Report No. 69
VI. Revised Section 32(1)
(1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Explanation 1.-Such statements are relevant whatever may be the nature of the proceedings in which the cause of death of the person who made them comes into question.
Explanation 2.-The circumstances of the transaction which resulted in the death may include facts relating to the death of another person.
12.65. Declarations in course of business.-
Declarations made in the course of business are dealt with by section 32(2) in these terms:
"When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him 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."
12.66. Different phraseology of business.-
It may be noted that expressions referring to the "course of business" occur also in sections 16, 34, 47, 114 and in the illustrations to section 114. Section 16 speaks of a "course of business" according to which "naturally an act would have been done"; section 34 speaks of books regularly kept in the "ordinary course of business". Section 114 speaks merely of "common course of public and private business". The phraseology, thus, differs in the various sections. The difference in phraseology does not appear to have caused any difficulty. The applicability of clause (2) depends entirely on the exact meaning of the words "course of business"1
1. Hingava v. Bharatnappa, ILR 23 Born 63.
12.66A. Duty not necessary.-
Clause (2) does not, in terms require that it must be the duty of the person who made the statement to make that statement. The broad category with which the clause begins is expressed by the words-"in the ordinary course of business". What follows is an enumeration of particular situations, of which one relates to statements made "in the discharge of professional duty". This may be described as the illustrative part of the clause. The object of this illustrative part, in reciting the particular cases, is obviously not to restrict the general applicability of the clause.
12.67. English rule.-
The English rule of evidence, of which the case of Brain v. Preece is the best illustration, is briefly and clearly stated in Stephen's Digest of the Law of Evidences1. "A declaration is relevant when it was made by the declarant in the ordinary course of business, or in the discharge of professional duty, at or near the time when the matter stated occurred, and of his own knowledge."
The word "or" should now be read2 as-"and"
1. See "English Law-Declarations in the course of duty", infra.
2. Stephen's Digest, quoted in Reg. v. Hanmanta, ILR 1 Born 616.
12.68. English law-Declarations in the course of duty.-
The subject is usually dealt with, in England, (under the corresponding rule of the common law)- under "Declarations in course of duty". A declaration is relevant when it was made-(i) by a declarant who is dead, and (ii) in the discharge of his profession duty, (iii) at or near the time when the matter stated occurred, (iv) on persona knowledge, and (v) there was no motive to misrepresent.
12.69. It now seems to be accepted in England that the existence of a duty is necessary. The statement of the law, by Stephen1, requires modification on this point.
1. Stephen's Digest, quoted supra.
12.70. Thus, in an English case, a certain entry ran thus1: "April 4th 1825, W. Worsell came as farm-hand; and to have for the half-year 40 s. "Lord Denman,
C J . observed:
"The book here does not show any entry operating against the interest of the party. The memorandum could only fix upon him a liability on proof that the services had been performed."
1. Inhabitants of R. v. North, 4 QB 132 (134).
12.71. English law requirement of contemporaneity.-
Again, under English law, as already stated1 entries in the course of business must be shown to have been made contemporaneously2 with the facts to which they relate. Amid the hurry and distraction of business, it is argued, the particulars of matters not entered at the time may be forgotten or misstated. The provisions of the Indian Act contain no similar restriction as to the admissibility of this kind of evidence. However, in determining the weight to be allowed to it in particular cases, it will always be important to consider how far the statement or entry was contemporaneous with the fact to which it relates.
"The sale of a valuable Cashmere shawl might be entered a day or two after, without any risk of error, while a retail shopkeeper would have some difficulty in remembering on the following morning the particulars of a couple of dozen articles sold at different prices-this single transaction being one or fifty of a hundred similar sales made on the same day3".
1. See supra.
2. The Henry Coxon, 3 FD 156 (2 days' delay fatal).
12.72. Nature of the duty required in England.-
With reference to the second requirement of English la.- the requirement of duty-it has been said1 that the duty must not be a general one, involving a variety of acts that may change from time to time, but specific and two-fold-i.e. to do a particular act and to record or report it when done. There must have been a duty to record or otherwise report the very thing2. The duty must also be to do the very thing to which entry relates, and then to make a report or record of it. Finally, the duty must have been actually performed.
1. (a) Sturla v. Freccia, 5 App Cas 347, (Lord Blackburn); (b) Monrcer v. Denna, (1905) 2 Ch 538 (558) (CA).
2. Smith v. Blackey, 1867 ILR 2 QB 326 (332) (per Blackburn, J.).
12.73. English law.-
Exclusion of collateral matters.-In English law, as already stated, entries made in the course of business are evidence only of those things which, according to the course of business, it was the duty of the person to enter, they are no evidence of independent collateral matters. In the case of Chambers v. Bernasconi, 1834 Crompton, Meeson and Rescoe's Reports, 347 (368), Meeson and Rescoe's Reports, 347 (368), Lord Denman, delivering the unanimous opinion of the Exchequer Chamber, said: "'We are all of opinion that whatever effect may be due to an entry made in the course of any office, reporting facts necessary to the performance of a duty, the statements of other circumstances, however naturally they may be thought to find a place in the narrative, is no proof of those circumstances."
12.74. This restriction on admissibility is also not to be found in the Indian Evidence Act. The statement or entry, in order to be admissible under the Act, must relate to a relevant fact. But it is immaterial whether this fact is connected with the performance of a duty, or is merely an independent collateral matter.
12.75. Personal knowledge necessary in English law.-
Under English law,1 it is essential that the declarant should have had personal knowledge of the matters stated. The Indian section simply requires that entries in accounts should, in order to be relevant, be regularly kept in the course of business; and although it may, no doubt, be important to show that the person making or dictating the entries had, or had not, a personal knowledge of the facts stated, this is a question which, according to the Indian rule of Evidence, affects the value and not the admissibility, of the entries2.
1. See Stephen, quoted supra.
2. Reg. v. Hanmanta, 1877 ILR 1 Born 610 (616, 617).
12.76. Whether statements sufficient to charge with liability.-
It may be of interest to consider the question whether, under section 32(2), the statements in books of account kept in the ordinary course of business are sufficient evidence to charge any person with liability. In this respect, section 34 may be contrasted: that section specifically provides that while entries in books of account regularly kept in the ordinary course of business are relevant, such entries "shall not alone be sufficient evidence to charge any person with liability." Under that section, thus, there has to be evidence to prove the transactions which may appear in the books of account1.
1. Chandradhar v. Gauhati Bank, AIR 1967 SC 1058.
12.77. Of course, the testimony of the plaintiff himself on oath in support of the entries could corroborate the entries, and suffice to fix the defendant with liability under section 34. In fact, it has been held1-2 that such corroboration as is required by section 34, would be best afforded by the evidence of the person who knows the books of account and in whose presence the transaction took place.
1. Kaka Ram v. Thakur Das Mathra Das, AIR 1962 Punj 27.
2. Ram Gobind v. Gulab Chand, 1940 ILR 20 Pat 273.
12.78. This difference between section 32(2), on the one hand, and section 34, on the other hand, has been noticed by the courts1 which have, in general, held that while the entries under section 32(2) do not suffer from any statutory disability such as is provided in section 34, the court is not bound to accept them without corroboration, that being a matter on which it must exercise a discretion as a fact..-3
1. See also Dzvarka Dass v. Babu Jankidass, (1855) 6 Moo IA 88 (98).
2. Ramnvari Bai v. Balaji, ILR 28 Born 294.
3. Kachrulal v. Nand La!, ILR 1955 Nag 618.
12.79. Charge not needed to declare the entries to be insufficient.-
Having regard to the fact that the person who made the entry under section 32(2) is not available as a witness at the final. We would not like to disturb the present position in this regard by inserting any such disability as attaches to entries under section.
12.80. In this connection, we have taken note of the learned and illuminating Liscussion by Mukerji J. in Gopeswar's case1. He observed-
"Section 43 of Act II of 1855 was as follows: "Books" proved to have been kept in the course of business "shall be admissible as corroborative and not as "independent proof of the facts therein stated". In section 34 of Act I of 1872, the words "regularly kept" are substituted for the words "proved to have been regularly kept" and in the illustration to the section the word used in "shows" and "proves". It is apparent, therefore, that the law embodied in section 34 of Act I of 1872 is not quite the same as was contained in section 43 of Act II 1855, and this seems to be conceded on all hands.
The expressions "corroborative evidence", "independent evidence" and "substantive evidence" that are found in many of the reported decisions bearing upon section 34 of Act I of 1872 are somewhat out of place in view of the wording of that section and have been handed down to us from the words "corroborative" and "independent" that appeared in section 43 of the old Act and those words as well as the word "substantive" that were used in the decisions thereunder. The present Act deals, amongst others, with the relevancy of evidence and in some instances with the probative value.
The plain words of section 34 indicate that the section deals with all entries in books of accounts regularly kept in the course of business; in the first place, making them relevant whenever they refer to a matter into which the Court has to enquire, and next, providing that when such entries are sought to be used as statements for a particular purpose, namely, to charge any person with liability, they shall not alone be sufficient evidence for that purpose. Section 32 clause (2), makes relevant a statement, consisting of an entry, made by a person, who is not a witness before the Court, in books-not necessarily books of account but-kept in the ordinary course of business.
A book of accounts may be one of such books, and where an entry appears in a book of accounts it comes both under section 32, clause (2), and section 34. The illustration to section 34 makes it plain that, if the book of accounts is regularly kept in the course of business, the entry will be relevant notwithstanding that the person who made the entry has not been examined to prove the truth of the transaction to which the entry relates and notwithstanding that he is available as a witness. The only material difference as between an entry relevant under section 34 and one relevant under section 32 clause (2), is that in the former case the person who made the entry may be available as a witness, while in the latter case he is not.
I find it2 very difficult to appreciate on what ground the legislature could intend to exempt entries relevant under section 32, clause (2) from the disability that it imposes on entries relevant under section 34 by the second part of that section, and personally I have always felt inclined to take the view that such entries, no matter whether they are relevant under one section or under the other, are not to be considered as alone sufficient to charge any person with liability.
The other view, however, namely that the letter part of section 34 applies only to such entries which are relevant only under section 34 and not under section 32, clause (2) is backed by the high authority of Sir Lawrence Jenkins C. J. in the case Rampyarabai v. Balaji Shridhar, 1904 ILR 28 Bom 294 and has been accepted as correct in other cases (e.g. Daji Abaji Khare v. Gohind Narayan, (1908) 10 Bom ILR 81, Bapat Personally, I entertain grave doubts as to whether this could have been the, intention of the Legislature or, if it was, it would not have been declared ii much clearer terms.
Fortunately, however, in practice we seldom come acros, a case in which the entry which comes under section 32 clause (2) is reall. sought to be used alone to charge any person with liability." Kukha Mandal v. W. N. Grant, (1912) 16 CLJ 24, Aktowli v. Tarak Nath Ghose, (1912) 17 CWN 774: 16 CLJ 328) and it is perhaps too late to contest it. If this other view is adopted, it should be held that it was intended by the Legislature that where the maker of the entry is available as a witness the entry alone will not be sufficient proof to charge a person with liability but, where the maker is not available as a witness but the entry is relevant by reason of one or other of the conditions mentioned in the opening paragraph of section 32 being present, there is no statutory obligation 'to look for anything else to find the liability.
"Personally, I entertain grave doubts as to whether this could have been the intention of the Legislature or, if it was, it would not have been declared in much clearer terms. Fortunately, however, in practice we seldom come across a case in which the entry which comes under section 32 clause (2) is really sought to be used alone to charge any person with liability."
1. Gopesivar Sen v. Bejoy Chand Mahator, 1928 IL.R 55 Cal 1175.
2. Emphasis added.
12.81 to 12.83. Though we recognise the weight of this comment of Mukerjee J, we think that section 32(2) was intended to leave the matter to the discretion of the trial Judge and, having regard to all aspects of the matter, it is not in our view desirable to amend it by inserting a provision such as is to be found in section 34.
12.84. Section 32(2)-"Ordinary course of business"-Controversy.-
In regard to the question whether the requirement of the statement having been made "in the ordinary course of business" must be fulfilled even as regards the species of statements which are specifically enumerated in clause (2), there is some obscurity.
12.85. A little analysis will show that the clause is not well-constructed on this point. Entries in books kept in the discharge of "professional duty" are, for example, specifically referred to in the clause. Do they add to "ordinary course of business", or do they not? It is also not clear whether an acknowledgement etc. (specifically mentioned in the latter part of the clause), must be in the ordinary course of business.
12.86. Case law.-
Most of the cases approach the problem by Interpreting the words "ordinary course of business". They do not analyse the structure of the clause. In an Oudh case1, for example, a receipt executed by a deceased person, and stating that the disputed property formed the boundery to an adjacent plot, was, without specific discussion, described as a "statement made by a deceased person in the ordinary course of business", and it was stated that though it was week type of evidence, yet it was admissible. The person who made this statement was a cousin of the parties. The document was admitted to prove the "reputed ownership" of a certain property.
1. Ahmed Shaft v. Zail Ahmed, AIR 1928 Oudh 248 (Fulton, J.).
12.87. In a Madras case,1 this approach finds a more positive illustration. A person wrote a letter to his wife, making a reference to a family settlement, such as, to tell his uncle that he would execute a mortgage deed in favour of the uncle. This letter was filed to prove the family settlement. It was held that section 32(3) did not apply, because the admissions of liability were only parts or a larger statement asserting a settlement, but section 32 clause (2) would apply, because the statement was made to his wife "in the ordinary course of business". The point was described as difficult, but the view taken was that the expression "in the ordinary course of business" means "in the way that business, which may be even private or of a trivial nature, is conducted", and has no connection with a course of business which suggests a series of acts of business.
1. Ramamurthi v. Subbarao, AIR 1937 Mad 19 (20).
12.88. The view expressed in a Bombay case1, that the exception extends only to statements made during the course not of any particular transaction of an exceptional kind such as execution of a deed of mortgage, but to transactions of business or professional employment in which the declarant was ordinarily or habitually engaged, was dissented from in the Madras case.
1. Ningamma, 1898 ILR 23 Born 53 (63, 65, 66, 70) (Candy and Fulton, JJ.) followed in Soney Lail v. Darbdeo, AIR 1935 Pat 167 (168).
12.89. The clause, it may be noted, also mentions entries etc. made in books kept in the discharge of professional duty. The significance of this portion is obscure.
12.90. In a case decided by the Supreme Court1, Panaji's registers maintained by professional generalogists and containing tables of pedigree, were held to fall within section 32. But the question of "duty" was not involved, and it would appear that the court emphasised the fact that "it is the business of these 'panjikars' to collect this evidence about pedigrees"..
1. Sitaji v. Vijendra Narain, AIR 1954 SC 601 (604), para. 18.
12.91. Rejecting the contention that the entry should have been made before a controversy arose, the Supreme Court pointed out that section 32(2) did not contain any such limitation. "It is enough if it was made in the ordinary course of business".
12.92. An Allahabad case1 is more specific on this point. In that case, an entry in a diary made by a Sub-Inspector of Police then dead, was regarded as falling within section 32(2), and the High Court observed that "there could be no doubt that the Sub-Inspector made these entries in the discharge of his professional duties".
1. Abdul Aziz v. Emperor, AIR 1932 All 442 (443) (Young and Bajpai,
12.93. In a case decided by the Privy Council,1 an entry made by a Muslim priest in the Marriage register was regarded as relevant under section 32 (precise clause of the section was not referred to), as having been made by the Murtzad in the discharge of his professional duty (the point at issue related to the amount of the dower).
1. Zakir Begum v. Sakhina Begum, 1892 ILR 19 Cal 689 (693) (PC).
12.94. Theoretically, the clause is capable of various interpretations, so far as the requirement of ordinary course of business is concerned. The first possible interpretation is that these words are not applicable to the specifically enumerated cases. A textual approach to the clause would support this interpretation, because the requirement is not expressly mentioned in those enumerated cases, and also because the specific mention of an entry or memorandum made in a book kept in the discharge of professional duties, in addition to such entry etc. made in books kept in the ordinary course of business, would suggest that at least that part of the clause is intended to travel beyond documents in the ordinary course of business.
12.95. The second possible interpretation of the clause is that (a) the whole clause is subject to the opening portion, which emphasises the necessity of "ordinary course of business," but (b) that expression is to be given a wide meaning, so as to cover not only commercial activities, but all transactions which a person usually enters into. This was the view taken in the Oudh and Madras cases. Above referred to.
12.96. While the first and the second interpretations have both the effect of giving a wide scope to the section, their mode of operation varies. Besides these two interpretations, there is a third possible interpretation, namely, (a) that the whole clause is subject to the opening portion and only statements made in the ordinary course of business are admissible, and further, (b) that the transactions must not be an isolated one, and must be a mercantile one. This was, in substance, the view taken in the Bombay case, already referred to. Under this interpretation, the expression "ordinary course of business" receives a narrow construction.
12.97. The illustrations to section 32 seem to support the first interpretation. as also section 21, illustration (c).
12.98. Need for clarification.-
It is obvious that apart from the fact that there is a veiled conflict between the Bombay and Madras views, there is a reasonable possibility of further conflict developing on the point discussed above. Therefor( a clarification of the position is desirable.
12.99. The question now to be considered is, whether the clarification should be by way of adopting the first interpretation, or whether it should be by way of adopting the second interpretation, or whether it should be by way of adopting the third interpretation. Much can be said on all sides. The first interpretation has the merit of stating the position in fairly clear terms, and avoiding the rather artificial approach which has to be adopted under the second interpretation as to the expression "ordinary course of business". In normal parlance, one does not think of private transactions in family matters as undertaken in the "course of business".
12.100. The second interpretation has the merit of introducing one common thread, so that the specifically enumerated cases will still be subject to the requirements of "course of business".
12.101. The third interpretation has the merit of simplicity, inasmuch as the expression "ordinary course of business" would be used in the natural sense commonly understood.
12.102. It is desirable to remove the obscurity on the subject discussed above, by suitable amendment. But, before suggesting the precise amendment, we have to decide which of the possible interpretations, as listed above, should be adopted. We prefer the first alternative which has the merit of clarity and avoiding artificiality.
12.103. If, it is decided to adopt the first interpretation-and we recommend its adoption-it would be convenient to confine clause (2) to statements made in the ordinary course of business, and to carve out a new clause (2A) to deal with the statements (enumerated in the present clause) which are to be regarded as relevant whether or not they are in the ordinary course of business.1
The following is a rough re-draft for the purpose of implementing the first alternative:
[Proposed re-draft of section 32(2)(i)1.
"(2) 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) 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 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."
1. If necessary, corresponding clarification clarification may be made in illustrations (e), (g) and (h).