MAGHI SINGH, DECEASED Vs. HARNAM KAUR

JUDGEMENT

(1.) This second appeal is on behalf of the plaintiffs whose suit for obtaining a declaration had at first been dismissed by the Senior Sub-Judge, Barnala, on 23rd December, 1965, and then by the Additional Distt. Judge, Barnala, by his judgment dated 29th November, 1967. The plaintiffs had filed a suit for a declaration to this effect that they were the owners of the agricultural land left by Gajjan Singh who was said to have died in the communal disturbances of the year 1947. According to the plaintiffs they were the third degree collaterals of Gajjan Singh. The other claimant to the property who was impleaded as the sole defendant is Harnam Kaur. She alleged herself to he the sister of Gajjan Singh and pleaded that he had gone to a foreign country near-about the year 1930 and that he was in Argentina when he died in the year 1960.

(2.) The only substantial question for determination in this appeal is whether Harnam Kaur had proved herself to be Gajjan Singh's sister. Both the parties have admitted this fact that Gajjan Singh is no longer alive. This question is not of much substance as to whether he died before or after the coming into force of the Hindu Succession Act. The plaintiffs never claimed the property to be ancestral so as to exclude the sister of the last male-holder. The latest authority in relation to the succession of a sister under the Customary Law is Smt. Dhanti etc. v. Smt. Isheri etc., 1973 CurLJ(Civ&Cri) 321. It has been held therein that the onus to establish that a sister is excluded from succession to non-ancestral property of the brother, lies on the Collaterals and unless they prove by specific evidence that the sister is excluded, the sister must succeed. In the absence of any assertion that the land is ancestral it has necessarily to he presumed to be non-ancestral. Both the Courts below have believed Harnam Kaur D. W. 1 and two lambardars, namely Jangir Singh DW-2 and Dalip Singh D. W. 3 for holding that Harnam Kaur was the sister of Gajjan Singh. The main argument of the learned counsel for the appellants is that the evidence given by these witnesses is such which cannot be held to be admissible as it does not fulfil the conditions as laid down in section 50, Evidence Act. According to him, their opinion as expressed by conduct with regard to the existence of the alleged relationship was required to be proved in addition to this fact that they had special means of knowledge on the subject. The evidence given by Harnam Kaur D.W. 1 is that her father was Likal Singh who treated her as his own daughter. She further said that her conduct was such as to call him a father. Jangir Singh P.W. 2, deposed that his house was situated near that of Gajjan Singh. It was further mentioned by him that he was on visiting terms with Gajjan Singh and in that manner had an occasion to see both Harnam Kaur and Gajjan Singh living together along with Likal Singh. He had heard both Gajjan Singh and Harnam Kaur addressing Likal Singh as a father. Dalip Singh DW-3 disclosed that he was on visiting terms at Likal Singh's house. Likal Singh was said to be having two issues, namely Gajjan Singh and Harnam Kaur, who were respectively related to him as a son and a daughter. The learned counsel for the appellants referred to Ajaib Singh and others vs. Mann Singh and others, 1968 P. L. R. 83 the oft-quoted judgment given by Pandit, J. According to this authority, two things are necessary to make the evidence of a witness relevant under section 50 of the Evidence Act. The first is that the witness should have special means of knowledge about the relationship either as a member of the family or otherwise. Secondly, that witness must depose to his own conduct towards the person whose relationship is in dispute and on the basis of which he had formed the opinion about that relationship. It is then amplified that it is not the conduct of those two persons inter whose relationship was in dispute but the conduct of the witness himself towards them which is material for the purpose of section 50 of the Act. This provision of law has since been interpreted in a Full Bench Case of this Court reported as Amar Singh vs. Chhaju Singh and another, 1972 P. L. R. 625. The previous Single Bench ruling given by Pandit, J. was so read as to hold that the conduct of the witness must be of such a type that it must show to the Court that the witness himself was convinced about the relationship in respect of which he was deposing. The condition precedent to the admissibility of such evidence of course is that the witness must have special means of knowledge with regard to the existence of the disputed relationship whether as a member of the family or otherwise. The result was then stated to be that it is the opinion of the witness that is relevant provided that the opinion is expressed by conduct. There is a reference in the Full Bench authority to Dolgobinda Paricha v. Niami Charan Misra, 1959 AIR(SC) 914. The holding in that authority as quoted in the Full Bench ruling is to the following effect: