- Abstract
This article is divided into four distinctive parts. The first part deals with the question “what isthe relevancy of facts, judgment and conclusive proof & relations between them. A fact can be said to be relevant fact that has an extent of probative force or which is existing in relation to cause of the fact so alleged to exist.Judgement is an assertion of a person, authorized by the judicature to convey the penultimate through statements, in harmony with the decree or an order.A judgment can be ‘in personam’ or ‘in Rem’. Conclusive proof is intended to proliferate the substantive value of a fact to the absoluteness in relation with another. The second part deals with the relevancy of judgment as a conclusive proof. A former judgment is relevant in subsequent proceedings as a conclusive proof if it is inter partes or judgment in rem. The judgment inter-partes are conclusive prove for barring fresh suit or proceeding on the same cause.Judgment in Rem can be understood as a judgment which determines the status of an individual and binds everyone with it absolutely. The third part deals with the relevancy of judgment, but not as a conclusive proof. Judgments which is neither inter-parties nor judgment-in-rem can be relevant if they relate to matters of public nature and if matter of that public nature is relevant to the enquiries. The judgments, order or decree can also be admissible subject to their existence as fact in issue or relevant under some other provision of the Indian Evidence Act, 1872. Last but not least, the fourth part analyses the Judgment procured by fraud, collusion or an incompetent court is irrelevant in successive suits or proceedings.
- Relevancy of Facts, Judgement and conclusive proof
Relevancy of Facts: Relevant Fact is a fact that has an extent of probative force. Relevance signifies the level of proximity and probative incentive between a substance that is adduced as evidence and the issue which need to be proved. Relevancy of evidence can be traced from “any propensity of it to make a fact more or less credible” and “which lead to the determination of an action or a reasonable presumption”.[1]The relevancy of a fact to the other can be perceived from their connection as under any of the sections for the same purpose in the Indian Evidence Act, 1872[2] and evidence can be adduced in furtherance of the existence of such connection only.[3]
Judgement:“Judgement is an assertion of a person, authorized by the judicature to convey the penultimate through statements,in harmony with the decree or an order.”[4]It contains a concise statement of the case, [5]on the point of determination from which a decision is enunciated with reasons.[6]As per the firmament of relevancy of judgement, a judgement can be ‘in personam’ or ‘in Rem’.
- Judgement in Personam: Judgement in personam is concerned about the rights and duties of individual, matter and things in a case rather than their status. These kinds of judgement only bind common inter-parties. Judgement in personam attracts section 40[7]. Ex- Rights in a property.[8]
- Judgement in Rem: Judgement in Rem is concerned about the legal status of individuals, matter and things in each case. These kinds of judgements are relevant against every individual irrespective of they were party or not in the former case. These kinds of judgements are not only relevant, but also conclusive proof of the fact in question. Judgement in Rem attracts section 41[9]. Ex- Divorce Court Judgement, admiralty, insolvency etc. [10]
Conclusive proof: Conclusive proof is intended to proliferate the substantive value of a fact to the absoluteness in relation with another. Conclusive proof is not based on logic, but it aims for the welfare of the society. When a fact is conclusive proof of another, the existence of one proves the other, and it is irrebuttable.[11]The Court shall not allow evidences for the purpose of refuting it. But when the scientific advancement upheld by the world community challenges a conclusive proof under the law, the former will prevail.[12]
As per section 4[13] conclusive proof means declaring certain fact to be an artificial probative effect and no evidence is permitted with a view to combating that effect.[14]Thesecases generally occur against government policy and interest of society that a matter may be further open to dispute.[15]
III Relevancy of Judgement as a Conclusive proof
In common parlance, a previous judgement is not admissible in the subsequent one as it will undermine the originality of opinion in the subsequent proceedings. But in ‘K.G. Prem Shankar v. Inspector of Police and others’[16], it was held by Supreme Court that there is an exception of this general rule of originality, when the preceding judgment is final then it is relevant under Sections 40 to 43of The Indian Evidence Act, 1872 for the second proceedings, provided that, Section 40[17] and 41[18] is conclusive proof for barring a suit and for holding the status of an individual in each case respectively.
Section 40[19] admits all judgments inter-partes which attracts res Judicata in a subsequent suit as evidence whereas Section 41[20] admits judgments in Rem as evidence in all consequent suits not limited to the same parties on the question regarding the existence of status.[21]
Conclusive proof and inter-parties judgement: The Judgement inter-partes are conclusive prove for barring fresh suit or proceeding on the same cause. As per Section 40 of The Indian Evidence Act, 1872, every order, decree and judgement is relevant which exists prior to the present proceeding on the same cause, and it subsequently bars the holding of the trial and the cognizance of suit subject to the competency of previous court.
- Existence of Previous judgement: There must be existence of judgement in the former proceedings on the same fact which is in question in the present case. It may be preliminary judgement, interim judgement or final judgement on the basis of the stages of the proceedings. The existence of judgement which is legally capable to bar, cognizance of suit and holding of the trial, is relevant and admissible.[22]
- Same Cause in previous judgement and in present case: The word ‘same cause’ means the judgement must contain the same parties and the same grievances as in the present case. It must be remembered that for a previous judgment being admissible under Section 40the parties must be the same or their representatives-in-interest.[23]The judgment is binding only on the parties to the suit or the proceeding and their privies. Privies may be divided into three classes:[24]
- Privies in interest as donor, donee, lessor, lessee, mortgagor, mortgagee.
- Privies in kinship as predecessor, successor or coparcener,
- Privies in law relationship as a will testator and will executor.
In ‘Raman Pillai v. Krishna Pillai’[25], it was held by the Kerala High Court that recital made by the judge between predecessors of the plaintiff and predecessors of the defendant regarding right in suit property is admissible for deciding title to the property between plaintiff and defendant.
- Legal prohibition on cognizance of suit and holding of trial: There must be some legal provision validating the bar of subsequent cognizance of suits or holding of trial on the same cause and between the same interested parties. The idea behind this legal prohibition is to be immune from a multiplicity of cases and prosecution, which if not, will ultimately question the virtuosity of judgement of competent courts and have a wearisome effect on the parties so affected.[26]In Criminal cases, Section 300 of The Criminal Procedural Code, 1973& Article 20(2) of Indian Constitution, 1950 bar subsequent proceedings. Section 300[27] of Cr. P.C expresses that any person who had been tried by a court having competent jurisdiction for an offence and convicted or acquitted and the judgement of conviction or acquittal still in force, there must not be any fresh proceeding on the same subject matter between the same parties. Article 20(2) [28] recognizes and constitutes the constitutional right against double jeopardy. No one should be prosecuted or punished twice or more for the same offence. In Civil Cases, Section 11 of C.P.C[29]opines the concept of Res-Judicata which lays down that court must not try such suits or issues which were already decided by a competent court and in both cases the matter directly and substantially and the parties are the same. The previous judgement will bar the cognizance of subsequent suit. Section 40 applies to a case in which the court has jurisdiction to settle a matter and one party contends it would not do so because the matter has been decided previously.
- When the judgement of civil court will be admissible in criminal court and vice versa: A judgement of civil court is not relevant before a criminal court as such findings even though on same facts are personam in nature. The judgements of criminal courts are also irrelevant before civil courts, though puts forward the same issue or having the same subject matter.[30]In a civil proceeding the decision of criminal court doesn’t attracts Res Judicata[31] but is still relevant for admission of guilt, conviction or acquittal in the former case. [32]
Conclusive proof and Judgement in Rem: Judgement in Rem can be understood as judgement which determines the status of an individual and binds everyone with it absolutely. It is conclusive not only against the parties or a specific person, but against the entire world. [33]Such judgement will prevent the court in future proceeding from disproving it. [34]It affects all persons’ interest in a thing rather than a solitude interest. Section 41[35] incorporates the concept of judgement in Rem under the Indian legal system.[36]
A judgement is relevant under Section 41[37] when the court of former proceedings has the competency and the judgement bestows or seizes any person a legal character, or affirms any such character or thing unequivocally and absolutely.[38] The concerned judgement must be final in all cases and must be delivered by the court in the exercise of Probate, Matrimonial, Admiralty and insolvency jurisdictions.[39] Judgement in Rem doesn’t restrict two concurrent proceedings.[40] The section is also valid for foreign judgements.[41]
The general rule is that judgement inter-partes doesn’t bind any other person, but section 41[42] is an exception to that. The judgement is judgement in Rem where legal character is conferred, or has endorsed a person with legal character, or ceases such legal character, or a title to the property was granted. Such legal status can be pronounced in cases of Probate[43], Matrimonial, Admiralty and insolvency. Probate jurisdiction derives its source from Indian Succession Act, 1925 in testamentary and interstate conflicts and grant of probate is conclusive proof for the adequacy and genuineness of such will in further proceedings. But the denial of probate in favour of a party didn’t bar subsequent suit. [44]Matrimonial jurisdiction decides the legal status of a person as married or divorced.Decrees by matrimonial courts are binding in successive cases. But a suit regarding restitution of conjugal rights doesn’t attract Section 41[45] as such suits are private in nature.[46]Admiralty jurisdiction decides cases related to war claims. It is usually entertained by High Courts in Letters Patent and orders of such High Courts are admissible as conclusive proof. Insolvency jurisdiction decides the status, whether an individual, company, or other organization is capable of holding rights and duties under a covenant. It restricts an individual from entering in a contract, if the court thinks it fit. And any judgement confirming so is conclusive proof for deciding the legal capacity of an individual, company, or other organization to enter in a contract in subsequent cases. Thejudgements on all above cases are conclusive proof when devoid of collusiveness and illegality.[47]
- Relevancy of judgment but not as conclusive proof:
Judgments neither inter-parties nor judgment-in-rem can be relevant if they relate to matters of public nature and if matter of that public nature is relevant to the enquiries[48]. The judgments, order or decree can also be admissiblesubject to their existence as fact in issue or relevant under some other provision of the Indian Evidence Act, 1872. But it is noted that such judgment either of a public nature or relevant with other provisions neither work as res judicata nor they are conclusive as judgment in rem. It may be permitted to use any other form of evidence in suits or proceedings
When Judgments are in public nature: The judgment of the matters of public nature means matters affecting an entire population or at least a large section of the population.Section 42[49] of Indian Evidence Act, 1872 states that judgments, orders or decrees other than those expressed in Section 41[50], are relevant if they are considered as matters of public concern relevant to the enquiry; but such judgments, orders or decrees cannot be implied as conclusive proof of what they elucidate[51]. In ‘Anil Behari v LatikaBalaDassi’[52], It has been decided by the Supreme Court of India that the former judgement in a criminal proceedings was relevant in the further civil suits only to show that there was such a proceeding declaring in the conviction for murder of Charu who was beneficial of the will of the deceased testator, but it was not declared evidence of the fact that Charu was the murderer and that objections had to be decided on evidence in the civil proceeding. They can be used as corroborating evidence. Such evidence needs not to be between the same parties, but they are associated only to the matters of public nature relevant to the inquiry. The judgment of the Privy Council did not bind the plaintiff on the principle of res judicata, it was certainly a relevant circumstance to be taken consideration of what has been stated in Section 42[53] of the Act. Judgments, orders or decrees inscribed under section 42[54]are relevant if they relate to the matters of public nature whether between the same parties or not. For example, customs, tolls on public highways, tolls on ferry, etc. On the question of custom, a verdict in case as regardsto the existence or non-existence of custom is sufficingevidence in other cases[55]. An exception to the general rule that no one should be affected by a judgment to which he is not a party is also provided by this section.
When Judgment is fact in issue or relevant under some other provisions:Judgments not inter partes are admissible if the existence of such judgement is a relevant fact under subsequent proceedings.Judgments, orders or decrees, in both civil and criminal cases,except those which are specified under Sections 40, 41 and 42 of The Indian Evidence Act, 1872, are not relevant as per section 43[56], Unless the fact in question is directly or substantially fact in issue or relevant under any other provision of the code endorsing relevancy, and there is the existence of such judgement in previous suit or proceedings [57].Section 43[58] provides that if judgment is not relevant under sections 40, 41or 42 of The Indian Evidence Act, 1872 it will never be adduced as relevant unless the judgment itself is a fact-in-issue or is relevant under other provisions of the Act[59]. The purpose of this Section is to forbid the judgements from adducing as evidence which are neither inter partes, nor a judgement in rem but a judgement relating to matters of public nature. This section provides two exceptions to the general rule of exclusion. The judgement, decrees or orders not relevant under the three preceding sections, are relevant:
- If the existence of such judgements, is due to having the same fact in issue: When the objective of such judgment is to proof the existence of the judgement, its date or its legal inference, the proof of a certified copy is conclusive evidence of those facts[60]. In ‘TirupatiTirumalaDevasthanam v. K.M. Krishnaiah’,[61] the Supreme Court said that the judgement produced as evidence to prove the title in regard to the suit property is admissible in evidence even though plaintiff was not a party to that suit if it is a fact in issue.
- If the relevancy of judgment can be shown in any other provisions of The Evidence act, 1872: The existence of a judgement will sometimes be a relevant fact, under some of the other provisions of the Indian Evidence Act, 1872for the purpose of establishing relevancy. For example, the fact that A has obtained a decree of ejectment against B may be a motive for B’s murdering A. Therefore the decree of ejectment will be admissible to prove the motive of the murder at the trial of B for the murder of motive is relevant under section 8[62] of the act and therefore a decree showing motive is admissible under section 43[63].
It was held that a former judgment which is not a judgment in rem, nor one relating tomatters affecting the public at large or relating to public nature, is not admissible in evidence in further suits, either as barring the suit as res judicataor as a proof of a particular point which it decides, unless between the same parties or those claiming under them.[64]Relying upon the decision of Bombay High Court in the case of ‘LaxshmanGovind v AmritGopal’[65], it was held that the judgment, not between the same parties is inadmissible to prove the fact stated therein. The judgment in the Criminal Court would not be relevant in the claim petition pleading negligence under section 165 of the Motor Vehicle Act, 1988. Judgment of a Criminal case cannot be relied upon as obligatory onthe civil cases. Similarly,the findings in civil suits are not binding on the future prosecution. Though, an admission explicitly made by a party is admissible in subsequent civil proceedings.[66]In case of ‘B.M. Shah v. State of Maharashtra’,[67] it was held that the civil court proceedings over-ride criminal court proceedings. But ‘K.G. Prem Shankar v. Inspector of police’,[68] overruled the B.M. Shah’s decision and the Supreme Court held that where a suit for damages was dismissed, criminal charge will not purely depend upon this ground. The standard of proof for imposing alegal responsibility is extensively different between the civil and criminal courts and whereas in a civil suit a defendant is said to be liable on possibilities or the action which is decided on a mere consideration of the burden of proof in the absence of other evidence, no accused can be convicted on such uncertain grounds.[69]
The former judgment is not only relevant in subsequent suits or proceedings when either they are inter-parte or judgment in rem or in public nature but also by the virtue of section 43, a former judgment is relevant in further suits when having same fact in issue or relevant by other provision of Evidence Act.
VJudgment is obtained bythe means of fraud, collusion or incompetent court.
Judgment procured by fraud, collusion or an incompetent court is irrelevant in successive suits or proceedings. If a judgement in question appears immune to collusion, fraud or incompetency of the court to decide a matter, though relevant under the Section 40, 41 or 42 of The Indian Evidence Act, 1872, any party in the second suit or proceedingmay adduce evidence that such judgment, order or decree attracts Section 44 and the contention of the adverse party will be admissible[70]. Section 44[71] contains an exception to the general rule that a judgement of a competent court shall be required to be followed in subsequent proceedings between the same parties as Res Judicata. Or if a judgment is obtained by fraud, collusion or by an incompetent court then it cannot operate as res judicata even if it is judgment in rem[72]. By the virtue of this section it can be stated that a judgment obtained by means of fraud or collusion in, or incompetence of Court, may be proved and that judgement is liable to be annulled /impeached on the ground of want of jurisdiction, fraud, and collusion.
Section 44[73] enables the other party to state objections that the judgment obtained under sections 40, 41 and 42 of The Indian Evidence Act, 1872 by the first party was not in conformity with the basic principles of the Law of Evidence. It is not essential for the adverse party to bring up a separate suit to have the previous judgment set aside, but he can challenge the judgment in the same suit or proceeding that the judgment was asserted by the court has not the competency to deliver it or the judgment was procured by fraud or collusion[74]. This section applies both to Civil and Criminal proceedings evenly. However, Sections 41[75] to 44[76] do not suggest that the decisions of the civil court would be binding on the criminal courts. This Sectionis not prohibitive rather than permissive in nature. It permits parties to avail a judgment by establishing fraud or collusion, but it does not cease their substantive right which exists independently of the Act. Another aspect of this section is that, it is limited to the subsequent case in which former judgment is relevant only under sections 40, 41 and 42 of The Indian Evidence Act, 1872.
Court without competence: The expression “a court not competent to deliver it” means that the court had no jurisdiction to decide the matter in question. “The competency of a court and the jurisdiction of the courts are synonymous. ‘Competency of Court’ suggests that the court has the right to adjudicate on a given matter.”
A judgment delivered by the court was not competent to deliver it means that the court had no jurisdiction to decide the matter in question. In a case where the question of the court’s jurisdiction or its competency has been directly questioned, and decided in favour of the jurisdiction up to the highest court, it would not be open for the parties to raise the question again.
Judgment, Order, or decree obtained by the fraudulent means: When a judgment, order or decree is obtained by the means of mollified practice or fraudulent means upon the court,such judgement is not valid for endorsing relevancy. A fraud may be of two types (i) either actual or positive fraud (ii) constructive or legal fraud. According to Stephen in some cases “it may be mere secrecy.”A litigant who came to the court have to produce all documents which is executed by him must be relevant to litigation. If he withholds a vital document with the intention of getting advantage, then he would be guilty of fraud[77]. Where a litigant in partition suitobtained the preliminary document and not mentioned in trial before filling a suit a release deed in respect of the property; the court held the decree was vital by fraud[78].
The word “fraud” is defined by section 17 of the Indian Contract Act, 1872 that a party to a contract or, with by his agent or his connivance, with the malafide intention to deceive the adverse party thereto or his agent, or to tempt him to enter into the covenant. Under section 44[79] orders sought to be executed was not binding if it was passed by mistake or by fraud. A lower court can declare the decree of higher court as a void decree on the ground of fraud. If a judgment or decree initial by fraud, the same would be in nullity. In such an event Section 44[80] of Indian Evidence Act, 1872 may be applied. A compounded decree cannot be claimed to be the consequences of fraud
Gross negligence: Section 44[81] also applies to the cases of gross negligence. The Privy Council has laid down that Section 44[82] cannot be extended to the cases of gross negligence. But in the given case, the Privy Council stated that “the court is not permitted to treat negligence, or gross negligence, unless there is proper inference from the facts”. In case where an inference of fraud or collusion can be drawn from the negligence or gross negligence of the next friend it would be permissible by invoking section 44[83] without taking resort to and separate suit for setting aside the decree of judgment[84]. A Supreme Court judgment, which includes ‘negligence’ as a separateground in ‘BishunDeo vs. Seogem Ray’,[85] but merely because of one judgment it would not be strong and sufficient to add a separate clause. Thus, no addition is required in this section.
Relevancy of a previous judgment onestoppels: The question is whether an issue of fact has been tried by a court having competency on the former occasion in favour of the accused would constitute an estoppel or Res Judicata.[86]The answer is in affirmative[87]. There can also a view that there may arise a question on “issue of estoppel”, when it seems by record or itself or as elaborated by the existence of certain evidence that the same point was determined an issue of the second criminal trial[88]. In the case of ‘Banshi v. State’[89], the accused was tried for the selling of adulterated milk. He was acquitted as the sale was not proved. He was again put to trial for the same transaction to sell milk without a licence. It was held that the rule of issue of estoppels did arise and no evidence to the effect that he was selling milk on that date could be given. The judgment of previous trial would be admissible to show what issue in question was in the former case and decision thereon.[90]
- Conclusion
Relevancy of judgement has a very broader sphere as it encompasses the concept of Res Judicata, Autrefois acquit and Autrefois convict. At the same time, the significance and safeguard of the doctrine against double jeopardy is writ large for the public. These concepts delegate rights to the individuals, protecting them from the never ending process of litigation and from the negligence of the police inspectors who are usually not well acquainted with the law, and often condemned for instituting multiple cases on the same cause. In a country like India, where the pendency of cases has a tedious effect on the justice seekers, the relevancy of judgement opens the scope for the efficient functioning of courts by admitting the relevancy of previous judgements in entirety or in deciding a fact as per the decision of former proceedings.The ancillary objective ofSection 40 to Section 44 of the Indian Evidence Act, 1872 is to consolidate all provisions regarding the relevancy of Judgement under one head as well as to avoid multiplicity of the suit. This makes the justice look more feasible, and, the concept associated with the finality of judgement by a well versed court is extrapolated.
Section 40[91] suggests when a former judgement, whether final or preliminary, will bar the court of the subsequent suit from taking cognizance of a suit or from commencing a trial. Section 41, 42 and 43 of the Indian Evidence Act, 1872 opines regarding when a judgement has a relevant say in subsequent cases. Section 41[92]preaches the doctrine of Judgement in Rem, where a previous final judgement is binding absolutely against the whole world if it decides the status of an individual. Section 42[93] is relevant in further enquiries of that subject matter, if the previous judgement on the same subject relates to the public nature while Section 43[94] consider every judgement other that what prescribed under Section 40[95]-42[96]irrelevant until the same is in ‘fact in issue’ or ‘relevant under any other provision of The Evidence Act, 1872’. Section 44[97] open scopes for rebuttal of the relevancy of judgement when such judgement was procured by fraud or the court had no competency, and then it can be proved.[98]
Though ‘relevancy of judgement’ aims for utilitarian goals, but somehow it ridicules the fact that the conception can be changed swiftly with time, as the subject matter of the same is evolving. E.g. society. Justice Sikri had opined that’ we should always tend to learn from the experiences and the faults. We must wisely decide between the finality and originality of judgements. But as far as my concerns, with a lot of pendency of cases, finality must be preferred except few exceptional cases.
[1]Fisher, George, Evidence 18-19 (3rd ed. Foundation press 2002).
[2]The Indian Evidence Act, 1872, No. 01, Acts of Parliament, 1872 (India) § 3.
[3]Supra note 2, § 5.
[4]Civil Code of Procedure Act, 1908, No. 05, Acts of Parliament, 1908 (India) §2(9).
[5]Supra note 4,Order 20, rule 4 (2).
[6] Balraj Taneja v. Sunil Madan, A.I.R. 1999 S.C. 3381 (India).
[7]Supra note 2, §40.
[8]BatukLal, The Law of Evidence 368 (21st ed., Central Law Agency, 2016).
[9]Supra note 2, §41.
[10]Shakil Ahmed Khan, Ratanlal&Dhirajlal: The Law of Evidence 276 (26th ed. Lexis Nexis, 2017).
[11]Supra note 2, § 4.
[12]NandlalWasudeoBadwaik v.LataNandlalBadwaik&Anr, A.I.R. 2014 2 S.C.C. 576(India).
[13]Supra note 2, § 4.
[14]BatukLal, Supra note 8, at 94.
[15]Din Dayal v. State, A.I.R. 1959 All. 420 (India); Gopal Krishna v. Secretary, Board of Revenue, AIR 1954 Mad 362 (India).
[16] A.I.R. 2002 S.C. 3372 (India).
[17]Supra note 2, §40.
[18]Supra note 2, §41.
[19]Supra note 2, §40.
[20]Supra note 2, §41.
[21] Fatten Lallv.GujjuLall (1881) ILR 6 Cal 1719 (India).
[22]BatukLal, Supra note 8, at 367.
[23]Id.
[24]Id.
[25] A.I.R. 2002 Ker.132 (India).
[26]SatyadhanGhosal v. Deorjin Debi, (1960) A.I.R. 941, 1960 S.C.R. (3) 590 (India).
[27] The Criminal Procedural Code, 1973, No. 02, Acts of Parliament, 1974 (India) § 300.
[28]INDIA CONST. art. 20, cl. 2.
[29]Civil Code of Procedure Act, 1908, No. 05, Acts of Parliament, 1908 (India) § 11.
[30]Kashyap v. Emperor, A.I.R. 1945 Lah 23(FB) (India).
[31] Ade Fvroe Shah v. H M Seerbae, A.I.R. 1971 S.C. 20 (India).
[32]Radhe Mohan v. Bare lal, (1972) ALJ 15 (India).
[33]MenahemMeshaMenahemMessav. Moses Bunin MenahemMessa, A.I.R.1938Bom394(India).
[34]GunreddyRamkoti Reddy And Others v. The State Of Andhra Pradesh, AIR 2014 (India).
[35]Supra note 2, §41.
[36]SatrucharlaVijaya Rama Raju v.Nimmaka Jaya Raju and Others AIR 2006 SC 543 (India).
[37]Supra note 2, §41.
[38]BatukLal, Supra note 8, at 372.
[39] Section 41, The Indian Evidence Act, 1872, Act No. 1 of 1872.
[40]KanhiyaLal v. Radha Churn 7 WR 338 (1867) FB (India).
[41]NatrajPilllay v. SubbarayaChettiar, (1938) Mad 693 (India).
[42]Supra note 2, §41.
[43]Surendrakumar v.gyanchand, A.I.R. 1975 S.C. 875 (India).
[44]Kalyanchand v.Sitabai, (1913) 16 Bom LR 5 (India).
[45]Supra note 2, §41.
[46]Ma Po Khin v Ma Shin, (1933) 11 Ran 198 (India).
[47] Ibid: 33.
[48]BatukLal, Supra note 8, at 373.
[49]Supra note 2, §42.
[50]Supra note 2, §41.
[51]Section 42, The Indian Evidence Act, 1872, Act No. 1 of 1872.
[52] A.I.R. 1955 S.C. 566.Ins. By Act 3 of 1891(India).
[53]Supra note 2, §42.
[54] Id.
[55]Ram Kishore v.Kabindra, A.I.R. 1955 All 59 (FB) (India).
[56]Supra note 2, §43.
[57]Section43, The Indian Evidence Act, 1872, Act No. 1 of 1872.
[58]Supra note 2, §43.
[59]BatukLal, Supra note 8, at 374.
[60]BatukLal, Supra note 8, at 374.
[61] A.I.R. 1998 S.C. 1132 (India).
[62]Supra note 2, §8.
[63]Supra note 2, §43.
[64]GujjuLal v. FatehLal, ILR 6 Cal 172 (India).
[65](1900) ILR24BOM591 (India).
[66] Emperor v. Khwaja Nasir Ahmed, (1945) PC 18 (India).
[67] A.I.R. 1996 S.C. (India).
[68] A.I.R. 2002 S.C. 3372 (India).
[69]Duchess of Kingston’s Case (1776) 20 Howell’s State Trials 355; [1775-1802] All ER Rep 623; [1776] 1 Leach 146)(Unite Kingdom).
[70]Supra note 2, §44.
[71]Id.
[72]Satya v. Teja Singh, A.I.R. 1975 S.C. 105 (India).
[73] Supra note 2, §44.
[74]VishunathTewari v. Mst. Mirchi, A.I.R. 1955 Pat 66(India); Triveni Mishra v. Rampoojan, AIR 1970 Patna 13 (India).
[75]Supra note 2, §41.
[76]Supra note 2, §44.
[77]BatukLal, Supra note 8, at 376.
[78]S.P. Chengalvaraya Naidu v. Jagannath, AIR 1994 SC 853 (India).
[79]Supra note 2, §44.
[80]Id.
[81]Id.
[82]Id.
[83]Id.
[84]AsharfiLal v. Koili, A.I.R. 1995 S.C. 1440 (India).
[85] A.I.R. 1951 S.C. 280 at 283 (para 23). (India).
[86]BatukLal, Supra note 8, at 372.
[87]Id.
[88]Id.
[89](1969) AWR 31 (India).
[90]BrnBasiLal v. State of M.P, A.I.R. 1979 S.C. 1080 (India).
[91]Supra note 2, §40.
[92] Supra note 2, §41.
[93] Supra note 2, §42.
[94] Supra note 2, §43.
[95]Supra note 2, §40.
[96]Supra note 2, §42.
[97]Supra note 2, §44.
[98]BatukLal, Supra note 8, at 373.
