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Report No. 185

Section 13

Section 13, as it stands now, reads as follows:

"Section 13: Facts relevant when right or custom is in question: Where the question is as to the existence of any right or custom, the following facts are relevant:-

(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence;

(b) particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from."

There is an illustration below section 13.

This is quite an important section particularly in relation to (a) relevance of earlier judgments not inter partes or findings in such judgments and (b) relevance of boundary recitals in earlier documents not inter partes. The matter requires close examination in the light of the proposals in the 69th Report for adding an Explanation and an Exception below section 13.

Analysing the section, it will be seen that

(A) Clause (a) refers to "transactions" by which the right or custom in question was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence, and

(B) Clause (b) refers to 'particular instances' in which right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.

Apart from the use of the words 'by which' in clause (a) and 'in which' in clause (b), we find that the words 'created', 'modified' are not used in clause (b).

We mainly find that so far as the 'right' or 'custom' which is in "question" is concerned, there is a controversy with regard to relevance of (1) 'judgments' not inter partes as also (2) recitals in 'documents' not inter partes.

The case law on these two aspects is voluminous and conflicting radically but on one aspect the controversy is set at rest by judgments of the Privy Council and the Supreme Court in accepting that a 'Judgment' is a 'transaction' for purposes of section 13. But there is still controversy as to whether any 'findings' given in an earlier judgment not inter partes are relevant.

So far as recitals in documents are concerned, there is no controversy that several types of documents come within the meaning of the word 'transaction' while some other documents come under 'particular instances'. But there is again controversy as to relevance of boundary recitals in documents not inter partes.

Yet another aspect is that some commentators have said that the words 'by which' in clause (a) require that the earlier judgment or document (i.e. transaction) though not inter partes must be one 'by which' the right or custom was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence and that for applicability of clause (a), it is not sufficient that there is a reference "in" in prior judgment or document, not inter partes, on the above aspects. They say that only in clause (b) of section 13, the word 'in' is used.

Yet another view is that if the right or claim is against a person's interests, it is admissible but not if it is an earlier self-serving statement in one's favour.

These are the various controversies under section 13.

In the 69th Report, the Commission recommended the insertion of an Explanation and Exception below section 13 as follows:

"Explanation: A previous legal proceeding, whether it was or it was not between the same parties or their privies, may be relevant as a transaction or instance, within the meaning of this section; and, when a legal proceeding so becomes relevant under this section, a judgment delivered in that proceeding is admissible as evidence of such legal proceeding, but not so as to make relevant the findings of facts or the reasons contained in the judgment; but nothing in this Explanation is to affect the relevance of a judgment under any other section.

Exception: Nothing in this section shall render relevant recitals of boundaries in documents which are not between same parties or their privies."

We have examined the case law prior to 1977 when the 69th Report was given and to the latter case law and we find that the above recommendations require some modifications.

So far as the first part of the proposed Explanation is concerned, there can be no disput.- when it says that a previous legal proceeding may be relevant, whether it was or was not between same parties and that a judgment delivered in that proceeding will be admissible as evidence of such legal proceeding. The question is with regard to the latter part of the Explanation which says that relevant findings of fact contained therein are not admissible. So far as reasons are concerned, of course, they cannot be admissible in a later legal proceeding.

Question also arises with regard to the proposed 'Exception' and whether the recitals in documents not inter partes are inadmissible whether the document comes under 'transaction' in clause (a) or under particular instances in clause (b).

Having identified the scope of discussion, we shall now refer to the case law on the subject, including the case law after 1977.

So far as 'Judgments' not inter partes are concerned, the Privy Council treated them as admissible under section13 falling within the meaning of the word 'transaction'. See Ram Ranjan v. Ram Narain (1895) ILR 22 Cal. 53.- 22. IA 60 and Dinomoni v. Brojo Mohini: (1901) ILR 29 Cal. 18.- 29. IA 24 and this position was clarified in Collector of Gorakhpur v. Ram Sunder Mal (AIR 1934 P.C. 157 = 51 IA 286), wherein Lord Blanesburgh observed, criticizing the opposite view held by Sir John Woodroffe in his commentary, as follows:

"He (Woodroffe) would hold that they (statements in Judgments) are not admissible at all under section13; but this view is not in accordance with the decisions of the Board in Ram Ranjan Chakerbati v. Ram Narain Singh and Dinomoni v. Brojo Mohini."

On this aspect, there is no difficulty because the Supreme Court of India has taken the view that a judgment not inter partes is relevant as a 'transaction' under section13 and admissible. See Srinivas v. Narain (AIR 1954 SC 379) (three learned Judges); a Judgment is a 'transaction' according to Sital Das v. Sant Ram, AIR 1954 SC 606 (four learned Judges). These Judgments were followed in 1999 in Tirumala Tirupathi Devasthanams v. K.M. Krishniah 1998 (3) SCC 331 = AIR 1998 SC 1132 (two learned Judges). The last Judgment was followed recently in Madhukar D. Shende v. Tarabai Shedage, JT 2002 (1) SC 74 (two learned Judges).

No doubt, a three Judge Bench of the Supreme Court in State of Bihar v. Radha Krishna Singh AIR 1983 SC 684 (at 711-712) took a contrary view but in view of the Judgment of four learned Judges in 'Sital Das' case (in 1954) referred to above and the consistent view taken in a large number of cases, we cannot regard this case as governing section13. The court, unfortunately, did not refer to the two earlier rulings of 1954.

Further, the court referred to two earlier Judgments of the Privy Council rendered before the enactment of the Indian Evidence Act, 1872 and also to other decisions of the Privy Council, which, while holding section13 not applicable, relied on the English law on the subject, which is different. We may state that in the 69th Report, the Law Commission referred to the fact that the English law here was different (see paras 8.71 to 8.73) as pointed out by Mahmood J. in Collector of Gorakhpur v. Palakdhari ILR 1899 12 All.1.

Therefore, we start with the premise as accepted in several Judgments and as accepted in the 69th Repor.- that Judgments not inter partes are admissible under clause (a) of section13 as 'transactions'.

The next question is as to what extent they can be looked into. We agree with the 69th Report that the 'reasons' given in the earlier Judgment not inter partes cannot be treated as admissible in a latter case.

Next question is whether earlier 'findings' are relevant.

We have already referred to the decision in Dinomoni v. Brojo Mohini (1901) ILR 29 Cal. 187 = 29 IA 24 whose correctness was reiterated in Collector of Gorakhpur v. Ram Sunder Mal (AIR 1934 P.C. 157). In that Judgment, Lord Lindley observed that the previous Judgement not inter partes, can be looked into for the purpose of noting "who the parties were, what the lands in dispute were and who was declared entitled to retain them".

In Collector of Gorakhpur v. Ram Sundar AIR 1934 P.C. 157 it was held that "the view in Dinomoni's case that "on general principles and under section13", orders made under the Criminal Procedure Code are admissible for the purposes mentioned in the passage at p.191 from the Board's Judgment" (Lord Lindley's Judgment in Dinomoni). (This has obvious reference to "who the parties to the dispute were; what the land in dispute was; and was declared entitled to retain possession".) It was further observed that the decree to which the pedigrees were attached could be evidence that such pedigrees were filed in the suit of 1805 and it was further observed as follows:

"All really wanted here in order to prove that the pedigree filed by the Rani in 1805, is an admission of defendant 2'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 offices 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 135.

In their Judgment moreover the two decisions of the Board already referred to are sufficient authority for holding it admissible under section 13. The pedigree filed by the Rani in 1805 if admissible is clearly a relevant admission under section 21 against the present Rani as her representative in interest, and an admission within the definition in section 18, Evidence Act."

First the pedigree filed in the earlier case is evidence and the admission of relationship therein is also admissible against the person who filed it.

In Srinivas v. Narayan (AIR 1954 SC 379), there was a previous suit for maintenance by a widow in a Hindu Joint family. It was prayed that the maintenance be a charge on the joint family property. Amount of maintenance was to depend on extent of joint family property. An issue was framed in that suit as to the extent of the family property. In the latter suit for partition, where there was a plea that the properties were self acquired properties, the earlier judgment was held admissible for the purpose of referring to an assertion that certain properties belonged to joint family.

In Sital Das v. Sant Ram AIR 1954 SC 606, the question was whether Sital Das was a spiritual collateral of one Kishore Das, the last Mahant who died on 4.4.1945 and to which office Sital Das laid claim as a 'Bhatija Chela'. He claimed to be a descendant of the fourth degree from Ram Krishna Das through whom late Kishore Das had also traced his spiritual lineage. Ram Krishna Das had a disciple Brahm Das, his disciple was Mangal Das, the latter's disciple was Sadhu Ram Das and plaintiff (Sital Das) was a disciple of the said Sadhu Ram Das. The earlier Judgment of 1912 was one in a suit filed by Kishore Das wherein he asserted his right as a spiritual collateral of Mangal Das, thus accepting Mangal Das was a disciple of Ram Krishna Das.

That admission would, in its turn, make the plaintiff (Sital Das) as a fourth degree descendant. The Supreme Court held that the earlier Judgment was admissible "as a transaction in which Kishore Das asserted his right as a spiritual collateral of Mangal Das and on that footing got a decree. The decree also recognized the right of Kishore Das to institute the suit as such collateral. The Judgment can be used in support of the oral evidence adduced in the case it is fully established that Sital Das was a spiritual collateral of Kishore Das".

In Tirumala Tirupati Devasthanams case (AIR 1998 SC 1132), the Devasthanam, representing the deity Balaji of Tirupathi, was the defendant in the suit of 1968 by the plaintiff (Krishnaiah) and it relied upon an earlier judgment of 15.6.1942 in a suit of 1937 filed by it against the Hathiramji Mutt, to prove its title and that judgment referred to title deeds in favour of the deity of the year 1887 and documents showing possession of the deity from 1846. The Devasthanam had obtained possession of the land through Court in EP No.2 of 1946. The respondent claimed possessory title. The Supreme Court referred to Dinamoni v. Brojo Mohini (1902) ILR 29 Cal 190 and held that the Devasthanam could rely on the earlier judgment as evidence of its title.

In Madhukar D. Shende's case (JT 2002(1) SC 74), the registered will upon which the appellan.- plaintiff relied against the respondent (an encroacher on the property) and whose validity was in question was held valid in an early suit filed by the same plaintiff in respect of another property held by the same defendant, but as tenant. Both properties were covered by the will. An argument was raised for defendant that the earlier judgment was not res judicata because the property was different, though covered by the same will. The Supreme Court held that, whatever be the position so far as res judicata was concerned, the earlier judgment was relevant under

The section, it will be noticed, refers in clause (a) to any transaction by which the right was "created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence". The word 'recognised' means here, 'right recognized in the earlier transaction' i.e. 'right recognized in the earlier judgment'. sectiona finding in an earlier judgment not inter partes declaring title of one of the parties not then come within the above words, if the finding was regarding recognition of title to property or blood relationship?

In Gobinda Narayan v. Shamlal AIR 1931 P.C. 89, decided by the Privy Council raises a problem. It states:

"A judgment not inter partes holding that a partition of a certain estate was proved is only admissible under the provisions of sections 13 and 43 as establishing a particular transaction in which the partibility of the estate was asserted and recognized"

Up to this point there is no quarrel. But then, the next sentence is as follows:

"The reasons upon which the judgment is founded are no part of the transaction and cannot be so regarded nor can any finding of fact there come to, other than the transaction itself, be relevant to prove partition in a subsequent suit."

Here too, there can no quarrel that reasons given in one judgment may not be relevant while dealing with another dispute later on. But, what the Privy Council meant by stating that 'finding of fact, there came to, other than the transaction itself' cannot be relevant is a matter for examination. Let us assume that the earlier finding is one relating to 'recognition of a right'. Can it then be said that it is not 'admissible'? In fact, the previous sentence quoted accepts that 'recognition' of a right in an earlier judgment is relevant. Any other view will be in the teeth of the language of section 13.

One has to read the facts closely in the above case. The earlier judgment was concerned with partibility of property and if it was an 'impartible estate', the estate was obviously not partible. The earlier suit related to Pandan estate, held partible, while the latter suit related to Achra estate. The Privy Council held (in the following sentence after the above extract) referring to the earlier judgment, as follows:

"The judgment therefore is no evidence that Thakur Sib Singh got the Achra villages by partition; it is at most evidence that he might have done so, and this is plainly not sufficient..."

It held Achra estate was impartible according to the custom and other evidence. Thus, the case related to different properties and hence the earlier finding regarding one property was held not relevant in a latter case relating to different properties.

We find that without noticing these facts some High Courts have adopted the view that findings in earlier judgments not inter partes are not admissible. Some other High Courts have indeed taken the view that they are admissible. What did the Privy Council mean by the words "other than the transaction itself" while stating 'the finding of fact, other than the transaction itself' is not relevant, is not clear.

It is in the light of the analysis of the judgments of the Supreme Court and of the Privy council (like Dinomoni), we have to finally decide whether findings in earlier judgments.- even if they relate to recognition of a righ.- have to be declared inadmissible as proposed in the latter part of the Explanation proposed to be added to section 13 by the 69th Report, i.e. excluding all findings in the earlier judgment.

On a consideration of the judgments of the Supreme Court where findings as to title to property or as to blood relationships were treated as 'recognition' of rights, we are, with great respect, not able to accept with the second part of the Explanation as proposed in the 69th Report where all findings are excluded.

In our view, it is necessary to say that even 'findings in earlier judgments' may be relevant, if the right to dispute in the latter case was closely connected with the finding in the earlier case.

Another aspect is that the opening part of the proposed Explanation uses the words "whether it was or it was not between the same parties or their privies". Now, if parties or privies are the same, a principle of resjudicata will itself be attracted and there is no need to fall back upon section 13. We, therefore, propose to delete these words also.

In our view, it will be sufficient to add an Explanation as follows:

"Explanation I:- A previous legal proceeding, whether it was or was not between the same parties or their privies, may be relevant as a transaction or instance, within the meaning of the section; and when a legal proceeding so becomes relevant under this section, a judgment or order delivered in that proceeding is admissible as evidence of such legal proceeding; findings of fact but not the reasons therefor contained in such a judgment or order are relevant; but nothing in this Explanation shall affect the relevance of a judgment or order under any other section."

So far as to what extent the names of parties, or the description of laws or as to the rights recognized etc., we do not think that any detailed provisions be made and that the existing decisions of the Supreme Court are clear enough. We need not say 'findings' in the earlier case are relevant or that 'reasons' in earlier cases are not relevant.

Statements or recitals (including boundary recitals) in documents not inter partes

This aspect concerns the Exception proposed in the 69th Report by which statements as to boundaries in documents not inter partes are sought to be excluded.

We shall start with a simple example. A sold by registered deed, property to B in 1980 on to his eastern side and describes the boundaries as follows (area and length of boundary also given):

East: property of Mr. P (100 feet)
South: property of Mr. Q (200 feet)
West: property of Mr. A (100 feet)
North: property of Mr. R (200 feet)
 

(200')
R

 

N

 
A (100')

B

P (100')    
 

(200')
Q

     

In the year 2000, a dispute arises in regard to an encroachment by B, the purchaser, into the property of R on the north and R files a suit against B and R wants to rely on the sale deed by A in favour of B to show the location of R's property on the north of B's property and its measurements. Or let us take a case where R encroaches into B's property as purchased and B relies upon his sale deed from A. May be R may have a case that A sold to B property which did not belong to A. R may be having documents to prove that he owns the part of land he is alleged to have encroached into B's property or has no evidence at all.

The question here is whether, whatever be its strength, the recitals in A's sale deed to B as far as the sale of property to his eas.- are relevant or not. It is true R is not a party to it. In the first example where B encroached into R's property, R may say that the sale deed amounts to an admission that B had no right to any property shown therein to belong to R.

In the second example where R is the encroacher, B may say he purchased this property from A and was put in possession in 1980 and R never interfered with B's possession for 20 years or more. In the latter case, it is not an admission but is a fact relating to a boundary within the knowledge of an immediate neighbou.- A who had claimed that he was the owner of the plot to the south of R's property and had sold it to B in 1980.

In both these examples, one can, on plain common sense, say that the northern boundary recital is some evidence in the first example against B and in favour of R and in the second example, in favour of B and against R. In the earlier transaction evidenced by the document, title and possession was claimed or asserted by the parties to the document. We are only saying that the boundary recitals recognize but do not create rights nor are they conclusive.

What we have said in relation to boundary recitals equally applies to other statements in earlier documents.

When we come to the case law, there is clear divergence of views among the High Courts, some holding that statements or boundary recitals not inter partes are not admissible while other High Courts say they are admissible though not conclusive. We shall, therefore, confine ourselves to the judgments of the Privy Council and Supreme Court.

In (1861-63) 9. M.I.A. 344 (PC), Arya Brahmins claimed 'purohitam' right as against Parishai Bhattars and relied on evidence of a deed of 1675 by Adhayam Bhattars (i.e. 3rd parties) to Aryas. Deed of 1675 was held to be evidence that Aryas claimed the right and that Adhayam Bhattars admitted the right of Purohitam of Aryas.

No doubt, in Shrinivas Das v. Meheubai AIR 1916 PC 5 (44 IA 36) the Privy Council held that recitals in deed are only evidence as against the parties to the deed or those who claim through or under them. Here their Lordships were considering whether an admission by one party in a document is binding on a non-party. Obviously, it is not. They did not have to decide their relevance against others.

In several cases, it is accepted that a statement in an earlier document, not between parties, if it is against the interests of the person who made the statement, would obviously be relevant in a later suit not inter partes but to which the person who made the statement is a party and that, on the other hand, a statement, though self-serving may be relevant though its evidentiary value may be weak. To say it is wholly inadmissible, may not be the correct view to take. We are again not in agreement with the view in this regard expressed in the 69th Report.

Now, the Exception proposed in the 69th Report, though confined to boundary recitals, is as follows:

"Exception: Nothing in this section shall render relevant recitals of boundaries in documents which are not between the same parties or their privies."

In the light of the earlier discussion, we are of the view, with great respect, that this may not be the correct view to take. We, therefore, drop this proposal.

We, further recommend, in order to make the legal position clear, that Explanation II be added as follows:

Explanation II :- Recitals in documents which are or not between the same parties or their privies, including recitals regarding boundaries of immovable property are relevant in a legal proceeding."

Thus, we recommend Explanations I and II below section 13 as stated above.



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