BHAGWAN BAKHSH SINGH Vs. MAHESH BAKHSH SINGH

JUDGEMENT

(1.) IN this case Bhagwan Baksh Singh, the first plaintiff, hereinafter referred to as the plaintiff, who gives his age as twenty-one, instituted the present suit on March 7,1929, to recover possession with mesne profits of the share of Chatarpal Singh, his mother's husband, in the suit properties belonging to the joint family of which Chatarpal was a member, impleading the first and second defendants, who are surviving members of the joint family, and the third and fourth defendants, who are widows of deceased members. To raise money for this litigation he has alienated a half share of the properties in the suit to Thakhur Mahadeo Singh, the second, plaintiff.

(2.) IT is not now in dispute that at the time of the plaintiff's birth, his mother, Musammat Dilwant Kuer, the daughter of Nakched Singh, was the lawfully "married wife of Chatarpal Singh, but it is alleged by the defendants in the written statement that, before the gauna or consummation ceremony, it came to light that Chatarpal's wife was pregnant as the result of an illicit connection, that consequently she never came to Chatarpal's house, the gauna ceremony never took place, and Chatarpal and his wife never lived together as-husband and wife. IT is further alleged that in June, 1929, when the written statement was filed, the plaintiff was at least twenty-four years old, that is to say, he was born in 1905, and that, as Chatarpal would not then have been more than thirty-two, if he had lived, he was eleven years old at the utmost when the plaintiff was born. If, however, Chatairpal would have been only thirty-two in 1929, he must have been born in 1897 and would have been, only eight years old in 1905, when according to the defendants the plaintiff was born. The written statement therefore raised the two-fold defence of non-access and of Chatarpal's physical incapacity to procreate at the time when the plaintiff was begotten. As the plaintiff: was admittedly born after his mother's marriage to Chatarpal, the onus of establishing these defences lies heavily on the defendants under Section 112 of the Indian Evidence Act which, so far as material, is in the following terms: The fact that any person was born during the continuance of a valid marriage between his mother and any man. . . shall be conclusive proof that he is the legitimate son. of that man, unless it can be shown that the parties to the marriage had no access to-each other at any time when he could have been begotten.

(3.) THEIR Lordships will now proceed to deal with Mr. de Gruyther's contention that concurrent findings of the lower Courts should not be accepted, because the depositions exhibited by both sides of witnesses who gave evidence at the inquiry in the mutation proceedings, but died before the trial, were inadmissible in evidence. The Subordinate Judge has stated in his judgment that they were admissible under Section 32, Clause 5, of the Indian Evidence Act, 1872, but they were clearly inadmissible under the proviso to that section because they were made after the present dispute arose. They were admissible, if at all, under Section 33 as statements made in judicial proceedings between the same parties; and under the third proviso to this section such statements are only admissible if the questions in the mutation proceedings were substantially the same as the questions in issue in this suit. Mr, de Gruyther has contended that the questions were not substantially the same because in the mutation proceedings the Collector was required by statute to base his decision, as he did, on possession and not on title. He has further contended that statements which are inadmissible under this section cannot be made admissible by consent of i the parties to the suit as evidenced by the fact that depositions of witnesses in the mutation proceedings were exhibited by both sides. As regards the latter contention it appears from the notes on this section in Ameer Ali's and Wood-ruffe's Indian Evidence Act that three of the Indian High Courts have decided the other way; and in view of the facts that the objection was taken for the first time at the hearing before the Board and has, not been argued on the other side owing to the absence of the respondents, their Lordships do not propose to decide it, because, in their opinion, under Section 167 of the Indian Evidence Act, the finding of the Subordinate Judge that Chatarpal had no access to his wife prior to the plaintiffs birth may be supported on the other evidence in the case excluding the depositions to which objection has been taken.