Mt. Horil Kuer and Another vs Rajab Ali and Others

Rowland, J.—The substantial issue of fact in the litigation out of which these two appeals arise was whether an alienation of Immovable property made by Mt. Jadubansi Kuer was a valid alienation for consideration and for necessity. The Courts below have decided this question in the affirmative relying on the evidence of Jailal Pande. If the Courts were right in considering the evidence of Jailal Pande the whole case is concluded by the findings of fact; but it is contended that the deposition of Jailal Pande was not evidence and should have been expunged from the record. The deposition was not taken in open Court but recorded by a Commissioner, the witness being too ill to come to Court. He was examined-in-chief and cross-examined in part. The cross-examination was adjourned and the witness died before cross-examination could be resumed. The Courts below have relied on the note in Woodroffe and Amir Ali''s Indian Evidence Act (Edn. 9, p. 983) to the effect that

where the witness dies or falls ill before cross-examination his evidence will be admissible though its weight may be slight

The note itself is based on Taylor on Evidence, Section 1469, and Phipson''s Law of Evidence (Edn. 7, p. 459). The appellant has pointed out that there is reference in Phipson to a case in which. Farwell, J., rejected in to the deposition of a plaintiff who was giving evidence on his own behalf, who fainted and could not be cross-examined. There might have been in this case some suspicion that the plaintiff was evading cross-examination. Another case is cited by Taylor in which the affidavit was tendered of a witness who had left the country and therefore could not be cross-examined. The affidavit was rejected. There was some comment to the effect so as to give the opposite party a proper opportunity for cross-examination. On the other hand in Abadom v. Abadom (1857) 53 ER 351, whore the affidavit sought to be used was by a deponent who had since died, it was observed that the affidavit ought to have been filed earlier so that the opposite party would have had an ''opportunity for cross-examining, but Romilly, M.R. held that he could not take the affidavit off the file though in the circumstances he would be disposed to attach less weight to it than to the other evidence. In Rex v. Doolin Jebb CC 123 a prosecution witness was taken seriously ill while under cross-examination; his evidence was taken into consideration and it was held by the majority of the Judges that the conviction based on his evidence was good in law. This has been regarded as a leading case. In Davies v. Otty (1865) 55 ER 875 the Master of the Rolls said:

The evidence of Susannah Davies must be admitted. It appears that her evidence was given on the 28th August last year, and that she died two or three days afterwards, which made it impossible to cross-examine her; but there being no impropriety and nothing wrong in examining her, and no keeping her out of the way to prevent a cross-examination, I must receive her evidence and treat it exactly in the same way that I should the evidence of any other witness who from any cause whatever, either had not been cross-examined, or whom it was impossible to cross-examine.

In India decisions hearing on this point are scanty. In one case, J. Boisagomoff v. Nahapiet Jute Company, Ltd. (1902) 29 Cal 587, where the cross-examination was incomplete a deposition was excluded from consideration. It does not appear that this case was ever fully reported and I cannot find that it has been followed. In W. Stewart v. Now Zealand Insurance Co. Ltd. 16 CWN 991 the fact that a witness had not been cross-examined was held no bar to the reception of his deposition in evidence. In that case the opposite party, perhaps wilfully abstained from cross-examining. The decision in Maharaja of Kolhapur v. S. Sundaram Ayyar 1925 Mad 497 is directly in point. The question was as to the admissibility of the deposition of a witness who it is stated (p. 137 of the report):

was ill when she was examined in chief and her examination was adjourned after a few sentences in cross-examination were recorded. She died before cross-examination could be resumed.

Kumaraswami Sastri, J. said:

I do not think that the evidence can be rejected as in admissible though it is clear that evidence untested by cross-examination on a question like the present can have no value. I think the correct rule is that the evidence is admissible but that the weight to be attached to such evidence should depend on the circumstances of each case and that though in some cases the Court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded.

This decision which was followed in Mangal Sen v. Emperor 1929 Lah 840 seems to me, if I may say so with respect, to state the law correctly. I do not understand the observations of the learned Judge to mean that there is any hard and fast rule that the probative value of such evidence it small, and in my view there is no such rule. The weight to be attached to the evidence depends on the circumstances and the Court should look at the evidence carefully to see whether there are indications that by a completed cross-examination the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached. In the present case no circumstances have been brought to my notice which would tend to the view that Jailal''s evidence was not entitled to weight. Jailal was the nearest presumptive male reversioner. He was actually a signatory to the document of transfer. What he deposed was (if he was interested at all) against his own interest and the fact that at the time of his deposition he was on his death-bed makes it as the Courts below pointed out unlikely that he would have been actuated by any ulterior motive to distort facts in favour of the party for whom he deposed. There was some cross-examination and it was through no fault either of Jailal or of the party calling him that it could not be completed. Therefore there was no legal objection to receiving in evidence the deposition of Jailal, and the Courts below have fallen into no error of law in relying on his evidence.

In second appeal the appellants produced with an affidavit two documents: one is a lease purporting to have been executed in 1874 by Kirparam in favour of Rajab Ali. The other is a certified copy of a deposition given by Rajab Ali in 1892. It is said that these papers were discovered too late to be used in the Courts below and it is suggested that they would discredit the evidence of Jailal as to the date of death of Kirparam. Jailal in his examination in chief had said he could not give the date of death of Kirparam. In cross-examination he said that "it might perhaps have been in 1864." If this was erroneous it does not in my opinion in any way go to affect the credit of Jailal as a bona fide and honest witness. I find no sufficient cause for admitting this additional evidence.

The result is that the appeals are dismissed with costs.