Authored By : Francis Maclean, Banerjee

Francis Maclean, C.J.

1. In this case the statements in the potta--statements byway of recital--were properly admitted, in my opinion, as relevant facts underSection 32, Sub-section 5 of the Indian Evidence Act. The statements wererecitals as to pedigree, and they supported the plaintiffs case. The potta wasexecuted by three sisters, two of whom are dead, and one of whom is stillliving. 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 jointstatements of three persons, two of whom only were dead, and consequently thatSection 32 did not apply. This argument was based entirely upon that provisionof the General Clauses Act which says that "person" shall includeco-persons, and it was contended that "person" in Section 32 must beread "persons." I do not think this ingenious argument is entitled tosucceed. Each of the sisters executed the potta and each of the sisters madethe statement in that potta, and that statement was as much the statement ofeach sister who is dead as the statement of the sister who is now living. I donot see why, because there is one sister still living, and who might be calledas 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 bematter for legitimate comment in arguing the case that those statements must bereceived with caution, as the plaintiffs had not called the surviving sister todepose to their accuracy, but I do not think the matter could be placed higherthan that. My view is consistent with the ordinary meaning of the language usedin the section: and it would, in my opinion, be narrowing seriously the usefuloperation of that section if we were to place upon it the construction urged bythe appellant.

2. The appeal must be dismissed with costs.

Banerjee, J.

3. I am of the same opinion. The question raised in thiscase is whether a statement relating to the existence of any relationshipcontained 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. Thecontention 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, andtherefore the preliminary condition required by the section to be fulfilled isnot satisfied, I am of opinion that this contention is not sound. Thecontention proceeds upon the assumption that the statement is but onestatement, whereas the correct view is, that each of the executants must betaken to have made the statement for himself or herself, and if any of theexecutants of the document is dead, the statement made by that person would beadmissible under Section 32, if it comes under one or other of its clauses, asbeing the statement of a person who is dead.

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Nilmadhab Bhuttacharjee and Ors. vs. Chandra Nath Roy (01.12.1898 - CALHC)