THYAGARAJAN CHETTY Vs. NARAYANA THEVAN

JUDGEMENT

(1.) THE only question arising in this appeal is one relating to the admissibility of a mortgage document, Ex. A which was put into evidence as containing a recital of a boundary which supports the plaintiff's case of title. THE document was marked in the trial Court without formal proof, but with an objection to its admissibility. It was a mortgage by three brothers, namely D.W. 2, P.W. 1 and another who is alleged to be dead, though there is no evidence so far as I can find of his death. It relates to a land, in which the present parties have no interest but to a land which is situated to the west of the land which is the subject-matter of the present suit. Now it is well established that a recital of a boundary in a document between third parties is not ordinarily admissible to prove possession or title as against a person who is not a party to the document. But this rule is subject to exceptions. THEre is a good deal of authority for the view that such a statement when contained in a document against the proprietary interest of the person making it can be admitted under Section 32(3), Evidence Act, when the executant of the document is dead: vide Ningawa V/s. Bharmappa (1899) 23 Bom. 63. THE appellant has suggested that he can rely upon this decision in the present case on the ground that the third of the three executants is dead; but unfortunately this allegation is not based on any evidence on the record. It is however contended that when the executant of the document containing a recital of boundary upon which reliance is placed is himself a witness in the case, the recital can be let into evidence under Section 157, Evidence Act, as a former statement corroborating the deposition. THE only express decision on this point to which my attention has been drawn is contained in Katabuddin V/s. Nafar Chandra . That decision does not discuss the precise terms of Section 157, but proceeds on a concession that the recital of a boundary in a document not inter partes can be admitted to corroborate a witness who himself is the executant of the document. It must however be pointed out that Section 157 does not make all previous statements admissible to corroborate the testimony of a witness but only two classes of statements: (1) a statement made by a witness relating to the same fact at or about the time when the fact took place and (2) a statement made before any authority legally competent to investigate the fact. Clearly, the second of these categories has no reference to recitals in deeds. But can it be said that a recital of a boundary in a mortgage deed is a statement made at or about the time when the fact took place? With some hesitation I think that it can. One cannot of course speak of a boundary as a fact which took place at one time or another. But what is to be got from this statement is not really the fact of the boundary but the fact that land on the boundary was at a particular time in the possession of a particular individual, and the statement in the mortgage deed that so and so was in possession of the land on such and such a boundary is in my opinion a former statement made at the time when the fact of possession was taking place - a contemporaneous statement regarding the occupation of land on the boundary. In this view, it is admissible under Section 157, Evidence Act. It follows that a piece of evidence legally admissible has been wrongly rejected by the lower Appellate Court. THE appeal is therefore allowed and the case is remanded to the lower Appellate Court for fresh disposal in the light of this judgment. Costs to abide the result.