MARKHU MAHTO Vs. SAHARAI MAHTO

JUDGEMENT

(1.) The dispute between the parties has in this appeal been narrowed down to one point only, namely whether the lands set out in Schedule 1 of the plaint, which consist of plots Nos. 750, 751 and 753 to 756 are lands which belonged to one Bhim through whom they are claimed by the plaintiffs or they are lands belonging to defendants 21, 17 and 18. It is common ground that the plaintiffs are the reversionary heirs of Bhim and if these lands belonged to Bhim, they are entitled to a decree in regard to these lands along with the other lands in suit. It is also common ground that these lands have been recorded as the raiyati lands of defendants 21, 17 and 18 in the Record of Rights which was finally published in the year 1922.

(2.) Both the Courts below have held in spite of the entry in the Record of Rights that the lands in question belonged to Bhim and they have based their decision wholly upon a deed of gift executed on 29 October 1892, by Bhim's widow, Mt. Jamuna, in favour of her daughter Dulali. In this deed Mt, Jamuna gave a list of the properties which she was giving away to her daughter and the two Courts below have held that the fact that the lands in question were included in this list shows that the belonged to Bhim. The questions which we are asked to decide are- -first, whether the deed in question is admissible in evidence; and, secondly, whether it can be used to rebut the entry in the Record of Rights.

(3.) On the first point it was contended by the learned advocate for the respondents that the Acts that the lands were given away by Mt. Jamuna by the deed of gift amounted to a statement by her that, they were her property, and this statement is admissible under Section 32, Clause (3) Evidence Act. This clause however makes only such statements admissible in evidence as are against the pecuniary or proprietary interest of the person making it. It is contended that inasmuch as Mt. Jamuna was giving away these lands to her daughter, the requirements of this Section are fulfilled, and it should be held that the statement in question is against Jamuna's pecuniary interest. The argument appears to be a novel one and cannot be accepted. In order to determine whether a certain statement is against the pecuniary or proprietary interest of the person making it, we must look to the statement itself and not to the nature of the transaction in the course of which the statement is made.