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Kishorilal Marwari Vs. Adhar Chandra Banerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Reported inAIR1942Cal438
AppellantKishorilal Marwari
RespondentAdhar Chandra Banerjee and ors.
Cases Referred and Prohlad Chandra Chowdhury v. Ramsaran Chowdhury
Excerpt:
- .....the two sons of shewkaran as well as jagamohan and kishori were made parties defendants to that suit. the suit culminated in an ex parte decree on 22nd august 1935. the decree was put into execution and the colliery was sold and purchased by defendant 58, kishori, through his certificated guardian, attempted to have the ex parte decree set aside, but ' this application was dismissed for default. his attempt at revival of this proceeding was also dismissed and then the present suit was instituted on 4th february 1937. kishori in this suit, prays for a declaration that the ex parte rent decree as well as the sale held thereunder were not binding on him inasmuch as he was a minor both at the date of the institution of the suit as well as at the time when the decree was obtained and far.....
Judgment:

B.K. Mukherjea, J.

1. The facts giving rise to this appeal may be shortly stated as follows : The property in dispute is a colliery known as the Ninga Colliery and it belonged originally to one Ganpat Marwari. Ganpat had four sons, namely, Shew-karan, Baijnath, Ramkumar and Thakursidas, and the father together with the four sons constituted a joint Hindu family governed by the Mitakshara law. Of these four sons Baijnath passed out of the family by adoption. Shewkaran also separated from the joint family sometime before the death of, Ganpat on taking a sum of Bs. 25,000 as the value of his share in the joint property. Thakursidas died in the lifetime of Ganpat leaving behind him a widow and a son named Ramjiban. After Thakursidas, Ganpat died and the latter was followed soon after by Ramkumar. At the time of Ramkumar's death which happened in 1919 the only male members of this joint family were Jagamohan and Kishori, the sons of Ramkumar and Ramjiban, the son of Thakursidas. Kishori is the plaintiff in the present suit. On 30th March 1920, Ramkumar's widow, Bhagabani Bai, applied to the District Judge of Burdwan, for appointment of a guardian in respect of the person and property of her two minor sons, Jagamohan and Kishori. The order appointing her as guardian was made on 20th April 1920 and both in the application for guardianship as well as in the certificate the date of birth of Kishori was stated to be 17th May 1917. If this date was correctly given Kishori would attain majority on 17th May 1938.

2. In 1935 defendants 1 to 57 who are the superior landlords of the Ninga Colliery instituted a suit for recovery of rent due in respect of the same. The two sons of Shewkaran as well as Jagamohan and Kishori were made parties defendants to that suit. The suit culminated in an ex parte decree on 22nd August 1935. The decree was put into execution and the colliery was sold and purchased by defendant 58, Kishori, through his certificated guardian, attempted to have the ex parte decree set aside, but ' this application was dismissed for default. His attempt at revival of this proceeding was also dismissed and then the present suit was instituted on 4th February 1937. Kishori in this suit, prays for a declaration that the ex parte rent decree as well as the sale held thereunder were not binding on him inasmuch as he was a minor both at the date of the institution of the suit as well as at the time when the decree was obtained and far from being represented by a competent guardian he was wrongly described as a major in the suit. He further prays for a declaration that on subsequent partition between him on the one hand and Jagamohan and Ramjiban on the other, he acquired a sixteen annas title to the colliery. The suit was contested by defendants 1 to 58. The other defendants who are the brother and the agnatic cousins of the plaintiff supported the plaintiff's case. The trial Court held on evidence that the plaintiff was a minor when the decree was made and consequently the decree and the sale held in pursuance of that,, were not binding on him. It however rejected the story of partition set out by the plaintiff and held that Kishori was entitled to the colliery jointly with Ramjiban and Jagamohan.

3. Against this decision there was an appeal taken to the Court of the District Judge of Burdwan by the auction purchaser. Kishori also filed an appeal attacking that part of the judgment which negatived his claim to the sixteen annas share of the colliery. Both the two appeals were heard together by the learned District Judge and by his judgment dated 31st October 1938, he allowed the appeal of the auction purchaser being of the opinion that Eishori was not a minor at the date when the decree was obtained. The other appeal was allowed in part on a finding that Ramjiban had no interest in the colliery although the property was still joint as between the plaintiff and Jagamohan. It is against this decision that the present second appeal has been preferred. Mr. Sen who appears in support of the appeal has argued before us that in arriving at a finding regarding the age of the plaintiff the learned District Judge was in error in law in refusing to consider certain material pieces of evidence which consisted of the application for guardianship made by the mother and the order of the District Judge passed thereon, both of which contained a recital regarding the age of the plaintiff. Be contended that had the District Judge taken this evidence into consideration his decision would have been different.

4. The District Judge in support of the view which he took that these documents were not admissible in evidence relied upon two decisions of this Court, namely, Hara Kumar Dey v. Jogendra Krishna Ray 0065/1922 : AIR1924Cal526 and Prohlad Chandra Chowdhury v. Ramsaran Chowdhury : AIR1924Cal420 . The question has undoubtedly to be determined with referenoe to the provisions of the Evidence Act. It is conceded by Mr. Sen that the certificate of guardianship was neither a book nor a register nor a record kept by an officer in the discharge of his duties and, consequently, it could not be admissible under Section 35, Evidence Act. Section 32(5), Evidence Act, is also of no assistance to the present appellant inasmuch as the mother of the plaintiff whose statement as regards the age of the latter is contained in this document was living at the time. The mother however was examined as a witness in this case and the statement in the application for appointment of a guardian was made by her before a competent authority and long before the present dispute arose. There is no suggestion that it was a fictitious statement designedly made to support, subsequent evidence. We think that in these circumstances the application for guardianship can be used as a corroborative evidence in support of her oral testimony under Section 157, Evidence Act. In Hara Kumar Dey v. Jogendra Krishna Ray 0065/1922 : AIR1924Cal526 what was adduced as evidence was the certificate of guardianship itself and not the petition and neither in this nor in the other case was the person who made the statement examined as a witness. In Prohlad Chandra Chowdhury v. Ramsaran Chowdhury : AIR1924Cal420 , Asutosh Mookerjee J., in course of his judgment observed as follows:

These decisions support the view that the recital of the date of birth in a guardianship application is not by itself admissible in evidence upon mere production of the document, but may be rendered admissible in contingencies which need not be exhaustively specified for our present purpose.

5. In that case it was held that the evidence could be adduced for the purpose of contradicting a statement made by the witness under Section 155, Evidence-Act. In our opinion, the circumstance referred to in Section 157, Evidence Act, is also a contingency upon which such statements could be used as evidence by way of corroboration of the testimony given by a witness. Our attention has been drawn by Mr. Sen to a pronouncement of the Judicial Committee in Sadiq Ali Khan v. Jai Kishori ('28) 15 A.I.R. 1928 P.C. 152. In that case a mortgage suit was resisted by the defendants on the ground that they were minors at the date when the mortgage document was executed. To prove this fact reliance was placed upon the application for appointment of a guardian made by the father of the defendants as well as the certificate of guardianship granted by the Judge. On the strength of these documents it was held by their Lordships of the Judicial Committee that the defendants had discharged the burden which lay upon them of showing that they were really minors at the date when the document was executed. It is not clear from the report as to-whether the father who applied for guardianship was alive or dead at the time when the suit was brought and we also do not know whether he was examined as a witness in the case. The only thing that appears from the judgment is that these papers were used as evidence without any objection by either side. We cannot certainly rely upon this decision as an authority for the proposition that the application in the guardianship proceeding or an order passed on the same is admissible under all circumstances to prove the age of the minor and, in our opinion, the decisions in Hara Kumar Dey v. Jogendra Krishna Ray 0065/1922 : AIR1924Cal526 and Prohlad Chandra Chowdhury v. Ramsaran Chowdhury : AIR1924Cal420 are quite correct. As we have held, the only section under which such evidence could be adduced is Section 157, Evidence Act. The District Judge also, it seems, was inclined to hold the same view. The learned District Judge observed in his judgment as follows:

She could of course have proved the petition and it could have corroborated her evidence. But not only did she not prove the petition but she admitted on p. 38 of her evidence that she did not know the contents of the application for guardianship.

6. It appears that this document was proved at the instance of the defendants. It was not necessary therefore for the lady herself to prove it further. We do not know whether any formal proof was adduced when this document was made an exhibit. It appears that the original of this guardianship proceeding was sent for and after it was compared with the certified copy filed by the defendants it was made an exhibit presumably without any objection from either side. There is of course the statement of the lady herself that she did not know the contents of this application, and unless the plaintiff is in a position to show that it was really the statement of his mother it could not be relied on as a corroboration of her present testimony. It may be that as the document was made an exhibit at the instance of the other side the plaintiff did not think it necessary to adduce any further evidence on this point. In our opinion, the matter requires further investigation.

7. We think, therefore, that the proper way of disposing of this case would be to set aside the judgment of the lower appellate Court and to send the case back in order that the appeal may be reheard. The plaintiff will be given an opportunity to prove that the statement contained in Ex. F was really the statement of his mother and the defendant will be at liberty to adduce any evidence in rebuttal thereof. We express no opinion as to the value to be attached to the recital of the date of birth in the guardianship application. It will be for the last Court of facts to consider this matter along with other evidence on the record and to come to a conclusion as to whether in fact the plaintiff was or was not a minor at the material date. The case will be disposed of on a consideration of the entire evidence that has been already adduced or may be adduced after the case goes back on remand. The finding of the lower appellate Court regarding the shares of the plaintiff in the property in suit will stand intact. The lower appellate Court will also consider the point which was raised by the defendants in the trial Court, namely whether, even if the plaintiff was a minor, he was sufficiently represented by the other defendants in the suit and, consequently, the decree was binding on him. No additional evidence however will be allowed to be adduced on this point. The result is that this appeal is allowed and the case is sent back to the lower appellate Court to be heard and disposed of in accordance with the directions given above. We make no order as to costs in this appeal. Further costs will abide the result.

Blank, J.

8. I agree.


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