S M DAWOOD BIBI Vs. ABU BAKKER PULAVAR

JUDGEMENT

(1.) APPELLANTS are the legal representatives of the first defendant, Dawood Bibi, who dies subsequent to her filing this appeal. This suit was filed by the first respondent. Abubakker Pulavar, Who also died during the pendency of this appeal, for the administration of the estate of the deceased Hanifa Rowther, the husband of the first defendant Dawood Bibi. The first defendant as the widow of Hanifa rowther, who had no descendants, was admittedly entitled to one fourth share in the estate of remaining three fourths share under the Mohammed an Law doctrine of return, if Hanifa Rowther had no other heir. Respondents 16 to 20 are the legal representatives of the fifth defendant Ibrahimsa Pulavar, the junior paternal uncle's son of the plaintiff. The case of the plaintiff and the fifth defendant is that their paternal grandfather Umarpulavar was the brother of Hanifa Rowther's paternal great grandfather Magadum Batcha Rowther and that they are entitled to succeed as residuaries to the three-fourths share in the estate of Hanifa Rowther's paternal great grandfather Magadum Batcha Rowther and that they are entitled to succeed as residuaries to the three-fourths share in the estate of Hanifa Rowther in the absence of any sharer other than the first defendant as there were no nearer residuary of Hanifa Rowther at the time of his death on 2-6-1960. The learned Second Additional Subordinate Judge accepted the case of the plaintiff and passed a decree as prayed for except as regards item 28 which on his finding did not belong to the estate of Hanifa Rowther. Aggrieved with this decision, the first defendant has preferred this appeal and on her death the other appellants have been impleaded as her legal representatives.

(2.) THE only question that arises for determination in this appeal is whether the plaintiff and the fifth defendant are the grandsons of Hanifa Rowther's paternal great grandfather's brother as claimed by them, and whether they are entitled to three-fourths share in the estate of Hanifa Rowther as his nearest residuaries. Ex. A-1 is the genealogical table attached to the plaint and it is appended as a part of the judgment. Ex. B-1 is a certified copy of the genealogical tree filed by the fifth defendant Ibrahimsa Pulavar along with his counter in the succession certificate original petition 7 of 1961 filed by the first defendant in District Munsif Court, melur. The only difference between the two genealogical tables relates to the order of the brothers and sisters according to their age. The genealogical tables correctly represent the claim of the plaintiff and the fifth defendant as the grandsons of hanifa Rowther's paternal great grand uncle. It is clear from the evidence of the plaintiff and the fifth defendant and their prior statements that the genealogical tables are not based on any record or information gathered from others who had special means of knowledge and who could not come as witnesses for the reasons mentioned in S. 32 (1) of the Evidence Act. Hence the genealogical tables are not by themselves of any evidentiary value and they are useful only for understanding the evidence of the witnesses.

(3.) THE learned II Additional Subordinate Judge has referred to several decisions to show that the onus is upon the plaintiff to strictly prove that he and the fifth defendant are entitled to succeed as the residuary heirs of Hanifa Rowther, that it is for the plaintiff to establish that Knanjiya Pulvar is the common ancestor of himself and Hanifa Rowther as put forward by him in his evidence and shown in the genealogical table and that every link in the chain of relationship should be proved as the chain of relationship will be weakened by the weakness of any link. He has also referred to the said proof of the relationship by evidence falling under section 32 Clause 5 and Section 50 of the Evidence Act. Thus the learned subordinate Judge had the correct principles of law in his mind in approaching the facts of this case.