Statements Regarding Relationship and Pedigree under Section 26(e) and 26(f) of the Bharatiya Sakshya Adhiniyam, 2023

Questions of relationship are peculiar. Whether a man was the son of another, whether a marriage took place, whether an adoption was made — these are facts, but they are facts nobody sets out to record and that ordinarily become disputed only two or three generations after everybody who could speak to them has died. Clauses (e) and (f) of Section 26 supply the answer: what the family said about itself, while nobody was quarrelling, is receivable to prove what the family was.

1. The Two Provisions

Clause (e) corresponds to Section 32(5) of the Indian Evidence Act and clause (f) to Section 32(6). Both are carried forward unchanged. They overlap a good deal, and a party will commonly rely on both, but they are differently constructed and each covers ground the other does not.

2. Clause (e) — Special Means of Knowledge

2.1 The relationship must be by blood, marriage or adoption

The clause is confined to these three. A statement about a relationship of a different kind — that two men were partners, or that one was the servant of another — is outside it, though such a statement may be relevant under Section 7 as showing the relation of the parties by whom a transaction was effected.

2.2 The maker must have had special means of knowledge

This is the requirement that gives clause (e) its character. The maker must have been so placed as to know about the family, and not merely to have heard about it. The clause does not say he must have witnessed the birth or the marriage; family relationships are known by living among people, not by observing single events.

Members of the family are the obvious case, and the closer the connection the stronger the position. Beyond them, the courts have accepted statements by persons intimately connected with the family over a long period — an old family servant, a priest who officiated at the family's ceremonies, a manager or agent of the family estate, a physician who attended the household for many years, and a close friend of long standing. What each of these has in common is sustained access to the family's own understanding of itself.

A neighbour with no particular connection, a person who knew one member casually, or a witness who repeats what he heard in the locality does not have special means of knowledge, and his statement adds nothing under the clause.

2.3 The statement must precede the dispute

The condition is the same as in clause (d) and rests on the same reasoning. Once a question of succession or legitimacy has arisen, every person connected with the family acquires an interest, and what they then say about relationships ceases to reflect the family's settled understanding. The clause therefore admits only what was said while the matter was still uncontroversial.

The 'question in dispute' means the particular question now before the court. A statement made during an earlier and unrelated family quarrel is not excluded merely because there had been trouble in the family; what matters is whether the specific question of relationship had by then been raised.

3. Clause (f) — Statements in Family Instruments

Clause (f) admits statements about relationship contained in a defined set of sources. It does not require special means of knowledge, and it does not require that the statement be by a family member at all. What supplies the guarantee here is the character of the instrument in which the statement appears.

• A will — a document executed with formality, in which a testator describes his relations in order to provide for them.
• A deed relating to the affairs of the family — a partition deed, a settlement, a family arrangement, a deed of adoption, a marriage settlement or a trust deed for family purposes.
• A family pedigree — a genealogical table maintained by or for the family, including the registers maintained by hereditary genealogists in some communities.
• A tombstone or monument, where the inscription records the relationship of the deceased to others.
• A family portrait bearing an inscription, and other things on which such statements are usually made — the closing words admit comparable sources such as an inscription in a family Bible or a religious register.

Two limitations should be noted. First, clause (f) speaks of relationship 'between persons deceased', which confines it to statements about persons who have died. Clause (e) carries no such restriction. Second, the instrument must relate to the affairs of the family; a commercial deed executed by a family member, mentioning his relations in passing, is not a deed relating to family affairs.

4. Where Pedigree Evidence Is Used

The two clauses are the principal source of proof in a well-defined group of disputes, all of which share the feature that the relevant events are old and the participants dead.

Succession and inheritance is the largest field. Where a claim is made to the estate of a person who died without close heirs, the claimant must establish his descent, and the descent may run back several generations. Wills, partition deeds and family pedigrees produced from proper custody are the ordinary material, supported by statements of deceased family members recorded before the estate fell in.

Legitimacy questions arise where the paternity of a person is disputed, most often in the context of succession. Here the clauses work alongside Section 116, which makes birth during a valid marriage conclusive proof of legitimacy subject to proof of non-access, and alongside the modern practice relating to scientific testing.

Marriage and adoption disputes turn on whether the ceremony took place, and where it occurred decades earlier the only available evidence is what the family said about it at the time. A recital in a deed executed shortly afterwards describing a person as the adopted son, made long before anyone disputed it, is often the strongest material available.

Caste, community and status questions, where they arise, are approached in the same way, since membership of a community is ordinarily a matter of descent and is established by the same kind of family material.

5. The Related Provisions

Relationship may be established by several routes, and the clauses of Section 26 are only one of them. The others are worth setting out because pleadings in these cases invariably rely on more than one.

Section 44 is the closest companion to clause (e) and the one most often pleaded with it. Its distinctive feature is that the opinion may be expressed by conduct as well as by words — by treating a person as a son, by giving him a share, by performing the ceremonies proper to that relationship, by describing him as such in correspondence over many years.

The distinction drawn there — between a belief founded on special means of knowledge and the repetition of neighbourhood talk — applies with equal force to clause (e). A witness who deposes that a deceased family member 'used to say' that two persons were related is offering something within the clause only if the deceased was in a position to know. If he was merely repeating what he had heard, the statement is second-hand hearsay dressed as a family belief, and it carries nothing.

6. Weight

Pedigree evidence is admitted from necessity, and its weight varies enormously with its source. Four matters bear on it.

The closeness of the maker to the family determines how much his statement is worth. A recital in the will of the grandfather carries far more than the recollection of a villager, however honest, about what he heard the grandfather say.

The age and custody of the document matter a great deal, because most clause (f) material is ancient. Where a deed or pedigree is thirty years old and is produced from proper custody, Section 92 permits the court to presume that the signature and every part of it in the handwriting of a particular person is in that person's handwriting, and that it was duly executed and attested. Without that presumption a great deal of the material could not be proved at all, since every attesting witness has died.

The interval before the dispute operates as it does in clause (d). The further back the statement goes, the less possible it is that the maker was positioning himself, and a recital made two generations before the estate fell into dispute is very hard to displace.

Finally, consistency across sources is what usually decides these cases. Pedigree evidence rarely turns on one document. Where the will, the partition deed, the genealogical register and the family correspondence all describe the relationship in the same way, over a long period and in unconnected contexts, the cumulative effect is compelling. Where they differ, the court must decide which reflects the family's actual understanding, and an isolated recital inconsistent with everything else will not carry the point.

7. The Position Stated Shortly

1. Unavailability is the gateway for both clauses, and must be proved.
2. Both are confined to relationship by blood, marriage or adoption. Other relationships fall outside them.
3. Clause (e) requires special means of knowledge — a position from which the maker would know the family's own understanding of itself.
4. Clause (f) requires no such knowledge but confines the statement to a will, a deed relating to family affairs, a pedigree, a tombstone, a family portrait or a comparable source, and to relationships between persons deceased.
5. Both require that the statement precede the question in dispute. This is the condition on which such evidence is usually attacked.
6. Section 44 is the parallel provision for living witnesses, and admits opinion expressed by conduct as well as by words.
7. Section 92 is indispensable in practice, because the documentary material is almost always old and its executants long dead.

8. Related Topics and Provisions