N. Duraiswami Chetty v. N. Govindu Chetty

A preliminary decree for partition was passed on the 23rd July 1909 directing that an account should be taken of the assets and liabilities of the joint Hindu family to which the parties belonged. The decree also contained the following directions:—“Each party hereto for the purpose of taking the said accounts do, on or before the 23rd day of August 1909, file in Court his account of all the property, both moveable and immoveable, in his possession; and also of family credits and liabilities verified by the affidavit of himself or some duly qualified person; and that each party do, on or before the 6th day of September 1909 file in Court statements, surcharges and objections thereto; and all parties shall be entitled to inspect all books of account and papers and the said statements of accounts and objections.” On the 23rd August the plaintiff filed his statement of accounts. There was no statement of objections or surcharges filed by the 1st defendant, appellant before us, before the 6th September. He however made an application on the 16th November for leave to file the statement. That application was rejected by the learned Judge and he proceeded to determine the case on the evidence before him. His judgment, so far as it is material, runs as follows:—“The plaintiff's account verified by affidavit is the only evidence before me. I find that the properties available for division are those set up in the affidavit filed by the plaintiff on 23rd August 1909”. In the so called affidavit referred to, the plaintiff stated as follows:—

“The particulars given below represent to the best of my information and belief the credits and liabilities of the said joint family”. Among the particulars so given are mentioned the following items, which form the subject matter of this appeal.

This was accordingly held to be family property available for partition. In appeal it is contended before us that this statement filed by the plaintiff on 23rd August is not evidence against the 1st defendant and should not have been made therefore the basis of any decision against him. It is not denied that if it is an affidavit it would be evidence in the case. And the main question that is argued before us is whether this is an affidavit.

Order XIX, Rule 3 of the Civil Procedure Code runs thus:—

“Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated”. It is argued before us that this statement was not filed on an interlocutory application and therefore any affidavit, to be received in evidence, should be confined to facts within the plaintiff's knowledge; and secondly, even on interlocutory applications on which statements of belief may be accepted, it is essential that the grounds thereof should Be stated; and reliance is placed on the decision in J. L. Young Manufacturing Company Limited, In re. Young v. J. L. Young Manufacturing Company, Limited. This is a decision on Order XXXVIII, Rule 3 of the English Rules of Practice of the Supreme Court which runs in the same terms. In that case the Lord Chief Justice said, “I notice that in several instances the deponents make statements on their ‘information and belief’ without saying what their source of information and belief is, and in many respects what they so state is not confirmed in any way. In my opinion so called evidence on ‘information and belief’ ought not to be looked at at all, not only unless the Court can ascertain the source of information and belief but also unless the deponent's statement is corroborated by some one who speaks from his own knowledge. If such affidavits are made in future, it is as well that it should be understood that they are worthless and ought not to be received as evidence in any shape whatever; and as soon affidavits are drawn so as to avoid matters that are not evidence the better it will be for the administration of Justice” Order XIX, Rule 3 of the Civil Procedure Code is quite clear. We are therefore constrained to hold that the statement filed by the plaintiff is not an affidavit and therefore not evidence against the 1st defendant. It is conceded there is no other evidence in the case. It appears, however, from the judgment of the learned Judge, dated 15th December, that his attention was not drawn to the fact that the statement of the plaintiff was based only on information and belief though the pleader for the defendant may have argued that this statement is not evidence against him. We think, therefore, the plaintiff should be given an opportunity of proving his statements. We accordingly request the learned Judge to give the plaintiff an opportunity of adducing evidence to prove his allegations in his statement and return a finding on the question whether the plaintiff has proved that the amount aforesaid or any portion thereof is family property.

Seven days will be allowed for filing objections. The appellant prays that he may be allowed to call evidence before the learned Judge. We leave that question to be determined by him.

In compliance with the order contained in the above judgment the Honourable Mr. Justice Wallis, sitting in the Original Side of the High Court, returned the following

FINDING.

The appeal finally came on before their Lordships, Sankaran Nair and Ayling, JJ.

JUDGMENT

We accept the finding and modify the decree in accordance therewith. Each party will bear his own costs in this appeal.

Decree modified.