Evidence Law: Indian Evidence Act, 1872 / Bharatiya Sakshya Adhiniyam, 2023 (BSA)

Statements Against Pecuniary or Proprietary Interest under Section 26(c) of the Bharatiya Sakshya Adhiniyam, 2023

Clause (c) rests on the oldest and simplest assumption in the law of evidence: that people do not say things that damage themselves unless the things are true. Where the maker of such a statement has died or cannot be produced, the statement is received although he can never be questioned about it, because the harm he did himself in making it is the guarantee that stands in place of cross-examination. Indian law states the exception more widely than the English rule from which it came.

1. The Provision

Section 26(c), BSA

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts —

(c) when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.

Clause (c) corresponds to Section 32(3) of the Indian Evidence Act, and is carried forward without change. It admits two distinct kinds of statement: one against the maker's interest in money or property, and one exposing him to prosecution or to a claim in damages.

2. The Gateway Condition

As with every clause of Section 26, unavailability comes first. The clause has no application while the maker is alive and can be called; his statement then reaches the record, if at all, through his own testimony or as an admission if he is a party or falls within Sections 16 to 18.

The party tendering the statement must therefore establish that the maker is dead, cannot be found after a genuine search, has become incapable of giving evidence, or cannot be produced without delay or expense the court regards as unreasonable. A bare assertion will not do, and a great many applications under Section 26 are refused at this stage without the court ever reaching the clause relied upon.

3. The First Limb — Against Pecuniary or Proprietary Interest

3.1 The statement must have been against interest when it was made

This is the controlling requirement, and the tense in which it is expressed matters. The question is not whether the statement is inconvenient to the maker's estate now that litigation has begun. It is whether, at the moment he made it, it operated to his own disadvantage in money or property. A statement neutral when made does not fall within the clause because circumstances have since changed.

The reason follows from the rationale. The guarantee of reliability is that a person will not falsely say something that harms him. If the statement did him no harm when he spoke, there was nothing for him to overcome in saying it, and the guarantee is absent.

3.2 Pecuniary or proprietary

The interest affected must be one in money or in property. A statement damaging to the maker's reputation, his social standing, his professional prospects or his domestic peace is not within this limb, however painful it may have been to make. The English rule was settled in the same terms in the nineteenth century, and Indian law adopted it.

Typical instances are an acknowledgment by a deceased person that he had received a sum already claimed to be outstanding; a statement that land in his possession belonged to another; an admission that he held property as a trustee or a mortgagee rather than as owner; an entry in his own papers recording a debt owed by him; and a receipt showing that a payment he later denied had in fact been made to him.

3.3 Knowledge

The maker must have known that what he was saying was against his interest. This is implicit rather than expressed, but it follows necessarily from the rationale: a person who does not appreciate that a statement harms him has overcome nothing in making it. Where the deceased was ignorant of the legal significance of what he said, the clause is a poor fit, and courts have approached such statements with corresponding caution.

4. The Second Limb — Exposure to Prosecution or a Suit for Damages

The second limb is where Indian law departs from the English rule, and the departure is deliberate. A statement is within clause (c) if, being true, it would expose or would have exposed the maker to a criminal prosecution or to a suit for damages. Neither of these affects the maker's money or property in the direct sense the first limb requires, and the English rule excluded both.

⚠ The Indian clause is materially wider than the English rule

At common law a declaration against interest was confined to statements against pecuniary or proprietary interest, and statements exposing the maker to criminal liability were expressly excluded, on the footing that penal consequences were of a different order. Clause (c) rejects that limitation. A statement by a deceased person that he set the fire, forged the signature or drove the vehicle that caused the collision is within the clause, because it exposed him to prosecution or to a claim in damages. This is one of the clearest instances of the Indian codification improving on the rule it inherited.

The words 'if true' are important. The clause does not require that the maker was in fact prosecuted, or that a suit was in fact brought, or even that the statement was true. It requires only that the statement, assumed to be true, would have carried that exposure. A statement admitting an offence for which the limitation period had expired, or for which no prosecution was ever launched, is still within the clause.

5. How Much of the Statement Is Admitted

A question arises where the statement contains both the damaging part and other material. Suppose a deceased person wrote that he had received a payment from A on a particular date and had passed it on to B. The receipt is against his interest; the onward payment to B may not be.

The general approach is that the statement is received as a whole and read as a whole. The clause admits 'the statement', not the self-damaging sentence extracted from it, and the collateral matter is received along with the part that brings the statement within the clause. The reasoning is that a person who is telling the truth about the thing that harms him is unlikely to be lying about the surrounding circumstances in the same breath.

That approach has limits. Where the collateral material is not connected with the damaging part at all, or where it plainly serves the maker's interest rather than harming it, the court will treat it with reserve. The guarantee extends to what the maker had reason to be careful about, and no further.

6. Clause (c) and an Admission Distinguished

The two are frequently confused, because both rest on the same intuition about human behaviour. They operate on different persons and in different circumstances.

Admission — Sections 15 to 21

Statement against interest — Section 26(c)

Who makes it

A party to the proceeding, or a person within Sections 16 to 18 — an agent, a predecessor in interest, a person with a proprietary or pecuniary interest

Any person, whether or not connected with the parties

Is the maker's availability relevant?

No. An admission is receivable whether or not the maker is available

Yes. The maker must be dead or otherwise unavailable

Must the statement be against interest?

No. Any statement suggesting an inference suffices

Yes. That is the whole basis of the clause

Against whom is it evidence?

The maker and his representative in interest, and persons within Sections 16 to 18

Anyone. It is a relevant fact and is not confined to any party

Effect

Substantive evidence, not conclusive; may operate as an estoppel under Section 25

Substantive evidence, weighed with the caution appropriate to untested material

The practical consequence is that clause (c) reaches material an admission cannot. A statement by a stranger to the litigation, who is now dead, acknowledging that the land belonged to the plaintiff, is not an admission by anyone; it is relevant under clause (c) and may be proved by either side.

📖 Bharat Singh v. Bhagirathi, AIR 1966 SC 405

Held: Admissions are substantive evidence by themselves, though they are not conclusive proof of the matters admitted. They are admissible irrespective of whether the party making them appeared in the witness box or not, and whether or not that party, when appearing as a witness, was confronted with those statements.

Application: The status of an admission as substantive evidence is what clause (c) extends to statements by persons who are not parties at all, subject to the condition of unavailability.

7. Weight

A statement admitted under clause (c) has never been tested, and the court weighs it in that knowledge. Several matters bear on how much it will carry.

  • How clearly the statement was against interest. A plain acknowledgment of a debt carries far more than an ambiguous remark from which a disadvantage might be inferred.
  • Whether the maker appreciated the disadvantage. Where he plainly understood what he was conceding, the guarantee operates at full strength.
  • The circumstances in which it was made. A statement in a formal document, or in the maker's own accounts, is stronger than one reported orally by a witness years later.
  • Whether the maker had a competing motive. A person may harm himself in one respect to gain in another, and where such a motive appears the clause loses much of its force.
  • How the statement is proved. Where it is oral, everything depends on the witness who heard it; where documentary, the document must be proved under Sections 56 to 60, and if electronic, under Sections 57, 61 and 63.

⚠ Proving the statement is a separate exercise

Clause (c) makes the statement relevant. It says nothing about how it is to be proved. An oral statement must be deposed to by a witness who heard it, and Section 55 requires that his evidence be direct. A written statement must be proved as a document, and where it is contained in an electronic record — a message, an e-mail, an entry in accounting software — Sections 57, 61 and 63 apply, with the certificate under the Schedule where the record is not primary evidence.

8. Where the Clause Is Used

Clause (c) is invoked less often than the dying-declaration clause but is of real practical importance in three fields.

8.1 Title and property litigation

A statement by a deceased person acknowledging that he held land as a tenant, a mortgagee or a licensee rather than as owner is directly against his proprietary interest, and is receivable against those who claim through him. Such statements frequently appear in old correspondence, in revenue records and in family papers, and they are among the most valuable material available in long-running title disputes where every witness to the original transaction has died.

8.2 Commercial disputes

Acknowledgments of receipt, admissions of indebtedness and entries in a deceased trader's own books recording sums owed by him are all within the clause. Clause (b) and clause (c) very often overlap here, and a party is entitled to rely on both — clause (b) because the entry was made in the ordinary course of business, and clause (c) because it recorded a liability of the maker.

8.3 Criminal cases

The second limb permits proof of a statement by a deceased person acknowledging that he committed the offence, or participated in it. Where the defence is that some other person, since dead, was responsible, clause (c) is the provision under which that person's own acknowledgment reaches the record. The English rule would have excluded it, and the wider Indian formulation is what makes such a defence provable at all.

9. The Position Stated Shortly

  1. Unavailability is the gateway. The maker must be dead, untraceable, incapable of giving evidence, or not procurable without unreasonable delay or expense, and that must be proved.
  2. The statement must have been against interest when made, not merely inconvenient afterwards.
  3. The first limb is confined to money and property. Damage to reputation or standing is not enough.
  4. The second limb is wider than the English rule, and covers statements exposing the maker to criminal prosecution or to a suit for damages.
  5. The words 'if true' mean the exposure is hypothetical. No prosecution or suit need actually have followed.
  6. The statement is ordinarily read as a whole, including collateral matter connected with the damaging part.
  7. It is not an admission. It may be made by a stranger to the litigation, and it is evidence for and against anyone.
  8. Relevance is not proof. The statement must still be proved in the manner the Adhiniyam prescribes for evidence of its kind.

10. Related Topics and Provisions

Topic or provision

Connection

Statements by Persons Dead or Unavailable — Section 26

The conditions of unavailability, and the remaining clauses

Statements Made in the Ordinary Course of Business — Section 26(b)

The neighbouring clause, which frequently covers the same document

Admission — Meaning, Definition and Essentials

The parallel doctrine for statements by parties, resting on the same rationale

Hearsay Evidence — Rule and Exceptions

The rule to which clause (c) is an exception, and the guarantee that replaces cross-examination

Existence of Right or Custom — Section 11

Transactions and instances in title litigation, where clause (c) statements often appear

Sections 56 to 60, BSA

Proof of a written statement as a document

Sections 57, 61 and 63 and the Schedule, BSA

Proof of a statement contained in an electronic record