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Muktipada Dawn Vs. Aklema Khatun - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 203 of 1946
Judge
Reported inAIR1950Cal533
ActsEvidence Act, 1872- Sections 32(5), 35, 41 and 65; ;Guardians and Wards Act, 1890 - Section 7
AppellantMuktipada Dawn
RespondentAklema Khatun
Appellant AdvocatePurushottam Chatterjee and ;Hemanta Kumar Dutt, Advs.
Respondent AdvocateBhola Nath Roy and ;Ramendra Mohan Mazumdar, Advs. for ;Deputy Registrar
Cases ReferredHarchand v. Dewan Singh
Excerpt:
- .....defendants claiming partition of the properties described in schedule ka to the plaint. the suit was decreed ex parte on 10th september 1940 and in execution of the decree for costs defendants 1 to 8 had put up to sale the property described in schedule kha to the plaint, which was alleged to have been in the exclusive possession of the plaintiff. it is further stated that the property in suit was purchased by defendant 1 in the benami of defendant 9. it is contended that the plaintiff was a minor both when the decree in t. s. no. 87 of 1940 was passed as also when the decree was put into execution. the plaintiff had originally brought t. s. no. 19 of 1942 on grounds similar to those as in the present suit but she having failed to take necessary steps in time the plaint was.....
Judgment:

R.P. Mookerjee, J.

1. This is an appeal on behalf of defendant 9 and arises out of a suit brought by the plaintiff for recovery of possession after declaration of her title to the properties in suit. There is a further prayer that it may be declared that a certain decree and the proceedings in execution thereof are not binding against her on the ground that though she had not attained majority before the relevant time she was described in those proceedings as sui juris.

2. The undisputed facts may be shortly stated. Some of the defendants and predecessors in interest of some others had brought a suit (T. S. No. 87 of 1940) against the plaintiff and the pro-forma defendants claiming partition of the properties described in Schedule Ka to the plaint. The suit was decreed ex parte on 10th September 1940 and in execution of the decree for costs defendants 1 to 8 had put up to sale the property described in Schedule Kha to the plaint, which was alleged to have been in the exclusive possession of the plaintiff. It is further stated that the property in suit was purchased by defendant 1 in the benami of defendant 9. It is contended that the plaintiff was a minor both when the decree in T. S. No. 87 of 1940 was passed as also when the decree was put into execution. The plaintiff had originally brought T. S. No. 19 of 1942 on grounds similar to those as in the present suit but she having failed to take necessary steps in time the plaint was rejected by the Court. The present suit was filed thereafter. The plaintiff claims that she is not bound by the decree passed in T. S. No. 87 of 1940 and the sale in execution of the said decree does not affect her title to the property. The defence is that defendant 9 was a bona fide purchaser for value, the plaintiff had attained majority before the passing of the decree in T. S. no. 87 of 1940, and that the plaintiff is not entitled to any relief in the present suit.

3. The learned Munsif found in favour of the defendant and held that the plaintiff was not a minor when the decree in question had been passed. The suit was accordingly dismissed. On appeal by the plaintiff the learned Subordinate Judge has held that the plaintiff was a minor when the decree in T. S. No. 87 of 1940 was passed. The decree was a nullity and the plaintiff's title to the Kha schedule properties have not been affected by the subsequent sale in execution of the said decree. Defendant 9 has come up on appeal to this Court. The only point urged on behalf of the appellant is that the decision by the Court of appeal below on the question of the minority of the plaintiff is based upon inadmissible evidence.

4. To prove that the plaintiff was a minor at the relevant time she did not examine herself or her mother. Her husband had been examined and reliance was placed upon the three following documents: (1) A certified copy of the order sheet, recording the appointment of a guardian of the plaintiff, in the Act VIII case wherein it is recorded that the plaintiff was 6 years old in 1928, (Ex.-1A); (2) a certified copy of another order in the same Act VIII case recording that the plaintiff would attain majority on 18th September 1941 (Ex. 1B); and (3) the petition filed in course of the guardianship proceedings by Abdul Barik Midya on 8th June 1926 for being appointed guardian of the person and property of plaintiff (Ex. 3 in the case).

5. The question whether the above papers, marked as exhibits, are admissible in evidence to prove the age of the plaintiff must be determined with reference solely to the provisions of the Evidence Act. Lekraj Koer v. Mahapal Singh, 71. A. 63 : (5 Cal. 744 P. C.), Emperor v. Panchu Das, 47 Cal. 671 : (A. I. R. (7) 1920 Cal. 500 : 21 Cr. L. J. 849 F. B.).

6. Items 1 and 2 (Exs. 1A and 1B) ate certified copies of the order sheet of the guardianship proceedings. If either of these two papers be admissible in evidence to prove the age of the plaintiff it would show conclusively the date upto which the plaintiff had continued to be a minor.

7. A certificate of guardianship issued by the Court has been held not to be admissible in evidence under Section 35, Evidence Act to prove the minority of a person. Such certificate is neither, a book nor a register nor a record kept by any officer in accordance with any law. It is a certificate, as it professes to be, and is a document issued to a person giving that person and only to him a particular kind of authority. Petheram C. J held in Satish Chunder v. Mohendro Lal, 17 Cal, 849, that the certificate cannot be regarded as evidence of minority under Section 35. Evidence Act: Edge C. J. followed this decision in Gunjra Kuar v. Ablock Pandey, 18 ALL. 478 : (1896 A. W. N. 158). The same view has been expressed in later cases also by Rampini and Mookerjee JJ. in Hemchandra v. Bhaba Prosad, 2 C. L. J. 69n and by Mookerjee and Chotzner JJ. in Hara Kumar v. Jogendra Krishna, 38 C. L. J. 186 : (A. I. R. (11) 1924 Cal. 526).

8. It has next to be considered whether, even though the certificate may not be admissible under Section 35 the certified copies of the orders passed by the Court in the guardianship proceedings are admissible under some or other provisions of the Act. The orders passed in the guardianship proceedings cannot be treated as a judgment in rem as in the case of a grant made under the Succession Act: Hemangini Debi v. Saratsundari, 34 C. L. J. 457 : (A. I. R. (8) 1921 Cal. 292). Even though an order is not a judgment in rem or inter partes it may be admissible only to prove that such an order had in fact been made but not to prove its contents. Ram Parkash v. Anand Das, 43 I. A. 73 : (A. I. R. (3) 1916 P. C. 256), Ram Ranjan v. Ram Narain, 22 I. A. 60 (22 Cal 533 P. C.), Dinomoni v. Brojomohim, 29 I. A. 24 : (29 Cal. 187 P. C.). The certified copies of the orders are not therefore, available even as being judgments to prove the age of the plaintiff.

9. In Kishorilal v. Adhar Chandra, 76 C. L. J. 61 : (A. I. R. (29) 1942 Cal. 438), reliance was placed on Sadique Ali Khan v. Joy Kishori, 47 C. L. J. 628 : (A. I. R. (15) 1928 P. C. 152), a decision of the Judicial Committee in support of the contention that an application for appointment of a guardian made by the father as well as the certificate of guardianship granted by the Judge had been admitted in evidence and relied upon. B. K. Mukherjea J., observed (at p. 65):

'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 also 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 as admissible in all circumstances to prove the age of minority and in our opinion the decisions in Harakumar De v. Jogendra Krishna, 38 C. L. J. 186 : (A. I. R. (11) 1924 Cal. 526) and Prohlad Chandra v. Ram Saran, 38 C. L. J. 213 : (A. I. R. (11) 1924 Cal. 420) are quite correct.'

The Privy Council decision above mentioned was an appeal from a decree of the Court of the Judicial Commissioners of Oudh dated 27th May 1925. The judgment appealed from is reported as Joy Kishori v. Ali Ahmad Khan, A. I. R. (12) 1925 Oudh 487 : (89 I. C. 108). From the statement of facts appearing in this report it will be noticed that Kassim Ali Khan, the father and Raisunnessa, the mother, of the minor mortgagors were both of them, dead. The application filed by the father for being appointed guardian of the minors will clearly, under the circumstances, be admissible. There were other pieces of evidence also in the case in support of the contention that the mortgagors were at the relevant time minors. It is true that neither was any objection raised before nor was the question of the admissibility of the guardianship certificate considered by the Judicial Committee. This decision cannot as already observed by B. K. Mukherjea J. be considered to be an authority for the proposition that such documents are admissible under all circumstances.

10. The last item (EX. 3) has now to be considered. The original record of the guardianship case had been called for and the petition filed by Abdul Barik Mondal was marked as an exhibit, it having been proved by the plaintiff's husband without any objection. Abdul Barik, who made the statement in the petition, has not been examined in this case. The statement appearing in this petition about the date of birth is in substance a statement by a person who made the application. The recital of the date of birth in the application for appointment of a guardian is not by itself admissible in evidence upon mere production of the document but may be rendered admissible under certain circumstances: Krishna Mangul Saha v. Akbar Jumma Khan, 9 C. L. R. 213, Dhanmull v. Ramchunder, 24 Cal. 265 : (1 C. W. N. 270), Ram Chandra v. Jogeswar, 20 Cal. 758, Monindra v. Ram Krishna, 19 C. W. N. 646 : (A. I. R. (3) 1916 Cal. 529), Mohammad Syedol Ariffin v. Yeoh, 43 I. A. 256 : (A. I. R. (3) 1916 P. C. 242). If however the conditions recited in Section 32(5) Evidence Act, are satisfied, that is, a person who had made this statement had special means or knowledge of the relationship and he is now dead or cannot be found such statement in the petition will be admissible Further, the statement made in the application may be used under Section 155, Evidence Act to impeach the credit of the person who made the statement while he is being examined as a witness in the case. Prohlad v. Ramsaran, 38 C. L. J. 213 : (A. I. R. (11) 1924 Cal. 420). The statement in the application may also as being the former statement as to a fact be admissible under Section 157, Evidence Act to corroborate the later testimony of the witness; Harchand v. Dewan Singh, 1929 A. L. J. 615 : A. I. R. (16) 1929 ALL. 550., Abdul Barik who had filed the petition had not been examined though he was still alive. It, however, appears from the evidence that Abdul Barik is not now on good terms with the plaintiff. As he has not been examined the source of his knowledge about the age of the plaintiff and also whether he was a proper witness to prove her age could not be investigated.

11. As already observed the petition Ex. 3 was marked without any objection and the plaintiff was under a misapprehension that no further evidence was necessary in view of the clear statement contained in those documents. The original of the guardianship proceedings had been sent for and after comparison the certified copies were made exhibits without any objection from either side. The question is whether the parties should be given an opportunity for adducing evidence for letting in the statement contained in Ex. 3. I think 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 re-heard. The plaintiff will be given an opportunity to prove the statement made in the petition Ex. 3 as a statement made by Abdul Barik and also whether the latter had any special knowledge of the date of birth of the plaintiff. The defendant will be at liberty to adduce any evidence in rebuttal thereof.

12. It is not for me to express any opinion at this stage as to evidentiary value of the recital, as to the age of the plaintiff in the guardianship application. There are other pieces of evidence in the case which also will have to be considered along with the additional evidence which will be recorded by the Court below. The case is to be disposed of after taking into consideration the entire evidence in the record both before and after remand. The Court of appeal below will come to a decision as to whether in fact the plaintiff was or was not a minor on the material date. The result, therefore, is that the appeal is allowed and the case remitted to the lower appellate Court for disposal according to the directions given above. There will be no order for costs in this Court. Further costs will be in the discretion of the said Court.


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