MOHANSING UMED RAMOL Vs. DALPATSING KANBAJI

JUDGEMENT

(1.) This suit was filed by the plaintiff to recover the plaint property as a reversionary heir of one Daji Bhikha on the death of his widow from the defendant to whom the property had been sold by Bai Beni in 1889. The defendant disputed the claim of the plaintiff as being the nearest reversionary heir of Daji. But assuming that Kanbaji was a relation and agnate of Daji, the defendant could not point out the existence of any other agnate or relation except Daji's sister's daughter Bai Hari. The defendant, therefore, attacked the pedigree on which the plaintiff relied. That pedigree had been deduced from the evidence of one Mohansing who produced his book which had been kept by himself, his father and hie grandfather, recording the family events of various Rajput families of which the family in suit was one. With regard to this witness who was acquainted with this family and who kept the record of family events, the Judge said:- These entries are made in the course of the tour made by these chroniclers from the information given by the Yajmans, though the names of the informants are not given. Still admittedly all the Girasia Rajputs rely upon this hook for correct information about their ancestors and I must accept their correctness and hold that it is admissible either under Clause 2 or 6 of Section 32 of the Indian Evidence Act. Kanbaji and Daji both being dead, the entries can be held to be relevent under Clause 6.

(2.) We see no reason to differ from that opinion if the Court was satisfied that the witness in a sense was a professional man or a person whose business it was to keep a book of this kind for the advantage of these Rajput families. There is no reason why, if the book is shown to have been kept in the ordinary course of business, it should not be admitted as evidence. Even if that were incorrect, still, Sub-section 6 of Section 32 enables a family pedigree to be admitted in evidence so long as the members of the family depend upon a particular person like the witness to keep a record of the family events before them. We think, therefore, the Judge was entitled to rely upon Mohansing's evidence fortified by his book. Once the book was proved, then it is clear that Kanbaji was the agnate of Daji and it is not suggested that there was any other agnate in existence at the present time. He would, therefore, be entitled to succeed as a reversioner on the death of Bai Beni unless the defendant can show that in 1889 the debt was for legal necessity. The Judge said:- In the deed the property is stated to be sold for debts. Particulars of debts are not given, but attempt is made to show that at least two creditors were satisfied. It is said that two creditors were paid Rs. 900 and Rs. 800 respectively. But the evidence is unsatisfactory and no reliance can be placed on it. There is no writing about the debts and such oral evidence can be prepared at any time.

(3.) On reading the evidence admittedly adduced to prove the payments, there can be no doubt that the learned Judge was right in his appreciation of it. Because the sale-deed passed thirty years ago by a Hindu widow to an outsider could not be attacked until the death of the widow, it may seem hard that the defendant purchaser should be deprived of this property. But still the law in this country is perfectly well known that a widow cannot sell more than her own interest unless there is legal necessity, and the onus has rightly been placed on the purchaser to prove that the sale was for necessity. Therefore, it was desirable that at any rate the debts which it was suggested were paid off out of the purchase price should have been recited in the deed and it was not sufficient that there should be merely a recital that the property had been sold for debts. The learned Judge pointed out:- There is absolutely nothing to show that Daji was really indebted. He possessed considerable land, both at Delada and Dholgam, It is probable that the suit Sands were sold because the widow who resided at Dholgam could not manage them. On the evidence I am not prepared to hold that the Bale was for necessity.