Mallikarjuna Dugget vs The Secretary of State for India in Council

Arnold White, C.J.—In this case, the Advocate-General, on behalf of the defendant, has tendered in evidence a document dated the 10th

August 1900. The document is a report from the Tahsildar to the Collector of Chingleput district. It is in these terms:---Adverting to (a certain

reference): I beg to state that the village Munsif of Inavaram reports that the charities referred to have not yet been commenced."" The Advocate-

General tenders this, u/s 35 of the Evidence Act, as a ''statement of fact in issue or relevant fact,"" the fact in issue or relevant fact"" being that the

charities in question have not been commenced;"" in other words, he tenders it in evidence of the fact that the charities had not been commenced on

the day when the report was made. Mr. Ramaswami Ayyar, on behalf of the plaintiff, has objected to this document and has contended it is not

evidence u/s 35. The Advocate-General has also tendered in evidence certain other documents which he says are admissible u/s 9 as explaining the

circumstances in which this report contained in the letter of the 10th of August was made by the Tahsildar. I do not think I need set oat the purport

of these other documents because the Advocate-General does not contend that they are admissible in evidence except as explaining the

circumstances in which the letter of the 10th of August, was written and has conceded that if I am against him as regards his contention with

reference to the letter of the 10th of August these other documents would not be admissible u/s 9 of the Act. After careful consideration, I have''

come to the conclusion that the letter or report of the 10th of August is not admissible u/s 35 for the purpose for which the Advocate-General says

it is. I say nothing as to whether it would be admissible for other purposes or as to whether the other documents, on which Advocate-General

relies as showing the circumstances in which the letter of the 10th of August was written, would not be admissible for other purposes. Section 35

of the Evidence Act contains two branches. The first branch of the section, so far as the question I have to decide is concerned, runs: '' An entry in

any public or other official book, register or record, stating a fact in issue or relevant fact""--""and made by a public servant in the discharge of his

official duty""--is itself a relevant fact. The second branch runs: "" or by any other person in performance of a duty specially enjoined by the law of

the country in which such book, register or record, is kept"" is itself a relevant fact. The Advocate-General did not argue that this was an entry by

some person in the performance of his duties ""specially enjoined by the laws of the country."" But, he says, it was an entry which fell within the

meaning of the first branch of the section. It has been held by this Court, in a judgment to which I was a party, that a single document may be a

public record within the meaning of this section; that is the case of Raman v. Secretary of State for India in Council 11 M.L.J. 315. In that case we

relied upon the decisions under which records of judgments though single documents were held to be admissible in evidence u/s 35. There is not

much authority as to how far an isolated document can be said to be an ""entry in any public or other official book, register or record"", but we have

held that it may be for the purposes of the section, and 1 do not wish to suggest for one moment that that decision was not good law.

Now, the Advocate-General relied on a decision of the Privy Council in the case of Rajah Muttu Ramalinga Setupati v. Perianayagam Pillay 11

A. 209 the passage of the judgment on which he relied being at p. 238. I need not read the whole of it. The judgment runs: ""Their Lordships think

it must be conceded that when these reports express opinions on the private rights of parties, such opinions are not to be regarded as having

judicial authority or force. But being the reports of public officers made in the course of duty, and under suitable authority, they are entitled to great

consideration so far as they supply information of official proceedings and historical facts, and also in so far as they are relevant to explain the con-

duct and acts of the parties in relation to them and the proceedings of the Government founded upon them."" In that case their Lordships really rest

their decision, as I understand it, upon the fact that it was the duty of the Collector who made the report in that case to do certain things under the

provisions of Regulation VII of 1817, and, it seems to me, with all respect to the Advocate-General''s argument, although this may be a decision

which one would have to consider carefully with regard to the second branch of the section, one really gets very little help from it with reference to

the first part of the section, because it is not suggested here that when the Tahsildar made the report, he did so in performance of a duty specially

enjoined by the law of the country. I need not now pause to consider how far a report purporting to be made by an officer in pursuance of the

provisions of Regulation VII of 1817 would be admissible in evidence u/s 35.

The Advocate-General also relied upon the case of Raman v. Secretary of State for India in Council 11 M.L.J. 315. The report in question

there, which was held admissible u/s 35, was a report on Government forests made by a Forest Officer with reference to some question as to the

reservation of forests, and it seems reasonably clear the report was made under the provisions of the Forest Act. The report in that case is a report

which would be admissible under the second branch of the section. I think the same observation applies to the case of Madhavrao v. Veonah 21

B. 695. This, again, is a case which really does not afford me much assistance with regard to the construction of the first branch of the section. The

Advocate-General invited me to go to this length-he invited me to hold that any statement made by any public servant in pursuance of directions

given him by a superior officer was a statement which would be evidence of the fact to which the statement relates. The Advocate-General has not

been able to call my attention to any authority which goes so far as this. I know of no authority. The Advocate-General, suggests it is a question of

drawing the line. I agree; but, in the absence of some authority, I am certainly not prepared to carry the law further, as it seems to me, than it has

ever yet been carried. In a sense, no doubt, the statement is made in the discharge of official duties, because, I take it, it is made in connection with

a matter which came within the sphere of his duties and in ''pursuance of orders given by a superior officer. But, as I say, I am not prepared on that

ground alone to bold that the statement is admissible in evidence within Section 35. As regards this particular statement, it is really nothing more

than a statement as to what the Munsif had reported to the Tahsildar. I do not say that the statement to be evidence within the section must be a

statement within the personal knowledge of the party making it. All I say is-and 1 desire to confine my observations to this particular statement-I

am not prepared to hold that it is admissible u/s 35.

Mr. Ramasawmy Ayyar has called my attention to certain authorities but I don''t propose to discuss them at any length. In the case of

Jigoyamba Bai Sahiba v. Venkalakshmi Ammal 7 M.L.J. 117 in the course of the judgment, I observed: Our attention has been called to no case

in which it has been held that correspondence, official it may be, comes within the terms of that section. As I construe that section, it does not

apply to ordinary correspondence though that might be conducted by officials."" After having had the full benefit of the arguments in this case, I see

no reason to depart from the view which I then expressed.

There is one other case to which, perhaps, I ought to refer, seeing it is a judgment of the Privy Council. It is the case of Parbati Kunwar v.

Chandarpal Kunwar 31 I.A. 457 : 6 A.L.J. 737 : 10 C.L.J. 216 : 13 C.W.N. 1073 : 11 Bom. L.R. 890 : 12 O.C. 304 : 4 Ind. Cas. 25 : 19

M.L.J. 605 : 36 I.A. 125 : 5 M.L.T. 427. The judgment runs (page 475): ""Various technical objections to declarations, such as those of the

Kanungos, to entries made in the village records by the officer charged by Government with that duty and to answers given to official inquiries

made under Government directions as to the rules of succession prevailing in particular families, were urged by the ^plaintiff. Speaking broadly,

these objections seem to their Lordships to have been material rather to the weight than to the admissibility of the particular evidence which was

prima facie admissible as purporting to be made by the proper officer in performance of a special duty and presumably with due regard to the rules

laid down for his guidance."" These are very general observations and made with reference to the documents in question in that case. And the

conclusion I have come to is, that for the purposes for which the Advocate-General now seeks to put this document in evidence, it is not

admissible u/s 35.

I am told that the Munsif and the Tahsildar are still alive. The proper way to prove the fact to which the statement in the report relates is by

calling them.