MANU/PR/0049/1927

Equivalent/Neutral Citation: AIR1927PC 230, 1927(46)C LJ272, 32C WN119, 105Ind. C as.220, (1927)53MLJ392, 1927 MWN(C ivil) 778

BEFORE THE PRIVY COUNCIL

Decided On: 19.07.1927
Appellants: Sardar Gurbakhsh Singh Vs. Respondent: Gurdial Singh and Ors.
Hon'ble Judges/Coram:
Viscount Dunedin, Shaw, Sinha and Johan Wallis, JJ.
Case Note:
Family - Succession to an estate - High Court reversed judgment and decree of
subordinate Judge holding that posthumous son was not entitled for
succession - Hence, this Appeal - Whether, a posthumous son ever was born
to younger wife of deceased - Held, as per local law son in household could
succeeded to properties but that, failing a son, and there being only a
daughter, estate would fall to a collateral male relative - On other hand, in
case of birth of posthumous son he could, of course, succeed to an estate -
However, younger widow of deceased who claimed to have a posthumous
child did not appeared accompanied with boy to which she maintained she
had given birth in previous October which established that she was
purposefully keeping out from death of her husband, when she disappeared,
but from October, when her alleged son was born - Further, her non-
appearance as a witness, though being present in Court, could be strongest
possible circumstance going to discredit truth, of her case - Moreover, non
disclosure of actual fact as to her condition shortly after her husband's death,
her disappearance into a foreign state could established that her story was
not true - Since, she had repeated what she had already said omits entire
force of consideration as to cross-examination - Therefore, judgment of
Subordinate Judge was restored - Appeal allowed.
Ratio Decidendi
"Where primary witness of case is acting with suspicion, Judgment recorded
on such basis shall not be valid."
JUDGMENT
Shaw, J.
1 . This is an appeal against a judgment and decree dated the 9th April 1924, of the
High Court of Judicature at Lahore, which reversed the judgment and decree of the 1st
December 1919, of the Subordinate Judge at Ludhiana.
2. Sardar Jawala Singh was a jaghirdar possessed of certain properties in the Ludhiana
and Ferozepore Districts of the Punjab. He lived in the village of Bbikki Khatra, in the
Ludhiana District.
3. Jawala died on the 19th August 1915, leaving two widows. The elder, Harnam Kuar,
was childess. The younger, Bhagwan Kuar, had borne to him a daughter, who at the
date of his death was ten years old. These constituted the household.

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4 . It is admitted that according to the law in operation in that part of the Punjab, if
there had been a son in the household, he would have succeeded to the properties; but
that, failing a son, and there being only a daughter, the estate would fall to a collateral
male relative. That relative was a stepbrother named Gurbakhsh Singh, who is the
present appellant. If, however, a posthumous son was born, then that posthumous son
would, of course, succeed, the household would be kept together, and Gurbakhsh, the
step-brother, would have no rights.
5. The story of this litigation, and of various other proceedings, partly legal and partly
administrative, which preceded it, hangs upon the question whether such a posthumous
son ever was born. It appears clear that a possible attempt to procure a spurious son
was in the minds of all parties from the moment of Jawala's death, or even before that.
He died on the 19th August 1915.
6. The appellant mintains that no such posthumous son "was born. Almost immediately
after the death he proceeded to raise the question. Simultaneously, or almost
simultaneously, Bhagwan, the younger widow, disappeared.
7. Every day was of importance for the defeat of a plot, if plot there was, and for the
immediate discovery of the truth. There seems to be little doubt that dissatisfaction
arose as to the delay of the patwari of the village in taking action. It is a fact that the
death having occurred on the 19th August, the patwari only entered the fact in his diary
so late as the 29th August.
8. In the mutation register, which purports to be dated the 23rd August 1915, hut which
was only in reality completed on the 29th, there is in the last column the following
entry:
To day, Bachittar Singh, a co-sharer of mauza Attari, stated:
Jowala Singh, a co-sharer and jaghirdar of mauzi Attari, died sonless
on the 19th August 1915. Mats. Harnam Kaur and Bhagwan Kaur his
widows, are entitled to succeed to the property loft by him in equal
shares. A report regarding the death with regard to the jaghir has been
separately submitted to the tahsil. Hence the mutation entry relating to
the khita is submitted.
He also states that Mt. Bhagwan Kaur is pregnant.
Dated the 23rd August 1915.
(Signed) BAOHITTAR SINGH,
Declarant,
9 . There remains in the case very considerable doubt as to when the words, "He
(Baohittar Singh) also states that Mb. Bhagwan Kaur is pregnant," were entered. As will
be shown, Bachittar Singh, the alleged informant, was not examined as a witness.
10. On the 31st August, Gurbakhsh, by a petition to the mutation officer, claimed that
the property was his. By this time the parties were undoubtedly at arm's length.
Gurbakhsh, the step brother, appellant had applied to the Collector; the application has
not been found, but at least by the 14th September an application was lodged which
frankly made the charge of the attempt to procure a spurious son.
In our family there is a Custom that when a member died sonless his collaterals

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 get his jaghir, and his widows are entitled to get maintenance only. They
support 'themselves with the income of the ancestral land. The village Patwari
has colluded with his (deceased's) widow. He made a false and fictitious report
in the mutation register to the effect that Ale. Bhagwan Kaur is pregnant,
whereas she is not at all pregnant. Our rights are prejudiced owing to collusion
with the patwari. Mb. Bhagwan Kuar (she was the second and much the
younger of the two widows) may be got medically examined by a doctor so that
she may not procure a spurious son, If she procured a son some where or is
trying to procure a son, we do not accept him. It is, therefore, prayed that local
enquiry may be got made by a tahsildar and relief granted.
11. This challenge should, as was meant, have brought matters to a head. The request
made was reasonable. The condition of Bhagwan was the critical and conclusive fact in
the case. Without any doubt whatsoever she should have appeared, if her case was
true; her condition of advanced pregnancy would have been plainly enough established
in the course of that enquiry. She did not so appear. The proceedings were delayed. The
Deputy Commissioner, on the 13th October, demanded to know what had become of the
matter.
12. Meantime events ripened, or were alleged by the elder widow to have ripened, by
the alleged birth of a son to Bhagwan in a remote village of an adjoining native state.
13. Gurbakhsh at once took action, and on the 21st October, another application was
made to the Collector, which narrated as follows:
After his death Mt. Bhagwan Kaur, in order to prejudice my rights, gave out, in
consultation with the village patwari, that she was pregnant, whereas she was
not at all pregnant. I filed applications in your Court praying that enquiry may
be got made at the spot or the woman may be got medically examined, but up-
till now no attention has been paid to those applications.
14. Then follows the second stage of the case:
But a short time ago Mt. Harnam Kaur (that is, the elder widow) gave out that a
son was born, nor is it known where was Mt. Bhagwan Kaur, nor yet did she tell
on what date and in which village the son was born. This is all fraud.
1 5 . This is the one side, namely, the stepbrother's allegations. It is, however,
interesting to know what was the admitted attitude of the widows themselves upon the
important subject of the possibility of a spurious son.
16. In the application before the Collector, Mt. Harnum Kaur, the elder widow, made
the following statement on the 20th October, 1915:
The name of my co-wife is Mt. Bhagwan Kuar. Oar husband died about two
months ago,
17. and then there follow these words
About a month after his death, I sent her to my parents house for the reason
that she might, perhaps, give birth to a daughter and might go to her parents
house and secure a spurions son in order to prejudice my rights.
18. This is a curious statement, but in some respects it has obvious importance. It
shows that the departure from the family home was deliberate. Next, the disappearance

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was in the mind of this co-widow connected with the birth or the production of a son.
Further, the elder widow was to manage the affair of the residence of the younger.
19. This deliberate design was followed by the departure of the second widow, who
went oil in the first place to her own parents' house. This was natural and usual : but
she was only there a day or two when she was taken therefrom by a nephew of the first
widow, and immediately thereafter to Patiala, outside British territory and in a native
state. Not content with this, she was again removed by him from Patiala to his own
residence at a place called Lakha Singh-wala, in Nabha, also a native state. This nephew
states that his aunt Harnam wished him to take Bhagwan from Patiala to Lakh a Singh
wala in order to avoid the apprehended change from a girl to a boy.
20. The facts of these changes of residence are undoubted; but their Lordships do not
believe a word of the story as to the object of the journey, or as to the absentee widow
having borne a son,
21. The Board does not go into the details further than to say that it is satisfied with
the interpretation put upon them by the Subordinate Judge. They think it true to say
firstly, that the suggestion of an apprehended change from a girl to a boy is without any
foundation whatsoever. Secondly, the deliberate removal from her home and even from
the home of her own parents to these two different places in a foreign state was
effected with the object of destroying traces of her whereabouts, of making it practically
impassible compulsorily to secure her medical examination, of making it possible to lay
a foundation for the fraud of obtaining a spurious son and of maintaining thereafter that
in this remote place she herself had given birth to it. Their Lordships, in short, agree,
on the whole of that part of the case, with the views of the Subordinate Judge.
22. One or two points, however, may be stated in addition. It was argued that the
statement as to pregnancy attributed to Bachittar Singh was interpolated by the patwari
in the original record of the death of Jawala Singh. The challenge was made before the
proceedings, either before the Collector or in this suit, were instituted, and it is striking
and suspicious that Bachittar Singh, to whom this statement was attributed, was not
called as a witness to clear up the point, or to state upon what information his alleged
statement was made.
23. There may be very considerable doubt as to whether the statements made before
the Collector, which truly did not form a part of the present Us, should have been
admitted in these civil proceedings. The thing, however, was done. As already
mentioned, the appellant took action almost at once to have the truth as to Bhagwan's
condition investigated. She, however, disappeared, and it was practically impossible for
a private litigant to fetch her back, or possibly even to ascertain her whereabouts. The
investigation proceeded in the Collector's tribunal, and on the 12th November the
revenue assistants reported to the Daputy Commissioner that the boy was fictitious.
24. It may be remembered, however, that there being a report circulated that Harnam
was certain that, a son was born, Gurbakhsh instantly took action. By another
application of the 21st October he requested that some high officer might be specially
sent to the spot and a thorough inquiry made so that the true facts might come to light.
The authorities could not use force beyond the British frontier, and in the course of the
further proceedings on the 2nd February 1916 the following order was pronounced by
the presiding officer of the revenue Court:
Mt. Bhagwan Kaut is keeping out of the way and cannot be found. Sardarni
Harnam Kaur be summoned to Ludhiana for the 21st February 1916. Her

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 whereabouts be inquired from Sardar Bahadur Sardar Gajjan Singh and Mr.
Sarah Kishen. They state that they do not know where the Sardarni Sahiba is,
nor did any mukhtar of her come to them again.
25. A last; opportunity was given, but Bhagwan did not appear until the 3rd March,
accompanied by a boy to which she maintained she had given birth in the previous
October.
26. It appears clear to their lordships that she was purposely keeping out of the way,
not only from August 1915, when she disappeared, but from October, when her alleged
son was born. This further delay from October to March, about five months, was also
deliberate. It was for the purpose of preventing the possibility of any medical
examination of her after such a long period throwing light upon the question of the
birth of a child by her in October. The Assistant Collector, however, heard her, and he
was in no way moved by her evidence. "The statement," says he, "of Mt. Bhagwan Kaur
has been taken down. Even after hearing her I see no reason to alter my first view."
2 7 . Further proceedings took place in the revenue Courts, and then this civil suit
followed. As already indicated, their Lordships see no reason to doubt either the great
carefulness of the investigation made by the Subordinate Judge, or the soundness of the
conclusions at which he arrived. The disappearance of Bhagwan, and the manifest
approval of the co-widow, the refusal by her to come to the Court to submit to a
medical examination, or even to remain for a reasonable period in her own old home,
but in preference to go outside the jurisdiction of the Court and into a native state,
would in any view have thrown the greatest doubt upon the story of her having given
birth to a son as alleged; and then the second feature of the case - her continued
absence for a long period after the alleged birth - the whole of this appears to their
Lordships to be but part of a transaction which was simply a nefarious plot.
28. It must be stated that in taking a different view the High Court went very far, as, for
instance, when they say:
We do not find any proof that Bhagwan Kaur did, in fact, shirk examination.
29. Their lordships think it unnecessary to repeat the numerous details of the story,
but, as it involves a general and important question of procedure and practice, they
think it expedient to make the following reference to what, occurred at the trial of this
civil suit. At the Bar of the Board it was admitted by the respondents that she, Bhagwan,
had been present in Court when the evidence was: being taken, and that she did not go
into the witness box, and was not examined as a witness on her own or her alleged
son's behalf.
3 0 . Notice has frequently been taken by this Board of this style of procedure. It
sometimes takes the form of a manceuvre under which counsel does not call his own
client, who is an essential witness, but endeavours to force the other party to call him,
and so suffer the discomfiture of having him treated as his, the other party's own
witness.
31. This is thought to be clever, but it is a bad and degrading practice. Lord Atkinson
dealt with the subject in Lal Kunwar v. Chiranji Lal [1910] 32 All. 104, calling it "a
vicious practice, unworthy of a high-toned or reputable system of advocacy."
32. The present case, however, is a pointed instance of the evils which flow from such
a practice. Bhagwan's case had-been the subject of prolonged investigation in the

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revenue Courts, and had been. pronounced by them a bogus case. She had appeared
and told a story there, and it had not been believed. She was, however, also present in
this civil suit, the issue in which was the legitimacy of the boy that she was putting
forward as the jaghir of the estate. Her non-appearance in answer to the challenge, that
is to say, to disclose the actual fact as to her condition shortly after her husband
Jawala's death, her disappearance into a foreign state, and all the other circumstances
mentioned, had been established. If her story were, notwithstanding all this, a true
story, it was her bounden duty to give evidence in the suit, telling the whole facts in
support of her and her alleged son's case; but she did not. If under advice she did not
do so, that advice was of the worst description, and worthy of the animadversion above
made. But in any view her non-appearance as a witness, she being present in Court,
would be the strongest possible circumstance going to discredit the truth ,of her case.
33. How did the High Court deal with this? They say:
It is true that she has not gone into the witness box, but she made a full
statement before Chaudhri Kesar Ram, and it does not seem likely that her
evidence before the Subordinate Judge would have added materially to what
she had said in the statement.
34. Their lordships disapprove of such reasoning. The true object to be achieved by a
Court of justice can only be furthered with propriety by the testimony of the party who
personally knowing the whole circumstances of the case can dispel the suspicions
attaching to it. The story can then be subjected in all its (particulars to cross-
examination.
35. To say that she would likely have repeated what she had already said omits the
entire force of the consideration as to cross-examination, and their lordships cannot
doubt that if this part of the case had been treated from the point of view consistent
with sound practice, as just stated, the High Court could never have reached the
conclusion come to.
36. Their lordships will humbly advise His Majesty that the appeal should be allowed,
and the judgment of the Subordinate Judge restored with costs here and below.
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