Report No. 69

II. Illustrative Cases

7.167. Illustrative cases.-

We may now take a few illustrative cases under the section. In a suit for rent of land due from the defendant, the plaintiff alleged that he had bought the land from the defendent, and had thereafter leased it to him year by year. The defendant totally denied the sale and the lease. It was held that though the fact in issue was the lease alone, evidence might be given of the fact of the sale also, as a relevant fact, corroborative of the fact of the lease.1

In a Rangoon case,2 it was stated that the admissibility of a particular evidence under section 11 in each case must depend on how near is the connection of the facts sought to be proved with facts in issue, to what degree do they render facts in issue, probable or improbable, when taken with other facts in the case and to what extent the admission of the evidence would be inconsistent with principles enunciated elsewhere in the Act. In that case, A was charged with entering into a conspiracy to bring false evidence against B and C.

All the previous acts of which evidence was to be given were acts in which A acted against B or C, or both. It was held that such evidence was admissible under section 11 (but not under section 10 and 15). The connection was held not to be too remote. The evidence in question indicated the state of mind of A against B and C, and added to the probability of his having taken part in concerted action against them. The High Court specifically decided that whether or not section 8 was applicable, section 11 did apply to such evidence.3

We may also refer to an Irish case. In an action for money lent, the poverty of the alleged lender was a relevant fact to disprove the loan.

1. Kaung v. Sen, 3 LBR 90.

2. Htin Gyaw v. Emp., AIR 1928 Rang 118 (121, 122).

3. Dowling v. Dowling, (1860) 10 Irish CLR 244.

7.168. In a Nagpur case1 where an oral tenancy was denied and the sale deed in favour of the person suing as landlord was alleged to be bogus, evidence as to the nature of the sale deed was held to be relevant on the question of existence or non-existence under section 11. In a Calcutta case,2 a statement in a scheme to an arbitration award as to certain deposits made by third persons was held to be relevant in a suit by the depositors on the basis of the award, the suit being for directions on the receivers to pay them the sums of money which the arbitrators found as belonging to them, though the depositors were not parties to the proceedings before the arbitrator.

1. Sikander Rashid v. Hussain, AIR 1943 Nag 265 (266).

2. Hrishikesh v. Kantamani Dasi, AIR 1959 Cal 257 (259), para. 17.

7.169. Calamity.-

Section 11 could be utilised in cases of calamity, where two or more persons perish at the same time, and the question is who1 survived. In England, before the law on the subject was regulated by statute,2 there was no legal presumption of survivorship or of contemporaneous death, but such a presumption could, on the facts, be raised, having regard to the comparative age, strength and skill of the parties.3 Incidentally, we may add that on this particular point, we are going to recommend the insertion of a specific provision4.

Where the question at issue was about the religion of a person, a solemn declaration by that person as to his religion has been held to be relevant under section 11.5 The dangers of admitting hearsay under section 11 are also stressed by a Madras case6, where a witness's statement as to what a deceased person had told him regarding the ownership of the property alleged to have been stolen was held to be inadmissible, since it did not fall under section 32. We shall discuss this aspect in detail later.7

1. Woodroffe.

2. Section 184, Law of Property Act, 1925.

3. Silliru v. Booth, (1841) 11 LJ Chancery 41.

4. See sections 107-108 and 108A, infra.

5. Leong Hone Waing v. Leon Ah Foon, AIR 1930 Rang 4.

6. Doraswami Iyer (in re:), 16 Cr LJ 640.

7. See "Statements how far relevant", infra.

7.170. In a Calcutta case1, the proceedings were for the taking of security from certain persons, who were alleged to be members of a gang of swindlers, the allegation being that they habitually committed cheating and extortion, being members of a gang formed for this purpose. It was held that the fact that the person proceeded against was a member of and organisation formed for habitual cheating, was relevant under section 11.

1. Kalu v. Emperor, ILR 37 Cal 91.