Report No. 69

I. Recommendation

12.141. Recommendation to make inadmissible recitals as to boundaries in documents not inter partes.-

The above discussion shows that a clarification is needed on the question whether recitals of boundaries are admissible. We are of the view that recitals of boundaries should not be admissible under section 32(3). Such recitals cannot, without straining the natural meanings of words, be said to be "against interest". They are inserted merely as descriptions. Moreover, they are not, at the time when they are made, known to be adverse to the maker's interest. This consideration, even if it is not implicit in the section, should not be disregarded when taking a decision as to what the law ought to be. We, therefore, recommend that the following Explanation should be inserted below section 32(3):

"Explanation.-Recitals of boundaries containing statements as to the nature or ownership of adjoining lands of third persons are not statements against pecuniary or proprietary interest within the meaning of this clause."

VIII. Section 32(4)

12.142. Section 32(4)-Statements as to public right etc.-

Section 32(4), makes relevant a statement which gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, when such statement was made before any controversy as to such right, custom or matter had arisen.

12.143. Common law as to public and general rights.-

The section broadly follows the common law rule on the subject; though not in every detail. At common law, an oral or written declaration by a deceased person concerning the reputed existence of a public or general right is admissible as evidence of the existence of such right, provided the declaration was made before the dispute in which it is tendered, and, in the case of a statement concerning the reputed existence of a general right, provided the declarant had competent knowledge. The requirement of competent knowledge, as stated in the above proposition, concerning the reputed existence of a general right, was laid down in a case decided in 18351.

1. Crease v. Barrett, (1835) 1 Cr M&R 919.

12.144. In this context, a "public right" is one affecting the entire population, while a "general right" is one that affects classes of persons, such as the inhabitants of a particular district, the tenants of a manor or the owners of certain plots of land.

Examples of public rights are- a claim to tolls on a public highway1, a right of ferry2 or the right to treat a part of a river bank as a public landing place3.

Examples of a general right are-rights of common4, and customs of mining for a particular district5.

The distinction between public or general rights on the one hand, and private rights on the other hand, becomes crucial in this context, because private rights cannot be proved by evidence of reputation. This was established long ago6, and has been re-stated recently7.

1. Brett v. Beales, (1830) 10 B&C 508.

2. Pim v. Gurell, 6 M&W 234.

3. Drinkwater v. Porter, (1835) 7 C&P 181.

4. Evans v. Merthyr, Tydfil Urban District Council, (1899) 1 Chancery 241.

5. Crease v. Barrett, 1835 All ER Reprint 30.

6. Talbot v. Lewis, (1834) 4 U Exch 9.

7. White v. Taylor, (1969) 3 All ER 349.

12.145. Different phraseology used in sections 32(4), 48 and 49.-

Both section 32(4) and section 48 admit evidence of opinion in matters of usage. So does section 49. There are, however, slight difference of phraseology in the various sections. Thus, section 32(4) speaks of a "public right or custom or matter of public or general interest"; section 48 speaks of "general custom or right" (which has been defined in the Explanation to the section); and section 49 speaks of "usages and tenets of any body of men or family". We shall deal with this aspect when we come to section 481.

1. To be considered under section 48.

12.146. Indian cases.-

Decided cases in India on clause (4) do not furnish many examples of public rights or customs; but one instance of the admission of such statements is to be found in the case of Sivasubramanya v. Secretary of State for India.1 That was a suit brought by a zamindar to recover certain forest tracts from the Government, on the ground that the tracts were included within the limits of his Zamindari. Both the plaintiff and the defendant relied on certain ayakut accounts, as containing statements of boundaries and furnishing proof of the inclusion of the disputed tracts in the Zamindari limits or in the limits of Government villages respectively.

These accounts were made for revenue purposes to show the sources of revenue in each village. Inasmuch as they were, from time to time, prepared for administrative purposes by village officers, they were said to be admissible as evidence of reputation, provided they are produced from proper custody and otherwise sufficiently proved to be genuine.

1. Sivasubramanya v. Secretary of State for India, ILR 9 Mad 285.

12.147. However, a letter of the Collector containing a summary of the statements by zamindars as to the right of inheritance to a zamindari in the district, was rejected as inadmissible1 as it did not relate to a public right. The order of the Government or of the executive head of a district is often accepted as conclusive concerning public rights or customs. In large zamindaries, however, questions occasionally did arise somewhat analogous to those which occur in manors in England-for example, as to the zamindar's right to take dues on the sale of trees2 or to receive one-fourth of the sale proceeds in cases of involuntary sale, as in execution3; or in case of a house sale privately4. With the abolition of zamindaries, such questions have lost their importance.

1. Ramalakshmi Ammal v. Sivananatha Perrumal Sethurayer, 14 Moo IA 570: 12 BLR 396: 17 WR 553 (PC).

2. Paul Rai v. Ram Hit Panday, 1 NWP Rep 139, cited in Woodroffe.

3. Baijnath Pershad v. Mahomed Fazul Hossain, 3 NWP Rep 204, cited in Woodroffe.

4. Kalian Das v. Bhagirathi, ILR 6 All 47.

12.148. Evidence to prove a fact in issue.-

The Bombay High Court has held1that evidence of the nature referred to in clause (4) is admissible to prove only a fact in issue and not a merely relevant fact. In the Bombay case, the question at issue was whether there was a custom amongst a certain caste of Hindus prohibiting the widow from adopting a son, and a statement signed by several members of this caste to the effect that the widow cannot adopt, was sought to be given in evidence.

It was held that the statement cannot be admitted. This case was dissented from by the Madras High Court in Raghubhushana v. Vidiavaridihi, 34 IC 875 (Mad)., where it was held that a fact in issue is always a relevant fact, and statements of deceased persons, relating to a fact in issue are admissible under section 32, clause (4). We have already dealt with this point2 while discussing the opening paragraph of section 32. The amendment recommended in the opening paragraph will take care of the matter.

1. Patel Vandravan v. Patel Manila) Chunilall, ILR 15. Born 565.

2. See discussion as to section 32, opening paragraph.

12.149. No change needed.- In the above position, no changes are needed in clause (4).

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