judgement:
Appeal No. 296 of 1955.
Appeal by special leave from the judgment and decree dated September 8, 1952, of the Punjab High Court in Civil Regular Second Appeal No. 327 of 1948, arising out of the judgment.
and decree dated November 21, 1947, of the Court of District Judge, Amritsar, in Appeal No. 212 of 1946 from the judgment and decree dated August 20, 1946, of the Subordinate Judge, 1st Class, Amritsar, in Suit No. 297 of 1945.
Achhru Ram and R. section Narula, for the appellant.
Gurbachan Singh and Madan Lal Kapur, for the respondent.
April 23.
The Judgment of the Court was delivered by SARKAR, J.
The suit out of which this appeal arises concerns the right to certain plots of land in village Sultanwind, Tehsil and District Amritsar in the Punjab.
It raises a question of the Punjab customs.
Sahib Singh, the last male owner of the lands in dispute, died in December 1918 leaving a widow Nihal Kaur.
The widow succeeded to the lands but on tier remarriage soon thereafter, she was divested of them and they passed to Sahib Singh 's mother, Kishen Kaur who died on November 12,1942.
On Kishen Kaur 's death disputes arose between Sahib Singh 's sister, Jeo, the respondent in this appeal 783 and his agnatic relation, the appellant Ujagar Singh, as to the ownership of the lands.
The Tehsildar entered the respondent 's name as the owner of the lands in the revenue records but on appeal by the appellant, the Collector of Amritsar directed the name of the respondent to be removed and the appellant 's name to be entered in its place.
On June 11, 1945, the respondent filed a suit against the appellant asking for a declaration that she was the owner of the lands.
In paragraph 3 of the plaint it was stated that the respondent " came into possession of the properties left by Kishen Kaur, as the heir of her father and brother, according to the Zamindara Custom prevalent in Mauza Sultanwind among the people of the Got (Sub caste) Bheniwal and the custom of the family of her father ".
In paragraph 5 it was stated, " According to the afore mentioned special custom, the right of inheritance of the daughter and her descendants and in their absence that of the ' sister and her descendants to the property left by her father and brother is preferential to that of the collaterals beyond the fifth degree; no matter whether the property is ancestral or self acquired.
" The defence taken in the written statement of the appellant was that " According to the General Custom and the Custom of the District of Amritsar, the plaintiff as his sister is in no way the heir of the property left by (her) brother in presence of the reversionary heirs, no matter whether the land is ancestral qua reversionary heirs or it is self acquired.
There is no particular family, Got or village custom of the District of Amritsar.
" In substance, the position taken by the appellant was that he as the agnatic relation or collateral of Sahib Singh was entitled to the properties under the general custom of the Punjab in preference to the respondent.
The question that the suit involved was, who was the preferential heir of Sahib Singh.
The suit was heard by the Subordinate Judge, Amritsar, who found that the appellant was a collateral of Sahib Singh of the eighth degree and that the properties in dispute were not ancestral.
He held that the respondent had based her claim on a special 784 custom but bad not been able to establish it by necessary evidence and therefore the appellant was to be considered as the preferential heir under the general Custom.
The respondent then appealed to the District Judge, Amritsar.
That learned Judge confirmed the findings of the Court below that the land was not ancestral and that the appellant was a collateral of Sahib Singh of the eighth degree.
He then held that the general custom of the Punjab among the agriculturists which the parties were, was, as stated ' in para.
24 of Rattigan 's Digest of the Customary Law of the Punjab, that " sisters are usually excluded as well as their issues " and therefore put the onus of proving any special custom entitling the sister to succeed on the respondent.
On the evidence led by the respondent he came to the conclusion that she had failed to discharge the onus and thereupon dismissed the appeal.
The respondent took the matter up in further appeal to the High Court of Punjab.
Kapur J. who delivered the main judgment of the High Court, observed that para.
24 of Rattigan 's Digest did not lay down the custom correctly and that the statement there was too broad.
He held that the onus of proving the custom whereby a sister was excluded from the inheritance lay on the appellant and that he had failed to discharge that onus.
He also held that even if the onus lay on the respondent of proving a custom giving her the right to succeed, she had succeeded in discharging that onus.
Soni J., another member of the bench which heard the appeal, delivered a short judgment in effect agreeing with the view of Kapur J.
In the result the High Court allowed the appeal and upheld the respondent 's claim.
The present appeal is from this judgment of the High Court.
It is not in dispute that the parties belong to an agriculturist Jat tribe and are members of the Bheniwal sub caste of village Sultanwind in Tehsil and District Amritsar.
The genealogical table on the record would show that the appellant was a ninth degree collateral of Sahib Singh and this is what the High Court found.
It was not in dispute in the High Court 785 nor before us that the properties were not the ancestral properties of Sahib Singh.
Mr. Achhru Ram appearing for the appellant contended that the learned Judges of the High Court were wrong in placing the onus on his client.
His contention was that the general custom in the Punjab among the agriculturist tribes was that sisters were excluded by collaterals in the matter of succession to both ancestral and non ancestral properties and that custom had been correctly set out in Rattigan 's Digest.
That being so, according to him, the respondent was not entitled to the properties unless she established a special custom of the tribe or family, entitling her to succeed in preference to the collaterals and the onus of doing this must, therefore, be on her.
He contended that she had failed to discharge the onus.
Eminent Judges have from time to time pointed out that the use of the expression " the general custom of the Punjab " is inaccurate.
Plowden, J. in Ralla vs Buddha (1) at page 223 said, " It seems expedient to point out that there is strictly speaking no such thing as a custom or a general custom of the Punjab, in the same sense as there is a common law of England,a general custom applicable to all persons throughout the province, subject (like the English common law) to modification in its application, by a special custom of a class, or by a local custom.
" Young C. J. said in Mussammat Semon vs Shahu (2), "There is no such thing as general customary law known to the Legislature ' " In Kesar Singh vs Achhar Singh (3 ) Addison A. C. J. said that the expression "general custom of the Punjab " was clearly a misnomer.
The reason given for saying that there is no such thing as general custom in the Punjab is that custom there is tribal and even with the same tribe there are different customs for different localities.
So Sir Charles Roe had said in his Tribal Law in the Punjab, " Under such circumstances, seeing that the origin of all the tribes is not the same, and that even with (1) 50 P.R. I893.
(2) Lah.
10, 11.
(3) Lah.
101, 106.
99 786 tribes of the same origin local and social conditions have greatly differed, it would be impossible that there could be a single body of Customary or Tribal law, common to the whole of the Punjab ": see Rattigan 's Digest (13th Ed.) p. 157.
Each tribe has its own customs and in the Punjab there are many tribes.
None the less however the expression " general custom of the Punjab " has been frequently used.
It has been used for a purpose which appears clearly from the observations of Addison J. in Kartar Singh vs Mst.
Preeto (1), set out below: " In fact it had become customary even in the Courts to look upon custom as a thing generally followed and to place the burden of proof upon any person who asserted that his custom was not the same as the so called general custom of the Province.
If this person succeeded in proving the custom he alleged, the name, I special custom ' was given to it.
" The reported decisions very often proceeded on the basis that if there was a general custom, it did not have to be proved; that anybody wishing to rely on a custom at variance with the general custom, must prove it or fail in his claim.
It seems to us wrong to say that a general custom need never be proved.
It is stated in Halsbury 's Laws of England (3rd Ed.) Vol. 11, article 319 at p. 171, " All customs of which the Courts do not take the judicial notice must be clearly proved to exist the onus of establishing them being upon the parties relying upon their existence ".
No distinction is here made between a general custom and other customs.
Section 48 of the Evidence Act also contemplates the Proof of a general custom.
In Daya Ram vs Sohel Singh Robertson J., said at p. 410 ". .
It lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove what the particular custom is. ') These observations were approved by the Judicial (1) Lah.
296, 299.
(2) 110 P.R. 1906.
787 Committee in Abdul HuSsein Khan vs Bibi Sona Dero (1).
It therefore appears to us that the ordinary rule is that all customs, general or otherwise, have to be proved.
Under section 57 of the Evidence Act however nothing need be proved of which courts can take judicial notice.
Therefore it is said that if there is a custom of which the courts can take judicial notice, it need not be proved.
Now the circumstances in which the courts can take judicial notice of a custom were stated by Lord Dunedin in Raja Rama Rao vs Raja of Pittapur (2), in the following words, " When a custom or usage, whether in regard to a tenure or a contract or a family right, is repeatedly brought to the notice of the Courts of a country, the Courts may hold that custom or usage to be introduced into the law without necessity of proof in each individual case.
" When a custom has been so recognised by the courts, it passes into the law of the land and the proof of it then becomes unnecessary under section 57(1) of the Evidence Act.
It appears to us that in the courts in the Punjab the expression " general custom " has really been used in this sense, namely, that a custom has by repeated recognition by courts, become entitled to judicial notice as was said in Bawa Singh vs Mt. Taro and Sukhwant Kaur vs Balwant Singh (4).
Is there then a custom that sisters are excluded by collaterals in the matter of inheritance to non ancestral properties of which the courts ought to take judicial notice? Mr. Achhru Ram contends that such is the position and it is recognised as such in Rattigan 's Digest paragraph 24.
There is no, doubt that Rattigan 's Digest is of the highest authority on questions of the customs of the Punjab.
But we can take judicial notice of a statement of custom therein contained only if it has been well recognised by decisions of courts of law.
We have been taken through a large number of reported decisions on the question and it seems to us that the custom as stated by Rattigan (1) (1917) L.R. 45 I.A. 1O, 13.
(3) A.I.R. 1951 Simla 239.
(2) (1918) L.R. 45 I.A. 148, 154, 155.
(4) A.I.R. 1951 Simla 242.
788 cannot be said to have been so well recognised as to have become entitled to judicial notice from courts without further proof.
We find in the law reports a very large number of cases on the subject of a sister 's right to inherit, one group of which takes the view that there is no custom excluding sisters from inheritance when there are collateral relations of the last male holder and another group taking the contrary ,view.
It would neither be possible nor profitable to refer to all these cases here but some may be mentioned.
We shall first mention the cases which do not recognise that a custom excluding sisters from the inheritance exists.
In Makhan vs Musammat Nur Bhari (1) certain seventh degree collaterals of the last male holder sued the latter 's sister for possession of his properties.
No claim appears there to have been made by the collaterals that there was any general custom entitling them to succeed in preference to the sister.
The case having been returned to the Chief Court after the enquiry directed by it, Elsmie, J. held: " The result of the further enquiry is to show that the plaintiffs have been unable to prove that they are by custom entitled to exclude the sister of the last owner.
On the other hand, there is some evidence, though not much, to show that sisters have inherited.
It is indeed quite clear that no well defined custom is made out one way or the other." The result was that the sister was held entitled to a share of the properties that came to her under the Mohammedan law, the parties being Mohammedans and no custom having been proved one way or the other.
This was a case decided in 1884.
In Sheran vs Mussammat Sharman (2) in which the collaterals were the plaintiffs and the sister the defendant, it was observed: " On the question of inheritance, for the plaintiffs it has been contended that under the general Customary Law of the Punjab governing agricultural communities, the collaterals in the male line, fifth in (1) 116 P.R. 1884.
(2) 117 P.R. 1901.
789 descent from the common ancestor, exclude sisters, but we are not prepared to Assent to the wide proposition that such a general custom exists.
" It was also there held that there was no general custom in the Mooltan District whereby collaterals were preferred to a sister.
In the end, no custom having been found to exist favouring` either side and the parties being Mahomedans, the Mohammedan law was applied and the sister got a share.
In Bholi vs Kahna (1), it was remarked that paragraph 24 of Rattigan 's Digest was rather broadly stated and hardly warranted by the authorities quoted for and against.
In Mussammat Bhari vs Khanun (2), where the contest was between the ninth degree collaterals and a sister, the onus of proving that the collaterals were entitled to succeed in preference to the sister was placed on the collaterals who were the plaintiffs in the suit, and as the collaterals were unable to discharge the onus placed on them, they lost.
In Mst.
Fatima Bibi vs Shah Nawaz (3), it was said that the general rule laid down in paragraph 24 of Rattigan 's Digest was open to the criticism that it was based mainly on authorities regarding ancestral property and on the generally accepted principles of agnatic succession which do not apply in the case of self acquired property.
It was also held that the reported decisions were not such that a general rule could be said to exist on the question of a sister 's right to succeed which was so widely accepted that it would justify a court in coming to any definite conclusion based on custom.
In Samo vs Sahu (4) it was said that the court below was wrong in placing the onus on the sister in a contest between her and the collaterals of the fourth degree, for, there was no such thing as general customary law known to the legislature and that Rattigan 's Digest on Customary Law merely 'showed that according to judicial decisions a large number of tribes were governed by certain customs in certain matters.
(1) 35 P.R. 1909.
(2) 20 P. R. 1919.
(3) Lah.
(4) Lah.
10, 11.
790 In Jagat Singh vs Puran Singh (1), a case decided in 1944, it was observed at p. 369: " As I have indicated above there is no rule of special custom when a contest arises between a sister or a sister 's $on against a near collateral.
Then one has to fall back on general custom.
There is no rule of general custom on that point.
It is no doubt true that in paragraph 24 of Rattigan 's Digest it has been stated that sisters and their sons are in general not heirs but that has been said in very wide terms.
It may be applicable to cases of ancestral property, but it is difficult to say there is any special rule of general custom when a contest arises between a sister and collaterals of the third or fifth degree and the property is self acquired.
" In this case neither a general nor a special custom having been proved to exist, the Court based its decision on the personal law of the parties, namely, the Hindu law.
The cases decided since 1950 all take the view that there is no general custom giving collaterals preference to sisters in matters of inheritance.
They are Sukhwant Kaur vs Balwant Singh (supra), Maulu vs Mst.
Ish`ro (2), Harnam Singh vs Mst.
Gurdev Kaur (3) and Shrimati Bui vs Ganga Singh (4).
We now come to the other group of cases which seem to recognise the general custom excluding sisters from inheritance when there are collaterals of the last male holder.
In Hamira vs Ram Singh (5), the Court approved of the decision in Shidan vs Fazal Shah (6), the judgment in which is set out as an appendix to the report.
In the latter case the contest was between a sister and collaterals of the seventh degree and it was held that the onus of proving a custom entitling the sisters to succeed rested on them and this was based on paragraph 24 of Rattigan 's Digest, an entry in the Riwaji i am which applied to the parties and certain reported decisions.
Obviously, Rattigan was relied upon.
(1) (2) (1050) (3) (4) (5) 134 P.R. 1907.
(6) (1907) P.R. at p. 646.
791 In Harnamon vs Santa Singh (1) it was said that the burden of proving that the sister was entitled to succeed in preference to a collateral lay on her.
The same view was taken in Musammat Nurbhari vs Abdul Ghani Khan (2), Mussammat Hussein Bibi vs Nigahia (3), Jagu vs Bhago (4), Began vs Ali Gohar (5), Kirpa vs Bakshi Singh (6) (case decided in 1944), Santi in 1944) and Mussammat Ratni vs Harwant Singh (7).In some of these cases paragraph 24 of Rattigan 's Digest was expressly approved of as applying to nonancestral properties.
It will thus appear that there is a formidable array of authorities in support of either view.
In this state of conflict of judicial decisions we are not prepared to say that a custom giving preference to collaterals over sisters in the matter of inheritance to non ancestral properties has been so widely or uniformly recognised by courts as would justify us in taking judicial notice of it.
It is important also to note that it is recognised that a Punjab custom is fluid and capable of adapting itself to varying conditions, as stated in Hassan vs Jahana (8) and that the decisions for the last ten years are uniformly against the view expressed in paragraph 24 of Rattigan 's Digest.
We there fore come to the conclusion that the High Court was right in its view that it could not be held on, the authority of paragraph 24 in Rattigan 's Digest that a general custom excluding sisters from inheritance as against collaterals, existed.
It was then said that in the plaint it had been admitted by the respondent that there was a general custom as alleged by the appellant and so no proof of that general custom was required in this case.
We do not think this contention is justified.
No doubt in her plaint the respondent referred to a custom entitling her to succeed and termed it a special custom.
We are unable to read the reference to a special custom as (1) I. (2) 100 P.R. 1916.
(3) (4) (5) A.I.R. 1934 Lah.
(6) (7) (8) 71 P.R. 1904.
792 amounting to an admission of a general custom or its terms.
That being the position we have to see if either side led any evidence in support of its claim.
So far as the appellant is concerned he has relied on the alleged general custom and sought to support it by reference to paragraph 24 of Rattigan 's Digest.
It view of what we have said earlier we do not think that Rattigan 's Digest can be taken as correctly laying down the custom on the point.
Neither do we think that the reported decisions show the existence of any such general custom.
There is nothing else on which the appellant has sought to rely.
We therefore think that the appellant has failed to establish the custom alleged by him.
We have next to see whether the respondent has proved the custom which she set up.
We think that she has.
The High Court has discussed the evidence led by the respondent, and found it acceptable.
We have no reason to take a contrary view. 'Some reference to the evidence may now be made, exhibit P. 4, Settlement Record of 1852, proves that in the village Sultanwind Sajja Singh and Majja Singh succeeded to the properties of Nodh Singh as his sister 's sons in the presence of collaterals.
Mr. Achhru Ram contended that the statement in exhibit P. 4, that Sajja Singh and Majja Singh were the sister 's sons of Nodh Singh was wrong for, in exhibit P. 5, the Settlement Records of 1891 and 1892, they were described as the daughter 's sons of Nodh Singh and Baghel Singh, his brother.
He contended that on the authorities it is clear that on a conflict between two settlement records the later one in date has to be accepted.
That appears to have been held in a number of cases of which Alo vs Sher (1) may be mentioned.
But it seems to us that this is a point which should have been raised in the trial Court which does not appear to have been done, for, then the respondent could have led evidence to show which of the two settlement records put the matter correctly.
exhibit P. 9 which is a settlement record of 1852 of the same village, shows that on Gandhi 's (1) A.I.R. 1927 Lah.
793 death his sister 's son succeeded to his properties though there were collaterals.
Mr. Achhru Ram 's comment was that in 1852 things were so unsettled in the Punjab that no one cared for lands and that was the reason why the collaterals allowed Gandhi 's sister 's son to succeed to his properties.
This is an explanation which we are unable to accept.
Exhibit P. 7 is a settlement document of the Bheniwal tribe in the village Sultanwind prepared in 1891 92.
It shows that Mst.
Chandi, the sister of Buta Singh, succeeded to his properties.
It was said that the pedigree did not show that any collateral was alive.
But this is not right because it shows that Buta Singh 's great grand uncle, Tara Singh, was alive.
Mr. Achhru Ram says that that must be a mistake and Tara Singh who was Buta Singh 's great grand uncle could not have been alive when the latter died.
This again is a matter which should have been cleared up in the trial Court and we do not think it right to speculate about it.
It remains to consider two entries in the Riwaji iam.
We have first the Riwaji i am of 1913 14.
The entry there is in this form : " Q. 70.
Does property ever devolve on sisters and/or upon their sons ? A.
All tribes.
The property never devolves upon sisters and their issues.
" At the foot the case of Bholi vs Kahna (1) is cited.
Now it is well established that Riwaji i am entries are to be taken as referring to customs relating to succession to ancestral properties unless it is stated to be otherwise.
So it was stated in the Full Bench decision of the Lahore High Court in Mst.
Hurmate vs Hoshiaru (2 ) at p. 235: " It is reasonable, therefore, to assume that when manuals of Customary law were originally prepared and subsequently revised, the persons questioned, unless specifically told to the contrary, could normally reply in the light of their own interest alone and that, as stated above, was confined to the ancestral property (1) 35 P.R. 1909.
(2) Lah.228, 235.
100 794 only.
The fact that on some occasions the questioner had particularly drawn some distinction between ancestral and non ancestral property would not have put them on their guard in every case, considering their lack of education and lack of intelligence in general.
Similarly the use of the term " in no case " or " under no circumstances " would refer to ancestral property only and not be extended so as to cover selfacquired property unless the context favoured that construction The Full Bench was really authoritatively laying down a rule which had been the prevailing opinion in the courts in the Punjab.
In the Riwaji i am of 1913 14 we find nothing in the context to show that the answer there recorded was intended to apply to self acquired property.
That being so, it does not prove any custom against the right of a sister to inherit the self acquired property of her brother.
The other Riwaji i am was that of the year 1940.
It was in these terms : " Q. 68.
Does property ever devolve upon sisters or sister 's son ? A. All tribe. (1) In the case of an unmarried sister or sisters the property is entered in her or their name till marriage.
(2) Married sister or sisters or their descendants did not get the property in any case.
" Here again there is nothing in the context to indicate that the answers were given in regard to nonancestral property.
So this does not help the appellant either.
In this Riwaji i am eight instances are given.
Some of them deal with the self acquired property.
That does not in our opinion indicate that the answer recorded in the Riwaji i am was intended to cover succession to self acquired property also.
It is not disputed that the instances mentioned under the entries in the Riwaji i am are often collected by the officer in charge of the preparation of the record.
It is impossible to say whether any, and if so, which, instance recorded in the Riwaji i am had been supplied 795 by the tribesmen in answer to questions put to them by the Settlement Officer.
It is not possible therefore to say that there is any indication in the instances in this Riwaji i am entry that the answers were intended to cover self acquired property also.
Now of the eight instances given in the Riwaji i am two are concerned with self acquired property where there were no collatetals and the sisters were allowed to succeed.
The remaining six are concerned with ancestral property.
In four of these, the last male owner died without leaving any reversioner and in each such case the married sisters succeeded to the property.
In the fifth one,, the sisters were unmarried at the time of the brother 's death and they were allowed to take possession of the properties.
But this instance shows that on their marriages taking place they were dispossessed of the properties which apparently thereupon went to the, collaterals.
These seven instances therefore do not help either side.
They show that sisters were allowed to succeed in respect of both kinds of properties in the absence of any collaterals and that sisters were on their marriages divested of the ancestral properties to which they had succeeded on their brothers ' deaths, they being at that time unmarried.
The last instance deals with the Rajput Mohammedan tribe of Tehsil Ajnala which is in the District Amritsar, the district to which the parties to the present litigation belong.
This instance shows that a sister was allowed to succeed to the ancestral property left by the brother in preference to his collaterals of the sixth degree.
This therefore is an instance of a custom in a neighbouring Tehsil under which sisters were allowed to succeed in the presence of collaterals nearer in degree than the collateral in the present case.
In these circumstances we agree with the learned Judges of the High Court that the respondent was able to prove a custom whereby a sister was entitled to succeed in preference to the collateral relations of her brother.
We think it also right to say that even if it had been held that the respondent was not able to establish a custom entitling her to succeed she would get the 796 properties under the Hindu law.
The parties are Sikhs to whom the Hindu law applies.
Since the Hindu Law of Inheritance (Amendment) Act, 1929, a sister is an heir under the Hindu law in, preference to collaterals and that Act would be applicable to the devolution in this case.
It is however said that as the respondent had not made any claim in the plaint on the, basis of Hindu law but on the contrary relied on custom, it was not open to her to fall back on the Hindu law on failing to establish the custom.
We do not think that this is the correct position.
Section 5 of the , provides that in questions regarding succession, the rule of decision shall be (a) any custom applicable to the parties; (b) the personal law of the parties except in so far as modified by custom or legislation.
In the Full Bench case of Daya Ram vs Sohil Singh (1) Robertson, J., said at p. 410: "It therefore appears to me clear that when either party to a suit sets up " custom " as a rule of decision, it lies upon him to prove the custom which be seeks to apply.
If he fails to do so clause (b) of section 5 of the applies and the rule of decision must be the personal law of the parties subject to other provisions of the clause.
" As we have earlier said this observation was approved by the Judicial Committee in Abdul Hussain Khan vs Bibi Sona Dero (2).
In Fatima Bibi vs Shah Nawaz (3), a case to which we have earlier referred, the Court allowed the plaintiff 's sisters, who had based their claim on custom and not on the personal law, to fall back on Mohammedan law, the personal law of the parties, on their failure to establish the custom, no custom against them having been proved by the collaterals.
There are a number of other authorities, to which it is not necessary to refer, in which personal law was resorted to when no custom on either side was established.
We agree that that is the correct view to take.
We therefore think that even if the respondent had been unable to prove the custom in (1) 110 P.R. 1906.
(2) (1917) L.R. 45 I.A. 10, 13.
(3) Lah.
797 her favour she is entitled to succeed in the suit on the basis of the personal law of the parties, namely, the Hindu law.
Further, we see no prejudice to the appellant if such a course is adopted.
It is not disputed that if the Hindu law applied, the respondent would be entitled to the properties in preference to the appellant.
The only defence to the claim under the Hindu law that the appellant could take would be a custom.
The custom on which the appellant relied for his case was a general custom entitling the collaterals to succeed in preference to sisters.
We have earlier held that no such general custom has been proved in this case.
There.
fore it seems to us in the interest of justice and for the reason that litigation should come to an end that it is right that the respondent should succeed in the suit as her brother 's heir under the Hindu law.
There remains one other matter to be mentioned.
The respondent had filed an application for an order that by reason of certain agreements and certain proceedings arising out of the decree in her favour passed in this case by the High Court, the appellant should not have been given leave by this Court to institute the present appeal and the leave granted under article 136 of the Constitution should be revoked.
As, in our view, the respondent succeeds on the merits of the case we think it unnecessary to express any opinion on this question.
In the result we dismiss the appeal with costs.
Appeal dismissed.

summary/full:
The question involved in this appeal was whether under the customary law of the Punjab a sister was a preferential heir in respect of her brother 's self acquired property, to a collateral.
The respondent, the sister, relied on a custom, which she termed a special custom, and on that basis claimed her brother 's property, and the appellant, a collateral of the 8th degree of her brother, resisted her claim relying solely on a general custom stated in paragraph 24 Of the Rattigan 's Digest of the Customary Laws of the Punjab to the effect that sisters were excluded by collaterals in the matter of inheritance to non ancestral property.
The Subordinate judge, and the District judge on appeal, held in favour of the appellant but the High Court reversed their decisions holding that, there was no such general custom as recorded by Rattigan and that it was in any event for the appellants to prove that custom and this he had failed to do.
The High Court also held that the respondent had succeeded in proving the custom set up by her.
It was contended on behalf of the appellant that the High Court was in error in placing the onus of proving the custom on him since the custom was a general custom as stated by Rattigan.
Held, that no distinction could be made between a general custom or other customs so far as the need of proof was con cerned and the ordinary rule was that all customs, general or otherwise, had to be proved unless by repeated recognition by the courts a custom had become entitled to judicial notice under section 57(1) of the Evidence Act.
Raja Rama Rao vs Raja of Pittapur, (1918) L.R. 45 I.A. 148, relied on.
Although there could be no doubt that Rattigan 's Digest was of the highest authority on questions of custom of the Pun jab, it was not possible, regard being had to the formidable array of conflicting decisions of the courts as to its existence, to take judicial notice of the custom mentioned in paragraph 24 of the Digest, without further proof.
Case law reviewed.
Although the respondent had in the plaint relied on a custom and termed it a special custom, that could not amount to an 782 admission which would obviate the necessity of proof of the general customs or its terms by the appellant.
Even supposing that the High Court was not correct in its finding that the respondent had proved the custom entitling her to succeed, as the custom set up by the appellant had not also been established, section 5 Of the , applied and the case had to be decided by the personal law of the parties.
The respondent was entitled to base her claim on the personal law although in her plaint she had relied on a custom.
The personal law of the parties was the Hindu law and the respondent was entitled to succeed under that law also.
Daya Ram vs Sohel Singh, 110 P.R. 1906, Abdul Hussein Khan vs Bibi Sona Dero, (1917) L.R. 45 I.A. 10 and Mst.
Fatima Bibi vs Shah Nawaz, Lah. 98, relied on.


judgement:
iminal Appeal No. 19 of 1957.
Appeal by special leave from the judgment and order dated March 7, 1956, of the former PEPSU High Court in Criminal Revision No. 45 of 1956, arising out of the judgment and order dated February 22, 1956, of the Additional Sessions Judge, Patiala, in Criminal Appeal No. 175/36 of 1955 56.
Pritam Singh Safe&, for the appellant.
N. section Bindra and T. M. Sen, for the respondent.
April 21.
The Judgment of the Court was delivered,by KAPUR, J.
This is an appeal by special leave against the judgment and order of the High Court of PEPSU passed in revision '.
The appellant was a sub Inspector of Police who at the relevant time was the Station House Officer in charge Shehna police station in the erstwhile PEPSU State.
He was convicted under section 193, Indian Penal Code, by a First Class Magistrate and his appeal to the Sessions Judge, Patiala, was dismissed except as to sentence.
He took a revision to the PEPSU High Court but that was also dismissed.
This appeal has arisen in the following circumstances: One Surjit Singh, s/o Risaldar Waryam Singh, was arrested on September 25, 1953, at Barnala in PEPSU State by the Police Inspector Jaswant Singh.
He was kept in the lock up at Barnala and on the following day his custody was handed over to the appellant and he was taken to Shehna and was kept in custody it 729 is not clear under what section in the police station lock up at Shehna.
Surjit Singh was there kept in custody from September 26, 1953, till October 10, 1953, when at about 10 p.m., he was surreptitiously removed to Police Station Dialpur and then to Police Post Hamirgarh and from there was taken to Police Station Baga Purana in Ferozepur District, of the then Punjab.
An application under section 491 of the Criminal Procedure Code and under article 226 of the Constitution was made for a writ of Habeas Corpus and Mandamus in the High Court of PEPSU.
In that petition it was alleged that Surjit Singh was being kept in unlawful custody without any charge being made and without obtaining a remand by a Magistrate.
In reply to this, an affidavit dated October 13, 1953, was filed by the appel.
lant in which he stated that Surjit Singh had association with notorious dacoits; that he, the appellant, had never taken him into custody at any time; that the said Surjit Singh was absconding and had not been arrested in spite of the best efforts of the police; that at the time of the making of the affidavit he was not in the appellant 's custody and that it was incorrect that Inspector Jaswant Singh had ever entrusted Surjit Singh to his (appellant 's) custody.
He also stated that no petition had been brought to him nor had he received any telegram in connection with the custody of Surjit Singh.
This affidavit was affirmed as follows: " I solemnly affirm that the facts stated from paras Nos.
I to 7 are true to the best of my knowledge and belief and nothing which is relevant to this case has been kept back from this Hon 'ble Court ".
As both the parties admitted before the High Court that Surjit Singh was not in the custody of the appellant the petition was dismissed.
On November 9, 1953, the brother of Surjit Singh made an application under section 476, Criminal Procedure Code, for the prosecution of Inspector Jaswant Singh and the appellant for perjury under section 193, Indian Penal Code, in that they had filed false affidavits.
This matter was heard by another learned Judge of that Court who ordered the 92 730 prosecution of the appellant and directed the Registrar of the High Court to file a complaint which was filed.
The complaint was taken cognizance of by the First Class Magistrate at Patiala who convicted the appellant and sentenced him to nine months ' imprisonment and a fine of Rs. 300/ and in default to undergo simple imprisonment for two months.
The appellant took an appeal to the Sessions Judge, Patiala, who confirmed the order of conviction but reduced the sentence to one of three months ' simple imprisonment and a fine of Rs. 50 and in default one month 's simple imprisonment, a revision against this order was dismissed in limine by the Chief Justice although he gave reasons for dismissing it.
The appellant then obtained special leave from this Court.
On behalf of the appellant the first contention raised was that the appellant was not bound to file an affidavit and therefore he could not be convicted under section 193, Indian Penal Code, because his case did not fall under section 191, Indian Penal Code.
In support of his contention he relied upon the Rules of the PEPSU High Court framed for the purpose of proceedings under article 226 and section 491(2), Criminal Procedure Code, for the issuing of writs of Habeas Corpus.
He also referred to the Rules made by that Court for the issuing of writs of Mandamus, Prohibition, Quo Warranto and Certiorari under article 226 and submitted that there was no Rule in the former, i.e., for writ of Habeas Corpus requiring a return to be made on behalf of the res pondent to be sup ported by an affidavit whereas in the latter, i.e., issuing of writs of Mandamus etc.
an affidavit was necessary and therefore it was submitted that section 191 was inapplicable.
Rule 2 of the Rules of the Court required that when a Judge was of the opinion that prima facie case had been made out for granting the application a rule nisi was to issue calling upon the person or persons against whom the order was sought, to appear before the Court and to show cause why such an order should not be made.
As has been pointed out in Greene vs Home Secretary (1) which was a case under Reg.
18 B of the Defence of the (1) , 302. 731 Realm Act the whole object of proceedings for a writ of Habeas Corpus is to make them expeditious, to keep them as free from technicality as possible and to keep them as simple as possible.
" The incalculable value of Habeas Corpus is that it enables the immediate determination of the right to the appellant 's freedom " (Lord Wright).
When there is no question of fact to be examined or determined no affidavit is needed.
As soon as there emerges a fact into which the Court feels it should enquire the necessity for an affidavit arises.
Ordinarily an affidavit may not be necessary in making the return if the detention is under orders of the detaining authority in exercise of its plenary discretion as in Liversidge vs Anderson (1) and in Greene 's case (2) or a person is detained under the orders of a Court.
But where the detention is, as it was in the present case, it becomes necessary for the detaining authority to justify its action by disclosing facts which would show to the satisfaction of the Court that the custody is not impro per.
Where the prisoner says " I do not know why I have been detained, I have done no wrong ", it is for the detaining authority to justify the custody.
When issues of fact are raised and the actions of the police officers, as in the present case, are expressly challenged and facts are set out which if unrebutted and unexplained would be sufficient for the writ to issue, an affidavit becomes necessary.
It cannot be said therefore that in the present case the appellant was not legally bound to place facts and circumstances before the Court to justify the detention of Surjit Singh and, this could be done by an affidavit.
Section 4 of the Oaths Act lays down the authority to administer oaths and affirmations and it prescribes the courts and persons authorised to administer by themselves or by their officers empowered in that behalf oaths and affirmations in discharge of the duties or in exercise of the powers imposed upon them and they are, all courts and persons having by law the authority to receive evidence.
Section 5 prescribes the persons by whom oaths or affirmations must be (1) ; (2) , 302. 732 made and they include all witnesses, i. e., all persons who ' may lawfully be required to give evidence by or before any court.
These two sections show that the High Court or its officers were authorised to administer the oath and as the appellant was stating facts as evidence before the High Court he had to make the oath or affirmation and was bound to state the truth.
Section 14 of that Act is in the following words: section 14.
Every person giving evidence on any subject before any Court or person hereby authorised to administer oaths and affirmations shall be bound to state the truth on such subject ".
As the appellant was giving evidence on his own behalf in that he was denying the allegation made in the affidavit of the brother of Surjit Singh he was bound to state the truth on the subject on which he was making the statement.
The contention therefore that under section 191 of the Indian Penal Code the relevant portion of which is: section 191.
" Whoever being legally bound by an oath or by an express provision of law to state the truth . . makes any statement which is false and which he either knows or believes to be false or does not believe to be true, is said to give false evidence " the appellant was not legally bound by oath to state the truth cannot be supported.
On the other hand at the stage of the proceedings in the High Court where it was being alleged that Surjit Singh was being detained by the appellant illegally it was necessary for the appellant to make an affidavit in making a return and therefore if the statement is false, as it has been found to be, then he has committed an offence under section 193.
The opening words of section 191 whoever being legally bound by an oath or by an express provision of law to state the truth. . do not support the submission that a man, who is not bound under the law to make an affidavit, can, if he does make one, deliberately refrain from stating truthfully the facts which are within his knowledge,.
The meaning of these words is that whenever in a court of law a person binds himself on oath to state the truth he is bound to state the 733 truth and he cannot be heard to say that he should not have gone into the witness box or should not have made an affidavit and therefore the submission that any false statement which he had made after taking the oath is not covered by the words of section 191, India Penal Code, is not supportable.
Whenever a man makes a statement in court on oath he is bound to state the truth and if he does not, he makes himself liable under the provisions of section 193.
It is no defence to say that he was not bound to enter the witness box.
A defendant or even a plaintiff is not bound to go into the witness box but if either of them chooses to do so he cannot, after he has taken the oath to make a truthful statement, state anything which is false.
Indeed the very sanctity of the oath re quires that a person put on oath must state the truth.
In our opinion this contention is wholly devoid of force and must be repelled.
It was then contended that the officer before whom the appellant swore the affidavit, i. e., the Deputy Registrar of the High Court of PEPSU was not authorised to administer oaths.
That officer as a witness for the prosecution has stated that he could administer an oath and therefore this contention of the appellant is also without any force and must be repelled.
It was also argued that the affidavit filed by the appellant was affirmed as being true to the best of knowledge and belief and therefore it could not be said as to which part was true to the appellant 's knowledge and which to his belief.
We have read the affidavit which consists of 7 paragraphs and each paragraph relates to affirmation of a fact which, if true, could only be so to the appellant 's knowledge.
But even belief would fall under Explanation 2 to section 191 which is as under: Explanation 2 to section 191.
" A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know 734 The appellant relied upon a judgment of the Allahabad High Court in Emperor vs Lachmi Narain (1).
But unless there was something peculiar in the facts of that case it cannot be considered to be good law.
It does not even take into consideration Explanation 2 of section 191.
Lastly it was urged that the procedure adopted by the Magistrate was erroneous in that he did not hold an enquiry as required under sections 200 and 202, Criminal Procedure Code, the former of which is expressly mentioned in sub section 2 of section 476, Criminal Procedure Code.
That contention is equally untenable because under section 200, proviso (aa) it is not necessary for a Magistrate when a complaint is made by a court to examine the complainant and neither section 200 nor section 202 requires a preliminary enquiry before the Magistrate can assume jurisdiction to issue process against the person complained against.
In our opinion the appellant has been rightly convicted and we would therefore dismiss this appeal.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
A habeas corpus application was made to the High Court alleging that one S had been illegally arrested and kept in unlawful custody without any charge being made against him and without obtaining remand from a Magistrate.
By way of a return the appellant, a sub Inspector of Police, filed a false affidavit controverting the allegations made in the application.
He was prosecuted and convicted under section 193, Indian Penal Code.
The appellant challenged his conviction on the grounds that: (i) as he was not bound under the law to file an affidavit, the case did not fall under section 191 of the Indian Penal Code and he could not be convicted under section 193 ; and (ii) the affidavit having been affirmed as true to the best of the knowledge and belief of the appellant it could not be said which part was true to his knowledge and which to his belief.
Held that, the appellant was rightly convicted.
It was not necessary for the application of section 191 of the Indian Penal Code that the accused should be bound under the law to make an affidavit.
If he chose to me one and bound himself on oath to state the truth he was liable under section 193 Of the Code if e made a false statement and it was no defence to say that he was not bound to enter the witness box or make an affidavit.
In the present case it was necessary for the appellant to file an affidavit as he was bound to place the facts and circumstances justifying 728 the detention which could only be done by an affidavit.
Ordinarily, where the detention is under orders of the detaining authority in exercise of his plenary powers or of a Court an affidavit may not be necessary in making the return but where it becomes necessary for the detaining authority to justify its action by disclosing facts it has to file an affidavit.
Held, further, that explanation 2 to section 191 of the Code brings a false statement affirmed to the belief of the accused also within the mischief of section 191 and thus makes it punishable under section 193 of the Code.
Emperor vs Lachmi Narain, I. L. R. 1947 All.
155, dis approved.


judgement:
Appeal No. 206 of 1954.
Appeal from the judgment and decree dated March 9, 1951, of the Orissa High Court in Appeal from Original decree No. 14 of 1946, arising out of the judgment and decree dated January 31, 1946, of the Court of Subordinate Judge at Sambalpur in Title Suit No. 16 of 1944.
L. K. Jha, Rameshwar Nath, section N. Andley and J. B. Dadachanji, for the appellant.
section C. Issacs and R. Patnaik, for the respondents.
April 27.
The Judgment of the Court was delivered by section K. DAS, J.
This appeal on a certificate granted by the High Court of Orissa is from the judgment and decree of the said High Court dated March 9, 1951, by which it substantially affirmed the decision of the learned Subordinate Judge of Sambalpur in Title Suit No. 16 of 1944 except for a modification of the decree for damages awarded by the latter.
Two questions of law arise in this appeal, one relating to the interpretation of section 32, sub section
(5) and the other to section 50 of the Indian Evidence Act (I of 1872), hereinafter referred to as the Evidence Act.
The material facts relating to the appeal are susceptible of a simple and concise statement.
Three persons Nimai Charan Misra, Lakshminarayan Misra and Baikuntha Pati brought a suit for a declaration of their title to and recovery of possession of certain properties details whereof are not necessary for our purpose.
This suit was numbered Title Suit 16 of 1944 in the court of the Subordinate Judge of Sambalpur.
The claim of the plaintiffs, now respondents before us, was founded on the following pedigree: 817 Sankarsan Balaram Bhubana Baidyanath Raghunath Purushottam Satyabhama= Lokanath= Haripriya alias Srihari (died 1942) (2nd wife) Satyananda (died 1902) Natabar Deft. 1 Janardan Devendra Deft.
3 Radha Krushna Dolgovind Ramhari Deft.
4 Deft.
5 Deft.
6 Must.
Ahalya Mst.
Brindabati Mst.
Malabati (dead) married (dead) married.
(dead) married.
Lakhan Pati.
Raghumani.
Mandhata Misra.
Satyabadi Dasarath Baikuntha Nimai Lakshminarayanm (dead) (Deft.8) (Plaintiff3) Plaintiff1 Plaintiff2 (given in adoption in another family).
818 The last male owner was Satyananda who died unmarried sometime in 1902 1903, and his mother Haripriya succeeded to the estate.
She lived till 1942; but in 1916 she had sold a portion of the property to one Indumati, daughter of Dharanidhar Misra (plaintiffs ' witness No. 4) and some of the reversioners, namely, Natabar and Janardan, who were agnates of Haripriya 's husband Lokenath Parichha, brought a suit challenging the alienation.
This suit was Suit No. 31 of 1917 in the court of the Subordinate Judge, Sambalpur.
The suit was decreed on August 31, 1918, and the alienation was declared to be without legal necessity and not binding on the reversion after the death of Haripriya.
In 1929 was passed the Hindu Law of Inheritance (Amendment) Act (II of 1929) which inter alia gave to a sister 's son a place in the order of Mitakshara succession higher than the agnates; before the amending Act a sister 's son ranked as a bandhu, but under it he succeeded next after the sister.
The question whether a half sister was entitled to get the benefit of the amending Act gave rise to a difference of opinion, but the Privy Council held in 1942, settling the difference then existing between the various High Courts, that the term I sister ' included a 'half sister '; but a full sister and a half sister did not take together and the latter took only in default of the full sister.
(See Mst.
Sahodra vs Ram Babu (1) ).
The plaintiffs respondents claimed on the strength of the pedigree which they set up that they were sons of the half sister of Satyanand and therefore came before the agnates.
The suit was contested by some of the defendants who were agnates of Lokenath Paricha and of whom the present appellant was one.
The contesting defendants challenged the correctness of the pedigree alleged by the plaintiffs respondents and their main case was that Ahalya and Malabati were not the daughters of Lokenath Parichha but were daughters of Baidyanath Misra, father of Haripriya.
The relevant pedigree which the appellant set up was (1) (1942) L.R. 69 I.A. I45.
819 Baidyanath Misra Haripriya Bisseswar AliaJ Malabati (died on Misra Laksh Pati Mandhata 6 4 1942) Dayasagar Satyanand Sushila P. W. 3 (died in 1903) Dasarathi Baikuntha Plff.
3 Nimai Lakshmi Plff.1 narayan.
Plff. 2.
As the High Court has put it, the essential controversy between the parties centred round the question if the plaintiffs respondents were the sons of the daughters of Lokenath Parichha by his first wife Satyabhama.
On this question the parties gave both oral and documentary evidence.
On a consideration of that evidence the learned Subordinate Judge held that they were the sons of the daughters of Lokenath Parichha and on that finding the suit was decreed.
There was an appeal to the High Court, and it affirmed the finding Of the learned Subordinate Judge.
The High Court relied on exhibit 1, a petition dated November 2, 1917, which Satyabadi on his own behalf and on behalf of his brothers Baikunth Pati and Dasarath Pati had filed in Suit No. 31 of 1917; this petition contained a pedigree which showed that Ahalya, Brindabati, and Malabati were daughters of Lokenath Parichha by his first wife and Satyabadi, Baikunth and Dasarath were the sons of Ahalya.
The admissi bility of this document was challenged on behalf of the appellant, but the learned Judges of the High Court held that the document was admissible under section 32(5) of the Evidence Act.
The contention before us is that the document was not so admissible, and this is one of the questions for decision before us.
As to the oral evidence, Narasimham, J., held that the testimony given by three of the witnesses of the plaintiffs respondents, namely, Janardan Misra (plaintiffs ' witness No. 2), Sushila Misrain (plaintiffs ' witness No. 3) and Dharanidhar Misra (plaintiffs ' witness No. 4)was admissible under section 50 of the Evidence Act, and 820 he relied on that testimony in support of the pedigree set up by the plaintiffs respondents.
The learned Chief Justice relied on the evidence of Dharanidbar Misra which be held to be admissible but with regard to the.
other two witnesses, he said " With regard to the other two witnesses relied on by the plaintiffs namely that of P. Ws. 2 (Janardan Misra, aged 62) and 3 (Susila Misrani, aged 43) knowledge of relevant facts as to relationships can seldom be attributed to them.
Their evidence, though true, and otherwise acceptable, must be based upon their having heard the declarations of such members of the family as were their contemporaries or upon the tradition or reputation as to family descent handed down from generation to generation and recognised and adopted by the family generally.
This may partly, if not wholly, be based upon conduct within the meaning of section 50, such as treating and recognising the mothers of the plaintiffs as Lokenath 's daughters, and the plaintiffs as his daughter 's sons.
They, judged from their respective ages, could not be considered to have direct knowledge of the matters in issue.
Scanning their evidence closely, I find that they have in no way deposed about such conduct of the members of the family of Lokenatb as could be attributed to the knowledge or belief or consciousness of those who had special means of knowledge of the relationships or that the relationship was recognised and adopted by the family generally.
In the circumstances, I entertain some doubt as to the acceptability of their statements in evidence.
" On behalf of the appellant, it has been contended that the testimony of none of the aforesaid three witnesses fell within the purview of section 50 of the Evidence Act and the High Court was in error in admitting and accepting that evidence or any part thereof, and according to learned counsel for the appellant, the whole of it was hearsay pure and simple some of it being even second or third hand hearsay.
Thus the second question for our consideration is if the testi mony of the witnesses mentioned above or of any of them, is 'admissible evidence within the meaning of section 50 of the Evidence Act.
821 We proceed to consider the second question first.
The Evidence Act states that the expression " facts in issue " means and includes any fact from which either by itself or in connection with other facts the existence, non existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follow; "evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry ; and (2) all documents produced for the inspection of the Court.
It further states that one fact is said to be relevant to another when the one is connected with the other in any one of the ways referred to in the provisions of the Evidence Act relating to the relevancy of facts.
Section 5 of the Evidence Act lays down that evidence may be given in any suit or proceeding of the existence or non existence of every fact in issue and 'of such other facts as are declared to be relevant and of no others.
It is in the context of these provisions of the Evidence Act that we have to consider section 50 which occurs in Chapter 11, headed " Of the Relevancy of Facts Section 50, in so far as it is relevant for our purpose, is in these terms: " section 50.
When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact On a plain reading of the section it is quite clear that it deals with relevancy of a particular fact.
It states in effect that when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact.
The two illustrations appended to the section clearly bring out the true scope and effect of the section.
It appears to us that the essential requirements of the section are (I) there, must be a case where the court has to form an opinion as to the 822 relationship of one person to another; (2) in such a,case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3)but the person whose opinion expressed by conduct is relevant must be a, person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship ; in other words,the person must fulfil the condition laid down in the latter part of the section.
If the person fulfils that condition, then what is relevant is his opinion expressed by conduct.
Opinion means something more than more retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question.
Now, the " belief " or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion.
What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved.
We are of the view that the true scope and effect of section 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala vs Khalilar Rahman (1): "It is only opinion as expressed by conduct which is made relevant.
This is how the conduct comes in.
The offered item of evidence is the conduct ', but what is made admissible in evidence is ' the opinion ', the opinion as expressed by such conduct)The offered item of evidence thus only moves the Court to an intermediate decision : its immediate effect is only to move the Court to see if this conduct establishes any I opinion ' of the person, whose conduct is in evidence, as to the relationship in question.
In order to enable the Court to infer 'the opinion ', the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the I opinion '.
When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, the opinion of a person.
It still remains for the Court to weigh such evidence and come to its own opinion as (1) I.L.R. , 309. 823 to the factum probandum as to the relationship in question.
" We also accept as.
correct the view that section 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship: Lakshmi Reddi vs Venkata Reddi (1).
It is necessary to state here that how the conduct or external behaviour which expresses the opinion of a person coming within the meaning of section 50 is to be proved is not stated in the section.
The section merely says that such opinion is a relevant fact on the subject of relationship of one person to another in a case where the court has to form an opinion as to that relationship.
Part 11 of the Evidence Act is headed " On Proof ".
Chapter III thereof contains a fascicule of sections relating to facts which need not be proved.
Then there is Chapter IV dealing with oral evidence and in it occurs section 60 which says inter alia : " section 60.
Oral evidence must, in all cases whatever, be direct; that is to say if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.
" If we remember that the offered item of evidence under section 50 is conduct in the sense explained above, then there is no difficulty in holding that such conduct or outward behaviour must be proved in the manner laid down in section 60; if the conduct relates to something which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it; and so on.
The conduct must be of the (1) A.I.R. 1937 P.C. 201.
824 person who fulfils the essential conditions of section 50, and it must be proved in the manner laid down in the provisions relating to proof.
It appears to us that that portion of section 60 which provides that the person who holds an opinion must be called to prove his Opinion does not necessarily delimit the scope of section 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion.
Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under section 50 or by some other person acquainted with the facts which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of section 60.
This, in our opinion, is the true inter relation between section 50 and section 60 of the Evidence Act.
In Queen Empress vs Subbarayan (1) Hutchins, J., said : " That proof of the opinion, as expressed by conduct, may be given, seems to imply that the person himself is not to be called to state his own opinion, but that, when he is dead or cannot be called, his conduct may be proved by others.
The section appears to us to afford an exceptional way of proving a relationship, but by no means to prevent any person from stating a fact of which he or she has special means of knowledge.
While we agree that section 50 affords an exceptional way of proving a relationship and by no means prevents any person from stating a fact of which he or she has special.
means of knowledge, we do not agree with Hutchins, J., when he says that the section seems to imply that the person whose opinion is a relevant fact cannot be called to state his own opinion as expressed by his conduct and that his conduct may be proved by others only when he is dead or cannot be called.
We do not think that section 50 puts any such limitation.
Let us now apply the tests indicated above to the testimony of the two witnesses, Janardan Misra and (1) Mad. 9, 11.
825 Dharanidhar Misra.
As to Sushila Misrain, she was aged about 43 when she gave evidence in 1946.
It is unnecessary to consider in detail her evidence, because if the evidence of the other two older witnesses be admissible, that would be sufficient to support the finding arrived at by the courts below another evidence would also be admissible on the same criteria as the evidence of the other two witnesses.
The first question which we must consider is if Janardan Misra and Dharanidhar Misra had special means of knowing the disputed relationship.
Janardan Misra was aged about 62 in 1946, and he was related to the family of Baidyanath Misra.
Kashi Nath Misra was his grand father and was a brother of Baidyanath Misra.
Obviously, therefore, Janardan Misra had special means of knowing the disputed relationship, being related to Baidyanath and therefore to Haripriya, who was the second wife of Lokenath.
He said in his evidence that he knew Lokenath Parichha, had seen his first wife Satyabhama and remembered the marriage of Haripriya with Lokenath Parichha.
Obviously, therefore, he 'fulfilled the condition of special knowledge.
He further said that he attended the marriage of Malabati, daughter of Lokenath, when Lokenath was living.
That marriage took place in the house of Lokenath.
He also said that he was present when the first two daughters of Malabati were married and also at the time of the Upanayan ceremonies of plaintiffs I and 2.
According to the witness, Shyam Sundar Pujari, a son of a sister of Lokenath, acted as a maternal uncle at the time of the marriage of the eldest daughter of Malabati and Dayasagar Misra carried Radhika, second daughter of Malabati, at the time of her marriage.
The question is whether these statements of Janardan Misra as to his conduct are admissible under section 50, Evidence Act.
Learned counsel for the respondent has contended before us that even apart from section 50, the evidence of Janardan Misra is direct evidence of facts which he saw and which should be treated as .directly proving the relationship between Lokenath 104 826 and his daughters.
We do not think that learned counsel for the respondent is right in his submission that Janardan 's evidence directly proves the relation between Lokenath and his alleged daughters, Abalya, Brindabati and Malabati.
Janardan does not say that he 'was present at the birth of any of these daughters.
What be says is that he was present at the marriage of Malabati which took place when Lokenath was living and in Lokenath 's house; he was also present at the marriages of the first two daughters of Malabati and also at the time of the Upanayan ceremonies of plaintiffs I and 2.
This evidence, in our opinion, properly comes within section 50, Evidence Act; it shows the opinion of Janardan Misra as expressed by his conduct, namely, his attending the marriage of Malabati as daughter of Lokenath and his attending the marriages and Upanayan ceremonies of the grandchildren of Lokenath.
We do not think that it can be suggested for one moment that Janardan Misra attended the marriage and other ceremonies in the family as a mere casual invitee.
He must have been invited as a relation of the family and unless he believed that Malabati was a daughter of Lokenath and the others were grand children of Lokenath to whom the witness was related, he would not have said that he attended those ceremonies as those of the children and grand children, of Lokenath.
This, in our opinion, is a reasonable inference from the evidence and if that is so, then the evidence of Janardan Misra was clearly evidence which showed his belief as expressed by his conduct on the subject of the relationship between Lokenath and his daughters and Lokenath and his grandchildren.
Janardan also said that one Shyamsundar Pujari acted as maternal uncle at the time of the marriage of the eldest daughter of Malabati.
There is some evidence in the record that Shyamsundar Pujari was son of Lokenath 's sister.
This was, however, disputed by the appellant.
The High Court has not recorded any finding on the relation of Shyamsundar Pujari to Lokenath.
If it were proved that Shyamsundar was a son of Lokenath 's sister, he would have special 827 means of knowledge as a relation of the family and his conduct at the time of the marriage of Malabati 's daughter would also be admissible under section 50.
But in the absence of any finding as to any special means of knowledge on the part of Shyamsundar, the latter 's conduct will not be admissible under section 50.
We need not say anything more about Shyamsundar, as the High Court has not based its finding on the conduct of Shyamsundar.
The same criteria apply to the evidence of Dharanidhar Misra, who was aged 96 at the time when he gave evidence.
He was the maternal uncle of Janardan Misra.
Dharanidhar 's evidence showed that he knew Lokenath Parichha and his two wives, Satyabhama and Haripriya.
He also had special means of knowing the disputed relationship, though he was not directly related to Lokenath.
He said that Lokenath was two years older than him and the witness attended the marriages of Radhika and Sarjoo and the " thread " ceremonies of Lakshminarayan and Nimai.
The witness further added that though he did not remember if he was invited to the marriage of Mandhata 's daughters, he was invited to the feasts which followed the marriage.
He said that the feasts took place in the house of Mandhata and he attended the " gansana " and marriage feasts of Mandhata 's daughters.
The same criteria which make the evidence of Janardan Misra admissible under section 50 also make the evidence of Dharanidhar Misra admissible under the same section.
We may in this connection refer to one of our own decisions, Sitaji vs Bijendra Narain Choudhary wherein the following observations were made: " A member of the family can speak in the witness box of what he has been told and what he has learned about his own ancestors, provided what he says is an expression of his own independent opinion (even though it is based on hearsay derived from deceased, not living, persons) and is not merely repetition of the hearsay opinion of others, and provided the opinion is expressed by conduct.
His sources of (1) A.I.R 1954 S.C. 601.
828 information and the time at which he acquired the knowledge (for example, whether before the dispute or not) would affect its weight but not its admissibility.
This is therefore legally admissible evidence which, if believed, is legally sufficient to support the finding ".
It is true that Dharanidhar Misra was not directly related to the family of Lokenath.
He was, however, distantly related to Haripriya.
He was a friend of Lokenath Parichha and lived in the same neighbourhood.
His evidence showed that he knew him and the members of his family quite well.
That being the position, his evidence that he attended the marriage ceremonies and the Upanayan ceremonies of several members of the family undoubtedly showed his opinion as expressed by his conduct.
We are accordingly of the view that the evidence of both Janardan Misra and Dharanidhar Misra was admissible under section 50 and the learned Judges of the High Court committed no error of law in admitting and considering that evidence.
We are concerned here with the question of admissibility only.
As to what weight should be given to their evidence was really a matter for the courts below and both the learned Chief Justice and Narasimham, J., accepted the testimony of Dharanidhar Misra and Narasimham, J., further relied on the testimony of Janardan Misra also.
We now proceed to a consideration of the first question, namely, the admissibility of the document Ext.
The High Court has held the document to be admissible under sub section (5) of section 32 of the Evidence Act.
We must first read section 32 (5): " section 32.
Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases: (1). . . . . . . . . (2). . . . . . . . . 829 (3). . . . . . . . . (4). . . . . . . . (5) When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relation ship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
(6). . . . . . . . (7). . . . . . . . (8). . . . . . .
Now, four conditions must be fulfilled for the application of sub section
(5) of section 35: firstly, the statements, written or verbal, of relevant facts must have been made by a person who is dead or cannot be found, etc., as mentioned in the initial part of the section; secondly, the statements must relate to the existence of any relationship by blood, marriage or adoption; thirdly, the person making the statement must have special means of knowledge as to the relationship in question ; and lastly, the statements must have been made before the question in dispute was raised.
There is no serious difficulty in the present case as to the first two conditions.
Exhibit I contained a pedigree which showed that Lokenath had three daughters by his first wife, the daughters being Ahalya, Brindabati and Malabati; it also showed that Ahalya had three sons Satyabadi, Baikuntha and Dasarath, of whom Baikuntha was one of the plaintiffs in the present suit and the other two plaintiffs Nimai and Lakshminarayan were shown as sons of Malabati.
Exhibit I was signed by Satyabadi on his own behalf and on behalf of his brothers Baikuntha and Dasarath.
Satyabadi is now dead.
So far as Satyabadi is concerned, there can be no doubt that the first two conditions for the application of sub section
(5) of section 32 are fulfilled.
It has been contended that as Dasarath and Baikuntha are alive (Baikuntha being one of the plaintiffs) and as the statement was the joint statement of three persons of whom one alone is dead, the first and preliminary condition necessary for the application of section 32 is not 830 fulfilled.
We do not think that this contention is correct, and we are of the view that the position is correctly stated in Chandra Nath Roy vs Nilamadhab Bhattacharjee (1); that was a case in which the statements were recitals as to a pedigree and were contained in a patta executed by three sisters, two of whom were dead and it was pointed out that the statement in the patta was as much the statement of the sisters who were dead as of the sister who was alive.
In the case before us the statements as to pedigree in exhibit I were really the statements of Satyabadi, who signed for self and on behalf of his brothers.
Assuming, however, that the statements were of all the three brothers, they were as much statements of Satyabadi as of the other two brothers who are alive.
We, therefore, see no difficulty in treating the statements as to pedigree in exhibit I as statements of a dead person as to the existence of a relationship by blood between Lokenath and his daughters Ahalya, Brindabati and Malabati the relationship which is in dispute now.
The more important point for consideration is if the statements as to pedigree in exhibit I were made, to use the* words of sub section
(5), before the question in dispute was raised.
The High Court held that the statements were made ante litem motam.
Learned counsel for the appellant has very strongly contended before us that the High Court took an erroneous view in this matter.
Let us first see the circumstances in which exhibit I was filed and dealt with in Suit No. 31 of 1917.
We have said earlier what that suit was about.
It was a suit brought by some of the reversioners for a declaration that the alienation made by Haripriya in favour of Indumati was without legal necessity and, therefore, not binding on the reversion after the death of Haripriya.
The suit was filed on August 27, 1917.
On November 2, 1917, certain other persons made an application to be added as parties to the suit on the footing that they had the same interest in the suit as the plaintiffs.
That application was disposed of by the learned Subordinate Judge by the following order "In a suit like the present, it is not necessary (1) Cal.
236. 831 that all the reversioners should be made parties.
So I reject the petition.
" Exhibit I was filed on November 5, 1917.
In that petition Satyabadi alleged: " The applicants are the legal claimants to inherit the properties left by Lokenath . the applicants therefore beg that they may kindly be made co defendants ".
It was further alleged that the plaintiffs of that suit had no legal right over the share in dispute, and this was followed by a pedigree given in para.
IV of the petition.
This petition (exhibit 1) was put up on November 27, 1917, and the learned Subordinate Judge disposed of the petition by the following order: " The petition of Satyabadi Pati and others was put up in the presence of the plaintiffs pleader.
He objects to the same.
The petition is, therefore, rejected." Ultimately, the suit was decreed on August 31, 1918, on the finding that the alienation by Haripriya was without legal necessity and did not bind the reversion after her death.
The learned Judges of the High Court took the view that in Suit No. 31 of 1917 no dispute arose as to the alleged relation between Lokenath on one side and Ahalya, Brindabati and Malabati on the other.
The dispute in that suit was about the validity of the alienation made by Haripriya and the suit having been filed by some of the reversioners on behalf of the reversion, no issue was raised or could be raised as to whether Lokenath had any daughters by his first wife, Such an issue was not relevant to the suit and furthermore nobody could anticipate in 1917 that the sons of a sister or half sister would be preferential heirs in the order of Mitakshara succession.
They, therefore, held that the statements in exhibit 1 were ante litem motam and admissible under sub section
(5) of section 32, Evidence Act.
On behalf of the appellant it has been argued that for a declaratory decree in respect of an alienation made by a Hindu widow or other limited heir, the right to sue rests in the first instance with the next reversioner and the reversioner next after him is not entitled to sue except in some special circumstances 832 and therefore the question as to who the next reversioner was arose in the suit of 1917; and exhibit I did raise a dispute as to who the last male owner was Lokenath or Satyanand and also showed that there was a dispute if the plaintiffs of that suit were entitled to the property in dispute there.
The existence of such a dispute, it has been argued, affected the statements in exhibit I and what Satyabadi said therein were not " the natural effusions of a party who must know the truth and who speaks upon an occasion when his mind stands in an even position without any temptation to exceed or fall short of the truth " (as per Lord Chancellor Eldon in Whitelocke vs Baker) (1).
Learned counsel has also relied on the decision in Naraini Kuar vs Chandi Din (2) where it was held that section 32(5) did not apply to statements made by interested parties in denial, in the course of litigation, of pedigrees set up by their opponents.
We do not think that in Suit No. 31 of 1917 any question as to the relationship of Lokenath with Ahalya, Brindabati and Malabati arose at all.
It is to be remembered that even according to the pedigree set up by the appellant one of the plaintiffs is a son of Ahalya and two others are sons of Malabati.
What is now in dispute is whether Ahalya and Malabati were daughters of Lokenath Parichha.
That is a question which did Dot at all arise for consideration in Suit No. 31 of 1917 ; nor did it arise in the proceedings which the application of Satyabadi (exhibit 1) gave rise to.
Prima facie, there is nothing to show that a dispute as to the relationship of Lokenath with Ahalya and Malabati arose at any stage prior to or in the course of the proceedings which arose out of exhibit I ; that would be sufficient to discharge the onus of proving that the statements in exhibit 1 were ante litem motam.
Natabar, one of the plaintiffs in the suit of 1917, who might have given evidence of any such dispute if it existed, said nothing about it.
We have referred to the circumstances in which exhibit I was filed and disposed of.
It is true that the order of the learned Subordinate Judge rejecting the petition exhibit 1 is somewhat cryptic and it does not show what objection the (7) (1807) 13 ves.
510, 514.
(8) All. 467. 833 plaintiff of that suit took and on what ground the learned Subordinate Judge rejected the petition.
If, however, the various orders made by the learned Subordinate Judge, particularly the orders dated November 2, 1917, and November 27, 1917, to which we have earlier made reference are examined, it seems clear to us that the learned Subordinate Judge was proceeding on the footing that in a suit of that nature it was not necessary to make all the reversioners parties, because the reversioners who brought the suit represented the entire body of reversioners.
From the judgment passed in the suit (exhibit Cl) it does not appear that the question as to who the next reversioners were was at all gone into.
That may be due to the circumstance, pointed out by the High Court, that Purushottam, uncle of Janardan and Natwar, was then alive.
He was admittedly then the nearest reversioner, but as he did not join as a plaintiff he was made a proforma defendant.
The nearest reversioner having been added as a party defendant in the suit of 1917, no question of title arose in that suit as between the reversioners inter se.
Such a question of title was wholly foreign to the nature of that suit.
Nor, do we find anything in the judgment, exhibit Cl, to show that it was ever suggested in that suit that the last male owner was not Satyanand.
The sons of the half sister of Satyanand were not preferential heirs at the time and we agree with the learned Judges of the High Court that no question arose or could have arisen in that suit as to the. relation between Lokenath on one side and Ahalya and Malabati on the other.
That being the position, the statements as to pedigree con tained in exhibit 1 were made before the precise question in dispute in the present litigation had arisen.
It has next been argued by learned counsel for the appellant that in admitting exhibit I under section 32(5) the courts below assumed that Satyabadi had special means of knowledge as to the relation between Lokenath and his alleged daughters Ahalya and Malabati.
The argument has been that unless it is assumed that Satyabadi is the grand son of Lokenath, he can have 105 834 relationship.
Learned counsel for the appellant has referred us to the decision in Subbiah Mudaliar vs Gopala Mudaliar (1) where it was held that for a statement in a former suit to be admissible under section 32(5) the fact that the person who made the statement had special means of knowledge must be shown by some independent evidence, otherwise it would be arguing in a circle to hold that the document itself proves the relation and therefore shows special means of knowledge.
In Hitchins vs Eardley (2) the question of the legitimacy of the declarant was in issue and the same question was necessary to be proved in order to admit his declarations.
That was a jurv case and the ques tion relating to the admissibility of evidence being a question of law had to be determined by the Judge; but the same question being the principal question for decision in the case had to be determined by the jury at the conclusion of the trial.
In the difficulty thus presented, prima facie evidence only was required at the time of admission.
We do not think that any such difficulty presents itself in the case under our consideration.
As to Satyabadi 's special means of knowledge, we have in this case the evidence of Janardan.
Misra and Dharanidhar Misra, which evidence independently shows that Satyabadi was the grand son of Lokenath, being the son of his daughter, Ahalya.
It may be stated here also that it was admitted that Ahalya was Satyabadi 's mother, and that would show that Satyabadi had special means of knowledge as to who his mother 's father was.
Therefore, we agree with the High Court that exhibit I fulfilled all the conditions of section 32(5), Evidence Act and was admissible in evidence.
We have already said that it is not for us to consider what weight should be given to the oral evidence of Janardan and Dharanidhar or to the statements in exhibit 1.
The courts below have considered that evidence and have assessed it.
We do not think that we shall be justified in going behind that assessment.
Learned counsel for the appellant wished also to (1) A.I.R. 1936 Mad. 808.
(2) (1871) L.R. 2 P. & D. 248. 835 argue the point that the Privy Council decision in Mst.
Sahodra 's case (1) was wrong and that a halfsister was not entitled to get the benefit of the amending Act of 1929.
The Privy Council decision was given at a time when it was binding on the courts in India and it settled differences of opinion which then existed in the different High Courts.
That decision was taken as settling the law on the subject and on the faith of that decision a half sister has been held in subsequent cases to be entitled to the benefit of the Amending Act.
The High Court dealt with the case in 1951 after the Constitution had come into force and the Privy Council jurisdiction in Indian appeals had ceased.
No point was taken on behalf of the appellant in the High Court that the Privy Council decision should be reopened and the question of the right of a half sister re examined.
In these circumstances, we did not allow learned counsel for the appellant to argue the correctness or otherwise of the Privy Council decision.
The contentions as to the admissibility of exhibit 1 and the oral evidence of Janardan Misra and Dharanidhar Misra being devoid of merit, the appeal fails.
We accordingly dismiss the appeal with costs in favour of the contesting respondents.
Appeal dismissed.
(1) (1942) L.R. 69 I.A. 145.

summary/full:
On the death of H, who as the mother of the last male owner had succeeded to the estate, the respondents claimed the estate and brought a suit for its recovery on the strength of the pedigree which they set up that they were the sons of the halfsisters of the last male owner and therefore came before the agnates.
The suit was contested by some of the agnates, of whom the appellant was one, who challenged the correctness of the pedigree, and maintained that the respondents ' mothers were not the half sisters of the last male owner.
The trial court agreed with the respondents ' case and decreed the suit and this was confirmed by the High Court.
The High Court relied on exhibit 1, a petition dated November 2, 1917, which S, one of the brothers of the third plaintiff, on his own behalf and on behalf of his brothers had filed in Suit NO. 31 Of 19I7 which was a suit instituted by some of the agnates of H 's husband questioning the alienations made by H. In the petition,, S alleged that the applicants were the legal claimants to the properties in the suit and prayed to be added as co defendants to the suit.
The petition contained a pedigree which supported the pedigree set up 815 by the respondents, and the High Court held that exhibit I was admissible under section 32(5) of the Indian Evidence Act.
The oral evidence of P.W. 2 and P.W. 4 supported the respondents ' case as to the pedigree set up by them and the High Court held that their evidence was admissible under section 50 Of the Indian Evidence Act.
On appeal to the Supreme Court, it was contended for the appellant (1) that exhibit I was not admissible under section 32(5) Of the Indian Evidence Act because (a) the statement therein was a joint statement of three persons of whom one alone was dead, and (b) it was not made before disputes had arisen ; and (2) that the testimony of P.W. 2 and P.W. 4 did not fall within the purview Of section 50 Of the Indian Evidence Act and that the High Court erred in admitting and accepting such evidence.
Held: (1) that section 32(5) Of the Indian Evidence Act was applicable to the statements as to pedigree in exhibit I because : (a) they were really made by S for self and on behalf of his brothers, and that, in any case, they were as much statements of S as of the other two brothers who are alive.
Chandra Nath Roy vs Nilamadhab Bhattacharjee, (1898) I.L.R. , approved.
(b) they were made before the precise question in dispute in the present litigation had arisen, as the respondents were not preferential heirs at the time of the previous suit and no question arose or could have arisen then as to the relationship between them and the last male owner.
(2) that the evidence of P.W. 2 and P.W. 4 that they were present at the marriage of the mother of plaintiffs 1 and 2 as also at the Upanayanam ceremonies of plaintiffs 1 and 2, showed the opinion of those witnesses as to the relationship as expressed by their conduct, and was admissible under section 50 Of the Indian Evidence Act.
The word " opinion " in section 50 Of the Indian Evidence Act means something more than mere retailing of gossip or hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question.
Such belief or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion.
Under section 50 such conduct or outward behaviour as evidence of the opinion held is relevent and may be proved.
Chander Lal Agarwala vs Khalilay Rahman, I.L.R. , approved.
Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under section 50 or by some other person acquainted with the facts which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of section 60 of the Indian Evidence Act.
816 The observations 'of Hutchins, J., in Queen Empress vs Subbarayan, Mad. 9, that section 50 of the Indian Evidence Act seems to imply that a person whose opinion is a relevant fact cannot be called to state his own opinion as expressed by his conduct and that his conduct may be proved by others only when he is dead or cannot be called, disapproved.