Wort, J.:— This appeal raises a question of the admissibility of certain evidence at the appellate stage of the proceedings. The plaintiffs in Suit no. 2 of 1923 sought a declaration that they were entitled to a certain land as sole reversioners after the death of one Musammat Pati as the heir of Harihar Sukul and also sought possession of the land with mesne profits and other reliefs. The defendants' case was that the plaintiffs were not the reversioners, but they (the defendants) themselves were and that the plaintiffs were therefore not, entitled to the reliefs claimed before the learned Subordinate Judge.
The suit in the Court of the learned Subordinate Judge of Chapra was decreed, but on appeal the learned District Judge of Saran allowed the appeal and set aside the decree of the learned Subordinate Judge. Now this depended upon a question of pedigree. The case for the appellants in the trial Court was that they were the descendants of one Harihar Sukul who died some fifty years ago; that Harihar Sukul had two daughters, one Musammat Batka and another Musammat Pati and that Musammat Batka was married to one Ramphal Pande. Now the defendants on the other hand put forward an entirely different pedigree and the question which emerges from the evidence of the plaintiffs and the defendants is whether Ramphal Pande, whom I have just mentioned, was in fact the husband of Musammat Batka or whether he married some other person whose name I will presently mention.
Now a part of the plaintiffs' case was that on the marriage of Ramphal Pande to Musammat Batka he came and lived at the house of Harihar Sukul and that Musammat Pati who married one Harnarayan Misra also lived with her husband in that house after the death of Harihar Sukul; that on the death of Harihar Sukul, Musammat Batka and Musammat Pati became the sole heirs of their father's estate; but that Musammat Batka having predeceased Musammat Pati and that Musammat Pati being poor without property, the whole estate was left to her. Now on the other hand the defendants put forward a pedigree which was diametrically opposed to that of the plaintiffs. That stated that Ramphal Pande was not the husband of Musammat Batka, but that he married one Musammat Jiacha and that Batka if not an imaginary person, in any event had no connection or relation to the family and that Ramphal who had married Musammat Jiacha was the son of one Musammat Sheoraji who was the sister of Musammat Simrikhia who in turn was the wife of Harihar Sukul. Therefore it appears as the learned District Judge points out that,, if their contention was right, Ramphal was a cousin of Musammat Pati and not her brother-in-law and, upon that issue the case depended.
As I have stated the Court, of the learned Subordinate Judge decided in favour of the pedigree which was put forward by the plaintiffs; but on appeal to the learned District Judge he decided that Ramphal in fact was a cousin of Musammat Pati and he decided that question upon certain evidence which he admitted at that stage and which it appears was rejected before the learned Subordinate Judge. The deposition which the learned District Judge admitted was made by Musammat Pati in Suit no. 517 of 1915 in which the defendants in the present case had sued Musammat Pati for a declaration that they were the reversionary heirs of Harihar and that, a, certain deed of gift made by Musammat Pati was invalid and not binding upon them; and in that action they succeeded. In that action Musammat Pati stated that Ramphal was her cousin.
Now the first point taken by the learned Counsel for the appellants is that under no circumstances was this evidence admissible under Order XLI, rule 27, of the rules made under the Code of Civil Procedure. He urged (and I think rightly) that it did not come under the sub-clause (b) of sub-section (1) of rule 27, as there clearly was no lacuna in the evidence before the learned Subordinate Judge. In that contention, as I have said, I think he was right. But he also urged that it did not come under sub-clause (a) of sub-section (1) of the rule, that is to say,
“the Court from, whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted”.
He urges that in this case it is not disclosed nor is it a fact that the evidence was rejected properly or improperly before the learned Subordinate Judge. But, I think, without going into details, it is quite clear from, the record of the learned Subordinate Judge that the evidence for some reason was rejected and it has been stated by the learned Vakil for the respondents in this case that one of the grounds in this appeal before the learned District Judge was that evidence had been wrongly rejected. Now if that be the true facts of the case, I think quite clearly the evidence was admissible under Order XLI, rule 27, sub-clause (a).
But the matter did not end there, because the learned Counsel urged that in any event the evidence was not, admissible and, therefore, on that ground alone, the learned District Judge had no right to admit the evidence. Now that question depends upon the Evidence Act. The learned Counsel urged that it neither came under section 32 nor under section 33 of the Indian Evidence Act. He stated that it, could not come under section 33, because one of the conditions of admitting statements made in previous trials under that section was that the party against which the statement was made or used had the opportunity to cross-examine the deponent; and in that I think he is right. In my opinion it does not come under section 33 of the Act; but he also contends that it does not come under section 32 sub-section (5). Sub-section (5) provides that,
“When the statement relates to the existence of any relationship by blood marriage or adoption between persona us to whose relationship 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.”
Now the first point raised is that in this proceeding of 1915, in which Musammat Pati was a defendant, the same issue substantially that is being raised in this case which is now before this Court, was the issue in that case and it cannot be said that the statement was made before the question in dispute was raised. Now, in my opinion, that contention cannot be supported. It has been said (and if I may respectfully say so, rightly said) that section 32 of the Indian Evidence Act is much wider than the Common Law Rule in England. The Common Law Rule in England is to the effect substantially of the wording of sub-section (5) regarding declarations in matters of reltaionship, but one of the conditions necessary to allow the use of a declaration to that effect is that, the declaration must have been made in a case in which the issue was the same as in the case in which it is sought to be used. Now it is pointed out by the Calcutta High Court by Petheram, C.J, in the case of Dharimull v. Ramchunder Ghose that (as I have stated) the English rule is much narrower than the Indian rule and his judgment in that case was to this effect on this point:—“I think that on this point the law in India under the Evidence Act is different from the law of England, and that the effect of the section is to make a statement, made by such a person, relating to the existence of such relationship, admissible to prove the facts contained in the statement, on any issue.” Now I need say no more than to state that if the Indian rule is wider and of greater application than the English rule, the greater must include the less, and consequently the contention that is made by the learned Counsel for the appellants cannot prevail. Now in my opinion therefore it is quite clear that the evidence in this case which was received by the learned District Judge and upon which it appears he decided against the plaintiffs in the case was clearly admissible; and, that being the only question of law which is before us, in my view, the appeal must be dismissed with costs; and as this decision governs suit no. 1 of 1923, the appeal arising from that suit must also be dismissed.
Ross, J.:— I agree.
Appeal dismissed.