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Mahomed Syedol AriffIn Vs. Yeoh Ooi Gark - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1917)19BOMLR157
AppellantMahomed Syedol Ariffin
RespondentYeoh Ooi Gark
DispositionAppeal allowed
Excerpt:
.....by high court even in cases relating to admissions. - ' the board does not think that such a method of construction is safe or is warranted and they cannot agree with the view suggested, the true principle being, in their opinion, that above stated. 16. in the present case, no special or exceptional case of construction arises. 607 would apply and such a case would fail......annexed and marked a, i believe i am over twenty-one years of age.' such a declaration, in their lordships' opinion, is of no greater value than the certificate itself. proof on the subject is not advanced by such documents.6. when evidence in the case came to be taken, the appellant's elder brother, one che arffin, proved an entry relating to the appellant's birth in a book containing a record of births, deaths and marriages in his family, kept by his late father. entries were contained in the book of the births of three members of family and the entry regarding the appellant was this: 'a boy by fatima, alias pusi, on thursday, 27th rabi lawal, 1313, exactly at 4 p.m. on september 17th, 1895; name, syedol arfffin.'7. the sole question in the case is whether this entry is admis-sible.....
Judgment:

Shaw, J.

1. This is an appeal from a judgment and order of the Court of Appeal of the Supreme Court of the Straits Settlements, dated March 2, 1915. This judgment and order affirmed the judgment and order of the Court of first instance, pronounced on September 19, 1914.

2. The action was brought by the respondent, who is a moneylender, against the appellant for certain sums of money, amounting in all to 29,521 dollars. To this action the appellant lodged a defence that at the time of the transactions sued upon he was an infant.

3. The facts briefly stated are these: On March 21, 1912, the appellant's father died, the appellant being his second son. On October 16, 1912, December 13, 1912 and January 17, 1913, respectively, he executed in favour of the respondent three mortgages over his one-twelfth share of his late father's property. The amounts in the mortgages were 6000 dollars, 8000 dollars and 10,000 dollars. Interest was stipulated for at 15 per cent. per annum for the first six months and thereafter at 18 per cent. The respondent swears that at the date of the transaction he 'suspected he (appellant) was under age.' 'I thought,' he says, 'his mother would prove his age or, perhaps, his brother. I was in doubt even after the Doctor's certificate was produced. It may be wrong. There was still his mother or brother. He wanted the loan, so I did not go to see his mother or brother.' Later in his evidence he stated: 'I lent because of the high interest, 15 per cent., which was arranged between us'

4. The Doctor's certificate was obtained for the following reason.

5. The respondent swears: 'I asked him' (the appellant) 'if he were of age.' He said, ' Yes.' I asked him for proof of majority. He said he would bring a Doctor's certificate. This so-called certificate was: ' This is to certify that in my opinion M.S. Ariffin is of the age of twenty-one years.' Dr. Bright, on examination, says that he formed the opinion that the appellant was twenty-one judging by his teeth, his appearance and his voice. In their Lordships' view such a certificate is worthless. It is in truth not a certificate, but only an assertion of opinion. A formality of making a declaration before a Magistrate was also gone through, but the declaration was merely this: 'By the certificate of Dr. W.H.M. Bright, hereto annexed and marked A, I believe I am over twenty-one years of age.' Such a declaration, in their Lordships' opinion, is of no greater value than the certificate itself. Proof on the subject is not advanced by such documents.

6. When evidence in the case came to be taken, the appellant's elder brother, one Che Arffin, proved an entry relating to the appellant's birth in a book containing a record of births, deaths and marriages in his family, kept by his late father. Entries were contained in the book of the births of three members of family and the entry regarding the appellant was this: 'A boy by Fatima, alias Pusi, on Thursday, 27th Rabi Lawal, 1313, exactly at 4 p.m. on September 17th, 1895; name, Syedol Arfffin.'

7. The sole question in the case is whether this entry is admis-sible in evidence. It was not contended before their Lordships that it was not in the handwriting of the father or a genuine document. Both of the Courts below have, however, held that the entry was not admissible and this being so, they also held that the defence of infancy has not been made out.

8. There is no question that the entry was made by one having special means of knowledge and no suggestion that it was made before any question or dispute between the parties. If in itself admissible, it would go to show that at the time of transactions in question the appellant was only seventeen or eighteen years of age.

9. The law of Straits Settlements on the point of admissibility of such a document in evidence depends upon the construction to be given to the language of Section 32 of the Evidence Ordinance, 1893, which is in similar terms to the Indian Evidence Act (I of 1872).

10. Section 32 provides that 'statements written or verbal of relevant facts made by a person who is dead... are themselves relevant facts in the following cases... (5) when the statement relates to the existence of any relationship by blood, marriage, or adoption between persons as to whose relation by blood, marriage, or adoption the person making the statement had special means of knowledge and the statement was made before the question in dispute was raised.'

11. To this seotion are appended illustrations and illustration (1) is as follows: 'The question is, what was the date of the birth of A A letter from A's deceased father an-nouncing the birth of A on a given date is a relevant fact.' In the construction of this language in India the practice of Indian Courts appears to have been uniform. The cases of Bam Chandra Dutt v. Jogeswar Narain Deo I.L.R. (1893) Cal. 758; Dhanmull v. Ram Chunder Ghose I.L.R. (1890) Cal. 265 and Oriented Government Security Life Assurance Company, Limited v. Narasimha Chari I.L.R. (1001) Mad. 183 have been cited to establish this and in their Lordships' opinion they do so. In the Madras case Bhashyam Ayyangar J., referring to the first mentioned case, observes : ' The principle of the decision in my opinion is that the time of one's birth relates to the commencement of one's relationship by blood and a statement, therefore, of one's age made by a de-ceased person having special means of knowledge, relates to the existence of such relationship within the meaning of Section 32, Clause 5.'

12. The Courts below have, however, declined to accept this principle. They proceed upon two grounds. In the first place they think that the rule with regard to hearsay evidence, adopted in English case of Haines v. Guthrie (1884) 13 Q.B.D. 818, should be followed in the Straits Settlements and that that rule is not varied by the clause just cited from the Evidence Ordinance. And in the second place they hold that the illustration given in the statute does not in fact illustrate the section.

13. On the first point the view of their Lordships is that the rule and the principle of the Colony must be accepted as it is found in its own Evidence Ordinance and that the acceptance of a rule or principle adopted in or derived from English law is not permissible if thereby the true and actual meaning of the statute under construction be varied, or denied effect. The learned Sercombe-Smith J. put the matter thus: 'I think that it is safer to construe Section 32 (5) and illustrations on English lines than to extend English law of evidence in reliance upon the language of Section 32 (5) and the illustrations which it appears to me are construable as enacting in changed phraseology the principles of English adjective law.' The Board does not think that such a method of construction is safe or is warranted and they cannot agree with the view suggested, the true principle being, in their opinion, that above stated.

14. The Board makes no pronouncement upon Haines v. Guthrie (1884) 13 Q.B.D. 818, or the limitation, there affirmed, of hearsay to questions of pedigree; but such a limitation finds no foundation in this Colonial Ordinance, even in the words of the section and this is made clearer by the illustration given thereto, as will be presently noted.

15. On the second point their Lordships are of opinion that in the construction of the Evidence Ordinance it is the duty of a Court of law to accept, if that can be done, the illustrations given as being both of relevance and value in the construction of the text. The illustrations should in no case be rejected because they do not square with ideas possibly derived from another system of jurisprudence as to the law with which they or the sections deal. And it would require a very special case to warrant their rejection on the ground of their assumed repugnancy to the sections themselves. It would be the very last resort of construction to make such any assumption. The great usefulness of the illustrations, which have, although not part of the sections, been expressly furnished by the Legislature as helpful in the working and application of the Statute, should not be thus impaired.

16. In the present case, no special or exceptional case of construction arises. The section admits a statement which ' relates to the existence of any relationship,' when under all other conditions as to knowledge, time when made, &c.-all; of which conditions it is agreed are fulfilled. The illustration puts the question thus : ' What is the date of the birth of A ' And ' A letter from A's deceased father to a friend announcing the birth of A on a given day is a relevant fact.' Their Lordships agree with the judgments in the Indian Courts above cited, that there is no repugnance between a statement which relates to the existence of a relationship and the illustration by a statement as to when A was born, that is to say, when the relationship began.

17. Their Lordships, with much respect to the Judges of the Court below, think that the document in question was admissible in evidence. The question as to whether the appellant had reached majority at the date of the mortgages sued on was left most doubtful on the evidence of the respondent himself, but the statement of the appellant's father, now admitted, appears to their Lordships to set the doubt at rest and to establish minority.

18. A case of fraud by the appellant on the subject of his age was set up, but it cannot be doubted that the principle recently given effect to in the case of R. Leslie Limited v. Sheill [1914] 3 K.B. 607 would apply and such a case would fail. But their Lordships think it right to add that the, statement by the minor as to his age on the declaration before the Magistrate, ' by the declaration of Dr. W.H.M. Bright... I believe I am over twenty-one years of age,' cannot be justly characterized as fraudulent: in short, a case of fraud does not appear to be established.

19. Their Lordships will humbly advise His Majesty that the judgment of the Court below should be recalled and that the action should be dismissed with costs.


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