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Report No. 185

Clauses (5) and (6) of section 32:

These two clauses can be taken up together. It was so done in the 69th Report.

Clause (5) of Section 32 refers to a statement which 'relates to existence of relationship' and clause (6) of section 32 to statement 'made in will or deed relating to family affairs'. In both sub clauses, wherever the word 'relationship' occurs, the words 'by blood, marriage or adoption' were added by Act 18/1872. These clauses are quite important in matters of pedigree and legitimacy.

In the 69th Report, it was recommended, after an elaborate discussion (see para 12.167) that no amendments are necessary in these two clauses.

The statement as to relation being made under clause (5) of section 32 by the deceased (or other person referred to in section 32) could be of the relationship of persons living at the time the deceased (or other person referred to in section 32) made the statement or even those who had died by that date. But under clause (6) of section 32 the statement is about relationship of deceased persons only. Statements must have been made before the dispute arose. Under clause (5) of section 32 special means of knowledge is necessary and not under clause (6) of section 32.

Family Bibles, coffin plates, mural tablets, etc. and even horoscopes, school registers come under these clauses. In certain respects cl.(5) is wider while in certain respects cl.(6) is wider. Under clause (5) of section 32, the maker must have special knowledge while under clause (6) the maker need not have special knowledge.

The English law is stricter in regard to pedigree evidence. While under the English law, a declaration made by the deceased person is admissible only when a question relating to pedigree is in issue, under clauses(5) and (6) a declaration is admissible to prove facts contained in them 'on any issue'.

In Dhanmull v. Ram : Ch. 24 Cal 265, Petheram CJ stated that law in India as to admissibility of statements of deceased persons relating to the existence of any relationship by blood, marriage or adoption is different from the law in England and the effect of the section is to make the statement aforesaid admissible to prove facts contained in the statement, on any issu.- whether relating to pedigree or not, but in other situations also to prove commencement of the relationship in point of time or the date of birth of the person in question.

Blood relation includes the degree of descent from a common ancestor. 'Existence of relationship' includes non-existence of relationship also (Suba Raut v. Dindayal AIR 1941 P. 205).

Further, in India, statements of persons deceased, other than blood relations are also admissible under clause(5), by persons having special means of knowledge. The restriction as to special means of knowledge is not there in clause(6) and it is sufficient if the statement is contained in the will, formal pedigree or tombstone etc. Thus, a family pedigree not admissible under clause (5) may be admissible under clause(6), but , it must be noted that clause(5) refers to existence of relationship between any person (dead or alive) while clause (6) refers only to relationship between deceased persons. Under both clauses, the statement must have been made ante litem motam, i.e. before the controversy arose (and not before the commencement of the court case).

Section 50 of the Evidence Act is also relevant in this context and deals with 'opinion on relationship, when relevant'. It reads as follows:

"Section 50: When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact.

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869), or in prosecutions under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)."

The difference between clause (5) of section 32 and section 50 is that section 50 makes the opinion expressed by conduct in cases of pedigree relevant. Under section 50, an opinion must be proved by the persons who held that opinion while section 32 deals with statements of persons who are dead etc. and cannot be called.

In England declarations by persons who are illegitimate were excluded on the ground they did not belong to the family. Section 47 of Act 2 of 1855 rescinded the English rule and also admitted declarations, not only of illegitimate members of the family, but also of persons who, though not related by blood or marriage, were yet intimately acquainted with the members and state or position of the family. Clause (1) of Section 32 would include, in India, statement of servants, friends and neighbours who are excluded under English law. (see para 12.163 of the 69th Report).

In the 69th Report, it has been stated in para 12.167 that no changes are necessary in clauses (5) and (6) of section 32.

We have referred to the basic principles governing pedigree evidence and allied matters and to the difference between English and Indian law. We agree with the view in para 12.167 of the 69th Report.

We may however refer briefly to a few cases after 1977. It has been held that original horoscopes though admissible under clause(5) of section32 their evidentiary value may depend on facts of the case. Horoscopes prepared subsequent to the time of birth but before the question in dispute was raised are admissible (The Secretary to Government Home Dept. v. Hari Rao AIR 1978 Mad 42). The statement in his will that defendant was his adopted son is admissible but it is not conclusive and the burden of proving adoption lies heavily on the person setting up the plea of adoption. (Banwarilal v. Trilok Chand AIR 1980 SC 419).

A statement of date of birth in a horoscope is not relevant under section 32. Any statement of a date of birth given in an horoscope is not a relevant fact under section 32 as it does not relate to 'relationship'. (Savitri Bai v. Sitaram AIR 1986 MP 219). When the case of a party is based on genealogy consisting of links, it is incumbent on the party to prove every link thereof and even if one link is found to be missing then in the eye of the law, the genealogy cannot be said to have been proved:(State ofBihar v. SriRadha Krishna Singh: AIR 1983 SC 684.

We agree that no amendments need be made in clauses(5) and (6) of section 32.

Clause (7) of Section 32:

This clause refers to statements 'in document relating to transaction mentioned in section 13, clause (a)' and states that when 'the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a).

This clause only refers to 'transactions' referred in clause(a) of 13 and not to 'instances' referred to in clause (b) of section 13. It does not include 'verbal' statements which words are contained in the opening part of section 32. section 13 applies to private and public customs and this section also applies to them. Clause (7) of section 32 does not permit oral evidence of reputation if statement in a document is relevant unlike English law where reputation evidence is generally not admissible in question concerning private rights. In some jurisdictions in US, proof of reputation may be received in proof of private boundaries (see Sarkar, 15th Ed., 1999 p. 727).

The effect of clause(7) of section 32 is that a statement of a relevant fact contained in any document which is admissible under clause (a) of section 13 could be itself a relevant fact, if the party making the statement were dead, or could not be found etc. The transaction referred to in clause (a) of section 13 is one relating to a right or custom and about its creation, assertion, recognition etc.

In the 69th Report, a proposal was made to restrict the scope of Clause (7) of section 32 by adding an Explanation that such statement will be relevant 'where the question in the proceeding now before the court is as to the existence of the right or custom'. The Explanation also clarified that it is not necessary that the parties to the document must be the same as the parties to the proceeding or their privies.

Though, there can be no objection to the latter part of the proposal in principle, we feel that it does not fit in with all the types of document referred to in clause (7) of section 32. For example, in the case of a will, there is no question of there being two or more parties to the will who can be identified by themselves or through their privies, in the proceeding inasmuch a will is a unilateral document and not between two parties. If the case law, as pointed out in the 69th Report, has broadly accepted the principle in the latter part of the proposed Explanation, there is no need to put it in any Explanation particularly when a 'will' does not fit into the language proposed to be employed.

So far as the first part of the Explanation is concerned, in the 69th Report, the Commission differed from the decision of the Patna High Court in Khudiram v. Amodebala AIR 1948 Pat 426 (see paras 12.171 to 12.175) and accepted the view of the Oudh Court in Rajnarayan v. Maharaj AIR 1937 Oudh 133 and took the view that "such statement is relevant where the question in the proceeding now before the court is as to the existence of the right or custom". For understanding this recommendation, it is necessary to refer to facts in the Patna case which were, in fact, discussed in detail in the 69th Report (para 12.171).

In that case, the mortgagor M (who died later) while executing a usufructuary mortgage stated that money to be received under the mortgage was necessary for the purpose of shraddha ceremonies of one S, who was dead by that time. S was, in fact, the real owner. The mortgagee was already in possession. Thereafter, there was a proceeding in the court which was not between the same parties to the document nor did it involve any right under the mortgage. On death of widow S, M had taken possession of the property and in the mortgage, he had admitted death of S.

In a later court sale, arising of a decree against M, the property was sold and purchased by A. The heirs of S's husband brought a suit for declaration and possession against A. The defence of A was that M had, before the court sale, acquired title by adverse possession for more than 12 years, and A relied upon the fact that the earlier mortgage by M referred to death of S and produced evidence of date of death of S, to prove his possession from about the time of death of S. By the date of the latter suit, M had died. As to the proximate time of death of S, the mortgage was put in evidence.

It was held that the statement of the mortgagor M about death of S was admissible in favour of the court auction purchaser A to prove the title of the mortgagor M by adverse possession of more than 12 years against S. The court held for purposes of clause (7) of section 32 reference to clause (a) of section 13 was necessary only in regard to the nature of the right and did not require the whole of section 13 (i.e. which also required the right or custom to be in issue) to be read into clause (7) of section 32. Statements made before the dispute arose i.e. ante litem motam, are entitled to weight.

The 69th Report differed from the judgment and stated that the statement in the document by the deceased M should have been excluded because the statement was by the mortgager against a court auction purchaser who purchased property in a court auction for money due by M, who was in possession of the property of the widow. The date of death of the widow was not directly in issue in the latter suit but was relevant indirectly only in relation to the main issue of adverse possession of M against the widow.

We may here go back to clauses (5) and (6) of section 32 where we pointed out that unlike English law, the statement of the deceased need not have a direct nexus with the issue arising in a later suit. The 69th Report accepted that position. On facts of that case, we are of the view, that the statement of deceased M about time of death of S was relevant and admissible though that date was not in issue in the latter suit and the only issue was as to M'k to clauses (5) and (6) of section 32 where we pointed out that unlike English law, the statement of the deceased need not have a direct nexus with the issue arising in a later suit.

The 69th Report accepted that position. On facts of that case, we are of the view, that the statement of deceased M about time of death of S was relevant and admissible though that date was not in issue in the latter suit and the only issue was as to M's adverse possession as against S and her heirs.

We do not find any good reason why the Commission stated in para 12.178 that "as a matter of policy, some restrictions need to be placed on the relevance of statements under clause (7)". We are unable to identify the 'policy' which the Commission had in mind while dealing with clause (7) of section 32 and why no such 'policy' was held applicable to clauses(5) or (6) of section 32. We are of the view that ante litem motam statements made are quite relevant and that it is not necessary to restrict the scope of clause (7) of section 32 when the provision has been there for more than 130 years in the present form particularly when the 'policy' has not been spelled out.

Thus, while we accept the second part of the proposed Explanation for clause (7) of section 32 we do not subscribe to the first pArticle In our view, the fact mentioned in the document to which the deceased is a party need not be in issue directly in the latter proceeding before the court. The Explanation proposed in the 69th Report, in our view, be modified as follows:

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."

In the result, we modify the recommendation in para 12.179 and after such modification, clause (7) of section 32 will read stated below, by using the actual words used in section 13 rather than merely referring to section 13. We propose Explanation as stated above.

We then come to the Exception proposed. It reads as follows:

"Exception: Nothing in this clause shall render relevan.-

(a) a recital as to boundaries containing a statement as to the nature or ownership of adjoining lands of third persons; or

(b) any statement made after the question in dispute was raised."

There is some controversy under clause (7) of section 32 whether a will or other document there can be a transaction. The Madras High Court in Periasami v. Veradappa AIR 1950 Mad 486 held that a will (though not intervivos) is a 'transaction'. The Calcutta High Court took a different view. We agree that a 'will' is a document which can 'create' a right and that the Madras view is correct. We are retaining the word 'will'.

We are omitting clause (a) of the proposed Exception which makes inadmissible the boundary recitals in documents not inter partes. The reasons given by us in our discussion under section 13 for rejecting a similar proposal for section 13 need not be repeated by us. See also our recommendation under clause (3) of section 32 in this connection. We propose an Explanation making boundary recitals relevant.

Therefore, we propose clause (7) of section 32 to be revised as under:

"(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:

Clause (8) of Section 32 refers to the statements of person who cannot be found or whose attendance cannot be procured and where the statement expressing feelings relevant to the matter in question. While section 14 refers to the relevance of expression of feelings of an individual, this section refers to feelings of a number of persons.

Illustration (n) is relevant here. It is the well-known case of 'Beauty and the Beast'(Du Bost v. Beresford (1810) 2 Cambell's Reports 511, 512)

"(n). A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libelous character. The remarks of a crowd of spectators on these points may be proved."

The facts of the case above referred to are set out in detail in Sarkar (15th Ed., 1999, page 730). Lord Ellenborough held:

"the declarations of the spectators, while they looked at the picture in the exhibition room, were evidence to show that the figures portrayed were meant to represent the defendant's sister and brother-in-law"

There, the defendant, brother of the lady whom the caricature portrayed, destroyed the picture and the suit was filed for damages against him.

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.



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