Report No. 69
25.25. Hearsay and documentary evidence.-
This is one aspect of section 60 We may now refer to another aspect of the section. This relates to documentary evidence. It may be noted that there is no provision in section 60 in relation to documentary evidence. The reason for this seems to be that documents come on the record only when they are "produced". In section 3, when defining 'evidence the expression 'documentary evidence' is defined as "documents produced for the inspection of the court". "Production" is also an ingredient of primary evidence, as defined in section 62.
Now, in most cases, the person producing the document would also be required to give oral evidence, and the provisions of section 60 would then be attracted. Of course, a witness may be summoned simply to produce a document: but, even in that case, another witness will have to be called to prove the document-so that if he purports to testify to the facts mentioned in the document, on the strength of the statements made in the document, he will be giving oral evidence which would not be "direct", and he would thus be contravening section 60. This, perhaps, accounts for the absence of a provision in section 60 as to documentary evidence.
25.26. Case as to documents.-
There is no doubt that a recital in a document is hearsay. "Correctness of recitals in a document must be proved by calling the person who signed or wrote the document, and not by proving the signature or hand writing of the person who signed or wrote it."1-2
1. Madholal v. Asian Assurance Co., AIR 1954 Born 305 (306), para. 6 (Bhagwati, J.).
2. Reg. v. fora Hasji, (1874) 11 BHCR 242.
25.27. A document is not admissible in evidence in the absence of oral proof of its authorship and nature. As regard3 authorship, the fact that a person's name appears on such a document, is no proof that he signed it. That must be proved by specific evidence.
25.28. This is done in most cases by producing the writer himself, but where the writer are the accused persons and could not give evidence,1 some persons it has been held2, should be produced who actually saw the signatures being written, or a person who is acquainted with their handwriting, to prove those signatures; or the signatures could have been proved by comparing the hand writing or the signatures in question with any writing proved to the satisfaction of the Judge to be genuine.
1. This was the position before 1955.
2. Bawa Sarup Singh, AIR 1925 Lab 299 (303, 304)..
25.29. Again, as regards facts stated in a document, their truth must be proved by independent evidence, except in the case of admissions or other facts relevant by virtue of a specific provision.
25.30. Thus, in a Calcutta case,1 it was observed that "recitals to the effect that the predecessors-in-interest of the executants of the Kabalas were holding the lands in proof of the right claimed by the defendants namely nishkar right-were not admissible, and that to allow such a recital to be used as evidence against the plaintiff, who was no party to the two documents, would really be letting in hearsay evidence in matters in which hearsay is not admissible under the Evidence Act."2
On the same principle, a newspaper is no proof of the facts reported.3
1. fagat-dwipetendra, 1931 ILR 59 Cal 454 (457).
2. lagat-dwipetendra, 1931 ILR 59 Cal 454 (457).
3. Bawa Sarup Singh, AIR 1925 Lah 299.
25.31. We have, so far, dealt with the basic principle underlying section 60. We shall discuss later the question whether any changes are required in the basic principle. At this stage, however, we would like to dispose of certain matters which, we think, are not of very considerable importance from the point of view of difference with the basic principle.
25.32. Section 60 and opinion of experts.-
It will be convenient first to consider a point concerning the opinions of experts. Section 60 requires that opinions-whether of experts of others-must be proved by calling the person holding the opinion. The effect of this provision, taken literally, is that the experts must be summoned in every case.
25.33. In an Andhra case,1 the question was about the admissibility of certain documents, which were opinions of an expert who was the senior Marketing Development officer. These documents had been admitted by the lower court'. This was a case where a confiscation order had been passed by the Excise Authority under the Central Excise and Salt Act, 1944, on a charge that the plaintiff had transported different category of tobacco than the one he was permitted to. The Subordinate Judge, relying on the opinion of the Senior Marketing Development Officer on two exhibits, without calling the expert, held that the charge had been proved. On appeal, the Andhra Pradesh High Court observed:
"While the plaintiff did not raise any objection to these documents, he could only be said to have waived the proof of it and not the relevance Under the Evidence Act, hearsay evidence is inadmissible and these documents can have no higher value than hearsay evidence. Statements made by person's not examined in Court are only admissible in evidence if they fall within section 32 of the Evidence Act or could be used for the purposes of contradiction or corroboration when the person making them is examined, under section 145 or 157 of the Evidence Act. Sections 56 to 58 of the Evidence Act provide that facts admitted need not be proved.
Chapter IV lays down requirement of oral evidence. Section 60 provides that oral evidence must in all cases whatever be direct and if the oral evidence refers to an opinion or to the grounds on which the opinion is held, it must be the evidence of a person who helds that opinion on those grounds. Expert's evidence cannot be an exception to this rule unless the statute so provides, as in the case of chemical examiner's report etc. under the Criminal Procedure Code".
The documents in question were, therefore, held to be inadmissible.2-3
1. Poornaih v. Union of India, AIR 1967 AP 338 (348).
2. Palisniappa v. Bombay Life Assurance Co. Ltd., AIR 1948 Mad 298 (299) (opinion of doctor).
3. (a) Perumal Mudaliar v Rly. Co. Ltd., AIR 1937 Mad 407 (408) (Beasley, C.J.). (Opinion of Director of Agriculture). (b) Lim Yam Hong & Co. v. Lem Choon & Co., AIR 1928 Mad 609.
25.34. In a Madras case,1 the question related to the admissibility of a questionnaire answered by a doctor in respect of the last illness of the life assured. The questionnaire, and the answers thereto given by the doctor, were admitted in evidence without the doctor being examined. It was held that those were not admissible in evidence. The facts spoken to in them (which were relevant to the issues in the suit), could be proved only by giving oral evidence of them in the Court. The contention in that case, that the documents were properly admitted in evidence because the plaintiffs permitted them to be marked by consent, was held not to make any difference to the non-admissibility of those documents.
1. Pahaniappa v. Bombay Life Assurance Co. Ltd., AIR 1948 Mad 298 (299) (DB).
25.35. But this does not appear to be the law in India1 Having regard in writing to a party cannot prove itself, and that unless the expert stepped into the witness box, so as to enable the opponent to cross-examine him in reference to that opinion, the opinion expressed by him in a communication to one of the parties cannot be treated as evidence under the Evidence Act.
1. Parwat v. Sukhdev, AIR 1956 Born 617 (Gajendragadkar, J.) (Private expert).
25.36. Need for change.-
Thus, the present position is well settled, and it is not our intention to suggest any radical alteration. But it appears to us that a modification of the present position to a limited extent is desirable, having regard to certain practical considerations. We have in mind the case where, under the present law, it is mandatory to call the expert even to prove the fact that he recorded the particular opinion and the opinion purports to be given by a government or other official expert. This mandatory requirement, flowing from section 60, causes, in many cases, a waste of time, and we are of the view that in suitable cases the court should have a discretion to dispense with this requirement.
25.37. Recommendation as to the summoning of experts.-
Accordingly, we recommend that the court should, for reasons to be recorded, have a discretion to dispense with the summoning of the expert for proving the opinion. This discretion would be appropriately exercised, for example, where the expert happens to be an employee of the Government or a university or a recognised institution. The provision recommended by us will not cause any serious injustice, because the right of a party to summon the expert for cross-examination will remain unaffected by any such amendment; if necessary, it could be expressly provided that the parties shall have a right to call the witness for cross-examination. Where the opinion of the expert is one tendered by a party himself then, of course, he will not have any such right subject, of course, to section 154.
The following is a rough draft:-
"Provided further that the opinion of an expert expressed in writing, and the grounds on which such opinion is held, may be proved by the production of such writing, if the following conditions are fulfilled, namely
(i) the expert is an employee of the Government or of a local authority or of a university or other institution engaged in research and has been consulted by the Court either of its own or on application.
(ii) the expert recorded the opinion in the course of his employment, and
(iii) the court, having regard to the circumstances of the case, considers it desirable in the interests of justice that the opinion of the expert and the grounds of his opinion should be proved by production of such writing, subject to the right of either party to summon the expert for cross-examination.
Evidence as to Age
25.38. We shall now deal with one question on which there is, at present, no provision in the Act by way of exception to the rule against hearsay. It relates to evidence given by a person of his own age. How far a person can give evidence as to his own age, has always been debatable. Wharton states the law in America thus1:
"Section 264.- Age-A witness is competent to testify as to his age and date of birth....."
1. Wharton Criminal Evidence, section 264, quoted by Field, in his commentary on the Evidence Act under section 32, Vol. 3, p. 1835.
25.39. But this does not appear to be the law in India. Having regard to the words of section 60, a person cannot be allowed to give evidence of his own age, because a person cannot, with seriousness, assert that he "saw" the event of his birth.
25.40. Indian cases.-
There is no direct Indian case on the point, but a somewhat analogous question arose in Debi Prasad's case.1 The plaintiff Debi Prasad claimed title to the properties left by one Gopal Das, his maternal uncle, who died in 1934. His contention was that Gopal Das had died intestate, and he (the plaintiff) was the nearest heir of the deceased, and was entitled to the properties left by the deceased. The plaintiffs claim was resisted by Shyam Behari Lal, who claimed to be the adopted son of the deceased. According to him, he had been adopted by Gopal Das on the day of his birth in 1892. This was denied by the plaintiff.
1. Debi Prasad v. Tribeni Devi, AIR 1970 SC 1286.
25.41. The trial court accepted the claim of the plaintiff, but, in appeal, the High Court reversed the decree of the trial court and dismissed the suit. The matter came up before the Supreme Court by special leave. The principal question before the Supreme Court was whether the adoption pleaded by Shyam Behari Lal was true and valid.
25.42. The Supreme Court observed that Shyam Behari Lal himself could no speak to that adoption. "His evidence is at best 'hearsay'." The adoption was, however upheld on the basis of considerable documentary evidence produced by Shyarr Behari Lal.
25.43. Recital in application for guardianship.-
In this connection, it may be noted that the recital of the date of birth in an application for the appointment of a guardian is not, by itself, admissible in evidence upon the mere production of the document.1 Even the certificate of guardianship issued by the court, which mentions the age of the ward, is not admissible2 to prove age. It is not a public register etc. admissible under section 35.
1. (a) Mohindra v. Ram Krishna, AIR 1916 Cal 529.
(b) Mohammad Syedol Ariffin v. Yeoh, AIR 1916 PC 242 (243) (on appeal from Strait Settlements).
2. (a) Sadique Ali Khan v. Joy Kishor, AIR 1928 PC 152 (on appeal from AIR 1925 Oudh 481); (b) Muktipada v. Aklema, AIR 1950 Cal 533 (534, 535), paras..-6 (R.P. Mookerjee, J.);
(c) Kishorilal, AIR 1942 Cal 438.
25.44. Of course, where a specific clause of section 32 applies, the position is different. If the conditions recited in section 32(5) are satisfied, that is, a person who had made this statement had special means of knowledge of the relationship and he is now dead or cannot be found, a statement in the petition for guardianship about age will be admissible,1 because is relates to the "existence of a relationship", within the meaning of section 32(5)2 as interpreted by same High Courts.
1. (a) Dhanmull v. Ramchander, 1897 ILR 24 Cal 265; (b) Ram Chandra v. Jogeswar, 1893 ILR 20 Cal 758.
2. See discussion as to section 32(5).
25.45. Position in England.-
The position in England is substantially the same. The general rule appears to be that evidence by a person of his own age is hearsay'. Of course, there may be exceptions to this general rule, recognised on specific grounds. In R. v. Walker, (1884) 1950 Cal 533, (534, 535), Paras.-6 (R.P. Mookerjee, J.),1for example, the question was whether A was an infant at the time of making a certain contract. It was held that an admission by A that he was so, is receivable against him, although necessarily founded on hearsay. This was because it was an admission. It is this exception which proves the rule. A suggestion was made to insert a new section-say, as section 60A-as follows:
"60A. Notwithstanding anything contained in section 60, a witness may give evidence about his age and date and time of birth."
We have, however, after some discussion, come to the conclusion that such an amendment may sometimes be abused.
1. (a) R. v. Simmonds, (1850) 4 Cox 277: Phipson, (1963), para. 692