1. The questions arising in this second appeal are whether Ex. 7 is a relevant document rightly admitted in evidence by the. lower Courts and whether the lower appellate Court was right in, admitting Ex. 14 series to show that Ex. 7 was a genuine document. The trial Court, because the wording of Ex. 7 did not accord very well with its other findings and because it did not bear the postal; seal of the Nizam's State from which it purported to have been sent, declared it to be a spurious document. The reasons given by the District Munsif for declaring it spurious were very inadequate and on the face of the document it bears its own proof of genuineness. The lower appellate Court would therefore have failed in its duty if it had not admitted other letters issued from the Nizam's State to show that such letters do not necessarily bear the Hydera bad State seal. The defendants had no reason to believe that the genuineness of Ex. 7 would be doubted and they could not therefore have been expected to come to the Court armed with a number of other letters from the Hyderabad State to meet some objections of the Court which they could not possibly have foreseen. It is further objected that the lower appellate Court should have given the present appellant an opportunity of adducing counter evidence. In the nature of the case there could hardly be any counter evidence on the point; but there is nothing on the record to show that any request was made to the appellate Court to permit the plaintiff to adduce counter evidence; and I have no doubt that the Court would have given an opportunity to adduce further evidence had the request been made.
2. The main point in issue in the Courts below was whether there was a family settlement which was binding oh the plaintiff. Ex. 7 is a letter written by defendant 1 to his wife making reference to a settlement and asking her to do certain acts to forward the settlement, such as by telling his uncle that he would execute a mortgage deed in his favour. It is argued on behalf of the defendants that such a document would be admissible Under Sections 11, 13 and 21, Evidence Act. Section 11 merely explains that certain kinds of evidence are relevant although they do not bear directly on the facts in issue. There can be no doubt of the relevancy of the fact in relation to which the statement in Ex. 7 was made; but that does not in itself make the statement relevant; for the admissibility of statements by parties (defined as admissions) is governed by Section 21. Nor can the statement be admissible Under Section 13, which relates to an assertion of a right or custom. A recital in a friendly letter is neither of these. The statement would be admissible Under Section 21 only if it is a statement that would be admissible by a dead person Under Section 32(2) or Section 32(3). Although the statement contains certain admissions of liability, yet such admissions are only parts of a larger statement asserting a settlement. Reading the document as a whole, the statement is not a mere admission of liability but an assertion of the existence of a settlement such as is made by the defendants in this case. I do not consider therefore that Section 32(3) applies. The point more difficult to decide is whether Section 32(2) will make the statement admissible. Woodroffe and Ameer Ali and Nrisinhadas Basu in their books on Evidence, in discussing the meaning of the words 'course of business' in Section 32(2) repeat word for word the expressions used by Candy, J. in Ningawa v. Bharmappa (1899) 23 Bom 63:
This exception to the general rule against hearsay extends only to statements made during the course not of any particular transaction of an exceptional kind, such as the execution of a deed of mortgage, but of business or professional employment in which the declarant was ordinarily or habitually engaged.
3. They consider it to be such business as would be conducted by a man of business, i.e., by a man habitually engaged in mercantile transactions or trade. The document was held to be admissible Under Section 32(3); and in any case it is difficult to see how a recital in a mortgage deed of the mortgagor's right was one made in the ordinary course of business. It is unnecessary therefore for Candy, J. to go so far; and the cases to which I have been referred by the learned counsel for the appellant do not go anything like as far as this In the course of business,' as I understand it, means in the way that business (which may be of a purely private or even trivial nature) is conducted. It has no connexion with a course of business, which suggests a series of acts of business. Although Ningawa v. Bharmappa (1899) 23 Bom 63 has not been expressly dissented from, it was held in Abdulla v. Na E Kin (1911) 11 I.C 854 that this section would apply to an act or acts of a simple and private nature. In that case a man wrote a letter to his wife in which he told her that a certain person had asked for a loan, and the learned Judges, while declaring the letter inadmissible, nevertheless were of opinion that if he had succeeded in proving that he was in the habit of consulting his wife before he made such loans, such a letter would have been written in the ordinary course of business. In that particular case there was no reason to think that the statement was anything more than a mere piece of information, and no evidence existed that he had ever acquainted his wife with such matters before. It could not therefore be said that the information was given in the ordinary course of business. In Sheonandan Singh v. Jeonandan Dusadh (1909) 1 IC 376, some entries were made in a register but those entries were not entries required by statute and were mere jottings by the person who made them of some particulars that came under his notice. It was held that even so they were entries made in the ordinary course of business.
4. Applying these principles to the present case I do think that this letter (Ex. 7) was written by defendant 1 to his wife in the ordinary course of business. He was residing in the Hyderabad State and he had entered into a settlement which had to be implemented. He therefore wrote to his wife requesting her to do certain acts in pursuance of that settlement. We do not know whether the defendant wrote similar letters because in neither Court was the admissibility of this letter questioned. Nor was defendant 1 questioned on this point. Although it does not affect the admissibility of Ex. 7, it may be noted that there is no possibility that this was an attempt to manufacture evidence. As will be seen from a perusal of Ex. 7, it was not a mere self-serving statement. It was an admission of liability as well as a claim, and it was not made as a mere assertion but as a request to his wife to do certain things for him. At that time, as the lower Court has found, the most cordial relationship existed between the parties. In the result the appeal is dismissed with costs. Leave to appeal is refused.