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PETITIONER: MST.  RAMRATI KUER

       Vs.

RESPONDENT: DWARIKA PRASAD SINGH AND ORS.

DATE OF JUDGMENT: 24/08/1966

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SHAH, J.C. BACHAWAT, R.S.

CITATION:  1967 AIR 1134            1967 SCR  (1) 153  CITATOR INFO :  F          1988 SC1074  (8,9)

ACT: Indian  Evidence  Act,  1872  (1  of  1872),  ss.  32,  158- Deponent’s   admission   against   his    interest-Conscious knowledge,if   necessary-Later  statement   to   contradict, relevancy.

HEADNOTE: The appellant’s mother executed a gift deed in favour of the appellant  claiming that she inherited the property in  1920 on  the death of her husband, who had inherited it from  her father-in-law.   The  respondents  claiming  title  to   the property  filed  a  suit challenging the gift  deed  on  the ground  that  the father-in-law of the  donor  (mother)  had survived  the  husband  and therefore  she  could  not  have inherited   the  property  under  the  Hindu  Law  as   then prevailing.  For this purpose the respondents relied upon  a statement, that the father-in-law had survived the  husband, made  by the donor in a mortgage suit in 1925, to  establish her case.  When this statement was made there was no dispute in the faimly.  On the questions whether, (i) this statement in the mortgage suit was admissible in evidence and (ii) the statement made by the donor in the gift deed was  admissible to contradict the statement she made in the mortgage suit, HELD  : (i) This statement in the mortgage suit,  which  was against   proprietary  interest  of  the  mother  would   be admisible in evidence under s. 32(3) of the Evidence Act, as she  was  dead.  It could not be an admission.  so  far  the appellant was concerned, butit would certainly be a  piece of evidence to be taken into consideration, The  admissibility  of  statements under  s.32  (3)  of  the Evidence  Act  does  not arise unless the  party  knows  the statementto  be  against  his interest.  But  the  question whether   the  statement  was  made  consciously  with   the knowledge  that  it was against the interest of  the  person making it would be a question of fact in each case and would depend  in  most  cases on the circumstances  in  which  the statement was made. [158 F-G; 159 A-B] Srimati  Savitri Debi v.Raman Bijoy, L.R. (1949) LXXVI  I.A. 255,Tucker v. Oldburry UrbanDistrict Council, L.R. [19121  2

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K.B.  317 and Ward v. H. S. Pitt [1913] 2 K.B.  130,  relied on. The statement in question was made by the mother consciously and  not  at the instance of any one and she  must,  in  the circumstances  of the case, be presumed - to know  that  the statement was against her proprietary interest, for  thereby she  became  the  widow  of  the  predeceased  son  of   her father-in-law. [159 G] (ii) Assuming that the statements in the gift dead would  be admissible  under s. 158 of the Evidence Act  the  statement made in the mortgage suit in 1925 carries greater weight  as it  was  made  at a time when there was no  dispute  in  the family. [160 E-F]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 981 of  1964. M 14 Sup.  C1166-11 154 Appeal from the judgment and decree dated December 22,  1961 of  the Patna High Court in Appeal from Original Decree  No. 223 of 1957. Bishan Narain and U. P. Singh, for the appellant. Sarjoo Prasad, B. K. Saran, A. B. S. Sinha, S. K. Mehta and K. L. Mehta for respondent No. 2. The Judgment of the Court was delivered by Wanchoo,  J. This is an appeal on a certificate  granted  by the Patna High Court.  A suit was brought by the plaintiffs- respondents  for a declaration, and in the  alternative  for possession, in respect of certain properties.  It was prayed that  a  deed  of gift executed on July  31,  1953  by  Mst. Phuljhari  Kuer in favour of the appellant Ramrati Kuer  was not  binding on the plaintiffsrespondents.  Mst.   Phuljhari Kuer was originally a defendant but died during the pendency of  the  suit.   The case of the respondents  was  that  the common  ancestor  of the parties Ramcharan Singh  had  three sons,  namely,  Ramruch,  Uttim Narain  and  Basekhi  Singh. After the death of Ramcharan Singh, his three sons separated in  status though the properties were not divided  by  metes and bounds.  Uttim Narain died sometime before 1900  leaving a widow Mst.  Zira Kuer but no children, and Mst.  Zira Kuer in her turn died in 1943.  Ramruch had a son Basudeo Narain. According to the respondents, Basudeo Narain died during the life-time  of  his  father  sometime  about  the  revisional settlement  which took place between 1917-1920.  As  Basudeo Narain  was the only son of Ramruch the latter  was  greatly grieved on his premature death and he left his home about  a month   after   Basudeo  Narain’s   death   and   thereafter disappeared  from the village.  Basudeo Narain  had  married twice.   One  of  his widows was Mst.   Phuljhari  Kuer  who executed  the gift deed of 1953 which was challenged in  the suit.   The other was Mst.  Sakala who died in  1950.   Mst. Phuljhari had no children while Mst.  Sakala had a  daughter Ramrati  Kuer who is the appellant before us.  Thus  at  the time  of  his death, Basudeo Narain left two  widows  and  a daughter.   The case of the respondents further was that  as Basudeo  Narain had pre-deceased his father,  Basekhi  Singh inherited  the properties of the share of Ramruch  and  that the  two  widows and the daughter of Basudeo Narain  had  no right  to the properties except that they were  entitled  to maintenance.  Further on the death of Mst.  Zira Kuer, Uttim Narain’s share of the properties also came to Basekhi Singh. On July 31, 1953 however Mst.  Phuljhari Kuer was  prevailed upon  by the appellant’s husband to execute a gift  deed  in

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favour  of Ramrati Kuer, though she had no right  whatsoever to  the properties.  Consequently the suit out of which  the present  appeal  has arisen was filed on  October  5,  1953. Thus the main case of the plaintiffs- 155 respondents was that Basudeo Narain died in the life-time of his  father and his widows and daughter had no right to  any property  in which he might have had a share along with  his father Ramrach with whom he was joint and that on the  death of  Ramruch  the entire share of Ramruch  was  inherited  by Basekhi Singh.  It may be mentioned that Basekhi Singh  died in 1948 and the suit was filed by his two sons. The appellant contested the suit.  The case of the appellant was  that there had been no separation during the  life-time of  Uttim  Narain and that after the death of  Uttim  Narain there  was a joint family consisting of Ramruch and  Basekhi Singh.   It  was sometime before the  revisional  settlement that  Ramruch and Basekhi Singh separated and each had  half share,  though many of the properties still remained  joint. It was further contended by the appellant that Ramruch  died before  his son.  Therefore Basudeo Narain succeeded to  and came into possession of half of the properties of  Ramruch’s share  and  on Basudeo Narain’s death, his two  widows  came into  possession  of  the  same  After  the  death  of  Mst. Sakala,  Mst.   Phuljhari  remained in  sole  possession  of Basudeo Narain’s properties.  She executed the deed of  gift of 1953 in favour of the appellant, since then the appellant had  been  in possession.  Further it was  stated  that  the appellant being the only daughter of Basudeo Narain was  his legal heir and was entitled as of right to the entire  share of Basudeo Narain after the death of Mst.  Phuljhari Kuer. It  will thus be seen that the main question in  dispute  in this  case was whether Basudeo Narain died before  or  after the death of his father Ramruch.  It is not in dispute  that if  Basudeo  Narain  died before  Ramruch,  the  plaintiffs- respondents suit must succeed; on the other hand, if Basudeo Narain  died after the death of his father Ramruch the  suit must  fail because Basudeo Narain would succeed  to  Ramruch and his two widows and daughter would in their turn  succeed to him. On  a review of the entire evidence and the conduct  of  the parties for about 30 years after the revisional  settlement, the  trial court came to the conclusion that Basudeo  Narain had  died  after his father.  In that view the  trial  court dismissed  the suit.  There was an appeal to the High  Court by the plaintiffs-respondents and the High Court allowed the appeal.   The  High Court reconsidered the  entire  evidence produced  by  the parties and was of opinion that  the  oral evidence produced was far from satisfactory and held that if oral evidence was equally balanced or equally worthless  the side which got support from unimpeachable or reliable  docu- mentary evidence should succeed.  The High Court then consi- dered  the  documentary evidence and held that most  of  the documentary  evidence was inconclusive one way or the  other as to the 156 order in which Basudeo Narain and Ramruch died.  But in  the opinion of the High Court there was a statement made by Mst. Phuljhari as far back as 1925 in a mortgage suit brought  by her  and  in that suit she categorically said  that  Ramruch left his home a month after the death of Basudeo Narain  and bad not been heard of since.  The High Court strongly relied on  this statement made by Mst.  Phuljhari Kuer in 1925  and held  on its basis that Basudeo Narain had  predeceased  his father.  In this view the High Court allowed the appeal  and

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declared the gift deed made by Mst.  Phuljhari Kuer invalid. It  also  held that the appellant could not succeed  to  the properties which belonged to Ramruch as the last-male holder and  therefore finally decreed the suit of  the  plaintiffs- respondents.  As the judgment was one of reversal, the  High Court  granted a certificate to the appellant to  appeal  to this Court; and that is how the matter has corn-- before us. No reliance has been placed on behalf of the parties oil the oral evidence, and tile estimate of the High Court that  the oral evidence on both sides is far from satisfactory is  not disputed  before  us.  Learned  counsel  for  the  appellant however  relies on certain circumstances appearing from  the evidence  to show that Basudeo Narain must have  died  after his  father.  It may be mentioned that there is no  evidence as to the actual date or year of death of Basudeo Narain  or Ramruch.   But it is urged that certain  circumstances  show that Basudeo Narain must have died after his father Ramruch. We shall consider these circumstances one by one.           [After considering the circumstances his  Lordship proceeded:] It  will thus be seen that none of the circumstances  relied on  behalf  of  the appellant is  conclusive  to  show  that Basudeo Narain must have died after his father; at the  same time  it  may be conceded that if  all  these  circumstances stood   by   themselves   without   any    counter-balancing documentary  evidence  on the other side the  balance  might have  tilted  in  favour of the appellant’s  case.   But  as against  all  this there is a statement of  Mst.   Phuljhari Kuer  made  in 1925 which categorically shows  that  Basudeo Narain  died during the life-time of his father and  it  was thereafter  that his father left his village as he was  very grieved on the premature death of his son and thereafter  he disappeared   from  the  village.   If  this  statement   is admissible  in  evidence and if it can be  relied  upon,  it completely  demolishes  any  inference  in  favour  of   the appellant  which  might otherwise have been drawn  from  the circumstances  to  which  we have  referred  above.   It  is therefore  necessary to turn to the circumstances  in  which this  statement  was  made  in  1925  and  to  consider  its admissibility as well as the value to be attached to it. It  appears that a suit was brought by Mst.  Phuljhari  Kuer and  Mst.   Sakala  Kuer widows of  Basudeo  Narain  against Mukhlal 157 Singh and others in 1924.  The suit was based on a  mortgage bond in favour of Basudeo Narain and the case of the  widows was that money had been advanced out of the personal fund of their  husband and that was how they were claiming a  decree on the basis of the mortgage.  The defence was that  Basudeo Narain  had no personal fund of his own and that  money  was advanced out of joint family fund and therefore Ramruch  and other members of the joint family should have filed the suit or  should have been made parties and as that had  not  been done  the suit was not maintainable.  Two of the  issues  in the  case  were  :  (i)  whether  the  suit  as  framed  was maintainable,  and (ii) whether the plaintiffs in that  suit had any cause of action.  In that suit Mst.  Phuljhari  Kuer made a statement and she stated that her husband was :In the service of one Nandan Babu and the money which was  advanced was  out of his earnings as such servant and that the  joint family  had  no  concern with that money.   While  making  a statement in  that  suit  Mst.   Phuljhari  Kuer  stated  as follows :-               "My  husband  died nine  years  ago.   Ramruch               Singh father of Basudeo Narain Singh went away

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             from  this place one month after the  latter’s               death and he has not been heard of since  then               and is traceless." It  has  been urged on behalf of the appellant that  it  was unnecessary  for  Mst.   Phuljhari  Kuer  to  make  such   a statement in that suit after she had already stated that the money  had come out of the earnings of Basudeo  Narain,  who was  in the service of Nandan Babu, and that this  statement was  made  at  the instance of Basekhi  Singh  in  order  to establish his right to the property of Ramruch’s branch.  It is true that Mst.  Phuljhari Kuer had stated that money came out  of  the earnings of her husband and  was  his  personal property;  even  so we cannot say that  this  statement  was entirely  uncalled  for  She had to meet the case  that  the money  did not come from the joint family fund and  that  it was  unnecessary therefore to implead other members  of  the family.  It seems to us that to explain why other members of the  family and particularly Ramruch was not joined  in  the suit she stated about the death of her husband and about the disappearance  of  Ramruch soon after her  husband’s  death. The  appellant tried to prove that this statement  was  made ,.at the instance of Basekhi Singh.  In that connection  one witness,  namely, Jagdamba Sahai (D.W. 11) was examined  and he  tried to make out that Mst.  Phuljhari Kuer was  tutored by her counsel in that case at the instance of Basekhi Singh to  make this statement so that Basekhi Singh’s interest  in the  properties of Ramruch might not be defeated.   We  have read  the statement of Jagdamba Sahai and are  in  agreement with  the High Court that it is impossible to  believe  that statement.   It is enough to say that though Jagdamba  Sahai pretended to be the clerk of the counsel he had to 158 admit that he had no card to work as clerk in 1924 and 1925. He  bad  also to admit that he was sitting  outside  in  the verandah  while the talks which he says he heard took  place in a room five or six yards away.  He also admitted that the counsel and Mst.  Phuljhari were not talking loudly and that he  heard  something and not everything.   His  evidence  is clearly  false and we cannot believe that the  statement  in question was made at the instance of Basekhi Singh.  Further if  it  were true that Basekhi Singh was keen  to  get  this statement in order that his right to the properties left  by Ramruch might not be jeopardised, it is strange that be took no  steps  for  about  23 years that  he  lived  after  this statement  was  made  to get his  name  mutated  in  revenue papers.   As we have already indicated there was no  trouble in this family so long as Basekhi Singh was alive and in the circumstances  we  are  not prepared to  believe  that  this statement  was made at the instance of Basekhi Singh who  at any rate took no advantage of it during his lifetime. It  is however urged that this statement is  not  admissible and  in any case no value should be attached to it,  firstly because it is not proved that Mst.  Phuljhari Kuer knew that she  was  making  a  statement  against  her  interest,  and secondly,  because this statement is contradicted by her  in her statement in the gift deed of 1953.  Under s. 32 (3)  of the  Indian  Evidence Act, No. 1 of 1872, a statement  of  a person  who  is  dead is admissible when  the  statement  is against the pecuniary or proprietary interest of the  person making  it,  or when if true, it would expose him  or  would have exposed him to a criminal prosecution or to a suit  for damages.  Now there is no doubt that this statement of  Mst. Phuljhari   Kuer  is  against  her   proprietary   interest. Therefore it would be admissible in evidence under s. 32 (3) as she is dead.  Of course, it would not be an admission  so

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far as the appellant is concerned; but it would certainly be a piece of evidence to be taken into consideration.  But  it is said that before the statement can be admissible it  must be shown that the person making it knew that it was  against his  pecuniary or proprietary interest.  In this  connection reliance  has been placed on Srimati Savitri Debi  v.  Raman Bijoy(l)  where  it has been held that "the  principle  upon which hearsay evidence is admitted under s. 32 (3) is that a man  is  not  likely to make a  statement  against  his  own interest  unless  true,  but this sanction  does  not  arise unless  the  party  knows the statement to  be  against  his interest."  This  statement of law is based on  two  earlier English  decisions  in  Tucker v.  Oldburry  Urban  District Council(2)  and Ward v. H.S. Pitt.(3) Accepting this  to  be the correct statement (1) L.R.(1949) LXXVI I.A. 255.   (2) L.R. (1912) 2 K.B. 317. (3) [1913] 2 K.B. 130. 159 of law with respect to admissibility of statements under  s. 32  (3)  of  the Indian Evidence Act, we may  add  that  the question whether the statement was made consciously with the knowledge  that  it was against the interest of  the  person making it would be a question of fact in each case and would depend  in  most  cases on the circumstances  in  which  the statement was made, except when the statement is categorical in  terms  as for example, "I owe so much to such  and  such person."  There  can hardly be any direct evidence  to  show that  the person making the statement in fact knew that  the statement  was  against his interest and so  in  most  cases knowledge  would  have to be inferred from  the  surrounding circumstances. We have therefore to see whether Mst.  Phuljhari Kuer can be said to have known when she made the statement in 1925  that it  was  against  her proprietary interest.   There  was  no dispute  in  the family at the time when the  statement  was made.   The  law  at the time was  perfectly  clear  that  a predeceased son’s wife had no interest in the property  left by  her  father-in-law,  except  of  course  the  right   to maintenance.   There  is  no reason  to  suppose  that  Mst. Phuljhari  did not know that by making such a statement  she would become the widow of a predeceased son of her fatherin- law  and if that was so there is no reason to  suppose  that she  would  not know the well-established Hindu law  that  a predeceased  son’s widow has no interest in  her  father-in- law’s property except for maintenance.  In the circumstances once  it  is  held that the statement was not  made  at  the instance  of Basekhi Singh it must follow in the absence  of proof  that Mst.  Phuljhari Kuer did not know the effect  of what  she  had  stated  that  she-had  made  the   statement consciously  knowing what she was stating and  also  knowing that   the  effect  of  her  statement  that   her   husband predeceased   her  father-in-law,  would  be   against   her proprietary interest.  We are therefore of opinion that  the statement  in  question  was made by  Mst.   Phuljhari  Kuer consciously and not at the instance of Basekbi Singh and she must  in the circumstances of the case be presumed  to  know that  that statement was against her  proprietary  interest, for  thereby she became the widow of the predeceased son  of her father-in-law. Then  we come to the gift deed executed by  Mst.   Phuljhari Kuer  in favour of the appellant in 1953.  It is urged  that the  statements  made  by her in this  gift  deed  would  be admissible  in  view of S. 158 of the Indian  Evidence  Act. Section 158 lays down that "whenever any statement, relevant under section 32 or 33, is proved, all matters may be proved

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either  in order to contradict or to corroborate it,  or  in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon 160 cross-examination the truth of the matter suggested." It  is urged  that  the statements made in the gift deed  would  be relevent to contradict the statements she made in 1925.   We shall assume for present purposes that the statements in the gift  deed would be admissible in view of s. 158.   But  two questions  arise in that connection.  The first is  what  is the  statement made in the gift deed of 1953 and whether  it contradicts  the  earlier statement and the  second  is  the value to be attached to the statement in the gift deed.   It is  remarkable that in the gift deed it is not stated in  so many  words that her husband had died after  her  father-in- law; all that is stated is that her husband died in a  state of separation from his pattidars leaving behind Herself  and her co-widow Mst  Sakala and after his death she and the co- widow entered into possession and occupation of the property left by him.  Thus there is no categorical statement by  her in the gift deed that her husband died after her  father-in- law.   What  is urged is that her statement that  after  her husband’s death she came into possession of all the property left by her husband implies that her husband must have  died after her father-in-law.  Thus there is no direct contradic- tion of the statement made in 1925 in the gift deed of 1953. Secondly as to the value to be attached to what is stated in the  gift deed it must be remembered that the  statement  in 1925  was made when there was no trouble whatsoever  in  the family  and  therefore that statement is entitled  to  great weight.   On the other hand the statement made in  the  gift deed was apparently made at the time when troubles had begun and in any case a person making a gift of property would say how she had title to the property and such a statement would in the circumstances have little value.  We are therefore in agreement  with  the High Court that the statement  made  in 1925 by Mst.  Phuljhari Kuer carries great weight as it  was made at a time when there was no trouble.  We have no  doubt that  Mst.  Phuljhari was conscious of what she was  stating in 1925 and that it was done at her own instance and not  at the instance of Basekhi and that she must have known that by that statement she became the widow of a predeceased son and would  therefore  not  be entitled to the  property  of  her father-in-law.   In the circumstances we hold  in  agreement with the High Court that that statement is admissible and it completely overweighs the circumstances on which the  appel- lant  relies.   In  this view of the  matter  we  hold  that Basudeo  Narain died after the death of his  father  Ramruch and it was one month or so after his death that Ramruch left the village as he was greatly grieved on the premature death of  his son and afterwards disappeared.  As Ramruch has  not been heard of for more than seven years after he disappeared from  the  village, he must be presumed to be dead  and  the plaintiffs-respondents   would  in  the   circumstances   be entitled  to  the property of which he was  the  last  male- holder.  The appeal therefore must fail except with  respect to one item of property to which we shall refer just now. 161 [His  lordship  then  held that in so far as  this  item  of property  was concerned the appellant was entitled  to  half share.] The  appeal  is hereby dismissed with costs subject  to  the modification indicated above. Y.P.          Appeal dismissed with modification.

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