STATE OF BIHAR v. RADHA KRISHNA SINGH & ORS

Citation: [1983] 2 S.C.R. 808

Court: Supreme Court of India

Bench: S. MURTAZA FAZAL ALI, A. VARADARAJAN, V. BALAKRISHNA ERADI

Case summary

It mentions a number of persons through whom the plaintiffs clain1 their title and, therefore, it relates to a relevant fact. The Trial Court held that the plaintiffs had not been able to prove any ' linkage or connection between Ramruch Singh and Bansidhar Singh.

Judgment text

STATE OF BIHAR v. RADHA KRISHNA SINGH & ORS. April 20, 1983 [S: MuRTAZA FAZAL Au, A. VAllADARAJAN AND V. BALAKRISHNA ERADI, JJ. ] .. - Genealogies considerations to be kept in view while considering. · Evidence Act;1872-Entries in public records-Prepared by a public officer in discharge ofhis official duties-Probative value of-Sections 13, 40, 41, 42 and 43-J? ecitale in judgments not inter partes-Section 32-Doctrine ofpost Iitem motafll-Appreciation oforal evidence in the 1natter ofproofofpedigree-Hearsay · evidence seCtio11 60-S. tatement ofperson deposing a/act known from a different source-How far can be relied on Escheat-State not entering apperance-P/ea-Jf can be arcepted without public notice to persons interested. Interpretation-Dictionaries-Howfar can be used. Maharaja Hariodra Kishore Singh was the direct descendant of Debi Singh who was the son of Bansidhar Singh.

Maharaja Harindra Kishore Singh died issueless leaving behind vast properties in the states of Uttar Pradesh and :Bihar. The original plaintiff, Bhagwati Prasad Singh was the direct descendant of Ramruch Singh but his relationship with Bansidhar Singh had not been established. The plaintiffs-respondents basing their title as the nearest reversionors of Maharaja Harindra Kishore Singh claimed that they were entitled to immediate possession of the properties after the death of the widows of the Maharaja. The Trial Court held that the plaintiffs had not been able to prove any ' linkage or connection between Ramruch Singh and Bansidhar Singh. But the , . declarations or depositions, etc. , would not be admissible if they arc post lite111111otan1. [869 A-F] In the instant ca~e, a detailed examination of the documents shows that the pJaintiff~ as pointed out by the dis~enting judge have not proved that they are in any way directly connected wiih Ramruch Singh, Bansidhar Singh or Debi Singh.

The majority on the other hand seems to have been greatly influenced by the age of the documents or thefr nature rather than their contents, ·relevancy and weight. The majority also did not focus attention on the most vital question whether or n. 6t the plaintiffs have Proved that Gajraj Singh, the ancertor of the plaintiff, was in any way connected with Ramruch Singh, Devi Singh and Bansidhar Singh. (869 G-H, 870 A-Bl In considering the oral ~vident;:e regarding a pedigree a purely n1athematlcal approach cann'ot be made because where a long line of descent has to b~ proved spreading over a century, it is obvious that the witnesses. who are examined to depose to the genealogy would have to depend on their special · means of kflowledge which may ha\e con1e to them through their ancestors ... _ but, at the same time, there is great ·risk and a serious danger involved. in relying solely on the evidence of witness given fn.

:>n1 pure memory beca~se the witness who ~re interested normally have a tendency to draw more from their imagination or turn and twist the facts which tbey n1ay have heard from th~ir anceStors in order to heIP the parties for whon1 they are deposing. The court, must therefore, safeguard that the evidence of such witness may not be accepted as it is based purely on imagination or ! ln imaginary or illusory source of information rather than special means of knowlege as required by law. TJi. e or~l testimony of the witne§s Qn (hi$ μJ. :,:itter ~s boun of the sons of Bhagwati, Prasad Singb. , claimed to havG succeeded to the estate of the late Maharaja as his nearest reversioner. • We might mention here that the main . contest before us has been between the plaintiff, Radha Krishan Singh (hereinafter referred to as the 'plaintiff') and the State of Bihar, supported by the State of Uttar Pradesh.

So far as the other two suits were concerned they were dismissed both by the trial court and the High Court but the suit filed by Radha Krishan Singh (T. S. 5/1961) was decreed by the High Court with a majority of z:l Mr. Justice G. N. Prasad, with whom Mr. Justice A. N. Mukherji agreed, reversed the judgment ·of the Subordinate Judge and derceed the suit of Radha Krishan Singh and rejected the claim of the State of Bibar. Mr. fostice M. M. Prasad, however, took a different view and agreed with the trial court holding that·the suit of the plaintiff was rightly dismissed. He accordingly gave a dissenting judgment dismissing the usit plaintiff. It is not necessary for us to embark on the history and other circumstances of the case because Justice G. N. Prasad bas dextrously detailed the facts and circumstances of the entire ·case and has candidly narrated the historical events leading to the various crucia\ s !

ages throullh which the litigation regarding th; disputed {lroperties BIHAR v. RADHAKIRSHNA. (Faza/Ali, i. ) 817 had passed. We, therefore, need not repeat what has already been fully discussed by the High Court. Suffice it to say that the eventful story . of the present litigation opens with the death of Maharaj Harendra Kishore Singh which took a more serious turn when his two widows, Maharani Sheoratan Kuer died on March 24, 1896 aμd Maharani Janki Kuer was declared incompetent to manage the estate, as a result of which the management of the entrire estate was taken over by the Court of Wards. As the properties in question were situated in both the States of Bihar and Uttar Pradesh the Courts of Wards ofBihar and Uttar Pradesh jonitly carried on _the management of the properties. Maharani Janki Kuer resided at Allahabad and died _childless on November 27, 1954.

After her unfortunate death or even before; interested persons started casting their covetous and avaricious eyes on 'the huge properties left by the late Maharaja and litigation started . by putting forward rival . and conflicting claims thus making strenuous efforts to "turn chance into good fortune". The last and inevitable step of the ·D drama long_ in process reached its climax with the death of Maharani Janki Kuer when as many as four suits, as mentioned above, ·were filed claiming the properties· of the Maharaja, some as reversioners and some as putri ka putra, etc. We would like to make it clear that the three appeals, i. e. , civil appeal Nos. 494 to 496 of 1975, have been filed by the State of Bihar arraying the plaintiffs and other claimants as the respondents in each of the appeals. The pivotal dispute centres round appeal No. 494 betweenthe State.

of Bihar, supported by the State of Uttar Pradesh on one side and the plaintiff, Radha Krishan Singh and his champarters on the other. · We, therefore, intend to discuss and analyse the evidence - oral and documentary-only so far as the parties in appea] No. 494 are concerned. Before dealing with the oral, documentary and circumstantial evidence it may be necessary to refer briefly to the background of the _case which has doubtless been fully discussed by the courts below. _Some of the historical aspects, however, have to be reiterated in ·order to understand the view which we take in this case. Coming to the history of the Bettiah Raj, we have to go back to the 17th century. The undisputed position js that Bettiah Ra,j , was an impartible estate having properties'in the States ofBihar and Uttar Pradesh. The Raj was established by one Raja Ugra Sen as far back as the middle of 17th century and was commonly known as the Riyasat of Sirkar of Champaran, consisting of four parganas, viz,.

Majhwa, Simrown, Babra and Maihsi. Raja Ugra Sen was succeeded by Raja Dalip Singh, Raja Gaj Singh and ultimately by Raja Dhrub Singh in the year 1715. Raja Dhrub Singh died in the year 1762 without leaving any male issue, but leaving a daughter named Benga Babui who had married one Raghunath Singh, a Bhumihar Brahmin of Gautam gotra. On the death of Raja Dhrub Singh, his daughter's son, Raja Jugal Kishore Singh entered into possession of the estate of Bettiah Raj and was in possession thereof at the time when the East India Company assumed the Government of the province. The Company could not tolerate any resistance from the Rulers and a battle was fought in the course of which Raja Jugal Kishore Singh was driven into the neighbouring State of Bundelkhand in 1766 and the entire estate o' Bettiah Raj was seized and placed under the management of the officers . of the Company.

During the absence of Raja Jugal Kishore Singh, Sri Kishen Singh and Abdhoot Singh who were· the sons ·of Prithi Singh and Satrajit Singh respectively and ) were younger brothers of Raja Dalip Singh, enjoyed the confidence of the Company and were placed incharge of the Bettiah Raj. However, in 1771, the Company reinstated Raja Jugal Kishore Singh obviously because he probably tendered his apologies and made a solemn promise to be Joyal to the Company, as a result of which negotiations started between the Government and Raja Jugal Kishore Singh regarding the estate in question and ultimately he v,:as allotted the Z. amindari of Majwha and Simrown which formed part of the Bettiah Raj estate and Babra and Maihsi were left in the possession of Srikishen Singh and Abdhoot Singh. The East India Company had formally announcecd this arrangment by a decison dated July 24, 1771.

Soon thereafter, there was some dispute between Raja Jugal Kishore Singh and the Company, as a result of wh;ch he was again dispossessed by • the Company as he failed to pay the Government revenue. Thus, the entire Sirkar of Champaran passed into the possession of the Government and was held by small farmers on temporary settlements. Raja Jugal Kishore Singh received an allowance for maintenance and died sometime in the year 1783, leaving a son named Bir Kishore Singh who wa> succeeded by his eldest son, Maharaja Anand Kishore Singh ·in 1790. Upon his death, leaving no issue, he was succeeeded ·by his younger brother, Maharaja Nawal Kishore Singh who was ~ucceeded by his eldest son, Rajendra Kishore Sin~h who was - ... BIHAR v. RADHAKRISHNA (Fazal Ali, J. ) 819. ultimat~ly succeeded by Maharaja Harendra Kishore Singh, whose estate is the subject matter of this suit.

On 22nd September, ·1790, Lord Cornwallis recommended to the Board of Revenue that estate of Majhwa and Simrown should be restored ro Raja Jugal Kishore Singh but as he had died by this, time, the Company directed that the· heirs. of Raja Jugal Kishore Singh, Srikishen Singh and Abdhoot Singh be restored the possession of their respective Districts. Bir Kishore Singh, was not at all satis· lied with the decision of the· Board, mentioned above, because he . claimed the entire province (Sirkar·or Champaran) but in obedience to the. order . of tbe Governor-General, he took possession of the ' parganas of Majhwa and Simrown. . Thereafter, a long-term litigation started between Bir. Kisbore Singh and the heirs of Raja Jugal Kishore Singh in respect of Majhwa · and Simrown and ultimately suits were filed which were followed by Memorial to the 'Lieutenant Governor.

It appears·that whereas in the earlier suit, Raja Deoki Nandan Singh's predecessor had pleaded that Raja Jugal Kishore Singh was the son of Raja Dhrub Singh's duaghter and, therefore, not a member oft. he family of Raja Dhrub Singh, Bir Kishore Singh had pleaded that Raja Jugal Kishore Singh having been adopted by Raja Dhrub Singh· had become a member of his family. It was pleaded in the Memorial that Raja Jugal Kishore · Singh, who belonged to the Gautam gotra, had been, adopted . by Raja Dhrub Singh who belonged to the Kashyap. gotra, and had been appointed as his successor. To cut the matter short,·it may be stated that a spate of litigation followed putting forward rival claims to the estate left by Raja Dhrub Singh. It may, however, be noted that in none of the suits instituted in 1895, 1896 and 1905, the question as to whether ·Raja Jugal Kisho.

re Singh had become· a member of the family Of Raja Dhrub Singh, by virtue of his adoption as putri ka putra, was · decided despite a plea having been raised in all those suits. As already mentioned, out of the four suits that were filed, one of them was withdrawn. In the present appeals, we are only concerned with two rival claims put forward to the Bettiah Raj on the death of Maharaja Harendra Kishore Singh and bis two widows. In suit No. 25/1958, the claimants were Ambika Prasad Singh and others claim· ing the estate on the basis that as Raja Jugal Kishore Singh succeeded . to the gaddi of Sirkar as the adopted s9n and successor to Raja Dhrub Singh and not as his daughter's son, Ambika Prasad being nearest among the reversioners was entitled to s1. 1cceed to the estate after the death of the widows. The suit of Ambika Prasad Singh was dismissed by the trial court as also by the special Bench of the High Court and some appeals· were brought to this Court by certificate.

The said appeals, being civil appeal Nos. 114-119 of 1976, in Shyam 1 Sunder Prasad Singh & Ors. v. State of Bihar & Ors. ( ) came up for hearing before. a Bench consisting of P. N. Bhagwati, A. P. Sen and . E. S. Venkataramiah, JJ. This Court dismissed the appeals and rejected the claim of Ambika Prasad Singh holding that as Raja Jugal Kishore Singh could not'in law be consiqered as putri ka putra his claim to the estate left by Raja Dhrub as being the nearest reversioner, cannot succeed. The claim of Radha Krishan Singh and others in suit ·No. 5 of 1961 was left to be decided by another Bench and it is these appeals that have now been placed before us for hearing. However, it is not necessary for us to make a deeper probe into the early history of Bettiah Raj because in the instant case the relevant genealogy for the purpose of ascertaining the ancestors of the / ' parties starts from Raja Hirday Narain Singh, and· his descendants who have been referred to. in Ex.

J, a report of the serishtedar, which appears to be the sheet-anchor of 1he plaintiffs' case. Ex. Q-2, a genealogy filed by the plaintiffs clearly shows that Thakur Hirday Narain Singh, who was the Raja of Bettiah after the death of his father, Thakur Hansraj Singh had five sons. One of his sons was Bansidhar Singh who was alleged to be the ancestor of the plaintiffs. Bansidhar Singh had only one son named Debi Singh. After a brief narration of the facts, mentioned above, before going to the oral, documentary and circumstantial evidence, it may be necessary to state the well established principles in the light of which we have to decide the conflicting claims of the parties. It appears that the plaint genealogy is the very fabric and foundation of the edifice on which is built the plaintiff's case. This is the starting point of the case of the plaintiff which has been hotly contested by the appellant.

In such cases, as there is a tendency on the part of an interested person or a party in order to grab, establish or prove an aUeged claim, H. to concoct, fabricate or procure false genealogy to sujt their ends, (I) ! 198lj 1SCR11 ii1n,. R v. ilAmtAKRISHNA (Fazai Ali,~J. ) the courts in relying on the genealogy pμt forward must guard them• selves against falling into the trap laid by a series ·of documents or labyrinth of seemingly old genealogies to support their rival claims. The principles governing such cases may be summarised thus-: (I) Genealogies admitted or proved to be old and relied on in previous cases are doubtless . relevant and in some cases may even be conclusive of the facts proved but there are several considerations which must be kept in mind by the courts before accepting or relying on the genealogies : (a) Source of the genealogy and its dependability.. (b) Admissibility of the genealogy under the Evidence ·Act.

(c) A proper use of the said genealogies in decisions or judgments on which reliance is placed. ' (d) Age of genealogies. ( (e) Litigations where such genealogies have been accepted or rejected. (2) On the question of admissibility the following tests mu. ~t be adopted: • (a) The genealogies of the families concerned must fall within the four-corners of s. 32 (5) or s. 13 of the Evidence Act. (b) They must not be hit by the doctrine of post /item molam. (c) The genealogies· or the claim cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible. (d) Where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved.

We shall now proceed to scan and analyse the evidence in the light of the principles adumbrated above referring to the important authorities on the questions arising out of the evidnce, oral and docu- ··y · mentary, Although both the parties have cited a very large number of decisions we would not like to load or crowd this· judgment with all the authorities cited before us and would confine ourselves only to the important and relevant authorities of this Court and those of the Privy Council and we shall refer to the judgments of the High Court only if there is no decision of. the Privy Council or of this Court directly in point. To recapitulate, the plaintiffs-respondents based their title as - ·1 being the nearest reversioners of the Maharaja and claimed . to be entitled to immediate possession after the death of the widows of the Maharaja.

The plaintiffs' therefore, claimed to be the direct descen· dants of Gajraj Singh and Ramruch Singh which was the branch of Bansidhar Singh's son which remained in Baraini and after the extinction . of the line of the Maharaja, the properties were fo revert to the descendants of Gajraj Singh. The attempt of the plaintiffs. has been to ·show to the Court that they were . direct descendants of Gajraj Singh who was the son of Ramruch, Ramruch being the son of Bansidhar Singh. ) n consideration of the oral and documentary evidence have endorsed the stand takeri by the defendants that Bhagwati Prasad Singh has been proved to be the direct descendant of Gajraj Singh being 7th in that line. It is well settled ·that when a case of a party is based on genealogy consisting of links, it is incumbent on the party to prove every link thereof and. even if one link is found to be missing then in the eye of law the genealogy cannot be said to have been fully proved.

In the instant case, although the plaintiffs have produced oral and documentary evidence to show that Ramruch Singh and Debi Singh were brothers being the sons of Bansidhar Singh tbis position was ·not accepted by the trial court as also by M. M. Prasad, J. wh0 dissented from the other two Judges constituting the Special Bench who had taken a contrary view and had held that the plaintiffs had fully prove_d the entire genealogy set-up in the plaint, This, therefore, . D makes our task easier because we need not discuss in detail the evidence and documents to show the connection of the plaintiffs upto the stage of Gajraj Singh though we may. have to refer to the evidence for the purpose of deci~ing the main issue, viz. , whether or· not Gajraj Singh was the son of Ramruch Singh and Ramruch Singh a brother of Debi Singh and son of Bansidhar Singh. -E Before going into the evidence; we would like to exiract the findings of the courts -below_ on the question of title.

The trial court had clearly held that the plainiffs had not been able to prove any linkage or connection between Ramruch and Bansidhar but the majority judgment consisting of G~N. Prasad and Mukherji, JJ. dis· agreed with this finding and held that all the links were cleariy proved by the plaintiffs an. d it has been proved to their satisfaction that Ramruch Singh was ·the son· of Bansidhar Singh. On this point the finding of the majority may be extracted thus "I have considered the oral and documentary evidence adduced by the parties on the point of genealogy and in my opinion, it has been well established by the evidence adduced in. tJJ,is case on- behalf of the plarutiffs of Title Suit No. 5of1961 that BansidharSingh·was a common ances· tor of Maharaja Harendra Kishpre Singh and Bhagwati StlPREME COuRT REPORTS (1983) 2s. c. ti.. Prasad Singh (father of plaintiffs 1 to 8 of Title Suit No. 5of1961). " (Vol. VIII, p. 247, para 109)· M. M~ Prasad,}.

however, dissented from the majorty judgment and agreed with the view taken by the trial court. 1n this connection, his finding may be quoted thus : "A discussion of the entire documentary evidence on the point of genealogy thus shows that there is no docu•· ment which can be safely relied upon for the purpose of proving the two links in the genealogy of the present appellants. viz. , that (1) Bansidhar was the father of - Ramruch and (2) Ramruch the father of Gajraj. (P-491 para 457) 'In conclusion, therefore, I find that there is not a single document which can be relied upon to prove the two disputed links, namely, that Gajraj was the son of Ramruch and Ramruch the son of Bansidhar. (P. 506 para 4SO) Turning to the oral evidence which I have discussed above I find that there is not a single witness who can be relied upon for the purpose of proving the aforesaid two links. (P. 506 para 480) ...

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

533, para 533) There js, however, one common factor between the majority and the ilissenting judgments and· it is tliat the plaintiffs have proved beyond reasonable doubt their connection with Gajraj Singh. This, therefore, has reduced the controversy to the bare minimum and has shortened the arena of the dispute that we are called upon to consider. Even so, this short controversy itself is a stupendous task to determfoe and we will have to approach tj). is aspect with great care and caution, deliberation and circumspection because two learned Judges of Patna High Court had negatived the plea of the defence and accepted that of the plaintiffs. In order to understand the :various shades ·and aspects of the . case and its hi. storical background, it may be necessary to extract the plaint genealogy even at the risk of repetition. In fact, the plaintiffs themselves did not append any genealogy to their plaint but G. N. Prased, J.

has constructed a genealogy, based on the recitals in the plaint, . for. the purpose of· convenience which is reproduced here (reproduced on pages 826·27). The position that emerges from a· perusal of the pleadings of the parties is that so far as the left side is concerned, . the plaintiffs have not proved their linkage either with Debi Singh or Bansidhar Singh or Ramruch Singh. The late Maharaj~ (Harendra Kishore Singh) was a ditect descendant of Debi Singh who appears on the Left Side of the genealogy whereas the original plaintiffs Bbagwati Prasad Singh was the direct descendant of Ramruch Singh appearing on the Right Side of the genealogy while all other links are a. dmitted the dispute centres round Ramrucb Singh being related to Bansidhar Singh in any way either as a father of Gajraj Singh or as a brother of Debi Singh. Apart from the majority judgment, even M,M, Prasad, J. , as indicated above, has found that the plaintiffs have proved that they were direct descend.

ants of Ramruch Singh. In this conection, the finding of M. M. Prasad, J. may be quoted thus. : "So far as the genealogy of these plaintiffs is concer• ned, their claim to the effect that they are descended from Gajraj is not disputed in this case. Learned counsel LEFT SIDE Bansidhar Singh I Debi Singh I Aini Singh I I I 'Raghunath Singh Paha! wan Singh Basant Smgh Benga Babui (daughter Basant Kuer (Childless) of Raja Dhruva Singh, I 17/15/1762 Tilak Singh = • . Soman Kuer I Raja Jugal Kishore Singh I - ' (D. 1784) I • ·1 . I Raja Bir Kishore Singh Balbhadra Singh Sangam Klier (1790 - 1816) - = Jaimed Kuer _ (Daughter) I (D. 1887) (died childless) I I Anand Kishore NavaljKishore (D. 1838) (D. 1855) I I I Rajendra Kishore Mahendra Kishore '(D. 26th March 1883) (childless) t I . Harendra Kishore D. 26th March 1893 =widow - 1. Maharani Sheortan Kuer (D. 24th March 1896) 2. Maharani Janaki Kuer (D. 27th November 1954) H· BlilAR v. RADHAKRISHNA (Fazai Ali, J.

) 827 RIGHT SIDE Bansidhar Singh I Ram Rnch alias Ram Rnp I . I r I I I Farman Har Kuer Bhup Narain Avadhut Singh I I (childless) Deo Narain I I I I I Sheo Balak Prithvi Mohan Singh I I (childless) I I Chotku Pratap Narain I (childless) . I . Sheogulam i I I Bhoala Singh Deep Narain. Jagdamba Prasad I I I NandKumar· I Jagat Bahadur (chil~less). I =Amo! Kuer I I Naud Prasad I I I I (Adopted) Bansgopal Hari Kishore Ram Sankata I I (childless) Kumar Prasad Ram Chandra I (childless) (childless) (Living) I I Bhagwati Prasad Ilaka • Singh (D. 29th (childless) iune, 1957) I ···~ I l I I I I I I Radha · Sri Ram Sheo Ashta Maina Ram Bba:gi- . Krishna Krishna Krishna Krishna Bhuja : Kesari rathi (plain- =. Shail tiff) Kumari I I I . Vidya Malti Parvati Meera Devi Sagar Devi (Daughter) (Daughter). (Son) (Daughter). appearing for thi plaintiJfs of Title Suit 25 as also the State of Bihar have clearly stated before us that they do not dispute their genealogy up to that point.

The finding of the learned Subordinate Judge is also to the effect that they have proved their genealogy up to that point. The point does no! , therefore, need a detailed consideration. 378. The other documents, however, prove that Bhagwati, the father of these appellants, was a descendant of Gajraj-" (Vol. VIII, pp. 442 & 444) Thus, the dispute which we have to resolve in this case is. whether the. plaintiffs have been able to prove any link between Ramruch and Gajraj Singh on the one hand and Ramruch ·and Bansidhar on the other. The plaintiffs can succeed only if they prove. both these links by showing that Gajraj Singh was son of Ramruch Singh and Ramruch was son of Bansidhar Singh. We would first examine the principal documentary eviden~e relied upon· by the plaintiffs to prove their case. The genuineness x ,_ of some documents has not been disputed by the appellants, but according to them these documents do not assist the case of the plaintiffs.

There are other documents whose genuineness and admissibility. have been questioned before us by Dr. L. M. Singhvi, appearing for the appellants. To start with, the main fabric and the cornerstone of the documents produced by the plaintiffs appears to be Ex. J. , an arlcient document of the year 1810 whose admissibility was seriously disputed by the appellants but all the couris have found this document •to be admissible. Apart from the majority judgment, even M. M. Prasad, J. has clearly held that Ex. J. being an entry in'a Register made by a public officer in the discb. arge · of his duties squarely falls within the four corners of _s. 35 of the Evidence Act and is, therefore, doubtless· admissible. In this connection, the learned Judge observed thus : "There can thus be no doubt that it is a report of a ·public officer in the due discharge of his public and office duties. There can thus be no doubt that it is . admissible under section 35 of the Evidence Act. " BIHAR . v.

RADHAKRISHNA (Fazul Ali, J. ) . 829 Certain inferences drawn by M. M. Prasad, J. do not appear to us to be correct because they are not borne out by the recitals in Ex. J. and are really based on a wrong interpretation of certain expressions used in Persian language. These observations appear at page 483 of his judgment (Vol. VIII) where the learned Judge says that the document shows that Gajraj Singh was one of the descendants of Hirday Narain Singh and. that Debi Sjngh . and . Gajraj Singh belonged to the same family. This anomaly appears to have crept in because the said document (Ex. J) is in Persian language and on a very close reading of the recitals pertaining to these two facts, the inferences drawn by the learne. d Judge do not appear to be' correct. We shall elaborate this point further when we deal with the merits . of the document. We Rgree with the unanimous view of the High Court that Ex. J is admissible.

In fact, the said f xhibit itself would _show that it was written by a serishtadar, a Government officer, on the direction of a very high governmental authority who had asked him to make a detailed enquiry regarding the possession of various Zamindars and submit a Report to the Government about possession. We are, therefore, of the opinion that all the conditions of s. 35 of the Evidence Act are fully. complied with and fulfilled, and it is difficult to accept the conclnsion that the document is not admissible either under s. 35_ or under any other provision of the Evidence Act. It is a different matter that even though a ·document may be admissible in evidence its probative value may be almost zero and this is the main aspect of the case which we propose to highlight when we deal with the legal value of this document. _ Bofore, however, makini any comment on the probative value of the document ill. question it will be necesary to peruse and .

analyse its important contents and their legal effei:t on the case· put forward by the parties. We might mention her~ that the appellants ·before us have not accepted the stand taken by the High Court that this document is admissible . in evidence but have argued at some length that it is totally inadmissible. Dr. Singhvi was not very vehement i. n persuading us to hold that the document is inadmissible but Mr. -G Misra, appearing for one set of the appellants, forcefully contended that the document is inadmissible. In view of the arguments addressed before us, it may be necessary to consider the question of admissibility also. In our opinion, Ex. J. squarely falls within the four corners of s. 35 of the Evidence Act which requires the following conditions to b~ fμlfilled before a docume11t ca11 l;>e admjssjble unqer ibis section, . .

(I) the document must be in the nature of an entry in any public or other official book, register or record, (2) it must state a fact in issue or a relevant fact, (3) the entry must be made by a public servant in the discharge of his official duties or in performance of his duties especially enjoined by the law of the country in which the relevant entry is kept: A perusal of Ex. J clearly shows that it is a Report made by an officer of the Government in the due discharge of his official duties because the recitals of the document show that he was entrusted with the task of and enjoined the duty of ascertaining the possession of various landlords for the purpose of taking suitable steps in the matter. It is beyond dispute in this case that the said Exhibit does mention a number of persons through whom the plaintiffs claim their title and therefore, it relates to a relevant fact.

The question as to whether the relevant fact is proved or not is quite a different matier which has nothing to do with the admissibility of the document but which assumes importance only-when we consider the probative value of a particular document. The fact that the Report was called for from the Mirzapur Collectorate has been amply. proved both by oral and documentary evidence. Thus, all the aforesaid conditions of s. 35 are fully complied with in this case. Mr. Misra, however, raised two formidable objections to the. admissibility of this document. In the first place, he submitted that there is no reliable evidence to show that Durga Prasad, the author of Ex: J. was a Government officer at all because the possibility of his being a private revenue agent of a Zamindar, who also maintains kutcheri (private office) where papers relating to realisation or rent and revenue are kept, cannot be ruled out.

The designation of Durga Prasad therefore, does not conclusively prove that he was a Govern· ment officer. Secondly, it was contended that even if Ex. J contains a seal; there is nothing to show. that it was not a private seal. In -our opinion, the contentions raised by Mr. Misra are without any substance and cannot be accepted. Reading the document (Ex. J) as a whole and taking into con5ideration the occasion for th~ entrustment of the task to Durga Prasad, its recitals and the facnhat it was kept in a purely Government department; viz. , . the Mirzapur Coliectroate from where it was produced before the trial court, clearly and conclusively prove that the repo1 t was wa\le by an cjlicial serishtad! ir ~Jl! All v. RADHAKRISHNA (Faza/ Ali, J. ) 831 appointed by a very high governmental authority. Even the opening lines of the Exhibit clearly indicate that Durga Prasad was a Govern· ment servant, perhaps in the Revenue Department, and was asked to submit a repordor official purposes.

It is also established that Durga Prasad made a roving enquiry. and ultimately submitted his Report in the year 1813. Of course, it is true that there is no evidence to show as to what happened to this Report, but that is beside the point so far as the relevancy or the admissibility of this document . is concerned. In fact, we shall show that although fahibit J is admissble yet it has no probative value at all for the reasons and the circumstance that we shall discuss hereafter. Furthermore, all the three Judges of the High Court have· unanimously held that Ex. J. is admissible in evidence whatever be its legal value. · 1 In P. C. Puru~hothama Reddiar v. S. Peruma/, ( ) this Court while considering the effect of s. 35 of the Evidence Act observed ·as follows:- "It was lastly contended that the evidence afforded by the police reports is not relevant. This again is untenable contention. Reports in question were made· by government ~: officials in the discharge of their official duties.

Those officers had been deputed by their superiors to cbver the meetings in question- ........... The first part of s. 35 of the Evidence Act says that an entry in any public record stating a fact in issue or relevant fact and made by a public servant in. the discharge of his official duty is relevant evidence. Quite clearly the reports in question were lllade by public servants in discharge of their official duty. " In view of the clear decision of this Court, referred to above, it is not necessary for us to multiply authorities on this point. The admissibility or Ex. J or its genuineness is only one side. of the picture and, in our opinion, it does not throw much light on the controversial issues involved in the appeal. We may not be understood, while holding that Ex. J is admissible, to mean that all its recitals are corre.

ct or that it has very great probative value merely because 1t happens to be an ancient document, Admissibilily of • • • ·~ , 832 SU~REME COURT REPORTS (1983J 2 S. C. R. docqment is one thing and its probative value quite another - these two aspects cannot be combined. A document may be admissible and ·-,. ~· yet may not carry any conviction and weight or its ·probative value · may be nil. Before going to the contents of Ex. J which have been . fully discussed by the High Court, we would first like to comment on the probative value of this document. . Jn adjudicating on this important aspect of the matter it may be necessary to mention a few facts and circumstances which go to show ·that Ex. J has no probative value at all. To begin with, a perusal of the Report (Ex. J) shows that it does not at all disclose the source from which Durga Prasad collected his facts or gathered the materials disclosed therein.

There is also nothil)g to show that the author of the Report consulted either contemporary or previous records or entries therein in order to satisfy himself regardin~ the correctness of various statements made pertaining to the genealogy of landlords who were in possession of the lands, as stated in the said Report. It is true that at one place the author has stated that he had taken these facts from an account book (Tumar) but he has not at all given any description or detalis or even the kind or the nature of the account-book and its contents. Furthermore, there is no evidence to indicate as to what happened after the author had submitted his Report to the Government and whether or not any follow up action was taken on the basis of his Report or it was just filed and kept on the record lying lifeless and mute.

The fact of the matter is that no proper verification was made by Durga Prasad regarding the facts stated in his Report from any source and that it did not form part of a revenue entry or ·record which was ever referred to by any Executive, Judicial or statutory authority subsequent to the filing of this Report. In other words, the position seems to be that the fate of the Report, after it was submitted, was shrouded in mystery and Report became a forgotten story unheard unwept and unsung until the present suit by the plaintiff was filed. In these circumstances, therefore, it is difficult for us to place any reliance on the document (Ex. J) even t)lough it may be admissible in evidence. Mr. Tarkunde, appearing for the respondents, however relied on several aajhorities in support of his argument to show that the authenticity of this document cannot be questioned. In the first place, reliance was placed on a decisio1l of t)le Privy C_ouμcil . in Ghulam Bl! Wl v.

RADHAJ(RJSHNA (Fazal Ali, J. ) 833 Rasul Khan v. Secretary oiState for India in Council,(') particularly on ' . the following observations : · "In such a·case as the present, statements in public documents are receivable to prove the facts stated on the general grounds that they were made by the -authorized agents of the public in the course of official duty and ·B respecting facts which were of public interest or_ required to be recorded for the benefit of the community. Taylor's Law of Evidence, 10th ed. , s. 1591. In many cases, indeed, in nearly all cases, after lapse of years it . would be impossible to give evidence that the statements, contained in such documents were in fact true, and it is for this reason that such an exception is made to the rule of hearsay evidence. " t The observations extracted above no doubt presumably support the contention of Mr. Tarkunde but even these observations have to be read in the light of the special facts of that particular sase.

In that case, there was evidence of a clear Government revenue record maintained in due course since 1852 showing that the term 'Khayyat Mohal' did not denote a tribe but merely" profession. Secondly, the . revenue record of Mauza Shahna clearly mentioned the entire pedigree of the family which was fpund by the trial court to have been proved. The question at issue in that case was whether Mohals were of Rajput origin and it was conclusiv~ly proved by the lower courts that Mohals were doubtless Rajput or had a Rajput origin. The entry . relied upon in that case was based on the extracts from settlement records of the District from . 1852 and corrobortated by later entries up to 1882. The Privy Council took special· note of the fact that -evidence . of the character taken from public records for a series of years since 1852 could not be easily brushed aside. In this connec- 'tion, their Lordships observed as follows:- "Their Lordships cannot share the.

view of the ·appellate Court that evidence of this character, taken from pμblic records for a series of years since 1852 and recorded in accordance with the requirements of the law, can in a pedigree case be disregarded. ". · (I) 52 I. A. 2Ql. 834 SUPI\EME COURT l\EPORTS (1983) 2 S. C. R. Thus, it is absolutely clear to us that the facts of that case are r--· . essentialiy different and clearly distinguishable from the nature of the . document that Ex. J is. Ex. J cannot be regarded as an entry of the type which was the subject matter of Ghu/am Rasul Khan's case (supra). There is absolutely no corroboration of the facts mentioned in Ex. J either by later entries or by any other document. There are a number of other facts mentioned in the judgment of the Privy Counci/(supra) which completely distinguishes that case from Ex.. J in the present case. At least this much is clear, as already indicated, tharin the Privy Council case there.

was positive evidence to show that the entry was acted upon for several years and that by process of elimination the caste of the appellants as Mohal Rajputs was established. But in the instant case there is absolutely no evidence to corroborate the recitals in Ex.. J by any contemporary or subsequent Government record. In our opinion, ·therefore,. the decision relied ilpon by the counsel for respondents is of no assistance. . ' Reliance was also placed on the decision in Kuar Shyam Pratap Singh v. Collector ofEtawah (1) where the Privy Council made the · following observations :- "This docume11t therefore is an official document prepared by a public authority in pursuance of a statutory duty, and it fa not disputed that it is evidence, though not conclusive evidence of the fact stated therein......... No cross-examination of the two witnesses from the Court of Wards who were called was directed to ascertain the sources on which the pedigree was founded.

" In our opinion, this decision far from supporting the case of the respondents completely belies the importance or probative value of a document like Ex. J. To begin with, the document relied upon by the. Privy Council was a pedigree which was produced in courts. by an officer of the Court of Wards. Secondly, the High Court had found that the Court of Wards Manual was prepared under the U. P. Court of Wards Act which had made a provision for an Estate Noiebook for each·estate in the Court of Wards which had to be maintained in triplicate form, one copy being kept in the District office, one in the Divisional Office and one in the office of II the Court of Wards. The object of the Notebook was to pro- (1) A. l. R. 1946 P. C. 1Q3, Bll! AR v. RADl! AKIUSHNA (Fazal Ali, J. ) 835 vide a separate and succinct note of every estate under the manage• ment. of the Court of Wards.

It is, therefore, manifest that the document concerned in that case was maintained not merely by an officer but under a statute which required certain conditions to -be fulfilled. Furthermore, sufficient notoriety and publicity was given to this document because a copy of the record was kept in the District office which could be inspected by any member of the public. In the instance case, however, we find that after Ex. J was submitted it faded into oblivion and on one ever heard of it until it was produced for the first time in the trial ·court from the Mirzapur Collectorate. ·Another important feature was that the Privy Council had found that the Court of Wards itself had held an enquiry and 'being statutory body it must be presumed to have done its duty to the best of its ability. Fourthly, although two witnesses were examined to prove the documents from the Court of Wards, they were not crossexamined at all.

In the instant case, a person from Mirzapur Collectorate merely produced the document but he had no knowledge about its contents or about its being acted upon. In these circumstances, Ex. J cannot be equated in any respect with Ex. B. which was the document under consideration by the ·Privy Council in Kuar Shyam Pratap Singh's case (supra). We would like to mention here that even if a doucment may be admissible or an ancient one, it cannot carry the sai'. ne weight or probative value as a document which is prepared either under a statute, ordinance or an Act which requires certain conditions to be fulfilled. This was the case in both Ghulam Rasul Khan's and Kuar $hyam Pratap Singh's cases (supra). ' The case of Meer Usd-ool/ah v. Mussumat Beeby Imaman, 1 Widow of Shah Khadim Hossain ( ) appears to us to be a cler illustration of a document which while being an entry in a public ·record • is of great probative value and carries the utmost weight.

In this 91se, the Registers concerned were probably under Bengal Regulations and the act of registraiion in . the Registers was made after a proclamation amounting to a public, open and notorious assertion of title. Such document was held by the Privy Council to·bn of very great -importance, and in this connection the following observations were made : (I) I M. J. A. 19. "This fact is most important, not because the · registers themselves are at all cif the nature of conclusive ·evidence of title, (for the Regulations provide against that) bu( because this act of registration after a proclama· . , tion amounts to a public, open and notorious assertion of title on the one side, and the omission to register, unexplained by proofof the ill health of the claimant, or absence in a distant country, or ignorance, afford an equally ... strong presumption of the non-existence of any title on the other.

" (Emphasis supplied) This is a clear and important· illustration of an admissible document which com_mands great confidence and whose probative ' value is almost irrebuttable and impregnable. In the case of (Raja Muttu Rama/inga Setupati v. Perianayagum Pillai (I) the Privy Council was dealing with reports made by Collectors acting under Regulation VII of 1817 of the Madras Presidency and it. was held that the Report of the Collectors may not be of great judicial authority. so far as the opinions expressed on private rights of the parties but being the reports made under a statutory Regulation they were entitled to be of considerable importance.. The reason why the Privy Council attached great credence to these reports was that the report~ when referred to . the Collector were based on the depositions taken by him (Collector) and other documents on the basis of which he had given bis report.

Furthermore, the Board of Revenue accepted the Report of the Collector and made a minute approving the same and observing that there was no question of doubting the validity of the Report. In this· connection, the Privy Council observed thus: (1) "This new dispute was referred to the then collector, Mr. Wroughton. His report upon it is dated the 7th of . January, 1834. It appears that he examined the deposi- • tions sent to the collectorate in 1815, and other docu- :G . ments, and he records the facts which, in his opinion, are ' adverse to the claims made in the part of the zemindar. He also reported to in favour of the title of the Pandaram '. Venkatachellum to the office. • • • (I) I M.!. A. 209, ' BIHAR v. RADHAKRISHNA (Fazal Ali, /. ) 837 "But being the reports of public officers made in the course of duty, and under statutory authority, they are entitled to great consideration so far as they supply information of official proceedings and.

historical facts, and also in so far as they are relevant to explain the conduct and acts of the parties in relaiion to them, and the proceedings of the Government founded upon them. " With due respect to the Privy Council, we fully agree with the view taken by their Lordships and the . test laid down by them. The document Ex. ) in the instant case does not contain any of the qaulities or attributes which were present in the Report of the Colle· ·ctors relied upon by ·the Privy Council. As ini:! icated. above, while the Coliector had made a thorough e_nquiry, ba. sed on the evidence of wjtnesses and other documents and had recorded his dear opinion which was accepted by the Board of Revenue, in the instant case Ex.

J is a God forsaken document which does not reveal either the source on the basis of which the material1 were collected nor does it indicate that the author of Report recorded any statements or looked into· other documents to base the truth of the genealogy or the possession of landlords referred to in his report. · FinalJy, Ex. J, unlike the document in the case before the Privy Council was not a Report under any statutory authority but was merely a report submitted on the administrative orders ·of a high Government offic_ial. In our opinion, therefore, where a:report is given by a responsibe officer, which is based on evidence of witnesses. and documents and has a statutory flavour in that it is given not merely by an administrative officer but under the ·authority of ·statute, its probative value would indeed be very high so as· to be etitled to great weight. ..

On a parity of reasoning mentioned above, this Court had held that a Report based on hearsay evidence or on the information given by an illiterate person cannot be admissible even under s. 35 of the Evidence Act. In Brij Mohan Singh v. Priya Brat Narain 1 Singh&. Ors. ( ) this Court observed as follows: "'l'he entry therein showing the birth of· a son to ------- Sarjoo Singh on October 15, 1935 can . however be Of no II (1) _(1965J 3 SCR 8611 a~sistance to the appellant unless this entry is admissible A. iil evidence under the Evidence Act. If this entry had been made by the Chowkidar himself this entry would have been relevant under S. 3S of the Evidence Act. Admittedly, however, the Chowkidar himself did not make it....

• • • ·-·· The reason why an entry made by a public servant in a public or other official book, register, or rec6d stating a fact in issue or a relevant fact has been·made relevant is· that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high. That probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the / entry. " In the instant case case also, Durga Prasad had to depend on some unknown persons, who were not even mentioned in the document, to gather his facts and, therefore, even ifit is admissible its probative value will be almost zero. Mr.

Tarkunde then relied on the following observations made - by Rupert Cross in his book 'Evidence' (1967: Third Edition) at page 408: "Entries··by a solicitor's clerk may, of course, be received under exception to the heargay rule which is now being considered on account of the duty owed to his · employer, and, in some cases, the duty to record may have been owed by the solicitor to his client.. ..................... Wherl speaking of the reception of declartions in the .. course of duty Sir Robert Philimore said; ·- , · ''Entries ih a document made by a deceased person can only be admitted where it is clearly shown that the '. entires relate to an act or acts done by the deceased / person a:nd not by third parties. " These observations, however, have to be read with reference to the context. Cross while making the aforesaid observations BIHAR 1'. RADHAKAJSHNA (Faza/ Ali, J. ) emphasised that Sir Robert Phillimore had said that entries .

in document made by a deceased person can only be admitted where it is ~,_- -y · clearly shown that they relate to an act or acts doue by· the deceased person and not by third parties. Thus, in the instant case, though Ex. J was admissible because its author is no longer alive it contains information which is obviously based on what he may have heard from third parties and hence much value cannot be· attached to such a report. .. 1 In Brain v. Preece Lord( ) C. B. Abinger made the following -~ , observations : • "The case of the attorney, . in Deo v. Turford, stands on precisely the same grounds as that of Price v. Lord Torrington. There it was proved that the notices were written, and that the attorney had gone out, and indorsed the duplicate wheu he came back, and that it was his practice so to indorse it when he had served the original; and · that was rightly held to be proof of the service of the pnotice. There is also another case viz , that of the notary (Poole v.

Dicas, supra), where similar entries were held evidence; but a notary is a public officer, and is sworn to do his duty as a notary, and in foreign countries the acts of a notary are like the acts of a court, although that is not so here. '' • On the other hand, commenting on the probative value of documents like Ex. J, it was held in Maria Mangini Sturla & Ors. v. Filippo Tomasso Mattia Freccia, Augustus Keppel Stevenson & Ors(') where Lor~ BlaGkburn ·observed thus : "I think an entry in the books of a manor is public in the sense that it concerns all the p~ople interested in the . manor......... But it must be a public document, and it must be made by a public officer. I understand a public ·docuinent' there to mean a docurnnent that is made for the · purpose of tlie public making use of it, and being able to · refer to it. " H· - (I) 152 English Reports 1017. (2) [1880] A. C. 623,. Same view was taken in a later decision in Mercer v.

Denne(') where the following observations were made : ,. "There is nothing to show . that any of them was made contemporaneously with the doing or effecting of a transaction which i! was the duty of the deceased person to record. There is no evidence of what his instructions were or of the relation of those instructions to the document tendered in evidence, or of the source ofthe know- • /edge or information on which the contents of the report or estimate were based .......... .. These reports in no way resemble the field-book . entries made by a deceased surveyor for the purpose of a survey on which he was professionally employed, which this· Court held to be admissible in Mellor v. Wa/mesle)'(. '). " Although we cannot hold that I;x. J in the present case is inadmissible in view of the express provisions of s. 35 of the Evidence Act, yet the observations of the Privy Council extracted above would directly and aptly apply to the probalive' value or the weight tl> be attached to Ex.

J in the absence of any disclosure by the author of the document regarding the source or the materials on the basis of which he had mentioned the facts in his report. Assuming that the case, ·extracted above, had taken an extreme view in that the repot was not admissible at all because of the legal position in England, the hard fact remains that so far as the probative value'. of a document is concerned, it is. reduced to the minimum where there is no evidence to disclose the nature cf the instructions given to the author of the doucment tendered in evidence or the source or knowiedge or infor· mation on which the report is based. Th. is ·is a serious legal infirmity from which Ex. J suffers and on that ground alone it cannot be regar· ded as a reliable or a dependable document. _ in view of the reasons given above, we reach the following conclusions regardh1g the Jaw relati_ng·to the admissibility and pro• bative value of Ex. J:~ · (l) [1905] 2 Ch. 5j8, (2) (1905] Ch. 164, ll11iAR v.

RADHAKRISHNA (Faza/ Ali, J. ) (1) That Ex. j is clearly admissible under s. 35 of the Evidence Act and we agree with the finding of the High Court on this point, (2) It appears that Durga . Prasad, serishtadar, started writing Ex. J in the year 1810 and completed the • same in 1813. (3) That Ex. J mentions names of~ome perons who according to the plaintiffs were their ancestors but on carefully analysing the document, it is not very clear. as to how Ramruch Singh was connected with Bansidhar Singh or Debi Singh. (4) That the probative value of Ex. J is absolutely insignificant and is of no assistance to us in proving the plaint genealogy. (5) That Ex. J was. a part of the record of Mirzapur Collectorate and was summoned therefrom. "(6) It would appear from a bare perusal of Ex. J that Durga Prasad was directed to embark on an enquiry regarding the persons who were in actual possession of lands at the relevant time .

and it was not a ·part of his duty to embark on any enquiry regarding the title of the _persons holding the lands, nor did he attempt to d·o so. The heading of the Report (ExU. ) itself shown that it is a report regarding the possession of Taluqa Majhwa. · Even if Ex. J is taken into consideration, it will prove not the title of the plaintiffs-respondents. but only the possession of. lands held by some of their alleged ancestors. In other words, the document will not be any evidence of title in the9uit out of, which the present appeals arise which are mainly concerned with the question of title and not with the question of possession; We now come to a detailed discussion of the contents of Ex. J to show the extent of its relevancy or importance. The original Exhibit is in Persian language and had been kept separately in a basta. During the course of hearing of the (! ppeal, the ·stiPREME COURT REPORTS h983l 2 s. c. R.

said Exhibit was got retranslated and the said translated English version appears at pages 25-33 in Volume VII of the paperbook. The document in Roman script is to be found at pages 120-123 in Volume V w:tich, in our opinion is the correct reproduction of the original Exhibit with slight discrepancies here and there. As the coumel · for the parties have not been able to agree regarding the m~aning and purport of some of the expressions used by Durga Prasad in the said Exhibit, we decided to make a detailed study of the original document side by side with the translated version. Fortunately,. as one of us (Fazal Ali,. J. ) happens to possess sufficient knowledge of Persian language, we found no difficulty in deciphering the correctness of the disputed meanings of the expressions used in the Exhibit. Even so, we have consulted the most reliable Persian-English Dictionary (Steingass-1947-3rd Impression) and other .

standard dictionaries to arrive at the correct import of the meanings of the terms and expressions used in the document. In the case of Coca-Co/a Company of Canada Ltd, v. Pepsi-Co/a 1 Company of Canada Ltd. ( ) It was clearly held that Dictionaries can always be referred to in order to ascertain not only the meaning of a word but also the general use of ·it. In this connection, their Lordships observed as follows : "While questions may sometimes arise as to the extent to which a Court may inform itself by reference to diction. aries there can, their Lordships think, be n. o doubt that dictionaries may properly be referred to in order to . ascertain not only the meaning of a word, but also the use to which the thing (if it be a thing) denoted by the word is commonly put. " This is what we have tried to achieve in addition to the know· ledge of Persian language. that one of us possesses.

To begin with, the document clearly recites as to w)lo had brdered Ourga Prasad to make the necessary inquiries and. this fact assumes some importance because there has been a serious · coniroversy between the parties as to whether Durga . Prasad was entrusted with the·task of the inquiry by a private landlord or by a·high Governnl. ent ciffiCial. The· High· Co. urt on a perusal of the --"- (L), A. LR: 1942P. C. 40•. ' BlllAR v. RADHAKRISttNA (Fazal Aii, J. ) . opening portion of the document clearly came to the conclusion that the terms used in the opening portion and the manner in which he· A. has addressed the person to whom he was directed to submit the Report shows that-he must have been a high officer of the Govern· ment though the exact designation of the said officer is not disclosed in the said Exhibit. On perusing the original as also ·the translated version, we find ourselves in agreement with the view taken by the High Court.

The actual words used by Durga Prasad, when translated in English, are as follows : "Beneficent Master, generous, kind and Judge of the time, May your prosperity be ever . lasting. " (p. 25, Vol. VII of the Paperbook) We have perused the . original words in Persian and find that they have been correctly translated in E_nglish as above. In these circumstances, we overrule the objection. taken by the appellants regarding the document being a private one or the Report being made by a private serishtadar. · After addressing the official, the document begins by using the word "Huzoor" and on the basis of this word it was contended that this shows that it must have been a very high official who had . ordered the inquiry. Nothing much turns on the use of the word· 'Huzoor' which is only a term of· courtesy used to address either elders or high dignitaries but the crucial word is 'Huzur·e-wala'.

The word 'wala' with Huzur qualifies the nature of the official mentioned in the opening part of the document, viz. ,. beneficent master, i. e.. , the high officer aforesaid: . Having determined the opening part of the Report we will now proceed to the main points mentioned therein : . · (I) It is mentioned that the order of the high official was received by Durga Prasad on 26th October 1810 directing the humble author of the Report to peruse the docutllents kept . in . the serishtadar's office and give a detailed account as to who in the past, in which year and in what manner the predecessors of . Pahalwan·Singh. were in possession of the·aforesaid· · • Taluka . (by aforesaid Taluka Manza Majh;. a · is clearly intended as would appear [from the earlier · part of the document. ) The word used in the Roman script are "buzurgan Pahalwan Singh". There was a serious controversy regarding the actual meaning of the· word 'Buzurgan'.

According to the plaintiffs· respondents, the word 'Buzurgan' means ancestors whereas, according to the appellant, it means elders of the family of Pahalwan Singh. In other words, according to the appellant, what Durga Prasad was required to do was to find out not that the. ancestors of Pahalwan Singh were in possession but the elders of Pahalwan Singh, which is a much wider term. In our opinion, the interpretation put by the appellants on the word 'Buzurgan' appears to be correct. To begin with, the word 'buzurgan' does not mean predecessors ·in the strict sense of the term. The concept of 'buzurgan' in Persian or Urdu language is to denote merely an elderly person. In Steingass's Persian-En_glish Dictionary (Third Impression: 1. 947) at page 183, the word 'Buzurg' is defined among· others as ·grandee, adult and elder. The word 'Buzurgan' is merely a plural of Buzurg. In Forbes's Hindustani-English Dictionary (1848) · 'Buzmg' has been defined as an elder (p. 77).

Similarly, 'buzurgan' has been defined as elder (p. 89). Therefore in the instant case, the a,ctual connotation of the term 'buzurgan' with reference to tne context would ·mean not only predecessors or ancestors of Pahalwan Singh but also the elders of Pahalwan Singh who may or may not be directly related to him though they may form either near or distant relatives being elder to Pahalwan· Singh. The High Court seems to have proceeded on the footing that the word 'buzurgan' really means · y ancestors only and one of the tasks entrusted to Durga Prasad was ' to find 'out the names of the ancestors of Pana! wan Singh who were " in possession of the t11luka.

In view of the actual meaning of the word 'buzurgan' as explained above, which is supported by the dictionary meaning, we are unable to agree with the connotation of · the word 'buzurgan suggested by the counsel for the respondents and we also do not accept the translation of the word 'buzurgan' in the Roman Script as 'predecessors' only. - ~- There is another circumstantial evidence in the document citself which fully supports the view taken by us. A little later, Durga Prasad while describing the heirs of Gautam tribe has used the word BIHAR v. RAD! lAKRiSHNA (Fazal Ali, J. ) '845 'warsha' (to be correctly -written as 'worasa') which means ·descendants or heirs (vide p. q4 of Forbes's Hindustani-English dictionary. · &;"p. 1449 ofSteingass's dictionary & p. 141 ofWollaston's English Persian dictionary) ... The translation of the word 'ancestor' in persia~ would be Moris or Jad or Bapdada (father & grandfather)· vide Wollaston's dictionary at p. 12 and Forbes's dictionary at p.

IO and if highest ancestor is intended, it will be translated as Moris-eala'. Durga Prasad who was fully conversant with Persian language has deliberately not used the word _'Moris, or 'Moris-e-ala' or 'Jadd' while referring to the elders of Pahalwan Singh, which is unmistakably clear from the language and the style used by him, but has used · the. word 'Buzurgan' which is of a mucJi wider import and merely sugge~ts that he was directed to find out the possession of the elders of Pahalwan Singh whether beloning to the same family or not. If the intention of the author was to refer to the direct . ancestors Of Pahalwan Singh he would have used the term 'Morisane Pahalwan Singh' (ancestors of Pahalwan Singh) which he has deliberately not done. We are fortified in our v,iew by the dictionary meaning of the words 'Moris' and_'Moroos'. The meaning of Moroos is described by SteingaHs at page 1343 as 'hereditary, possessed by paternal succession'.

The word 'Moris' is a root of Moroos which means hereditary possession and conveys the sense of a direct ancestor. Similarly, the other expressions have been'·defined by different dictionaries as shown below: Minjumla = Among ali; from among (p. 1323, Steingass · dictionary) Minjumla = Upon the Whole (p-510, Forbes' dictionary). Aulad = Descendant (p. 121, Steingass Dictionary) Descendant = ~ulad (p. 72, Forbes' Dictionary-English Part) It follows as a logical corollary that the translation of the word · 'Buzurgan' as 'Predecessor' in the Roman Script of Ex. J is not quite ~ccurate. Having sorted out the problem of the word 'Buzurgan' we now proceed to consider the meaning of the words used by Durga Prasad in the introductory part of his Report. The document (Ex.

J) proceeds to mention while addressing the high official that the zamindari of ta]uka Majhwa Pargana Kaswar was previously in -the poossession of the descendants Gautam tribe and further emphasised ·that the descendants of Gautam tribe were in possessionthere of by inheritance according to the shares of their respective family members. The translation of these English words though substantially correct require some amplification. In the first place, Durga Prasad has used the word 'Aulad-e-Gautam'. Auld means 'heirs or direct descendants'. This is followed by the word 'Biradari': The actual sense which he wanted to convey was that the lands in the Mauza were in possession of the descendants of Gautam tribe and his biradari. Biradari was sought to be interpreted by the respondents as meaning the members of the J - \ family of Gautam tribe. This, however, is wholly incorrect. The concept of Baradari in Persian is much wider than a mere family.

In Steingass's Dictionary (supra) at page 167 the word 'bira! fari' is defined thus : "biradari-Brotherhood, the fraternal relation; relationship; -" In Muhammed Mustafa Khan's Urdu-Hindi. dictionary, the word 'biradari' has been defined thus : "Baradari-one tribe, man belonging to one tribe, brother- ~' hood" (P. 422 : 1959 edition) 'Baradari-Relationship, Brotherhood (Forbes Hindustani-English Dictionary, p. 71) It denotes only brotherhood,which does not mean merely members of the family of a p];rticular person but the entire brotherhood ·or caste or tribe in a broader and general sense of a group of persons of which some may or may not cons\itute one family. Thus, from the·use of the word 'baradari' it cannot be argued with any show of force that Mauza Majhwa was in possession only of the ·G direct descendants and members of the family of Gautam tribe. Durga Prasad has taken care to use different terms to indicate different relationships.

Somewhere he has used the word 'aulad' where he wanted to indicate direct descendants or heirs; at other place he has used 'buzurgan' where he wanted to indicate only the elders who may or may not be related to the person concerned; sometimes he has used the word 'biradari' to indicate not only the family but the eqtire l)ro\herhood or ! llembers of the caste or tribe. BIHAR v. RADHAKRIS! lNA (Faza/ Ali, J. ) 847 Jn the last lines of first paragraph of the Report. the following words are used . _:. • "ba beradari Hirdeynarain Singh dar qabza mosamiyan Debi Singh wo Barisal Singh wo · Ramhit Singh wo Gajraj Sahi zamindaran boods. " (The last word should be 'bood' and not 'hoods'J From this, the respondents as also the High Court. seem to infer that Debi Singh, Barisal Singh, Ramhit Singh and Gajraj Sabi were the direct ·descendants of Hirdaynarain Singh or the members of his family. This inference is not brone out by the aforesaid wprds used by Durga Prasad.

The words only indicate the undoubted. possession of Hirdaynarain Singh, and the persons who were in possession along with 4im were the four persons mentioned above who belonged only to the brotherhood of Hirday Narain'Singh. · The question of all of them being direct descendants or relations does not arise on the interpretation of the words used by Durga Prasad, as indicated above, He has further stated that he had learnt the aforesaid facts from the account papers of Pargana Kaswat. · We might mention that even M. M. Prasad, J. was carried away by the language used by Durga Prasad, viz. , the use of the word 'biradari' to indicate that Hirday Narian Singh and four others .. belonged to the same family which was neither his intention nor the meaning o(the sentence used by him. To this extent, therefore, we do not agree with M. M. J'rasad, J.

It may be important to remember this fact because much has neen made of the sentence "Debi Singh and aforesaid four persons" to contend that the four persons, viz Debi Singh, Barisal Singh, Ramhit Singh and Gajraj Sabi, were the descendants of Hirday Narain Singh or Debi Singh which is also fallacious cc;mclusion reached by the High Court and not· warranted by the words used in the document (Ex. J. ). The word 'minjoomle' merely means-among all or from among them-it does not mean 'including'. The words in the last portion of second paragraph of the Report "Pahalwan Singh ham az auladey Debi Singh minjoomle chehar kashan mazkuran asht Faqat. " - do not indicate that Pahalwan Singh alongwith his descendants, viz. , Debi Singh Barisal Singh, Ramhit Singh and Gajraj Sabi were in possession.

The word 'descendant' qualifies only· Ramhit Singh and not the other three persons as a logical consequence·of the statement made in the first paragraph, extracted above, indicating the baradari of Hirda y Narain Singh. -. ,. -- ·+-- • The docnment then proceeds to give details of the settlements made with various persons, and the relevant portion recites thus in Roman S. cript at page 121, Vol. VII: "Kha! ispur 1 Mauza asli '· Bawaqt bandobast Patta zamindari banam Audhan Singh Ke az aulad Hirday Narain Singh mqzkur ashtshuda bood... ...... i The English translation runs thus : "Kha! ispur 1 M Asli At the time of settlement the Zamindari Patta was executed in favour of Audhan Singh. , who is one of the descendants ofHirday Narain Singh, aforesaid...... . " (Vol. VII, p. 27) We may pause here to indicate an important point which arises out of the aforesaid recitals. Durga Prasad has not used the word 'brotherhood' or.

'Bjlzurgan' while describing Audhan Singh but has clearly stated that he was a descendant of· Hirday Narain Singh. If ... it was true that Barisal Singh, Debi Singh and Gajraj Singh were also direct descendants of Hirday Narain Singh, he would have undoub- . tedly mentioned their names also. In the next column, Durga Prasad goes on narrating the history and mentions that at the time of settlement, the zamindari patta was. executed in favour of Gurdat Singh who was one of the ·descendants· of Debi Singh. Jlere also, he clearly indicates the relationship . of Gurdat Singh as being a descendant of Debi Singh. What is most important is that in the plaint genealogy there is absolutely no reference either to Audhan Singh or to Gurdat Singh. while describing the heirs of Hirday Narain Singh. In fact, no person by the name of Gurdat Singh is mentioned as an heir of Debi Singh in ihe plaint genealogy.

----~- On the next page it was mentioned that Babu Deep Narain Singh purchased the village at an auction held by the Government for paymen~ of arrears of Government revenue. Deep Narain Singh BJHAR v. RADHAKRISHNA (Fazal Ali, J. ) 849 obtained the zamindari sanad from the huzoor (a high official of the Government) and patta. was executed in favour of Ram Baksh Singh, who is one of the descendants of Hirday Narain Singh and is alive. It may be noted· that . even Ram Baksh Singh is 'not at all mentioned in the 'genealogy of Hirday Narain Singh nor is he . mentioned in the earlier part of Ex. J as being either a. member of the family or descendant of Hirday Narain Singh. It has, therefore, been established beyond any shadow of doubt that Barisal Singh, Debi Singh and Gajraj Singh were not the direct descendants Of Hirday Narain Singh. Otherwise Durga Prasad would have mentioned these persons also as heirs or direct descendants of Hirday Narain Singh as he has done in the case of .

c Audhan Singh, Ram Baksh Singh and Ramhit Singh. Furthermore, at page 28 on the lefthand side. of the document (English translatfon) it is clearly mentioned that zamindari patta was executed in favour of Bhagat Singh, Golami Singh, ·Harjan Singh ·who· were the descendants of Hirday Narain Singh. Thus,' it is clear from the -· scheme foliowed by Durga Prasad that whenever he 'wanted to convey a particular person or persons to be heirs or direct descendants of an ancestor he would expressly say so. 011 a plain reading of this part of the Report, it would appear that the descendants of Hirday Narain Singh were Bhagat Singh, Golami Singh, Audhan Singh, Ram Baksh Singh, Rahmit Singh and Harjan Singh. The other persons, viz , Debi Singh, Barisal Singh and Gajraj Sabi (Or Gajraj Singh) have not been mentioned as descendants of Hirday Narain Singh and this, therefore, completely demolishes the case of the plaintiffs-respondents on this.

aspect of tlie matter and throws serious doubt on their genealogy. Furthermore, this circumstance supports our interpretation that in the first part of the Report the words used "among . the aforesaid four persons" ; connote that. only Ramhit . Singh and not others were descendants of Hirday' Narain Singh; they·may have belonged to same l)rotherhood.. > In the righthand colninn of Ex. J at page 28, vol. VII of the English translation, it is clearly mentioned that Pahalwan Singh is one of the descendants of Debi Singh. This statement corroborates the • . plaintiffs' case t(\ this extent that Pahalwan Singh was one 9f the descendants of Debi . Singh and shows that a part of the plaintiffs genealo·gy relating to Debi Singh is correct. Referring· to Baraini, Semri and Ramchandrapur villages, it is mentioned that zamindari patta was ~ven t(). Mohan Sin$h who wa~ 850 ' ' 'SUPR! iME COURT REPORTS · c (! 983} 2 S. C. ll. • descendant of Gajraj Sabi.

It may be noted that here the word used is 'aulad' which means son, or grandson being in the nature of ~ . _,,_. ,. a direct descendant. This entry throws a flood of light on the actual position occupied by Gajraj Sabi and there is . absolutely no reference nor anything to show that Gajraj Sabi wa' in any way directly related to. D~bi. Singh or Hirday Narain Singh. There is· also no reference to Ramruch Singh. As the plaintiffs claim to be the direct descendants of Gajraj Singh, this circumstance completely falsifies their case that Gajraj Singh or Ramruch Singh were in any way connected with Debi Singh or the descendants of Hirday Narain Singh. Next item relates to villages Badapur, Kanak Sarai where ·it is mentioned that Hardarshan Singh who was a descendant of Ramhit c . Singh has been given the patta and is in possession. As rega'rds village Gadoi it is mentioned that at the time of settlement zamindari patta was given to Nanku Singh and Jitoo Singh who. were descendants of H!

rday Narain Singh. Nanku Singh died and there~ after Deep Narain Singh, son of Nanku Singh; got the patta· in his own name in respect of halfshare. The next item narrates that at the time of the settlement, the zamindari patta was executed in favour of Gurdat Singh, who was one of the descendants of Debi Singh, and he paid rent without obtaining any fresh patta. It is further mentioned that in respect of ·village Sabesar, zamindari patta was given to Rainhit Singh, descendant (aulad) of Hirday Narain Singh and on his death·, the ' T patta was given to Nanku Singh. . It is not necessary for us to wade through the details of the seWement made by various zamindars pertaining to different villages in the Sirkar of Champaran, except some entries to which we would refer hereafter.

As regards Jalalpur which was in Taluka of Madan Gopal and Kiswar Das Thathar, the zainindari patta was executed in ·favour of Farman Singh and after his death Zalim Singh and Ramhit Singh; sons of Farman Singh, obtained the patta in their names and were in· pqssession thereof. Here also, there is no' reference either· to. • Gajraj Sahi or Gajraj Singh as being relations of Debi Singh nor is · the name of Ramruch . Singh mentioned at all. Again, in respect of Chak Lohani and Kalyanpur it is mentioned that Gurdat Singh was 1 oneofthe'descendants of Debi Singh and ·tta. rdarshan Singh"was a descendant of Ramhit Singh'. ·. • · · ' • l'" - ' I 'J' . BIHAR v. l\ADllAKRISHNA {FilzarA/i; J. ) 851 As regards Taluka Thathra ~nd other village's they were sold. to Raja Balwant Singh and one Gajraj Singh paid rent to the sirkar on behalf of Raja Balwant Singh. The parentage of Gajraj Siitgh or his relationship either· with Hirday NarainSingh or Debi Singh is not indicated at all.

Therefore, it appears that HAKRISHNA (Pazal Ali, J. ) necessary for us to make any further comments on these documents because they do not show· anything beyond what we have said. The explanation which is sought to be given by _the respondents for the absence of names of Bansidhar Singh and Ramruch Singh . is that since Durga Prasad_was writing the report in the year 1810, by which time both Bansidhar and Ramruch had already died, there could be no. question of their names finding a place in the Report. This argument. in our opinion, is wholly untenable. We have already pointed out that . the main task with which Durga Prasad was entrusted was. to find out the ancestors. of Pahalwan Singh and if Bansidhar and Ramruch were really the ancestors of Pahalwan Singh, their names could not have escaped the attention of Durga Prasad particularly when the name of Hirday Narain Singh, who is higher than Bansidhar Singh, is mentioned in the Report conspicuously.

Secondly, in view of the scope of the enquiry embarked upon by Durga Prasad, he had to find out the ancestors. from the records and he says very clearly in qis Report ! hat his. information was based on records in the Serista, particularly the Tumar (accou_nt book). Jf Bansidhar and Ramruch had in fact been directly connected with Debi Singh or Pahalwan Singh, th~re is no reason why Durga Prasad should not have mentioned their ~ames. as being ·anc_estors. of pahalwan Singh who appeared to be only 2 to 3 degrees remote from them. In these cir- · cμmstances, 'therefore, the absence of the names of the aforesaid persons in Ex. J is, in our opinion a conclusive circumstance to;show thaf there was no· relationship between Bansidhar, Raniruch and Paba]wan Singh. This conclusion is further fortified by the fact that even Gajraj Sahi. (or Gajraj Singh) who was the only son or' Ramruch and a grandson o_f Bansjdhar, finds specific mention in the Report. For these reasons, we reject.

the explanation given by the respondent on this point. In view of ·out analysis of the docull)ent, w