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Judgment
Walter Salis Schwabe, K.C., C.J.—In this case I had the opportunity of reading the judgment of Kumaraswami Sastri, J and I agree with
him entirely.
Coutts Trotter, J.
I agree.
Kumaraswami Sastri, J.
The question referred to us for determination is whether a recital in a judgment not inter-partes of a relevant fact is admissible in evidence u/s 35
of the Evidence Act. The suit was filed by the plaintiff--appellant to recover the immovable properties specified in the plaint on the ground that he
purchased them from the reversionary heirs of one Adinarayana on whose death his mother Chandramma succeeded to a limited estate conferred
on her by Hindu Law as mother of the last male owner. Chandramma alienated the properties and the suit to recover the properties from the
alienees had to be filed within 12 years from the date of Chandramma''s death under Article 141 of the Limitation Act,, IX of 1908. As the
defendant pleaded that the suit was barred by limitation, the date of Chandramma''s death became material and the plaintiff alleged that she died on
the 3rd of May, 1904, while the case for defendants was that she died in February, 1904, and not in May, 1904, and that the suit was barred as it
was filed more than 12 years from February, 1904. On Chandramma''s death the father of the second defendant in this suit filed a suit in the
Revenue Court against certain tenants for the purpose of acceptance of pattas and muchilikas under the Rent Recovery Act VIII of 1863. The suit
was dismissed but in the judgment there is a statement made by the Judge that Chandramma died on the 3rd of May, 1904. The only evidence let
in by the plaintiff as to the date of death of Chandramma was the statement in the judgment which is filed as Ex. B. in the case. The Subordinate
Judge was of opinion that this statement was relevant to prove the issue as to the date of death of Chandramma and, acting upon it, he held that
Chandramma died within 12 years before the date of the suit and that therefore it was not barred by limitation. On appeal, the District Judge was
of opinion that the statement in a judgment not inter partes was not evidence. He believed the evidence of the defendants'' witnesses and dismissed
the plaintiff''s suit as barred by limitation. In second appeal the point raised is that the recital of the date of death in the judgment was evidence u/s
35 of the Evidence Act and that the District Judge was wrong in rejecting it as irrelevant. The contention of Mr. K. P. M. Menon for the appellant
is that a judgment is a public record within the meaning of Section 74 of the Evidence Act, that a Judge is a public servant and when he writes a
judgment, he makes a public record and that a statement in a judgment is therefore an entry made by a public servant in a public record, which, if it
relates to a relevant fact, would be evidence u/s 35, irrespective of whether the judgment in which the statement occurs, is or is not between the
same parties. In support of his argument he refers to the decisions in Parbutty Dassi v. Purno Chunder Singh I.L.R(1883) 9 C. 586, Bythamma v.
Avidia (1891) L.R. 15 Mad. 19, Thama v. Kondan ILR (1894) Mad. 73 and Krishnaswami Ayyangar v. Rajagopala Ayyangar ILR (1892) Mad.
For the respondents it is contended that the relevancy of judgments is governed by Sections 40 to 43 of the Evidence Act and that a
judgment not, inter partes is not evidence. Reference has been made to Kashinath Pal v. Jagat Kishori (1916) 20 Cal. W.N. 643 and the
observations of the Privy Council in Ram Parkash Das v. Anand Das 31 M.L.J. 1. I am of opinion that Section 35 has no application to judgments
and that a judgment which would not be admissible under Sections 40 to 43 of the Evidence Act would not become relevant merely because it
contains a statement as to a fact which is in issue or relevant in a suit between persons who are not parties or privies. Sections 40 to 44 of the
Evidence Act deal with the relevancy of judgments in Courts of justice. Section 40 enacts that the existence of any judgment, order or decree
which by-law prevents any Court from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought
to take cognizance of such suit or to hold such trial. Section 41 deals with final judgments, orders and decrees in the exercise of probate,
matrimonial'', admiralty or insolvency jurisdiction or what is known as judgments in rent and states that such judgments, orders or decrees are
conclusive proof of the matters specified in the section, and, by virtue of that section of the Act, evidence would not be allowed to disprove those
matters. Section 42 refers to judgments relating to matters of a public nature relevant to the enquiry and states that such judgments, though
evidence, are not conclusive proof of what they state, thus allowing evidence to be given to disprove facts found in the judgments. Section 43
states that ""judgments, orders, or decrees other than those mentioned in Sections 40, +1 and 42 are irrelevant unless the existence of such
judgment, order or decree is a fact in issue or is relevant under some other provision of this Act"". e.g., Section 13. Section 44 enables a party to
show that any judgment, order or decree which is relevant u/s 40, 41, or 42 was delivered by a Court not competent to deliver it or was obtained
by fraud or collusion. It appears to me that these sections codify the law as to the admissibility of judgments in evidence. It is not suggested that
under the provisions of these sections a judgment, unless it be a judgment in rem, would bind third parties who are not parties to the judgment or
claim under those who are parties. Other judgments would be res inter alias acta and would not be admissible in evidence. The same is the law in
England and I need only refer to The Natal Land and Colonisation Company v. Good (1868) L.R 2. P.C. 121 . Section 35 of the Evidence Act
which enacts that an entry in any public or other official book, register or record staling a fact in issue or relevant fact and made by a public servant
in the discharge of his official duties or by any other person in the 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, deals with a distinctly separate class of cases, namely, entries made by public officials
acting in the exercise of a statutory duty or power conferred by special enactments which regulate matters of public or quasi public interest. It
would be straining the language of Section 35 to hold that a Judge, when he writes a judgment, is making entries in a public or official book,
register or record, and that every statement made in a judgment is an entry in such book, register or record. If Section 35 is applicable to
judgments and if the contention of Mr. Menon is accepted, the result will be that every judgment would be admissible in evidence to prove a
relevant fact if it contains any statement as to a fact in issue or relevant fact, even though that judgment may be between persons who are total
strangers to the litigation in which it is sought to be filed as evidence, I find it difficult to hold that the Legislature, which in Sections 40 to 44 has
carefully defined the limits within which judgments are admissible in evidence, would have, in a previous section, practically nullified the provisions
as to the relevancy of judgments by including judgments in the category of public or other official books, registers or records. I am unable to agree
with the decisions relied on by Mr. Menon. In Parbutty Dassi v. Purnochunder Singh I.L.R(1883) C. 586, the suit was for the possession of a
fishery and the plaintiff wanted to let in evidence of an admission alleged to have been made by a predecessor-in-title of the defendants in the
written statement in a former suit. This would be evidence u/s 21 of the Evidence Act. The written statement was not forthcoming as it was
destroyed and the only evidence of the admission was that contained in a decree in the former suit which began by giving a short statement of the
pleadings in the suit. The rules of Court required every decree to contain an abstract of the pleadings. Prinsep and O'' Kinealy, JJ. held that the
statement in the decree was evidence of the admission made u/s 35 of the Evidence Act. The learned Judges begin by stating that the original
containing the admission of the defendant''s predecessor in-title could not be produced as it was destroyed and that under a circular issued by the
Sudder Court, it was the duty of the Court to enter in the decree an abstract of the pleadings, and they relied on Section 35 as authority for the
view that the admission sought to be proved can be proved by the abstract prefixed to the decree. At the end of the judgment, however, they go
on to state that the admission in the decree would be binding only if the person who is alleged to have made the admission was the predecessor-in-
title of the defendants and observe : ""Whether the defendants are bound by the statements of Rashmoni depends on the question whether
Rashmoni was their predecessor-in-title; and this point has not been decided by the Subordinate Judge. If he holds that defendants do not
represent Rashmoni, neither the decrees nor the admission can be admissible against them. On the other hand if he holds that the defendants do
represent Rashmoni, then, in our opinion, so much of, the decrees as purports to give, the statements of Rashmoni is admissible in the present case.
The amount of weight to be given to such statement is a matter to be decided by the Court below."" Lekraj Kuar v. Mahpal Singh I.L.R.(1879)
Cal. 744 to which the learned judges refer was a case not of a judgment but of a statement made in a settlement register, and their Lordships of the
Privy Council were of opinion that being an entry in a register kept by a public servant under statutory authority, it was admissible u/s 35 of the
Evidence Act. It seems to me that if the Learned Judges were of opinion that any statement made in a judgment would be a statement made by a
public officer in a public record and would bring it u/s 35, all the discussion as to the duty of the Judge to make an abstract of the pleadings in the
decree, the destruction of the original pleadings containing the admission and as to its relevancy depending upon whether Rashmoni, the person
who is alleged to have made the statement abstracted in the decree, was the predecessor-in-title of the defendants would be immaterial as . a
statement recorded under the circumstances mentioned in Section 35 would depend for its relevancy on the mere fact that it was made by a public
servant in the discharge of his duty apart from the sources of his information or the relationship of the persons giving the information to the persons
who were interested subsequently in the matter. The correctness of this decision was doubted in Sunder Das v. Fatimul-ul-nissa Begam (1896) 1
C.W.N. 513, and Ramsunder Gope Sikdar v. Haribala Dhubi (1916) 37 Ind Case 911. In Bythamma v. Avulla I.L.R.(1891) M. 19 , the question
was whether the parties were governed by Makkattayam or Mdrumakkattayam Law and it was sought to prove that in a previous claim petition to
which a preceding karnavan was a party, he acted in the capacity of karnavan thus showing that the parties were governed by the
Marumakkaitayam Law. The order of the District Munsif reciting the petition of the previous karnavan was sought to be put in to prove the
allegation made by the previous karnavan and it was held on the authority of the IX Calcutta case cited above that it was admissible u/s 35 of the
Evidence Act. As appointed out by the learned referring Judges the reasoning in this case would apply to Section 13 rather than Section 35.
Ramaswami Ayyar v. Appavu ILR (1887) Mad 9 which is referred to by the learned Judges related to the relevancy of judgments under Sections
13 and 42 of the Evidence Act and had nothing to do with Section 35 The 15 Mad. case cited above Thama v. Kondan ILR (1892) M. 378 was
a suit to redeem a kanom. The kanom document was lost and the judgment in a previous suit brought by a previous jenmi to redeem the same
kanoni in which it is stated that defendants admitted their position as kanomdars was sought to be put in evidence. The learned Judges, following
Lekraj Kuar v. Mahpal Singh I.L.R.(1879) C. 741 , Parbati Dasi v. Purnachandra Sen ILR (1883) C. 586 and Byathumma v. Avulla ILR (1891)
M. 1, cited above, held that the judgment was admissible and that the recital in a judgment of the admission of the relevant fact would be evidence
of the jenini''s title u/s 35 of the Evidence Act. As the second suit to redeem was between the same parties as those to the first suit, it is difficult to
see why recourse should be had to Section 35 for the purpose of rendering the previous judgment admissible in evidence as the matter could well
have been brought under Sections 40 to 43 of the Evidence Act. Neither in this case nor in Byathumma v. Avulla ILR (1891) M. 1 is there any
discussion of the authorities and the Judges simply follow the decision in the 9 Cal. case cited above. I think the correct principle has been laid
down by Mukerji, J. in Kashinath Pal v. Jagat Kishore ILR (1916) C.W.N. 643 where the learned Judge held that ""although a judgment not inter
partes may be used in evidence in certain circumstances as a fact in issue or as a relevant fact or possibly as a transaction, the recitals in the
judgment cannot be used as evidence in a litigation between the parties."" The judgment of the Privy Council in Ram Prakash Das v. Ananta Das
ILR (1916) C. 707 also makes it clear. The question there was whether a person was disqualified from being a Mahant by reason of his having
been married, Evidence was sought to be let in of a recital in the judgment of a Magistrate of an admission of the marriage made in the course of
proceedings before- him. Their Lordships of the Privy Council held that the judgment was rightly rejected as not by itself evidence of the facts
recorded therein. It is argued by Mr. Menon that what their Lordships rejected was not the judgment but a statement by one Hanuman Lal, made
on oath, that the Mahant was married; but a reference to the passage in which the observation of their Lordships occurs makes it clear (hat they
were referring to the judgment. It is unnecessary in this reference to consider whether, if admissions made by parties to a suit or their
predecessors-in-title are relevant and the originals containing the admissions are not forthcoming, secondary evidence of such admissions can be
given by reference to extracts from judgments. The answer to the question will turn not on Section 35 but with reference to the provisions of the
Act relating to the relevancy of admissions and the sections relating to secondary evidence. On a consideration of the authorities and the provisions
of the Evidence Act, I am clearly of opinion that Section 3 would not render a judgment not inter partes evidence. I would answer the question
referred to us in the negative.