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1929 Supreme(SC) 83
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BUCKMASTER, VISCOUNT DUNEDIN, LORD TOMLIN, SIR GEORGE LOWNDES, AND SIR BINOD MITTER.
DAL BAHADUR SINGH - Appellant
Versus
BIJAI BAHADUR SINGH (DEFENDANTS) - Respondents
On appeal from the High Court at Allahabad.
Decided On : Oct. 31. 1929.
Solicitors for appellants:Barrow, Rogers & Nevill. Solicitors for respondents: Douglas Grant & Dold.
Admissibility of a deceased person's statement under Sections 32(3) and 33 of the Evidence Act requires proof of proprietary interest or the adverse party's right and opportunity to cross-examine. Adoption displacing natural succession requires strict proof, especially after a significant time lapse.
Headnote:(A) Indian Evidence Act, 1872 - Section 32(3) - Statement of a deceased person - Admissibility requires the statement to be against the pecuniary or proprietary interest of the maker - A widow's assertion of authority to adopt to pass property to her own relations is not considered to be against her interest.
(B) Indian Evidence Act, 1872 - Section 33 - Evidence in previous proceedings - Admissibility is contingent upon the adverse party having both the right and the opportunity to cross-examine on the specific issue - If the issue was not substantially the same or cross-examination was precluded, the evidence is inadmissible.
(C) Hindu Law - Adoption - The onus of proof to displace natural succession through adoption is grave and requires strict scrutiny, particularly when there is a significant time lapse between the alleged grant of power and its exercise.
Facts of the case:
A widow purported to adopt a son to her husband who had died over fifty years prior. While the adoption ceremonies were not disputed, the authority to adopt was challenged. The evidence relied upon consisted of the widow's statement during mutation proceedings and the testimony of an elderly witness.
Findings of Court:
The widow's statement in mutation proceedings was inadmissible under Section 32(3) as it was not against her interest, and inadmissible under Section 33 as the adverse party lacked the right and opportunity to cross-examine on the specific issue of authority. The testimony of the single elderly witness was insufficient to meet the high burden of proof required to displace natural succession.
Issues: Whether the widow had oral authority from her deceased husband to adopt, and whether the evidence provided was admissible and sufficient to prove such authority.
Ratio Decidendi: Statements made by a widow to facilitate the transfer of property to her own relations via adoption are not against her proprietary interest. Under Section 33, the requirement for the adverse party to have both the right and the opportunity to cross-examine must be strictly satisfied. The burden of proof for adoption, especially when displacing natural succession after a long delay, is exceptionally high and cannot be satisfied by solitary, unreliable witness testimony.
Result: Appeal allowed.
Legal Category Hierarchy
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family law
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adoption
- authority to adopt
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adoption
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practice and procedure
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evidence
- admissibility of statements
- standard of proof
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evidence
Judgement
Appeal (No. 105 of 1928) from two decrees of the High Court (December 23, 1926) reversing a decree of the Subordinate Judge of Allahabad (July 7, 1923).
The only question arising in the appeal was whether it was established that Musammat Sultan, who died in October, 1915, having in October, 1914, adopted the respondent-defendant No. 6 to her husband Ajit Singh, who had died in 1860, had an oral authority from him to make an adoption. Both Courts in India found that the plaintiff-appellants father was the nearest reversioner to Ajit Singh at the death of his widow, also that the adoption was in fact made in accordance with the due formalities of HINDU LAW . On the question whether the widow had authority to adopt the Courts differed. The trial judge found that it was not established that she had authority. Two sets of defendants filed appeals which the High Court (Dalai and Pullan JJ.) heard together and allowed, finding that the widow had oral authority to adopt.
The facts of the case and the ground of the decision of the High Court appear from the judgment of the Judicial Committee.
1929. Oct. 29. Dube for the appellants. The widows state ment during the mutation proceeding was not admissible under the Indian Evidence Act, s. 33. First, because having regard to Act III. of 1901, ss. 34, 36, 89, under which Act the proceeding was held, it was not a "judicial proceeding" within the meaning of s. 33 of the Evidence Act Nirman Singh v. Rudra Partab Narain Singh . (( 1926) L. R. 53
I. A. 220, 227.) Secondly, because the proceeding related merely to possession, and consequently the question at issue was not substantially the same. Thirdly, because the reversioners had not " the right and opportunity to cross-examine." Nor was the statement admissible under s. 32, sub-s. 3. The statement by the widow that she had authority to adopt was not contrary to her interest. Even the statement that she had adopted was not really one contrary to her interest considering her age and the fact that she adopted her brothers grandson. In any case her statement in the circumstances was of little or no weight. No reliance can be placed upon the only other evidence adduced. It was for the respondents to prove the validity of the adoption by the clearest evidence; that was especially so seeing that it was made over fifty years after Ajit Singhs death Sootrugun Sutputty
v. Sabitra Dye ((1834) 2 Knapp, 287.); Chundermonee Debia v. Munoheenee Debia . (( 1861) 8 Moo. I. A. 477.)
Hyam for the respondents. The widows statement in the mutation proceeding was against her interest, as it affirmed the validity of the transfer of possession away from her; it was therefore admissible under s. 32, sub-s. 3. The statement was against her material interest whatever motives may have induced her to make the adoption. Further, it was admissible under s. 33. It was relevant to the question then being dealt with, even if it was not necessary. Cross-examination took place, though apparently it was stopped. The conditions of s. 33 are satisfied if the statement has been cross-examined to, whether there is a right to do so or not. The evidence of the old man corroborated the widows statement, and cannot properly be rejected. In the cases referred to in Knapp and in Moore there was no satisfactory evidence that any adoption took place in fact, whereas that is established in this case.
No reply was called for.
The judgment of their Lordships was delivered by
LORD BUCKMASTER. Their Lordships do not desire to hear the appellants further, for, in their opinion, this appeal must succeed. It is brought against two decrees of the High Court of Judicature at Allahabad, dated December 23, 1926, both of which involve the only point that is now open for consideration—namely, whether or not power was conferred upon Musammat Sultan Kunwar by her husband Ajit Singh, to make an adoption to him.
The facts of the case are these Ajit Singh died in 1860, leaving Musammat Sultan Kun
