<CITATION> .

(1) These are cross appeals under Section 110-D of the Motor Vehicles Act, 1939 as amended by Act 100 of 1956 (hereinafter called 'the Act)' against the award of compensation given under Section 110-B thereof by <ORG>, Delhi, (hereinafter called 'the <ORG>'). Appeal No. 89-D of 1965 is by the claimants for enhancing the compensation awarded by the <ORG>, while Appeal No. 89-D of 1965 is by the respondents for dismissing the claim for compensation altogether or for reduction of the amount of compensation.

(2) On 13-6-1963 a motor truck belonging to <ORG><ORG>s <NAME> in charge of the driver, <NAME>, ran over and killed one <NAME> on old Rohtak Road, Delhi. The truck was insured against third party risks with <ORG><ORG>s <ORG>. <ORG> <NAME> widow of the deceased <NAME>, and their children applied to the <ORG> under Section 110-D of the Act for award of compensation for the death of <NAME> alleging that it was due to the rash and negligent driving of the motor truck. They said that the monthly income of <NAME> at the time of his death was Rs. 1,200.00 per month. The application was resisted by the truck owners and <ORG>, who denied that the death of <NAME> was caused by the negligence of the driver and alleged that the negligence or contributory negligence of <NAME> himself was the cause of his death. The tribunal found that the death of <NAME> was caused by the negligence of the truck driver. In assessing the amount of compensation, the <ORG> held that the net income of <NAME> at the time of his death was Rs. 750.00 per month. Out of this amount, <NAME> spent about Rs. 275.00 per month on himself and for his personal expenses. After the death of <NAME> his legal representatives derived an income of Rs. 300.00 per month from his business, which has been inherited by the legal representatives. Deducting these amounts from the net income of <NAME> the net loss to the dependents by the death of <NAME> came to Rs. 175.00 per month. <NAME> probably would have lived far another 15 years if he had nto been killed. The total amount of the net loss spread over 15 years would, therefore, come to Rs. 31,800.00 This amount, which the claimants would have gto during the period of 15 years, if <NAME> had lived, was reduced by 10% as the compensation was immediately payable to the claimants. The amount so reduced came to Rs. 28,620.00. Out of this amount Rs. 14,000.00 were deducted as the insurance money paid to the widow of the deceased, Rs. 5,000.00 as the value of the membership and part purchase of <ORG> by the deceased and Rs. 1000.00 as the amount received by the widow of the deceased from <ORG> on the death of the deceased. Thus, a net compensation of Rs. 8,620.00 only was awarded to the claimants by the <ORG>.The various points for decision arising out of the argument of the learned counsels for both the sides may be dealt with broadly under two headings:- (1) Was the death of <NAME> caused by the negligence of the truck driver or was it caused by the negligence of <NAME> himself or at any rate by the contributory negligence of <NAME> ? (2) Is the amount of compensation awarded by the <ORG> liable to be enhanced or reduced ? (1) The learned <ORG> carefully considered the whole evidence on record and I am in full agreement with its finding that the accident was caused by the negligence of the truck driver and that there was no contributory negligence on the part of <NAME>. The facts disclosed in the evidence are as follows:

(3) The truck was going initially by the left side of the road as required by the rule of the road. It was found, however, that a bus was parked on the road in front of it. It has, therefore, to over take the bus by going to the right side of the road. While the truck was on the right side of the road, it struck the deceased <NAME> and killed him on the spot. It was argued for the respondents that the truck was compelled to go to the right side of the road to overtake the stationary bus, that it sounded the horn before doing so and that <NAME> was coming on its motor cycle so fast that he could nto stop and, therefore, collided with the truck. This argument is nto supported by evidence as discussed and appreciated by the <ORG>. Even if, however, this argument is assumed to be based on facts, it is nto a sufficient defense in law. According to the elementary rule of driving, the motor truck going by the left side of the road was nto entitled to go to the right side of the road except after ascertaining that it would nto thereby obstruct the on-coming traffic. The driver is nto entitled merely to sound the horn and to go to the right side of the road without caring whether the on-coming traffic would be blocked by his doing so. There is nothing to show that the truck driver took care to see that there was no on-coming traffic, which would be blocked by his going to the right side. On the respondents' own argument, <NAME> was already coming from the opposite side with the result that he collided with the truck when the truck went on the right side. This itself shows that the diversion of the truck to the right immediately blocked the on-coming traffic and that sufficient warning was nto given to the on-coming traffic that the truck was going to he right side, so that the on-coming traffic should slow down. The spto of the accident was clearly on the right side of the road where the truck had no right to be. The right of way on that side of the road was of <NAME> even if he was coming fast from the opposite direction and was nto sitting on stationary motor cycle as deposed by the claimants' witnesses. This right way of <NAME> could be modified if the truck had given him sufficient warning of going to the right side and given him sufficient time to slow down. There is no such evidence on record. The truck diverted to the right side abruptly giving no opportunity or time for <NAME> to slow down and to avoid collision with truck. The accident was thus caused by the unilateral negligence of the motor truck driver. There is no contributory negligence on the part of <NAME>. In fact, this sudden diversion of the truck to the right side of the road was so indefensible that <NAME> did nto have the courage to say that he took care to warn the on-coming traffic before diverting the truck to the right side. He, therefore, tried to escape from facing the situation by saying that he was nto driving the truck at all and that one <NAME> was driving it. Even <NAME> has nto been examined to say that he took care to warn the on-coming traffic before diverting the truck to the right side. When neither <NAME> nor <NAME> has come forward to say that the truck was nto driven rashly and negligently, there is complete absence of evidence on the side of the respondents to show that the truck driver had taken any precaution to warn the on-coming traffic before diverting to the right side of the road. The only reliable evidence was, therefore, on the side of the claimants. The claimants' evidence is supported by the undoubted fact that the accident took place on the right side of the road where the truck was nto entitled to be, except after warning the on-coming traffic. In the absence of any justification for the diversion of the truck to the right side of the road either pleaded by the respondents or proved by their witnesses, the maxim res ipsa lgouitur applies and the negligence of the truck driver is estabhshed beyond doubt. I find so. (2)How is the compensation payable for death caused by negligent motor driving to be determined? There are two possible answers to this question. Firstly, the compensation is to be determined according to the existing principles of law. Secondly, it may be determined by the legislature providing for a different system of compensation such as one based on insurance or on some other policy.

(4) The first answer involves a look at the existing law. Negligence is a well known ground for liability in the law of torts. Whether the damage or death by negligence is caused by the use of a motor vehicle or in some other manner, does nto make any difference to the principle of liability in tort. Prior to the insertion of Section 110 to 110-F in the Motor Vehicle Act 1939 by the amendment of 1956, compensation claims for death caused by negligent use of motor vehicles were pursued by way of suits in Civil <ORG>. The <ORG> determined the liability for compensation as also the quantum of compensation according to the well established principles of the law of torts. It is well known that the English Law of torts has been applied by <ORG> on the ground that in the absence of any other rule of law, the <ORG> are to follow the principles of "justice, equity and good conscience", which have been "generally interpreted to mean the rules of English Law, if found applicable 13 the Indian Society and circumstances," (<NAME> v. <NAME>) The English Law itself has been constantly developing both by judicial decisions and statutory changes. In India also the common law of England as applied to India has been modified by legislation. The English statutes modifying the law of torts do nto of course apply to India in terms. If, however, they embody any principles of justice, equity and good conscience, such principles would apply to India, in preference to the common law repleaded by legislation as being contrary to such principles. For instance, the doctrine of "common employment" applied to India so long as it was a part of the common law. It was, however, regarded as an unjust doctrine and was, therefore, abolished by statutes in England. In Secretary of <ORG> v. <NAME>, it was held, therefore, that the doctrine of common employment was no longer to be followed in India as a rule of justice, equity and good conscience as it had been abolished in England as being contrary to the said principle. <NAME>, while tracing the history of the application of the principle "justice, equity and good conscience" in India has come to the same conclusion ("Changing Law in Developing Countries (1963) edited by <NAME> page 144). In <ORG>. paragraphs (15) to (18) and (21) to (23), <ORG> had occasion to point out that only the basic principles and nto the technical requirements of statutes whether in England or in India could be regarded as the principles of justice, equity and good conscience. The Fatal Accidents Act , 1855 modified the law of torts regarding the payment of compensation for death in India and is, therefore, to be followed by us first m so far as it applies to our case.

(5) The enactment of Sections 110 to 110-F of the Motor Vehicles Act, in 1956 by the legislature authorised the State Governments to establish Motor Accidents Claims <ORG>s for such areas as may be specified in the notifications for the purposes of adjudicating upon the claims for compensation in respect of accidents in- volving the death or bodily injury to persons arising out of the use of Motor Vehicles. Under Section 110-B such a <ORG> has to determine the amount of compensation "which appears to it to bejust." Is this a second answer to the question posed by me above as to how compensation for death caused by motor vehicle is to be determined ? I do nto think so. The reasons are obvious. Firstly, Sections 110 to IIO-F do nto lay down any new principle either for determining the liability for compensation or for assessing the amount of compensation. They do nto say that compensation is to be paid for every personal injury or death caused by a motor vehicle. The provisions of Chapter Viii of the Act makes the insurance of motor vehicles against third party risks compulsory, but do nto say that compensation is payable for every accident. It is clear, therefore, that the above mentioned provisions do not, in any way, override the pre-existing principles of the law of torts governing the determination of the liability to pay compensation and also the fixation of the amount thereof. This was recognised by <NAME>, as he then was, in <NAME> v. <NAME> (6) The same conclusion follows if we consider the object of the introduction of sections 110 to IIO-F in the Act in 1956 and the nature and functions of the <ORG>. Enormous increase in the number of use of motor vehicles in India led to an abnormal increase in the number of accidents and deaths caused by the Motor Vehicles. Suits for compensation involving expenses, particularly in the shape of Court fees and delay due to multiple appeals were found to be inadequate as a remedy to the large number of persons aggrieved by Motor Accidents. The amendment of 1956, therefore, enable such aggrieved persons to claim compensation merely by making an application to the <ORG> without payment of ad valorem Court fees. Appeal against the decision of the <ORG> was provided directly to <ORG>. The legislative intention apparently was to substitute a cheaper and more expeditious forum in place of the ordinary <ORG>. Beyond this, no change was necessary or was intended. <CITATION> , by Full Bench of this Court I had occasion, in speaking for the Court, to point out that the nature of the jurisdiction of the <ORG> is precisely the same as that of <ORG>, inasmuch as it entertains the same claim for compensation based on negligence, as was done by <ORG>. Even now, in those areas in which <ORG>s are nto established by the State Governments, these claims would be still entertained by the ordinary <ORG>. As the claims before the <ORG> and the <ORG>s are the same and as they are tried by the same law, the decisions of the <ORG> are like the decisions of the <ORG>, though they may be called an "award". Such a claim for compensation is based on a cause of action arising prior to the making of the claim before the <ORG>. The <ORG> determines the legal rights of the parties on the pre-existing legal principles and nto on any consideration of policy. It is nto concerned with recommending or enforcing what ought to be the right and liability of the parties in future. These are the criteria which were applied both by the majority and the minority of the judicial committee of <ORG> in <CITATION> , (being incidentally the first case in which the right of dissent was exercised by the members of <ORG>), to determine if a <ORG> is a judicial one or an arbitral one. On applying these tests there can be no doubt that the Motor Accidents <ORG> is a judicial one. The <ORG> has nto been empowered by Section 110-B of the Act to depart from the established principles of law. In determining the amount of compensation "which appears to be just" the <ORG> is nto to invent either a new policy or new law. Nto being an arbitral <ORG> or an administrative Officer, the <ORG> is nto an instrument of carrying out any policy of the legislature or of the Government. Being a judicial <ORG> doing the same work as <ORG> does, the <ORG> cannto but follow the same principles of law as are followed by <ORG>. For the above reasons, the correct answer to the question as to how the compensation is to be determined in this case would be that it is to be done according to the existing principles of law of torts applicable to India as modified by Indian Legislation.

(7) <CITATION> , a Division Bench of this Court observed in paragraph 39 that Section 110 to 110-F of the Act being a special law enacted in 1956 were self-contained and the provisions of the Fatal Accidents Act , 1855 were nto applicable in terms to an application made under Section 110-A of the Act. The Division Bench, however, did nto say that Sections 110-A to 110-F , of the Act enacted any new principle for the determination either of the liability or of the quantum of compensation and that they were self-contained in these respects. On the contrary, they held on agreement of the learned counsels for both the sides in paragraph 41 that the principles underlying Section 1 of the Fatal Accidents Act, 1855 were applicable to the determination of the compensation for death caused by a motor vehicle. The conclusion of <ORG> is not, thus, really different from the one reached by me above.

(8) The Rule for fixation of the compensation for death according to the law of torts as pithily expressed in Section A-1 of the Fatal Accidents Act, is that "in every such action the <ORG> may give such damages as it may think proportionate to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought". The Supreme <ORG> further explained the rule in <CITATION> , by holding that in calculating the loss caused by the death "any benefit accruing to a dependent by reason of the relevant death must be taken into consideration .............................. the balance of loss of gain. of a dependent by the death must be ascertained" as was observed by <ORG> in <NAME> v. <ORG> (9). In the light of these principles we have to find out the loss caused to the claimants by the death of <NAME> and the benefits which accrued to them by the said death, so that compensation to be granted to them should be equivalent to the loss minus the benefit.

(9) Let us first consider what loss was caused to the dependents by the death of <NAME>. There is little direct evidence of the income of <NAME> after June, 1959 till his death in 1963. The claimants relied upon the evidence of Public Witness 11, <NAME>, a Chartered Accountant, who deposed that he had prepared the statements PW11/1 to Public Witness 11-4 from the books of account handed over to him by the deceased. These statements are said to have been based on the original account books. The original account books were neither produced nor proved by the partners of the deceased <NAME> though they are said to have written them. The statements were not, therefore, admissible in evidence. The learned counsel for the claimants urged that the <ORG> was nto bound by the provisions of the Evidence Act , and therefore, it could and should have relied upon these statements. I am unable to agree with this contention. The <ORG> being bound by the pre-existing rules of law in dealing with an ordinary common law claim is more like <ORG> and than for instance, <ORG> and Industrial <ORG> functioning under the Industrial Disputes Act , 1947. But even the latter cannto admit documents such as profits and loss account statements or balance sheets, etc. into evidence unless they are proved like any other document ( <CITATION> , . For the Rule that a document should be properly proved before it can be relied upon is nto always a technical rule of the Evidence Act , but is often a fundamental rule of justice, which cannto be ignored by any judicial <ORG>. We have, therefore, to rely only upon the uncorroborated evidence of <NAME>. She said that the deceased <NAME> used to give her Rs. 800.00 or 900.00 per month for the family expenses. Making allowance for her tendency to exaggerate this amount the <ORG> held that the income of <NAME> was Rs. 750.00 per month. The learned counsel for the claimants urged that this estimate by the <ORG> was on the lower side. I do nto think so. The deceased, <NAME> did nto pay income tax. This is a serious handicap in the way of the claimants in urging that his income was much above the taxable minimum. From the mere fact, however, that the deceased <NAME>, did nto pay income tax, it would nto be possible to hold that his income was nto above the taxable minimum. For, he sent his children to a good School and had to spend Rs. 100.00 or more for their fees and conveyance charges alone. He also had a motor cycle. The <ORG> was, therefore, on the whole correct in assessing his income at Rs. 750.00 per month. The loss to the dependents would, however, be that part of the income, which was spent on the dependents by <NAME>. Smt. <NAME> has admitted that <NAME> spends Rs. 150.00 to 200.00 per month on his personal expenses. The <ORG> was, therefore, justified in accepting the larger figure of Rs. 200.00 given by her as the personal expenses of <NAME>. An amount of Rs. 75.00 per month was taken by the <ORG> as the monthly eating expenses of <NAME> which also was reasonable. Deducting these Rs. 275.00 per month from the income of Rs. 750.00 per month, the remainder was Rs. 475.00 per month.

(10) On the death of <NAME>, <ORG>, which was run by him, is now run by <NAME> and <NAME>. The business of <ORG> consists on the one hand of the premises and the equipment and on the other hand, the labour put in by the mechanics. The premises for a workshop need nto be substantial. We see <ORG> mostly housed in flimsy structures or even working in the open. The tools for working are also nto a big investment. Once bought they serve for a long time. On the other hand, the labour of the mechanics is costly to obtain. Out of the income earned by a workshop. therefore, a larger portion would go to the mechanics and only a comparatively small portion will be paid as rent for the use of the premises and equipment. Further, it is nto at all certain that <NAME> and <NAME> will continue to work in <NAME> workshop with his equipment for the next 15 years. On the other hand, they are more likely to work independently for themselves. In the nature of things, it is highly improbable that a widow like <NAME> or any of her young children can take any part in the management of this workshop. It may be that <NAME> and <NAME> continue to work in the said workshop for some time immediately after the death of <NAME>. There is no certainty at all that they will continue to do so for long and <NAME> will be able to obtain this monthly income from them or from others for 15 years. This source of income, is therefore, undependable and insubstantial. The <ORG> was not, therefore, justified in arbitrarily estimating this income to be Rs. 300.00 per month and that too for the next 15 years. <NAME> has admitted that the income was Rs. 150.00 to 200.00 per month. In view of the above reasons we cannto go beyond the admission made by her. I, therefore, estimate the income to her from this source at Rs. 175.00 per month, which is the mean of the two figures stated by her. So, deducting this amount of Rs. 175.00 per month from Rs. 475.00 per month, the actual amount spent by <NAME> on his dependents would come to Rs. 300.00 per month and nto Rs. 175.00 per month as held by the <ORG>.

(11) The learned counsel for the claimants urged that <NAME> was a forward looking ambitious person. His income was, likely to rise in future. It is true that <NAME> had plans to start manufacture of motor parts and he had invested Rs. 5,000.00 for getting an industrial plto for the purpose. He had also invited the late Prime Minister, <NAME>, to visit his workshop. The manufacture of motor parts, however, required several other steps to be taken. As pointed out by a learned author (Munkman's Damages for Personal Injuries and Death, 3rd Edition, page 37) : "ANestimate of prospective loss must be based, in the first instance on a foundation of solid facts; otherwise it is nto an estimate, but a guess. It is, therefore, important that evidence should be given to the Court as many solid facts as possible. When it is shown that the plaintiff was earning money at a special rate at the time of the injury, an ordinary presumption of the law is that he would have continued to earn at the same rate. If the plaintiff claims that he would have earned more, he must prove relevant facts, for example by showing that he was on a regular ladder of promotion, or in a trade where rates of pay are increased from time to time, or that he had special merits or qualifications or opportunities, which would have led to an improvement."

INthe absence of reliable evidence of future improved income, therefore, the only workable basis of <NAME> future income is the income he was making at the time of his death.

(12) Though <NAME> evaded to pay income tax in his life time, in estimating his future income provision has to be made for the deduction of the income tax from it, as was held by the majority of <ORG> in <ORG> v. <NAME>,. For, as observed by Lord <NAME>, the compensation for death is granted nto by way of restitution but only to compensate by monetary payment the loss caused to the dependents as far as this can be done. The amount of tax, which would have been payable by the late <NAME> would have to be calculated on his net income and a proportionately reduced part of it would have been deductible from the amount spent by <NAME> on his dependents out of his net income. This is somewhat difficult to calculate. On the other hand, it is provable that the deceased might have made savings out of his income if he had lived. In <NAME> v. <ORG> (12) <ORG> per Lord <NAME> observed that no reduction should be made on account of acceleration of the estate to the legal representatives of the deceased "having regard to the anticipated savings which might reasonably have been expected to be made by the deceased if he had lived, as these two figures very largely cancel out". I, therefore, think it just in this case that the amount of probable savings, which would have been made by <NAME> if he had lived should be set off against the income tax which he would have been liable to pay. On this account, therefore, no tax deduction is to be made from the amount payable to the dependents by way of compensation.

(13) The average life expectancy in India is about 50 years. This does nto mean that <NAME> life span is to be taken to be 50 years only. The average is low due to infant mortality. But <NAME> having survived the infancy period, he might have lived at any rate up to the age of 60 or 65 years. The future earnings of <NAME> are to be calculated, however, nto for the average life but for the working life, that is to say for the period for which he would have been active enough to work, (See Quantum of Damages by Kamp & Kamp Vol. 2, 2nd Edn. page 20). <NAME> was about 40 years old when he was killed. It is well known that the business of running <ORG> damands hard work. <NAME> from his photographs appears to have been a somewhat thinly built man. He was subject to the risks of accidents, etc. in the life that he lived. On the whole the <ORG> has, therefore, been right in taking the remaining life expectancy of <NAME> to be 15 years. It could nto be longer. In the <ORG> decision cited above, the age of the deceased was only 34 years and the compensation awarded to him worked out a life expectancy of only eight years more. In <NAME> v. <NAME> and <NAME>, (13) the life expectancy of the deceased was taken to be for 15 years, though the deceased was only 35 years of age when he died and was very active worker in good health. Relying on this decision the conclusion reached in the latest edition of the well known book "Winfield on torts" 8th edition, page 620, foto note, 5, is as follows:- "INthe case of the death of a normal healthy man, the maximum number of years assuming full dependency is likely to be between 12 and 15 years."

(14) I agree, therefore that on a true estimate the remaining life expectancy of <NAME> would have been 15 years as calculated by the <ORG>.

(15) The dependents of <NAME> were his wife and five children aged 17, 12, 9 and 7, the age of the youngest one nto being given in the application. The dependency of the eldest child, who is a daughter, would have been five years more as she would be married off at the age of 22 years or so. The dependency of the second child, who is a son aged 12 years would be 12 years or so. The dependency of the remaining ones would be full 15 years. The widow being burdened with at least three young children, who would nto become independent for the next 15 years after the death of <NAME> is nto likely to remarry during the said period. Multiplying the monthly income of Rs. 300.00 per month for 15 years, we get an amount of Rs. 54,000.00. Out of this, we have to deduct l/6th of Rs. 300.00 per month for 10 years as the 1st daughter, <NAME> would be married off by the end of five years and l/5th of Rs. 300.00 out of the remaining income for a period of three years as the second child would cease to be dependent in 12 years. Making these deductions, the total amount works out at Rs. 45,840.00. This amount would have come to the dependents from month to month if <NAME> had survived. Since it is being paid to them immediately in a lump sum, same scaling down has to be made for such acceleration. Even at the rate of 3"% per annum paid by <ORG>, an amount of money is likely to be increased by about 50 per cent, if interest is added to it for 15 years. A deduction of about 33/1/8 per cent is, therefore, to be made from the above amount of the capitalised income. The net loss caused to the dependents by the death of <NAME> comes to Rs. 30,560.00.

(16) In paragraphs 45 of the judgment of the <ORG> it has been stated that because of the death of <NAME>, <NAME> received Rs. 14,000.00 from <ORG> and the parlies have no objection to this amount being deducted from the amount of compensation. The learned counsel for the claimants before me, however argued that this admission made on behalf of the claimants before the <ORG> can be withdrawn by him if it is proved that it was wrong in law. The established rule enunciated by <ORG> in <NAME> v. <ORG>, (9) per lord <NAME> at page 611, is as follows :- "in assessing the damages, all circumstances which may be legitimately pleaded diminution of the damages must be considered...................... The Act ual pecuniary loss of each individual entitled to sue can only be ascertained by balancing on the one hand, the loss to him of the future pecuniary advantage which from whatever source comes to him by reason of the death."

(17) The Insurance amount which becomes payable to the widow and the children of the deceased by reason of the death is, therefore, a pecuniary advantage which has to be deducted from the amount of compensation. <NAME> v. <ORG>, page 615, (14) it was pointed out that the benefit which the widow of the deceased gto by reason of latter's death is really the acceleration of her interest in his estate. Both these decisions were cited with approval by <ORG> in the decision, referred to above. In considering insurance, however, a distinction has to be borne in mind. Accident insurance by which the insured will stand to receive a certain amount if he is injured in accident stands in one cate- gory. The principle underlying such accident insurance is that the insurer who pays the premiums for the purpose of insuring himself does so on the foto ing that his right to be compensated when the accident insured against happens is an equivalent for the premiums he has paid. It is a quid pro quo, larger if he gets it on the chance that he will never get it at all". Money received under such an accident insurance policy is not, therefore, deductible or taken into account in any way in assessing damages for personal injuries as was held in <NAME> v. <ORG>, . On the other hand, there is the ordinary life insurance life amount of which accrues specifically by reason of death. The real pecuniary benefit which accrues to the heirs of the deceased by reason of the death consists in the accelerated receipt of the amount of the insurance and it is this benefit of acceleration which is deductible from the amount of compensation, as was held in <ORG> v. <NAME>. There is something in the evidence of <NAME> to suggest that out of this insurance amount of Rs. 14,000.00 a part was due on the ordinary life policy while the rest was due to the accident benefit clause in the said policy. The claimants have nto cared to produce the policies, which are in their possession. The terms of the policy could be proved only by the production of the original documents by <NAME>. As she has nto done so, we cannto speculate what the precise terms of the accident benefit clause were, viz. Whether the clause was a pure accident policy, the amount payable on which would nto be deductible from compensation or whether the clause only provided for an enhanced compensation if death was caused by accident in which case the amount would be deductible as it is payable on death. The question whether the accident benefit clause was of the one kind or the other is purely one of fact, which could have been decided only after the production of the original policy. The learned counsel for both the sides before the <ORG> agreed that the whole of the amount of the insurance was deductible. This agreement cannto be said to be merely on a question of law, viz. whether the amount is deductible or not. It is also on a question of fact, viz. that the amount under the terms of the policy was payable by reason of death of <NAME> and was, therefore, deductible. What is a question of pure law is that instead of the whole amount being deductible, only the benefit of acceleration of the payment of it to the widow is alone deductible. To this extent only the admission made by the counsel for the claimants before the <ORG> can be withdrawn. The best way to estimate the benefit of acceleration is to calculate the "interest on the money during the period of acceleration" as observed by Lord <NAME> at page 805 of <ORG> case cited above. Such interest at 3"% for a period of 15 years would be about l/3rd of the amount Rs. 4,666.00 only are, therefore, to be deducted from the compensation amount.

(18) In England at common law, insurance monies like all other benefits resulting from the death of the deceased to his dependents had to be deducted from compensation awarded for death under the law of torts (as modified by the Fatal Accidents Act ) as would be clear from the <ORG> decision in <ORG> case cited above. Statutory inroads on this principle were, however, made by the Fatal Accident (Damages) Act, 1908 and Fatal Accidents Act . 1959 with the result that in England the insurance monies are now nto taken into account in determining the compensation payable for fatal accidents. These statutes have thus made an exception to the rule enunciated by <ORG> in 1942. Appeal Cases 601 and by the <ORG> in 1951 Appeal Cases 601 which was adopted by <ORG> in . that all benefits accruing to the dependents of the deceased by reason of his death from whatever source are to be deducted in assessing the compensation for death. The problem before me is to decide whether the common law rule should be followed in this respect or whether the English law as amended by statutes should be followed in preference to the common law. As stated above in India we are to follow the common law or the English law as amended by the statutes only in so far as it embodies the principles of "justice, equity and good conscience". The long established rule is that the dependents of the deceased are awarded only the balance of the loss and the benefit suffered by them by reason of the death of the deceased. This rule was apparently based on "justice, equity and good conscience" and has been followed in India. In , <ORG> has affirmed it. On the date of the decision of <ORG>, statutory changes in England had already engrafted an exception to this rule by excluding the insurance money from the benefits which are to be deducted from the loss caused by the death of the deceased. <ORG>, however, did nto indicate in any way that the English law as amended by the statute would be followed in India or that the rule affirmed by them was subject to this statutory exception obtaining in England. The trend of legislation in England is apparently to enhance the compensation payable on death. The legislature is leaning in favor of the dependents of the deceased and against the tortfeasors and the insurance company. In India, however, there is no such legislation. It cannto be said that the statutory changes made in England embody a fundamental rule of justice, equity and good conscience or that the unamended common law was, therefore, contrary to to "justice, equity and good conscience". Unless and until, therefore, <ORG> decides in favor of following English law as amended by the statutes in this respect, I feel bound to follow the unamended common law, which in my view was endorsed by <ORG> in . The benefit of acceleration of the receipt of the insurance monies has, therefore, to be deducted as stated above.

(19) The next item which has come to the heirs by reason of the death of <NAME> is the interest worth Rs. 5,000.00 in the purchase of the industrial plot. In this case also it is only the benefit of the acceleration of the interest which has to be deducted. The acceleration by deducting the interest for 15 years out of this would be about l/3rd of the amount. Rs.1,666.00 are, therefore, to be deducted on this account. It is also admitted by <NAME> that Rs.1,000.00 were paid to her out of <ORG> on the death of the deceased. The benefit of acceleration thereon worked out by the same method would be Rs. 333.00 which is the amount to be deducted from the amount of compensation.

(20) The following is the tabulated summary of the amounts of loss and benefit to the heirs of <NAME> by his death :- Loss Benefit 1. Rs. 300.00 p.m. for 15 1. Accelertion of years. 54,000-00 the receipt of insurance money minus periods of reduced Rs. 14,000 .00 being dependency of two 33/1/3% children - Rs.8,160.00 4,666 -00 -45,840-00 2. Acceleration of receipt of investment minus 33/1/3 % for accleration in industrial leration - 15,280 .00 30,560 .00 plot-Rs. 5000.00 being 33/1/3% 1,666 .00 minus benefit Rs-6,665 -00 3. Acceleration of 23,895-00 receipt of Chit Fund-Rs. 1000- 00 being 33/1/3% - 333.00 Total 6,665 .00 Net compensation amount : Rs.23,895.00 (21) Accordingly the award of the <ORG> is modified and a net compensation of Rs.23,895.00 is ordered to be paid by the respondents to the claimants. The liability of the insurance company is limited to Rs.20,000.00 only, which was the maximum for which third party risk was insured against. The claimants' appeal is allowed to this extent, while the respondents' appeal is dismissed. No order as to costs.


JUDGMENT Blanesburgh, J.

The main question for determination on this appeal is whether, on the death of Raja <NAME>, which occurred on January 7, 1911, <NAME> was entitled to succeed to the impartible raj of <NAME>. On the death of the Raja, mutation of names had, by order dated May 12, 1911, been effected in favour of his senior widow without objection or opposition from <NAME>, and the appellant was appointed by <ORG> to be manager of the <NAME> estate. The respondents are a syndicate now formed to exploit the title of <NAME>. He died on August 13, 1921, and they, on October 30, 1922, purchased from his son, <NAME>, certain of the properties belonging to the <NAME> estate. The consideration was Rs. 24,000. The title of the vendor was clearly a doubtful one and the price had no relation to the value of the properties purchased. It was a sum suitable for the finance of the contemplated litigation, or for a substantial part of it.

On January 5, 1923, two suits were as a result filed in <ORG> of Gorakhpur against the present appellant, the plaintiff in the first suit being added as a co-defendant to the second suit. The suits came to be known as the " <NAME> cases." The first was brought by <NAME>, claiming the raj. That suit, after being consolidated with the other, has been compromised and need not be further referred to. The second suit, out of which the present appeal arises, was filed at the instance of the members of the syndicate, to recover possession of the properties conveyed by the sale-deed in their favour. This was only two days before the expiry of the period of limitation. After subsequent transfer to <ORG>, the suit was by decree dated June 8, 1926, dismissed with costs. On appeal by the plaintiffs to <ORG> at Allahabad that decree was on February 25, 1930, reversed, and the suit allowed. From this decree of <ORG> the defendant has now appealed to His Majesty in Council.

According to the pedigree produced in the suit, the common ancestor of the deceased <NAME> (whose widow is represented by the appellant) and <NAME>, from whom the respondents derive their title, was a certain <NAME> <NAME>. According to the same pedigree, the deceased <NAME>, on whose death the senior line became extinct, was the seventh generation in descent from his ancestor <NAME>, a descendant of <NAME>, and <NAME>, the eighth in descent from <NAME>, the younger brother of <NAME>.

In the suit many matters were discussed and adjudicated upon by the Courts in India, but of these only three remain for final decision by their Lordships. One is whether this pedigree of <NAME> has been proved by the plaintiffs, the respondents. A second is whether the sale-deed on which their title depends has been duly registered. Both of these questions were determined in favour of the respondents in both Courts, and to their consideration the <ORG> must return. But not only because of its general importance but by reason also of the fact that the two Courts in India differed upon it, their Lordships will first deal with the remaining question still in issue, namely, whether, on the assumption that his pedigree has been proved, <NAME> was entitled, on the death of the <NAME>, to succeed to the whole impartible raj to the exclusion of his widow, on whose behalf the present appeal is presented. The contention of the respondents was that <NAME>, as the nearest surviving male agnate of the deceased <NAME> and as a member of the junior branch of a joint Hindu family, was entitled, on the extinction of the senior branch by the <NAME>'s death, to succeed in accordance with the customary rule of succession in the family in question. On this point the District Judge came to the conclusion that the two branches had been, for at least seventy years, separate, and were at the <NAME>'s death no longer joint. This was the decision which was reversed on appeal, the Judges of <ORG> holding that the appellant had failed to prove that the junior branch had ever expressly or impliedly relinquished their right to succeed by survivorship, which was the true issue in the case.

The facts are long and complicated, and it is recognised that their real bearing on the final issue must largely depend upon the true statement of that issue, a question upon which the two <ORG> in India are in acute difference.

The facts, however, are set forth with the utmost particularity in the judgment of the learned District Judge, and his findings are commented upon by <ORG> with care. It will, therefore, not be inconvenient if, in the first instance, their Lordships attempt a brief summary of them, indicating as they proceed the main points upon which the two Courts are, not in agreement.

1. Upon the question of separation between the branches in residence and in food, the learned District Judge thought it to be a fair assumption from the evidence that occupying under a babuai grant made in 1726 of the village of Dharamner and other properties, <NAME> and his descendants had lived ever since in that village, which is situate about ten miles from the residence of the <NAME>. He considered it to be proved by a rubkar, to which he made careful reference, that <NAME>'s descendants were living there in 1833, and he was of opinion that from the time when <NAME> or his descendants established their residence at Dharamner, the two families were separate in residence and in food. <ORG> do not question this conclusion, but they do not accept the learned Judge's assumption that the families had been so separate since the date of the grant. The document dated in 1833, upon which he based his primary assumption, did not, they thought, show that the descendants of <NAME> were living at Dharamner even at that time. The oral evidence again, they thought, did not establish separate residence prior to the Mutiny.

<ORG>, however, have regard to the fact that the family of <NAME> are, and that <NAME> at his death was, living at Dharamner and not occupying any part of the residential quarters at Majhauli. Accordingly they find themselves justified in concluding that at least from about the time of the Mutiny or a little earlier there had been separate residence and consequently separate messing. Their Lordships in this matter are in sympathy with the conclusions of <ORG>. But except as one of several circumstances the matter is not, as will be seen, of vital importance, it being the view even of the learned District Judge that separation in food and residence is ordinarily inconclusive of separation, and more particularly so in a case like this, where there was no evidence to show when the descendants of <NAME> " built up a separate house" at Dharamner.

2. But there was complete separation in worship. Both Courts are agreed that while there is nothing on record to show the position in this regard before the time of <NAME>, there is definite evidence to prove that he never visited Majhauli or took part in the family worship there. It is further established that the two families had a separate guru and a separate priest. To the learned District Judge the evidence established a complete separation in worship between <NAME> and the late <NAME>, a circumstance to which he attached great importance as affording a very strong indication of a general disruption of the family connection. <ORG> do not question this finding, but in the view they take of its relevance to the real issue, as they see it, they do not attach to it any final or great importance.

3. The summary of the relations between the members of the two families over a very considerable stretch of time made by the learned District Judge may be accepted as representing the conclusions drawn by both Courts from the evidence:

(1) That the Babus of Dharamner never visited Majhauli and were never invited by the <NAME> on any occasion whatever.

(2) That various other Babus connected with the <NAME> Raj family in the same manner as the Babus of Dharamner paid visits to <NAME> and were invited on ceremonial occasions.

(3) That monetary assistance was given by the <NAME> to Bisen Chhattries in general, and to some of the other Babus also, but never to the Babus of Dharamner.

(4) That the Raja used to have several Bisen courtiers, but he never allowed any of the Babus of Dharamner to be one of them.

(5)That villages of the raj were often given out on lease to other Babus, but never to the Babus of Dharamner.

(6) That the <NAME> would not allow any Babus of Dharamner to be employed in his raj in any capacity.

(7) That there was a well-known tradition of old enmity between the Babus of Dharamner and the <NAME> family.

It is recognised that this last proposition is no doubt responsible for those which precede it, indicating as they do the natural outcome of a long-continued and bitter feud between the two families, which arose, it is said, out of an attempt on the part of a member of the junior family to assassinate the then <NAME>. And perhaps the further fact may be added that in 1857 the <NAME> of Majhauli remained loyal to the British Government and was rewarded by a grant of additional land, while the grandfather of <NAME> fought on the side of the rebels and was punished accordingly by confiscation of part of his estate.

4.There is no doubt that whether in consequence of this estrangement or for other reasons the financial condition of <NAME> and his family was very poor. There are no less than thirteen documents showing that between 1898 and 1907 <NAME> and his son transferred small parcels of their share in village Dharamner for quite inconsiderable sums. One saledeed for a price of Rs. 299-15 was made in order to pay two previous debts and to receive a balance of Rs. 110-13 to meet the expenses of a daughter's marriage. On this matter the District Judge remarks:

Anyone who is conversant with joint family life among Hindus knows that the marriage of a daughter is a sacred duty, which is binding on all the members of the family. It is impossible to conceive that <NAME> was compelled to borrow the petty amount mentioned above for the marriage of a daughter though he was joint with the holder of the <NAME> raj. Such an act would have brought opprobrium on the <NAME> himself.

5. It is perhaps convenient at this point to observe that these last matters, to which the learned District Judge attaches so much importance in support of his conclusion that the two branches of the family had become completely separate, may be regarded from another point of view. The impoverishment of the Dharamner branch may well have furnished an additional reason for a desire on the part of the <NAME> to have nothing to do with his poor kinsmen ; while these, if they were able to arrange for the marriage of a daughter without assistance from the <NAME>, might well decide to do so in view of the terms on which the families stood to each other.

6. The conduct of <NAME> is relied upon by the learned District Judge as showing that he did not consider himself a member of the joint family when the succession opened by the death of the Raja <NAME>. <NAME> lived until August 13, 1921that was ten years and a half after the death of the Raja. During his lifetime he made no attempt to assert his title to the estate. On February 8, 1911, the widow applied for, and on May 12, 1911, obtained, mutation of the estate in her favour. Further, on February 19, 1912, <NAME> applied to the then Collector of Gorakhpur that his eldest son, ought, on the footing that he had a chance of succeeding to the estate as a reversioner, to have a provision made by <ORG> for his education. This application and similar applications which were afterwards made show that neither <NAME> nor his son made any claim by survivorship to immediate possession of the raj.

These facts are accepted by <ORG>. It will, however, be more convenient to deal later with their comment upon them.

There is one further matter to which attention may be directed, although it is not in terms alluded to either by the learned District Judge or by <ORG>. It appears from a rubkar dated November 26, 1836, relating to the village of Dharamner, and already referred to, that that village was included in the estate of <NAME> Tej Mal: that after the death of the <NAME> under a rubkar dated April 24, 1833, the names of the <NAME> and the then <NAME> and his son were recorded ; but that " now on enquiry it has been ascertained that this village was included in the estate of the <NAME>, but as a babuai property it remained in the possession and occupation of <NAME> and others who are the collaterals of the <NAME>." <NAME> was a member of the junior branch of the family to which <NAME> belonged. The document then goes on to say that the agents of the <NAME> and the <NAME> attended and admitted that, although the village had been included in the estate of the <NAME>, it was in the possession and occupation of Babu <NAME> and that his clients had no claim for it in any way. Under these circumstances the village with the correct revenue was settled with <NAME> and others, the amount, as shown by exhibit D. 23, being a uniform jama of Rs. 1,000 a year. It appears from subsequent sale-deeds that various members of this junior branch thereafter dealt with parcels of this original babuai grant as absolute owners by dispositions thereof from, time to time. It will be convenient to deal with the precise significance of all this at a later stage. As has been said, it has not influenced the judgment of either <ORG> in India.

Now it is not to be denied that the cumulative effect of the above facts as found by the learned District Judge, even when qualified, to the extent to which their Lordships think they should be, by the findings of <ORG>, go far to establish that for many years before the death of <NAME> the condition of jointness in general status between these two branches of this ancient family had been lost, and it is not surprising that the learned Judge treating this, as being in point of law the true issue to which his mind had to be addressed, should have concluded after a powerful summary of its cumulative effect that <NAME> was not joint with Raja Kaushal Kishor, the last holder of the raj.

But while so expressing himself the learned" Judge makes it clear that this final conclusion of his was largely dependent upon the actual facts of which proof was by law required, and upon this question he states his own views with the utmost clearness, as the following amongst other passages in his judgment show.

Having asked what constitutes separation in a family like the <NAME> holding impartible property only, the learned Judge proceeds to say:

It is necessary to decide this question so that a proper standard may be laid down for the appreciation of the various facts which have been proved by the defendant in order to establish separation in the present case.

And then, after referring to <NAME> v, <NAME> (the <NAME> case (1915) L.R. 42 I.A. 192 : S.C. 17 Bom. L.R. 1012) and <CITATION> case (1922) I.L.R. 2 Pat. 319 : S.C. 25 Bom. L.R. 676 P.C.) he enquires what was the conclusion which this Board had then reached upon the question of what constitutes separation in respect of an impartible estate. And his answer is:

I think they have now definitely decided that there is no difference between partible and impartible property in that respect so that a separation can be brought about merely by the unequivocal expression of an intention to that effect by any member of the family. It is further clear to my mind that the member who thus brings about a separation may be the holder of the impartible property himself.

Later he adds:

It must . be taken for granted that the <NAME> case stands as a clear authority for the proposition that a separation is possible in a family owning impartible property alone without any relinquishment by the junior member of his contingent right of succession, and we must proceed to consider the facts set out by the defendant in the present case in order to establish separation.

And the learned Judge's conclusion of the whole matter as above set forth follows in elaborate examination of the evidence on the basis of the law as stated by him. This is shown by the closing words of his judgment:

It is true that there is no evidence of a definite partition between the families or of a relinquishment of the right of succession by <NAME> or by any one of his ancestors. But in view of my finding of the legal aspect of the question I think these elements (are) not necessary to constitute separation of a family holding impartible property alone. I therefore find that <NAME> was not joint with <NAME>, the last holder of the estate.

The learned Judge, that is to say, leaves entirely open the question whether even on his finding of the facts the same result would have followed had his opinion on the legal aspect of the question been different; in other words, had his view of the law been that in order to constitute separation of a family holding impartible property only there must be either a definite partition between the families or a relinquishment of the right of succession by the junior branch.

Now when this suit was before <ORG> the case of <CITATION> (1921) L.R. 48 I.A. 195 : 23 Bom. L.R. 654, had been decided by this Board, but the full implications of the judgment there delivered by Lord <NAME> and later to be stated were not perhaps fully appreciated.

Again, the <NAME> case upon which the learned Judge placed final reliance, while already questioned as a case of general application, had not then been described as it was by this Board in <CITATION> (1927) L.R. 55 I.A. 114 : S.C. 30 Bom. L.R. 802 as a case laying down no general proposition of law, for the purpose of that case or, as may now be added, of this case.

It is, therefore, not surprising that in the then state of the authorities the learned Judge expressed the law as he did. But <ORG> had before them the case just cited of <CITATION> , and their Lordships, have now before them also the case of <CITATION> (1932) L.R. 59 I.A. 331 : S.C. 34 Bom. L.R. 1567, the effect of these decisions being finally to settle the law upon this vexed question. Somewhat tentatively phrased, the rule is thus expressed in <CITATION> by Sir <NAME> delivering the judgment of the Board (p. 127):

Those authorities, in their Lordships' opinion, go far to support the inference deduced by <NAME> [ in the <ORG> below ] from an. examination of the cases that in order to establish that an impartible estate has ceased to be joint family property for the purposes of succession, it is necessary to prove an intention expressed or implied on behalf of the junior members of the family to give up their chance of succession to the impartible estate.

And quite definitely this same rule is thus enunciated in <CITATION> in the following words of Sir Dinshah Mulla when delivering the judgment of their Lordships (p. 345 ):

...in order to establish that a family governed by the Mitakshara in which there is an ancestral impartible estate has ceased to be joint, it is necessary to prove an intention, express or implied, on the part of the junior members of the family to renounce their right of succession to the estate. It is not sufficient to show a separation merely in food and worship.

In these circumstances <ORG> were justified, relying only on <NAME>'s case and even more would they have been justified had <NAME> case then been decided, in saying in their judgment as they do that:

It is quite clear that the learned District Judge has approached the case from a totally wrong standpoint inasmuch as he thought that it was wholly unnecessary to establish any relinquishment of the right of succession. We must therefore examine the facts found by him or disclosed by the evidence from this new angle of vision.

Now all the cases and reasons for the decisions of the <ORG> in <NAME> case and <NAME> case are fully dealt with in the judgments there. It is unnecessary and it would be tedious to set them forth again. With reference to the general position thereby established their Lordships, before following <ORG> into their examination of the facts, would say only this:

1. The decisions of the <ORG> in <NAME> v. <NAME> (1888) L.R. 15 I.A. 51, and <NAME> v. Court of Wards and <NAME> (1899) L.R. 26 I.A. 83 (the first Pittapur case) appear to be destructive of the doctrine that an impartible zemindari could be in any sense joint family property.

2. This view apparently implied in these cases was definitely negatived by Lord Dunedin when delivering the judgment of the Board in 1921, in <CITATION> .

3. One result is at length clearly shown to be that there is now no reason why the earlier judgments of the Board should not be followed, such as for instance <CITATION> (1900) L.R. 27 I.A. 151 : S.C. 2 Bom. L.R. 945 (the <NAME> case) which regarded their right to maintenance, however limited, out of an im-I partible estate as being based upon the joint ownership of the junior members of the family, with the result that these members holding zemindari lands for maintenance could still be considered as joint in estate with the zemindar in possession. Such was the position of the junior branch in this case under the babuai grant of Dharamner, to which reference has so often been made in the course of these proceedings.

4. It is the view of both Courts in India that there is no evidence here of a definite partition between the families. Now if in the case of an impartible zemindari like this there was to be a separation, it would have to include all branches of the joint family. To prove, therefore, the separation of the junior branch it would be necessary to show either that the <NAME> had separated from all the junior members of the family, a conclusion negatived by the fact that members of more remote branches gave evidence for the defendant, or that the branch represented by the plaintiffs separated themselves from the rest of the family, which is not to be supposed, seeing that their chance of succeeding to the <ORG> as next branch was their greatest asset. And here, as the learned District Judge finds, there is no evidence of the relinquishment of the right of succession by <NAME> or by any one of his ancestors.

5. The mere fact that the common ancestor lived so long as two hundred years before suit is not enough to raise a presumption of separation. <NAME> in his judgment in <CITATION>  A.I.R. Mad. 402 instances a pedigree showing a common ancestor as remote as or remoter than the common ancestor in the present case without any suggestion made that this remoteness raised any presumption of separation as to the impartible estate either in <ORG> or in the judgment of the Board. <CITATION> (1870) 13 M.I.A. 333. In the present case we find a member of this junior branch of the family asserting his position as a member of the family in a suit in 1806.

6. With reference to the rubkar of 1836, all that really appears from exhibits P. 7 and D. 23 is that the village of Dharamner-the subject of the babuai grant of 1726was settled then with this branch, the agents of the <NAME> and <ORG> not objecting and disclaiming any interest. The only result of this disclaimer was to make the revenue payable to the <ORG> direct instead of to the <ORG>. If this had been a permanently settled estate, the <NAME> would have been entitled to the revenue and this subsequent arrangement would have been important. But in the then position the only question was whether the land revenue was to be collected from the babus in possession. The fact that the <NAME> had no objection to its being so collected has little, if any, weight as evidence of separation, and while it was right to mention the incident in order to show that it had not been overlooked, it is not remarkable that it had not been referred to in India nor was it included in the argument of counsel for the appellant before the Board until his attention was drawn to it by one of their Lordships.

7. The recent decisions of the <ORG> constitute a further landmark in, the judicial exposition of the question at issue here. While the power of the holder of an impartible raj to dispose of the same by deed {<NAME> case) or by will, the first Pittapur case: <CITATION> (1927) L.R. 54 I.A. 289 : S.C. 29 Bom. L.R. 1136 remains definitely established, the right of the junior branch to succeed by survivorship to the raj on the extinction of the senior branch has also been definitely and emphatically re-affirmed. Nor must this right be whittled away. It cannot be regarded as merely visionary. As was pointed out in <NAME> case, when before <ORG>, 38 All. 590)the junior members of a great zemindari enjoy a high degree of consideration, being known as babus, the different branches holding babuana grants out of the zemin-dariTheir enjoyment of these grants is attributable to their membership of the joint family, and until the decisions above referred to beginning in 1888 supervened, they had no reason to believe that their rights of succession were being imperilled by their estrangement from the zemindar in possession. Great caution must, therefore, be exercised in attributing any special consequences to conduct only significant in the light of these decisions now explained.

Returning now to the examination of the evidence made by the High; <ORG>, the learned Judges embark upon it with the statement already foreshadowed that the question for decision is whether it is incumbent upon a claimant to an impartible estate to establish a jointness in general status between the two branches of the family in order to supersede the widowas the learned District Judge thoughtor whether, as they thought, it is only incumbent upon him to establish a notional jointness with the burden on the opposite party to show a definite renunciation of their right to succession.

And the learned Judges examined the evidence in order to ascertain whether the defendant had discharged the burden so laid upon him. And they found that he had not.

It is not necessary that their Lordships should in detail go through all the different qualifications which, approaching the facts from this totally different angle, the learned Judges of <ORG> introduce into the findings of the learned District Judge. Some of these have already been referred to. On the question of the remoteness of the common ancestor they gave further instances justifying their assertion that in many of the cases relating to impartible property the pedigree as a rule has been a long one. Differing also from the learned Judge in the importance he attached to separation in worship they make it clear that however important this may be on a question of jointness in general status it does not imply any intention on the part of the junior members to give up their right of succession to the estate. Withdrawal by the <NAME> from social intercourse with a junior branch may be regarded in the same way; and with reference to the inferences sought to be drawn from <NAME>'s actions after the <NAME>'s death the learned Judges point out that it is at the death and not at some later period that the separation] must be established.

Upon the whole case their Lordships are content to say that they concur with the learned Judges in their conclusion which is thus expressed:

On an examination of the entire evidence as referred to by the learned District Judge and after weighing all the circumstances brought out by him we are unable to agree with his conclusion in the light of the recent pronouncement of their Lordships of <ORG>. We think that the burden lay heavily on the defendant to establish that the estate was held as the separate property of <NAME> and that a separation had been brought about by an intention express or implied on the part of the junior branch to relinquish their right to succession to the impartible estate whenever a succession opened. We must therefore hold that it is not established that <NAME> was separate from <NAME> in the sense that the latter had lost all right to succession in case the former died without a child and without having disposed of his estate in his lifetime.

Their Lordships now proceed to the consideration of the two further issues in the appeal upon which both <ORG> in India were in agreement. The first relates to the pedigree propounded by the plaintiffs. Was it proved by sufficient evidence?

This question was discussed with great elaboration in both <ORG> in India and it was argued in much detail at their Lordships' <ORG>. Their Lordships are satisfied that the objections taken to the sufficiency of proof of a pedigree which seems to have been notorious in the family for generations are purely technical, and as they are in agreement with both <ORG> upon it, they will deal briefly with the question.

There are produced certified copies of the decree in the suit of 1805 already referred to and of two pedigrees, P. 5 and P. 6, found with it, all of which are by statute to be deemed originals. The decree recites that pedigrees had been filed by both the parties, and sets out according to both pedigrees the descent of <NAME> from <NAME>, the common ancestor. This is the only part of the second defendant's pedigree in dispute. If the decree is legal evidence that pedigrees were filed by both parties, we may presume that the two pedigrees P. 5 and P. 6 found with the decree were the two pedigrees filed in the suit. Both pedigrees should have been admitted as pedigrees filed by the respective parties to the suit and not as evidence of relationship under Section 32 (5) of the Indian Evidence Act . The statements in the decree that the pedigrees were filed is evidence either under Section 35 as an entry in a public record, or under Section 13 as evidence of the course of proceedings in a suit. <CITATION> (1894) I.L.R. 18 Mad. 73 a statement amounting to an admission which was contained in a judgment was received in evidence under Section 35 as an entry in a record made by a public servant in the course of his duty. There is much to be said for this view of Section 35 , In India judgments have to be in writing and signed by the Judge and the original judgments and decrees are records of the Court and retained in the record room, the parties being supplied with certified copies only. The pedigrees themselves are the best evidence of their contents. P. 5, the pedigree filed by the <NAME>, should, therefore, have been received when tendered, and it might be necessary to have it filed in evidence, unless the circumstances bring it within Section 65 , Clause (c), of the Act It may be accepted that they do.

The question whether statements in judgments and decrees are admissible under Section 13 read with Section 43 is elaborately discussed by Sir <NAME> in his new edition of the Evidence Act (1931), p. 181 et seq. He would hold that they are not admissible at all under Section 13 ; but this view is not in accordance with the decisions of the <ORG> in <CITATION> (1894) L.R. 22 I.A. 60 and <CITATION> (1901) L.R. 29 I.A. 24 : S.C. 4 Bom. L.R. 167. At the bottom of p. 194, however, the learned author treats judgments as evidence of admissions by ancestors. There are great difficulties about Section 13 , but <NAME>'s case is express authority for the proposition that " on general principles and under Section 13 " orders made under the Criminal Procedure Code are admissible for the purposes mentioned in the passage quoted at p. 191 from the <ORG>'s judgment.

All really wanted here in order to prove that the pedigree filed by the <NAME> in 1805 is an admission of the second defendant's descent from Bodh Mal is to use the statement in the decree that the pedigrees produced were filed by the parties. If other entries made in records by public officers are admissible, it would be absurd that such an entry as this in a decree should be inadmissible. In the result their Lordships are prepared to hold the pedigree admissible under Section 35 . In their judgment, moreover, the two decisions of the <ORG> already referred to are sufficient authority for holding it admissible under Section 13 . The pedigree filed by the <NAME> in 1805 if admissible is clearly a relevant admission under Section 21 against the present <NAME> as her representative in interest and an admission within the definition in Section 18 of the Indian Evidence Act.

Upon this issue, therefore, their Lordships find themselves in agreement with both Courts below.

They now proceed to consider the third question raised by the appealwhether the registration of the sale-deed of October 30, 1922, was valid?

The deed is a registrable instrument under Section 17 of the Indian Registration Act, 1908. Section 28 of that Act: requires that every registrable document " shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate," and Section 49 enacts that no registrable instrument shall affect any immovable property comprised therein unless it has been registered in accordance with the provisions of the Act. The sale-deed was registered with the sub-Registrar of Gorakhpur. The only justification for registration with him was that there is included in the deed, as a separate item of transfer, an undivided interest in a small sitting-room situated in Gorakhpur, later to be described. The question is whether in all the circumstances of the case the deed related to that property within the meaning of the statute. If it did not, the registration was inoperative.

The facts raising the question are clear enough. The inferences to be drawn from them are not so clear. The deed purports to transfer as I one parcel four villages of the <NAME> estate, and, as a separate item of property, a one-third share in a sitting-room in a garden appertaining to the <NAME> Kothi in Mohalla Dandpar, Gorakhpur. As compared with the value of the four villages this property is insignificant, almost derisory.

The villages yield a gross income of nearly Rs. 10,000 and the <ORG> revenue is Rs. 8,213. In the claim the entire summer room is valued at Rs. 150. The purchase price fixed by the deed was, as has been seen, Rs. 24,000. The inclusion in the parcels of the fraction of the room referred to had, it has been found, no influence whatever upon that price, arrived at, as it will be recalled it was, irrespective of actual value. The room is described by the learned District Judge as " a pukka platform, circular in shape, having a diameter of thirteen feet and a half and covered by a tiled roof." It is situate in the midst of a walled garden surrounding the Majhauli Kothi. No part of the garden is included in the sale. The purchaser is by the deed given no right of way or other access to the room.

It is accordingly true of it to say that as a subject of sale this item was of no real value, and that not only from the interest in it coveyed, but from its landlocked situation it was a subject incapable of enjoyment by the purchasers. It has been found, in the language of the learned District Judge, that this insignificant item of property was never contemplated as really forming a part of the consideration and was entered in the sale-deed presumably with the only object of getting the deed registered at Gorakhpur.

<ORG> is in agreement with this finding, which, being concurrent, their Lordships accept. They may say, however, as a result of their own examination of the evidence, that it is, in their judgment, irresistible.

But there are some further facts to which reference must now be made. While both Courts in India find that the parties to the deed regarded this subject of sale as parcel of the <ORG> raj and therefore comprised in the claim thereto made by <NAME>, it had, in point of fact, never been incorporated with the raj, and was an item of property to which <NAME> had no right or title whatsoever. And there are two further facts which may be of assistance in reaching a true conclusion in this matter. The first is that in evidence an attempt was made on behalf of the plaintiffs to show that this room was what remained of a place of residence at Gorakhpur which the purchaser desired to acquire. And the next is, that according to this same witness he desired the whole Kothi to be included in the sale, but that <NAME> objected and would consent to the inclusion therein of no more than the undivided third part of this inaccessible room. And it is also to be noted that each of the remaining two-thirds of the room was so to speak earmarked for inclusion in two further sale-deeds which, as is shown by this sale-deed, were contemplated as possible in the future for execution by <NAME> in favour of the respondents. The purpose of this sale-deed was to enable the " <ORG> Raj cases " to be financed to the extent of Rs. 24,000. It was apparently realized that this sum might not suffice for its purpose. Provision accordingly is made for the sale in the future by two further separate deeds each of two further villages outside of Gorakhpur each for Rs. 12,000, and in each case with a third of this sitting-room in Gorakhpur included as a separate parcel. It seems to their Lordships almost obvious that this inaccessible item of property valueless to the purchaser either in undivided shares or as an entirety was selected for service, even in advance, only in order that some colour for the registration of each deed in Gorakhpur might appear upon its face. And this conclusion is assisted by some evidence of <NAME>, the scribe who prepared it. He asked his principal, <NAME>, why a third share of the room was being entered in the deed, as it would be of no use whatever. The answer given in no way disputes that statement of <NAME>'s who was an ingenuous witness. He knew, he said, that if he agreed that the room was mentioned in the deed merely to enable its being registered at Gorakhpur the suit would fail on the ground of invalid registration. Yet both Courts held that the registration was valid.

Now the learned District Judge, so soon as he found that the sitting-room was an existing thing, so that its insertion as a subject of sale could not, as he thought, within the decision of this Board in <CITATION> (1914) L.R. 41 I.A. 110 : S.C. 16 Bom. L.R. 400 be regarded as " fictitious," decided that he was not at liberty to consider whether it was the intention of the parties that the sitting-room should be an effective subject of sale. They had kept within the letter of the law, he thought, and the registration must be upheld. It seems from some passages in his judgment that if he had felt himself at liberty to consider the intentions of the parties in this matter, he might have reached the same conclusion as that at which their Lordships have arrived.

In <ORG> the learned Judges were of opinion, and their Lordships think rightly so, that they were bound to go into this question of intention, and having done so they arrived at the conclusion that the entry of the sitting-room in the deed was not a fictitious entry within the meaning of the decision of the <ORG> already cited, and although on the facts of the present case one could not help feeling that the parties to the sale-deed under consideration attempted to juggle with the registration law, still the question was whether they had overstepped the bounds laid down by the law, and the learned Judges felt that that question must be answered in the negative.

In reaching that conclusion, however, they failed to refer to or to take into account all the circumstances which their Lordships have detailed, and it becomes the duty of the <ORG> to consider the question afresh in their light.

They have done so and, having regard specially, although not exclusively, to the facts that this undivided share in this sitting-room was agreed by one of the purchasers to be of no value, that both in respect of the interest taken in it and in respect of its complete inaccessibility, it was incapable either of being utilized or enjoyed by the purchaser; that the vendor refused to include in the sale any subject in Gorakhpur to which these disadvantages did not attach, they think that one of two inferences alone is possible : either that it was never intended by either party that the sitting-room should for any purpose other than that of registration be subject of sale at all, or that the vendor only included it because he knew that it never could become an effective subject of enjoyment or occupation by the purchasers. The word " fictitious " used in <CITATION> , ubi cit., is not confined to non-existing properties. It is satisfied if the deed does not " relate " to a specified property for any effective purpose of enjoyment or use.

In their Lordships' opinion, all the facts of the case, if not stronger, are at least as strong as those in either <CITATION> , ubi cit., or <NAME> v. <NAME> (1921) L.R. 48 I.A. 127 133 : S.C. 23 Bom. L.R. 629 and, paraphrasing the words used in the latter case, the circumstances here leave in their minds no doubt that the parties never intended that this undivided share of this sitting-room should really be sold. The so-called sale was a mere device to evade the Registration Act . On this last issue accordingly the appeal, in their Lordships' judgment, succeeds, and they will humbly advise His Majesty that it be allowed, that the decree of <ORG> be discharged and that of the District Judge restored.

The appellant will have his costs of the appeal to <ORG> and of this appeal.