Leading Supreme Court judgment on admissibility of hearsay evidence

The following is the evidence of which the Courts below have acted. First, there is the 5th plaintiff Khantar Jha (P.W. 6). He proves the entire genealogy. It is true he has not got personal knowledge of every step in the sense that he knew each one of the persons named; that would be impossible as many died before he was born. But personal knowledge is not necessary in these cases.

A member of the family can speak in the witness box of what he has been told and what he has learned about his own ancestors, provided what he says is an expression of his own independent opinion (even though it is based on hearsay derived from deceased, not living, persons) and is not merely repetition of the hearsay opinion of others, and provided the opinion is expressed by conduct. His sources of information and the time at which he acquired the knowledge (for example, whether before the dispute or not) would affect its weight but not its admissibility. This is therefore legally admissible evidence which, if believed, is legally sufficient to support the finding.

11. However, the lower Courts have not rested their decision solely on the 5th plaintiffs testimony. They have used certain Panjis as corroboration and the question is, are they admissible in evidence?

The attack made on them is that the 5th plaintiff admits as P.W. 6 that it was he who dictated the genealogy to Nirsoo Jha (P.W. 29) and to another Panjikar, Raghunath Jha (P.W. 40) after the dispute arose. He says he told Nirsoo about five years before he was speaking (that is to say, in or about the year 1939) and Raghunath eight to ten years before (that is, in 1934 or 1936). This was admittedly after the dispute, so it was said that the entries are inadmissible in evidence.

12. These Panjis are maintained by Panjikars who are professional genealogists. They systematically maintain pedigree tables in the community of Naithal Brahmins. They go from place to place and periodically ascertain the genealogies of their clients and enter them in Panjis (palm leaf manuscripts of genealogy) and add to them such fresh additions as occur in the family from time to time. They are considered important in this community because questions of marriage (who may marry whom) and relationship and caste turn on them. Statements about pedigree are not therefore lightly made in such cases.

The weight to be attached to them may, in a given case, be nil; on the other hand, they may be regarded as important because a man in such a position would ordinarily hesitate before giving a false pedigree as so many unforeseen consequences of importance to him and his family may turn on it. But the question of weight is for the Courts of fact to determine; we are only concerned with the admissibility.
IN THE SUPREME COURT OF INDIA

Civil Appeals Nos. 34 and 35 of 1953

Decided On: 21.04.1954

Sitaji  Vs. Bijendra Narain Choudhary and Ors.

Hon'ble Judges/Coram:
M.C. Mahajan, C.J., Vivian Bose and Ghulam Hasan, JJ.

Citation:AIR 1954 SC 601
Vivian Bose, J.

Print Page

Whether Power of attorney holder can depose which only principal can have personal knowledge?

Dr. Singhvi, learned senior counsel appearing for the respondent-bank vehemently contended that the appellants did not grace the box to lead evidence but authorised Mr. V.R. Bhojwani (power of attorney holder) to appear on behalf of the appellants. Learned counsel contended that Mr. Bhojwani was not an independent person to the litigation but was a judgment debtor in the suit and a co-owner of the property and there was a clash of interest between the husband and wife and as such he could not have been permitted to grace the box on behalf of the appellants. He further contended that under Order III Rules 1 & 2 CPC a power of attorney holder can appear, apply or act in any court but such act cannot be extended to depose in the witness box. He further submitted that in the present case a power of attorney holder is not acting as a witness on behalf of the principal but he is representing the principal himself. He further contended that deposing in a witness box and being cross- examined is a personal act and cannot be done through an agent/power of attorney holder.

In the context of the directions given by this Court, shifting the burden of proving on the appellants that they have a share in the property, it was obligatory on the appellants to have entered the box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.

Supreme Court of India

Janki Vashdeo Bhojwani & Anr vs Indusind Bank Ltd. & Ors on 6 December, 2004

Citation;2005(1)MH L J1170 SC

Print Page