1. The plaintiff's evidence is that after the marriage ceremony was performed by the Brahmin he wrote out a document in plaintiff's presence and signed it. Mr. Bhagwati says that he is not in a position to call this Brahmin and he tenders this document under Section 32, Sub-clause (5), of the Indian Evidence Act, 1872. Section 32 makes statements of relevant facts relevant in cases where the person making the statement is dead or cannot be found or has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable. In this case Mr, Bhagwati urges that the Brahmin cannot be found and, therefore, Section 32 is applicable.
2. It will be noticed that the statement tendered is with reference to one of the most important issues in the case, namely, whether the requisite and essential ceremonies constituting a valid Hindu marriage were or were not performed, and Mr. Bhagwati seeks to make the statement of the Brahmin relevant without giving an opportunity to the other side to cross-examine the maker of that statement. Under these circumstances it is clear that the Court must very carefully consider what attempts have been made by the plaintiff to secure the evidence of this person before permitting the statement itself to become evidence without the testimony of that person being tested by cross-examination.
3. The plaintiff's case is that he asked M.L. Shah to find a Brahmin who would perform the marriage ceremony, and M.L. Shah in his turn asked Girdhar Thakkar to get a Brahmin, and it was Girdhar Thakkar who found that Brahmin and brought him to Vinod Building on October 4 to perform the marriage ceremonies. Girdhar Thakkar is at present a detenu and, according to the plaintiff, it was Girdhar Thakkar alone who knew the where-abouts of the Brahmin. He saw Girdhar Thakkar the last time in May, 1941. At that time Girdhar Thakkar had told the plaintiff that he would be able to get the Brahmin to give evidence whenever the plaintiff wanted. After that, the plaintiff has made no attempt to secure the evidence of Girdhar Thakkar. The plaintiff does not even know where Girdhar Thakkar used to reside in Bombay and he has made no inquiries to find out from Girdhar Thakkar's residence as to whether anyone else in his house knew about this Brahmin. Although the plaintiff met M.L. Shah last April, he made no further inquiries of him about the Brahmin merely because, according to him, M.L. Shah had told him that he did not know the Brahmin's address but Girdhar Thakkar knew it. The plaintiff did not even take the trouble to ask M.L. Shah whether Shah could direct him to someone else who might know the address of the Brahmin nor did he ask Shah what Girdhar Thakkar's address in Bombay was.
4. According to the plaintiff, in November, 1940, the Brahmin had given him the address where he was staying, and it was only in March, 1943, that he went to that address to make inquiries whether the Brahmin was staying there or not. To my mind the whole conduct of the plaintiff in this matter has been extremely casual, and he seems to be perfectly indifferent whether the Brahmin did or did not come into the witness-box as a witness on his behalf. I, therefore, hold that the plaintiff has not satisfied me that this particular witness cannot be found as required by Section 32 of the Indian Evidence Act, and, therefore, any evidence of a statement made by him under Sub-clause (5) of that section would not be relevant.
5. I further hold that the statement tendered by Mr. Bhagwati does not fall within the terms of Sub-clause (5). Sub-clause (5) only makes those statements relevant which relate to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship the person making the statement had special means of knowledge. What the statement says is that the marriage of the plaintiff with defendant No. 1 was performed according to rites prescribed by religious scriptures, that is, in the presence of fire and by going through all the ceremonies pertaining to 'Hastamilap ', 'Mangalfera' and 'Saptapadi'; and then it mentions who were the persons present at the marriage ceremony. It is clear to my mind that the statement relates to the performance of marriage ceremonies and not to the existence of any relationship. These ceremonies were antecedent to the coming into existence of the relationship between the plaintiff and defendant No. 1 by marriage. The Brahmin really talks of the creation of a relationship by certain ceremonies rather than the existence of such relationship. Mr. Bhagwati undoubtedly tenders this statement not to prove that the relationship of the marriage existed between the plaintiff and defendant No. 1 but to prove that the Brahmin performed the essential ceremonies required in a Hindu marriage. Such a statement clearly does not fall within the ambit of Sub-clause (5).
6. My decision on these two points is sufficient to dispose of the question of the admissibility of this document. But a further point has been argued at considerable length before me, and as it is a matter of considerable interest and importance, I should like to refer to it. It has been contended by Sir Jamshedji Kanga that under Section 32 of the Indian Evidence Act only statements of relevant facts are made admissible and not statements of facts in issue, and it is urged that this particular statement is of a fact in issue and not of a relevant fact, because the question whether the ceremonies were performed or not has been directly put in issue. There is no doubt that the Indian Evidence Act draws a distinction between relevant facts and facts in issue. Section 3 defines what is relevant and what are facts in issue. Section 5 provides that evidence may be given both of facts in issue and also of other facts which are made relevant by the provisions of the Indian Evidence Act. Section 17, which defines an admission, refers in terms both to a fact in issue and also a relevant fact; and Section 36, which deals with statements made in published maps or charts, also refers to such statements being of facts in. issue or relevant facts. When one turns to Section 32, the statements therein referred to are only statements of relevant facts and not of facts in issue. Sir Jamshedji Kanga, therefore, argues that the Indian Evidence Act only permits hearsay evidence to be given under Section 32 of statements of relevant facts and not of statements of facts in issue. Sir Jamshedji Kanga says that the principle underlying the exclusion of statements of facts in issue is that the Courts should not permit facts in issue to be proved by hearsay evidence but they must insist on direct evidence. Sir Jamshedji Kanga is further supported in his argument by a decision of our Court of Appeal reported in Patel Vandravan Jekisan v. Patel Manilal Chunilal I.L.R. (1890) 15 Bom. 565. In that case the question before the Court was whether in the Maratha country a Hindu widow could without the permission of her husband and without the consent of her kindred adopt a son to him. The plaintiff relied on a custom among the Kadwa Kunbi caste by which the widow was prohibited from adopting a son without the express authority of her husband. This custom was sought to be proved in the trial Court by a statement signed by several witnesses to that effect. In the Court of Appeal Mr. Macpherson objected to that evidence on the ground that these were statements with regard to facts in issue and not relevant facts. Mr. Latham, the Advocate General, conceded at the bar that the lower Court was wrong in taking evidence in the manner it did and the procedure adopted in recording evidence was irregular. Sargeant C.J. in delivering the judgment of the Court observed (p. 579) :-
The Subordinate Judge admitted the evidence under Section 32 and Sub-clause 4, apparently considering that it would be unreasonable to oblige the plaintiff to incur the expense of procuring the attendance of the witnesses. But that section is not applicable to a case like the present where the evidence was required to prove a fact in issue and not merely a relevant fact : and the above statement was, therefore, inadmissible to prove the custom as alleged.
It will be noticed that this particular question was not fully argued before the Court and the Court was also influenced by the fact that the Subordinate Judge was not right in not insisting upon the plaintiff calling his witnesses merely because it would involve a certain amount of expense in calling such a large number of witnesses.
7. I feel that to accept Sir Jamshedji Kanga's construction of Section 32 would lead to a considerable amount of difficulty, and much of the evidence which is admitted under Section 32 by Courts here, and elsewhere as a matter of course would become inadmissible. Take for instance the dying declaration under Sub-clause (1) of Section 32, which refers to the cause of the death of a person making the statement. If a murdered person had made a dying declaration stating that his death was caused by the accused shooting him with a revolver, and such a statement was sought to be used in the trial of the accused for murder, such a statement would certainly fall under Sub-clause (1). But that would not be a statement of a relevant fact but of a fact directly in issue because the cause of the death is a fact in issue in a trial for murder of the person against whom the statement is sought to be used, and one of the illustrations to Section 5 of the Indian Evidence Act itself says that such a fact is a fact in issue. Further if one were to look at the illustrations to Section 32, it is clear that many of the illustrations there are of statements of facts in issue and not merely of relevant facts. It is true that illustrations cannot control the language of a section, but they certainly afford a guidance to its construction.
8. Further the line between a fact in issue and a relevant fact is often a very narrow one. The raising of issues being a function of the Court, it would be left to the Court what statements to exclude from the application of Section 32 by framing issues relating to the facts in respect of which statements might be tendered in evidence under Section 32 of the Indian Evidence Act. Mr. Bhagwati has argued that the words 'relevant facts' used in Section 32 must be construed in a wide sense and that they really mean facts which are admissible in evidence and which cover both relevant facts in the stricter sense and facts in issue. Mr. Bhagwati has relied on a decision of the Privy Council in Musammat Biro v. Atma Ram : (1937)39BOMLR726 In that case the question in issue was whether the plaintiff was the next reversioner of the husband of the widow who had purported to dispose of the properties of her husband by a will, and in order to prove his relationship the plaintiff relied on a pedigree, and the pedigree was sought to be proved by a statement made by one Munshi Mal who had died before the institution of the suit. The Privy Council held that the statement of Munshi Mal to prove the pedigree was admissible under Section 32, Sub-clause (5), of the Indian Evidence Act, Now there is no doubt that the statement of Munshi Mal was a statement of a fact in issue. L. deGruyther K.C. for the respondent contended that this statement was not admissible in evidence but it was not suggested by him that it was not admissible because it was A statement of a fact in issue; and the Privy Council held that the statement was admissible although, as I have pointed out, it was clearly a statement of a fact in issue. Thus, according to Mr. Bhagwati, the Privy Council has taken the view, contrary to the view of our High Court, that statements of facts in issue are admissible under Section 32 of the Indian Evidence Act provided they satisfy the other conditions of the section. It is true that the Privy Council does not expressly overrule the decision in Patel Vandravan Jekisan v. Patel Manilal Chunilal, but I feel that the value of that decision as an authority has been considerably impaired by this decision of their Lordships of the Privy Council, It may be that till it is expressly overruled by a propel tribunal it may still be binding on a Judge sitting singly. But as I have based my decision on the other two grounds to which I have referred in the earlier part of my judgment, I do not think it necessary for me to decide whether the construction sought to be put by Sir Jamshedji Kanga on Section 32 of the Indian Evidence Act is a right one.
9. [In the end the suit was dismissed with the consent of parties.-EDS.]