Sitaji And Ors. vs Bijendra Narain Choudhary And Ors.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 34 of 1953

Decision Date: 21 April, 1954

Coram: Ghulam Hasan, Bose

In this matter the Supreme Court dealt with an appeal and a cross‑appeal arising from a decree of the Patna High Court in a suit for possession and mesne profits. The dispute centered on land that had originally belonged to Naubat Lal Jha, who died in 1878. At the time of his death he was survived by his mother, Mst. Sahajwati, and by two widows, Mst. Nunuwati and Mst. Chhemawati. The mother passed away in 1909, the first widow in 1911 and the second widow on 5 June 1940. The plaintiffs who are designated as the second party claimed to be the next reversioners of the deceased owner and sought possession of the whole property together with other plaintiffs who had purchased a ten‑anna share. The defence raised two separate points. First, it contested the plaintiffs’ claim to be the next reversioners, a contention that affected the entire subject land. Second, it limited its objection to the specific parcels listed in Schedule III of the plaint. The family had also possessed certain deities, and on 5 November 1915 Mst. Chhemawati dedicated the Schedule III parcels to those deities. Since that dedication the deities, through their shebaits, had remained in possession. The defendants asserted an irrevocable right to those parcels, describing the deities as the first defendant and naming the shebait as the fourth defendant, who was also identified as the second defendant. The third defendant was not a matter of consideration in the present appeal.

In 1933 the plaintiffs commenced a suit against the defendants and Mst. Chhemawati seeking a declaration that the deed of endowment dated 5 November 1915 did not bind the reversioners. The trial court ruled in favour of the plaintiffs, but the decision was set aside on appeal on the ground of limitation. The remaining issues were expressly reserved for determination after the death of Mst. Chhemawati. Both the trial court and the High Court found that the second‑party plaintiffs had established their title as the next reversioners of Naubat Lal Jha. On that basis the trial court decreed the entire claim. The High Court, however, accepted the defendants’ contention regarding the Schedule III parcels, accordingly modified the decree and dismissed the plaintiffs’ claim to those specific parcels while confirming the remainder of the original decree. Both parties subsequently appealed. The defendants’ appeal, recorded as Civil Appeal No. 34 of 1953, raised only the question of whether the plaintiffs had proven their status as the next reversioners. The lower courts’ concurrent finding on that point could be challenged only if the evidence upon which it was based were legally inadmissible. The plaintiffs relied on a lengthy genealogical tree to establish their claim; the Court noted that if the evidence supporting that tree were admissible, it would suffice to prove the lineage.

The Court considered that a limited portion of the genealogical chart was sufficient to establish the lineage in dispute. The chart began with Nande Jha and proceeded through his descendants Shiva Jha, Dewan Jha and Jagarnath Jha, who were also known as Jaga Jha, Fakir Jha and Sambhu Jha respectively. From these ancestors the line continued to Rangi Jha, Ram Jha and Gudar Jha, and then to Bhagwan Dutta Jha and Naubat Lal Jha, the latter being the propositus shown on plaintiff’s exhibit 8. Further down the tree appeared Bansi Jha, Faturi Jha, the first and second wives (unuwati and Chhemawati), and Bharat Jha, identified on plaintiff’s exhibit 4. The chart also listed Khantar Jha, Balgobind Jha and Bachu Jha, shown on plaintiffs’ exhibits 5, 6 and 7. The Court noted that many names that were not essential to the issue had been omitted for brevity, and that the remaining section of the tree captured the essential relationships required for the decision.

The evidence on which the lower Courts relied was described in detail. The fifth plaintiff, Khantar Jha, who was recorded as plaintiff‑witness 6, testified that he could establish the entire genealogy. The Court acknowledged that Khantar Jha did not possess personal knowledge of every individual named, because several ancestors had died before his birth, making direct observation impossible. Nevertheless, the Court held that personal knowledge was not a prerequisite in such cases. A family member was permitted to testify about what he had been told and what he had learned concerning his ancestors, provided that his statement reflected his own independent opinion—even if that opinion derived from hearsay about deceased persons—and was not merely a verbatim repetition of others’ statements. The Court further explained that the source of the information and the time at which Khantar Jha acquired it could influence the weight given to his testimony, but these factors did not affect its admissibility. Consequently, the Court found Khantar Jha’s evidence to be legally admissible and, if accepted as true, sufficient to support the finding of the plaintiffs’ title.

The Court also examined additional documentary evidence, namely certain Panjis, that the lower Courts had used to corroborate Khantar Jha’s testimony. The contention raised against these Panjis was that Khantar Jha, as plaintiff‑witness 6, had admitted that he had dictated the genealogical details to two other witnesses, Nirsoo Jha (plaintiff‑witness 29) and Raghunath Jha (plaintiff‑witness 40), after the dispute had already arisen. Khantar Jha stated that he had conveyed the information to Nirsoo Jha about five years before his testimony—approximately in 1939—and to Raghunath Jha eight to ten years earlier, around 1934‑1936. Because these dictations occurred after the dispute, the opposing party argued that the entries recorded in the Panjis should be excluded as inadmissible evidence.

The Court described the nature and role of the Panjis. They were maintained by Panjikars, who were professional genealogists serving the Naithal Brahmin community. These genealogists systematically compiled pedigree tables, traveling from village to village to verify the lineages of their clients and to record them in palm‑leaf manuscripts known as Panjis. They regularly updated the manuscripts to reflect new births, deaths and other familial changes. The Court observed that Panjis held considerable importance in the community because they were used to resolve questions of marriage eligibility, caste status and familial relationships. Statements regarding pedigree entered in the Panjis were therefore not made lightly, and their reliability could vary depending on the circumstances, but the issue before the Court was limited to whether the Panjis were admissible as evidence.

The Court observed that statements of pedigree in such cases are not made lightly and therefore must be considered carefully. In other situations the weight of these statements may be considerable because an individual in such a position would normally hesitate before giving a false pedigree, as unforeseen consequences could affect him and his family. However, the determination of the appropriate weight is a matter for the trier of fact, whereas the Court’s role is confined to the question of admissibility. The Court noted that the genealogical entries could be classified into two categories: those written under the dictation of the fifth plaintiff and those dictated by other persons. Both categories have been produced from proper custody, have been duly proved, and, according to the lower courts, have been maintained in the ordinary course of a Panjikar’s business. The Court found it unnecessary to decide on the admissibility of the first set, because the second set is unquestionably admissible and sufficiently corroborates the fifth plaintiff’s testimony. The entries dictated by the fifth plaintiff after the dispute are Exhibit 4(c), prepared for the now‑blind Panjikar Raghunath Jha (PW 40). Another entry, Exhibit 4(g), was prepared for the deceased Panjikar Kumar Lal Jha, who had been examined in the previous suit. Even if those two entries are disregarded, the second set remains available for consideration and is sufficient to support the plaintiff’s case. The fifth plaintiff also claimed that he had dictated a genealogy to Nirsoo Jha (PW 29), but the only documents produced by Nirsoo Jha, namely Exhibits 4 and 4(a), were not authored by the plaintiff. Consequently either the entry dictated to him was not produced, or, because the plaintiff’s description matched existing genealogies, no new entry was made. In any event it is clear that Exhibits 4 and 4(a) are not the documents prepared under the plaintiff’s dictation. The second set comprises entries dictated by persons other than the fifth plaintiff and includes Exhibits 4, 4(a), 4(b), 4(d) and 4(e). While the identity of the dictating individuals is unknown, it is established that the entries were written by the family Panjikars of the plaintiff’s lineage. It is also established that the writers are now deceased, that the records were kept in properly maintained genealogical books, and that they were produced from the appropriate custody. The Court then examined Exhibits 4 and 4(a), and found that they were proved by Nirsoo Jha (PW 29), who had personal knowledge of the documents. Although Nirsoo Jha could not identify who originally dictated the entries, he stated that Exhibit 4 was written by Krishna Putt Jha, the brother of his great‑grandfather. He further stated that Exhibit 4(a) was written by his own father, and that both authors are now deceased. Nirsoo Jha also demonstrated that the collection of Panjis from which Exhibits 4 and 4(a) were extracted contains entries penned by his father, grandfather, great‑grandfather and great‑grand‑uncle. He further testified that he had seen Exhibit 4(a) fifteen years before 1944, that is, around 1929, which was prior to the commencement of the present dispute.

In the present matter, the court observed that Exhibit 4(a) qualified for admission under Section 32(2) of the Evidence Act and also under Section 32(6). The court relied on the authority cited in Mohansing v. Dalpatsing, AIR 1922 Bombay 51 (A), and in Abdul Ghafur v. Hussain Bibi (B) to support this conclusion.

The court further explained that Exhibit 4 was most likely created prior to Exhibit 4(a). This inference was drawn firstly because Exhibit 4 contains the earlier segment of the pedigree, and secondly because it was authored by a person who, by ordinary expectation, would have been considerably older than the individual who prepared Exhibit 4(a). Specifically, Exhibit 4(a) was written by the father of the deponent, Nirsoo, whereas Exhibit 4 was written by the brother of his great‑grandfather. Consequently, Exhibit 4 would be admissible under Section 32(6). Even assuming, for argument’s sake, that Exhibit 4 had been prepared after the dispute arose, the court noted that it would still satisfy the requirements of Section 32(2), because that provision does not impose a condition that the entry must have been made before the dispute. The only requirement is that the entry was made in the ordinary course of business. The court emphasized that the business of the Panjikars is to collect pedigrees, and that they have an incentive to ensure accuracy because a single entry can affect an entire family and the families that marry into it. The court further observed that multiple checks and cross‑checks occur as information is received from various members and branches, and that the Panjikars would suffer loss of reputation if their records contained glaring errors. Accordingly, the entries were deemed relevant under Section 32(2), even if Section 32(6) were inapplicable, for the purpose of proving the relationships that were in dispute. The court held that these entries provided independent corroboration of the testimony of the fifth plaintiff.

Turning to Exhibit 4(b), the court recorded that it was proved by the testimony of Lakchmi Narain Jha, the son of the now‑blind Panjikar Raghunath Jha. The witness stated that the entries in Exhibit 4(b) were written by his grandfather, Bansi Jha. He further testified that his grandfather had died long before the survey conducted in 1901, and that he himself first saw Exhibit 4(b) approximately fifteen years before 1944, that is, in 1929. The court concluded that, because these entries were made before the present dispute, they satisfied the criteria of Section 32(6). In any event, the entries were also admissible under Section 32(2).

The court noted that Exhibit 4(b) was not the entry referred to by the fifth plaintiff. The plaintiff had dictated a genealogy to Raghunath Jha, whose books were produced and proved by his son, Lakchmi Narain Jha. The entry authored by Lakchmi’s father, Raghunath Jha, is identified as Exhibit 4(c), whereas Exhibit 4(b) was authored by the deceased grandfather.

Finally, the court considered Exhibits 4(d) and 4(e). These were proved by Kumar Lal Jha, who had previously been examined in an earlier case. At the time of his testimony, Kumar Lal Jha was forty‑eight years of age. He testified that Exhibit 4(d) was written in part by his father, who is now deceased, and in part by an ancestor whose handwriting he could not identify because the entries predated his birth. Since his father died in 1896, the court inferred that the entries were made long before the dispute. Regarding Exhibit 4(e), Kumar Lal Jha was uncertain about the earliest entries but presumed that his father had written them. Regardless of these uncertainties, the court found that the Panjis are ancient, have been kept in proper custody, and are admissible under both Section 32(2) and Section 32(6). Moreover, the court held that the testimony of Kumar Lal Jha was admissible pursuant to Section 33 of the Evidence Act.

The Court observed that the entries in the documents now identified as Ex. 4(d) were created before the deponent’s birth, noting that his father had died in 1896. Consequently, those entries were unquestionably made long before the dispute that is presently before the Court arose. Regarding the earliest entries in Ex. 4(e), the deponent expressed uncertainty but presumed that they had been written by his father. Whether that presumption is correct or not, the Court held that the Panjis are ancient records that have been kept in proper custody. The Court found that the Panjis are admissible under both Section 32(2) and Section 32(6) of the relevant Evidence Act, and that the testimony of Kumar Lal Jha is admissible under Section 33. The Court stated that the question of the weight of this evidence was not for it to determine. It was sufficient to conclude that the evidence of the fifth plaintiff, together with the Panjis referred to as Ex. 4, 4(a), 4(b), 4(d) and 4(e), provided a solid foundation for the factual findings that had been reached by the two Courts below. Accordingly, the Court dismissed the defendant’s appeal, Civil Appeal No. 34 of 1953, with costs.

Turning to the plaintiffs’ appeal, Civil Appeal No. 35 of 1953, the Court noted that the matters in dispute concerned the Schedule III properties. Those properties had been purchased by Mst. Chhemawati and did not form part of the estate that she had inherited from her husband. The Court explained that a reversioner may claim only property that belonged to the original owner (the propositus), and therefore the burden rested on the plaintiffs to prove that the properties in question were part of Naubat Lal’s estate. The Court emphasized that there is no presumption that any particular asset in the widow’s possession belongs to her husband’s estate, because a widow may own property in her own right. It therefore follows that the party asserting a claim must establish his right to the property. The Court acknowledged that the widow had bought the properties using savings derived from the income of her husband’s estate, but observed that such purchase does not automatically constitute an accretion to the estate. Under Hindu law, a widow has an absolute right to the income of her husband’s estate and is not obligated to set aside any portion for the reversioners. She may, at her discretion, add the income to the estate or keep it separate and treat it as her own. The Court referred to the principles laid down in Venkatadri Appa Rao v. Parthasarathi Appa Rao (pp. 108‑109), Babu Sheo Lochun Singh v. Babu Saheb Singh (14 Ind App 63), and Raja of Ramnad v. Sundara Pandiyasami Tevar (AIR 1918 PC 156), explaining that the issue hinged upon the widow’s intention and that such intention is a factual question for determination. In the present case, the Court found no doubt about the widow’s intention because she had dedicated the properties to the family deities. Although she stated in the deed of endowment that she acted in accordance with her husband’s wishes, the Court held that this statement merely explained her motive; the widow retained full authority over the income and could dispose of it as she chose. The plaintiffs had offered no evidence indicating a contrary intention. Consequently, the Court concurred with the High Court’s finding and dismissed the plaintiffs’ appeal with costs.

In this case the Court examined the material that had been placed before it and concluded that the evidence demonstrated that the widow’s intention was to retain the property as a separate asset and not to merge it with the estate of her deceased husband. The Court considered the deed of endowment, the statements made by the widow, and other documents that were part of the record, and it observed that the widow herself had explained that she was acting in accordance with her husband’s wishes, a explanation that merely disclosed the motive for her action and did not change the fact that she intended the property to remain distinct. The Court noted that the plaintiffs had not produced any evidence showing a contrary intention, and therefore the intention to keep the property separate was clearly established by the evidence on file. Having found no indication that the widow meant to add the property to the husband’s estate, the Court held that the grounds of the appeal could not be sustained. Consequently the appeal did not succeed and was dismissed. The Court further ordered that the costs of these proceedings be borne by the appellant.