Report No. 69
IV. Statement how far relevant
7.175. Statement how far relevant.-
It is now time to examine the question whether section 11 can be pressed into service for admitting into evidence statements which are not admissible under section 32 or other specific provision of the Act. This has been the subject matter of considerable controversy.1 From the judicial decisions on the subject, several shades of view can be discerned.
1. Rayjappa v. Nilakanta Rao, AIR 1962 Mys 53 (61). (Hedge and Mir lqbal Hussain, JJ.) (reviews case-law).
7.176. Different shades of view-First view.-
The first view on the subject is that section 11 must be read subject to the other provisions of the Act, and a statement not satisfying the conditions laid down in sections 32-33 cannot be admitted, merely on the ground that it may render highly probable or improbable a fact in issue or a relevant fact. This view is represented by the Madras1 and earlier Allahabad cases:2-3 The view is based on the reasoning that section 32-33 are exhaustive of the law relating to relevancy of statements made by persons mentioned in sections 32 and 33.
1. Sevugan Chettair v. Raghunatha, AIR 1940 Mad 273.
2. Bela Rani v. Mahabir Singh, 1912 ILR 34 All 341.
3. Naima Khalim, AIR 1934 All 406 (409) (Sulaiman, C.J. and Young, J.).
7.177. In the Madras case1 the defendant relied on certain documents between third parties showing that the limits of an estate extended to certain property. It was contended that these documents had been wrongly rejected by the trial court, and one of the sections under which the documents were admissible was section 11. Rejecting this contention, Varadhachariar J. observed: "As regards section 11, it seems to us that section 11 must be read subject to the other provisions of the Act and that a statement not satisfying the conditions laid down in section 32 cannot be admitted merely on the ground that, if admitted, it may probabilise or improbabilise a fact in issue or relevant fact."
1. Sevugan Chettiar v. Raghunath, AIR 1940 Mad 273 (278) (Varadachariar and Abdur Rehman, JJ.).
7.178. Second view.-
The second view, which is a slight variation of the first, is represented by a Mysore case.1 It is based on the reasoning that section 11 deals with facts, while section 32 deals with statements. This view does not agree that section 32 controls section 11. According to the second view, on a proper construction, statements falling under section 32 are excluded from the scope of section 11. Recitals found in documents which are not between the parties are not according to this view, "facts", within the meaning of that word in section 11.2
There is also a Calcutta ruling3, substantially to the same effect.
1. Royjappa v. Nilakanta Rao, AIR 1962 Mys 53 (61), para. 35
2. Kalappa v. Bhirna Govind, AIR 1961 Mys 160.
3. Radha Krishna v. Sarbeswad, AIR 1925 Cal 684(2).
7.179. Third view.-
According to the third view1, such recitals are inadmissible because they cannot have such probative force. A recent Punjab2 case gives this as one of the reasons for not applying section 11.
1. Bhuriya v. Ram Kale, AIR 1971 Punj 9 (11), para. 5 (A.D. Koshal, J.).
2. Bhuriya v. Ram Kale, supra.
7.180. Fourth view.-
The fourth view is that statements can be admissible under section 11 even when they are not admissible under section 32. This is represented by certain Bombay,1 Calcutta2 and, later, Allahabad3 cases. The reasoning on which this view is based was lucidly stated by Desai J. in an Allahabad case:4
"There is no connection between the provisions of sections 11 and 32 and there is no justification for saying that one section is dependent on the other. As a matter of fact, each section creates new relevant facts; if a fact is relevant under section 11, evidence about it can be given as permitted by section 5 even though it may not be relevant under section 32. If there is one provision under which a fact becomes a relevant fact, it can be proved regardless of whether it is made relevant under some other provision or not.
If a fact is relevant under section 32, it can be proved notwithstanding that it is not relevant under section 11 and to say that a fact relevant under section 11 cannot be proved unless it is covered by the provisions of section 32 is nothing short of striking out section 11 from the Evidence Act. When section 32 itself is sufficient to allow a fact to be proved, it would have been futile for the legislature to enact section 11, if a fact made relevant by that section would not be proved unless it was also relevant under section 32".
1. R.D. Sethana v. Mirza Mohd, (1907) 9 Born LR 1047 (Beaman, J.) (Factum of statement).
2. Ambica Charan v. Kumar Mohan, AIR 1928 Cal 893 (895), see Factum of statement.
3. Flakurji v. Parmeshwar Dyal, AIR 1960 All 339 (Ray, J.).
4. State v. Jagdeo, 1955 All 1.4 380.
7.181. Question a difficulty one.-
This question-i.e. the question whether statements made by a third person can be relevant under section 11-is, thus, a difficult one. In our opinion, on the present wording, the fourth view1 is the most cogent. No doubt, the court must exercise a sound discretion and see that the connection between the fact to be proved and the fact sought to be given under section 11 to prove it is so immediate as to render the co-existence of the two highly probable.2 But it is legitimate to read sections 11 and 32 independently of each other.
The section, it should be remembered, makes admissible only those facts which are of great weight in bringing the court to a conclusion one way or the other as regards the existence or the non-existence of the fact in question. The admissibility under this, section must, in each case, therefore, depend on how near is the connection of the facts sought to be proved with the facts in issue when taken with other facts in the case. Subject to this observation, section 11 does not exclude statements as such on it., present wording.
1. Para. 7.180, supra.
2. Rangaayyan v. Innasimuthu, AIR 1954 Mad 226 (230), para. 14.
7.182. Whether recitals in documents not inter partes are admissible.-
A similar controversy exists as to recitals in documents. In the case of Dwarka Nath v. Mukunda Lal, (1906) 5 CLJ 55 Cited in Field on Evidence., it was held that documents though not inter partes, which contain recitals that a particular land belongs to a particular tenure which is in question, are admissible in evidence under either section 11(b) or section 13, although they are not conclusive or binding evidence, and may be very weak evidence or even of no weight at all.1
A contrary view was, however, taken in the Calcutta case of Abdul Ali v. Syea Rajan, (1913) 19 CWN 468, and in the later case of Ketabuddin.2
In at Patna case3, a statement by a lady witness was held admissible "at least under section 11", though the statement was in her favour and in a document not inter partes. In that case, however, it was used as explaining her other statements.
1. See also-
(a) Chhatradhani Mahton v. Aklashwar Mahton, AIR 1952 Pat 382;
(b) Raghu Nath v. Bindershri, AIR 1924 All 526;
(c) Katori v. Om Parkash, AIR 1935 All 351;
(d) Thakur v. Lalji, AIR 1934 Pat 81.
2. Ketabuddin v. Nafar Chandra, AIR 1927 Cal 230.
3. Inder Deo v. Deon Karan, AIR 1955 Pat 292 (294) (DB).
7.183. Calcutta cases.-
The difficulty of the subject is illustrated by the fact that Dr. Justice Mookerjee, who, in Bisheswar Dayal v. Harbans Sahay, (1907) 6 CLJ 659 had apparently held that a document of this nature was admissible in evidence under the provisions of sections 11 and 13, altered his view in Abdullah v. Kunj Behari Lal, (1911) 16 CWN 252 (257), where he held that a document of this nature was not admissible in evidence under the provisions of sections 11 and 13,-thus differing from the view which he had previously expressed. In Saroj Kumar v. Umed Ali, AIR 1922 Cal 251, again, the question was regarded as not free from doubt, by two other judges. In P.N. Choudhury's case1 it was definitely held that recitals in documents between third parties were not admissible under section 11 or section 13.
1. P.N. Choudhury v. K.C. Bluittacharjee, AIR 1924 Cal 1067.
7.184. Recitals as to boundaries.-
The same controversy exists on the more particular question whether recitals as to boundaries of other lands in documents between third parties are admissible. Some of the cases referred to above,1-2 related to recitals about boundaries In the Calcutta case of Brajeswari Prasad v. Budhanudhi, 1880 ILR 6 Cal 268 it was held:
"A recital in a deed or other instruments is in some cases conclusive, and in all cases evidence, as against the parties who make it. But it is no more evidence as against third persons than any other statement would be."
In another Calcutta case,3 a statement appearing in the Schedule attached to the order for delivery of possession as to the rent payable for the holding was held inadmissible in evidence in a suit between the landlord and the tenant in which the rent payable is in dispute.
1. Abdullah v. Kunj Behari Lal, (1911) 16 CWN 252.
2. Saroj Kumar v. Limed Ali, AIR 1922 Cal 251 (253) (Question not free from difficulty).
3. Pramatha Nath Choudhri v. Krishna Chandra Bhallachargee, AIR 1924 Cal 1067; Chandra Mohan Talikdar v Shaikh Elim, AIR 1926 Cal 415.
7.185. In a Calcutta case reported1 in 1923, it has been held that when a document has been admitted in evidence as evidence of a 'transaction', the recitals therein are not evidence, especially if they are not used as assertions by a person who is alive and who might have been brought before the court as a witness. In the same year, however, there is another case2 in which a statement by a party, in a document not inter partes, was admitted.
1. Nihar v. Kador, AIR 1923 Cal 290.
2. Saeruddin v. Sanuruddin, AIR 1923 Cal 378.
7.186A. Recitals as to boundaries-Position briefly summed up.-
Keeping the judicial decisions in mind, it would be convenient to state briefly the position in regard to recitals of boundaries, in documents. Cases falling under this head may be divided into three classes:
(a) When the recital is in a document 'inter paries'--In such a case, the recital is a joint statement made by the parties to the document and, therefore, relevant against all of them as an admission1.
(b) When the recital is in a document between a party and a stranger-In such a case, the recital is relevant against the party as an admission, but is not admissible in his favour,2 unless the fact recited is deposed to in court by the executant of the document, in which case the recital will become admissible3 to corroborate the evidence of the executant4 or to contradicts5 such evidence':
(c) When the recital is in a document between strangers. It is well-settled that a recital as to boundaries in documents between third parties is not ordinarily admissible to prove possession or title as against a person who is not a party to the document.
(d) However, if the recital can come within the relevancy and admissibility contemplated by (a) section 11; (b) section 13; (c) section 32(3); and sections 155 and 157, then an exception may arise. The scope of section 11 in this regard is controversial, as already stated6. The scope of section 32(3) is also controversial in this regard.
8. Section 21.
2. (a) Rndha Krishna v. Saradeswar, AIR 1925 Cal 684(2)(A); (b) Daishit Shah v. Bishan Das, AIR 1934 Cal 750.
3. Section 157.
4. Ketabudin v. Nafar, AIR 1927 Cal 230.
5. Ambicacharan v. Kumud Mohun, AIR 1923 Cal 893. 4.- Dasmal v. Sunder Singh, AIR 1937 Lah 480.
6. Paras. 7.182 to 7.184, supra.