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Report No. 69

G. English Law

12.126. It should be pointed out that some of the reported cases seem to have been under a misconception as to the English law. The general rule of English law is that a statement made by a third person is not relevant. We are not discussing the admissibility of a statement against the maker or his representative-in-interest; but a statement as to boundaries made not inter partes is not relevant in England as a statement against interest. In fact, in English law, it is an essential ingredient of the relevancy of statements against proprietary interest that the statement must be known to be against the interest of the person who made1 it, at the time when he made it. A recital of boundaries would seem to fail to satisfy this requirement.

1. Tucker v. Urban District Council, (1912) 2 KB 317.

12.127. Comment on Bombay case.-

We cannot help observing that this aspect of the matter seems to Comment have been overlooked in the Bombay case of Ningawa.1 In that case, the deed was one of mortgage, and contained certain recitals as to boundaries. The deed was construed as amounting to a statement against the proprietary or pecuniary interest of the mortgagor, and it was held that the statement of boundary, which was a part of that deed, was admissible under section 32(3).

But, as we have pointed out in the above discussion, before clause (3) of section 32 can be invoke.- or, for that matter, before any other clause of section 32 can be invoked it must first be established that the statement sought to be admitted is a statement of a relevant fact. Now, the mortgage deed as a whole was not a statement of a relevant fact all, and, for that reason, the fact that the deed was against the proprietary interest of the executant, became of no consequence in attracting section 32(3).

Assuming that the mortgage deed was a document against the proprietary interest of the maker, what requires to be pointed out is that the deed (as a whole) did not constitute a statement as to a relevant fact. The general rule that if a part is relevant, the whole is relevant, was not really applicable. The part, in this case, was a statement of boundaries. We may assume that if a statement in a deed is a statement of a relevant fact, then certain other portions of the deed, which are necessary for understanding that statement. may be brought into evidence, on the principle that the part renders the rest admissible.

But, in this case, the whole, that is to say, the document of mortgage itself, did not relate to a relevant fact and, with respect to the Bombay High Court, it is not possible to apply a different rule, namely, that if the whole is against the pecuniary interest though not about a relevant fact, then the part thereby becomes a statement against proprietary interest and so becomes admissible.

1. Ningawa v. Bhermappa, 1899 ILR 23 Born 63.

12.128. In other words, in the Bombay case, that which was regarded admissible as a statement against the interes.- the mortgage dee.- was not a statement about a relevant fact. The statement as to relevant fac.- the recital of boundaries in the mortgage dee.- was not (in itself) a statement against interest. Thus, an important condition of section 32 was not satisfied in the Bombay case. This aspect will be further evident from the facts of the case, which we may now state in detail. The facts were as follows :

In 1893, the plaintiff brought this suit to recover possession of certain land. The defendants denied the plaintiff's title. The plaintiff tendered, as evidence of his ownership, a registered •mortgag.- deed relating to adjacent land, executed in 1877 by one Ninga Talwar to one Govind, in which the land now in question was mentioned as one of the boundaries of the land comprised in the mortgage and was described as the property of the plaintiff. Ninga Talwar was dead at the date of this suit.

It was admitted that in 1877 there was no litigation between the plaintiff and defendants, and it did not appear that there was any motive on the part of the adjacent owner Ninga to make this statement in the deed on the plaintiffs' behalf. On appeal the question was, whether the statement in the mortgage deed was rightly admitted in evidence. The High Court answered the question in the affirmative, for reasons already stated.

12.129. So much as regards the Bombay case. As regards the Calcutta case of Leelananad1 the question before the Court was whether the tent payable to the zamindar by the Ghatwal during a certain period was Rs. 75 or Rs. 175. The zamindar relied upon a statement, prepared by the then zamindar many years previously, of the Ghatwali villages in the mahal, in which there was a recital against the name of the property in question that the original rent was so much and the increased rent so much. Mr. Justice Markby held that this statement was inadmissible, he said :

"I cannot bring it under any of the rules of evidence which allow a statement of a deceased person to be put in evidence. It does not appear to me to be a statement in any way detrimental to his interest: on the contrary so far as regards the rate of rent, of course, it would be his interest to state it to be as high as possible."

In appeal, Couch C.J., and Ainalie, J., said:

"We cannot concur in the opinion of the learned Judge that this statement was not admissible in evidence. It is a statement by which the interest in the mahal of the person making it is reduced or affected; it is against his interest and against his proprietary right. The effect of it is to cut down the proprietary right, to subject it to the tenure or incumbrance which is mention­ed. It is true that in one part of it there is what may be said to be not against his interest but in his favour, namely, the amount of the original rent and increased rent payable to him.

But when a document of this kind is tendered in evidence, it is not to be divided into parts, and the part which is in favour of the person making it rejected, and that which is against his interest accepted. The question, is whether, taking the document as a whole it is against the interest of the proprietary right of the person making it. In estimating the value of any particular part of it, that may be looked at; but the principle upon which the admissibility of it is determined is whether it has been made under such circumstances as makes it reasonable to suppose that it was done bona fide, and the statements are true."

This case thus, did not relate to recitals of boundaries at all. Moreover, if we may say, with respect, this reasoning also suffers from one infirmity. The entire document was not a statement of a relevant fact, even if it be assumed that it was against the interest of the maker.

1. Rajah Leelanand Singh v. Lakhputse Thakoorain (Mst.), (1874) 22 Cal WR 231.

12.130. Some of the Indian cases rely on the English case of Higham. Illustration (b) to section 32, whose facts recall Higham's case,1 is really an illustration under section 32(2), and not under section 32(3), because the illustration does not make any mention of payment of charges, and expressly mentions the requirement of "regularly kept in the course of business". The question in Higham's case was whether one Milian Fowden Jr. was born before or after the 16th April, 1768. To prove that he was born after that date, the plaintiff tendered in evidence entries from the day book and ledger of a man-midwife who had attended the mother of Fowden on his birth and who was since deceased.

The entries under 22nd April, 1768 in the day book detailed the charges which were due, and in the ledger entry under 25th October, 1768 the payment of the charges was recorded. The Court rejected the argument that the word "paid" only should be admit­ted without the context which explained the circumstances to which it refers. The court, therefore, looked to the rest of the entry including the entry on 22nd April, 1768 to see what demand was discharged by the entry in account. The case does not relate to recitals of boundaries at all.

1. Higham v. Ridgway, (1808) 12 East 109.

12.131. It would be interesting to note that even in England, for proving that a certain sport was not within the "waste" of a manor, a declaration by the deceased lord (third person) that he was entitled to the waste up to a certain point (which did not include the place in question) but no further, was regarded as inadmissible,1 for two reasons, viz., the lord was not in possession of the place and the declaration was not against proprietary interest because, though disclaiming as to one part, he affirmed as to the other.

1. Crease v. Burrett, (1935) 1 CMLR 919 cited by Phipson (1963), Para 9.22: 40 RR 779.

Indian Evidence Act, 1872 Back

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