1. The only question that arises in this review is whether a statement by the defendant's aunt, in an application to be appointed his guardian, to the effect that he was born on the 29th Pous 1296, is admissible under Section 32, Clause (5), of the Evidence Act. The District Judge, relying on the decision of Dhanmull v. Ram Chunder Ghose 24 C. 265 : 1 C.W.N. 270 held that the statement was admissible. In appeal we preferred to follow the decision in Ram Chunder Mukhopadhya v. Mohendro Lal Pathuk 17 C. 840 and held that it was inadmissible. The defendant then obtained this Rule to show cause why the decision should not be reviewed and we have now heard both parties again on the point.
2. On re-consideration, I think that we are bound by authority to hold that the statement is admissible. The application of the minor's aunt has been put in. The second paragraph contains a statement that the defendant was born on the 29th Pous 1296, and the ninth recites that the applicant is the defendant's aunt. Speaking for myself I must say that I think it a great straining of simple English words to call the former statement a statement relating to the existence of any relationship. The only way in which the words can answer to this description is by taking them to imply that the relationship existed on the 29th Pous and did not exist on the 28th Pous, a mode of interpretation that seems to me very far fetched. But this interpretation of the section is certainly supported by authority, it was accepted in the case of Ram Chandra Dutt v. Jogeswar Narain Deo 20 C. 758 and apparently was not questioned when, that case was appealed; Jogeswar Narain Deo v. Ramchandra Dutt 23 C. 670 : 23 1 A. 37. It was also accepted in Oriental Government Security Life Assurance Co. Limited v. Narasimha Chari 25 M. 183 : 11 M.L.J. 379. The decision of a single Judge in the case of Bipin Behary Daw v. Sreedam Chunder Dey 13 C. 42 cannot weigh against these decisions. If, however, the case rested merely on judicial decisions, I should have some hesitation in treating the words of the section with what seems to me considerable violence, but the terms of illustration (e), which I regret that I overlooked when the appeal was first heard, indicate that the decisions have correctly interpreted the intentions of the Legislature. I think, therefore, that our former decision must be held to be wrong and that the appeal must be dismissed with costs.
3. I agree that this review must be allowed. At the first hearing the case of Ram Chandra Dutt v. Jogeswar Narain Deo 20 C. 758 was not cited, nor was our attention drawn to illustration (e) of Section 32 of the Evidence Act. Under that section a statement of a relevant fact by a deceased person is relevant if the statement relates to the existence of relationship. The line of thought which influenced me at the first hearing was that the statement of the date of birth in Nistarini's application for guardianship was not a statement relating to the existence of relationship. But that statement must be read with the statement in paragraph 9 of the application, and that the two statements when read together are admissible to prove the defendant's age is shown by illustration (e) of Section 32.