DOLGOBINDA PARICHA Vs. NIMAI CHARAN MISRA

JUDGEMENT

(1.) THE following Judgment of the courtwas delivered by

(2.) THIS appeal on a certificate granted by theHigh court of orissa is from the judgment and decree of thesaid High court dated 9/03/1951, by which itsubstantially affirmed the decision of the learnedSubordinate Judge of Sambalpur in Title Suit No. 16 of 1944except for a modification of the decree for damages awardedby the latter. Two questions of law arise in this appeal,one relating to the interpretation of s. 32, sub-s. (5) andthe other to S. 50 of the Indian Evidence Act (I of 1872),hereinafter referred to as the Evidence Act.<PG>916</PG>

(3.) WE proceed to consider the second question first. TheEvidence Act states that the expression ' facts in issue 'means and includes any fact from which either by itself orin connection with other facts the existence, non-existence, nature or extent of any right, liability ordisability asserted or denied in any suit or proceedingnecessarily follow; 'evidence' means and includes (1) allstatements which the court permits or requires to be madebefore it by witnesses in relation to matters of fact underenquiry ; and (2) all documents produced for the inspectionof the court. It further states that one fact is said to berelevant to another when the one is connected with the otherin any one of the ways referred to in the provisions of theEvidence Act relating to the relevancy of facts. S. 5of the Evidence Act lays down that evidence may be given inany suit or proceeding of the existence or non-existence ofevery fact in issue and 'of such other facts as are declaredto be relevant and of no others. It is in the context ofthese provisions of the Evidence Act that we have toconsider s. 50 which occurs in Ch. 11, headed ' Of theRelevancy of Facts Section 50, in so far as it is relevantfor our purpose, is in these terms:-' S. 50. When the court has to form an opinion as to therelationship of one person to another, the opinion,expressed by conduct, as to the existence of suchrelationship, of any person who, as a member of the familyor otherwise, has special means of knowledge on the subject,is a relevant factOn a plain reading of the section it is quite clear that itdeals with relevancy of a particular fact. It states ineffect that when the court has to form an opinion as to therelationship of one person to another the opinion expressedby conduct as to the existence of such relationship of anyperson who has special means of knowledge on the subject ofthat relationship is a relevant fact. The two illustrationsappended to the section clearly bring out the true scope andeffect of the section. It appears to us that the essentialrequirements of the section are-(I) there, must be a casewhere the court has to form an opinion as to therelationship of one person to another; (2) in such a,case,the opinion expressed by conduct as to the existence of suchrelationship is a relevant fact; (3)but the person whoseopinion expressed by conduct is relevant must be a,person who as a member of the family or otherwise hasspecial means of knowledge on the particular subject ofrelationship ; in other words,the person must fulfil thecondition laid down in the latter part of the section. Ifthe person fulfils that condition, then what is relevant ishis opinion expressed by conduct. Opinion means somethingmore than more retailing of gossip or of hearsay; it meansjudgment or belief, that is, a belief or a convictionresulting from what one thinks on a particular question.Now, the ' belief ' or conviction may manifest itself inconduct or behaviour which indicates the existence of thebelief or opinion. What the S. says is that suchconduct or outward behaviour as evidence of the opinion heldis relevant and may, therefore, be proved. WE are of theview that the true scope and effect of S. 50 of theEvidence Act has been correctly and succinctly put in thefollowing observations made in Chandu Lal Agarwala v.Khalilar Rahman (1):-'It is only opinion as expressed by conduct which is maderelevant. This is how -the conduct comes in. Theoffered item of evidence is the conduct', but what is madeadmissible in evidence is' the opinion', the opinion asexpressed by such conduct)The offered item of evidence thusonly moves the court to an intermediate decision : itsimmediate effect is only to move the court to see if thisconduct establishes any I opinion' of the person, whoseconduct is in evidence, as to the relationship in question.In order to enable the court to infer 'the opinion ', theconduct must be of a tenor which cannot well be supposed tohave been willed without the inner existence of the Iopinion'.When the conduct is of such a tenor, the court only gets toa relevant piece of evidence, namely, the opinion ofa person. It still remains for the court to weigh suchevidence and come to its own opinion asto the factum probandum-as to the relationship in question.'WE also accept as. correct the view that s. 50 does not makeevidence of mere general reputation (without conduct)admissible as proof of relationship: Lakshmi Reddi v.Venkata Reddi (1).