Chandra Nath Roy vs Nilmadhub Bhuttacharjee and Others

Maclean, C.J.—In this case the statements in the pattah--statements by way of recital--were properly admitted, in my opinion, as revelant facts under see. 32, sub-sec. 5 of the Indian Evidence Act. The statements wore recitals as to pedigree, and they supported the Plaintiff''s case. The pattah was executed by three sisters, two of whom are dead, and one of whom is still living. It was urged for the Appellant that those recitals were not admissible, because they were not statements made by a person who was dead, but the joint-statements of throe persons, two of whom only were dead, and consequently that sec. 32 did not apply. This argument was based entirely upon that provision of the General Clauses Act which says that "person" shall include "persons;" it was contended that "person" in see. 32 must be read "persons." 1 do not think this ingenious argument is entitled to succeed. Each of the sisters executed the pattah, and each of the sisters made the statement in that pattah, 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 others 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 Appellants. The appeal must be dismissed with costs.

Banerjee, J.

I am of the same opinion. The question raised in this ease 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 cl. 5 of sec. 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 see. 32, if it comes under one or other of its clauses, being thus the statement of a person who is dead.