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V.R.R.M.N.R.M. Ramakathan Chetty Vs. V.R.R.M.C.T. Murugappa Chetty and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in33Ind.Cas.969
AppellantV.R.R.M.N.R.M. Ramakathan Chetty
RespondentV.R.R.M.C.T. Murugappa Chetty and ors.
Cases ReferredIn Chuah Hooi Gnoh Neoh v. Khaw Sim Bee
evidence act (i of 1872), sections 21(1) and 32(5) - statements as to date of birth, when admissible--date of birth, knowledge of, presumption an to--burden of proof as to date of birth--limitation--statements against interest, when admissible--affidavit, statements in, uncontroverted--plaintiff, if bound to prove that they were made under the circumstances therein mentioned--horoscope, admissibility of, in evidence--ainthugai account, what is. - .....their own interests are extremely unlikely to be false.'11. in this view, it seems to me that the statement, exhibit viii, is a very valuable piece of evidence in this case. as pointed out in smith's leading cases, volume ii, 12th edition, at page 316: it is now, however, well settled that declarations of deceased persons against their interest, pecuniary or proprietary, are receivable not only to prove so much contained in them as is adverse to the interest, but to prove collateral facts stated in them; at all events, so far as relates to facts which are not foreign to the declarations, and may be taken to have formed a substantial part of them; see per cockburn, c.j., in reg. v. birmingham overseers 1 b.& s. 763 : 31 l.j.m.c. 63 : 8 jur. (n.s.) 37 : 5 l.t. 309 : 10 w.r. 41 : 121 e.r......

Wallis, C.J.

1. The plaintiff instituted these suits between the 6th and 10th days of September 1910, as found by the Subordinate Judge, having been born according to his own case on the 10th September 18.89. He thus delayed to bring the suit until a few days before the expiry of three years from the date when he says he attained majority, viz., the 10th September 1907, and the burden is thrown on him of proving that he was born on that date, a burden which the Subordinate Judge finds he has failed to discharge. The plaintiff and the defendants are members of divided branches of one family. Defendants No. 4 to 7 are the sons of A.L.A.R. Ramasami Chetty, a Nattukottai Chetty very well known in his day. The plaintiff and the defendants Nos. 1 to 3 are descended from his elder brother Ramanathan Chettiar, defendants Nos. 1 to 3 being descended from Chidambaram, one of Ramanathan's sons, while the plaintiff is descended from another brother; and according to his own case, which the Subordinate Judge has found to be true, was adopted by one Ramanatham Chettiar who was descended from yet another son of Ramanathan. Though they were divided, the families remained closely connected and the plaintiff's case is that his affairs were managed during his minority under the directions of A.L.A.R. Ramasami Chetty and of the 1st defendant Murugappa Chetty, and his adoptive father had an account both with Murugappa Chetty and with Ramasami Chetty. The defendants have contented themselves with setting up the manifestly false case that he was born two years earlier than he says, whereas we find them suing him as a minor in as late as July 1907, just as they falsely denied his adoption. The plaintiff's natural mother was examined on commission more than a month before the trial and was unable to say exactly when he was born. She said the adoption took place about 15 years ago, which would be 18(sic)5, and deposed in cross-examination that the plaintiff was 10 years old and would then (July 1910) be 22-23, adding Females do not know to say exactly if they are questioned much.' His adoptive mother, whom he alleges to be under the influence of the defendants, was not called. At the trial it was proved that on the 30th September. 1907, the plaintiff filed in Court an affidavit, Exhibit A, in which he stated that he had attained majority on 10th September 1907, having been born on the 10th September 1889. The petition was not opposed by Lakshmi Achi, his adoptive mother and next friend, and he was accordingly brought on record as a major. No one has been able to suggest any reason why he should have wilfully post-dated his birth in September 1909, but the question is whether the date is legally proved. All that the 4th plaintiff's witness can say is that the plaintiff was born about 7 or 8 months after the birth of his own son in Sarvathari Margali and this is, as the Subordinate Judge observes, too vague to be of any use. There are documents, as the Subordinate Judge observes, which show that the plaintiff must have been born after the 6th July and before the 30th September 1889, but this again is not enough. As regards the plaintiff's own statement in evidence and in the affidavit Exhibit A, the Subordinate Judge does not appear to question its admissibility and it would appear to be admissible under Section 21(1) read with Section 32(5) of the Indian Evidence Act if made by a person having special means of knowledge, and It appears to be settled that such knowledge need not be personal knowledge but may be derived from hearsay. But even if admissible, the statement of the party himself at the trial would be of very little weight, if it were not supported by his statement in Exhibit A made ante litem motam, at a time when the plaintiff had no interest in representing himself as younger than he was. The Subordinate Judge says it appears to have been made with a motive which it is indeed difficult to divine at present, and goes on to suggest that it may have been made because he anticipated objection by his adoptive mother to an application to draw money deposited in Court, but such a motive would make, him represent himself as older and not as younger than he really was and would go to show that his birthday may possibly have been later but not earlier than the date he gave according to which his suit is in time. We have, however, still to see whether his statements as to his birthday were statements made with special knowledge. A European may be presumed to know his own birthday as a matter of course, but it is denied that there is any such presumption in the case of Hindus of this class, and his natural mother apparently did not remember it. It becomes necessary, therefore, to examine the sources of information given by him in Exhibit A. He mentions his natural mother and elder brother as his informants but the mother apparently does not remember what his birthday was, and his elder brother has not been called. He also refers to a horoscope 'prepared as directed by my natural father and in my possession' but this horoscope, Exhibit C, has been criticized by the Subordinate Judge and by my learned brother, who are in a better position to judge than I am, and I am not prepared to differ from their opinions that no reliance can be placed on it. I also agree with them that the evidence of the witness who speaks to Exhibit O, is exceedingly unsatisfactory. As, therefore, the sources of information put forward by the plaintiff do not support his statement as to his birthday, and as on the evidence in the case no presumption arises that his birthday was accurately known to him, I am not prepared to differ from the conclusion of the Subordinate Judge and my learned brother, that the plaintiff has failed to prove that the suit is not barred. In this view it is unnecessary to discuss the evidence on the main issue, and I will only say that the established facts that the plaintiff was charged in Exhibit II, an account between the plaintiff and the A.L.A., R. branch, with the cost of the village and that he has always paid poruppu on it raise a presumption in his favour which, I am inclined to think, has not been satisfactorily met. In the result the appeal fails and is dismissed with costs.

2. As regards Appeal No. 220 of 1912 and the Memoranda of Objections in these appeals I agree with the judgment of Seshagiri Aiyar, J.

Seshagiri Aiyar, J.

3. The case for the plaintiff is that the village in dispute is the private property of his adoptive father Ramanathan Chetty alias Chinna Ramaswami Chetty and that after the death of his father in May 1896, the 1st defendant took possession of if with the) consent of his adoptive mother. He now sues to recover it. The defence is that the property was endowed by A.L.A.R. Ramaswami Chetty, to Kanda Devi temple, that the late Ramanathan Chetty was the trustee during his lifetime and that after his death, the 1st defendant took possession of the village for and on behalf of the temple. The 1st defendant also pleads that as at the date of the suit the plaintiff was more than 21 years of age, the suit is barred by limitation. I shall deal with this last contention at the end, as it is common to this and another appeal.

4. On the main question, whether the suit village is the private property of the plaintiff, after giving my very careful consideration to the arguments of Mr. Rangachariar, I am unable to differ from the learned Subordinate Judge whose knowledge of Chetty litigation is unrivalled in this Presidency.

5. The plaintiff has no title-deed. It is common ground that Udayana Thevar conveyed this village and Siruvali to one Arunachellam Chetty under Exhibit IVa in 1890; Arunachella was only a benamidar. At the date of the conveyance, a suit, was pending to set aside an alienation made by Katamma Nachiar in respect of this village. It is in evidence that A.L.A.R. Ramaswami Chetty was interesting himself in that litigation. We do not hear anything about Ramaswami Chetty in that connection. If Arunachella was a benamidar, it looks he was so on behalf of Ramaswami Chetty only. It is conceded by the plaintiff that the second village covered by Exhibit IV was given away by A.L.A.R. Ramaswami Chetty to another temple, Kaliar Coil. This goes a great way to support the defendants' case. The next piece of evidence is Exhibit VIII. There was considerable discussion regarding its admissibility. It was a deposition of A.L.A.R. Ramaswami in the suit brought by the zamindar, at the instance of the general lessees of Siyaganga to set aside the alienation of the village by Katamma Nachiar. Ramaswami had entered into an arrangement with the lessees to have the property conveyed to him by the zamindar, if the suit was successful. It was under these circumstances that he gave evidence in the case. His deposition in so far as it is relevant to this case is in these terms.--'I have given away to Kaliar Coil Devastanam Siruvali village which is one of the two villages in dispute. I have given the other village called Pannipullam to the Kandadevi Devastanam.' Now the question is whether this is a statement against the interest of the deponent. Section 19 of the Indian Evidence Act, Mr. K.V. Krishnaswami Aiyar relied on, has no application. The statement must come, if admissible, under Clause 3 of Section 32. In Taylor v. Witham, Witham v. Taylor (1876) 3 Ch. V. 605 : 45 L.J. Ch. 708 : 24 W.W B. 877 Jessel, Master of the Rolls, says:

It is, no doubt, an established rule in the Courts of this country that an entry against the interest of the man who made it is receivable in evidence after his death for all purposes. What is the meaning of its being against his interest? I adopt the view of Mr. Baron Parke in the case of Reg. v. Lower Heyford 2 Sm. L.C. 7 Ed. 333 (11th Ed. 339) that it must be prima facie against his interest, that is to say, the natural meaning of the entry standing alone must be against the interest of the man who made it'.

6. In Massey v. Allen (1879) 13 Ch. D. 558 : 49 L.J. Ch. 76 : 41 L.T. 788 : 28 W.R. 212 Vice-Char.cellor Hall introduced a qualification to the effect that 'in order to be admissible as a declaration against interest, the entry must, I take it, be one which under no circumstances could operate for the advantage or benefit of the party who made it.'

7. In Ex parte Edwards, In re Tollemache (1884) 14 Q.B.D. 415 the Court of Appeal remarked that the statement to be receivable in evidence must have been against the interest of the person at the time of making it and 'not an admission which may or may not turn out at some subsequent time to have been against his interest.'

8. In Tucker v. Oldbury Urban District Council (1912) 2 K.B. 317 : 81 L.J.K.B. 668 : 106 L.T. 669 : (1912) W.C. Rep, 238 Lord Justice Moulton added a further qualification that, It must be shown that the statement was to the knowledge of the deceased contrary to his interest.'

9. IN this state of authorities, the question came up for consideration before the Court of Appeal in Ward v. Pitt & Co.; Lloyd v. Powell Duffryn Steam Coal Company (1913) 2 K.B. 130 : 82 L.J.K.B. 533 : (1913) W.C. & I. Rep. 355 : 108 L.T. 201 : 57 S.J. 301 : 29 T.L.R. 291. The statement which was sought to be put in related to the acknowledgment of paternity and a promise made by the deceased to marry the mother of the child, who claimed compensation under the Workman's Compensation Act' as a dependent on the deceased. Lord Justice Hamilton, after making an incidental observation that as between the dicta of Blackburn, J., in Smith v. Blakey (1867) 2 Q.B. 326 : 8 B.& S. 157 : 36 L.J.Q.B. 156 : 15 W.R. 492 that the statement must be one which never could be made available for the person himself, and that of Jessel, M.R., that it is sufficient that the statement is prima facie against the interest of the person making it, he was inclined to the former view, 'if there is any real difference between them,'--proceeds to lay down categorically the tests of admissibility of statements against interest. According to the learned Lord Justice, (a) the deceased must have had personal knowledge of the facts he was stating, (6) the fact should have been to the deceased's immediate prejudice, (o) the statement must have been, to the knowledge of the deceased, contrary to his interest, and (d) the interest must be either pecuniary or proprietary. The case went up to the House of Lords. Lords Loreburn and Moulton apparently accepted the statement of the law as laid down by the Court of Appeal; but Lord Shaw was not prepared to agree with it. See Lloyd v. Powell Suffryn Steam Coal Company Ltd. (1914) A.C. 733 : 88 L.J.K.B. 1054 :. (1914) W.C. & I. Rep. 450 : 111 L.T. 338 : 58 S.J. 514 : 30 T.L.R. 456. The other learned Lords made no comment on this point. The statement was held admissible by the whole Mouse on another ground.

10. Accepting in their entirety the qualifications suggested by Lord Justice Hamilton in Ward v. Pitt & Co.; Lloyd v. Powell Duffryn Steam Coal Company (1913) 2 K.B. 130 : 82 L.J.K.B. 533 : (1913) W.C. & I. Rep. 355 : 108 L.T. 201 : 57 S.J. 301 : 29 T.L.R. 291, I am of opinion that the statement in Exhibit VIII is receivable in evidence. It fulfills all the four conditions suggested by the Lord Justice. It was undoubtedly against the proprietary interest of the person making it. Mr. A. Krishnaswami Aiyar contended that this statement may at some future time be availed of by the maker to claim the trusteeship. I do not think this criticism has any force. Even Mr. Justice Blackburn's very stringent requirement seems to be satisfied in this case. Lord Justice Moulton in Tucker v. Oldbury Urban District Council (1912) 2 K.B. 317 : 81 L.J.K.B. 668 : 106 L.T. 669 : (1912) W.C. Rep, 238 points out: Such declarations were admitted as evidence in our jurisprudence on the ground that declarations made by persons against their own interests are extremely unlikely to be false.'

11. In this view, it seems to me that the statement, Exhibit VIII, is a very valuable piece of evidence in this case. As pointed out in Smith's Leading Cases, Volume II, 12th Edition, at page 316: It is now, however, well settled that declarations of deceased persons against their interest, pecuniary or proprietary, are receivable not only to prove so much contained in them as is adverse to the interest, but to prove collateral facts stated in them; at all events, so far as relates to facts which are not foreign to the declarations, and may be taken to have formed a substantial part of them; see per Cockburn, C.J., in Reg. v. Birmingham Overseers 1 B.& S. 763 : 31 L.J.M.C. 63 : 8 Jur. (N.S.) 37 : 5 L.T. 309 : 10 W.R. 41 : 121 E.R. 897, where a parol declaration by the deceased father of a pauper's husband as to his occupation of a tenement as tenant at a certain rent was held to be admissible to prove the pauper's statement; and per Pollock, C.B., in Milne v. Leisler 7 H. & N. 786 : 31 L.J. Ex. 257 : 8 Jur. (N.S.) 121 : 5 L.T. 802 : 10 W.R. 250.' The statement is, therefore, evidence that the property had been given away. It also negatives proprietorship at the time of the deposition in the plaintiff's father. I might refer to one Indian decision before leaving this part of the case. In Abdul Aziz Molla v. Ebrahim Molla 31 C.P 965 the statement that there was a tenant on the land was regarded as one against the proprietary interest of the landlord. For all these reasons I am of opinion that the statement in question is receivable in evidence. It was made at a time when Ramaswami is not shown to have had any interest adverse to that of the plaintiff's father. Further, one of the facts mentioned in that statement is now admitted, to be true.

12. The next piece of evidence which tells very much against the plaintiff, is that no document passed between his adoptive mother and the 1st defendant when the village passed into the latter's possession. It is impossible to believe that private property would have so easily been surrendered without protest. 1 do not believe the suggestion that the adoptive mother is inimical to the plaintiff. Was she inimical when her husband died? There is absolutely no evidence to support this suggestion. On the other hand, the fact that at this time the widow took Exhibit III to evidence the assignment of Vengalur and Exhibit G for the assignment of the lease right in the Devastanam villages negatives ill-will and shows that the village was given up without any document, because there was no proprietary interest in it. Again, it is admitted that the 1st defendant never rendered nor was asked to render an account of the income from this village. If the village was private property it is incredible that such a thing could have happened. The widow has not been examined in the case to show under what circumstances she parted with possession.

13. As against these facts, the plaintiff relies on Exhibits D, R, S, T and Hand the payment of poruppu by him. Exhibit D is headed 'Purchase account.' The first entry is in 1892. That entry states that a sum of Rs. 392 and odd was debited against the village of Pannipullanvayal. There is no evidence whether this sum included the price paid for the purchase. However that may be, the document is unreliable for more reasons than one. If, as Mr. Rangachariar contended and, as the heading implies, it is a separate ledger relating to the purchase of the suit village, the entries relating to the payment of poruppu in 1900 and to the payment of kist in 1907 should find no place in it. If, on the other hand, it is a general ledger of all transactions relating to the village, there ought to be more entries about the payment of poruppu and about the expenses of cultivation, etc. I am unable to place any reliance on this document. Exhibit R is the day book of the plaintiff. It contains an entry about the Rs. 392, corresponding to Exhibit D. This document takes the case no further. Exhibit S, which is a continuation of Exhibit R, on the other hand, tends to show that the village was dedicated to the temple. In more than one place in that document, the credits are entered as received 'through the accountant of Kandadevi.' Debits through the temple accountant are also made. One entry in page 72 looks as if articles for pooja were purchased for the temple. There is no satisfactory explanation for introducing the name of the temple accountant, if the village was not an endowment. Exhibit T, the ainthugai account, does include this among the properties of Ramanathan Chetty. An ainthugai account among Chetties is an account of the properties in the possession of a person. Non constant that it would not include properties held by him on trust. A general account of assets might include private as well as trust properties. Exhibit II was strongly relied on. It is the plaintiff's account in A.L.A.R.'s ledger. This undoubtedly shows that A.L.A.R. had no claim to the property and that he debited the plaintiff's father with the sum of Rs. 392 in respect of the plaint village. I do not think this is evidence that it was the private property of the plaintiff. My surmise is that Ramanathan Chetty wanted to have the credit of being the donor of this property to the Kandadevi temple, seeing that his pangali endowed Kaliar Coil with property worth four times as much, and agreed to debit himself with the cost of its purchase; unfortunately all the persons who could speak to what took place at or about 1890 are dead. The fact that Ramanathan's widow never claimed the surplus proceeds of this village from the 1st defendant strongly corroborates this opinion. However that may be, I do not think the evidence I have discussed is sufficient to discharge the burden, which is strong on the plaintiff, that the village is the private property of his adoptive father. I agree with the Subordinate Judge on this question.

14. I wish to say a few words on the question of limitation. The plaintiff has to prove that he was within time when he instituted the suit. He relies on Exhibit A, an affidavit made by him in September 1907, in which he gives his date of birth as the 10th September 1889. This document is spoken to by the plaintiff and, therefore, is corroborative evidence of what he deposes. It can have no higher value. It is not independent evidence Now, on examining Exhibit A, the first thing that strikes one is the laboured particularity of the statements contained in it. Ordinarily an affidavit would state that a man was born in a particular year and that he attained majority on the date of the application. Here we have a reference to the horoscope 'prepared as directed by my natural father and in my possession.' Then there is a statement that the natural mother and elder brother gave him information about the date of his birth. The natural mother was examined and she was not asked whether she gave any such information. The elder brother has not been examined at all. This document is of no higher value than the deposition of the plaintiff. It is true that there is no explanation on the defendants' side for the plaintiff having made these statements, if they are false, in this affidavit. I do not think that absolves the plaintiff from proving that the affidavit was made under the circumstances mentioned' in if. As regards the horoscope, Exhibit C, I have not the slightest hesitation in holding that it is altogether unreliable. I agree with Mr. Rangachariar that a horoscope is receivable in evidence under Clause (5) of Section 32' of the Evidence Act. I do not think that either Clause (2) or Clause (6) covers it. In Raja Goundan v. Raja Goundan 17 M.P 134 : 4 M.L.J. 86 a horoscope was admitted in evidence. In Chuah Hooi Gnoh Neoh v. Khaw Sim Bee 31 Ind. Cas. 637 : 19 C.W.N. 787 we have the authority of the Judicial Committee in support of its admissibility. But I think Mr. K.V. Krishnaswami Aiyar is fight in contending that the party making it must have had special means of knowledge. The evidence of P.W. No. 10 is worthless. We have to depend upon his ipse dixit that Exhibit C is in his father's writing. No documents have been produced for comparison. The astrologer was living 8 miles away from Devakotta and no satisfactory explanation is given for having gone to Ariakudi in search of an astrologer. There is nothing to show that the father of P.W. No. 10 had any special means of knowledge. Exhibit C is further an extraordinary document for a horoscope. In the rasi chakaram, only two planets are entered. All the other seven are left out. The dasabukti at the date of the birth is not given. The horoscope does not begin and end in the usual way. I am unable to place any reliance on this document. Exhibit L, a copy supposed to have been kept by P.W. No. 10, is of a piece with the evidence of P.W. No. 10, and I reject it unreservedly. The plaintiff relies on Exhibits F, G, and FF. F and G are documents executed by the plaintiff to the defendant. Exhibit FF is a plaint in which the plaintiff is described as a minor. As against this we have the deposition of the plaintiff's mother who supports the suggestion that the plaintiff was born in 1887. There is also the evidence of the 1st defendant. What presses the most is the absence of the elder brother from the witness-box and the failure to elicit from the mother as to when he was born and after how many children. I do not think the plaintiff has proved satisfactorily that he is within time. On the merits and on limitation, I hold the plaintiff's case must fail.. I would dismiss the appeal with costs of respondents Nos. 1 to 3.

15. I shall very briefly deal with Appeal No. 220 of 1912. The claim is for the balance of nuzzur due for the assignment of lease rights in certain villages. The assignment was in 1896. There was no document on that date. The amount settled was Rs. 3,700 and odd. Admittedly Rs. 1,700 and odd was paid. The defendant's plea is that there was poruppu due to the lessor on the date of the transfer to the extent of Rs. 2,000, that he discharged that debt and that consequently nothing is due to the plaintiff. Five years after the assignment, in 1901 Exhibit III was executed by the 1st defendant in which reference is made to his liability to pay poruppu for 1895. I regard this as part of the arrangement for releasing the claim for the balance of the nuzzur. Exhibit III does not say that anything more was due to the widow on that date. I see no difficulty in accepting the explanation of the 1st defendant in the witness-box, which bears the impress of truth on it and is in accordance with the probabilities. If any portion of the nuzzur remained due, a demand would have been made for it. I do not agree with the learned Subordinate Judge in saying that the 1st defendant's evidence should not be accepted. The claim appears to be a stale one. The appeal must be dismissed with costs.

16. The Memoranda of Objections in the two appeals are not pressed and are dismissed with costs.

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