Report No. 69
9.31. Section 18, third paragraph sub-paragraph (1).-
The Third paragraph of section 18 consists of two sub-paragraphs. According to sub-paragraph (1), statements made by persons who have "any proprietary or pecuniary interest" in the subject-matter of the proceeding, and who make the statement in their character of persons so interested, are admissions. The application of this paragraph is usually illustrated by referring to 'joint contractors'. It is to be pointed out that this provision appears to be too loosely worded.
In the first place, it covers persons who have any proprietary or pecuniary interest, though, really, it should have covered only persons having a joint interest. If two or more persons are jointly interested in the subject-matter, the admission of any one may be receivable against the other; but this does not mean that any kind of interest in the subject-matter, should entitle a person to make an admission that may bind any other person having a different kind of interest.
The principle of this part of the section was thus stated in a Calcutta case,1 where Garth C.J. observed:
"The principle of the rule is that for the purpose of making these statements with reference to the joint concern or common subject of interest, one partner or co-contractor is considered to be the agent of the other."
Having so stated the reason of the Rule, Garth C.J. further observed:
"and this rule, as I take it, is enacted, though in a somewhat concise form, in section 18 of the Indian Evidence Act."
1. Howsulhah v. Mukta, 1885 ILR 11 Cal 588 (591).
9.33. The following discussion will show, how, in the process of a concise statement of the rule, some important requirements have been left to be inferred, and not expressed, in this paragraph of the section.
9.34. Joint interest.-
We first take up the question of joint interest. In the Calcutta case already referred to, the following rule laid down by Taylor1 was quoted:-
"When several persons are jointly interested in the subject-matter of the suit, the general rule is that the admissions of any one of those persons are receivable against himself and fellows, whether they be all jointly suing or sued, provided the admission relates to the subject-matter in dispute and be made by the declarant in his character of a person jointly interested with the party against whom the evidence is tendered."
1. Taylor Evidence, Vol. I, 1st Edn., pp. 489, 525.
9.35. Joint interest.-
Thus, where two or more persons have a joint, as opposed to common 1nterest, an admission by one of them may be used against the other or others, provided it is made during the continuance of the joint interest. The principle of identity of interest is properly applied where there is a joint interest, but not where there is any interest2.
1. Dan v. Browne, 4 Comen 483 (492).
2. See para. 9.31, supra.
9.36. Recommendation as to third paragraph, first sub-paragraph.-
The above discussion will show that besides the requirements mentioned in the section, it is, as a matter of principle, necessary that:-
(a) the person making the statement must have a joint interest in the subject-matter, and
(b) the statement must relate to the subject-matter1.
1. lavers v. Binnings, (1815) 1 Stark 64.
9.37. In a subsequent Calcutta case1 the rule was thus stated-"when several persons are jointly interested in the subject-matter of the suit, an admission of any one of these persons is receivable not only against himself but also "against the other defendant, whether they be all jointly suing or sued, provided that the admission relates to the subject-matter in dispute, and be made by the declarant in his character of a person jointly interested with the party against whom the evidence is tendered."
1. Meajan Mathar v. Alimuddin Mia, 1916 ILR 44 Cal 130 (143).
9.38. Recommendations to amend section 18, third paragraph, sub-paragraph (1).-
For the reasons stated above, we recommend that in the third paragraph, the first sub-paragraph should be revised so as to introduce these requirements, which are reasonable and have been judicially recognised.
9.39. Section 18, third paragraph, sub-paragraph (2).-
The third paragraph, second sub-paragraph, which relates to privies, needs no change of substance.
9.40. Section 18, second paragraph.-
We recommend a redraft of the second paragraph, so as to cover civil proceedings other than suits. As regards criminal proceedings, no change is needed.