Whether recital in a will may be taken as evidence under S13 0f Evidence Act?

Law of Evidence - Classification of property - Whether the recital in a will that the property dealt with thereunder was the property of the testator was relevant evidence under the Evidence Act, 1872 (the Act)? - Held, it was considered that the nature of a tenancy mentioned in a will may be regarded as a statement made in the course of a transaction by which certain property was bequeathed to a legatee under the will and that consequently the statement made in the will may be taken as evidence under Section 13 of the Act - Appeal dismissed.

Madras High Court

Periasami Kachirayar And Ors. vs Varadappa Kachirayar (Died) And ... on 15 December, 1949

Equivalent citations: AIR 1950 Mad 486

Bench: R Rao

1. The question of law argued in this second appeal is whether the recital in a will that the property dealt with thereunder is the property of the testator is relevant evidence under the Evidence Act.

2. Mr. Veeraraghavan contends that it is not, and relies on the decision in Satindra Kumar v. Krishna Kumari, 36 I. C. 882 : (A. I. R. (4) 1917 Cal. 805), a Bench decision of the Calcutta High Court. That case related to a suit for possession of land as Brahmottar in which there was a will produced by the predecessor-in-title of the plaintiff containing a recital of Brabmottar title. It was held that the will was inadmissible under Section 32(1) read with Section 13(a), (Evidence Act). There is to be found in that judgment no reasoning in support of the conclusion beyond what has just been stated.

3. The learned counsel for the appellants seeks to justify that decision on the analogy of the decision in Gujjalal v. Fattehlal, 6 cal. 171): (6 C. L. R. 439) in which it was held that it would be a misapplication of the term "transaction" to hold that the decision of a Court of justice is, within Section 13(a)), Evidence Act, a transaction which, to use the language of Garth C. J.

"in its ordinary sense denotes some business or dealing which is carried on or transacted between two or more persons."

Reliance is also placed by the learned counsel on the analogy of the ruling in Venkataraya Gopala Raju v. F. Narasayya, 1914 M. W. N. 779 : (A. I. R. (2) 1915 Mad. 746) in which it was held that a written statement could not be described as a transaction within the meaning of Section 13(a), Evidence Act.

4. I am not prepared to accept the decision in Satindra Kumar v. Krishna Kumari, 36 I. C. 882 : (A. I. R (4) 1917 Cal. 805) as correct law. Nor can the ruling in Venkataraya Gopala Raju v. F. Narasayya, 1914 M. W. N. 779 : (A. I. R. (2) 1915 Mad. 746) which relates to a written statement be regarded as in point and binding on me with reference to the relevancy of the recital in the will in the present case. The term "transaction" in the realm of law, bears, as pointed out in the Concise Oxford Dictionary of Current English. 3rd Edn., at p. 1303 the sense of "any act affecting legal rights ....." which, in my opinion, is not confined to a dealing with property between two persona inter vivos but can, without any strain on the language, be taken to include a testamentary dealing the with property. Moreover, it seems to me that the decision of the Privy Council in Virayya v. Adenna, 58 M. L. J. 245 : (A. I. R. (17) 1930 P. C.18) as it has been applied in this Court whether in Sachidanandam v. Subbaraju, 1930 M. W. N. 1016 as virtually invalidating the view taken in an earlier decision of this Court reported in Venkataratnam v. Seshamma, 27 Mad. 228 or in Venkataramayya v. Seshamma, I.L.R. (1937) Mad. 1012 at p. 1019 : (A. I. R. (24) 1937 Mad. 538) as not going quite so far as that, to which I drew the attention of the learned counsel for the appellants in the course of the arguments, is distinctly adverse to his contention. Section 32(7), Evidence Act, as the decision in Venkataramayya v. Seshamma, I. L. R. (1937) Mad. 1012 : (A. I. R. (24) 1937 Mad. 538) points out, is the legal basis for the acceptance of statements of the kind with which we are concerned here as by themselves relevant facts. It also seems to me that as against Satindra Kumar v. Krishna Kumari, 36 I. C. 882 : (A. I. R. (4) 1917 Cal. 805) above referred to, it is worthwhile to note that the same High Court has in a case reported in Pramatha Nath v. Champa Dasi, 56 Cal. 275 : (A. I. R. (16) 1929 Cal. 473) which I have been able to discover for myself since reservation of judgment, ruled without referring to the earlier decision that the nature of a tenancy mentioned in a will may be regarded as a statement made in the course of a transaction by which certain property was bequeathed to a legatee under the will and that consequently the statement made in the will may be taken as evidence under Section 13, Evidence Act.

5. The only question of law raised in the second appeal thus fails and the second appeal is accordingly dismissed with costs.

6. No leave.

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