(1) These appeals are companion appeals. They can be beat dealt with in one judgment. Rs.. A. No. (B) 56/56 arises out of Special Civil Suit No. 38 of 1949 on the file of the learned civil judge (Senior Division)at Bijapur. B.A. No. (B) 57/58 arises out of the decision in special Civil suit No. 5 of 1949 on the file of the same Judge. They had been tried together and disposed of in one judgment by the Court below.
(2) The first plaintiff is S. C. S.. No 5/49 and the plaintiff in S.C. S. No. 38/49 claim to have been adopted to the family of the Nadgoudas of Baldion- a rich family of Watandars. In the course of this judgment 1 shall refer to the parties its arrayed in SCS No. 5/49. The first plaintiff in that suit (2nd plaintiff has died prodding trial) is the appellant in R.A. No. The fourth defendant in that suit (who is the plaintiff in SCS No. 38/49) is the appellant in R.A. No. (B) 56/56. Hereinafter reference to the 'plaintiff' means the first plaintiff in SCS Nos. 5/49. When occasion arises to make any reference to the second plaintiff. The evidence oral and documentary was mainly received in SCS No. 5/49. Hence when reference is made to witnesses or Exhibits during the course of this judgment. It is its mentioned in SCS No. 5/49. A few documents have been marked as Exhibits in SCS No. 38/49 and they will be specifically referred to whenever necessary.
(3) There is no dispute as regards the pedigree of the family. It is as follows:
SHANKARAPPA 1 (dead 1897) ----------------------------------------------------------------------------------------------------------------------| | | Raja Channappa Subhappa (died 1907) (died 1905) (died 1945) = 2nd plaintiff | = Deft. 3 (died Aug, 1950)| --------------------------------------- | |----------------------- Shankarappa 11 Deft. 1 Plaintiff 1(claims to (died 1935) | have been adopted by = Deft. 5 Deft. 2Plaintiff 2 on 9.3.1948) | Deft. 4 (claims tohave been adopted byDeft. 5 on 15.11.1936).
(4) In the suit the plaintiff has prayed for a declaration that he being the adopted son of Raypappa, is entitled to get his name entered in the Warn Register as holder of the suit properties and to receive a half-share to the cash, allowance described in Schedule Exhibit to the plaint. He also prayed for partition and separate possession of a half share in all the suit properties, with future mesue profits and costs. The fourth defendant claiming to be the adopted son of Shankarappa 11 has claimed partition of the family properties and possession of 1/4 the share in them.
(5) The trial Court came to the conclusion that though the plaintiff was adopted on 9.3.1948, his adoption is invalid as the second plaintiff had been prohibited by her husband from making any adoption .Consequently the plaintiff's suit was dismissed. It has also opened that even if the plaintiff's adoption is held to be valid, the Civil Court has no jurisdiction to declare that the plaintiff is entitled to get his name is entered in the Watan Register as holder of the suit Watan, as the relief prayed for is barred by Second. 4(a). (Para 3) of the Bombay Revenue Jurisdiction Act, 1896. Dealing with the prayer for a declaration that he is entitled to receive a half-share to the cash allowance described in schedule Exhibit to the plain, the Court below held that such a declaration cannot be given without a certificate from the Collector under section 6 of the Pensions Act. But it proceeded to say:
'It appears that he (plaintiff) had applied to the collector for the said certificate. But the Collector seems to have been of the opinion that the certificate could be granted only after he obtained a declaration from the Civil Court regarding the validity of his adoption. See the Mamlatdar's letters, Exhibits 483 and 484. If his adoption was held to be valid, the suit should have been adjourned to enable him to obtain the certificate from the Collector'.
(6) In the Court below, the parties were argument issue as regards the moveable and immovable properties available for partition. The fact defendant claimed that some of the items of the property detailed in his written statement were his self-acquired properties. Similarly he disputed the claim of this plaintiff and the fourth defendant in respect of second items of moveable properties claimed in the suits. The Court below negatived the first defendant's individual claim in respect of all items of immovable properties claimed by him. As regards movable the findings of the Court below are given in paragraph 129 of its judgment.
(7) In this court the parties did not challenge the findings of the Court below as regards the properties movable immovable available for partition. Hence it is unnecessary to go into these questions. Though the plaintiff claimed in the suit properties a half share in the Court below, in this court he confines his claim to a 1/3 referred hare in the family properties. If he succeeds in establishing that he had been validly adopted,, it is not disputed that he is entitled to a 1/referred share in the family properties. In the Court below the first defendant not only pleaded that there was a partition in 1906 between his bench and Subbappa but he further pleaded that in the same year there was a partition between himself and his minor son ( defendant 2).
The trial Court while un holding the partition between Subhappa and the first defendant's branch, held against the plea that there was a partition between the first defendant and the second defendant. In this court the findings of the Court below that there was no partition between the first defendant and second defendant was not challenged. The partition between Subbappa and the first defendant's branch is evidence by a registered partition deed (Examine. 485) dated 25.11.1938. On 28.11.1938 Subbappa executed two gift deeds one in favour of his wife defendant's (Examine. 505) and another in favour of the first defendant (Examine. 486) in respect of some of the properties obtained by him in the partition and the gifts necessary entries were made in the record of rights. No ............ is placed before the Court in support of the contention that the partition deed and the gift deeds are nominee in character. The controversy as regards the true purpose behind these deed appear to me to be wholly irrelevant. Moreover so far as the plaintiff in concerned this question has ceased to have any importance as he has confined his claim to a one-third share in the family properties.
(8) Before proceeding to consider the crucial points in controversy in these appeals, we may dispose or a subsidiary dispute. The Court below came to the consist the plaintiff is not in actual possession or the suit properties and therefore he is liable to pay Court-fee on the partition relief, under clauses (iii) and (v) of section 7 of the court-fees Act. It was contended on behalf of the plaintiff that the reliefs claimed by him property fall within the scope of clause (Improvement Act) of Act, 17 of schedule Rs.. This contention appears to me by be correct. In determining the Court-fees due, the Court is solely guided by the averments made in the plaint. The plaintiff claims that he had been validly adopted into the plaint family If those allegations are true for the purpose of Court-fee-they are assumed to be true-he should be deemed to be dispossession though constructively. He is merely seeking to disrupt the joint possession and convert the same into separate possession. It is nobody's case that the plaintiff was excluded from possession. Hence the relief in question comes within the scope of the cl.(ii) of Act, 17 of She. 11, of the Court-fee Act, See Ramaswami Ayyangar v. Rangachariar, AIR 1940 Mad-113.
(9) The two questions that prominently figured during the hearing of these appeal s are; (i) is the adoption of the fourth defendant true and valid? And (Improvement Act) was the second plaintiff prohibited by her husband from making an adoption? We shall that take up the case of the fourth defendant.
(10) The Court below was held against the fourth defendant both as regards the factum as well as the validity of his adoption. According to the fourth defendant, he was adopted by the fifth defendant to her husband on 13.11.1936. In support of this case, he has placed before the court both oral and documentary evidence. Courts were literally flooded with adoption cases ever since the decision of the judicial committee in Bhimabai Jivangonda v. Gurunathgouda Khandappagouada, 60 Ind App 25: AIR 1933 PUBLIC 1, and the three Kannada Districts of Dharwar, Belgaum and Bijapur which formed part of hole Bombay state contributed substantially in the respect. This court after re-Organization had its due share of these cases. Evidence in these cases are more or loss stereo typed. It consist others :(Improvement Act) a registered deed of adoption and (iii) oral evidence relating to giving and taking. The common pattern to some extent is followed in this case as well. (After discussing in Paras 11-19 the questions of the truth as well as the validity of the adoption of the fourth defended, it was held that the fourth defending had failed to establish both the factum as well as the validity of the adoption pleaded by him, and dismissed R. A. No. (BEFORE) 56 of 1956 with costs. The judgment proceeded:)
(20) This takes us to the question as to the validity of the adoption of the [plaintiff. In the Court below both the factum and the validity of the adoption of the plaintiff were challenged . The trial court, has come to the conclusion that the plaintiff was in fact adopted by the second plaintiff on 19.3.1948. But at the same time it held that the adoption in question was invalid as the second plaintiff has been prohibited by her husband from making any adoption . The husband of the second plaintiff Raviappa died on 30.9.1907, it is said that 15 days prior to his death, i.e., 15.9.1907 he executed Exhibit 788 prohibiting his wife from making any adoption to him. The genuineness of this deed is shortly denied by the plaintiff. The second plaintiff died sometime in August 1950. But prior to her death the crucial question for decision in R. A. No, (B) 57/56.
In the court below it was also contended that the adoption in question was invalid as the second plaintiff was a Patita woman is not valid in law. The trial Court came to the conclusion that after the death of the husband the second plaintiff was lying in terms of intimacy with one Monlappa Bedar and that she had strayed away from the path of virtue. But following the decision of the Bombay High Court in Baswant Mushappa v. Mallappa Kallappa. H.R. 45 Bom 459: (AIR 1921 BOM 301 (1)), and the subsequent decisions of that Court it came to the conclusion that adoptions made by degraded Sundar Women are not invalid in ;law. This position is not contested in this Court. Hence I shall proceed to consider whether Exhibit 788 in genuine.
(21) The burden of proving that Ex. 788 which purports to take away the rights of the second plaintiff from making an adoption is heavily on the contesting defendants Ex. 788 is an unregistered deed. None of the defendants can speak about its genuineness. The first defendant was hardly two years old at the time of the death of Raviappa. Defendants 3 and 5 had not beam married into the family by that time. No person claiming to knew the writing of Raviappa was examined to prove that the writing or the signature for in Ex. 788 is that of Raviappa. The document purports to be over 30 years old. Hence the court could have presumed under section 90 of the evidence Act(who shall be herein after referred to as the 'Act') that it was written and signed by Raviappa. But taking into consideration the contentions of the parties and the surrounding circumstances, the Court called upon the contesting defendant to prove its genuineness as could be seen from issue No.2 framed in the suit.
It is true that after coming to the conclusion that the evidence adduced by the contesting the defendant is acceptable and that the same is sufficient to establish the genuineness of Ex. 788, the Court has supported its conclusions by also relieving on the presumption available under section 90. But the fact remains that the presumption in question was only drawn because the Court was satisfied on evidence that Rs. 788 is genuine. In those circumstances it cannot be said that the trial Court having exercised its discretion which it was entitled to do under section 90, this Court should be slow to interfere with the discretion exercised by the trial Court.
It is not the law that the appellate Court has no right to interfere with the decoration of the trial Court in the matter of drawing any presumption under S. 90 of the 'Act'. If the appellate Court is satisfied that the discretion in question was improperly exercised, it will undoubtedly interfere with the same. This Court as the first appellate Court has a duty to scrutinise with care and caution the evidence available on record and the circumstances bearing on the case and come to its own conclusion on all questions of fact. But in so doing it will bear to mind the well accepted rule of caution and not law that the opinion of the trial Court should not be lightly interfered with.
(His Lordship them took up the question of the genuineness of Ex. 788. After discussing the evidence as to the genuineness of attestation of handwriting experts.)
(23) I shall now consider the evidence of the handwriting experts. The contesting defendant have examined Sri. Thakordas Jekisandas Gajjar (Ex. 745) the Chief Handwriting and Photographic Expert of the Bombay State to prove the Handwriting and signature of late Raviappa in Ex. 788 as well as the attesting signatures of witnesses Sangappa, Gurusangayya and Amatigouda, by comparing those signatures and writing with those found in other documents whose genuineness were either admitted or presumed under section 90 of the 'Act'. Sri Gajjar fully supports the case of the contesting defendants. On the other side the plaintiff has examine Sri Parmeshwar Dayal (Ex. 753) a private Expert who in his turn wholly contradicts the evidence of ?Sri Gajjar. The trial Court in its judgment in more than one place observed that much reliance cannot be placed on the evidence of these experts. In paragraph 71 of its judgment it stated:
'Of all kinds of evidence , expert evidence on handwriting is said to be the most unsatisfactory. It has been also observed that a comparison of handwriting is at all times as a made of proof, hazardous and inconclusive'.
Again at Para 107 it observed:
'The writing and signatures on which expert evidence has been led in, this case are all in the Kannada script. Neither of the handwriting experts examined in this case known either the Kannada language or the Kannada script. Their evidence is contradictory on many points. In the 'Law of Evidence 'by Mole (III Edn. 1948) at page 454, it is observed as follows:
'The evidence of an expert in handwriting is of little value when it is contradicted by that of another. Where the signature examined by an expert is in a language which he cannot read or write, his opinion is not of much value and can be used merely as corroborative of other evidence .'
'At page 584 in the book it is observed that his science of the study of calligraphy is yet very uncertain and in exactly; and at page 453 it is observed that experts, like lawyers, sitter in their opinion and it is in the highest degree unsafe to relay on expert evidence. Bearing all such remarks in mind, I examine the evidence of the experts in this case.'
After having said all that, the court below has proceeded to scrutinise the testimony of these two experts and as between the two, it has proffered the evidence of Sri Gajjar. Sri Dayal as mentioned earlier is a private expert engaged by the plaintiff to response his case. Even before he examine the disputed writings and signatures, he knew what his client wanted. Further he was not merely an expert examine on behalf of the plaintiff , he also acted as Mukthiyar of the plaintiff and cross- examined Sri Gajjar. In these circumstances , the Court below was certainly right in not placing reliance on his testimony. But that by itself does not make Sri Gajjar's evidence acceptable. His evidence will have to be independently scrutinised. The trial Court has accepted his evidence mainly on the ground that several of the letters found in the disputed documents are similar to character and formation with the corresponding letters found in the documents used for comparison. I think it is a wholly wrong approach.
In examining a disputed document the true test is not the extent a disputed similarities observed when compared with genuine documents, as forged documents, but the nature and extent of the distribution-similarities noticed. It is these differences which expose the true character of this document in question. Admittedly several of the letters found in the writing and in the signatures in Ex. 788 are strikingly dissimilar to the corresponding letters found in the admitted signatures. For instances the letters original to Kannada omitted here-Ed.)found in Ex. 788 do not bear satisfactory resemblance to those very letters found in Ex. 613 and Exhibits 474 to 477 all of which admittedly contain the genuine signature of Raviappa. I amount afraid the Court below had not given sufficient importance to these circumstances . The science of calligraphy is not a perfect science and the business are not rare when even the best handwriting expert had not been able to find out the forgery.
(24) It is urged on behalf of the contesting defendants that the letters to which we have made reference earlier, found in Ex. 788. Are quite similar to the corresponding letters found in exhibits 774 and 780, this fact is even conceded by Sri Gajjar hence we should not have any hesitation in accepting the genuineness of Ex. 788. This argument appears to have impressed the trial Court. The genuineness of Exhibits 774 to 780 is challenged by the plaintiff . According to the suggestions made on his behalf, they forged documents and they were likely to have been got about the same time when Ex. 788 was forged and that with a view to use them for the poor houses of comparison at the appropriate stage. The Court below acting under section 90 of the 'Act' has presumed that Exhibits 774 to 780 are genuine documents and the signatures and the handwritings found therein are of the persons who purported to have written to signed them. The Court below throughout the genuineness of those documents are vouch saved by the entries found in Ex. 773, a register regularly kept and whose genuineness was not in dispute.
The plaintiff 's case is that the first defendant as the Watandar of the village was in possession of Ex. 773; taking advantage of some of the entries found in that register he must has concocted Exhibits 774 to 780 to correspond with those entries to give them an air of genuineness. It is contended on his behalf that Exhibits 773 to 780 had not been produced into Court from proper custody and consequently the Court below was wrong in raising any presumption under section 90. It is the case of the plaintiff that those documents, if they were genuine, ordinarily should have been with the Watandar and not with the Kulkararni: but releasing that if he produces the same, that circumstance might lend support to the plaintiff 's contention that they are forged documents produced through one Prabhakar Bhimaji, the Kulkarni of the village; hence according to the plaintiff the documents in question had not come from proper custody. But on the other hand it is urged on behalf of the contesting defendants that those documents were and should have been in the custody of the Kulkarni of the village and he having produced the same the Court below was rightly satisfied that they were produced from proper custody.
We were also told that the finding of the Court below on this point is not once to review by this Court as it was for that Court to consider whether the documents in question had come from proper custody. The statement of the law does not appear to me to be correct.
(25) Section 90 of the 'Act' is worded in general terms as it was designed to more situations varying in character, whose passage of time might have obliterated the proof of the genuineness of any disputed document. Under this section wide powers were conferred on this Court. A wrong exercises of the discretion under that provision is likely to strength the hands of the forged. It is not difficult to incorporate recitals in a document to show that it is over thirty years old. Hence before existing any presumption under section 90, great deal of circumspection is necessary lost the balance should be tilted in favour of an under serving cause. The Courts ought to be careful to see that that provision is not made the forger's paradise. Section 90 states that the Court may draw a presumption and not that it must draw a presumption.
In many cases it would be most dangerous to draw the presumption that a document was genuine merely because it was thirty years old according to the recitals in he document and came from proper custody : AIR1948Mad388 . If the trial Court falls to adopt the correct approach it is of the utmost importance that the appellate court should set matters right to further the cause of justice.
But before any presumption under section 90 can be drawn, one fact must be satisfactorily proved and that is, the document in question has been produced from proper custody. The satisfaction and ought to be found on the evidence on record. It is for the party who asks the Court to draw the necessary presumption under section 90 to prove by satisfactory evidence that the document was produced from proper custody. The finding of the trial Court on this point is a finding of fact is subject to the scrutiny of the appellate Court.
The importance of the proof of proper custody cannot be overlooked particularly in view of the wide scope of section 90. The factum of proper by one of the two ways i.e., other by adducing evidence aliunde to show that the document was produced from proper custody or by showing that the person who produced it was the depository of the document in question. Our attention has not been drawn to any material on record showing that Prabhakar Bhimaji Kulkarni was the depository of Exhibits 714 to 780. No statutory provisions, rules or orders have been brought to our notice to establish that fact. Prabhakar Bhimaji himself was not examined in this case. He was only summoned to produce those document into Court. No explanation is forthcoming for his non-examination. Sri Purushotam Tricumdas, the learned counsel for the first defendant urged the on a true reading of section 90 and 139 of the 'Act', it is seen that the production of a document as provided for in section 139 can satisfy the requirements of section 90, if the trial Court thinks that it has come from proper custody. I do not think that this contention is sound. No authority was cited in support of the same.
Section 139 has nothing to do with the proper custody mentioned in S. 90. That section merely provides a machinery for the production of the documents summoned. It in no way bears on the interpretation to be placed on section 90. Under section 90 as mentioned earlier, the correct ought to act on the evidence adduced to decided whether the documents have been produced from proper such today or not. In this particular case custody of Exhibits 774 to 780 assumes considerable importance in view of the contention advanced on behalf of the plaintiff that they are forged document and that contention cannot be brushed aside as of no importance. In any judgment Exhibits 774 to 780 have not been proved to have been produced from proper custody and consequently are inadmissible in evidence .
(26) To establish that the second plaintiff was prohibited by her husband from making any appellant , reliance was placed on Ex. 781 a postured said by have been written by Malkendrarao Nadgouda on 28.6.1928 to his nephew Basvandra Nadgouda Malkendrarao was the elder brother of the second plaintiff. (After discussing the evidence , His Lordship held that Exhibit 781 was not genuine and continued:)
(27) In the trial Court it was conceded that Ex. 781 is not relevant under Section 32 of the 'Act'. It was sought to be admitted under section 11 and the Court below thought that it was relevant under that section. As regards the true scope of section 11, judicial opinion or divided. One line of decision have taken the view that even statements which are not relevant under section 32, can become relevant under section 11, it they fulfill the requirements of that section, while another line of decisions held that Scheme. 32 and 33 are exhaustive of the law relating to statements made by persons mentioned in section 32. There is yet another view, according to which section 32 deals with statement, written or verbal whereas section 11, deals with 'facts' which do not include recitals inducements though recitals in documents inter parties may be admissible under other provisions.
(28) I shall take up the point first as the same is covered by a decision of this Court which is bending on us. A bench of this Court in Kalappa Shiddappa v. Bhima Govind, 1960-38 Mys LJ 675: AIR 1961 Mys 160, opined that recitals found in a document not inter parties are not ' facts' within the meaning of that word in second. 11. In arriving at this conclusion the Bench followed the decision in Radha Krishna Marwari v. Sarbeswar Nag : AIR1925Cal684 , and the decision in Soney Lall Jha v. Darabdeo Narain Singh, AIR 1935 Parliament 167 (FB). Support to this view is also available from the Full Bench decision of the Allahabad High Court in Mt. Naina Khatun v. Basant Singh : AIR1934All406 . Therein Sulaiman, C.J. and Young J. Observed:
'It is however clear that if a statement does not fall within section 32 it could not be admissible under section 11 of that Act. Bela Rani v. Mahabir Singh, H.R. 34 All 341 and Munna Lal v. Kemeshari Dal. AIR 1929 Oudh 113. Obviously there is a difference between the existence of a fact and a statement as it its evidence. Section 11 makes the existence of facts admissible and not statements, as to such existence. Unless of course the fact of making that statement is itself a matter in issue'. In other words recitals in a document are not 'facts' as mentioned in section 11 unless the existence of those recitals is itself a matter in issue.
(29) This takes us to the question whether sections 32 and 33 of the 'Act' are exhaustive of the law relating to the relevancy of statements made by persons mentioned in section 32. A Bench of the Madras High Court in Sevogan Chettiar v. Raghunatha Dorasingam : AIR1940Mad273 , observed:
'As regards S. 11, it seems to us that S. 11 must be read subject to the other provision of the Act and that a statement not satisfying the conditions laid down in S. 32 cannot be admitted merely on the ground that , if admitted. It may prohibits or improbabilities a fact in issue or a relevant fact'.
The leading case on this point is the decision of the Allahabad High Court in H.R. 34 All 341. In the course of the judgment Richards, Chief justice stated:
' I think it impossible to hold that a statement of a relevant act which would be inadmissible under section 32 could be admissible under S. 11.'
But he gave no reasons in support of his conclusion. Banerji, J. The other Judge constituting the Bench discussed this question at some length. He observed:
'I agree with the learned Chief Justice that the statements relied on cannot be admitted in evidence. They are the statements of persons who are dead. Statements of such persons can only he admitted under Ss. 32 and 33 of the Evidence Act. It is conceded that the statements in question do not come with the put view of those section and are, therefore, not admissible under those sections, but it is contended that they are admissible is, no doubt, a fact which would make the fact in issue highly probable and, as such, might be admissible in evidence but it must be proved before it can be admitted.
The terms of S. 11 are, it is true, wide, but they must be read subject to the other sections of the Act, and therefore the fact relied on must be proved as accordance with the provisions of the Act. If that fact is a statement made by a person who is not called or cannot be called, the statement cannot be admitted unless it comes within the purview of subsequent sections of the Act, for example, sections 32 and 33. THAT such was the intention of the Legislature is manifest from the deliberate provisions of the Act as to relevancy of evidence. Surely it cannot be said that the statement of a person who said to another person that he had seen a murder committed can be admitted unless the person who made the statement is called'.
It is true in these observations there is some mixing of relevancy and not proof. For admissibility we must look by section 5 of the 'Act', and for proof to the other provisions contained in the 'Act'. But the above decision makes it clear that any statement made by a dead person and not failing within S. 32 is not relevant. Decisions have uniformly taken the view that Section 11 is widely worded. Some degree of latitude was designedly left in the wording of that section on account of the variety of matters to which it applies.
But if that section is read in isolation and the rule of harmonious construction not adhered to surely it is the best way to open the flood gates for bear say evidence of the worst type. In finding out the intention of the legislature the Scheme of the 'Act' import of the several take ground provisions and the likely effect of the interception suggested, should all be in mind. Section 32 is No. exception to the Rule of hearsay and it is not proper to read S. 11 as an exception to S. 32. While other relevant sections deal with facts etc., S. 32 deals with 'statement ' as such.
(30) It is argued by Sri Purshotamdas Trikamdas, that on analysis of the several provides conclusion tained to Chapter 11 it can be seen that statements of persons mentioned in section 32 and 33 to wit Scheme. 10,1, and 13. This arguments does not appear to be sound. If that contention is correct, the Ss. 32(7) is a superfluity as the evidence in question would be relevant under claim. (A) S. 13 on its own force.
(31) Most of the decided cases which have taken the view that 'statements' that are inadmissible under S. 32 may still be admissible under S. 11 have further stated that S. 11 is controlled by S. 32. this statement of the law is rather puzzling. If S. 11 is controlled by S. 32 it means that before a ' statement' can be relevant under S. 11 it must also be relevant under S. 32 in which case the aid of S. 11 is unnecessary.
(32) In support of the contention that 'statements' can be admissible under S. 11 even when they are not admissible under S. 32 four decisions have been edited before us. They are :
R.D. Sethna v. Mirza Shirazi, 9 Bom LR 1047; Ambica Charan v Kumud Mohun. : AIR1928Cal893 ; Thakuraji v. Pameshwar Daval. : AIR1960All339 and state v. Jagdeo 1955 All LJ 380.
(33) It is unnecessary to refer to the decision in : AIR1928Cal893 , as it merely follows the decision in 9 Bom LR 1047, said:
The test whether the statement of a person who is dead or cannot be found is relevant under that section, (presuming that it is in other respects within the intention of the section), although it would not be admissible under S. 32 is this: It is admissible under S. 11 when it is altogether immaterial whether what that dead man said was true or false, but highly material that he did say it. In these circumstances to amount of cross-examination could after the fact, if it be a fact, that he did say the thing, and if nothing more is needed to bring the thing said under S. 11, then the case is outside S. 32.'
But immediately thereafter quoting from the decision in : AIR1934All406 , he observed:
'Section 11 makes admissible the existence of facts and not statement as to such existence, unless the fact of making that statement is in itself a matter in issue.'
Hence according to him what is relevant under S. 11 is not the statement but the fact of making that statement when that fact is in itself a matter in issue. If what is sought to be proved is not the 'statement' as such but the fact of making that statement, then S. 32 has nothing to do with it. In that case, it is the proof of a 'fact' and not the proof of a 'statement'
(34) The decision of Beaman, J, on Sethna's case, 9 Bom LR 1047, requires careful consideration as that decision is the basis of the present controversy. In that case the question was whether a will was made in or about 1900. A letter which was formally proved to have been written by a person who died in 1885 containing the mention of the will was tendered. It was objected as bring a statement of a person who was dead or cannot be found etc., and not fulfilling the conditions of S. 32. It was supported on the ground that it was itself a relevant fact under S. 11. In examining the correctness of the contentions advanced the learned Judge observed:
'Briefly the test whether the statement of a person who is dead or who cannot be found in relevant under S. 11 and admissible under that section presuming of course that it is in other respects within the intention of the section) although object would not be admissible under S. 32 is this. It is admissible under S. 11 when it is altogether immaterial whether what the dead man said was true or false, but highly material that he did say it. In these circumstances no amount of cross-examination could after the fact, if it be a fact that he did say the thing, and if nothing more is needed to bring the thing said under S. 11 then the case is outside S. 32.
In such a case as this, for example, suppose that the person who died in 1885 can be proved to have said any time before he died 'A was Madras when he made his will: that is material to show that there was a will of some sort before 1900. And it makes not the slightest difference whether the statement that A was Madras when he made it is true or false.'
With great respect to the learned judge the reasoning appears to be fallacious. What was relevant in the case decided by him or even in the illustration given by him, as in the present case, is not the fact that it statement was made but what that statement contained. It was not outside the region of possibility in that case or for that matter in the present case, to establish by cross-examination that facts stated in the statements concerned are false and are stated with a purpose. To come to the facts of the present case, it is wholly immaterial for our purpose whether Malkendrarao wrote Exhibit 781 or not. What is material is the contents of the letter and the implication flowing there from.
(35) On the question under consideration the only decision amount those cited before us, that remains to be considered is the decision in state. Jagdoe, 1955 All LJ 380. The judgment of the Bench was delivered by Desai J. The relevant head note runs as follows:
'There is no connection between the provisions of Sc. 11 and 32 there is no justification for saying that one section is defendant on the other . As a matter of fact each section creates new relevant fcts: if a fact is relevant under S. 11, evidence about it can be given as permitted by S.. 5 even though it may not be relevant under S. 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 is fact is relevant under S. 32, it can be proved notwithstanding that it is not relevant under S. 11 amended to say that a fact relevant under S. 11 cannot be proved unless it is covered by the provisions of S. 32 is nothing short object striking out S. 11 from the Evidence Act. When S. 32 itself is sufficient to allow a fact to be proved, it would have been futile for the legislature to enact S. 11, if a fact made relevant by that section could not be proved unless it was also relevant under section 32.'
This is no doubt a fresh approach. But the crux of the matters whether a recital in a document is a 'fact' as defined in S. 3 or whether it is only a 'statement' us mentioned in S. 32 and what is the proper construction to be placed on S. 11 vis-a-vis S. 32. I have discussed these questions earlier and it needs no repetition. In my judgment Ss. 11 and 32 cover different fields and there is no question of any overlapping it properly constructed. In brief S. 11 deals with 'facts' while section 32 deals with 'statements'. The sweep of S. 11 is very wide. Hence there is no jurisdiction for the view that it will become itself 'statements' falling under S. 32 are excluded from its scope. The actual decision in 1955 All LJ 380, doesn't help the contesting defendants as it follows the decision in Mt. Natma Khatun's case, : AIR1934All406 , and emphasis the distinction between the existence of a 'fact' and the 'statement' about its existence.
(35a) For the first time in this court the learned counsel for the contesting defendants canvassed the relevancy of Exhibit 781 under S. 32(7) which brings within the scope any statement contained to any deed, will or other document which relates to any such transaction as mentioned in S. 13, clause (a) which section in its turn refers to any transaction which was inconsistent with the existence of any right pleaded. But before such statements can be relevant under S. 32(7) those statements must themselves be relevant facts. (Sec S. 32), In the instant case Ex. 781 by itself is not a relevant fact, it can be only relevant in connection with other facts. Consequently no assistance can be taken from Section 32(7). Hence it is not necessary to consider whether a consultancy with a lawyer is a 'transaction' within the meaning of that word as found in S. 13(a) or whether in the instant case Ex. 788 relates to a 'question as to the evidence of any right.' Nor it is necessary to consider the true scope of Section 13(a) read with S. 32(7). I do not think that Ex. 781 is either admissible under S. 11 or S./ 32(7) of the 'Act'.
(36) Sri Mohan Kumaramangalam is right when the says that the circumstances appearing in this case throw a great deal of doubt on the genuineness of Ex. 788. (After discussing the evidence in this Para and paras 37-39, His Lordship concluded.) On the whole I am not satisfied that exhibit 788 is a genuine deed.
(40) Those appeals were taken up for hearing on 9.9.1960. But on 14.9.1960 the learned counsel for the plaintiff filed an application under O.41, R.27 of the Civil Procedure Code seeking permission to adduce additional evidence. He urged that he has convincing material with him to show that the paper on which Ex. 788 was written was manufactured only on or after 1909. Along with his application he has produced certain correspondence that passed between him and some of the paper dealers. This is a belated application and there are no justifiable grounds it receive any additional evidence at this stage. Hence we refused to entertain the same.
(41) In the result, Regular Appeal No. (B) 57 of 1956 is allowed. The plaintiff will be entitled to a one third share in the movable and immovable properties belonging to the family as determined by the trial Court. Bit in allotting properties to the plaintiff, the properties that fell to the short of Subbappa as per the partition in 1906 and gifted to defendants 1 and 3 should not be disturbed though taken into consideration for the purpose of determining the share of the plaintiff. There will be a preliminary decree in to see terms. The plaintiff appellant in Rs.. A. No. (B) 57 of 1956 is entitled to his costs both in this Court and in the Court below. Costs will come out of the estate. Defendant 1 to 3 and 5 will bear their own costs in both the Courts.
(42) To sum up R.A. No (B) of 1956 is dismissed with costs: Regular Appeal No. (B) 57 of 1956 is allowed with costs, but subject to the conditions herein before set out. If any certificate under S. 6 of the pensions Act is still necessary, the plaintiff will be permitted to produce the same before the final decree is passed. The question of mesue profits will be considered by the trial Court.
Mir Iqbal Husain, J.
(43) I agree.
(44) Order Accordingly