Supreme Court: Golden principles for appreciation of evidence of Genealogies

 The principles governing such cases may be summarised thus:

(1) Genealogies admitted or proved to be old and relied on in previous cases are doubtless relevant and in some cases may even be conclusive of the facts proved but there are several considerations which must be kept in mind by the courts before accepting or relying on the genealogies:

(a) Source of the genealogy and its dependability.

(b) Admissibility of the genealogy under the Evidence Act.

(c) A proper use of the said genealogies in decisions or judgments on which reliance is placed.

(d) Age of genealogies.

(e) Litigations where such genealogies have been accepted or rejected.

(2) On the question of admissibility the following tests must be adopted:

(a) The genealogies of the families concerned must fall within the four-corners of Section 32(5) or Section 13 of the Evidence Act.

(b) They must not be hit by the doctrine of post litem motam.

(c) The genealogies or the claim cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible.

(d) Where genealogy is proved by oral evidence, the said evidence must clearly show special means of know ledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved. {Para 19}

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 494-496 of 1975

Decided On: 20.04.1983

 State of Bihar  Vs. Radha Krishna Singh and Ors.

Hon'ble Judges/Coram:

A. Vardarajan, S. Murtaza Fazal Ali and V. Balakrishna Eradi, JJ.

Citation: 1983 AIR 684, 1983 SCR (2) 808,MANU/SC/0303/1983

Print Page

Whether plaintiff has proved his title if defendant has failed to prove his title?

As pointed out by the Apex Court in its decision reported in Brahma Nand v. Mathra Puri, MANU/SC/0295/1964 : A.I.R. 1965 SC 1506, the plaintiff has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant has no title to the property. Applying the above proposition of law, as pointed out by the Apex Court, I am of the firm view that the plaintiff has not established his case, consequently the judgment and decree of the courts below are erroneous and liable to be set aside."
5(af). In other words, aforesaid case law is for the proposition that plaintiff has to succeed or fail on the title he establishes and plaintiff cannot succeed by saying that defendant has no title to the property. To put it in terms of a generic legal principle, plaintiff has to discharge his burden of proof and cannot succeed by picking holes in the defence of defendant.

5(ag). In the instant case, from the narrative and discussion supra, it will be clear that plaintiffs who claim title to the suit property by succession have not been able to establish that Palani Kudumban predeceased Thavasi. To be noted, Palani Kudumban predeceased Thavasi and Thavasi inherited the entire suit property is pivotal and non negotiable for plaintiffs to establish their title. In other words, it is the sheet anchor and bedrock of plaintiffs' case.

5(ah). Having failed in discharging this burden of proof, attempt on the part of plaintiffs to say that it is unlikely that Ayyakutty could have become sole and absolute owner of suit property, it is unlikely that Ex. A.3 would have been executed jointly by two wives of Thavasi and wife of Palani Kudumban in 1947 if Palani Kudumban had predeceased Thavasi are all clearly attempts to pick holes in the case of defendant. Obviously, this is impermissible and plaintiffs cannot succeed on such basis. To be noted, it is not only a mere case of picking holes in the defence of defendant, it is a case of casting a cloud on the defence by making several presumptions and assumptions which are all in the realm of surmises and conjectures.

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)

S.A. No. 871 of 2002

Decided On: 18.04.2018

 Chinnan  Vs. Sangan and Ors.

Hon'ble Judges/Coram:
M. Sundar, J.

Citation: AIR 2018(NOC) 904 Mad

Print Page

Leading judgment of Supreme court on use of genealogy in litigation

After a brief narration of the facts, mentioned above, before going to the oral, documentary and circumstantial evidence, it may be necessary to state the well established principles in the light of which we have to decide the conflicting claims of the parties. It appears that the plaint genealogy is the very fabric and foundation of the edifice on which is built the plaintiff's case. This is the starting point of the case of the plaintiff which has been hotly contested by the appellant. In such cases, as there is a tendency on the part of an interested person or a party in order to grab, establish or prove an alleged claim, to concoct, fabricate or procure false genealogy to suit their ends, the courts in relying on the genealogy put forward must guard themselves against falling into the trap laid by a series of documents or a labyrinth of seemingly old genealogies to support their rival claims.

19. The principles governing such cases may be summarised thus:

(1) Genealogies admitted or proved to be old and relied on in previous cases are doubtless relevant and in some cases may even be conclusive of the facts proved but there are several considerations which must be kept in mind by the courts before accepting or relying on the genealogies:

(a) Source of the genealogy and its dependability.

(b) Admissibility of the genealogy under the Evidence Act.

(c) A proper use of the said genealogies in decisions or judgments on which reliance is placed.

(d) Age of genealogies.

(e) Litigations where such genealogies have been accepted or rejected.

(2) On the question of admissibility the following tests must be adopted:

(a) The genealogies of the families concerned must fall within the four-corners of Section 32(5) or Section 13 of the Evidence Act.

(b) They must not be hit by the doctrine of post litem motam.

(c) The genealogies or the claim cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible.

(d) Where genealogy is proved by oral evidence, the said evidence must clearly show special means of know ledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 494-496 of 1975

Decided On: 20.04.1983

State of Bihar Vs. Radha Krishna Singh and Ors.

Print Page

Leading Supreme Court judgment on admissibility of hearsay evidence

The following is the evidence of which the Courts below have acted. First, there is the 5th plaintiff Khantar Jha (P.W. 6). He proves the entire genealogy. It is true he has not got personal knowledge of every step in the sense that he knew each one of the persons named; that would be impossible as many died before he was born. But personal knowledge is not necessary in these cases.

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 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.

11. However, the lower Courts have not rested their decision solely on the 5th plaintiffs testimony. They have used certain Panjis as corroboration and the question is, are they admissible in evidence?

The attack made on them is that the 5th plaintiff admits as P.W. 6 that it was he who dictated the genealogy to Nirsoo Jha (P.W. 29) and to another Panjikar, Raghunath Jha (P.W. 40) after the dispute arose. He says he told Nirsoo about five years before he was speaking (that is to say, in or about the year 1939) and Raghunath eight to ten years before (that is, in 1934 or 1936). This was admittedly after the dispute, so it was said that the entries are inadmissible in evidence.

12. These Panjis are maintained by Panjikars who are professional genealogists. They systematically maintain pedigree tables in the community of Naithal Brahmins. They go from place to place and periodically ascertain the genealogies of their clients and enter them in Panjis (palm leaf manuscripts of genealogy) and add to them such fresh additions as occur in the family from time to time. They are considered important in this community because questions of marriage (who may marry whom) and relationship and caste turn on them. Statements about pedigree are not therefore lightly made in such cases.

The weight to be attached to them may, in a given case, be nil; on the other hand, they may be regarded as important because a man in such a position would ordinarily hesitate before giving a false pedigree as so many unforeseen consequences of importance to him and his family may turn on it. But the question of weight is for the Courts of fact to determine; we are only concerned with the admissibility.
IN THE SUPREME COURT OF INDIA

Civil Appeals Nos. 34 and 35 of 1953

Decided On: 21.04.1954

Sitaji  Vs. Bijendra Narain Choudhary and Ors.

Hon'ble Judges/Coram:
M.C. Mahajan, C.J., Vivian Bose and Ghulam Hasan, JJ.

Citation:AIR 1954 SC 601
Vivian Bose, J.

Print Page