GOPAL RAO Vs. SAMPATRAO

JUDGEMENT

(1.) THIS Second Appeal has been preferred by the Plaintiff whose suit for declaration has been dismissed by both lower Courts.

(2.) THE facts admitted in the suit are that Mst. Kaushalyabai was the daughter of one Parasram, who died some 40 years back. Parasram left behind him a widow, named Jamnabai and three daughters, Bithabai, Hoshyabai and Kaushalyabai. Parasram admittedly owned the house in suit On Parasram's death his widow, Jamnabai 'became a limited owner thereof. By a registered deed of gift dated 14 -2 -1935. Jamnabai transferred the suit house to her daughter Kaushalyabai. The Plaintiff contended that this gift was invalid or at the most could be valid only during the life time of Jamnabai. The Plaintiff also contended that Kaushalyabai died during the life time of Jamnabai and for this reason also the deed of gift became inoperative. The Defendants contended that they were governed by the Bombay or the Mayukh school of Hindu Law and that the deed of gift in favour of Kaushalyabai operated as surrender to the nearest heir, namely Kaushalyabai. The daughter being a full heir under the Bombay or the Mayukh law the Plaintiff's claim as a reversioner could not succeed.

(3.) IT was argued before the lower appellate Court that Section 32 and Section 50 of the Evidence Act did not exhaust all the ways of proving relationship. No statements of dead persons were sought to be proved under Section 32 of the Evidence Act in proof of the relationship of brother and sister between Drupadabai and Bhausaheb. Shri Mungre admitted before the lower appellate Court that the evidence led by the Plaintiff to prove his relationship with Parasram was not such as would be covered by the provisions of S. 50 of the Evidence Act. Reliance was, however, placed on the evidence of P. W. 1 Dinkarrao, who stated that he knew Parasram intimately, whose mother Drupadabai was the sister of Bhausaheb. P. W. 4 Gangajirao merely proved that the Plaintiff's father Shankarrao and Bhausaheb were 'shagirds' in the palace. Exhibit P/4 shows the names of the incumbents and the salaries received by them. All that his document can prove is that Pandoba had a son named Bhausaheb and that Bhausaheb had a son named Shankarrao. Gangajirao's evidence can be of no avail in order to prove that Bhausaheb was the brother of Drupadabai. P. W. 2 Shankarrao merely stated that Drupadabai was Bhausaheb's sister, both of whom had died before the witness attained maturity of understanding. Gopalrao, the Plaintiff, is aged only 44 years and he could not, therefore, prove relationship between Drupadabai and Bhausaheb. This is all the evidence on the question of relationship between Drupadabai and Bhausaheb. It is obvious that the Plaintiff cannot succeed except on proving this essential link between him and Parasram. Neither the parties to the action nor the Courts concerned have, in my opinion, kept in view the provisions of S. 32 and S. 50 of the Evidence Act in order to determine that kind of evidence could be admitted in proof of the existence of a disputed relationship.