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Maharaj Bhanudas Narayanboa Gosavi Vs. Krishnabai Chintaman Deshpande - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 82 of 1925
Judge
Reported in(1926)28BOMLR1225
AppellantMaharaj Bhanudas Narayanboa Gosavi
RespondentKrishnabai Chintaman Deshpande
DispositionAppeal dismissed
Excerpt:
.....sanctioned by court, sitting aside of-proof of fraud on court necessary.;section 35 of the indian evidence act is applicable to entries in public records of a native state or a foreign country.;copy of a certificate given by a school-master in a native state, when a pupil loft the school, mentioning the age of the pupil, and certified, as required by section 78, clause (6), of the indian evidence ac:, by the political agent assigned to that state by the government of india, is admissible in evidence.;a school-master comes within the purview of the words ' executive officers' in section 74, clause (1), (iii), of the indian evidence act.;the words 'diplomatic agent' in section 78, clause (6), of the indian evidence act, apply to the resident of hyderabad, who is the political agent..........certificate, dated october 26, 1922, of the resident, certifying that the document is a copy of a public document of the hyderabad state duly certified by the officer having the legal custody of the original. the subordinate judge held that the document was admissible under sections 35 and 79 of the evidence act. as regards section 35 mr. kane contends that this cannot cover a ' public servant' outside british india, and cites in support of this the doubt expressed in ponna-mmal v. sundarampillai i.l.r. (1900) mad. 499 that section itself, however, refers to the law of the country in which such book, or register is kept; and that would be quite unnecessary, if it was intended to cover only cases of entries in a public or official book , register, or record kept in british india......
Judgment:

Fawcett, J.

1. The main question in this appeal is, whether the plaintiff has proved that he attained majority within three years of his filing the present suit, that is to say, on or after July 18, 1918. This involves his birth on or after July 18, 1900. But the Subordinate Judge has held that he was really born on October 20, 1899, and, therefore, his suit was time-barred.

2. In regard to the evidence as to the plaintiff's age, it has been strongly contended that the document marked A, on which the lower Court has mainly relied, is not admissible in evidence. This is a document purporting to be a certified copy of what is called a ' transfer certificate ' granted by the Head Master of a school at Paithan in the Hyderabad State, on January 20, 1916. The document purports to be a copy of a counter fail, showing the contents of the transfer certificate actually issued, and the copy is made on a printed form, which would presumably correspond to that of the original, According to an entry in this transfer certificate, the birth of the plaintiffis given as on a Mahomedan date, which, it is not disputed, corresponds to October 20, 1899. Since the certified copy was given, the document has been presented to the Resident Hyderabad, and now bears a certificate, dated October 26, 1922, of the Resident, certifying that the document is a copy of a public document of the Hyderabad State duly certified by the officer having the legal custody of the original. The Subordinate Judge held that the document was admissible under Sections 35 and 79 of the Evidence Act. As regards Section 35 Mr. Kane contends that this cannot cover a ' public servant' outside British India, and cites in support of this the doubt expressed in Ponna-mmal v. SundaramPillai I.L.R. (1900) Mad. 499 That section itself, however, refers to the law of the country in which such book, or register is kept; and that would be quite unnecessary, if it was intended to cover only cases of entries in a public or official book , register, or record kept in British India. Moreover, under Section 74 (1) (iii) the expression ' public documents' include s ' documents forming the acts or records of the acts of public officers legislative, judicial and executive, whether of British India, or of any other part of His Majesty's dominions, or of a foreign country.' Therefore, the Act covers public documents of Native States or foreign countries. I can see no reason why Section 35 should not have a similar scope, especially in view of the words to which I have drawn attention, It is said that a school-master will not coma under the words 'public officers, legislative, judicial and executive.' I do not agree with that contention. If the Government of a State or country undertakes the education of boys and girls, and employs officers for that purpose, then the officers so employed are executing certain duties imposed upon them by the State or country, and they certainly seem to me to come within the meaning of the words ' executive officers.' The document in question corresponds to the certificate given in British Indian Schools, when a pupil leaves a school; and it can, I think, under Section 114 of the Evidence Act, be safely presumed that a schoolmaster in Hyderabad State issues a similar certificate, especially having regard to the certificate of the Resident at Hyderabad that I have mentioned. That certificate falls under Clause (6) of Section 78 of the Evidence Act, as being ' a certificate under the seal of a diplomatic agent that the copy is duly certified by the officer having thelegal custody of the original.' The words ' diplomatic agent ' are very wide, and prima facie cover the Resident of Hyderabad, who is the Political Agent of the Government of India. Thus, in Section 86 it, is laid down that the Political Agent shall be deemed to be the representative of the Government of India in the place or country to which he is assigned. It has been objected that Section 76 requires proof of the character of the document according to the law of the foreign country, and that there has been no evidence given as to the character of this document. That might be a serious objection in the case of a document as to which a doubt could legitimately arise on the subject of its character. But, in the present case, there is no room for such a doubt, and the Court can presume under Section 114 that it has the same character as a school leaving certificate in British India. In my opinion, therefore, the lower Court has not erred in admitting this document in evidence.

3. The next question is, whether the lower Court was wrong in relying upon this document, and whether it should be given the weight which the lower Court attached to it. Against this document the plaintiff adduced evidence that he was really born on June 30, 1901, This evidence consists of a horoscope and a note made in analmost about the plaintiff's birth on that date, together with oral testimony in support of those documents, but this has been disbelieved by the lower Court. Certainly, one very strong ground for not accepting the testimony is the definite statement in the plaint itself that the plaintiff attained majority on Novembar 30, 1918 ; that implies he was born on November 30, 1900, and the inference of the lower Court that the horoscope had not seen the light of the day, when the plaint was prepared, is one that can reasonably be made. Another circumstance which goes against this evidence is the fact that in the compromise application of February 14, 1916, to which the plaintiff's natural father Keshav was a party, the plaintiff's age was stated to be sixteen. If he had been born on June 30, 1901, he would then have been under fifteen (about 14 3/4), and it seems very improbable that the plaintiff's natural father would, in those circumstances, have stated that he was sixteen years of age. On the other hand, if he was really born in the latter part of 1899, or the first part of 1900, the statement that his age was sixteen in February 1916 would be correct. The learned Subordinate Judge had the advantage of having seen the witnesses, and, in view of the above circumstances, I do not think that there are adequate grounds for our differing from his view and his appreciation of the evidence adduced by the plaintiff. The harden of proof that he attained majority within three years of the suit rests upon the plaintiff, and I think there is good ground for relying upon this document, Exhibit A. It gives a definite date of birth, so that it must have been based upon specific Information, and presumably that information would be supplied by the natural father of the plaintiff. That is corroborated by the fact that in this document the father's name is given as Keshav, with a note that it was subsequently altered to Narayan, which, no doubt, was done after the plaintiff's adoption.

4. For the above reasons, I do not think that there are any sufficient grounds for our differing from the conclusion of the lower Court that the plaintiff was born in October 1899. Admittedly, that would make his suit time-barred as regards his prayer for setting aside the decree of the lower Court, as having been obtained fraudulently and collusively. But, it is contended by Mr. Kane that the relief asked for in Clause (b) of para. 7 of the plaint is one for which law allows an action to be brought within six years. This is that it should be declared that the said decree, being opposed to the interest of the minor and being unconscionable, is not binding on the plaintiff. It is contended that this relief, not being covered by Article 95 of the Limitation Act, will fall under Article 120, and that, as the compromise decree was obtained in 1916, the suit, which was brought in July 1,921, would, in any case, be in time, There ia, however, an obvious answer to this argument. Thusis not a case of a compromise by the guardian of a Hindu minor made out of Court and based simply on his own powers as guardian. It is a compromise, which was submitted for sanction of the Court under Order XXXII, Civil Procedure Code, and the case of such a compromise stands on a very different footing to the other class of compromise that I have mentioned. A compromise, sanctioned by a Court, cannot be set aside merely on the allegation that the compromise was not in the interest of the minor and unconscionable. The Court has to consider the question whether the compromise is for the benefit of the minor before it sanctions it. In the present case there is an exhibit, which shows that the Judge did go into this question whether the compromise was for the benefit of the minor. There has been a recent decision of this Court in regard to setting aside of a compromise sanctioned by the Court; Dhairyasingh v. Kissandas (1925) 28 Bom. L.R. 382. In that case a reference has been made to an English authority, Brooke v. LordMostyn (1864) 2 De G. J. 373 which lays down that to impeach such a compromise there must be something amounting to fraud, before the Court will set it aside. Mr. Justice Marten in his judgment at page 369, no doubt, does not decide that the law in India is exactly as there laid down, and says it may be that it is stated rather too widely against those who are interested in setting aside a compromise. But, on the other hand, he distinctly implies that a compromise could not be set aside merely on a contention that it was not for the benefit of the minor, and says (p. 364) that that point was not even argued by Mr.Cottman. At page 376 my learned brother in his judgment summarises the law as being that culpable or wilful negligence tantamount to fraud or misrepresentation on material facts would alone enable the minors to avoid the compromise sanctioned, This view that there must be something in the nature of fraud practised upon the Court, is supported by Bibee Solomon v. AbdoolAzeez I.L.R. (188l) Cal. 687 where the Court held that the compromise was entered into by the parties, and sanctioned by the Court, under a serious misapprehension of material facts, caused by actual fraud, or at any rate byoutable neglect of duty. There must be something of that kind shown before a compromisesanctioned by a Court can be set aside, In the present case, the contention that the compromise itself is not for the benefit of the minor virtually amounts to appealing against the declaration of the Subordinate Judge that it really was for his benefit, and a suit for that purpose does not lie, Therefore, the mere fact that this prayer is made in the plaint does not prevent the suit being time-barred. The only material relief which could be granted is that asked for in Clause (a) of paragraph 7. Accordingly, I would dismiss the appeal with costs.

Madgavkar, J.

5. I agree.


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