The controversy, in this Regular Second Appeal, pertains to a question "whether Mst. Jiwai was daughter of Kalu and was entitled to inherit 1/2 of the property in dispute left by that Kalu".
2. The material facts to be noted are: that Kalu was the owner of property in dispute (comprehensively described in the plaint). He died in year 1962. Pursuant to his demise, mutation of inheritance in respect of property in dispute was attested in favour of Mst. Jiwai to the extent of 1/2 and the other half in favour of Muhammad, Rehman and Shahu. Feeling aggrieved, Rehman and Shahu filed appeal which was dismissed by the concerned Collector. In this factual background, Rehman and Shahu/respondents sued for seeking declaration to the effect that Kalu/propositus had died issuless; that he had not married in his lifetime; that Mst. Jiwai was not his daughter; that the respondents were entitled to inherit the property in dispute left by Kalu. The suit was contested.
Mst. Jiwai defendant/the predecessor-in-interest of appellant, in her written statement, pleaded that she was the daughter of Kalu and had been correctly given 1/2 share in the legal estate left by Kalu/her father. Necessary issues were framed. Upon the consideration of material produced by the parties, the learned first Court found that evidence produced by Mst. Jiwai was not sufficient in quality and quantity to prove that she was the daughter of Kalu. On this conclusion, the learned fist Court decreed the suit. On appeal, the learned first Court of appeal agreed with the-conclusions arrived at by the first Court and dismissed the appeal. Against these decisions, the appellant has come to this Court by invoking the jurisdiction of this Court under section 100, C.P.C.
3. Learned counsel for the appellant, in support of this appeal, contended that the two forums below have not assessed the evidence of Wali, D.W.1, Sardara, D.W.2 and Mst. Jiwai, D.W. 3, According to the learned counsel, D.W. 1 had stated that he was a member of "Baraat party" of Phatana when he was married with Mst. Jiwai; that Kalu was her father and used to come to village Salina and lived with her. According to the learned counsel, this evidence was relevant within the ambit of Section 50 of the Evidence Act/Article 64 of the Qanun-e-Shahadat, 1984. D.W.2, Sardara and D.W. 3, Mst. Jiwai gave the evidence to the same effect. On the strength of the above stated evidence, it was represented that Mst. Jiwai had proved that she was the daughter of Kalu".
4. On the contrary, learned counsel for respondents, supported the impugned decisions.
5. I have heard the learned counsel for the parties at a considerable length and gone through the record of the case with their assistance. As far as the entitlement of respondents is concerned, it is not subject to any dispute. It is the case of both the parties that respondents are sons of Raja who was the real brother of Makhan who was father of Kalu/deceased/propositus. It is unnecessary to dilate upon the rights of the respondents as their credentials are not in dispute. I now turn to the question as to whether Mst. Jiwai had established, by cogent evidence, that she was daughter of Kalu. The answer to this question depends upon evidential value of the testimony of Wali D.W.1 Sardara D.W.2, Mst. Jiwai D.W.3 and extract from the Register of Birth Certificate, Exh. D-1, D.W.1 had stated that he was the member of the Baraat Party when Mst. Rajo was married to Kalu. To the same strain is the testimony of Sardara D.W.2. The main line of argument on behalf of the appellants is that these witnesses have furnished conduct evidence within the ambit of Section 50 of the Evidence Act/Article 64 of the Qanun-e-Shahadat and the Court was bound to accept that testimony. The section 50 of the Evidence Act/Article 64 of the Qanun-e-Shahadat reads as under:-- "When the Court has to form an opinion as to the relationship of one persons 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: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under Divorce Act, 1869 (IV of 1869), or in presentation under Section 494 or 496 of the Pakistan Penal Code (Act XLV of 1860):"
This provision of law deals with the admission of class of circumstantial evidence when the Court had to form an opinion as to relationship of one person to another. The nature of Section 50 of the Evidence Act came into consideration as back as in 1943 by Division Bench of Calcutta High Court in Chandu Lal v. Bibi Khatemonessa (AIR (30) 1943 Calcutta 76). While dealing with the parameters of `conduct evidence' it was held:-- "Section 50, Evidence Act, is the only provision which to a certain extent allows evidence somewhat akin to `reputation evidence'.
Opinion means judgment or belief--what one thinks on a particular question a belief a conviction.
So, when a Court has to judge as to the relationship of one person to another, it is permitted to take into consideration the `belief' or judgment" of a person provided the requirements of this Section are satisfied. The `belief' is indeed a state of mind and can be evidenced by (1) external circumstances, calculated by their presence or occurrence to bring about the state of mind in question; and consequently showing the probability that the state of mind subsequently ensued;
(2) conduct or behaviour illustrating and pointing back to the state of mind producing it; (3) a prior or subsequent state of mind indicating, within certain limits, its existence at the time in question.
The section allows only `conduct' as evidence of the opinion, a conduct, which is the expression, in outward behaviour, of the belief entertained. The conduct must be the result, the opinion being the moving cause., The results are the traces by which we may infer the moving cause."
We are to infer from an observed effect, conduct, the probable cause, specific mental state.
Conduct may reveal the belief of the actor in so far as the specific act is of tenor which cannot well be supposed to have been willed without the inner existence of that belief. It should be remembered that in the present case the specific mental state---the opinion--the belief is not of itself material to the issue as a probandum. It is of service only evidentially, as forming a step of inference to some other fact (viz., the relationship) which forms the ultimate object of the trial.
The section makes only `opinion' as relevant and enjoins how this opinion itself is to be proved. 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 `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 suprosed to have been willed without the inner existence of the `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 to the factum probandum--as to the relationship in question. The state of the English law on the point at the time when the Indian Evidence Act was enacted in 1872 will appear from the following summary of the law to be found in the then edition of Taylor on Evidence, section 584 of which runs as follows: Again, family conduct, such as the tacit recognition of relationship, and the distribution and devolution of property is frequently received as evidence from which the opinion and belief of the family may be inferred, and as resting ultimately on the same basis as evidence of family tradition.
For, since the principal question in pedigree cases turns on the parentage or descent of an individual, it is obviously material, in order to resolve this question, to ascertain how he was treated and acknowledge by those who sustained towards him any relations of blood or affinity. Thus, in the Berkely Peerage case, Sir James Mansfield remarked, that "if the father is proved to have brought up the party as his legitimate son, this amounts to a daily assertion that the son is legitimate. So the concealment of the birth of a child from the husband- the subsequent treatment of such child by the person who at the time of its conception was living in a state of adultery with the mother and the fact that the child and its descendants assumed the name of the adulaterer, and had never been recognized in the family as the legitimate offspring of the husband are circumstances that will go far to rebut the presumption of legitimacy, which the law raises in favour of the issue of a married woman. Again, if the question be whether a person from whom the claimant traces his descent, was the son of a particular testator, the fact that all the members of the family appeared to have been mentioned in the will, but that no notice is taken of such person, is strong evidence to show either that he was not the son or at least, that he had died without issue before the date of the will; and if the object to be proved that a man left no children, the production of his will in which no notice is taken of his family and by which his property is bequeathed to strangers or collateral relations, is cogent evidence of his having died childless.
This might have been the material source of the Indian section 50. But it seems that the language used in the section makes the Indian law much more restricted. The section opens with the words: 'then the Court has to form an opinion as to the relationship'. These words would certainly mean `as to the existence or the non-existence of the relationship'. But the opinion that is made relevant by the section is `the opinion .... as to the existence of such relationship' and not `the opinion as to such relationship'. This may mean that `the opinion as to the non-existence of such relationship' will not be admissible in evidence at all. A comparison of the language of this section with those of sections 47, 48 and 49 also seems to lend some support to this view. But in view of the facts of the present case, it is not necessary for us to pursue this matter further.
The persons whose opinion is made evidence by the section must be shown to have `special means of knowledge on the subject".
So, evidence under this section can come in only when the following requirements are fulfilled: (1)
The person whose opinion is sought to be given in evidence must be proved to have special means of knowledge on the subject (2) (a) The opinion alone is evidence; (b) the opinion as expressed by conduct only is evidence; or in other wards, (i) conduct only can be given in evidence; (ii) from the conduct given in evidence the Court is to see whether it is the result of any opinion held by the person. (3) The opinion which is relevant must be the one as to the existence of the relationship; (i) as has been pointed out above, the negative opinion or the opinion as to the non-existence of the relationship may not be relevant under this section. But the question does not fall to be decided in the present case. The defendants, no doubt, have offered in evidence conduct of certain near relations as expressive of this negative opinion. In our opinion, however, the offered items do not establish any such opinion at all and consequently it becomes quite unnecessary for us to consider whether a negative opinion is relevant under section 50 of Evidence Act'.
This statement of law was followed in Remadhar v. Janki AIR 1956 Patna 49, Ghulam Muhammad and another v. Allah Yar and others (PLD 1065 Lah. 482), and Anwar and others v. Sher Bahadur and others (1990 CLC 274).
6. Ratio deducible from the foregoing examination is as follows:
(i) That section 50 of Evidence Act/Article 64 of Qanun-e-Shahadat, 1984, pertains to admission of circumstantial evidence known as `conduct evidence.' This is the evidence of what the witness think, believe or infer in respect of facts in dispute, as distinguished from his personal knowledge of facts themselves. It is an exception to the principle that direct evidence is best evidence.
(ii) This section makes only opinion was relevant and prescribes how this opinion is to be proved. It is only `opinion' on the basis of conduct which has been made relevant. In short it is the conduct which becomes as the foundation of belief/opinion/judgment of a witness.
The opinion evidence of that witness is relevant who is possessed of special means of knowledge.
The member of the families are ordinarily presumed to have special means of knowledge with respect to relationship of member of their family. An outsider also, if he can show that, he too possesses special source of knowledge, can also give ,413 `conduct evidence'. The object land purpose of this evidence is to establish the relationship of one reason with another."
7. Applying these principle to the facts and circumstances of he case it is evident that neither wali D.W.I nor sardara D.W2 have given an inch of evidence to demonstrate that they were possessed to special source of information. Whatever was stated by them was that they were the participants in the marriage of Mst Jiwai with phantana. Even on this circumstances their evidences shaky discrepant and does not inspire confidence D.W1 stated that Kalu was the son of Makhan who had no other brother. He even stated that he did not know that Mst. Rajo might have married Sahana.
Even on other material circumstances he was in total oblivion. D.W.2 sardara also did not fair better. The learned courts below were eminently correct in not placing reliance upon testimony of the abovementioned witnesses. Mst. Jawai when entered the witness-box miserably failed to give consistence of her claim. Her testimony is mutually destructive without any tenable foundation and was rightly ignored. I am now only left with the extract from the birth register. This seems to be a stranger document. It does not given the name of daughter of Kalu. It does not describe the caste and religion of Kalu. It does not in any manner furnish a satisfactory information in connection with the relationship of Mst Jiwai with Kalu. From the above analysis I have no difficulty I coming to the conclusions that the concurrent finding of fact on the question of relationship of Mst Jawai with Kalu reached by the two courts below are eminently correct just and in consonance with the evidence on record. These neither suffer firm misreading of evidence nor non-reading of evidence nor are in defiance of any express provisions of law calling for interference under section 100 C,P,C..
8. As a result of above discussion this regular second appeal is found to be wholly without any merit and is according dismissed. The appellant shall bear thee cost of proceedings throughout.