KARRI VENKATA NARASAYAMMA AND KUNCHE MAHALAKSHMAMMA Vs. TENTAPATI VENKATA RATTAMMA AND KARRI LATCHAMMA
HIGH COURT OF ANDHRA PRADESH
KARRI VENKATA NARASAYAMMA AND KUNCHE MAHALAKSHMAMMA
TENTAPATI VENKATA RATTAMMA AND KARRI LATCHAMMA
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(1.) This Civil Revision Petition is filed as against the order of
the District Judge of West Godavari, Eluru in I.A. No. 1222 of 1953 in O.S.
No. 45 of 1950, refusing to admit in evidence the depositions of certain witnesses,
in O.S. No. 26 of 1930, on the file of the Agency Munsif's Court, Polavaram,
under section 33 of the Indian Evidence Act. One of the questions to be
decided in the present suit is, whether Veeranna, the husband of the 2nd
defendant and father of the 3rd defendant, was the adopted son of Tirupati Rayudu.
The plaintiff is the daughter and the 1st defendant is the widow of Tirupati
Rayudu. The depositions, sought to be marked in evidence under section 33
of the Evidence Act, were those recorded in O.S. No. 26 of 1930 on the file
of the Agency Munsif's Court, Polavaram. That was a suit filed by Veeranna
against Khandavilli Pullayya, a debtor of Tirupati Rayudu's estate. The defence
put forward by Pullayya was that Veeranna was not the adopted son of Tirupati
Ravudu and had consequently no locus standi to sue for recovery of the money
due to Tirupati Rayudu's estate. Six witnesses were examined on behalf of
Veeranna to prove that he was the adopted son. Except one, the other five
witnesses are all dead. Consequently, defendants 2 and 3 filed an application
under section 151, Civil Procedure Code to admit the prior depositions in evidence.
The Court below rejected the application holding that the first proviso to section
33 of the Evidence Act did not apply. The Revision Petition is filed against that
(2.) The short question for consideration is, whether the principles laid down in
Krishnayya Rao v. Raja of Pittapur, (1933) 65 M.L.J. 479: L.R. 60 I.A. 336: I.L.R. 57 Mad. 1 (P.C.).
do not directly apply to the facts of the
present case. Having carefully perused the judgment of the Judicial Committee,
I have no doubt that all the requirements of section 33 of the Evidence Act are
satisfied in this case and that the decision of the Court below is clearly erroneous.
Omitting the words which are inapplicable, the section runs thus:-
"Evidence given by a witness in a judicial proceeding ... is relevant for the
purpose of proving in a subsequent judicial proceeding . . . the truth of the facts
which it states when the witness is dead.
Provided-that the proceeding was between the same parties or their representatives
that the adverse party in the first proceeding had the right and opportunity to
that the questions in issue were substantially the same in the first as in the second
(3.) The proviso is three-fold and it is not disputed that the second proviso is ful-
filled in the present case. The third proviso is also fulfilled as it is not necessary
that all the questions in issue in the two proceedings should be substantially the
same. So, the main question that falls to be determined in the Revision Petition
is, whether the terms of the first proviso are satisfied. Lord Russel of Killowen,
in delivering the judgment of the Judicial Committee in Krishnayya Rao v. Raia
of Pittapur, held, that whatever might have been the intention of those who
framed the section, the first proviso exactly inverted the requirements of the
English law and that this inversion should not be considered as accidental. The
following passages set out clearly the construction placed by their Lordships on
the first proviso and they are as follows:-
"'It will be a question depending for its correct answer upon the circumstances of each
case where the question arises, whether there was a party to the first proceeding who was
a representative in interest of a party to the second proceeding within the wider meaning
which their Lordships attribute to those words.;
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