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Mt. Horil Kuer v. Rajab Ali
Structured Summary of the Provided Opinion
Factual and Procedural Background
The litigation concerned whether an alienation of immovable property made by Mt. Jadubansi Kuer was a valid alienation "for consideration and for necessity." The courts below found the alienation valid, relying on the deposition of a witness, Jailal Pande. The deposition had been recorded by a Commissioner because the witness was too ill to appear in open court; he was examined-in-chief and partially cross-examined, but died before cross-examination could be completed. The appellant challenged the admissibility of Jailal's deposition and argued it should be expunged. In the second appeal, the appellants sought to admit two additional documents (a lease dated 1874 and a certified copy of a deposition from 1892) on affidavit, asserting they were discovered too late for the courts below and would discredit aspects of Jailal's evidence. The trial court(s) and the appellate courts below had relied on authorities and treatises regarding the admissibility and weight of such uncompleted depositions.
Legal Issues Presented
- Whether the deposition of Jailal Pande—recorded by a Commissioner because the witness was too ill to attend court, examined-in-chief, partially cross-examined, and who died before cross-examination could be resumed—is admissible in evidence and, if admissible, what weight it should be given.
- Whether newly produced documents in the second appeal (a purported 1874 lease and a certified copy of an 1892 deposition) should be admitted as fresh evidence and whether they sufficiently discredit Jailal's testimony to affect the result.
Arguments of the Parties
Appellant's Arguments
- The deposition of Jailal Pande was not properly evidence because it was not taken in open court and the witness died before cross-examination could be completed; therefore the deposition should have been expunged from the record.
- In the second appeal the appellants produced two documents (a lease dated 1874 and a certified copy of a deposition from 1892) purportedly discovered too late for the courts below; it was asserted these would discredit Jailal's testimony as to the date of death of Kirparam and thus should be admitted.
Court's / Opposing Position (as reflected in the opinion)
- The courts below relied on authorities and treatises (Woodroffe & Amir Ali's note, Taylor on Evidence, Phipson) indicating that where a witness dies or falls ill before cross-examination his evidence may be admissible though its weight may be slight.
- It was contended that the deposition could be received in evidence and that the question of weight should depend on the circumstances of the case rather than a categorical exclusion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Woodroffe and Amir Ali's Indian Evidence Act (Edn. 9, p. 983) | Note stating that where a witness dies or falls ill before cross-examination his evidence will be admissible though its weight may be slight. | The courts below relied on this note; the opinion refers to it as a basis for receiving the deposition and treats it as supportive of admission subject to assessment of weight. |
| Taylor on Evidence, S. 1469 | Textual reference underlying the note in Woodroffe and Amir Ali regarding admissibility where cross-examination cannot be completed. | The opinion notes Taylor as one of the authorities underlying the rule, and discusses reported cases cited by Taylor that show differing outcomes depending on circumstances. |
| Phipson's Law of Evidence (Edn. 7, p. 459) | Textual reference used in support of the proposition that uncompleted testimony may be admissible but weight varies; includes reference to a case where Farwell, J. rejected a deposition. | The opinion discusses Phipson's reference to a case where a deposition was rejected and acknowledges that such authorities include both acceptance and rejection depending on context; used to show the authorities are not unanimous and weight depends on circumstances. |
| Unreported case (Farwell, J.) cited in Phipson | Example where Farwell, J. rejected in toto the deposition of a plaintiff who fainted and could not be cross-examined. | The opinion notes this case as an instance where the deposition was rejected, and observes that there might have been suspicion the plaintiff was evading cross-examination; used to illustrate that rejection can occur where circumstances suggest impropriety. |
| 53 ER 351 | Affidavit by a deponent who had since died: affidavit ought to have been filed earlier so opposite party could have cross-examined; held that the affidavit could not be removed though it might merit less weight. | The opinion cites this as authority for admitting a statement though attaching less weight due to lack of cross-examination and possible procedural deficiency (late filing). |
| Jebb. C.C. 123 | Prosecution witness taken seriously ill while under cross-examination; majority held conviction based on his evidence was valid. | The opinion cites this as a leading case showing that evidence given by a witness who became ill during cross-examination may nonetheless support a conviction/decision; used to support admissibility. |
| 55 ER 875 (Master of the Rolls, on Susannah Davies) | Statement that evidence given and where witness died shortly after (making cross-examination impossible) must be received if there was no impropriety in examining her; treat it same as any other evidence which due to circumstances had not been or could not be cross-examined. | The opinion quotes this passage approvingly to show that admission of such evidence is proper where there was no suggestion of impropriety or deliberate avoidance of cross-examination. |
| 5 CWN 230 | Instance where a deposition with incomplete cross-examination was excluded from consideration (report apparently incomplete). | The opinion notes this instance where a deposition was excluded but observes the case was not fully reported and apparently has not been followed; thus it is recorded but not treated as controlling. |
| 16 CWN 991 | Held that the fact a witness had not been cross-examined was no bar to reception of his deposition, particularly where the opposite party perhaps wilfully abstained from cross-examining. | Used to illustrate that admissibility may depend on the conduct of the opposing party and that lack of cross-examination does not automatically render deposition inadmissible. |
| 48 Mad 1 | Directly in point: witness ill during examination, cross-examination adjourned after a few sentences and the witness died before it could resume; held evidence admissible but value depends on circumstances — untested evidence "can have no value" on some points; weight depends on circumstances. | The opinion regards this decision as directly in point and endorses its formulation that such evidence is admissible but probative value depends on the circumstances of each case; the opinion follows this approach. |
| 1929 Lah 840 | Followed the decision in 48 Mad 1 on the same point. | The opinion records that 1929 Lah 840 followed 48 Mad 1, and treats that line of authority as consistent with the view that admissibility is permissible and weight is fact-dependent. |
Court's Reasoning and Analysis
The court engaged in a comparative analysis of authorities and reported instances where depositions or affidavits were either admitted or rejected when cross-examination was not completed or possible. The key analytical points reflected in the opinion are:
- The court recognized conflicting authorities: some cases and text references show rejection of uncompleted depositions (e.g., a case mentioned by Phipson where Farwell, J. rejected a deposition; 5 CWN 230), while other authorities permit admission but advise caution as to weight (e.g., 53 ER 351; Jebb. C.C. 123; 55 ER 875; 48 Mad 1).
- The court adopted the approach articulated in 48 Mad 1 (and followed in 1929 Lah 840): the correct rule is that evidence not tested by full cross-examination is admissible, but its probative value depends on the circumstances of each case. There is no rigid rule that such evidence must be given low weight in all cases.
- To determine weight, the court must look for indicia that a completed cross-examination would have seriously shaken the witness's testimony or impeached his good faith. The presence or absence of such indicia is factual and case-specific.
- Applying these principles to Jailal Pande's deposition, the court observed: (a) Jailal was the nearest presumptive male reversioner and a signatory to the document of transfer; (b) his testimony, so far as it bore on the transaction, if he had any interest at all, was against his own interest; (c) he was on his deathbed at the time of deposition, making ulterior motive to falsify unlikely; (d) some cross-examination had occurred and the incompletion was not due to the fault of Jailal or the party calling him. Given these circumstances, there was no legal objection to receiving his deposition and it was legitimate for the courts below to rely on it.
- Regarding the additional documents tendered in the second appeal (the 1874 lease and the certified copy of Rajab Ali's 1892 deposition), the court considered the asserted effect (to discredit Jailal's statement about the date of death of Kirparam). The court noted that Jailal had already said in examination-in-chief that he could not give the date and, in cross-examination, suggested it "might perhaps have been in 1864." The court held that, even if Jailal's remark about the date was erroneous, that would not in itself impugn his credibility as a bona fide and honest witness, and found no sufficient cause to admit the additional evidence at that stage.
Holding and Implications
APPEALS DISMISSED. The court dismissed the appeals and awarded costs to the respondents.
Implications:
- The court reaffirmed the principle that a witness's deposition taken outside open court, where cross-examination could not be completed due to the witness's illness or death, is admissible in evidence; however, the weight accorded to such evidence turns on the circumstances of the particular case rather than a blanket rule of exclusion.
- In applying that principle to the facts, the court found sufficient indicia of reliability in Jailal Pande's testimony (interest against self, signatory to the transfer, deathbed circumstances, partial cross-examination not attributable to the calling party) to justify the courts below in relying on his deposition.
- The court refused to admit the late documents tendered in the second appeal, finding no sufficient cause for their admission and concluding they did not sufficiently undermine Jailal's credibility to alter the outcome.
- No broad new legal rule was announced; the decision applies established authorities and emphasizes that admissibility is permitted but weight is fact-dependent. The direct effect is to leave the lower courts' factual findings intact and to dismiss the appeals with costs.
This summary is based exclusively on the content of the provided opinion. No information has been added beyond what appears in the text.
1. The substantial issue of fact in the litigation out of which these two appeals arise was whether an alienation of immoveable 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.
2. The note itself is based on Taylor on Evidence, S. 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 toto 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 53 ER 351(1), where 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 Jebb. C.C 123(2) a prosecution witness was taken seriously ill while under cross-examination i; 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 55 ER 875(3) the Master of the Bolls 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.
3. In India decisions bearing on this point are scanty. In one case, 5 CWN 230n(4), 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 16 CWN 991(5) 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 48 Mad 1(6) 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.
4. 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 or 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.
5. This decision which was followed in 1929 Lah 840(7) 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 is 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.
6. 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.
7. 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.
8. The result is that the appeals are dismissed with costs.
9. Appeal dismissed.
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