Report No. 69

B. Recitals of Boundaries

12.111. So much as regards the principle of the clause, we shall now proceed to consider certain matters of detail, arising out of the clause.

Section 32(3)-Recitals of boundaries in documents between third parties.-There exists a controversy as to whether recitals of boundaries in documents not inter parties would be admissible under section 32(3) as statements "against the proprietary interest" of the declarant. One view on the subject is that such recitals are admissible, because-

(a) If the deed is one of mortgage of conveyance, the deed amounts to a statement against the pecuniary interests of the mortgagor (being an admission that he is indebted in a certain sum of money and that money is charged on his property) or against the proprietary interests, of the vendor (being an admission that he is extinguishing his interest in the property sold); the argument being that the whole document, and not merely the precise fact being against interest becomes relevant, on the principle applied in the English case of Higham v. Ridgway, (1863) 10 East 109 (see infra). The leading case based on such a reasoning is a Bombay one Ningava v. Bharmappa, 1899 ILR 23 Bom 63, followed in Hanji bibi v. H.H. Sir sultan Mohomed shah, (1909) 11 Bom LR 409.

(b) A statement by a person that his land is limited by certain boundaries is an admission that his proprietary interest does not extend over any land beyond the boundaries in the deed. The undermentioned cases support this view.1

12.112. A contrary view has been taken in some cases, on the ground that-

(i) Under section 32(3), it is not the document, but the statement that must be against the interest of the maker.2

(ii) A statement that the declarant's property is bounded in certain directions with certain other man's property is not against the declarant's interest, unless one assumes that every person is presumed to own the whole universe in the absence of a statement circumscribing his title.3 A person may really be presumed to own nothing until he has evidence to show his ownership.

1. (a) Tika Ram v. Moti Lal, AIR 1938 All 299 (301, 302) (Recognition of another's title is against interest);

(b) Haji Bibi v. Aga Khan, (1909) 11 Born LR 409, (following Nmgava v. Bharmappa, ILR 23 Born 63).

(c) Katahuddin v. Nafar Chandra, AIR 1927 Cal 230 (231, 232) (B.B. Ghrise & Panton, JJ.). This was an ohiter since the declarants were examined in the cases);

(d) Thyagarajan v. Narayan, AIR 1948 Mad 450 (Wordsworth, J.) (Obiter and no conclusive discussion);

(e) Rangayyan v. Innesimuthu, AIR 1956 Mad 226 (228, 229), paras. 7, 11 (reviews cases);

(f) Tritnbak v. Ganesh, AIR 1923 Nag 22;

(g) Ramnaddan v. Play Tilakdhari, AIR 1933 Pat 636 (638) (Dhavle, J.) (other).

2. (a) Karupanna v. Rangaswami, AIR 1928 Mad 105 (106) (Jackson J.);

(b) Paddagam (in re:), 1910 MWN 668;

(c) S. Venkataraja v. Narasayya, 1914 MWN 779, there cited.

3. See the observations of Krishnaswami Iyer, J. in Daddapanali Narayenappa (in re:), 8 Ind Cas 228 cited in Woodroffe and Amir Ali Law of Evidence, (1957), Vol. I, p. 492, and the observations of Lackson, J. in AIR 1928 Mad 105 (106) and the discussion in AIR 1935 Pat 167 (168) (FB).

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