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Nilmadhab Bhuttacharjee and ors. Vs. Chandra Nath Roy - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal236
AppellantNilmadhab Bhuttacharjee and ors.
RespondentChandra Nath Roy
Excerpt:
evidence act (i of 1872), section 32, clause (5) - statement relating to the existence of any relationship contained in a document signed by several persons, some only of whom are dead. - maclean, c.j.1. in this case the statements in the potta--statements by way of recital--were properly admitted, in my opinion, as relevant facts under section 32, sub-section 5 of the indian evidence act. the statements were recitals as to pedigree, and they supported the plaintiffs' case. the potta was executed by three sisters, two of whom are dead, and one of whom is still living. it was urged for the appellant that these recitals were not admissible, because they were not statements made by a person who was dead, but the joint statements of three persons, two of whom only were dead, and consequently that section 32 did not apply. this argument was based entirely upon that provision of the general clauses act which says that 'person' shall include co-persons, and it was contended that.....
Judgment:

Maclean, C.J.

1. In this case the statements in the potta--statements by way of recital--were properly admitted, in my opinion, as relevant facts under Section 32, Sub-section 5 of the Indian Evidence Act. The statements were recitals as to pedigree, and they supported the plaintiffs' case. The potta was executed by three sisters, two of whom are dead, and one of whom is still living. It was urged for the appellant that these recitals were not admissible, because they were not statements made by a person who was dead, but the joint statements of three persons, two of whom only were dead, and consequently that Section 32 did not apply. This argument was based entirely upon that provision of the General Clauses Act which says that 'person' shall include co-persons, and it was contended that 'person' in Section 32 must be read 'persons.' I do not think this ingenious argument is entitled to succeed. Each of the sisters executed the potta and each of the sisters made the statement in that potta, and that statement was as much the statement of each sister who is dead as the statement of the sister who is now living. I do not see why, because there is one sister still living, and who might be called as a witness, the recitals become, on that account, any the less a statement, in the case of the other sisters, made by a person who is dead. It may be matter for legitimate comment in arguing the case that those statements must be received with caution, as the plaintiffs had not called the surviving sister to depose to their accuracy, but I do not think the matter could be placed higher than that. My view is consistent with the ordinary meaning of the language used in the section: and it would, in my opinion, be narrowing seriously the useful operation of that section if we were to place upon it the construction urged by the appellant.

2. The appeal must be dismissed with costs.

Banerjee, J.

3. I am of the same opinion. The question raised in this case is whether a statement relating to the existence of any relationship contained in a document signed by several persons, some only of whom are dead, is admissible in evidence under Clause 5 of Section 32 of the Evidence Act. The contention of the learned Vakil for the appellant is, that it is not admissible, because all the persons who joined in making that statement are not dead, and therefore the preliminary condition required by the section to be fulfilled is not satisfied, I am of opinion that this contention is not sound. The contention proceeds upon the assumption that the statement is but one statement, whereas the correct view is, that each of the executants must be taken to have made the statement for himself or herself, and if any of the executants of the document is dead, the statement made by that person would be admissible under Section 32, if it comes under one or other of its clauses, as being the statement of a person who is dead.


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