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Bansi Singh v. Mir Amir Ali
Factual and Procedural Background
The dispute in these appeals concerns whether certain lands and an orchard held by the Respondents under the Plaintiffs were nakdi (held in a particular tenure) as claimed by the Respondents or bhaoli (a different tenure) as contended by the Appellants. The Subordinate Judge found the lands to be nakdi based on evidence that the Appellants challenge as inadmissible. The appeals arise from this determination of tenure character.
Legal Issues Presented
- Whether the Subordinate Judge was correct in admitting the hebanama (a deed) executed by the tenant-Respondents’ grandfather as evidence against the landlord.
- Whether the statement in the hebanama regarding the nakdi character of the holding is relevant under clause (7), section 32 read with section 13(a) of the Evidence Act, given that the executant is deceased.
- Whether the nature of the holding (nakdi or bhaoli) was asserted by the deed itself, making the document a transaction by which the right or custom was asserted as required by the Evidence Act.
Arguments of the Parties
Appellants' Arguments
- The evidence on which the Subordinate Judge based his finding, specifically the hebanama, was not legally admissible against the landlord.
Respondents' Arguments
- The hebanama executed by the tenant-Respondents’ grandfather is relevant under clause (7), section 32 of the Evidence Act because the executant is dead and the document contains a statement about the nakdi nature of the holding.
- The nakdi right was asserted in the hebanama, which qualifies it as a relevant transaction under section 13(a) of the Evidence Act.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court analyzed the applicability of clause (7), section 32 read with section 13(a) of the Evidence Act regarding the admissibility of the hebanama. It emphasized that the relevant transaction must itself assert or deny the right or custom in question. The Court found that although the nakdi nature of the holding was mentioned in the hebanama, the deed did not assert the nakdi right as a condition affecting the gift’s validity—it was equally effective whether the land was nakdi or bhaoli. Therefore, the deed is not a transaction by which the right was asserted as required by the statute. The Court concluded that the Subordinate Judge erred in admitting the hebanama as evidence and that this document was central to his finding. Because it was unclear whether the Subordinate Judge would have reached the same conclusion without relying on the inadmissible evidence, the Court set aside the order and remanded the case for trial on legally admissible evidence.
Holding and Implications
The appeals are set aside and the cases are remanded to the Subordinate Judge for retrial on legally admissible evidence.
The direct effect of this decision is to vacate the previous finding regarding the tenure character of the land and orchard and require a fresh determination without reliance on the inadmissible hebanama. No broader precedent was established beyond the application of the Evidence Act provisions to the facts here.
The contest in the suits out of which these two appeals arise was whether certain, lands and an orchard standing thereon held by the Respondents under the Plaintiffs were nakdi as asserted by the Respondents or bhaoli as asserted by the Appellants.
The Subordinate Judge has found that the land and the orchard are nakdi and the point taken in this appeal is that he has arrived at this decision on evidence which was not legally admissible.
The Subordinate Judge has based his finding on a hebanama executed by the tenant-Respondents' grandfather. Primâ facie this document cannot be evidence against the landlord; but it is argued on behalf of the Respondents that the executant of the hebanama being dead, the statement contained therein as to the nakdi character of the holding was relevant under cl. (7), sec. 32 of the Evidence Act. That clause says that a statement of relevant facts made by a person who is dead is itself a relevant fact if the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in sec. 13, cl. (a). The transactions which are referred to in cl. (a), sec. 13 are “transactions by which a right or custom in question was created, claimed, modified, recognised, asserted, or denied.” For the Respondents it is argued that the nakdi right in the holding was asserted in the hebanama and therefore becomes relevant under sec. 32, cl. (7) read with sec. 13(a) of the Evidence Act.
But the words of cl. (a), sec. 13 are not “any transaction in which or in the course of which a right or custom is asserted or denied.” “The words are any transaction by which the right or custom was asserted or denied;” that is to say, the right must be asserted by the transaction itself.
Now, in the present case, the nakdi nature of the holding was not asserted by the deed of gift though it was asserted in the deed of gift. It makes no difference to the gift whether the land was nakdi or bhaoli, it was equally effective in either case.
I am, therefore, of opinion that the Subordinate Judge was wrong in admitting the hebanama as evidence. It appears to me clear that the hebanama is really the basis of his finding. In one part of the judgment he says, “it is sufficient to say, relying on the hebanama, executed by Plaintiffs' grandfather in the year 1885, that the land in suit is nakdi with trees thereon.” It is true that he refers to other evidence but he refers to the other evidence as corroborating the statements contained in the hebanama; and it is difficult to say from the terms of the judgment recorded that the Subordinate Judge would have come to the same finding if the hebanama had not been in existence; or if the hebanama had not been considered by him as relevant.
In this condition of uncertainty as to what the finding of the Subordinate Judge would have been if he had confined himself to evidence which was legally admissible, I must set aside in order and remand the cases to him that he may try them on evidence which is legally admissible.
Costs will abide the result.
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