Admissibility of examination-in-chief and adverse inference from withheld account books in a suit for accounts

Examination-in-chief remains admissible even if the witness dies before cross-examination, but its evidentiary weight must be assessed cautiously with reference to the surrounding circumstances and corroboration. In a suit for accounts, withholding material partnership account books can justify an adverse inference under Section 114(g) of the Indian Evidence Act, 1872 and may defeat the claim for rendition of accounts where the non-production appears deliberate. On these principles, the courts below were upheld for relying on the admissible testimony with caution and for rejecting the plaintiff's claim after finding that the relevant account books had been withheld.

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Issues: (i) Whether the examination-in-chief of a witness who died before cross-examination remained admissible and what weight could be attached to it; (ii) whether withholding material partnership account books justified an adverse inference and disentitled the plaintiff to rendition of accounts.

Issue (i): Whether the examination-in-chief of a witness who died before cross-examination remained admissible and what weight could be attached to it.

Analysis: The statement of a witness, once admissible when recorded, does not become inadmissible merely because the witness dies before cross-examination. The absence of cross-examination affects the probative value and weight of the testimony, not its admissibility. The Court must assess such evidence cautiously, having regard to the nature of the testimony, the surrounding circumstances, the likelihood of its being shaken in cross-examination, and whether it is sufficiently corroborated.

Conclusion: The testimony was admissible, but its weight depended on the circumstances of the case.

Issue (ii): Whether withholding material partnership account books justified an adverse inference and disentitled the plaintiff to rendition of accounts.

Analysis: Where a party in possession of material account books withholds them, Section 114(g) of the Indian Evidence Act, 1872 permits an inference that the withheld evidence would have been adverse to that party. In a suit for accounts, non-production of the account books by the party seeking relief may justify rejection of the claim to rendition of accounts, especially where the available circumstances support the conclusion that the books were deliberately withheld.

Conclusion: The plaintiff was rightly held to have withheld material account books and was not entitled to rendition of accounts.

Final Conclusion: The appeal failed because the courts below were justified in relying on the admissible but cautiously weighed testimony and in drawing an adverse inference from the plaintiff's non-production of the relevant account books, with the result that the decree against the plaintiff was maintained.

Ratio Decidendi: A witness's examination-in-chief does not become inadmissible by reason of death before cross-examination, though its weight must be assessed cautiously; and a party who withholds material account books in a suit for accounts may be denied relief and suffer an adverse inference under Section 114(g) of the Indian Evidence Act, 1872.

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