§ SECTION 26 · BSA 2023 · CHAPTER II — RELEVANCY OF FACTS

Statements of relevant facts by a person who is dead or cannot be found, when relevant

The great hearsay exception: when the maker is dead, untraceable, incapable, or too costly to bring, their statements of relevant facts become relevant — but only in eight listed cases (a)–(h), from dying declarations to a crowd’s feelings.

How to read Section 26

One gateway, eight doors.

The gateway

The maker must be dead, untraceable, incapable, or too costly to bring — and the statement about a relevant fact.

Eight cases

(a) cause of death · (b) business record · (c) against interest · (d) public right · (e)–(f) relationship · (g) §11(a) doc · (h) feelings of many.

The timing leash

Clauses (d), (e), (f) work only if the statement was made before the dispute or controversy arose.

The bare Act

The section in its own words — colour-keyed by what each phrase does.

Section 26 · verbatim

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 in the following cases, namely:—

(a)when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;

(b)when the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him;

(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;

(d)when the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen;

(e)when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;

(f)when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised;

(g)when the statement is contained in any deed, will or other document which relates to any such transaction as is specified in clause (a) of section 11;

(h)when the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

Illustrations

(a) The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was raped. The question is whether she was raped by B; or the question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.

(b) The question is as to the date of A’s birth. An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact.

(c) The question is, whether A was in Nagpur on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business, that on a given day the solicitor attended A at a place mentioned, in Nagpur, for the purpose of conferring with him upon specified business, is a relevant fact.

(d) The question is, whether a ship sailed from Mumbai harbour on a given day. A letter written by a deceased member of a merchant’s firm by which she was chartered to their correspondents in Chennai, to whom the cargo was consigned, stating that the ship sailed on a given day from Mumbai port, is a relevant fact.

(e) The question is, whether rent was paid to A for certain land. A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders is a relevant fact.

(f) The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime is relevant.

(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant.

(h) The question is, what was the cause of the wreck of a ship. A protest made by the captain, whose attendance cannot be procured, is a relevant fact.

(i) The question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

(j) The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased business person in the ordinary course of his business, is a relevant fact.

(k) The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact.

(l) The question is, what was the date of the birth of A. A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

(m) The question is, whether, and when, A and B were married. An entry in a memorandum book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.

(n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved.

In short: death or unavailability of the maker does not, by itself, let his words in — the statement must be about a relevant fact and fall inside one of the eight cases. The most important is (a): the dying declaration, which India admits in any proceeding and without requiring the maker to have expected death.

→ This carries forward IEA 1872 § 32 — the principal statutory exception to the rule against hearsay.

Glossary

cannot be found · incapable

Two of the four unavailability triggers — alongside death and unreasonable delay/expense — that open this section.

dying declaration

Clause (a): a statement about the cause of one’s death or the fatal transaction — India requires no expectation of death.

ordinary course of business

Clause (b): a routine, contemporaneous record — ledger entry, receipt, commercial document, date.

against interest

Clause (c): a statement that harms the maker’s own money/property or exposes him to prosecution or a damages suit.

before the controversy / dispute

The timing leash on (d), (e), (f) — the statement must pre-date the quarrel (ante litem motam).

pedigree

A family record of descent — one of the family sources in clause (f), with wills, deeds, tombstones and portraits.

The picture

Unavailable maker → a relevant-fact statement → eight doors into the record.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The gateway(a) Cause of death(b) Course of business(c) Against interest(d) Public right(e) Relationship(f) Deceased’s family(g) §11(a) document(h) Feelings of many

the gatewayWhose words, and when they count

In one lineWhen a person is dead, untraceable, incapable, or too costly to bring, their statements of relevant facts become relevant — but only in the eight cases (a)–(h) that follow.

Statements, written or verbal, of relevant factswhatany statement, spoken or written, about a relevant fact…

made by a person who is dead,trigger 1 · dead…by someone now dead…

or who cannot be found,trigger 2 · untraceable…or who cannot be found…

or who has become incapable of giving evidence,trigger 3 · incapable…or who is now unable to testify…

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,trigger 4 · unreasonable cost…or whose appearance would need unreasonable delay or expense.

are themselves relevant facts in the following cases, namely:–the effect…are themselves relevant — but only in the eight cases below.

ExampleThe maker of a key statement has died before trial. His words are not automatically in — the Court asks: does the statement fall within one of clauses (a)–(h), and is it about a relevant fact? Only then does it come in.

✗ Not thisThis is not a free pass for all hearsay of the dead — the statement must fit one of the eight cases and be about a relevant fact. Mere unavailability is not enough.

(a) cause of deathDying declarations — and India’s wider rule

In one lineA dead person’s statement about what caused their death (or the fatal transaction) is relevant — whether or not they expected to die, in any kind of case.

when the statement is made by a person as to the cause of his death,the subject · cause of deaththe person speaks about what caused his own death…

or as to any of the circumstances of the transaction which resulted in his death,or the surrounding transaction…or the circumstances of the events that led to it…

in cases in which the cause of that person’s death comes into question.when it applies…but only where his death’s cause is in issue.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death,★ no expectation-of-death neededIndia is wider than English law: it does not matter whether he expected to die.

and whatever may be the nature of the proceeding in which the cause of his death comes into question;any proceedingand it works in any case — civil or criminal — where the death is in question.

ExampleIllustration (a): A is fatally hurt and says “B did this”. Whether the case is B’s murder trial, a rape trial, or A’s widow’s civil suit — and whether or not A expected to die — A’s statement on the cause of death is relevant.

✗ Not thisUnlike English law, expectation of death is NOT required — do not exclude a dying declaration just because the victim hoped to live. But the words must be about the cause or circumstances of that death, not unrelated matters.

(b) course of businessRoutine business & professional records

In one lineA statement made in the ordinary course of business — a ledger entry, a receipt, a commercial document, a date — is relevant.

when the statement was made by such person in the ordinary course of business,the core · routine recordmade as part of his regular work routine…

and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty;e.g. · books & professional duty…such as an entry in business books, or done in professional duty…

or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind;e.g. · receipts…or a signed acknowledgement of receipt of money, goods or property…

or of a document used in commerce written or signed by him;e.g. · commercial document…or a commercial document he wrote or signed…

or of the date of a letter or other document usually dated, written or signed by him;e.g. · the date on a document…or the date on a letter or document he usually dates.

ExampleIllustration (b): the date of A’s birth is in issue. A deceased surgeon’s diary, regularly kept, notes that on a given day he delivered A’s mother of a son — a relevant fact.

✗ Not thisThe record must be routine and contemporaneous — a one-off note written for the litigation, or long after the event, is not ‘ordinary course of business’.

In one lineA statement that hurts the speaker’s own money or property, or exposes him to prosecution or a damages suit, is relevant.

when the statement is against the pecuniary or proprietary interest of the person making it,against money/property interestit harms his own money or property interest…

or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;or self-incriminating…or, if true, would expose him to prosecution or a damages suit.

ExampleIllustration (f): a deceased clergyman’s statement that he married A and B in circumstances that made the ceremony a crime exposes him to prosecution — so it is relevant on whether they were married.

✗ Not thisIt must genuinely cut against the speaker — a self-serving statement in his own favour is not covered. “If true, would expose him” is enough; an actual prosecution need not have followed.

(d) public right or customOpinion on a public right, before any dispute

In one lineA dead person’s opinion on a public right, custom or matter of general interest is relevant — if made before any controversy arose.

when the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest,opinion on public right/customhis opinion about a public right, custom, or matter of general interest…

of the existence of which, if it existed, he would have been likely to be aware,he’d likely know…which he would likely have known about…

and when such statement was made before any controversy as to such right, custom or matter had arisen;⚠ before any dispute…and made before the controversy arose — else excluded.

ExampleIllustration (i): whether a road is a public way. A deceased village headman’s statement that the road was public, made before any dispute, is relevant.

✗ Not thisThe “before any controversy” condition is strict — an opinion voiced after the dispute began is excluded, however knowledgeable. And it must be a public or general right, not a private one.

(e) relationshipFamily relationships known specially

In one lineA statement about a blood, marriage or adoption relationship, by someone with special means of knowledge, is relevant — if made before the dispute.

when the statement relates to the existence of any relationship by blood, marriage or adoption between personsrelationshipabout a blood, marriage or adoption relationship…

as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge,special knowledge…where the maker had special means of knowing it…

and when the statement was made before the question in dispute was raised;⚠ before the dispute…and made before the dispute was raised.

ExampleIllustration (k): whether A (dead) was B’s father. A’s own statement that B was his son is relevant.

✗ Not thisSpecial means of knowledge and before the dispute are both required — a stranger’s guess, or a relative’s statement made after the quarrel started, does not qualify.

(f) deceased’s familyRelationships of the dead, in family records

In one lineA relationship between deceased persons, recorded in a will, deed, pedigree, tombstone or family portrait, is relevant — if made before the dispute.

when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased,relationship of the deceasedabout a relationship between deceased persons…

and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made,in a family record…recorded in a will, deed, pedigree, tombstone, family portrait or similar usual place…

and when such statement was made before the question in dispute was raised;⚠ before the dispute…and made before the dispute arose.

ExampleIllustration (m): whether and when A and B married. An entry in the memorandum book of C, B’s deceased father, recording his daughter’s marriage to A, is relevant.

✗ Not thisThis branch is for relationships of the deceased, recorded in the listed family sources — a casual remark, or one made after the dispute arose, is out.

(g) §11(a) documentStatements in deeds/wills about §11(a) transactions

In one lineA statement in a deed, will or document about a § 11(a)-type transaction (asserting or creating a right or custom) is relevant.

when the statement is contained in any deed, will or other documentin a documentthe statement sits in a deed, will or other document…

which relates to any such transaction as is specified in clause (a) of section 11;→ § 11(a) transaction…that concerns a transaction of the kind in § 11(a) — one by which a right or custom was created, claimed, modified or denied.

ExampleA deceased owner’s deed reciting the grant of a right of way (a § 11(a) transaction) is relevant on whether that right of way existed.

✗ Not thisIt is tied to a § 11(a)-type transaction — a document about some unrelated matter does not come in through this clause.

(h) feelings of manyWhat a body of people felt

In one lineWhen many people express shared feelings or impressions about the matter — a crowd’s reaction — that is relevant.

when the statement was made by a number of persons,many peoplemade by a body of people…

and expressed feelings or impressions on their part relevant to the matter in question.shared feelings/impressions…expressing their feelings or impressions relevant to the issue (e.g. a crowd’s reaction).

ExampleIllustration (n): A sues B over a libellous caricature in a shop window. The remarks of the crowd of onlookers on its likeness and libellous character may be proved.

✗ Not thisIt captures collective feeling or impression — the shared reaction of many. It is not a route to prove individual disputed facts by counting opinions.

Connected provisions

§ 11

IEA 1872, § 32

Carried forward — the principal statutory exception to the hearsay rule.

Bharatiya Sakshya Adhiniyam, 2023 — Section 26: Statements by a person dead or who cannot be found