Report No. 69

Section 21

9.58. Introduction.-

Section 21 consists of two branches, namely, the positive branch and the negative branch. The positive deals with the persons against whom admissions are relevant and may be proved. It provides that admission are relevant and may be proved as against the person who makes them or hiE representative in interest. The negative provides that admissions cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the specified cases. The excepted cases are three in number. Of these, the first covers admissions made under special circumstances, where if the maker of the admission were dead, the case would fall within section 32.

The special circumstances are supposed to be a guarantee of truth, so as to make the admission relevant. The second exception covers the case where the admission consists of a statement of the existence of any state of mind or body, and is accompanied by conduct rendering its falsehood improbable. What justifies this exception is the fact that there is conduct, and not merely a statement-and that conduct renders the falsehood improbable. The third exception covers cases where the admission is relevant otherwise than as an admission. This is only a formal exception.

9.59. Illustrations.-

The following illustrations are appended to the section:

"(a) The question between A and B is, whether a certain deed is or is not forged. A affirms that it is genuine. B that it is forged.

A may prove a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged; but A cannot prove a statement by himself that the deed is genuine, nor can B prove a statement by himself that the deed is forged.

(b) A, the captain of a ship, is tried for casting her away.

Evidence is given to show that the ship was taken out of her proper course. A produces a book kept by him in the ordinary course of his business, showing observations alleged to have been taken by him from day to day, and indication that the ship was not taken out of her proper course. A may prove these statements, because they would be admissible between third parties, if he were dead, under section 32, clause (2).

(c) A is accused of a crime committed by him at Calcutta.

He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore post-mark of that day. The statement in the date of the letter is admissible, because, if A were dead, it would be admissible under section 32, clause (2).

(d) A is accused of receiving stolen goods knowing them to be stolen. He offers to prove that he refused to sell them below their value.

A may prove these statements, though they are admissions, because they are explanatory of conduct influenced by facts in issue.

(e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit.

He offers to prove that he asked a skillful person to examine the coin, as he doubted whether it was counterfeit or not, and that that person did examine it and told him it was genuine.

A may prove these facts for the reasons stated in the last preceding illustration".

9.60. Opening part incomplete.-

The opening portion of the section provides that "admissions are relevant and may be proved as against the person who makes them, or his representative in interest". This statement of the law is somewhat incomplete, inasmuch as, under the preceding sections, statements made by certain other persons are also admissions, in certain situations. For example-(i) statements made by an agent to any party are admissions under section 18, 1st paragraph; (ii) statements made by persons having a joint interest are admissions under section 18, 3rd paragraph, sub-paragraph (1); (iii) statements made by persons whose position must be proved as against a party to the suit, are admissions under section 19; and (iv) statements made by a referee are admissions under section 20.

9.61. Recommendation as to opening part.-

All these situations are left uncovered by the opening portion of section 21, because the words "the person who makes them or his representative-in-interest," if taken literally, would not (for example) cover the principal, or the person jointly interested (not the maker). This part of section 21 should, therefore, be revised in a suitable manner.

9.62. Recommendation to split up the section.-

Incidentally, such revision could be more conveniently done, if the section is split up so as to deal, first, with the positive branch-when the use of admissions is permitted-and then with the negative branch-when their use is not permitted. Of course, the negative branch is subject to certain exceptions, which are contained in clauses (1), (2) and (3) of the existing section.

9.63. Recommendation-redraft of opening portion.-

It would therefore be convenient if the opening words of section 21 are revised as follows:-

"21(1). Admissions are relevant and may be proved against the following persons, that is to say,-

(a) the person who makes them, or his representative in interest;

(b) in the case of an admission made by an agent where the case falls within section 18, first paragraph,1the principal of the agent;

(c) in the case of an admission made by a person having a joint proprietary or pecuniary interest in the subject-matter of the proceeding, where the case falls within section 18, third paragraph,2 sub-paragraph (1), any other person having a joint proprietary or pecuniary interest in that subject-matter;

(d) in the case of an admission made by a person whose position or liability it is necessary to prove as against a party, where the case falls within section 19, that party;

(e) in the case of an admission made by a person to whom a party has expressly referred for information, where the case falls within section 20, the party who has so expressly referred for information".

1. If the paragraphs of section 18 are re-numbered as recommended, this should be altered.

2. Reference to be altered if section 18, paragraph third is renumbered.

9.64. Recommendation-redraft of latter portion.-

The latter portion of the section may be revised as follows:-

"(2) Admissions cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:-

(a) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32.

(b) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.

(c) An admission may be proved by or on behalf of the person making it, when it is relevant otherwise as an admission."1

1. Illustrations as at present.

Section 22

9.65. Introduction.-Under section 22, oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such documents "under the rules hereinafter contained", or unless the genuineness of a document produced is in question.

9.66. General rule.-The general rule in the Act is that the contents of a written instrument, which is capable of being produced, must be proved by the instrument itself and not by parol evidence.1 The substance of the section is, thus, in conformity with the other provisions of the Act, which lay down the general rule referred to above. Briefly speaking, these other provisions, so far as is material, require that the party must give notice to produce and must account for the absence of the original, in general.

1. Sections 59, 64, 91.

9.67. Rule in England different.-

In England, the rule laid down in Slatterie v. Pooley, (1840) 6 M&W 669: 151 ER 579, is that admissions are receivable to prove the contents of documents without notice to produce and without accounting for the absence of the originals. The principle on which such evidence is received, in England, is that what a party himself admits to be true may reasonably be presumed to be so, and such evidence is not open to the same objection that applies to other parol evidence.

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