Report No. 69

II Judgments

8.52. Judgments.-

How far the word "transaction" in this section includes a judgment not inter partes is a matter on which serious controversy has arisen. The case law on the subject is legion, and it will not be practicable even to mention the innumerable decisions of the various High Courts on the subject. We shall, therefore, confine ourselves to important judgments of the Privy Council and the Supreme Court, and very important rulings of the High Courts.

8.53. A brief analytical summary of the pronouncements of the Privy Council and the Supreme Court would be useful. We shall begin with the decisions of the Privy Council relating to relevancy of judgments under section 13.

(a) Privy Council decisions as to admissibility of judgments under section 13.-A wide view has been taken by the Privy Council in certain decisions, in which judgments not inter partes have been taken into account. To this category belongs Ram Ranjan v. Ram Narain,1895 ILR Cal 533 : 22 IA 60, where the question was whether the defendants were mukarraridars, and, therefore, not liable to ejectment by the plaintiff. Previous judgments not inter partes, in which the defendants had been found to be mukarraridars, were admitted, though section 13 was not expressly referred to.

8.54. In Dino Mony v. Brojo Mohini, 1901 ILR 29 Cal 187 : 29 IA 24, the section was expressly referred to, and reports forming part of pre-various proceedings under section 145 of the Code of criminal Procedure, 1882 (disputes as to possession of immovable property), were held to be admissible in evidence. The following observations in the judgment May be noted:-

"These police orders are, in their Lordships' opinion, admissible in evidence on general principles as well as under the thirteenth section1 of the Indian Evidence Act to show the facts that such orders were made Reports not referred to in the orders may be admissible as hearsay evidence of reputed possession To begin a report within that section, the report must be 'a transaction in which the right or custom in question was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence.' These words are very wide and are wide enough to let in the reports forming part of the proceedings in 1867, 1876 and 1888."

(b) On the other hand, there are certain decisions of the Privy Council which seem to lay emphasis on the proceedings. In Maharaja Sir Kesho Prasad Singh v. Pahuria Bhag Jogna Kuer, AIR 1937 PC 69: ILR 16 Pat 258, Sir George Rankin delivering the judgment of the Privy Council, made the following observations:-

"The admissibility of the decree of 1916 is the next question whether based upon sound general principle or merely supported by reasons of convenience, the rule that so far as regards the truth of the matter decided in a judgment is not admissible evidence against one who is a stranger to the suit has long been accepted as a general rule in English law. That the same rule applies in India, though it is not expressly formulated in these terms, may be seen from a reference to section 43 of the Evidence Act and the illustration given thereunder.

On the other hand apart from all discussion whether a judgment is or is not a transaction2 within the meaning of section 13 Evidence Act [Cf. 6 Cal 1713 and 29 IA 243],4 the judgment of 1916 together with the plaint which preceded it and the steps in execution which followed are evidence of an assertion by the Raj of the right which it claims to have acquired in 1903 and are thus admissible evidence of the right But the fact that a person not in possession of the land now in suit claimed in 1911 to have been entitled to it since 1903 is not by itself serious evidence of its right Serious consequences might ensue as regards titles to land in India if it were recognised that a judgment against a third party altered the burden of proof as between rival claimants, and much indirect lying might be expected to follow therefrom."

1. Emphasis added.

2. Emphasis supplied.

3. Gujju Lai v. Fatteh Lal, ILA 6 Cal 171.

4. Dinomoni v. Brojo Mohini, 1910 ILA 29 Cal 187: 29 IA 24.

8.55. These observations seem to regard the judgment-

(i) as admissible when read with the proceeding, but as (ii) not constituting such serious evidence as would displace the burden of proof.

8.56. In a case from Canada,1 it was held by the Privy Council that the Court is not entitled to refer to or rely upon, a judgment given in proceedings to which neither the plaintiff nor the defendant was a party as proving the facts state therein.

(c) In Collector of Gorakhpur's case2 two pedigrees filed with a previous such were sought to be given in evidence Section 13 was discussed by the Privy Council incidentally. The pedigrees were found, with the decree in the previous suit, and the decree recited that the pedigrees had been filed by both the parties: the decree also set out the descent of the persons concerned, according to the pedigrees.

The Privy Council held that the statement in the decree that the pedigrees were file was admissible, either under section 35 as an entry in a public record, or under section 13 as evidence in the course of proceedings in a suit, and that the particular pedigree was admissible as a relevant admission. Referring to the observation made by Sir John Woodroffe in his Commentary on the Evidence Act (1934 Edition), where the view had been expressed that judgments and decrees were not admissible under section 13, their Lordships pointed out that this view was not in accordance with the decisions of the Board in Ram Ranjan's case3and Dino Mony's case.4

(d) Thus, a judgment being admissible under section 13, the use to which the judgment can be put is, according to certain decisions of the Privy Council, limited one. Findings of facts arrived at in one case do not constitute evidence of that fact in another case. This was decided in Gopika Raman v. Atal Singh., Gopika Raman v. Atal Singh, AIR 1929 PC 99 : ILR 56 Cal 1006: 56 IA 119, In later case,5 in which partibility of the Pandara estate was an issue, Sir Georg Lowndes made the following observations:-

"The judgment in question is only admissible under the provisions c sections 13 and 32, Evidence Act, as establishing a particular transaction in which the partibility of the Pandara estate was asserted and recognized, viz the partition resulting from the 1793 suit. The reasons upon which the judgment is founded are no part of the transaction and cannot be so regarded nor can any transaction itself, be relevant in the present case

(e) Privy Council decisions summarised.-The sum and substance of the decision of the Privy Council, referred to above, appears to be, that a judgment in a previous case is relevant under section 13 by virtue of the portion referring to "transaction", but not the reasons behind the judgment, nor the findings of fact on which it is based. Much weight may not, however, attach to such judgment though it is admissible.

1. Coca Cola Co. of Canada Ltd. v Pepsi Cola Co. of Canada, AIR 1942 PC 40 (Case fron Canada).

2. Collector of Gorakhpur v. Ram Sunder Mal, AIR 1934 PC 157 (164): 51 IA 286: ILR 56 Al 468.

3. Ram Ranjan's case, supra.

4. Dino Mohini's case, supra.

5. Gobind Narain v. Shuam Lal, AIR 1931 PC 89: ILR 58 Cal 1187: 58 IA 125.

8.57. We shall now refer to two relevant decisions of the Supreme Court bearing on the point.

(a) In Srinivas v. Narain, AIR 1954 SC 379, the point at issue was whether certain properties were joint family properties. In a previous litigation, maintenance had been claimed by a female member, with a prayer for charging the maintenance on the family property. This prayer had been granted, and the judgment was being tendered in evidence; the objection raised was that in the previous litigation, no question of title was directly involved.

The Supreme Court, however, regarded the Judgment as admissible under section 13 as an assertion of the female member that the property belonged to the joint family. It was pointed out that the amount of maintenance would depend on the extent of joint family property; that an issue as to extent was actually framed in the previous litigation, and that the prayer for charging the maintenance on the family property had also been granted.

Sital Das v. Sant Ram, AIR 1954 SC 606, again, involved the question of succession to the office of a Mahant, and a previous judgment was admitted under section 13 as a "transaction" in which a person from whom one of the parties derived his title, asserted his right as a spiritual collateral of a previous Mahant and got a decree accordingly.

(b) The Supreme Court decisions referred to above show that a judgment can be treated as a "transaction" in which a right was asserted. It may, incidentally, be noted that in neither of the two cases before the Supreme Court, the decisions of the Privy Council or any other case on this point was discussed.

8.58. Rulings of High Courts.-

Decisions of the High Courts are conflicting as to whether previous judgments and decrees not inter partes, are, or are not, included in the term "transaction". Difference of opinion has arisen in the same High Court also.1-2

Remarks of Sargent, C.J., in Ranchhoddas v. Basu, 1876 ILR 10 Bom 459, were-"former judgments are not themselves transactions."

1. (a) Neamul v. Cooro, (1874) 22 WR 365;

(b) Gujju v. Fatteh, 1880 ILR 6 Cal 175;

(c) Collector of Gorakhpur v. Palakdhari, 1889 ILR 12 All 1 (43).

2. (a) Gujju v. Fatteh, 1880 ILR 6 Cal 183 (185, 187). (b) Collector v. Palakdhari, ILR 12 All 14 (27, 28).

8.59. Decisions of High Court as to "instances".-

On the allied question whether previous judgments and decrees not inter partes, are, or are not, included in the words "particular instances", the decisions of the High Courts are, again, conflicting. In some cases, it has been held that1 judgments and decrees are not themselves "transactions" or "instances", but the suit in which they were passed and made is a "transaction" or "instance".

1. (a) Koondo v. Dheer, (1873) 20 WR 345 (Cal);

(b) Jianotulla v. Ramani, 1887 ILR 15 Cal 233;

(c) Ramaswami v. Appavu, 1887 ILR 12 Mad 9.

8.60. Logical position.-

While it is too late in the day to say that a judgment is never admissible under section 13, it must be stated that in order that the admissibility of a judgment under section 13 can be justified, a slightly complicated process of reasoning has to be undergone. On a literal construction of the word "transaction", a judgment would not be covered by it. A judgment is an act of the court embodying its opinion, and is not easy to see how an act of a Court can constitute a "transaction" in which a party asserted etc. a right. It will be more accurate to say that the litigation amounts to an assertion of a right etc. and that the judgment is admissible as evidence of the litigation.

8.61. As was pointed out by Sir Gurudas Banerji J. in the referring judgment in a Calcutta case,1 litigation may itself come within the meaning of section 13. His observations were as follows:-

"If the existence of the judgment is not a transaction within the meaning of clause (a) of section 13, it proves that a litigation terminating in the judgment took place: and the litigation comes well within the meaning of the clause as being a transaction by which the right now claimed by the defendants was asserted. So again, the litigation which is evidenced by the existence of the judgment was a particular instance within the meaning of clause (b) of section 13, in which the right of possession now claimed by the defendant was claimed."

8.62. Chain of relevance.-

The chain of relevance can be demonstrated thus:-

(i) The judgment proves the litigation.

(ii) The litigation amounts to a transaction or instance.

(iii) The transaction or instance is relevant under clause (a) or (b) of section 13, if it is one by which the right etc. was created etc. or in which the right etc. was claimed, etc.

8.63. Judgment why not to be regarded as a transaction.-

It seems to be an incorrect use of language to describe a judgment as a "transaction". In any case, a Court does not claim or assert or deny or exercise a right or custom. Nor does it dispute, or assert, or depart from the exercise of a right or custom. The parties do that. What the court does is to determine the cause presented to it for trial and for that purpose it considers the claims, assertions, denials, exercise and so forth of the litigants before it or of those persons whose acts and statements the law treats as their own.1

1. Woodroff.

8.64. Even assuming that a judgment is a transaction, it cannot be said to create or modify a right or custom. The right or custom either exists, or it does not, before the cause comes to trial. The Court merely finds, that before and at the date when the suit was instituted, the right or custom did or did not exist. If the parties litigating had no right, the Court cannot give it to them. And, if a right or custom exists, the Court has no jurisdiction to modify either.

8.65. The only portion of the section which may, with any show of reason, be made applicable to judgments is the word "recognised" in clauses (a) and (b), and the phrase "which was inconsistent with its existence" in clause (a). But it seems that neither was, in fact, intended to apply to judgments since in the context all other acts mentioned in the section refer to acts of parties. The "recognition" referred to in the section appears to be, like the other acts mentioned, an act of a person and not of a tribunal. In that context, it is an act of admission.

A Court does not admit a right, but adjudicates upon it. As Garth C.J.1 has said: "If the parties to a suit were to adjust their differences inter se, the adjustment would be a transaction and, by a somewhat strained use of the word, the proceedings in a suit might also be called transactions, but, to say that the decision of a Court of Justice is a transaction appears to me a misapplication of the term.".

1. Guiju v. Fatteh, 1880 ILR 6 Cal 171 (186).

8.66. Straight J. said1 that a judgment is not itself an instance "but the suit in which it was made is an instance."

1. Collector of Gorakhpur v. Palakdhari, ILR 12 All 14 (25) (per Straight, J.).

8.67. In this connection, the observations in the Allahabad case of Collector of Gorakhpur v. Palakdhari, 1899 ILR 12 All 14, may also be referred to:

(a) "In my opinion, a previous litigation, although not between the same parties, may be a particular instance within the meaning of section 13(b) in which the right or custom in question or the subsequent litigation was claimed", etc. (Edge, C.J.).

(b) "It seems to me that the true point is not that the judgments and decrees themselves are the 'transactions', but that the suit in which they were made was a transaction, and that to establish that such a transaction took place, they are the best evidence." (Straight J.).

8.68. The observations in a Calcutta case1 may also be compared. It was pointed out that the thing to be proved is the right, the transaction evidences the right; and the transaction may need to be proved, for which purpose the judgment may be used as proving the transaction.

1. Gajanafar Ali Khan v. Province of Assam, AIR 1944 Cal 57: 1944 ILR 1 Cal 203 (213, 214) (Pal, J., Mukherjee, J. agreeing).

8.69. Conclusion as to need for clarification in regard to judgments.-

From the above discussion, it would appear that-

(i) it is desirable to clarify the relevancy of judgments with reference to section 13;

(ii) the clarification, however, should be made in a manner consistent with the meaning of "transaction", because it is only by a chain of reasoning1 that a judgment becomes relevant as proving the litigation which proves the transaction which is equivalent to an assertion etc. of the right;

(iii) an Explanation should, therefore, be added to section 13, to the effect2 that a previous legal proceeding, whether between the same parties or not, may be relevant as a 'transaction' or 'instance' within the meaning of the section, and a judgment delivered in such proceeding, is admissible as evidence of such legal proceeding, but not the findings of facts or the reasons contained in it. This is not to affect the relevance of a judgment under any other section.

1. See discussion as to chain of reasoning, supra.

2. This is not a draft.

8.70. Judgments admissible in general to show the fact of the judgment.-

A judgment in another suit not between the same parties is, of course, admissible to show the fact of the judgment and who were parties thereto and what was the subject matter of the suit and facts of the decision, and the like,1 where these matters are relevant under any other section. However, the finding of the facts in the judgment of the reasons upon which the judgment is formed, cannot be admitted, even under section 13.2 If the judgment can be brought under some specific provision of the Act,3 then it would be admissible. This is fairly clear from the words "unless the existence of the judgment is relevant under some other provision of this Act," used in section 43.

1. Harihar Prasad v. Munshi Narhar Prasad, AIR 1956 SC 305 (309).

2. Govindan Narain Singh v. Sham Lal, AIR 1932 PC 89 (92).

3. Roop Chand v. Har Kishan, 23 WR 162 (Cal).

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