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Raj Kumar Vs. Vijaya Kumar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 219 of 1966
Judge
Reported inAIR1969All162
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115; Evidence Act, 1872 - Sections 35; Guardians and Wards Act, 1890 - Sections 7; Uttar Pradesh High Court Amalgamation Order, 1948
AppellantRaj Kumar
RespondentVijaya Kumar and anr.
Appellant AdvocatePrakash Gupta, Adv.
Respondent AdvocateJ.N. Verma, Adv.
DispositionApplication dismissed
Excerpt:
.....-..........a division bench of that court: mohan lal v. mohammad adil, air 1926 oudh 88. it was held that a guardianship certificate prepared and signed by the district judge is a public document under section 35 of the evidence act and an entry therein will be relevant. this decision was followed in the case of ameer hasan v. muhammad ejaz husain, air 1929 oudh 134 wherein it was held that the guardianship certificate in oudh granted by district judge was admissible under section 35 of the evidence act. i agree with the reasoning of the learned judges of the oudh chief court which is equally applicable to a guardianship certificate granted by a district judge subordinate to our high court as this high court has also framed rules under the guardians and wards act which enjoin upon the district.....
Judgment:
ORDER

K.B. Asthana, J.

1. This is an application in revision filed by the defendant in a suit pending in the court of the Munsif of Mathura, which was filed by the plaintiff, opposite party Vijaya Kumar, on 27-7-1964 as minor through his mother Sethani Vimla Devi. The suit was for recovery of arrears of rent and ejectment of the defendants from an accommodation Of which the plaintiff was the landlord. After the written statement had been filed on behalf of the defendants, contesting the suit, the proper issues were framed. On 10th of August, 1965, Sethani Vimla Devi was examined as a witness for the plaintiff on commission. At the end of her cross-examination certain questions were put to her on behalf of the defendants regarding her age and that of her son Vijaya Kumar, the plaintiff. One of the questions was as to what her age was when her son Vijaya Kumar, the plaintiff was born, She first answered that she was 19 years of age but again stated that she was 17 years of age when Vijaya Kumar, the plaintiff, was born. In the description of her name her age was mentioned as 40 years by the Commissioner. No question was ever put to her on behalf of the defendants as to what her age was on the date on which she gave the statement. It appears that the defendants relying on her statement in cross-examination and on calculating the age of the plaintiff on that basis, found that the plaintiff was over 21 years of age on the date when he presented the plaint in the court.

Thereupon an application dated 12th October, 1965 was filed on behalf of the defendants praying for an amendment in the written statement by adding a plea that the plaintiff being a major, when he filed the suit, the plaint was not properly presented and verified. Soon after an application was filed by Vijaya Kumar, the plaintiff, on 20th October 1965 under Order 32 Rule 12 C. P. Code for securing an order that he had attained majority and next friend be discharged. The defendants filed an objection to this application of the plaintiff on the ground that the plaintiff being a major on the date of the suit, the application under Order 32, Rule 12 C. P. Code was incompetent.

In support of his application under Order 32, Rule 12 C. P. Code, the plaintiff filed a certified copy of an application given by Sethani Vimla Devi under the Guardians and Wards Act in the court ol the District Judge and the order passed thereon granting a certificate of guardianship under Section 7 of the Guardians and Wards Act appointing Sethani Vimla Devi as guardian during the period of the minority of her son Vijaya Kumar viz. till the 20th day in the month of July, 1965. Thus the certificate which was granted by the District Judge under Section 7 of the Guardians and Wards Act declared that Vijaya Kumar's minor ity was to cease after 20th July 1965. On behalf of the defendants a communication received from the Municipal Board of Mathura, was filed showing that in the year 1944 no child was born to Seth Bhagwan Das, father of Vijaya Kumar.

2. The learned Munsif considered the application of the defendants for amendment of the written statement, the application of the plaintiff under Order 32, Rule 12 C. P. Code and the objection of the defendants to the said application together. Reiving upon the application under the Guardians and Wards Act and the certificate granted under Section 7 of that Act produced in evidence on behalf of the plaintiff, the learned Munsif held that the plaintiff was a minor on the date when the plaint was presented and that he had attained majority on 21st July 1965. Accordingly the application of the plaintiff under Order 32, Rule 12 C. P. Code was allowed while the objection of the defendants to that application and the application of the defendant for amendment of the written statement were dismissed. The defendant has now come up in revision before this court under Section 115 of C. P. Code against the rejection of his application for amendment of the written statement.

3. Sri Prakash Gupta, learned counsel appearing for the applicant, urged that in rejecting the prayer of the defendants for amendment of the written statement the court below acted with material illegality and irregularity in the exercise of its jurisdiction inasmuch as by taking into consideration the evidence which was inadmissible under the law, the learned Munsif erroneously recorded a finding that the plaintiff was a minor on the date of the presentation of the plaint. Learned counsel submitted that neither the application under the Guardians and Wards Act nor the certificate granted under section 7 of that Act would be admissible in evidence on the question of age, the same not being in the nature of an entry in any public or other official book, register or record stating a fact in issue or relevant fact, made by a public servant in the discharge of his official duty within the meaning of Section 35 of the Indian Evidence Act. Reliance was placed in this connection on the cases of Gunjra Kuer v. Ablakh Pande, (1896) ILR 18 All 478 and Muktipada Dawn v. Aklema Khatun : AIR1950Cal533 .

No doubt these two cases support the proposition advanced by the learned counsel. Unfortunately the case of Gunjra Kuer (supra) decided by the Division Bench of Allahabad High Court does not give any reason but simply follows the decision of the Calcutta High Court in the case of Satis Chunder Mukho-padhya v. Mahendro Lal Pathuk, (1890) ILR 17 Cal 849. The latter case of Calcutta High Court which has been cited by the learned counsel is a decision of the learned single Judge of that Court and it was held that a certificate granted by the court in the guardianship proceedings cannot be treated as a judgment in rem and thus is inadmissible in evidence. The question whether an order passed by the District Judge under Section 7 of the Guardians and Wards Act or a certificate granted by the court will be relevant was actually not considered in the case. The previous decisions of the Calcutta High Court were considered by the learned Single Judge and it was held that the contents of the application made to the court under the Guardians and Wards Act could be made admissible under section 157 of the Indian Evidence Act for corroborating the evidence as to age in any subsequent legal proceedings. However, the learned counsel submitted that the Division Bench decision of this Court in the case of Gunjra Kuer, (1896) ILR 38 All 478 (supra) was a direct authority for the proposition that a certificate of guardianship is no evidence of minority and that I was bound by that decision. I do not agree. Firstly a decision without reason can hardly be a precedent and secondly this court is a new High Court and I am not bound by any Division Bench decision of the then High Court of Judicature at Allahabad. However, a decision of the High Court of Allahabad as it was prior to 1948 would be entitled to great respect and will have great value but to say that I as a Single Judge am bound by it may not be quite correct.

4. Sri G. N. Verma, learned counsel appearing for the plaintiff opposite party drew my attention to the case of Nawab Sadiq Ali Khan v. Jai Kishori, AIR 1928 PC 152. In this case decided by the Privy Council a certificate under the Guardians and Wards Act was relied upon as relevant evidence for determining the age. Here I may make a reference to a case of the erstwhile Oudh Chief Court decided by a Division Bench of that Court: Mohan Lal v. Mohammad Adil, AIR 1926 Oudh 88. It was held that a guardianship certificate prepared and signed by the District Judge is a public document under section 35 of the Evidence Act and an entry therein will be relevant. This decision was followed in the case of Ameer Hasan v. Muhammad Ejaz Husain, AIR 1929 Oudh 134 wherein it was held that the guardianship certificate in Oudh granted by District Judge was admissible under Section 35 of the Evidence Act. I agree with the reasoning of the learned Judges of the Oudh Chief Court which is equally applicable to a guardianship certificate granted by a District Judge subordinate to our High Court as this High Court has also framed rules under the Guardians and Wards Act which enjoin upon the District Judges to grant certificates under Section 7 of the Guardians and Wards Act in a specified form. Those rules are contained in Appendix 17(F) of General Rules Civil. 1957 for Civil Courts, subordinate to the High Court of Judicature at Allahabad, Volume 2. The form of an appointment under Section 7 of the Guardians and Wards Act is mentioned at page 285 of Volume 2 of the General Rules Civil, 1957. One of the requirements of the form is that the period of minority is to be mentioned. A District Judge would be a public servant within the meaning of Section 35 of the Indian Evidence Act or can even be said to be a person who performs a duty specifically enjoined by the law. The date as to when the minority would end would be an entry in a public record. In all the cases decided by Calcutta High Court this aspect of the question was not considered and it is not known whether the Calcutta High Court had made any rules under the Guardians and Wards Act requiring the District Judges to grant a certificate under section 7 of that Act in any particular form. I have no doubt in my mind that a certificate granted by a District Judge under section 7 of the Guardians and Wards Act would be admissible in evidence and any entry therein would be relevant under Section 35 of the Indian Evidence Act. Thus the certificate granted by the District Judge under Section 7 of the Guardians and Wards Act appointing Sethani Vimla Devi as the guardian of her minor son Vijaya Kumar and entering the date 20th July 1965 up to which the minority was to last was rightly relied upon by the learned Munsif as an evidence of age of Vijaya Kumar, the plaintiff.

5. I need not consider the other argument raised by Sri G. N. Verma, learned counsel for the plaintiff, opposite party on the merits when he submitted that the evidence of Sethani Vimla Devi itself proved the date of birth of the plaintiff according to which he was minor when the suit was filed. However, there does appear some force in the argument of Mr. G. N. Verma, to the effect, that the defendant not having raised any objection in the court below to the admissi-bility of the certified copy of the application filed by Sethani Vimla Devi under the Guardians and Wards Act and to the certificate of guardianship he cannot now in revision question the admissibility of those documents in evidence.

6. For the reasons given above, I do not find any merits in this application and reject it with costs.


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