Report No. 185
(A) We recommend that the opening part of section 32 will have to be amended as follows:
"Statements, written or verbal, of facts in issue or relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose presence cannot be procured without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable, or who is kept out of the way by the adverse party, are themselves relevant facts in the following cases:"
We are of the view that the first recommendation in the 69th report that the statement as to cause of death of others should be made admissible by adding Explanation 2 is not acceptable to us.
(B) We disagree with the recommendations made in the 69th Report so far as clause (1) of section 32 is concerned and recommend that the said clause be left as it is.
Clause (2) of section 32
The Commission, however, recommended splitting up of clause(2) of section 32 in clauses (2) and (2A), the former dealing with the first part of clause (2) of section 32 which is general in nature and the latter, dealing with specific particular situations as follows.
We agree that clause (2) of section 32 be amended by splitting it up into clauses (2) and (2A) as follows:
"(2) or is made in course of business.- When the statement was made by such a person in the ordinary course of business and, in particular, and without prejudice to the generality of the foregoing provisions of this clause, when it consists of any entry or memorandum made by him in books kept in the ordinary course of business.
(2A) or is made in discharge of professional duty etc.- When the statement consists of an entry or memorandum made by such person in the discharge of professional duty or of an acknowledgement written or signed by such person in respect of the receipt of money, goods, securities or property of any kind, or of a document used in commerce, written or signed by him or of the date of a letter or other document usually dated, written or signed by him"
The Commission felt in its 69th report (see para 12.102) that the first interpretation had superior merit in bringing about clarity and avoiding artificiality. Accordingly, it was suggested (see para 12.103) that the first part of clause (2) of section 32, as it stands, should be confined to statements made 'in the ordinary course of business' and that a new clause should be introduced, namely, clause (2A) to deal with the enumerator type of statements in the second part of clause (2) of section 32, where the statements could be those made in the ordinary course of business or otherwise (as in the case of letter written by a husband to his wife of which Rammurthi v. Subba Rao AIR 1937 Mad 19 was quoted as an example.
We are in agreement with the recommendation for splitting up clause (2) of section 32 into clauses (2) and (2A) for purposes of clarity and for avoiding artificiality. We have already extracted the clauses (2) and (2A) as proposed.
Clause (3) of section 32
In the 69th Report, it was finally recommended that such recitals should not be admissible and that, therefore, an Explanation as stated below is to be added below clause (3) of section 32.
"Explanation.- Recitals of boundaries containing statements as to the nature or ownership of adjoining lands of third persons are not statements against pecuniary or proprietary interest within the meaning of this clause".
We are not in favour of adding the Explanation below section 32(3) as suggested above.
We have recommended insertion of an Explanation in section 13 as Explanation II so far as boundary recitals are concerned. We recommend a like Explanation be added below clause (3) of section 32 as follows:
"Explanation.- A recital as regards boundaries of immovable property in document containing such statements, as to the nature or ownership or possession of the land of the maker of the statement or of adjoining lands belonging to third persons, which are against the interests of the maker of the statement, are relevant and it is not necessary that the parties to the document must be the same as the parties to the proceedings or their privies."
Clause (4) of Section 32
We have perused the reasons given and we agree with the view that no specific amendment is necessary in clause (4) of section 32.
Clauses (5) and (6) of Section 32
We agree that no amendments need be made in clauses (5) and (6) of section 32.
Clause (7) of Section 32
Clause (7) of section 32 should read as follows:
"(7) or in documents relating to transactions mentioned in section 13, clause (a).- When the statement is contained in any deed, will or other document, being a deed, will or other document which relates to any transaction by which a right or custom was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence, as mentioned in clause (a) of section 13.
Explanation I.- Such statement is relevant where the question in the proceeding now before the court is as to the existence of the right or custom or if such statement related to facts collateral to the proceeding and it is not necessary that the parties to the document must be the same as the parties to the proceeding or their privies.
Explanation II.- A recital as regards boundaries of immovable property in a document containing such statement, as to the nature or ownership or possession of the land of the maker of the statement or of adjoining lands belonging to third persons, shall be relevant and it is not necessary that the parties to the document must be the same as the parties to the proceeding or their privies."
Clause (8) of Section 32
In the 69th Report, it was observed that clause (8) of section 32 did not require to be amended (see para 12.189). We agree with this recommendation.