Judgments and opinions of the third party when relevant

Judgments of court when relevant and opinions of third parties when relevant (Section 40-51 of The Indian Evidence Act, 1872)

Author: Ritika Sharma

Introduction

Sections 40 to 44 of the Indian Evidence Act, 1872 lay down the provisions relating to the relevancy of judgments of the court which includes relevancy in probate, matrimonial, admiralty, fraud, or collusion in obtaining judgment, etc. Sections 45 to 51 talk about the relevancy of opinions of third parties, for example, the opinion of experts.

PART- IV; SUB PART- 4.4

Relevance of previous judgments

According to Section 40 of the Indian Evidence Act, the previous judgments are relevant when the question related to its cognizance arises. There are judgments or decrees or orders which restrict the court from holding a trial or taking cognizance of a suit and the court considers these in further suit or trial.

Relevancy of certain judgments in some matters

With the due regard to a just system, it is a general rule not to bind anyone to any litigation for the purposes of defence or examination of witnesses. Still, there are some exceptions highlighted under Section 41 of the Indian Evidence Act which is relevant against strangers. It says that in matters pertaining to probate, matrimonial, admiralty or insolvency jurisdictions, a final judgment, order or decree would be relevant. Let us first discuss probate, matrimonial, admiralty, or insolvency jurisdiction.

• Probate jurisdiction- Probate jurisdiction relates to the Indian Succession Act, 1925. In testamentary and intestate matters. The judgment of a court is binding upon the world and is in itself a conclusive proof.
• Matrimonial jurisdiction- With the help of matrimonial jurisdiction, the status of a person can be identified for example, whether the person is married, divorcee, or widow. Matrimonial causes are decided with the help of Matrimonial jurisdiction.
• Admiralty jurisdiction- It is exercised by the High Court under Letters Patent. This jurisdiction decided the matters of war claims.
• Insolvency jurisdiction- For insolvency jurisdictions, the statutes under which the courts exercise its powers are the Presidency Towns Insolvency Act, 1909, and the Provincial Insolvency Act, 1920.

The situations in which the judgment, order or decree would be relevant are as follows:

• Firstly if the judgment, order or decree confers upon or takes away any legal character from any person;
• Secondly, if the judgment, order or decree declares any person to be entitled to any legal character;
• Thirdly, when the judgment, order, or decree is entitled to any specific thing not as against any specified person but there is some existence of any legal character or the title of any such person to any such thing.

The above cases also act as the conclusive proof which is explained as follows:

• After the judgment, decree or order has come into operation then the legal character conferred by these would become accrue;
• Any legal character entitled to any person would be accrued to that person;
• When the judgment, decree or order has declared that any legal character has or should be ceased then such legal character will be ceased after that judgment, order or decree comes into operation;
• It also declares that the property in question is the person’s property to whom it was entitled by the declaration of the judgment, order, or decree.

Relevance of judgments as specified under Section 42

According to Section 42 of the Act, the judgments, other than the ones specified under Section 41, if related to the matters of public nature relevant to the inquiry, then these are also considered relevant.

Illustration: A sues B for trespass on his land, B alleges the existence of a public right of way over the land, which A denies.

Now, as per Section 42, if there is any decree in favour of the defendant then it would be relevant but it would not be considered as the conclusive proof for the same.

Further, Section 43 of the Act says that, except the judgments, orders, or decrees mentioned under Section 40, 41 ans 42, all others are irrelevant. But if the existence of judgment, order, or decree is a fact in issue or is relevant under some other provision of the Indian Evidence Act, then these would be considered relevant.

Following are some illustrations which explain the same:

Illustration: A and B separately sue C for a libel which reflects upon each of them C in each case says that the matter alleged to libelous is true and the circumstances are such that it is probably true in each case, or in neither.

A obtains a decree against C for damages on the ground that C filed The Orient Tavern to make out his justification. The fact is irrelevant as between B and C.

Illustration: A prosecutes B for adultery with C, A’s wife. B denies that C is A’s wife, but the court convicts B of adultery. Afterward, C is prosecuted for bigamy in marrying B during A’s lifetime. C says that she never was A’s wife. The judgment against B is irrelevant as against C.

Illustration: A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under Section 8 as showing the motive for the fact in issue.

Fraud or collusion

Section 44 of the Act provides for certain circumstances in which the judgments, orders or decrees which have been approved to be relevant under Sections 40, 41, 42, and 43 are either obtained by fraud or collusion or were given by the incompetent court.

In these cases, the party to the suit or proceeding can take a step and prove the same.

PART- IV; SUB PART- 4.5

Opinions of experts

Opinions of experts are relevant in some circumstances when the question is regarding:

• Foreign law- As the judges of our nation would not be having much knowledge about foreign laws, so the opinions of experts are taken into account. In Aziz Bano v. Mohamad Ibrahim Hussain^[1], the Allahabad High Court observed that the Shia law cannot be called a foreign law as it is one of the laws of India on marriage so the court has to interpret the law of land and apply the same in the case in question.
• Science and Art- The matters where special experience or knowledge is necessary to come within the ambit of Science or Art. So, the expert opinion is considered in these matters.
• Identity of handwriting, finger expressions- It is very important to identify or match the handwriting or fingertips and this issue becomes very important in many cases. The expert opinion is needed as per Section 45 for identifying the handwriting or finger expressions. In Murarilal v. State of M.P[2], Supreme Court upheld the conviction to life imprisonment on the evidence that the piece of writing left behind by the murderer in the room of the deceased was testified by a handwriting expert to be in the handwriting of the accused. When an application for appointment of a handwriting expert was made after ten years and it was rejected. The opinion of a handwriting expert has to be corroborated by clear, direct, or by circumstantial evidence. If the probabilities are against the experts’ opinion it is of no value.^[3] In Ram Narain v. State of Uttar Pradesh^[4], it was held that the court has to be fully convinced from the opinions of the handwriting expert and should give decisions after being totally satisfied that the handwriting expert is a truthful and reliable witness.

Section 47 specifies that a person’s opinion who is acquainted with the handwriting of a person is a relevant fact while forming an opinion as to handwriting.

Illustration: The question is, whether a given letter is in the underwriting of A, a merchant in London. B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. C is B’s clerk, whose duty it was to examine and file B’s correspondence. D is B’s broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising him thereon. The opinions of B, C, and D on the question of whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write.

• Fingerprints or footprints- Opinions of the persons specialised in identifying finger and footprints are very important to conclude further issues.

The following illustration further explain this part:

Illustration: The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant.

Illustration: The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the Act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A common show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.

Illustration: The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant.

The opinions of experts are not binding upon the judges and therefore, these are not conclusive evidence of a case. Courts can even refuse to rely on expert opinions.

Opinions of Examiner of Electronic Evidence

Section 45A of the Act lays down that the opinion of the Examiner of Electronic Evidence which has been mentioned under Section 79-A of the  Information Technology Act, 2000 (21 of 2000), is relevant.

Illustration: The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant.

Relevancy of Opinion of experts

As per Section 46, the irrelevant facts also become relevant when they go against the relevant opinions of the experts. Following examples highlight the same:

Illustration: The question is, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that person, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant.

Illustration: The question is, whether an obstruction to a harbour is caused by a certain sea-wall. The fact that other harbours similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time, is relevant.

Opinion as to Digital Signatures and customs or right

Section 48 says that the opinion of the certifying authority is relevant when the question of digital authority is in question. Further, according to Section 49, the opinions of persons who are aware of the existence of rights or customs are relevant while deciding the existence of such rights or customs.

Illustration: The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section.

Opinions regarding usages, tenets, etc

Section 49 says that the opinion of persons having special knowledge is relevant to questions regarding the following:

Usages and tenets of any body of men or family;

The constitution and government of any religious or charitable foundation, or;

Meaning of words or terms used in a particular district or by particular classes of people.

Opinion on relationships

Section 50 lays down the provisions regarding opinion on relationships. It says that in order to find out the relationship between two persons, the expressed opinions and the opinions of the family members are relevant. The exception to this is that the opinions are not considered sufficient for proving the marriage under the Indian Divorce Act, 1869 or in prosecutions under Sections 494, 495, 497, or 498 of the Indian Penal Code.

The essentials of this Section are as follows:

• Existence of dispute in which the question is regarding the relationship of two or more persons;
• An opinion should be an expressed opinion;
• An opinion should be regarding the existence of the relationship;
• The opinion of family members or outsiders having special knowledge regarding this is relevant.

Illustration: The question is, whether A and B were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant.

Illustration: The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant.

Relevancy of grounds of opinions

Section 51 says that the grounds laid down by any person while forming an opinion is relevant whenever the opinion of that person is considered relevant.

Illustration : An expert may give an account of experiments performed by him for the purposes of forming his opinion.

Conclusion

Part-IV of the Indian Evidence Act has provisions regarding the relevance of opinions and the relevance of judgments. These both are very important concepts whenever a case involves the evaluation of a certain subject matter. In many issues, there is confusion regarding the relevance of judgments, orders, or decrees which can be cleared from Sections 40 to 44. Further, in the cases where there is a need to match handwriting, fingertips, or footprints or the question is regarding custom, rights, tenets or relationship, etc, the expert opinions as mentioned in the provisions of subpart “opinions of third persons, when relevant” become very significant.

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^[1] ILR 1975

^[2] AIR 1980 SC 531

^[3] http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/Rescue%20(1).pdf (Last visited: April 19, 2020)

^[4] AIR 1973 SC 2200