1. It is contended that Exhibits Nos. I and II were not legally admissible as evidence of the 1st defendant's minority and we must uphold this contention. Exhibit No. I, which purports to be a certificate of age of a private patient, is not relevant as a public record under Section 35 of the Evidence Act, but could only be used for the purpose of refreshing the doctor's memory (section 159 of the Evidence Act) when he was examined as a witness. Major Long when he was examined as defendants' witness No. 2 made no statement in his examination-in-chief as to the 1st defendant's age and it only came cut in cross-examination that 2 1/2 years ago he fixed the 1st defendant's age at 17. Even then he was unable to give the grounds of the opinion which he had expressed at the time of writing Exhibit No. I.
2. Exhibit No. II was a judgment in a former suit in which the 1st defendant was held to be a minor. It was based on this same inadmissible certificate, and was not relevant as an instance in which a right was asserted or recognized [Section 13(b) of the Evidence Act], as the 1st defendant's age could not by any language be described as a right pertinent to the individual.
3. The Subordinate Judge's finding on the 1st issue has been vitiated by his reliance on irrelevant evidence. An attempt has been made to support the judgment by a reference to the decisions in Gaya Din v. Dulari 2 Ind. Cas. 839 : 6 A.L.J. 693 and Kanhaya Lal v. Girdhari Lal 13 Ind. Cas. 956 : 9 A.L.J. 103 where it was held that the burden of proving that the executant of a deed was of full age lay on the plaintiff. With due deference to the opinion of the learned Judges who decided those cases we do not agree with this view. We agree with the opinion expressed in Virupakshappa v. Shidappa and Basappa 26 B.P 109 : 3 Bom. L.R. 565 that it is for the party who comes to Court and pleads minority, to make out his case before the adverse party can be required to rebut it.
4. We must, therefore, remand the case to the lower Appellate Court for a fresh finding on this issue. Either party will be allowed to adduce fresh evidence. The finding should be returned within one month from the re-opening of the lower Appellate Court after the ensuing summer recess. Seven days will be allowed for filing objections after notice of the return of the said finding shall have been posted up in the High Court.
5. In accordance with the order contained in the above judgment, the Temporary Subordinate Judge of Coimbatore submitted the following
6. My finding, therefore, is that 1st defendant has failed to show that he was a minor on the date that Exhibit B was executed, i.e., 4th November 1910.
7. This second appeal coming on for final hearing this day after the return of the finding of the lower Appellate Court upon the issue referred to it for trial, the Court delivered the following
8. We accept the finding of the learned Subordinate Judge and the result is that this appeal will be allowed and the decision of the Court of first instance restored with costs here and in the lower Appellate Court.