( 846 )
269—C. B. Battioaloa, 940.
Action by executor for debts due to the deceased—Account books of thedeceased—Iscorroboration necessary?—Evidence Ordinance,
ss. 82 and 84.
Where an executor seed defendant for debtsdue tothedeceased,
and producedthe account book kept, bythedeceasedinproof of
Held, thatthe book did not requirecorroborationasrequired
by section 31 of the Evidence Ordinance, as it was admissible alsounder section S3.
“ The circumstances Btated in section 83 appear necessarily toimply that the entries made by a person described there need nofurther corroboration, and therefore the documents or statementsare – in themselves evidence on the consideration of any . question tobe decided by the Court. ’’
facts appear from the judgment.
Spencer Bajaratnam, for plaintiff, appellant.—The account booksof the deceased produced by the executor do not need corroborationas required by section 34 of the Evidence Ordinance. It is onlythe account books relevant under section 34 alone that are them-selves not sufficient to charge a person with liability, and should becorroborated by external evidence. But these books are relevantalso under section 32 (2). In such a case no corroboration isnecessary. Bampyarabai v. Balaji Shridhar;1 Amir Ali’e Evidence,4th ed., p. 238.
J. Joseph, for defendant, respondent.—There were also privatetransactions other than those found in plaintiff’s books, and thelearned Commissioner has accepted the defendant’s evidence onthis poinnt.
December 9, 1919. Db Sampayo J.—
The plaintiff in this case claims a sum of money as due by thedefendant, and the defendant disputes the claim, and in turn. claims certain sums in reconvention. There can be 'no appeal in
1 (1904) 6 Bom. L. R. SO ; S. O. 28 Bom. 294.
Present : De Sampayo J.VADTVELU v. HANNIBALSZ.this case except on a point of law. Counsel for the plaintiff-appel-lant' submits, as a matter of law, that the Commissioner was wrongin holding that the evidence of the account books produced by theplaintiff should have been corroborated in view of section 34 of theEvidence Act. The plaintiff sued as executor of the deceasedSithamparapillai, who appears to have been a steamer agent. Thebooks produced were account books kept by the deceased as suchsteamer agent. Strictly speaking, I think the Commissioner waswrong in insisting upon corroborative evidence in respect of theseaccount books. It has been pointed out in India, under the corre-sponding sections of the Indian Evidence Act, that where a documentis relevant both under section 34 and under section 32, such corro-borative evidence is not required. On this point Amir Alt’s Lawof Evidence at page 238 and the decisions there referred to may becited. The distinction appears to be this, that under section 32 (2)a document or statement of a person who is dead, or who cannotbe found, and who has become incapable of giving evidence, andwhose attendance cannot be procured without an unreasonableamount of delay or expense, which, under the circumstances,appears to the Court unreasonable, is relevant, while under section34 the documents Or account books may be of any person, and notnecessarily of a person in the situation described in section 32.The circumstances stated in section 32 appear necessarily to implythat the entries made by a person described there need no furthercorroboration, and, therefore, the documents or statements are inthemselves evidence on any question to be decided by the Court.While that is so, I think the judgment of the Commissioner oughtto be upheld, for it appears that the defendant’s transactions withthe deceased Sithamparapillai were not merely in connection with^the shipping business, but included various other transactions of aprivate nature. The defendant gave evidence to the effect thatmuch of his transactions was entered in a different book, which hasnot been produced. The Commissioner was satisfied with thisstatement of the defendant, and considered that the books pro-duced did not contain all the transactions, and therefore did notfurnish complete evidence for the purpose of deciding the questionin this case. He preferred to accept the defendant’s evidence asregards some of these transactions, and in the result he dismissedthe plaintiff’s action, and entered judgment for the defendant forthe sum of Rs. 54.55. I
I think the Commissioner’s judgment cannot be interfered withon the grounds suggested. The appeal is therefore dismissed,with costs.
VADIVELU v. HANNIBALSZ