Report No. 69
D. Comments on the Case Law
12.117. Recitals of boundaries.-
We shall later indicate our own view in the matter. But we may first refer to some important points relevant to an appreciation of the value of the judicial decisions. To the ancestry of the judicial decisions taking a view in favour of the admissibility of recitals of boundaries under section 32(3) is carefully analysed, it will be found that almost all the decisions can be traced either to the Bombay case of Nineaya, or to the Calcutta case of Leela Nand.
For example, the Bombay case of Ningaya was followed. in the Calcutta case of Abdullah v. Kurd Behari Lal, (1911) 16 CWN 252. The Calcutta case of Leela Nand and the Bombay case Ningava were followed in the Allahabad case of Natwar v. Alkhu, (1913) 11 ALJ 139 : 18 IS 752,. All these cases were subsequently followed in Calcutta in Imrit Chamar v. Sirdhari Pandey, (1911) 17 CWN 108, and in Ambar All v Tufa Ali, 1918 ILR 45 Cal 159, and in certain other cases. some of which will he referred to.
12.118. Now, the Calcutta and Bombay cases (Leela Nand and Ningava) are themselves subject to comment on the ground of principle,1 and we shall later give our comments as to the principle. But without meaning any disrespect to the other High Courts. we may state that some of the decisions of the other High Courts, are based on a misconception of what was in issue in Leela Nand's case and what was decided in Ningava's case.
Thus, in one of the Calcutta cases2, it was stated that documents which dealt with land lying on different boundaries of the land in dispute were admissible under section 32 After noting the uncertainty on the subject in English law, it was state.-- "whether such evidence is admissible under the Evidence Act was considered in favour of its admissibility in several cases, the earliest was Leela Nand's case". The Court with respect overlooked the fact that Leela Nand's case was not directly concerned with recitals of boundaries at all. The statement in issue in Leela Nand related to the amount of rent.
1. See, "Matter discussed on the basis of principle", infra.
2. Qutabuddin v. Nafre Chandra, AIR 1937 Cal 230 (231).
12.119. In another Calcutta case1 the High Court observed-
"The statement, though not relevant as on admission may, however, be relevant under section 32(3) as a statement against interest which has been held as evidence against strangers. It was so held in the case of Leela Nand ". Here also, it was not noted that Leela Nand was a case concerning the amount of rent.
In a Madras case,2 it was stated:
"Another ground on which recitals of boundaries of the land are held to be against, is that a statement by the vendor that his land is limited by certain boundaries is an admission that his proprietary interest does not extend over any land beyond the boundaries mentioned in the deed."
Now, in so far as this observation refers to the Bombay Case (the case of Ninqawa),3 it may be stated that the Bombay case is not based on the reasoning that a statement limiting boundaries is an admission that the proprietary interest does not extend over other lands. The Bombay case is based on the reasoning that since a mortgage-deed, as a whole, is against proprietary interest, a statement about boundaries, which is a part of the mortgage-deed, is also against interest The observation in the Madras case, in so far as it seeks to summarise the Bombay case, is, therefore, debatable, with respect.
1. Kanjali Mala v. Beni Madhava, AIR 1916 Cal 278.
2. Rajayon v. Injui Muthu, AIR 1956 Mad 226 (229), para. 11.
3. Ningawa, ILR 23 Born 63.
12.120. In some of the judicial decisions, there is a misconception about the general trend of previous cases. This is illustrated by a Nagpur case, AIR 1923 Nag 23, where, after referring to some of the earlier cases, it is stated, "the weight of authority, therefore, seems, to be that such admissions containing recital as to boundaries are admissible under section 32, clause (3) of that Act"1
1. The judgment as printed in the AIR mentions clause (2), which is a misprint for clause (3).
12.121. Now, It should be pointed out with respect, that out of the nine cases referred to in the judgment as to recital were held to he not relevant: in five they were held to be relevant, and in one, two judges of the same High Court differed1 Further, the discussion in the Nagpur judgment itself notes that the later Madras and Calcutta cases were against the admissibility of such recitals. The only other High Courts taking a view in favour of admissibility were Bombay and Allahabad.
1. This was the case reported in 1914 Mad WN 179.
12.122. This view was criticised in a later Madras case,1 where Ramaswami observed-
"But, with respect to Jackson J. his observation seems to miss the real point. Section 32(3) states that when the statement is against the pecuniary or proprietary interest of the person making it, it is relevant when the person making it is dead, or cannot be found or has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case, appears to the court unreasonable.
"First of all, recitals of boundaries of property, contained in deeds not "inter parties' have been held to be admissible to prove the ownership or possession of adjoining property, on the ground that, when the deed is a mortgage deed, it amounts to a statement against the pecuniary or proprietary interest of the mortgagor, inasmuch as he admits therein that he is indebted in a certain sum of money and that this money is a charge on his property (cases cited) and when the deed is a deed of conveyance, on the ground that it amounts to a statement against the vendor's interest, inasmuch as he admits therein that he is extinguishing his interest in the property conveyed.
The mortgage deed or the deed of conveyance having thus been held to be a statement against the pecuniary or proprietary interest of the executant of the deed, on the authority of-'Richam v. Pidgway', (1508) 10 East 109 (7), the document is made evidence not only of the precise fact against interest, but of all the collateral facts mentioned therein, and consequently of the possession or ownership of persons who are mentioned in the deed as posses-sing or owning the land adjoining the property mortgaged or conveyed Rajabaddi Sarkar v. Ganga Charon' A.T.R. 1919 Cal. 499 A.I.R. 1918 Cal. 971: 12 Tnd Cas 149 (Cal.- Rantsarap v. Bhagwat Prosad, AIR. 1920 Pat 696. Another ground on which recitals of boundaries of the land conveyed is held to be against interest is that a statement by the vendor that his land is limited by certain boundaries is an admission that his proprietary interest does not extend over any land beyond the boundaries mentioned in the deed." (Cases cited)
1. Rangaiian v. Innasimuthin, AIR 1956 Mad 224 (Ramaswami, J.).
12.123. We have quoted in full the passage in the judgment, for convenience of reference. We may, however, state, with respect to Ramaswami J. that we are unable to see how he has answered Jackson J.'s point1. The point made by Jackson J., was, that unless one assumes that every one claims the whole world, recitals of boundaries are not against the interest of the maker. This point has not been answered by Ramaswami T. Rather, the point missed in the exposition by Ramaswami J. is that a mortage of land A is not a relevant fact at all, when the question is as to land B. In order that any clause of section 32 may apply, the first condition to be satisfied is that that statement must be of a relevant fact.2 It is only when that condition is satisfied .3 that an occasion for considering the applicability of a particular clause arises.
1. Karuppanna v. Rangaswami, AIR 1928 Mad 105 (Jackson, J.) (supra).
2. Section 32, opening paragraph.
3. See further discussion, infra.