MAULADAD KHAN Vs. ABDUL SATTAR

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiffs claimed to recover possession of certain property as the heirs of one Musammat Fiddo Begam. The plaintiffs alleged that they were the sons of one Munir Khan, paternal uncle of Musammat Fiddo Begam. The defendants denied that the plaintiffs were the heirs of Musammat Fiddo. They did not specifically allege who the plaintiffs were, but they in general terms denied that they were the heirs. The plaintiffs in their plaint describe themselves as the "sons of Munir Khan." The defendants pleaded as a further defence that Musammat Fiddo made a Will on the 22nd of July 1911 in favour of the first two defendants. The Court of first instance held that the plaintiffs had not proved that they were the sons of Munir Khan and further that the alleged Will was genuine, and dismissed the suit. It seems to be admitted that if the plaintiffs are the sons of Munir Khan they are the heirs of the deceased lady. The lower Appellate Court held that the plaintiffs were the sons of Munir Khan and, therefore, the heirs of Fiddo Begam and held against the Will. A learned Judge of this Court reversed the decision of the lower Appellate Court and restored the decree of the Court of first instance. The plaintiffs produced two witnesses, who deposed to the alleged relationship between them and the deceased. One of these witnesses further identified a plaint filed in a suit brought in 1906, in which Musammat Fiddo was one of the plaintiffs and in which the present plaintiffs were amongst the array of defendants and were stated to be the sons of Munir Khan. The Court of first instance used some strong expressions in respect of the two witnesses produced by the plaintiffs. The lower Appellate Court refrains from the use of such extravagant language but agrees with the Court of first instance in its estimate of the amount of reliance that could be placed on the evidence of these witnesses when deposing to the alleged relationship. The Court, however, thought that the plaint stood on a different basis.

(2.) The learned District Judge says that the witness who identified this plaint was really giving more or less formal evidence. There could be no doubt that a suit had been brought in the year 1906, that the Musammat was one of the plaintiffs in that suit and that there was no reason why the plaintiffs in the present suit should then have been falsely described as being the sons of Munir Khan, if in fact they were not. One of the questions dealt with by the learned Judge of this Court was the question of the admissibility of this document. He seems to have thought that it was very doubtful whether it was admissible or not. It seems to us that the document was clearly admissible. Section 32 of the Evidence Act provides that a statement, written or verbal, of a relevant fact made by a person who is dead is itself a relevant fact under certain circumstances. Clause 5 mentions one of the circumstances, namely, when the statement relates to the existence of any relationship between the persons as to whose relationship the person making the statement had special means of knowledge and when the statement was made before the question in dispute was raised. We are clearly of opinion that a statement contained in a plaint filed by a litigant is a "statement" within the meaning of this section. The statement in the present plaint was a statement made before the question in dispute in the present suit was raised. The learned Judge of this Court says that it was not proved that Musammat Eiddo had any special means of knowledge. Do says: It by no means follows that in 1906 she was capable of stating accurately who were her blood relations, it is a task which I should be unable to perform myself." It seems to us that every member of a family has "special means of knowledge", within the meaning of this section, of being able to state who his own first cousins, were. We think, therefore, that Musammat Piddo had special means of knowledge and that her statement" as contained in the plaint was admissible in evidence. The record of the suit in which the plaint was filed was sent for, the original was produced, and a witness, whose evidence (in this respect) the Court below accepted, stated that the thumb- impression was Fiddo s and that the plaint was the plaint of the deceased. We think that the document was not only admissible but was under the circumstances proved. We have nothing to do in second appeal with the weight to be attached to any particular piece of evidence; but under ordinary circumstances we think that considerable weight might very well be attached to a document like a plaint. Of course, circumstances might be disclosed which might lessen the weight to be attached to a statement contained in a plaint or any other document. We think the learned Judge of this Court was bound to accept the finding of the lower Appellate Court in second appeal on a question of fact based on legal evidence, and that, therefore, he was wrong in overruling the lower Appellate Court in its finding that the plaintiffs were the sons, of Munir Khan. As already stated, the question of sufficiency or insufficiency of evidence is not for this Court in second appeal.

(3.) The learned Judge of this Court left undecided the question of the validity of the Will. The lower Appellate Court found that the alleged Will had been made on the 22nd of July, that it was registered on the 23rd of July and that the lady died on the 26th of July. The Court finds that the lady was an old lady aged sixty years and suffering from dysentery on the 22nd of July, and the fact of her illness was noted by the Sub-Registrar when the document was registered. It further finds that the lady had no independent advice and that on the face of the Will she was made to declare that certain in cumbrances affected only her estate, that these declarations were against herself and in favour of the persons who were to be the sole beneficiaries under the Will and the learned Judge ends up his judgment by stating, "in my opinion it is not proved that Fiddo was of a sound disposing mind when she executed the Will, nor that she understood its contents." It is contended on behalf of the respondent that this shows that the learned Additional Judge threw the onus on to the defendants of showing that Musammat Fiddo was of a sound disposing mind and that she knew of the contents. The question of onus of proof is not very important in the present case, because evidence was given upon both sides and we think that the judgment of the learned Judge must be taken to mean that he did not believe that Musammat Fiddo understood the document which she put her thumb-impression to as her Will a very short time before she died, when she was in a delicate state of health and without any friend to advise her except those who were to take under her Will.