1. Plaintiff is the appellant in this second appeal; It arises out of a suit for partition in respect of 253 acres of homestead land in Cuttack town bearing plot No. 74 in Khata No. 553 of the current settlement. The plaintiff claims title to a ten annas-eight-pies share thereof. He claims five-annas four pies share under a deed of gift, Ext, 1, dated 7-1-41 and the other five-annas-four pies under a sale-deed, Ext. 2 dated 9-6-1944. Both the courts below have decreed the plaintiff's suit in respect of a five-annas-four-pies share, but have dismissed it in respect of the other five-annas-four-pies share. The plaintiff has accordingly brought the second appeal in respect of the five-annas-four-pies share for which his suit has been dismissed.
2. The suit-plot originally belonged to three brothers, Nakfodi, Gangai and Chaitan. Defendant 1 is the son of Nakfodi. The plaintiff's case is that all the three brothers were separated and he claims five annas four pies share under Ext. 1 from the brother Chaitan, and the five annas four pies share under Ext. 2 from the daughter of Gangai. The case of the contesting first defendant is that at the family partition, Chaitan alone separated, but that the other two brothers remained joint, and that on Gangai's death his share survived to his branch and that he was accordingly entitled to the five annas four pies share of Gangai. The question, therefore, ultimately is one as to this disputed fact, namely, whether at the family partition all the three brothers became separated inter se or only the brother Chaitan separated,while the other two brothers continued to remain joint.
3. Both the courts below have accepted the first defendant's case on this question of fact. The point raised by the counsel for the appellant in this second appeal is that this concurrent finding of both the courts below is largely based upon the admission of one inadmissible item of evidence, namely, the recital in the gift-deed, Ext. 1. It may be mentioned that both sides gave also oral evidence of this disputed fact. As regards the documentary evidence, there were, in favour of the plaintiff's case two settlement entries, Exts. 3 and 3-A of which Ex. 3-A shows the land entered in the name of the two brothers, Jujesthi & Chaitan and of Nila Bewa, the widow of Gangai. This is relied on by the plaintiff as a strong item of evidence in his favour.
As against that the defendant relies upon entries in the Municipal Registers of the years 1926-27 and 1934-35 which show only the names of Jujesthi and Chaitan, without any mention either of the widow, Nila Bewa or her daughter Bacha, D-2 the vendor under Ext. 2.
What, however, has influenced both the courts below most is a fecital in the gift-deed, Ext, 1. As already stated that was a document, executed ay the brother Chaitan in favour of the plaintiff who was his sister's son, and whom, it would appear he was bringing him up as his foster-son. In that document, he has, while conveying his own five annas four pies share, made an incidental' recital that the other ten annas eight pies share belongs to the first defendant, Jujesthi. In so reciting, he has made a reference to how Jujesthi became vested with that ten annas eight pies share. Both the courts below have taken that recital to mean that it amounts to an assertion that at the date of the original partition between the three brothers, the two shares of Nakfodi and Gangai remained joint and that only Chaitan's share was separated and they have treated this recital as admissible under Section 32, Evidence Act, on the footing of its being a statement by Chaitan against his interest.
The recital has been read to us and it does not at all appear to be a recital categorically asserting that there has been a partition only of Chaitan leaving the other two brothers joint at the time of the original partition as asserted in the first defendant's case. But apart from the meaning of that recital, the view taken by the courts below that it is a statement against the interest of the executant thereof and that, therefore, it is admissible under Section 32, Evidence Act appears to be clearly unsupportable. The courts below seem to think that because in a future contingency the plaintiff might be an heir to the property, if the two brothers Nakfodi and Gangai were separate as the plaintiff claims, & because Chaitan was interested in his foster-son, as he called the plaintiff, the statement by Chaitan must be taken as against his interest. The courts below are obviously making a confusion between the interest required for the admissibility of a statement under Section 32 and the interest that is relevant in judging the credibility of a statement and the weight to be attached to it.
The interest that is predicated in Section 32(3) must be one which relates to the pecuniary or proprietary interest of the person making it. It is not a kind of interest which a man may feel about a friend or a relation and it is in no sense sufficient to say that there may be some future contingency that may be affected by the statement. It must be the present pecuniary or proprietary interest of the person making the statement that must be affected by the statement in order that the same may be admissible.
4. Learned counsel for the respondent tried to support the admissibility of this statement by showing that one of the boundaries in the document is stated to be the 'present' land of Jujesthi and he tried ingeniously to argue that, in stating the boundary to be the 'present' land of Jujesthi, the executant must be taken to have referred to the recitals, which he has made in the body of the document itself as constituting part of the description of the boundary, i.e., by the use of the words 'present land of Jujesthi'. Even if the recitals are so imported into the description of the boundary, it is obvious that what he is seeking to use, is not the statement of the boundary, but the statement as to the circumstances under which the latter itself is said to have become the property of Jujesthi. That is, once again using the recitals themselves which as shown above, are inadmissible. This is, apart from the conflict that exists in me various High Courts as to whether a statement of the boundary is or is not admissible under Section 32.
We have, therefore, no doubt in our mind that the recital in Ex. 1 is not admissible on the question as to whether the three brothers were separated inter se Or only Chaitan was separate from the other two. The judgments of the courts below make it quite clear that they attach the utmost importance to this recital in coming to the conclusion on the disputed question. It is not possible for us to say whether excluding this statement, the courts below would necessarily have come to a conclusion in favour of the first defendant and against the plaintiff on this disputed question of fact. The courts below have got to see whether excluding this the rest of the evidence is enough to rebut the statutory presumption in favour of the current settlement entry, Ext. 3 (A). In the circumstances, the judgments of the courts below are set aside and the case will go back to the lower appellate court for reconsideration of the question at issue on the existing material.
5. Costs will abide the result.
6. I agree. I think it will be useful to make a few observations with regard to Municipal assessment registers, Exts. A and A-1, as in my view, both the courts below have misdirected themselves in appreciating their probative value. The basis on which their inferences from those documents are founded is evidenced from this passage from the judgment of the trial court which has been endorsed by the appellate court, though not in so clear terms. The court says:
'During both these assessments it has been found that the entire disputed land formed only two holdings 530 and 531 during the first assessment and 590 and 591 (probably mistake for 690 and 691) during the second assessment, one recorded in the name of Chaitan and the other recorded in the name of Jujesthi. If Nila Bewa and after her death her daughter defendant 2 were in separate possession of their house on the disputed land as is alleged in the plaint and deposed to by the witnesses, there is no explanation as to why her name has not been recorded or her house assessed as a separate holding'.
7. The emphasis is upon the circumstance that Nila Bewa's name was omitted from the Municipal assessment register, though the entire land and all the houses situated thereon were assessed. If this last assumption is wrong a different consideration would arise. It appears that in the Municipal as-sessment register, Ext. A-1, each of the holdings 530 and 531 is in respect of two rooms only. Either there is no clear evidence as to how many rooms in all were on the homestead of the family, or the evidence furnished by the map, Ext. (B) is contrary to the above assumption. On the map it appears that there were six rooms besides three Chalias (side Projections from thatches of houses) and each of the said two rooms appears to lie in different separated blocks. It this was the state of things at the time of assessment, it is clear that two houses belonging to either Nakfodi or Dhobei, whoever might be living at the time were omitted from assessment.
8. Coming to the next assessment register, Ext A-3, it appears that holding No. 690 corresponding to previous holding No. 530 comprised two rooms while the holding No. 691 corresponding to previous holding No. 531 comprised three rooms; two rooms and three rooms are stated to be on the average. There being no controversy with regard to number of rooms comprising holding No. 690 I shall dismiss that out of consideration, but with regard to holding No. 691 with reference to the map, Ext. (B) it may well be said without any fear of contradiction that three rooms on the average would not mean more than two bed rooms with two Chalias on both sides. This would similarly exclude out of consideration one bed-room, one kitchen, and one Chalia which might in all probability be the share of the third block.
9. I shall not, however, be understood to say that these documents are to be under-estimated with regard to their evidentiary value, but all attention should be paid to the contents of the documents in order to determine whether these registers do include all the houses on the homestead of the family. The municipal assessment head clerk says that the assessment is made on the basis of houses and not on vacant sites. Another circumstance to which no attention has been paid by any of the courts below must be taken into account. The said assessment clerk, at present law-clerk of the Municipality, has shown that at the time of the later Municipal assessment, there was an objection filed in relation to the assessment of holding No. 691 which is a holding recorded in the name of Jujesthi. He further deposed that the objection petition and the order passed on it are available in the Municipal office. While giving the finding on facts the lower appellate court should pay attention to these circumstances though I would not like to fetter his discretion otherwise in the matter.