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1933 Supreme(SC) 40
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BLANESBURGH, LORD TOMLIN, LORD RUSSELL OF KILLOWEN, SIR LANCELOT SANDERSON, AND SIR GEORGE LOWNDES.
KRISHNAYYA RAO - Appellant
Versus
RAJA OF PITTAPUR - Respondents
On Appeal from the High Court at Madras.
Decided On : June 30, 1933.
Solicitors for appellants :Hy. S. L. Polak & Co. Solicitors for respondent: Douglas Grant & Dold.
Section 33 of the Indian Evidence Act's term "representatives in interest" is broader than "privity of estate," allowing evidence from previous suits if the first party's interest was consistent and identical to the second party's regarding the specific issue in question.
Headnote:(A) Indian Evidence Act, 1872 - Section 33 - Admissibility of evidence given by a witness in a previous judicial proceeding when the witness is dead - Interpretation of "representatives in interest" - The first proviso to Section 33 refers to the earlier proceeding - The phrase "representatives in interest" is not limited to privity of estate or succession of title - It encompasses situations where a party to the first proceeding represented the interest of a party to the second proceeding in relation to the question in issue. (Paras 34-40)
(B) Conditions for representation in interest - Evidence is admissible if: (1) the interest of the party to the second proceeding in the subject-matter of the first proceeding is consistent with and not antagonistic to the interest of the party to the first proceeding, and (2) the interest of both in the answer to the particular question in issue is identical. (Para 41)
(C) Purpose of the proviso - To ensure that the evidence is not admitted unless the person who cross-examined the witness either is the party to the later proceeding or represented their interests, effectively fighting their battle as well as their own. (Para 42)
Facts of the case:
A suit was instituted to declare an adoption invalid, where the plaintiff claimed to be the natural-born son of a deceased ruler and thus the nearest reversioner to an estate. The defendants challenged the plaintiff's status as the natural-born son and sought to admit evidence from a previous suit. In that earlier suit, an adopted son of the deceased ruler had challenged the plaintiff's sonship. The witnesses from the first suit were deceased. The lower courts rejected the evidence, citing a lack of privity of estate between the party in the first suit and the party in the second suit.
Findings of Court:
The evidence recorded in the earlier suit is admissible under Section 33 of the Indian Evidence Act. The party in the first suit was a representative in interest of the party in the second suit regarding the specific issue of the plaintiff's sonship.
Issues: Whether evidence from a previous judicial proceeding is admissible under Section 33 of the Indian Evidence Act when the parties are not identical and there is no privity of estate, provided the party in the first suit represented the interest of the party in the second suit regarding the specific question in issue.
Ratio Decidendi: The court held that "representatives in interest" is an elastic phrase, broader than the English law concept of "privy in estate." In the context of joint family interests, a party in a first proceeding can represent a party in a subsequent proceeding if their interests are consistent and identical regarding the specific question in issue. The first proviso is satisfied if the party who cross-examined the witness was effectively fighting the battle of the party to the subsequent proceeding.
Result: Evidence held admissible; findings on sonship set aside; case remanded to the High Court.
Appeal (No. 44 of 1930) from a decree of the High Court made upon an appeal under clause 15 of the letters patent (March 7, 1928) affirming a decree of the Court in its appellate jurisdiction (October 26, 1926), which affirmed a decree of the District Judge of Godavari (October 5, 1920); and petitioner to admit excluded evidence.
The suit was instituted in 1915 by the respondent against the appellants, the second appellant being in possession of the estate of Gollaprolu for a widows estate, and the first appellant having been adopted by her to her deceased husband Venkata Rao in 1914. The plaintiff, claiming to be the nearest reversioner entitled to succeed to Gollaprolu, prayed for a declaration that the adoption was invalid. The defendants by their written statement denied that the plaintiff was, as he claimed to be, the aurasa son of the Raja of Pittapur, who died in 1890, and contended that consequently he could not maintain the suit; issues upon that question were framed.
The only question determined, or argued, upon the present proceedings was whether under s. 33 of the Indian Evidence Act, 1872, the evidence given by witnesses, since dead, in a suit of 1891 was admissible. The suit of 1891 was instituted by Ramakrishna, the adopted son of the late Raja of Pittapur, against the Court of Wards and the present respondent, who claimed to be the subsequently born son of the late Raja ; the claim in the suit was to succeed to the property of the late Raja. The evidence in question had been given upon an issue whether the present respondent was the aurasa son of the late Raja. That issue had been determined against the present respondent by the trial judge, but upon appeal the High Court held that he was entitled to succeed as persona designata under the will of the late Raja; and consequently the Court did not determine the issue ; upon appeal to the Privy Council the judgment of the High Court was affirmed (L. R. 26 I. A. 83). The late Raja had granted the estate of Gollaprolu in 1869 to his brother Venkata Rao, who died childless in 1871.
The facts as to the two suits appear more fully from the judgment of the Judicial Committee, which also sets out the material parts of s. 33 of the Indian Evidence Act, 1872.
The trial judge and the learned judges in both appeals held that the evidence in question was not admissible and that upon the evidence adduced in the suit the respondent was the aurasa son of the late Raja of Pittapur. Upon the letters patent appeal (reported at I. L. R. 51 M. 893) it was held by a majority that the adoption was invalid.
Upon the opening of the present appeal the Judicial Committee directed that the admissibility of the evidence given in the suit of 1891 should first be argued.
1933. May 1, 2, 4, 8, 9, 11, 12, 15, 16. Dunne K.C. and Subba Row for the appellants. Upon the true construction of the first proviso to s. 33 of the Evidence Act, the " proceeding" there referred to is the earlier proceeding, as the proviso uses the word " was " not " is " ; throughout the section the later proceeding is referred to as " the subsequent proceeding." The question therefore is whether in the suit of 1891 Ramakrishna represented the interest of Krishna in the present suit, not whether Krishna represented the interest of Ramakrishna, or was his privy in estate. It is not material that the property in suit was different in the two suits, nor that Krishna was not born at the date of the first suit. In the suit of 1891 Ramakrishna in relation to the issue as to the respondents sonship represented all the reversioners to the late Raja, and that issue is common to both suits. Krishna as the adopted son of Venkata Rao was one of the reversioners both as to the partible and impartible estate. Even with regard to the impartible property every member of the joint family had an interest greater than a mere spes successionis; Shiba Prasad Singh v. Prayag Kumari Debi . (( 1932) L. R. 59 I. A. 331, 345.) If the issue
