Case Note & Summary
The dispute arose from a suit for declaration of title and recovery of possession of certain properties filed by three plaintiffs, Nimai Charan Misra, Lakshminarayan Misra, and Baikuntha Pati, claiming as the sons of the half-sisters of Satyananda, the last male owner, under the Mitakshara law as modified by the Hindu Law of Inheritance (Amendment) Act, 1929. Satyananda died unmarried around 1902-1903, and his mother Haripriya succeeded to the estate. In 1916, Haripriya sold a portion of the property, leading some reversioners (agnates of her husband Lokanath Paricha) to file Suit No. 31 of 1917 challenging the alienation. In that suit, Satyabadi, one of the plaintiffs' brothers, filed a petition (Ex.1) on his own behalf and on behalf of his brothers seeking addition as co-defendants; the petition contained a pedigree showing Ahalya, Brindabati, and Malabati as daughters of Lokanath Paricha by his first wife, and Satyabadi, Baikunth, and Dasarath as sons of Ahalya. The suit was decreed on August 31, 1918, declaring the alienation not binding on reversion after Haripriya's death. The Hindu Law of Inheritance (Amendment) Act, 1929 gave a sister's son a higher place in the order of Mitakshara succession than agnates, and the Privy Council in Mst. Sahodra v. Ram Babu (1942) held that 'sister' includes 'half-sister'. Haripriya died in 1942, and the plaintiffs then filed Title Suit No. 16 of 1944 in the court of the Subordinate Judge, Sambalpur, claiming preferential succession as sons of half-sisters of Satyananda. The contesting defendants, including the appellant Dolgobinda Paricha, were agnates of Lokanath Paricha and disputed the pedigree, asserting that Ahalya and Malabati were daughters of Baidyanath Misra, father of Haripriya, not daughters of Lokanath Paricha. The trial court decreed the suit in favour of the plaintiffs on January 31, 1946, relying on Ex.1 and the oral evidence of witnesses. The Orissa High Court in Appeal from Original Decree No. 14 of 1946 affirmed the trial court's decree with a modification of damages on March 9, 1951, holding Ex.1 admissible under Section 32(5) of the Indian Evidence Act, 1872, and the testimonies of P.W.2 and P.W.4 admissible under Section 50 of the same Act. The appellant then appealed to the Supreme Court, contending that Ex.1 was not admissible because it was a joint statement of three persons, only one of whom was dead, and because it was not made before the dispute arose; he further argued that the oral evidence was hearsay and not admissible under Section 50. The Supreme Court held that Section 32(5) applied to Ex.1 because the statements were really made by Satyabadi for self and on behalf of his brothers, and in any case they were as much statements of Satyabadi as of the living brothers, and because the statements were made before the precise question in dispute in the later suit had arisen, as the respondents were not preferential heirs at the time of the previous suit. On the second issue, the Court held that the word 'opinion' in Section 50 means judgment or belief, not mere gossip or hearsay; a person's belief or conviction may manifest itself in conduct, and such conduct is relevant and may be proved. The Court further held that conduct, as an external perceptible fact, may be proved either by the testimony of the person whose opinion is relevant or by some other person personally acquainted with the facts constituting conduct, and such testimony is direct evidence within the meaning of Section 60. The Court disapproved the observations in Queen Empress v. Subbarayan that a person whose opinion is a relevant fact cannot himself state his own opinion as expressed by his conduct and that his conduct may be proved only by others when he is dead or cannot be called. Consequently, the Supreme Court dismissed the appeal and upheld the High Court's judgment, holding Ex.1 and the oral evidence of P.W.2 and P.W.4 admissible.
Headnote
A) Evidence Law - Admissibility of Joint Statement as to Pedigree - Section 32(5) Indian Evidence Act, 1872 - A joint petition containing pedigree statements made by one person on behalf of himself and his brothers, of whom only the maker was dead, was admissible because the statements were as much statements of the deceased as of the living brothers and were made before the precise question in dispute in the present litigation had arisen. Held that the High Court correctly admitted Ex.1 under Section 32(5). (Paras not mentioned) B) Evidence Law - Opinion as to Relationship through Conduct - Section 50 Indian Evidence Act, 1872 - Conduct indicating belief or opinion on relationship is relevant and may be proved; opinion means judgment or belief, not mere gossip or hearsay; presence at marriage and upanayanam ceremonies expressed opinion through conduct. Held that testimony of P.W.2 and P.W.4 was admissible under Section 50. (Paras not mentioned) C) Evidence Law - Direct Evidence of Conduct - Section 60 Indian Evidence Act, 1872 - Conduct as external perceptible fact may be proved by the person whose opinion is evidence or by other persons personally acquainted with the facts, and such testimony is direct evidence within Section 60; observation in Queen Empress v. Subbarayan disapproved. Held that relevant conduct evidence need not be confined to proof by others when the opinion-holder is dead or unavailable. (Paras not mentioned)
Issue of Consideration
Whether Ex.1, a joint petition dated November 2, 1917 containing pedigree, was admissible under Section 32(5) of Indian Evidence Act when only one of the three persons making it was dead and whether it was made before the dispute arose; Whether the oral evidence of P.W.2 and P.W.4 as to their presence at marriages and upanayanam ceremonies was admissible under Section 50 of Indian Evidence Act as evidence of opinion as to relationship
Final Decision
Appeal dismissed; High Court judgment upheld. Ex.1 was admissible under Section 32(5) of Indian Evidence Act, 1872, and the oral evidence of P.W.2 and P.W.4 was admissible under Section 50. The decree of the High Court affirming the trial court's decree (with modification of damages) was maintained.
Law Points
- Legal points not extracted
- Section 32(5) of Indian Evidence Act applies to statements as to pedigree made by a person since deceased even if contained in joint statement with living persons
- Such statements must be made before the precise question in dispute in present litigation arose
- Section 50 of Indian Evidence Act covers opinion as to relationship expressed by conduct
- Opinion means judgment or belief resulting from what one thinks on a particular question
- not mere gossip or hearsay
- Conduct as evidence of opinion may be proved either by the person whose opinion is relevant or by other persons personally acquainted with the external facts constituting conduct
- Such testimony is direct evidence within Section 60
