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Nallasiva Mudaliar and anr. Vs. Ravan Bibi and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1921Mad383; 70Ind.Cas.389
AppellantNallasiva Mudaliar and anr.
RespondentRavan Bibi and ors.
Cases ReferredRama Iyengar v. Ka
Excerpt:
evidence act (i of 1872), sections 13, 32(7) - dispute as to right or title--previous transaction whether relevant--statement as to mode of acquisition of title, admissibility of title, admissibly of. - - usually, of course, when the document in which the title is asserted is not an old document, courts very properly do not act on such assertions alone and require other and much better proof of title. i think that i remember well when the judgment in that case wais pronounced by mr. sitting in second appeal, i am not entitled to consider whether the evidence was sufficiently strong for the lower appellate court to hold the title of the matam as proved there by......was also not admissible .in evidence. as i understand the judgment point that the assertion of title as owner found in exhibit i, and also implied by that transaction of mortgage itself, is admissible under section 13 of the evidence act, and on the second point that the statement which forms the recital in exhibit i as to how the title was acquired is also admissible under section 32, clause (7) of the evidence act, the person making that statement by way of recital, that is, velayudam pillai, being now dead. section 13 (omitting the words immaterial for the present case) is: 'where the question is as to the existence of any right, any transaction by which the right in question was asserted is relevant.' one of the instances in the illustrations is where ' the question is whether a.....
Judgment:

Sadasiva Aiyar, J.

1. The plaintiffs are the appellants. The first plaintiff are the appelents purchaser from the second plaintiff of the second plaintiff's alleged rights, in the plaint property. The second plaintiff is the son of one Khairath Khan who was the owner of the plaint lands. This suit is brought for the redemption of the usufructuary mortgage (Exhibit A) of these lands made by Khairath Khan in the year 1858. The plaintiff's case is. that the defendants Nos. 15 to 20 who represent a matam have succeeded one Velayudam Pillar in the trusteeship of that matam and that that Velayudam Pillai was a sub-mortgagee two or three degrees removed from the original mortgagee under Exhibit A. The trustees contention was that the former trustee, Velayudam Pillai, was the owner of the lands in 1874 and was not a sub-mortgagee there for and that the matam has been in possession as owner since 1874.

2. Both the lower Courts found that the plaintiff's case that Velayudam Pillai was the sub-mortgagee deriving title from the original mortgagee of 1858 was false and that the matam had become the owner in 1874. The first finding is a question of fact and cannot be disputed in second appeal. The second finding, namely, that Velayudam Pillai (representing matam) had become the owner in 1874 was attacked on the ground that the assertion of Velayudam Pillai in Exhibit 1, a document of 1874, that he was the owner was not admissible in evidence. The subsidiary contention was that the recital in that document hat he had become the ownes by purchase from Khairath Khan was also not admissible .in evidence. As I understand the judgment point that the assertion of title as owner found in Exhibit I, and also implied by that transaction of mortgage itself, is admissible under Section 13 of the Evidence Act, and on the second point that the statement which forms the recital in Exhibit I as to how the title was acquired is also admissible under Section 32, Clause (7) of the Evidence Act, the person making that statement by way of recital, that is, Velayudam Pillai, being now dead. Section 13 (omitting the words immaterial for the present case) is: 'Where the question is as to the existence of any right, any transaction by which the right in question was asserted is relevant.' One of the instances in the illustrations is where ' the question is whether A has a right to a fishery, the mortgage of the fishery by A's father is a relevant fact.' It seems to me that under the above Section, the mortgage by Velayudam Pillai in 1874 claiming light as owner is a relevant fact which can be considered in deciding the question of ownership in 1874. It must, of course, be admitted that such assertions in recent documents and after disputes arose are almost of no value, but it cannot be held that they are irrelevant as evidence of the title asserted. Usually, of course, when the document in which the title is asserted is not an old document, Courts very properly do not act on such assertions alone and require other and much better proof of title. But, as I said, that does not affect the question of the relevancy of the document in proof of the title asserted. I shall not deal in detail with the numerous English and Indian cases quoted by Mr. Devadoss on this point and I shall were only to one case of this Court, namely, the case in Rama Iyengar v. Ka&mivenda; Iyengar 16 Ind. Cas. 746 decided by Mr. Justice Sundaia Iyer and myself. I think that I remember well when the judgment in that case wais pronounced by Mr. Justice Sundara lay--and I need not say that his learning both as regards the English and Indian case-law and precedents was much more extensive than mine: he felt no hesitation in stating in that judgment that 'transactions by a party dealing with the property to which he lays claim are important evidence Is this title, and sometimes they constitute the only evidence available.' In 'this case, the lower Courts, having regard to assertion of title having been made so long ago as 1874 and to some other circumstances, have given great weight to the assertion of title in Exhibit I. Sitting in second appeal, I am not entitled to consider whether the evidence was sufficiently strong for the lower Appellate Court to hold the title of the matam as proved there by.

3. I shall briefly consider the other subsidiary question whether the recitals as to how Velayudam Pillai got title are also evidence, even though it is unnecessary to consider this point, as this point also has been fully argued before us. I think that Section 32 Clause (7) of the Evidence Act makes the statements made by a deceased person in respect of relevant facts themselves relevant if those statements are contained in a document which relates to any transaction mentioned in Section 13, that is, a transaction in which an assertion is made of a right or title which is a relevant question in the suit, those statements being relevant in proof of the facts contained in the statements.

4. In the result, I would dismiss the appeal with costs of respondents Nos. 15, 17, 18 and 20.

Spencer, J.

5. I entirely agree.


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