BIRO Vs. ATMA RAM

JUDGEMENT

(1.) On 20 September 1900, one Harbans Lal, a Khatri of Ludhiana in the province of the Punjab, died leaving him surviving a widow, Mt. Bir Wanti alias Mt. Biro, and a daughter, Mt. Ishri, by a predeceased wife. The widow took possession of the whole of his estate, which consisted not only of moveables, but also of agricultural land and house property. In July 1920, she made a will, by which, after declaring that she had previously gifted certain immoveable properties to her relative, Bhagat Ram, she gave various properties to charities. The dispute in the suit, which has led to this appeal, is confined to the gift made to Bhagat Ram, the validity of which is contested by the plaintiffs, who claim to be the collaterals of Mt. Biro's husband Harbans Lal. They challenge her authority to make the transfer, and ask for a declaration that it should not adversely affect their right to succeed to the estate after her death. The trial Judge held that the plaintiffs had not proved their relationship with Harbans Lal, and he dismissed their suit, not only on that ground, but also on the ground that, under her husband's will, the widow was the absolute owner of the estate, and was entitled to make the gift in question. On appeal, the High Court at Lahore dissented from his judgment, and granted a decree in favour of the plaintiffs. From that decree Mt. Biro has brought the present appeal which has been heard ex parte. Before pronouncing upon the main questions urged on behalf of the appellant, their Lordships desire to clear the ground by disposing of a matter which does not appear to have been raised in the Courtsbelow. It is argued that, while in paras. 4 and 9 of their plaint the plaintiffs sought to impeach the oral gift alleged to have been made by Mt. Biro "about two or three years" before the institution of the suit, the judgment of the High Court deals with the gift mentioned by her in her will. A perusal of the will, which was relied upon by the alienee himself in support of the gift, however, shows that it recites and confirms the oral gift relating to a moiety of a residential house, which alone belonged to Harbans Lal; and it is the gift of that property only which has been declared to be inoperative as against the plaintiffs. It cannot therefore, be said that the judgment of the High Court is at variance with the claim made in the plaint.

(2.) Coming now to the question of the relationship of the plaintiffs with Harbans Lal, their Lordships concur with the High Court that the plaintiffs have succeeded in proving that they are descendants in the male line of one Mauja Mal alias Majju Mal who was a paternal ancestor of Harbans Lal. To discharge the onus, which undoubtedly rested upon them, they propounded a pedigree table which shows that they are the great- grandsons of one Peshauri Mal, and that Harbans Lal was the great-grandson of Peshauri Mal's brother Lahori Mal. Now, as stated by the learned Judges of the High Court, the parties were agreed that Peshauri Mal and Lahori Mal were the ancestors of the plaintiffs and Harbans Lal respectively as shown in the pedigree table, but it was denied by the defendants that these two persons were the sons of Mauja Mal. The dispute was thus narrowed down to the simple issue of whether Mauja Mal was the father of Peshauri Mal and Lahori Mal, and this fact is amply proved by the statement which was made by one Munshi Mal in 1859. It appears that in that year he and his nephew Sansari brought a suit against their cousins, Banka and Sohan for the recovery of their share of the estates left by Molak and Kahna. In order to prove that the then plaintiffs were collaterals of the two persons whose estates were the subject matter of that suit, Munshi Mal deposed to a long pedigree table, which, with the omission of unnecessary names, is as follows: This pedigree shows that Peshauri Mal and Lahori Mal were the sons of Majju Mal, which is otherwise spelt as Mauja Mal. Munshi Mal had died long before the institution of the present suit, and it was therefore impossible to have his direct testimony. But the statement made by him in 1859 is admissible under S. 32, Evidence Act, which sets out various exceptions to the general rule excluding.

(3.) hearsay. One of the exceptions, as enacted by sub-s. 5 of that section, provides that a statement relating to the existence of a relationship, made orally or in writing by a person who is dead, is admissible in evidence, if the person making the statement had special means of knowledge as to that relationship, and the statement was made by him before the question in dispute was raised. It is not disputed that Munshi Mal, as a member of the family, had special means of knowing the relationship stated by him, and that the statement was made by him before the present dispute arose. Both the conditions prescribed by the law have therefore been satisfied.