SESHAMMAL Vs. KUPPANAIYYANGAR

JUDGEMENT

(1.) The learned Subordinate Judge has reversed the decision of the District Munsif on the first issue. The District Munsif has found that the plaintiffs have not proved the relationship set up by them. The Subordinate Judge has found that the plaintiffs are the reversionary heirs of the deceased Krishnamachariar and has remanded the suit for trial of the other issues. Although the appeal has taken the form of a civil miscellaneous appeal against an order of remand the Subordinate Judge is a final Judge of fact and the only grounds available to the appellant to attack the judgment are those which would be available to him in second appeal : see Venganayyan V/s. Ramaswami Ayyan (1896) 19 Mad. 422 and Joseph Armugam Pillai V/s. Muruga Pillai [1909] 6 M.L.J. 198. The question, therefore, is: Is the judgment of the Subordinate Judge one with which we can interfere in second appeal ? The argument on behalf of the appellant is mainly that there is no evidence in support of the finding. After carefully going through the judgment and the material on which that judgment is based, we agree with the appellant's contention.

(2.) The learned Subordinate Judge purports to act, firstly, on the oral evidence of three witnesses examined for the plaintiffs. Plaintiffs Witness No. 1 says thus : " I do not know my grandfather or his brothers personally. My father had prepared a genealogy for the relationship. I took information from it. " The pedigree prepared by this witness father would certainly he a statement admissible in evidence under Section 32, Clause(5) or Clause(6), but, unfortunately, this has not been produced. No reason has been given for admitting secondary evidence of this document. Plaintiffs Witness No. 1 says nothing further on this subject. The learned Subordinate Judge observes that P.W. No. 1 was not crosd-examined with reference to his omission to produce this pedigree. It is scarcely necessary to say that the plaintiffs who endeavoured to make out that they were the reversionary heirs were bound to produce this pedigree, because according to the evidence of P.W. No. 1 that is the foundation of their case. Without the original of that pedigree, P.W. No. l's evidence amounts to absolutely nothing. It is unnecessary to examine in detail the evidence of the second witness for the plaintiff. All that he says is this : Plaintiffs grandfather Krishnama Chari told me that he had three brothers when I was learning . Veda at Punnai." Who are these three brothers ? That is not explained. And what is the connexion between Krishnamachariar and Kuppan Iyengar ? This is also not explained. His evidence, therefore, is of no use to the plaintiffs. Plaintiffs Witness No. 3 is a Naicken, whereas the parties to the suit are Vaishnava Brahmins. All that he says in his evidence is : " People say that plaintiffs are 1 defendant's dayadis. " The learned Subordinate Judge is of the opinion that this is admissible, but he seems to overlook the provisions of Section 50 of the Indian Evidence Act. " Family conduct," to use a compendious expression, is admissible to prove relationship. But there is no evidence of family conduet here at all. The illustrations to the section make the point very clear. Illustration (a) runs thus: The question is whether A and B were married.

(3.) The fact that they were usually received and treated by their friends as husband and wife is relevant. There is a casual observation in the judgment of their Lordrhips of the Privy Council in Mi Me V/s. Mi Shive Ma [1912] 39 Cal. 492 : " In the absence of direct proof consent may be inferred from the conduct of the parties or established by reputation." But a. perusal of the judgment will show that the evidence which was accepted by the Privy Council was evidence of family conduct. As Messrs. Amir Ali and Woodroffe point out in their book on Evidence, Section 50 enacts a rule different from the law in England. According to English Law he says : "General reputation is admissible to establish the fact of parties being married. Accordingly, general evidence of reputation in the neighbourhood, even when unsupported by facts, or when partially contradicted by evidence of a. contrary repute, has been held receivable in proof of marriage. The present section is limited to opinion as expressed by conduct, and there appears to be no other provision in the Act, under which such evidence of general reputation would be receivable. " We cannot construe the judgment of their Lordships of the Judicial Committee as laying down a rule of law completely at variance with the clear rule of the Indian Evidence Act.