# MST. RAMRATI KUER v. DW ARIKA PRASAD SINGH AND ORS

- **Citation:** [1967] 1 S.C.R. 153
- **Court:** Supreme Court of India
- **Decided:** 1966-08-24
- **Case number:** Civil Appeal No. 981 of 1964
- **Bench:** K. N. Wanchoo, J.C. Shah, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mst-ramrati-kuer-v-dw-arika-prasad-singh-and-ors-3805
- **Pages:** 9

## Headnote

Indian Evidence Act, 1872 (I of 1872), ss. 32, 158-Deponent's admission againsit his interest--Conscious knowledge, if necessary-Later
statement to ccmtradict, relevancy.
The appellant's mother executed a gift deed in favour of the appellant claiming that she inherited the property in 1920 on the death of her
husband, who had inherited it from her father-in-law.
The respondents
claiming title to the property filed a suit challenging the gift doeed on the
ground that the father-in-law of the dono< (mother) had survived the
husband and therefore she could not have inherited the property under
the Hindu Law as then pre.vailing. For this purpose the respondents relied
'Upon a statement, that the father-in-law had survived the husband, made by
the donor in a mortgage suit in 1925, to establish her case. When
this statement was made there was no dispute in the faimly.
On the
questions whether, (i) this statement in the mortgage suit \vas admissible
in evidence and (ii) the statement made by the donor in the gift deed
was admissibk~ to contradict the statement she made in the mortgage suit.
HELD: (i) This st~tement in the mortgage suit, which was againat
proprietary interest of the mother would be admi-s~de in evidence under
s. 32(3) of the Evidence Act, "8 she was dead.
It could not be
an
admission, so far the appellant was
concerned, but it would
certainly
be a piece of eviden~e to be taken into considerati-:>n.
The admissibility of statements under s. 32(3) of the Evidence Act
does not arise unless the party knows the statement to be against his
interest.
But the question whether the statement .was madoe consciously
with the knowledge that it was against the interest of the person making
it would be a question of fact in each case and would depend in most
cases on the circumstances in which the statement was made. [l 58 F-G;
159 A-Bl
Srlma!I Savltrl Debi v. Raman Bljoy, L.R. (1949) LXXVI I.A. 255,
Tucker v. O/dburry Urban District Council, L.R. [l912] 2 K.B. 317 and
Ward v. H. S. Pitt [1913] 2 K.B.
130, relied on.
The statement W. question was made by the mother consciously and
not at th·e instance of any one and she must, in the circumstances of
the case, be presumed to know that the statement was against her proprietary in.terest, for thereby she became the widow of the predeceased
son of her father-in-law. [159 G]
(ii) Assuming that the statements in the gift dead would be admissible
under s. HS of the Evidence Act the statement made in the mortgage
suit in 1925 carries greater weight as it was made at a time when there
was no dispute in. the family, [160 E-FJ

## Text

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MST. RAMRATI KUER
v.
DW ARIKA PRASAD SINGH AND ORS.
August 24, 1966
[K. N. WANCHOO, J.C. SHAH AND R. S.
BACHAWAT, JJ.]
Indian Evidence Act, 1872 (I of 1872), ss. 32, 158-Deponent's admission againsit his interest--Conscious knowledge, if necessary-Later
statement to ccmtradict, relevancy.
The appellant's mother executed a gift deed in favour of the appellant claiming that she inherited the property in 1920 on the death of her
husband, who had inherited it from her father-in-law.
The respondents
claiming title to the property filed a suit challenging the gift doeed on the
ground that the father-in-law of the dono< (mother) had survived the
husband and therefore she could not have inherited the property under
the Hindu Law as then pre.vailing. For this purpose the respondents relied
'Upon a statement, that the father-in-law had survived the husband, made by
the donor in a mortgage suit in 1925, to establish her case. When
this statement was made there was no dispute in the faimly.
On the
questions whether, (i) this statement in the mortgage suit \vas admissible
in evidence and (ii) the statement made by the donor in the gift deed
was admissibk~ to contradict the statement she made in the mortgage suit.
HELD: (i) This st~tement in the mortgage suit, which was againat
proprietary interest of the mother would be admi-s~de in evidence under
s. 32(3) of the Evidence Act, "8 she was dead.
It could not be
an
admission, so far the appellant was
concerned, but it would
certainly
be a piece of eviden~e to be taken into considerati-:>n.
The admissibility of statements under s. 32(3) of the Evidence Act
does not arise unless the party knows the statement to be against his
interest.
But the question whether the statement .was madoe consciously
with the knowledge that it was against the interest of the person making
it would be a question of fact in each case and would depend in most
cases on the circumstances in which the statement was made. [l 58 F-G;
159 A-Bl
Srlma!I Savltrl Debi v. Raman Bljoy, L.R. (1949) LXXVI I.A. 255,
Tucker v. O/dburry Urban District Council, L.R. [l912] 2 K.B. 317 and
Ward v. H. S. Pitt [1913] 2 K.B.
130, relied on.
The statement W. question was made by the mother consciously and
not at th·e instance of any one and she must, in the circumstances of
the case, be presumed to know that the statement was against her proprietary in.terest, for thereby she became the widow of the predeceased
son of her father-in-law. [159 G]
(ii) Assuming that the statements in the gift dead would be admissible
under s. HS of the Evidence Act the statement made in the mortgage
suit in 1925 carries greater weight as it was made at a time when there
was no dispute in. the family, [160 E-FJ
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 981 of 1964.
Ml4Sup. CI/66-11
SUPRRMI! COURT RBPOllTS
[1967] I s.c.R.
Appeal from the judgment and decree dated December
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22, 1961 of the Patna High Court in Appeal from Original Decree
No. 223 of 1957.
Bishan Narain aRd U. P. Singh, for the appellant.
Sarjoo Prasad, B. K. Saran, A. B. S. Sinha, S. K. Mehta and
K. L. Mehta for respondent No. 2.
The Judgment of the Court was delivered by
Wancboo, J. This is an appeal on a certificate granted by
the Patna High Court. A suit was brought by the plaintiffi-respondents for a declaration, and in the alternative for possession,
in respect of certain properties. It was prayed that a deed of
gift executed on July 31, 1953 by Mst. Phuljhari Kuer in favour
of the appellant Ramrati Kuer was not binding on the plaintiffsrespondents. Mst. Phuljhari Kuer was originally a defendant
but died during the pendency of the suit. The case of the respondents
was that the common ancestor of the parties Ramcharan Singh
bad three sons, namely, Ramruch, Uttim Narain and Basekhi
Singh. After the death of Ramcharan Singh, his three sons separated in status though the properties were not divided by metes and
bounds. Uttim Narain died sometime before 1900 leaving a widow
Mst. Zira Kuer but no children, and Mst. Zira Kuer in her turn
died in 1943.
Ramruch had a son Basudeo Narain. According
to the respondents, Basudeo Narain died during the life-time of
his father sometime about the revisional settlement which took
place between 1917-1920. As Basudeo Narain was the only son
of Ramruch the latter was greatly grieved on his premature death
and he left bis home about a month after Basudeo Narain's death
and thereafter disappeared from the village.
Basudeo Narain had
married twice. One of his widows was Mst. Phuljhari Kuer who
executed the gift deed of 1953 which was challenged in the suit.
The other was Mst. Sakala who died in 1950.
Mst. Phuljhari had
no children while Mst. Sakala had a daughter Ramrati Kuer who
is the appellant before us. Thus at the time of his death, Basudeo
Narain left two widows and a daughter. The case of the respondents further was that as Basudeo Narain had pre-deceased his
father, Basekhi Singh inherited the properties of the share of
Ramruch and that the two widows and the daughter of Basudeo
Narain had no right to the properties except that they w.ere entitled to maintenance. Further on the death of Mst. Zira Kuer,
Uttim Narain's share of the properties also came to Basekhi Singh.
On July 31, 1953 however Mst. Phuljhari Kuer was prevailed upon
by the appellant's husband to execute a gift deed in fa.our of Ramrati Kuer, though she had no right whatsoever to the properties.
Consequently the suit out of which the present appeal has arisen
was filed on October 5, 1953. Thus the main case of the plainti'f;-
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RAMRATJ v. D. P. SINGH (Wanchoo, J.)
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respondents was that Basudeo Narain died in the life-time of his
father and his widows and daughter had no right to any property
in which he might have had a share along with his father Ramruch
with whom he was joint and that on the death of Rarnruch the
entire share of Rarnruch was inherited by Basekhi Singh. It may
be mentioned that Basekhi Singh died in 1948 and the suit was
filed by his two sons.
The appellant contested the suit. The case of the appellant
was that there had been no separation during the life-time of
Uttim Narain and that after the death of Uttim Narain there
was a joint family comisting of
Ramruch
and
Basekhi
Singh. It was sometime before the revisional settlement that
Ramruch and Basekhi Singh separated and each had half share,
though many of the properties still remained joint. It was further
contended by the appellant that Ramruch died before his son.
Therefore Basudeo Narain succeeded to and came into possession
of half of the properties of Ramruch's share and on Basudco
Narain's death, his two widows came into possession of the same.
After the death of Mst. Sakala, Mst. Phuljhari remained in sole
possession of Basudeo Narain's properties. She executed the deed
of gift of 1953 in favour of the appellant, since then the appellant
had been in possession. Further it was stated that the appellll.nt
being the only daughter of Basudeo Narain was his legal heir and
was entitled as of right to the entire share of Basudeo Narain after
the death of Mst. Phuljhari Kuer.
It will thus be seen that the main question in dispute in this
case was whether Basudeo Narain died before or after the death
of his father Ramruch. It is not in dispute that if Basudeo Narain
died before Ramruch, the plaintiffs-respondents suit must succeed; on
the other hand, if Basudeo Narain died after the death of his father
Rarnruch the suit must fail because Basudeo Narain would succeed
to Ramruch and his two widows and daughter would in their turn
succeed to him.
On a review of the entire evidence and the conduct of the
parties for about 30 years after the revisional settlement, the trial
court came to the conclusion that Basudeo Narain had died after
his father. ·in that view the trial court dismissed the suit. There
was an appeal to the High Court by the plaintiffs-respondents and
the High Court allowed the appeal. The High Court reconsidered
the entire evidence produced by the parties and was of opinion that
the oral evidence produced was far from satisfactory and held
that if oral evidence was equally balanced or equally worthless
the side which got support from unimpeachable or reliable documentary evidence should succeed. The High Court then considered the documentary evidence and held that most of the documentary evidence was inconclusive one way or the other as to the
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[1967] l S.C.R.
order in which Basudeo Narain and Ramruch died.
But in the
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opinion of the High Court there was a statement made by Mst.
Phuljhari as far back as 1925 in a mortgage suit brought by her
and in that suit she categorically said that Ramruch left his home
a month after the death of Basudeo Narain and had not been heard
of since. The High Court strongly relied on this statement made
by Mst. Phuljhari Kuer in 1925 and held on its basis that Basudeo
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Narain had predeceased his father. In this view the High Court
allowed the appeal and declared the gift deed made by Mst. Phuljhari Kuer invalid. It also held that the appellant could not succeed
to the properties which belonged to Ramruch as the last-male
holder and therefore finally decreed the suit of the plaintiffs-respondents. As the judgment was one of reversal, the High Court
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granted a certificate to the appellant to appeal to this Court; and
that is how the matter has come before us.
No reliance has been placed on behalf of the parties on the
oral evidence, and the estimate of the High Court that the oral
evidence en both sides is far from satisfactory is not disputed before
us.
Learned counsel for the appellant however relies on certain
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circumstances appearing from the evidence to show that Basudeo
Narain must haye died after his father.
It may be mentioned that
there is no evidence as to the actual date or year of death of Basudeo
Narain or Ramruch. But it is urged that certain circumstances
show that Basudeo Narain must have died after his father Ramruch. We shall consider these circumstances one by one.
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[After considering the circumstances his Lordship proceeded:]
It will thus be seen that none of the circumstances relied on
behalf of the appellant is conclusive to show that Basudeo Narain
must have died after ·his father; at the same time it may be conceded that if all these circumstances stood by themselves without
any counter-balancing documentary evidence on the other side the
balance might have tilted in favour of the appellant's case. But
as against all this there is a statement of Mst. Phuljhari Kuer made
in 1925 which categorically shows that Basudeo Narain died during
the life-time of his father and it was thereafter that his father left
his village as he was very grieved on the premature death of his
son and thereafter he disappeared from the village. If this statement is admissible in evidence and if it can be relied upon, it completely demolishes any inference in favour of the appellant which
might otherwise have been drawn from the circumstances to which
we have referred above. It is therefore necessary to turn to the
circumstances in which this statement was made in 1925 and to
consider its admissibility as well as the value to be attached to it.
It appears that a suit was brought by Mst. Phuljhari Kuer and
Mst. Sakala Kuer widows of Basudco Narain agairst Mukhlal
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RAMRATJ v. D. P. SINGH (Wanchoo, J.)
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Singh and others in 1924. The suit was based on a mortgage
bond in favour of Basudeo Narain and the case of the widows was
that money had been ·advanced out of the personal fund of their
husband and that was how they were claiming a decree on the
basis of the mortgage. The defence was that Basudco Narain
had no personal fund of his own and that money was advanced
out of joint family fund and therefore Ramruch and other members
of the joint family should have filed the suit or should have been
made parties and as that had not been done the suit was not maintainable. Two of the issues in the case were : (i) whether the suit
as framed was maintainable, and (ii) whether the plaintiffs in that
suit had any cause of action. In that suit Mst. Phuljhari Kuer
made a statement and she stated that her husband was in the service of one Nandan Babu and the money which was advanced
was out of his earnings as such servant and that the joint family
had no concern with that money. While making a statement in
that suit Mst. Phuljhari Kuer stated as follows :-
"My husband died nine years ago.
Ramruch Singh
father of Basudeo Narain Singh went away from this
place one month after the latter's death and he has not
been heard of since then and is traceless."
It has been urged on behalf of the appellant that it was unnecessary
for Mst. Phuljhari Kuer to make such a statement in that suit after
she had already stated that the· money had come out of the earnings of Basudeo Narain, who was in the service of Nandan Babu,
and that this statement was made at the instance of Basekhi Singh
in order to establish his right to the property of Ramruch's branch.
It is true that Mst. Phuljhari Kuer had stated that money came out
of the earnings of her husband and was his personal property;
even so we cannot say that this statement was entirely uncalled
for. She had to meet the case that the money did not come from
the joint family fund and that it was unnecessary therefore to implead
other members of the family. It seems to us that to explain why
other members of the family and particularly Ramruch was not
joined in the suit she stated about the death of her husband and
about the disappearance of Ramruch soon after her husband's
death. The appellant tried to prove that this statement was made
at the instance of Basekhi Singh. In that connection one witness,
namely, Jagdamba Sahai (D.W. 11) was examined and he tried
to make out that Mst. Phuljhari Kuer was tutored by her counsel
in that case at the instance of Basekhi Singh to make this statement so that Basekhi Singh's interest in the properties of Ramruch
might not be defeated. We have read the statement of Jagdamba
.Sahai and are in agreement with the High Court that it is impossible
to believe that statement. It is enough to say that though Jagdamba Sahai pretended to be the clerk of the counsel he had to
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(I %7] 1 S.C.R.
admit that he had no card to work as clerk in 1924 and 1925. He bad
also to admit that he was sitting outside in the verandah while
the talks which he says he heard took place in a room five or six
yards away. He also admitted that the counsel and Mst. Phuljhari
were not talking loudly and that he heard something and not everything. His evidence is clearly false and we cannot believe that the
statement in question was made at the instance of Basekhi Singh.
Further if it were true that Basekhi Singh was keen to get this
statement in order that his right to the properties left by Ramruch
might not be jeopardised, it is strange that he took no steps for
about 23 years that he lived after this statement was made to get
his name mutated in revenue papers. As we have already indicated
there was no trouble in this family so long as Basekhi Singh was
alive and in the circumstances we are not prepared to believe that
this statement was made at the instance of Basekhi Singh
who at any rate took
no
advantage of it during his lifetime.
It is however urged that this statement is not admissible and
in any case no value should be attached to it, firstly because it is
not proved that Mst. Phuljhari Kuer knew that she was making
a statement against her interest, and secondly, because this statement is contradicted by her in her statement in the gift deed of
1953.
Under s. 32 (3) of the Indian Evidence Act, No. 1 of 1872,
a statement of a person who is dead is admissible when the statement is against the pecuniary or propnetary interest of the person
making it, or when if true, it would expose him or would have
exposed him to a criminal prosecution or to a suit for damages.
Now there is no doubt that this statement of Mst. Phuljhari Kuer
is against her proprietary interest. . Therefore it would be admissible in evidence under s. 32 (3) as she is dead. Of course, it would
not be an admission so far as the appellant is concerned; but it
would certainly be a piece of evidence to be taken into consideration. But it is said that before the statement can be admissible
it must be shown that the person making it knew that it was against
his pecuniary or proprietary interest. In this connection reliance
has been placed on Srimati Savitri Debi v. Raman Bijoy(I) where
it has been held that "the principle upon which hearsay evidence
is admitted under s. 32 (3) is that a man is not likely to make a
statement against his own interest unless true, but this sanction
does not arise unless the party knows the statement to be against
his interest." This statement of law is based on two earlier English
decisions in Tucker v. Oldburry Urban District Council{Z) and
Ward v. H.S. Pitt.(') Accepting this to be the correct statement
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(I) L.R. (1949) LXXVI I.A. :m.
(2) L.R. [1912} 2 K.B. 317.
(3) [191312 K.B. 130.
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of law with respect to admissibility of statements under s. 32 (3)
of the Indian Evidence Act, we may add that the question whether
the statement was made consciously with the knowledge that it
was against the interest of the person making it would be a question
of fact in each case and would depend in most cases on the circumstances in which the statement was made, except when the
statement is categorical in terms as for example, "I owe so much
to such and such person." There can hardly be any direct evidence
to show that the person making the statement in fact knew that
the statement was against his interest and so in most cases
knowledge would have
to be inferred from the surrounding
circumstances.
We have therefore to see whether Mst. Phuljhari Kuer can
be said to have known when she made the statement in 1925 that
it was against her proprietary interest. There was no dispute
in the family at the time when the statement was made. The law
at the time was perfectly clear that a predeceased son's wife had
no interest in the property left by her father-in-law, except of course
the right to maintenance. There is no reason to suppose that
Mst. Phuljhari did not know that by making such a statement
she would become the widow of a predeceased son of her fatherin-law and if that was so there is no reason to suppose that she
would not know the well-established Hindu law that a predeceased
1mn's widow has no interest in her father-in-law's property except
for maintenance. In the circumstances once it is held that the
statement was not made at the instance of Basekhi Singh it must
follow in the absence of proof that Mst. Phuljhari Kuer did not
know the effect of what she had stated that she had made the statement consciously knowing what she was stating and also knowing
that the effect of her statement that her husband predeceased her
father-in-law, would be against her proprietary interest. We are
therefore of opinion that the statement in question was made by
Mst. Phuljhari Kuer consciously and not at the instance of Basekhi
Singh and she must in the circumstances of the case be presumed
to know that that statement was against her proprietary interest,
for thereby she became the widow of the predeceased son of her
father-in-law.
·
1'hen we come to the gift deed executed by Mst. Phuljhari
Kuer in favour of the appellant in 1953. It is urged that the statements made by her in this gift deed would be admissible in view
of s. 158 of the Indian Evidence Act. Section 158 lays down that
"whenever any statement, relevant under section 32 or 33, is
proved, an matters may be proved either in order to contradict or to
corroborate it, or in order to impeach or confirm the credit of the
person by whom it was made, which might have been proved if
that person had been called as a witness and had denied upon
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[1967] I S.C.R.
cross-examination the truth of the matter suggested." It is urged
that the statements made in the gift deed would be relevent to
contradict the statements she made in 1925.
We shall assume
for present purposes that the statements in the gift deed would
be admissible in view of s. 158.
But two questions arise in that
connection. The first is what is the statement made in the gift deed
of 1953 and whether it contradicts- the earlier statement and the
second is the value to be attached to the statement in the gift deed.
It is remarkable that in the gift deed it is not stated in so many
words that her husband had died after her father-in-law; all ihat
is stated is that her husband died in a state of separation from
his pattidars leaving behind herself and her co-widow Mst. Sakala
and after his death she and the co-widow entered into possession
and occupation of the property left by him. Thus there is no
categorical statement by her in the gift deed that her husband
died after her father-in-law. What is urged is that her statement
that after her husband's death she came into possession of all the
property left by her husband implies that her husband must have
died after her father-in-law. Thus there is no direct contradiction of the statement made in 1925 in the gift deed of 1953. Secondly as to the value to be attached to what is stated in the gift deed
it must be remembered that the statement in 1925 was made when
there was no trouble whatsoever in the family and therefore that
statement is entitled to great weight. On the other hand the statement made in the gift deed was apparently made at the time when
troubles had begun and in any case a person making a gift of property would say how she had title to the property and such a statement would in the circumstances have little value. We are therefore
in agreement with the High Court that the statement made in
1925 by Mst. Phuljhari Kuer carries great weight as it was made at
a time when there was no trouble. We have no doubt that Mst.
Phuljhari was conscious of what she was stating in 1925 and that
it was done at her own instance and not at the instance of Basekhi
and that she must have known that by that statement she became
the widow of a predeceased son and would therefore not be entitled
to the property of her father-in-law. In the circumstances we hold
in agreement with the High Court that that statement is admissible
and it completely overweighs the circumstances on which the appellant relies. In this view of the matter we hold that Basudco Narain
died after the death of his father Ramruch and it was one month
or so after his death that Ramruch left the village as he was greatly
grieved on the premature death of his son and afterwards disappeared. As Ramruch has not been heard of for more than
seven years after he disappeared from the village, he must be pwsumed to be dead and the plaintiffs-respondents would in the circumstances be entitled to the property of which he was the last
male-holder. The appeal therefore must fail except with respect
lo one item of property to which we shall refer just now.
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[His lordship then held that in so· far as this item of property
was concerned the appellant was entitled to half share.]
The appeal is hereby dismissed with costs subject to the modification indicated above.
Y.P.
Appeal dismissed with modification.