MT HORIL KUER Vs. RAJAB ALI

JUDGEMENT

(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, Section 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 to 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 Abadom V/s. Abadom (1857) 53 ER 351, whore 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 thefile though in the circumstances he would be disposed to attach less weight to it than to the other evidence. In Rex V/s. Doolin Jebb CC 123 a prosecution witness was taken seriously ill while under cross-examination; 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 Davies V/s. Otty (1865) 55 ER 875 the Master of the Rolls said: The evidence of Susannah Davies must be admitted. It appears that her evidence was given on the 28 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 hearing on this point are scanty. In one case, J. Boisagomoff V/s. Nahapiet Jute Company, Ltd. (1902) 29 Cal 587, 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 W. Stewart V/s. Now Zealand Insurance Co. Ltd. 16 CWN 991 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 Maharaja of Kolhapur V/s. S. Sundaram Ayyar 1925 Mad 497 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.