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Har Chand and anr. Vs. Dewan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All550; 117Ind.Cas.832
AppellantHar Chand and anr.
RespondentDewan Singh and ors.
Excerpt:
- - that document was clearly admissible under section 157, evidence act and it was open to munshi to refresh his memory from that document......that the documentary evidence in the case was not admissible in evidence and therefore the finding arrived at on the oral evidence was influenced by inadmissible documents. he claimed that the finding arrived at by the lower appellate court contrary to that arrived at by the court of first instance was not a finding of fact which is binding on us.2. the two documents which the learned subordinate judge relied on are: (1) the application filed in 1910 by munshi, brother of dewan, the mortgagor. in that application, which was a verified application, he gave the date of the birth of dewan as 1st june 1894. the second document is a certificate of guardianship, and according to that certificate, on the date of the mortgage, the minority of dewan continued at least a year more. the.....
Judgment:

1. The learned advocate for the appellants has submitted that the documentary evidence in the case was not admissible in evidence and therefore the finding arrived at on the oral evidence was influenced by inadmissible documents. He claimed that the finding arrived at by the lower appellate Court contrary to that arrived at by the Court of first instance was not a finding of fact which is binding on us.

2. The two documents which the learned Subordinate Judge relied on are: (1) the application filed in 1910 by Munshi, brother of Dewan, the mortgagor. In that application, which was a verified application, he gave the date of the birth of Dewan as 1st June 1894. The second document is a certificate of guardianship, and according to that certificate, on the date of the mortgage, the minority of Dewan continued at least a year more. The learned advocate has referred to a case reported in Gunjra Koer V. Ablakh Pande [1896] 18 All. 478 to prove that the statement of age in the certificate was no evidence of the defendant's age. He, however, cannot point to any provision of the Evidence Act which would apply to the application of the guardian made in 1910 to exclude it from evidence. That document was clearly admissible under Section 157, Evidence Act and it was open to Munshi to refresh his memory from that document. The learned Subordinate Judge has believed the evidence of Munshi, taken into consideration his application made in 1910 and has disbelieved the oral testimony of the witnesses called on behalf of the plaintiffs who are the appellants before us. The findings arrived at by the Court below are findings of fact binding on us and this appeal is dismissed. As nobody appears on behalf of the respondents so no question as to costs arises.


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