Secondary evidence of the contents of a document must be given by a person who has seen the original. As Mr. justice Tadbalj says in a case cited to me "seen" in this connection cannot mean the mere transmission of the object to the retina of the eye, because I can see a great many documents from a distance in this Court which 1 cannot profess to see in the sense of seeing their contents. I take it, if a, document is read over to a man, because he cannot read himself, and he thereupon signs it, and signs it as containing what has been read over to him, he may be said, within the meaning to Section 63 of the Indian Evidence Act, to have seen the contents of that document. It is a question of the weight or credibility of his testimony and a question whether he comes within the section. The case cited to me which is said to support this appeal is a case which to try mind does not apply. In that case, Ghure v. Chatrapal Singh 23 Iad. Cas. 11 : 12 A.L.J. 239, Mr. Justice Tudball held that, under circumstances not unlike the present, statement of the marginal witness was not admissible. That clearly does not apply here because if there was any objection to the admissibility of this witness's evidence it has been entirely waived by the cross-examination of the witness which was indulged in by the defendants in order to break him down and get the Judge to disbelieve him and it is well established that the parties must be judged by the method with which they conduct their cases; but if it means that under no circumstances illiterate person can give the contents of a document which has been read out to him and the contents of which he professes to remember, I think, I should have great difficulty in following that decision. It seems to me it is a pure question of fact. The plaintiff has succeeded in satisfying both Courts. The appeal is dismissed.
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Allahabad High Court
Pudai Singh vs Brij Mangal And Ors. on 5 April, 1923
Equivalent citations: 73 Ind Cas 654,AIR1923All612,
1. I have heard the whole of the evidence of the witness called by the plaintiff read. I find myself unable to say either that his evidence was inadmissible or irrelevent or necessarily incredible. No body objected to its admissibility and, what is more, the defendants' Counsel cross-examined the man at some length. He was illiterate, but the story he told was that, being on business apparently as a debtor, at the mortgagee's premises, he and certain other persons were asked to attest this document of which he gave a fair account. It may be a pure invention but that is the business of the Trial Court to decide. The Trial Court has decided that it is true. I do not know how else a litigant can give the contents of a missing document except by calling a witness who swears both to its existence and to its contents, and the fact that the man is unable to read is merely a fact which goes to the credibility of his oath that he remembers the transaction because there are many people in this world who are unable to read and yet have excellent and accurate memories about things which they 3re asked or expected to remember. This witness swore that he attested the document and remembered the transaction and the substantial and relevant contents of the document. I do not know whether I should have believed him or not, but both Courts have in fact believed his evidence. The defendants evidently thinking that there was a case to be answered took an entirely different line in the Court below to that which they take here, (what is called confession and avoidance) and endeavoured to prove by a carefully prepared stamped and respectable-looking document that the actual mortgage was entered into on a piece of paper which they swore to by one only of the members of the joint family and not by the two. Both Courts have rejected this story as a wicked fabrication; and not uanaturally, it frequently does and ought to do, a dishonest case in an attempt to prove a negative has strengthened the general view of the Courts in deciding a somewhat weak affirmative case produced by the plaintiff and there the matter ends. Both Courts have found the mortgage proved and it is sought to upset the decision en a so-called point of law. The point of law may be simply stated. Secondary evidence of the contents of a document must hi given by a person who has seen the original. As Mr. justice Tadbalj says in a case cited to me "seen" in this connection cannot mean the mere transmission of the object to the retina of the eye, because I can see a great many documents from a d. stance in this Court which 1 cannot profess to see in the sense of seeing their contents. I take it, if a, document is read over to a man, because he cannot read himself, and he thereupon signs it, and signs it as containing what has been read over to him, he may be said, within the meaning to Section 63 of the Indian Evidence Act, to have seen the contents of that document. It is a question of the weight or credibility of his testimony and a question whether he comes within the section. The case cited to me which is said to support this appeal is a case which to try mind does not apply. In that case, Ghure v. Chatrapal Singh 23 Iad. Cas. 11 : 12 A.L.J. 239, Mr. Justice Tudball held that, under circumstances not unlike the present, statement of the marginal witness was not admissible. That clearly does not apply here because if there was any objection to the admissibility of this witness's evidence it has been entirely waived by the cross-examination of the witness which was indulged in by the defendants in order to break him down and get the Judge to disbelieve him and it is well established that the parties must be judged by the method with which they conduct their cases; but if it means that under no circumstances illiterate person can give the contents of a document which has been read out to him and the contents of which he professes to remember, I think, I should have great difficulty in following that decision. It seems to me it is a pure question of fact. The plaintiff has succeeded in satisfying both Courts. The appeal is dismissed.
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