their evidence was
really a matter for the courts below and both the
learned Chief Justice and Narasimham, J., accepted
the testimony of Dharanidhar Misra and Narasimham, J., further relied on the testimony of J anardan
Misra also.
We now proceed to a consideration of the first question, namely, the admissibility of the document Ext. 1.
The High Court has held the document to be admissible under sub-section (5) of s. 32 of the Evidence Act.
We must first read s. 32 (5):
"S. 32. Statements, written or verbal, of rele-
• vant facts made by a person who is dead, or who cannot be found, or who has become inc.apable of giving
evidence, or whose attendance cannot be procured
without an amount of delay or expense which, under
the circumstances of the case, appears to the Court
unreasonable, are themselves relevant facts in the
following cases :-
(1)
(2) .•.............•..................•.......•.................
(2) S.C.R. SUPREME COURT REPORTS
829
(3) ........................................................... .
(4) ........................................................... .
(5)
\Vhen the statement relates to the existence
of any relationship by blood, marriage or adoption
between persons as to whose relationship by blood,
marriage or adoption the person making the statement had special means of knowledge, and when the
statement was made before the question in dispute
was raised.
(6) ........................................................... .
(7) ........................................................... .
(8) ........................................................... "
Now, four conditions must be fulfilled for the-application of sub-s. (5) of s. 35: firstly, the statements,
written or verbal, of relevant facts must have been
made by a person who is dea.d or cannot be found, etc.,
as mentioned in the initial part of the section; secondly, the statements must relate to the existence of any
relationship by blood, marriage or adoption; thirdly,
the person making the statement must· have special
means of knowledge as to the relationship in question;
and lastly, the statements must have been made before
the question in dispute was raised. There is no serious
difficulty in the present case as to the first two conditions.
Exhibit 1 contained a pedigree which showed
that Lokenath had three daughters by his first wife,
the daughters being Ahalya, Brindabati and Malabati;
it also showed that Ahalya. had three sons Satyabadi,
Baikuntha and Dasarath, of whom Baikuntha was
one of the plaintiffs in the present suit and the other
two plaintiffs Nimai and Lakshminarayan were shown
as sons of Malabati. Exhibit 1 was signed by Satyabadi on his own behalf and on behalf of his brothers
Baikuntha and Dasarath. Satyabadi is now dead.
So far as Satyabadi is concerned, there can be no
doubt that the first two conditions for the application
of sub-s. (5) of s. 32 are fulfilled. It has been contended that as Dasarath and Baikuntha are alive
(Baikuntha being one of the plaintiffs) and as the
statement was the joint statement of three persons of
whom one alone is dead, the first and preliminary
condition necessary for the application of s. 32 is not
•
1959
Dolgobinda
Paricha
v.
Nimai Charan
Misra & Others
5. K. Das].
'959
Dolgobinda
J::>at'iiha
v.
Niinai Charan
.llfisra ~ Others
S. [(, Das ].
830
SUPREME COURT REPORTS [1959] Supp.
fulfilled.
We do not think that this contention is
correct, and we are of the view that the position is
correctly stated in Chandra Nath Roy v. Nilamadhab
Bhattacharjee ('); that was a case in which the statements were recitals as to a pedigree and were contained in a patta executed by three sisters, two of
whom were dead and it was pointed out that the statement in the patta was as much the statement of the
sisters who were dead as of the sister who was alive.
In the case before us the statements as to pedigree in
Ex. 1 were really the statements of Satyabadi, who
signed for self and on behalf of his brothers. Assuming, however, that the statements were of all the three
brothers, they were as much statements of Satyabadi
as of the other two brothers who are alive.
We,
therefore, see no difficulty in treating the statements
as to pedigree in Ex. 1 as statements of a dead person
as to the existence of a relationship by blood between
Lokenath and his daughters Ahalya, Brindabati and
Malabati-the relationship which is in dispute now.
The more important point for consideration is if the
statements as to pedigree in Ex. 1 were made, to use
the words of sub.s. (5), before the question in dispute
was raised.
The High Court held that the statements
were made ante litem motam.
Learned counsel for the
appellant has very strongly contended before us that
the High Court took an erroneous view in this matter.
Let us first see the circumstances in which Ex. 1 was
filed and dealt with in Suit No. 31 of 1917.
W'e have
said earlier what that suit was about. It was a suit
brought by some of the reversioners for a declaration
that the alienation made by Haripriya in favour
of Indumati was without legal necessity and, therefore, not binding on the reversion after the death
of Haripriya. The suit was filed on August 27, 1917.
On November 2, 1917, certain other persons made an
application to be added as parties to the suit on the
footing that they had the same interest in the suit as
the plaintiffs. That application was disposed of by the
learned Subordinate Judge by the following order-
" In a suit like the present, it is not necessary
(1) (1898) I.L.R. 26 Cal. 236.
•
(2) S.C.R. SUPREME COURT REPORTS
831
that all the reversioners should be made parties. So I
reject the petition."
Exhibit 1 was filed on November 5, 1917. In that petition Satyabadi alleged: "The applicants are the legal
claimants to inherit the properties left by Lokenath
...... the applicants therefore beg that they may kindly
be made co-defendants". It was further alleged that
the plaintiffs of that suit had no legal right over the
share in dispute, and this was followed by a pedigree
given in para. IV of the petition. This petition (Ex. 1)
was put up on November 27, 1917, and the learned
Subordinate Judge disposed of the petition by the
following order :-
"The petition of Satyabadi Pati and others was
put up in the presence of the plaintiff's pleader.
He
objects to the same. The petition is, therefore,
rejected."
Ultimately, the suit was decreed on August 31, 1918,
on the finding that the alienation by Haripriya was
without legal necessity and did not bind the reversion
after her death.
The learned Judges of the High Court took the view
that in Suit No. 31 of 1917 no dispute arose as to the
alleged relation between Lokenath on one side and
Ahalya, Brindabati and Malabati on the other. The
dispute in that suit was about the validity of the
alienation made by Haripriya and the suit having
been filed by some of the reversioners on behalf of the
reversion, no issue was raised or could be raised as to
whether Lokenath had any daughters by his first wife.
Such an issue was not relevant to the suit and furthermore nobody could anticipate in 1917 that the sons of
a sister or half-sister would be preferential heirs in the
order of Mitakshara succession. They, therefore, held
that the statements in Ex. 1 were ante litem motam and
admissible under sub-s. (5) of s. 32, Evidence Act.
On behalf of the appellant it has been argued that
for a declaratory decree in respect of an alienation
made by a Hindu widow or other limited heir, the
right to sue rests in the first instance with the next
reversioner and the reversioner next after him is not
entitled to sue except in some special circumstances
I959
Dolgobinda
I'aricha
v.
Nimai Charan
Misra & Others
S. K. Das],
I959
Dolgobinda
Paticha
v.
·Nimai Charan
A1isra & Others
S. l(. Das].
832
SUPREME COURT REPORTS [1959] Supp.
and therefore the question as to who the next reversioner was arose in the suit of 1917; and Ex. I did
raise a dispute as to who the last male owner wasLokenath or Satyanand-and also showed that there
was a dispute if the plaintiffs of that suit were entitled
to the property in dispute there. The existencs..of such
a dispute, it has been argued, affected the statements
in Ex. 1 and what Satyabadi said therein were not
" the natural effusions of a party who must know the
truth and who speaks upon an occasion when his mind
stands in an even position without any tern ptation to
exceed or fall short of the truth" (as per Lord Chancellor Eldon in Whitelocke v. Baker) (1). Learned counsel has also relied on the decision in Naraini Kuar v . .i.
Chandi Din (2) where it was held that s. 32(5) did not
apply to statements made by interested parties in
denial, in the course of litigation, of pedigrees set up
by their opponents.
We do not think that in Suit No. 31 of 1917 any
que.stion as to the relationship of Lokenath with
Ahalya, Brindabati and Malabati arose at all.