Punjab Chief Court in Farzand Ali v Zafar Ali[1] analysed this. In that case, there was a dispute between the Mutawalli of a mosque and the defendants, who were descendants of the late Imam, over certain properties. The Mutawalli claimed it as a part of a religious endowment. The court held:
“We are inclined to think that the use of the historical works to establish title to the property cannot be justified on the strength of section 57 of the Indian Evidence Act. The question of title between the trustee of a mosque, though an old and historical institution, and a private person cannot, in our opinion, be deemed to be a ‘matter of public history’ within the meaning of the said section.
We must, therefore, exclude this piece of evidence from consideration, and we do not think that this exclusion would make any difference in the result. The description contained in the two books does not advance the case for the plaintiff to any appreciable extent, and, indeed, this description can be gathered from other admissible evidence on the record.”
A similar view was adopted by a two judge Bench of Supreme Court in Karnataka Board of Waqf v Government of India[2], where Justice Rajendra Babu observed:
“8….As far as a title suit of civil nature is concerned, there is no room for historical facts and claims. Reliance on borderline historical facts will lead to erroneous conclusions. The question for resolution herein is the factum of ownership, possession and title over the suit property. Only admissible evidence and records could be of assistance to prove this.”
Section 57 of the Evidence Act 1872 elucidates facts of which judicial notice must be taken by the court. After delineating 13 categories of fact of which judicial notice may be taken, it stipulates that ‘in all these cases, and also on all matters of public history, literature, science and arts, the court may resort to appropriate books or documents for reference’. The above provision enables the court to resort ‘for its aid’ to books and reference documents inter alia on matters of public history.”
Reliance on gazetteereers
Section 81 of the Evidence Act 1872 requires the court to ‘presume the genuineness of every document purporting to be’ any Official Gazetteere or the Government Gazette ‘of any colony, dependency or possession of the British Crown’. Section 81 raises a presumption of the genuineness of the document and not of its contents.
When the court has to form an opinion on the existence of a fact of a public nature, Section 37 of the Evidence Act indicates that any statement of it in a government gazette is a relevant fact. While gazetteereers have been noticed in several decisions of this Court, it is equally important to note that the reliance placed on them is more in the nature of corroborative material.
In Rajah Muttu Ramalinga Setupati v Perianayagum Pillai[3], the Privy Council dealt with an objection to the judgment of the High Court on the ground that excessive weight had been given to the reports of Collectors. In that context, the Privy Council held:
“Their Lordships think it must be conceded that when these reports express opinions on the private rights of parties, such opinions are not to be regarded as having judicial authority or force. But being the report of public officers made in the course of duty, and under statutable authority, they are entitled to great consideration so far as they supply information of official proceedings and historical facts, and also in so far as they are relevant to explain the conduct and acts of the parties in relation to them, and the proceedings of the Government founded upon them.”
The Privy Council cautioned against the use of the report of the Collector when it opined on matters relating to private rights. But as records of official proceedings or historical facts, and to explain the conduct of parties in relation to them, they would provide useful material.
In Ghulam Rasul Khan v Secretary of State for India in Council[4], the Privy Council held:
“…statements in public documents are receivable to prove the facts stated on the general grounds that they were made by the authorized agents of the public in the course of official duty and respecting facts which were of public interest or required to be recorded for the benefit of the Community: Taylor’s, Law of Evidence, 10th Ed., S. 1591).
In many cases, indeed, in nearly all cases, after a lapse of years it would be impossible to give evidence that the statements contained in such documents were in fact true, and it is for this reason that such an exception is made to the rule of hearsay evidence.”
In the above extract, the court carefully calibrated its reliance on the gazetteereer, noting that it was not ‘necessarily conclusive,’ but of ‘some value’. The portion, which was relied upon by the court, as it noted, derived considerable support from documents and was hence grounded in them. The rest was not relied upon. The court independently assessed its corroborative value. It rejected one part and the part which it accepted was found to derive support from other documentary material. In other words, the contents of the gazetteereer, even in so far as they were acceptable, were corroborative.
In Mahant Shri Srinivasa Ramanuj Das v Surajnarayan Dass[5], Justice Raghubar Dayal, while dealing with the contents of O’ Malley’s Puri Gazetteer of 1908, which had elucidated the history of a Math observed:
“It is urged for the appellant that what is stated in the Gazetteer cannot be treated as evidence. These statements in the Gazetteer are not relied on as evidence of title but as providing historical material and the practice followed by the Math and its head. The Gazetteer can be consulted on matters on public history.”
The above observations indicate that the statements in the gazetteer were not relied on as evidence of title but as providing a historical background including on matters relating to the practice followed by the Math. A clear distinction must be drawn between relying on a gazetteereer to source a claim of title (which is impermissible) and as reference material on a matter of public history (which the court may consult to an appropriate extent with due circumspection).
In Vimla Bai v Hiralal Gupta[6], the issue was whether a female bandhu was entitled to succeed to the estate of the male holder through her mother’s side within five degrees of the male holder. On the issue of the inam register, Supreme Court observed that it had ‘great evidentiary value’ but its entries had to be considered in the context of other evidence on the record. On the evidentiary value of an official gazette, the two judge Bench of the Court dealt with the provisions of Section 37 and Section 57(13) of the Evidence Act 1872 in the context of migration and observed:
“4. … Thus, it is clear that migration cannot be presumed but it must be established by adduction (sic) of evidence. The question then arises is whether the recital in Indore State Gazette relied on, at the appellate stage, can form the sole base to establish that the plaintiff’s family were the migrants from Mathura in U.P. Section 37 of the Evidence Act, 1872 postulates that any statement made in a government gazette of a public nature is a relevant fact.
Section 57(13) declares that on all matters of public history, the court may resort for its aid to appropriate books or documents of reference, and Section 81 draws a presumption as to genuineness of gazettes coming from proper custody. Phipson on Evidence, the Common Law Library (Thirteenth Edition) at page 510 paragraph 25.07 stated that the government gazettes … are admissible (and sometimes conclusive) evidence of the public, but not of the private matters contained therein…
5. The statement of fact contained in the official Gazette made in the course of the discharge of the official duties on private affairs or on historical facts in some cases is best evidence of facts stated therein and is entitled to due consideration but should not be treated as conclusive in respect of matters requiring judicial adjudication.
In an appropriate case where there is some evidence on record to prove the fact in issue but it is not sufficient to record a finding thereon, the statement of facts concerning management of private temples or historical facts of status of private persons etc. found in the official Gazette may be relied upon without further proof thereof as corroborative evidence.”
A statement of fact contained in the Official Gazette made in the course of the discharge of official duties on private affairs or on historical facts in ―some cases‖ is the best evidence of facts and is entitled to ‘due consideration’. However, it should not be treated as conclusive on matters requiring judicial adjudication. Questions of title raise issues for adjudication. Conflicting claims of title require judicial adjudication. Statements contained in a text of history or in a gazetteer cannot conclude the issue of title.
In Bala Shankar Maha Shanker Bhattjee v Charity Commissioner, Gujarat State[7], the issue was whether the temple of Kalika Shrine on Pavagadh was a public trust within the meaning of the Bombay Public Trust Act 1950. In this context, a two judge Bench of this Court held:
“22…It is seen that the Gazette of the Bombay Presidency, Vol. III published in 1879 is admissible under Section 35 read with Section 81 of the Evidence Act, 1872. The Gazette is admissible being official record evidencing public affairs and the court may presume their contents as genuine.
The statement contained therein can be taken into account to discover the historical material contained therein and the facts stated therein is evidence under Section 45 and the court may in conjunction with other evidence and circumstance take into consideration in adjudging the dispute in question, though may not be treated as conclusive evidence.”
In other words, the gazette was not treated to be independent evidence of a conclusive nature in itself. The court has a caution in the above extract. The contents of the gazetteer may be read in conjunction with other evidence and circumstances. They may be taken into consideration but would not be conclusive evidence.
The historical material which has been relied upon in the course of the proceedings before the High Court must be weighed in the context of the salutary principles which emerge from the above decisions. The court may have due regard to appropriate books and reference material on matters, of public history.
Yet, when it does so, the court must be conscious of the fact that the statements contained in travelogues as indeed in the accounts of gazetteers reflect opinions on matters which are not amenable to be tested by cross-examination at this distant point of time.
Consequently, where there is a dispute pertaining to possession and title amidst a conflict of parties, historical accounts cannot be regarded as conclusive. The court must then decide the issue in dispute on the basis of credible evidentiary material.
Interpreting history is an exercise fraught with pitfalls. There are evident gaps in the historical record, as we have seen from the Babur-Nama. Translations vary and have their limitations. The court must be circumspect in drawing negative inferences from what a historical text does not contain. We are not construing a statute or a pleading. We are looking into historical events knit around legends, stories, traditions and accounts written in a social and cultural context different from our own.
There are dangers in interpreting history without the aid of historiography. Application of legal principles to make deductions and inferences out of historical context is a perilous exercise. One must exercise caution before embarking on the inclination of a legally trained mind to draw negative inferences from the silences of history. Silences are sometimes best left to where they belong – the universe of silence.
In a contribution to the Times Literary Supplement on 19 June 1953 titled ‘Victorian History’, E.H Carr had the following caution:
“There is a two-way traffic between past and present, the present being moulded out of the past, yet constantly recreating the past. If the historian makes history, it is equally true that history has made the historian … The present-day philosopher of history, balancing uneasily on the razor edge between the hazards of objective determinism and the bottomless pit of subjective relativity, conscious that thought and action are inextricably intertwined, and that the nature of causation, in history no less than in science, seems the further to elude his grasp the more firmly he tries to grapple with it, is engaged in asking questions rather than in answering them.”[8]
In a case such as the present, history presents another difficulty: in Eastern philosophy, religious tradition is transmuted through generations by modes not confined to written records. Marc Bloch in his work titled ‘The Historian‘s Craft’[9], spoke of this when he said:
“For, unlike others, our civilization has always been extremely attentive to its past. Everything has inclined it in this direction: both the Christian and the classical heritage. Our first masters, the Greeks and the Romans, were history-writing peoples. Christianity is a religion of historians. Other religious systems have been able to found their beliefs and their rites on a mythology nearly outside human time.”
While the gazetteers may provide to the court a glimpse on matters of public history, history itself is a matter of divisive contestation. While the court is not precluded from relying on the contents as relevant material, they must be read together with the evidence on the record in order to enable the court to enter its findings of fact in the course of the present adjudication.
Above all, the court must sift matters which may be of a hearsay origin in its effort to deduce the kernel of truth which lies hidden in the maze of conflicting claims. Travelogues and gazetteers contain loose fragments of forgotten history. The evidentiary value to be ascribed to their contents necessarily depends upon the context and is subject to a careful evaluation of their contents.
[1] (1918) 46 IC 119
[2] (2004) 10 SCC 779
[3] (1873-74) 1 IA 209
[4] 1925 SCC OnLine PC 12
[5] 1966 Supp. SCR 436
[6] (1990) 2 SCC 22
[7] 1995 Supp (1) SCC 485
[8] Introduction by Richard J Evans in E.H. Carr, What is History?, Penguin (2018 reprint) at page 12
[9] Marc Bloch, The Historian‘s Craft, Penguin (2019 reprint), at page 4