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section 33 and other issues

Supreme Court of India

State Of Bihar vs Radha Krishna Singh & Ors on 20 April, 1983

(1) A judgment in rem e. g., judgments or orders passed in admiralty, probate proceedings, etc., would always be admissible irrespective of whether they are inter parties or not, (2) judgments in personam not inter parties are not at all admissible in evidence except for the three purposes mentioned above. (3) on a parity of aforesaid reasoning, the recitals in a judgment like findings given in appreciation of evidence made or arguments or genealogies referred to in the judgment would be wholly inadmissible in a case where neither the plaintiff nor the defendant were parties.

(4) The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little.

(5) Statements, declarotions or depositions, etc., would not be admissible if they are post litem motam.


In order to appreciate the evidence of such witnesses, the following principles should be kept in mind:


(1) The relationship or the connection however close it may be, which the witness bears to the persons whose pedigree is sought to be deposed by him.

(2) The nature and character of the special means of knowledge through which the witness has come to know about the pedigree.

(3) The interested nature of the witness concerned.

(4) The precaution which must be taken to rule out any false statement made by the witness post litem motam or one which is derived not by means of special knowledge but purely from his imagination, and (5) The evidence of the witness must be substantially corroborated as far as time and memory admit.

These are the broad outlines on the basis of which in cases whose facts start from very olden times such oral testimony has to be judged and evaluated.


In the case of Bahadur Singh & Ors v. Mohan Singh Ors.(1) the Privy Council cautioned the courts against accepting statements which may be inadmissible under cl. (5) of s.32 of the Evidence Act and which have been made post litem motam. This aspect of the matter has been dealt with while dealing with the doctrine of post litem motam. We might mention that in this particular case the evidence of almost all the witnesses is post litem motam.


In Debi Pershad Chowdhry & Ors. v. Rani Radha Chowdhrain & Ors.(2) the law on the subject was very well expounded and clearly defined and while describing the nature of dependable evidence in such cases, the Privy Council made the following observations:


"It cannot be doubted that, in its quality, this is admissible evidence. The singular criticism of the High Court is that it comes from relatives' of the appellant, but it is difficult to see where else such evidence could be found, or that in the mouth of strangers it would have any value at all. Each of the persons who has spoken to this pedigree has been carefully cross- examined, and each proves circumstances, apart from the pedigree, which support his knowledge and credit. This is not the case of a pedigree learned by rote, but it circumstantially corroborated, as far as time and memory admit."

(Emphasisours) In Abdul Ghafur & Ors v. Hussain Bibi & Ors.(1) the Privy Council briefly summed up the law in this regard in the following words:

"It has been established for a long while that in questions of pedigree, I suppose upon the ground that they were matters relating to a time long past, and that it was really necessary to relax the strict rules of evidence there for the purpose of doing justice-but for whatever reason, the statements of deceased members of the family made ante litem motam, before there wag anything to throw doubt upon them, are evidence to prove pedigree. And such statements by deceased members of the family may be proved not only by showing that they actually made the statements, but by showing that they acted upon them, or assented to them, or did anything that amounted to showing that they recognised them."

(Sturla v. Freccia-(1880) S A.C. 623) "The rule of evidence thus enunicated is in accord with the terms of s. 32, sub-s. 6 of the Indian Evidence Act, 1812, which is applicable to the present case."

In Mewa Singh & Ors. v. Basant Singh & Ors.(2) the Privy Council made very apt and valuable observations regarding the manner in which a pedigree could be proved and pointed out that in order to succeed, the plaintiffs must bring themselves within fourteen degrees and in this connection obverved thus:

"The oldest names in a pedigree are naturally the first to be learnt and the first to be learned, and the names of the earliest generations may well survive in their proper order long after all trustworthy memory of their lives has passed away.

... ... ...

Those who claim to be the reversionary heirs must bring themselves within the necessary number of pedigree viz., fourteen. They must show that they are both next heirs and near enough."


Supreme Court of India

V.M. Mathew vs V.S. Sharma And Others on 29 August, 1995

he only question is whether the evidence of Kurian is relevant and admissible in the present proceeding and whether interpretation given by the Kerala High Court is correct interpretation of the second proviso to Section 33 of the Act. Section 33 of the Act reads thus :


"33 Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated :- Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the Court considers unreasonable :

Provided -

that the proceeding was between the same parties or their representatives in interest;

that the adverse party in the first proceeding had the right and opportunity to cross-examine;

that the questions in issue were substantially the same in the first as in the second proceeding.

Explanation - A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Section."

The section lays down as to when the evidence of a witness in a previous judicial proceeding is relevant. It consists of two parts, the main section, and the proviso. The main section lays down the conditions which are required to be satisfied for the previous statement of a witness in a judicial proceeding to be admitted in evidence in the later proceeding. Admittedly, since Kurian died pending the proceeding, the requirement of the main part of Section 33 stands satisfied. The only question is what would be the effect of the words "adverse party in the first proceeding having the right and opportunity to cross-examine". The question of a party having the right and opportunity to cross-examine will arise, if he is an adverse party in the first proceeding. The second proviso, which is an exception to the main part of the section, operates only if the adverse party in the first proceeding did not have the right and opportunity to cross-examine the witness examined therein. The term `adverse party' connotes that a party which has a right and opportunity to cross examine in the first proceeding. This proviso, therefore, obviously protects the rights of the adverse party in the first proceeding and not the party who produced the witness. The party against whom the witness is produced in the previous proceeding is the adverse party and not the person who produced the witness and had the advantage of having examined the witness. If the interpretation which is sought to be put up by the learned counsel for the respondents is accepted, as has been done by the High Court, it would mean that the person producing the witness in the first proceeding will have the advantage of using the evidence of that witness in a subsequent proceeding between the same parties, while the adverse party in the first proceeding will be deprived of using the same evidence if it is favourable to him. That does not appear to be the intention of the proviso.


The adverse party referred in the proviso is the party in the previous proceeding against whom the evidence adduced therein was given against his interest. He had the right and opportunity to cross-examine the witness in the previous proceeding. Take an instance where ex-parte proceedings were taken against the defendant, he had no right and opportunity to cross-examine the witness. If the same evidence is sought to be used, he is certainly an adverse party in the previous proceeding and since he had no right and opportunity to cross-examine that witness, the same evidence cannot be used against the defendant in the subsequent proceeding. In other words, the proviso lays down the acid test that statement of a particular witness should have been tested by both parties by examination and cross-examination in order to make it admissible in the later proceeding. Thereby it seeks to protect the rights against whom the previous proceeding might have gone ex-parte who had no right and opportunity to cross-examine the witness. For the same reason, it would also protect the co-plaintiffs and co-defendants who may have a right but no opportunity to cross-examine the witness since it was produced by one of the co-plaintiffs or co- defendants on their side but that evidence went against their interest. It is, therefore, clear that a person who examined the witness should not be permitted, in the subsequent proceeding between the same parties, to raise the objection that the statement which was recorded in the previous proceeding on his behalf should not be admissible because he had no right and opportunity to cross-examine him. It would also be unfair that the person producing a witness in the previous proceeding should be able to utilise the evidence recorded in his favour in the previous proceeding as evidence in the subsequent proceeding, while the adverse party should be denied of the same right of using the same statements favourable to him which went against the party producing the witness in the previous proceeding.


In Dal Bahadur Singh's case (supra), the Judicial Committee of the Privy Council, while considering the first proviso and the main part of Section 33, held that mere opportunity to cross-examine is not sufficient. There must also be right to do so. In that case, the question of the application of the second proviso was not in issue. Therefore, the ratio therein renders little assitance.


The Division Bench of the Rajasthan High Court has, according to us, rightly considered in Poonamchand's case (supra) the effect of the second proviso and held that the adverse party in the previous proceedings would be referable to the party against whom the evidence was adduced and had right and opportunity to cross-examine the witness, and did cross-examine the witness. The Division Bench of the Calcutta High Court and the Single Judge of the Madras High Court have not considered the effect of the second proviso in proper perspective in the above noted cases. Sarkar on Evidence (14th Edn.) at page 656 states in this behalf that "adverse party in the first proceeding is used to distinguish that party from "the party who calls the witness". A party calling a witness does not become an "adverse party" because that witness's evidence is hostile to him. The proviso obviously protects the right of the "adverse party in the first proceeding" and not the right of the person who produces and examines the witness.


We, therefore, hold that the appellant is an adverse party in the first proceeding and he had the right and opportunity to cross-examine Kurian who was examined as P.W.1 in the previous proceeding by the respondents; and the evidence becomes admissible since Kurian died pending proceeding. Its acceptability is a matter to be considered by the trial court but at this stage it is not proper for us to go into that aspect of the matter.



Supreme Court of India

State Bank Of India vs Yumnam Gouramani Singh on 20 July, 1993



The High Court reversed the findings of the trial court primarily on the ground that there was no evidence on the record to corroborate the books of accounts which were produced by the appellant before the trial court. Relying upon Section 34 of the Evidence Act, the High Court held that the entries in the books of account alone are not sufficient evidence to charge the respondent with liability. The High Court further held that since there was no evidence on the record to support the entries in the books of account, the case against the respondent was not proved. We do not agree with the High Court. We are of the view that the High Court fell into patent error in reaching the conclusion that there was no evidence to corroborate the books of accounts. The High Court itself discussed the evidence, other than the books of accounts, as under:


In the instant suit, the material evidence on the point is the evidence of P. Ws. 5, 7 and 8 at the relevant time, was the General Manager of the Manipur State Bank. He proves the application made by the Defendant for a loan of Rs. 15,000 for which he executed a mortgage deed, Ext. A/3. He has also proved Ext. A/8, the pronote and Ext. A/7 the letter of continuity executed by the defendant by way of security for the above amount. Similarly, he proves the application by the defendant for another sum of Rs. 10,000 which, he says, was sanctioned, and for which the Defendant executed Ext. A/2, the deed of mortgage, and Ext. A/9 the pronote and Ext. A/10, the letter of continuity. He further proves that a loan account was opened in respect of the loan of Rs. 10,000 and he also proves Exts. A/13, A/14 and A/15. Ext. A/13 is the copy of the loan account of the defendant with the State Bank of Manipur. At the top of the account, is recorded: "Limit Rs. 15,000." Ext. A/14 is a copy of the loan register of the Manipur State Bank with respondent. At the op of the account is mentioned: "Limit Rs. 10,000." Ext. A/15 is a copy of the Current Account Ledger of the Manipur State Bank with the Defendant.

P.W.5 is an employee of the State Bank of India at Imphal. At the relevant time, he was an employee of the Manipur State Bank. He proves the Defendant's Application Ext. A/7 for the accommodation of a loan of Rs. 15,000 and also proves the corresponding promissory note, Ext. A/8, and mortgage deed, Ext. A/3. Similarly, he proves another application of the defendant for accommodation of a loan of Rs. 10,000 and also proves the corresponding promissory note, Ext. A/4, and the letter of continuity, Ext. A/10. Similarly he proves another application by the Defendant for the accommodation of loan of Rs. 15,000 together with mortgage deed, Ext. A/4 and the promissory note, Ext. A/11 and the letter of continuity, Ext. A/12, by way of security.

It is thus obvious that apart from the entries of the books of account there was ample evidence on the record to corroborate the said entries. P.Ws. 5, 7 and 8 have in their detailed deposition corroborated the entries in the books of account. Even otherwise, issues Nos. 3, 4 and 7 were not contested by the respondent defendant. In his written statement, he admitted that he took the alleged loans from the Manipur State Bank which merged in the State Bank of India.



014. Section 33 and other issues
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