Report No. 69
X. Section 32(7)
12.168. Section 32(7).-
Under section 32(7), 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), it becomes relevant. Section 13(a) refers to "any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied or which was inconsistent with its existence". Under the opening paragraph of that section, evidence of such transaction is relevant where the question is as to the existence of any right or custom.
12.169. Section 13 analysed-Non-applicability of opening paragraph.-
For facilitating an understanding of the various points, it will be convenient to split up section 13. Section 13, opening paragraph, provides for the situation in which the section applies, namely, when the question is as to the existence of any right or custom. Clause (a) of that section deals with the evidence which is admissible if the opening paragraph applies, and admits evidence as to transaction of the nature in question.
The question that may arise is whether, for the purposes of section 32(7), the opening paragraph of section 1.- dealing with the situation in which evidence of the transaction becomes admissible is also to be satisfied. Clause (a) of section 13 is referred to in section 32(7). But the question as to the position in this respect, i.e., the applicability or non-applicability of section 13, opening paragraph, has created controversy. In view of the case-law on the subject, which we shall discuss in due course.
12.170. There have been several decisions where section 32, clause (7), has been in issue. Thus, in a Madras case1, a recital made in a Will that the property dealt with thereunder was the property of the testator, was treated as relevant against third parties. In a Calcutta case2, the plaintiff's claimed recovery of possession of certain lands as their niskar brahmoatter, and also by right of adverse possession. They relied, inter alia, upon a recital of brahmoatter title in the Will of their father, and a recital in a judgment in a previous case which was not inter partes.
It was held that the recital in the Will was not admissible in evidence under section 32(7) read with section 13(a), and that the recital in the judgment not inter partes was also not evidence. There is no detailed discussion, but apparently what weighed with the Court was the fact that it was sought to be used against a third party. In another Calcutta case3, a statement made by an arbitrator in a previous criminal case between the parties, was held to be relevant under section 32(7). In that case, the previous case also related to the same property.
In yet another Calcutta case4 the nature of the tenancy mentioned in a Will of the claimant's predecessor was regarded as falling under section 32(7). This Calcutta case does not refer to an earlier one5, which seems to take a different view on the point. In a Madras case6, a statement of fact made in a Will, to the effect that the property was self-acquired, was held to be relevant, although, it was pointed out, that the evidence of this kind required scrutiny in the light of other evidence.
1. Periasami v. Verandappa, AIR 1950 Mad 486 (Ragav Rao, J.), dissenting from AIR 1915 Mad 740 (747).
2. Satindra Kumar Choudhary v. Krishna Kumari Choudarani, AIR 1917 Cal 805.
3. Keshav Prasad v. Secretary of State, AIR 1938 Cal 150 (151) (M.C. Ghosh, J.).
4. Pramatha v. Champa Dasi, AIR 1929 Cal 473 (475) (D.N. Mitter & S.C. Mallik, JJ.).
5. Satindra Kumar v. Krishna Kumari, AIR 1917 Cal 805 (Chatterjee & Newbould, JJ.).
6. Venkataramayya v. Sesharmmi, AIR 1937 Mad 538 (547) (Varadachariar and King, JJ.).
12.171. Patna case.-
At this stage, we should refer to a Patna case1 where several aspects of section 32(7) were dealt with. In a document extending the terms of an usufructuary mortgage, M, the mortgagor, stated that the money under the mortgage was required for the purpose of shraddha of S. The. mortgagee was already in possession. The statement of M was held to be admissible in evidence under section 32(7), in order to prove that S was dead by the time that the document was executed. The proceeding now before the Court was not between the same parties, and did not involve the right to mortgage. It is not clear from the judgment whether the same property was involved.
An objection was taken to the admission of this evidence, on the ground that the plaintiffs, against whom the document was not sought to be used as evidence, were not parties, to the transaction. The argument was rejected by the High Court, in these words " so far as clause (7) of section 32 is concerned, it only takes the help of section 13(a) in order to indicate the nature of the transaction to which the document containing the statement relates. Not that it (the proceeding) will necessarily be in relation to what can be called to be a transaction as between the parties for the purpose of its admissibility without the help of section 32."
1. Khudiram v Amodebala, AIR 1948 Pat 426 (427, 428) (Ray, J.).
12.172. The High Court further observed:
"The whole of section 13 is never intended to be real for the purpose of interpretation of this clause1. Had that been so, then the legislature could have simply stated section 13 which would have necessarily included section 13(b) as well. There is certainly a point in referring to clause (a), but not to (b)."
1. Emphasis supplied.
12.173. Conditions to be fulfilled before applying section 32(7), according to the Patna case.-
If the above judgment of the Patna High Court is analysed, it will be found that it requires that a statement admissible under section 32(7), should fulfil the following conditions:
(a) the statement is contained in a document;
(b) the statement is made by a person who is not available by reason of death; etc.;
(c) the document relates to what can be regarded as a transaction within the meaning of section 13(a).
These three conditions have been actually enunciated in the judgment of the Patna High Court.
12.174. Other points laid down in Patna case.-
The Patna judgment1 can be regarded as also laying down the following points-
(i) The transaction need not be one to which the present parties were parties.
This point has been explicitly discussed and decided in the Judgment.
(ii) The right or custom to which the transaction relates need not be in issue in the proceeding. In other words, section 13, opening paragraph is not attracted.
This point follows from the facts of the case.
(iii) If the document relates to a transaction governed by section 13(a), then any statement, being a statement of a relevant fact, is admissible, even if the statement does not relate to a custom or right etc.
This point follows from the Patna judgment, because the fact sought to be proved by the document in question was the date of the death of S, and the existence of the right or custom was not sought to be proved by the document.
1. Rhudirarn v. Amodebala, AIR 1948 Pat 426 (427, 428) (Ray, J.).
12.175. It should also be noted, in this context, that the opening paragraph of section 32 provides that statements about "relevant facts" are relevant under the section, and no further limitation is laid down.
12.176. Case law on point (iii).-
The observations of the Madras High Court in another case,1 which seem to imply a wider view of section 32(7), may also be compared, though they were obiter.
1. Subbarayulu v. Vengama, AIR 1930 Mad 742 (Curgenven, J.) (Obiter).
12.177. As against this wide view, there is an Oudh decision,1 which seems to limit section 32(7) to statements directly relating to the right or custom. In the Oudh case, a statement, in a deed of family settlement, to the effect that partition had been effected among brothers, was rejected, on the ground that the statement did not fall within section 13(a). The Court also added that, "the statement is obviously in the interest of the person who made it. R, if alive, could not have made use of such an admission in his favour, nor could his sons so do."
1. Rajnarayan v. Maharaja Narayan, AIR 1937 Oudh 133 (137, 138) Nanavatty and Smith, JJ.
12.178. Amendment in which direction.-
It appears to us that as a matter of policy, some restrictions need to be placed on the relevance of statements under clause (7). In the first place, the right must be in issue and the statement should relate thereto, in order that the statement may be relevant. To this extent, our recommendation takes an approach contrary to what was held in the Patna case. Secondly, we think that recitals as to boundaries ought to be excluded from admissibility under this clause, if they are not between the parties. Thirdly, the statements should have been made before the controversy arose. Fourthly, however, the proceedings need not be between the parties to the document.
We, therefore, recommend that section 32, clause (7), should be revised as below:-
Revised section 32(7)
"(7) 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, recognised, asserted or denied, or which was inconsistent with its existence.
Explanation-Such statement is relevant where the question in the proceeding now before the court is as to the existence of the right or custom; but it is not necessary that the parties to the document must be the same as the parties to the proceeding or their privies.
Exception-Nothing in this clause shall render relevant-
(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. XI.