ARJUN SUKLA Vs. JUJESTHI SUKLA

JUDGEMENT

(1.) Plaintiff is the appellant in this second appeal; It arises out of a suit for partition in respect of 253 acres of homestead land in Cuttack town bearing plot No. 74 in Khata No. 553 of the current settlement. The plaintiff claims title to a ten annaseight- pies share thereof. He claims five-annas four pies share under a deed of gift, Ext, 1, dated 7-1-41 and the other five-annas-four pies under a sale-deed, Ext. 2 dated 9-6-1944. Both the courts below have decreed the plaintiff's suit in respect of a five-annas-four-pies share, but have dismissed it in respect of the other fiveannas- four-pies share. The plaintiff has accordingly brought the second appeal in respect of the five-annas-four-pies share for which his suit has been dismissed.

(2.) The suit-plot originally belonged to three brothers, Nakfodi, Gangai and Chaitan. Defendant 1 is the son of Nakfodi. The plaintiff's case is that all the three brothers were separated and he claims five annas four pies share under Ext. 1 from the brother Chaitan, and the five annas four pies share under Ext. 2 from the daughter of Gangai. The case of the contesting first defendant is that at the family partition, Chaitan alone separated, but that the other two brothers remained joint, and that on Gangai's death his share survived to his branch and that he was accordingly entitled to the five annas four pies share of Gangai. The question, therefore, ultimately is one as to this disputed fact, namely, whether at the family partition all the three brothers became separated inter se or only the brother Chaitan separated, while the other two brothers continued to remain joint.

(3.) Both the courts below have accepted the first defendant's case on this question of fact. The point raised by the counsel for the appellant in this second appeal is that this concurrent finding of both the courts below is largely based upon the admission of one inadmissible item of evidence, namely, the recital in the gift- deed, Ext. 1. It may be mentioned that both sides gave also oral evidence of this disputed fact. As regards the documentary evidence, there were, in favour of the plaintiff's case two settlement entries, Exts. 3 and 3-A of which Ex. 3-A shows the land entered in the name of the two brothers, Jujesthi & Chaitan and of Nila Bewa, the widow of Gangai. This is relied on by the plaintiff as a strong item of evidence in his favour. As against that the defendant relies upon entries in the Municipal Registers of the years 1926-27 and 1934-35 which show only the names of Jujesthi and Chaitan, without any mention either of the widow, Nila Bewa or her daughter Bacha, D-2 the vendor under Ext. 2. What, however, has influenced both the courts below most is a fecital in the gift- deed, Ext, 1. As already stated that was a document, executed ay the brother Chaitan in favour of the plaintiff who was his sister's son, and whom, it would appear he was bringing him up as his foster-son. In that document, he has, while conveying his own five annas four pies share, made an incidental' recital that the other ten annas eight pies share belongs to the first defendant, Jujesthi. In so reciting, he has made a reference to how Jujesthi became vested with that ten annas eight pies share. Both the courts below have taken that recital to mean that it amounts to an assertion that at the date of the original partition between the three brothers, the two shares of Nakfodi and Gangai remained joint and that only Chaitan's share was separated and they have treated this recital as admissible under Section 32, Evidence Act, on the footing of its being a statement by Chaitan against his interest. The recital has been read to us and it does not at all appear to be a recital categorically asserting that there has been a partition only of Chaitan leaving the other two brothers joint at the time of the original partition as asserted in the first defendant's case. But apart from the meaning of that recital, the view taken by the courts below that it is a statement against the interest of the executant thereof and that, therefore, it is admissible under Section 32, Evidence Act appears to be clearly unsupportable. The courts below seem to think that because in a future contingency the plaintiff might be an heir to the property, if the two brothers Nakfodi and Gangai were separate as the plaintiff claims, & because Chaitan was interested in his foster-son, as he called the plaintiff, the statement by Chaitan must be taken as against his interest. The courts below are obviously making a confusion between the interest required for the admissibility of a statement under Section 32 and the interest that is relevant in judging the credibility of a statement and the weight to be attached to it. The interest that is predicated in Section 32(3) must be one which relates to the pecuniary or proprietary interest of the person making it. It is not a kind of interest which a man may feel about a friend or a relation and it is in no sense sufficient to say that there may be some future contingency that may be affected by the statement. It must be the present pecuniary or proprietary interest of the person making the statement that must be affected by the statement in order that the same may be admissible.