Admissibility of Boundary Recitals in Third-Party Documents under Indian Evidence Law

The Admissibility of Boundary Recitals in Documents Between Third Parties under Indian Evidence Law

Introduction

In the realm of property litigation in India, disputes concerning boundaries are frequent and often complex. A critical aspect of evidence in such disputes revolves around the admissibility of recitals of boundaries found in documents to which the current litigants are not parties (i.e., documents executed between third parties or strangers). These recitals, often found in sale deeds, mortgage deeds, or other instruments of title pertaining to adjacent properties, may describe a boundary of the property being transacted by reference to the property of one of the litigants. The central legal question is whether, and under what circumstances, such statements can be admitted as evidence to prove the title, possession, or extent of the property of a party to the suit who was not a party to the document containing the recital. This article undertakes a comprehensive analysis of this issue under the Indian Evidence Act, 1872, and pertinent judicial pronouncements from Indian courts.

The General Rule: Presumption of Inadmissibility

The preponderant judicial view in India is that recitals of boundaries in documents executed between third parties are generally inadmissible in evidence to prove the title or possession of a person who is not a party to that document.[1] This principle is rooted in fundamental tenets of the law of evidence, primarily the doctrine of res inter alios acta alteri nocere non debet (a matter transacted between others ought not to injure another party).

Rationale: Res Inter Alios Acta and Concerns of Reliability

The Rajasthan High Court in Madanlal v. Durgadutt[2] articulated two principal reasons for this general rule of inadmissibility. Firstly, it would be unjust to bind or affect a party by a recital made in a document over which they had no control and which was executed entirely behind their back.[3] A party to a suit cannot be expected to be aware of, much less contest, statements made in private documents between strangers.

Secondly, third parties describing boundaries of their own property by reference to adjoining lands may not have a compelling reason to be meticulously accurate about the ownership or precise extent of those adjoining lands. Such descriptions may be based on imperfect knowledge, hearsay, or casual assumptions, leading to potential inaccuracies.[4] As observed by the Patna High Court in Sakaldeep Rai And Others v. Sarjug Rai And Others, quoting Lord Parker in Shrinivasdas Bavri v. Meherbai, "ordinarily recitals in a deed were not evidence against third parties".[5]

Analysis under the Indian Evidence Act, 1872

The admissibility of any evidence in Indian courts is governed by the Indian Evidence Act, 1872 (hereinafter "the Act"). For recitals of boundaries in third-party documents to be admissible, they must fall within one of the exceptions to the hearsay rule or specific relevancy provisions of the Act.

Section 32(3): Statements Against the Interest of the Maker

Section 32(3) of the Act permits the admission of a statement made by a person who is dead, cannot be found, has become incapable of giving evidence, or whose attendance cannot be procured without unreasonable delay or expense, if such statement was against the pecuniary or proprietary interest of the person making it. For a boundary recital in a third-party document to be admissible under this sub-section, several conditions must be met.

The Patna High Court in Soney Lal Jha v. Darabdeo Narain Singh[6] held that a mere statement of a boundary (e.g., "the orchard of Soney Lal Jha") in a sale deed between third parties is not, in itself, a statement against the proprietary interest of the executant of that deed. The court reasoned that such a description does not necessarily curtail or limit the proprietary rights of the person making the statement over the property being transacted. It merely identifies a geographical limit. For the statement to be against proprietary interest, it must, for instance, acknowledge a lesser extent of the maker's own property or acknowledge a right in another that diminishes the maker's own.[7]

The Privy Council in Sm. Savitri Devi v. Ram Ran Bijoy[8] clarified that the principle underlying Section 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 was reiterated by the Karnataka High Court in The Church Of Our Lady Of Immaculate Conception v. The State Of Mysore,[9] which held that for admissibility under Section 32(3), it must be shown that the statement was a relevant fact, it was against the proprietary interest of the person making it, and the maker was aware that the statement was against their interest at the time of making it. A simple description of an adjoining property often fails these stringent tests.

Section 13: Facts Relevant to the Existence of a Right or Custom

Section 13(a) of the Act makes relevant any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence. Section 13(b) pertains to particular instances in which the right or custom was claimed, recognized, or exercised, or in which its exercise was disputed, asserted or departed from.

Courts have generally held that a mere recital of a boundary in a document between strangers does not constitute a "transaction" or a "particular instance" by which a right of the adjoining owner (a party to the suit) was claimed, recognized, or asserted within the meaning of Section 13.[10] In Madanlal v. Durgadutt, the Rajasthan High Court explicitly stated that such recitals do not fall under Section 13.[11] This view was echoed by the Karnataka High Court in Kalappa Shiddappa Uppar And Others, v. Bhima Govind Uppar And Others.[12]

The Madras High Court in V.A Amiappa Nainar (Died) And Others v. Anamalai Chettiar (Died) And Others,[13] reviewing conflicting decisions, noted the observation of Ayling, J. in Venkataraya Gopala Raju v. Fota Narasayya that a sale deed between strangers describing suit land as belonging to another "is a transaction, but it is not a transaction by which the right of the [other person] is asserted, claimed or even recognised; it is a transaction in which the said right is incidentally mentioned." Thus, incidental mentions of boundaries are typically outside the scope of Section 13.

Section 11: Facts Inconsistent with or Making Relevant Facts Probable

Section 11 of the Act deals with facts not otherwise relevant which become relevant if they are inconsistent with any fact in issue or relevant fact, or if they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. Attempts to admit boundary recitals in third-party documents under Section 11 have largely been unsuccessful. The Calcutta High Court in Chooni Lall Khemani v. Nilmadhab Barik And Others[14] indicated that earlier attempts to make such documents admissible under Section 11(2) (now Section 11) were not sustained. The reasoning often is that such recitals, being by strangers and potentially inaccurate, do not possess the requisite degree of probability or improbability concerning the title or possession of the litigating party.

The Madras High Court in Rangayyan And Another v. Innasimuthu Mudali And Others[15] listed Section 11 as one of the potential (though exceptional) gateways for admissibility, but the prevailing view, as seen in cases like M. Vedamanickam Nadar v. M. Sudalaikannu Thevar,[16] is that such recitals are not ordinarily admissible under Section 11.

Sections 32(2) and 32(7): Other Clauses of Section 32

Section 32(2) makes relevant a statement made by a deceased or unavailable person in the ordinary course of business. While boundary recitals are made in the course of preparing a legal document, it is debatable whether the specific description of an *adjoining* property (owned by a stranger to the transaction) is made "in the ordinary course of business" with the kind of systematic regularity and duty that this clause usually implies for entries in account books or professional records.

Section 32(7) allows admissibility if the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, clause (a). Since, as discussed, a mere recital of a boundary in a third-party document is generally not considered a transaction under Section 13(a) concerning the adjoining owner's rights, Section 32(7) also offers limited assistance.

Sections 155 and 157: Corroboration and Contradiction

Recitals in third-party documents may become relevant under Section 157 of the Act to corroborate the testimony of a witness (if, for instance, the maker of the statement in the document subsequently testifies) or under Section 155 to impeach the credit of a witness.[17] However, this is for a collateral purpose (credibility of a witness) and not for directly proving the truth of the boundary recital as to title or possession.

Section 90: Presumption as to Ancient Documents

Section 90 of the Act provides that where a document purporting or proved to be thirty years old is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

It is crucial to note that Section 90 only raises a presumption as to the due execution and attestation of an ancient document. It does not make the contents of the document, particularly recitals concerning third parties, automatically admissible as true or relevant if they are not otherwise admissible under other provisions of the Act.[18] The relevancy and admissibility of the contents must first be established independently.

Judicial Precedents: Evolution and Consensus

Early Views and Divergence

Historically, there was some conflict of opinion among Indian High Courts regarding the admissibility of such recitals. Early cases sometimes leaned towards admissibility under various sections of the Act. For instance, the Madras High Court in V.A Amiappa Nainar[13] acknowledged prior conflicting decisions within its own jurisdiction, necessitating a referral to a larger bench to settle the law.

The Prevailing Stance: A Restrictive Approach

Over time, a strong consensus has emerged, favoring a restrictive approach. The "heavy preponderance of opinion," as noted in Madanlal v. Durgadutt,[2] is that recitals of boundaries in documents between third parties are inadmissible to prove the title of a party mentioned therein as an adjoining owner. This view has been consistently upheld by various High Courts, including Patna,[5][6] Rajasthan,[2] Calcutta,[14] Karnataka,[9][12] and Madras.[13][16]

The courts emphasize that while exceptions exist, particularly under Section 32(3), the conditions for these exceptions are stringent and must be strictly proven. The general rule remains one of inadmissibility due to concerns about fairness to the party affected by the recital (who had no part in its creation) and the inherent unreliability of such statements made by strangers regarding properties not their own.

Distinction from Recitals in Inter Partes Documents

It is important to distinguish the situation discussed above from cases where the recital of a boundary occurs in a document inter partes (i.e., between the parties to the current suit) or in a document to which one of the current litigants was a party. In such scenarios, the recital may be admissible as an admission under Sections 17 to 21 of the Act against the party who made it or was privy to it. The Rajasthan High Court in Madanlal v. Durgadutt[17] observed that where a recital is in a document inter partes, it would be a joint statement relevant as an admission; if between a party and a stranger, it would be relevant against the party as an admission but not in their favor. The present analysis, however, is confined to documents strictly between third parties.

Conclusion

The law in India regarding the admissibility of boundary recitals in documents between third parties is well-settled towards a general presumption of inadmissibility. Such recitals, made without the participation or knowledge of the affected litigant and by individuals who may lack precise information about adjoining properties, are considered inherently unreliable for proving title or possession. While the Indian Evidence Act, 1872, provides certain exceptions, notably under Section 32(3) for statements against the interest of the maker, the threshold for invoking these exceptions is high. Courts require rigorous proof that the specific conditions of these statutory exceptions are met, particularly that the recital was indeed against the pecuniary or proprietary interest of its maker and that the maker was conscious of this fact. The overarching principle remains that parties asserting rights to property must do so through direct and reliable evidence, rather than relying on incidental statements made by strangers in unrelated transactions. This judicial stance upholds fairness and ensures that findings on property rights are based on evidence that is both relevant and robust.

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