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Hara Kumar De Vs. Jogendra Krishna Ray and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in71Ind.Cas.336
AppellantHara Kumar De
RespondentJogendra Krishna Ray and anr.
Cases ReferredOriental Government Security Life Assurance Co. Limited v. Sarat Chandra Chatterji
Excerpt:
evidence act (i of 1872), section 35 - evidence, admissibility of--certificate of guardianship, nature of--certificate, whether admissible to prove minority--order for appointment of guardian of minor--admissibility to prove age of minor. - .....the date of a's birth and made in a former action to which the plaintiff was not a party, was held inadmissible as evidence for a to prove his age, though it would be otherwise on matters of pedigree. this does not accord with the decision of the judicial committee in mahomed syedol ariff v. yeoh ooi gark 39 ind. cas. 401 : 43 i.a. 256 : 21 c.w.n. 257 : (1917) m.w.n. 162 : 19 bom. l.r. 157 : (1916) 2 a.c. 575 : 86 l.j.p.c. 15 : 115 i.t. 564 : 33 x.l.r. 678 (p.c.). the decision in oriental government security life assurance co. limited v. sarat chandra chatterji 20 b. 99 : 10 ind. dec. (n.s.) 624, which was mentioned in the course of argument, only shows that declarations by relatives may be received to prove the age of the insured in an action against the company, the contract.....
Judgment:

Asutosh Mookerjee, J.

1. This is an appeal by the defendant in a suit to recover the principal sum and interest thereon, due on a promissory-note executed by him in favour of the plaintiffs on the nth June 1915. The defendant admitted the execution of the document, but contended that, as he was born on the 6th February 1895, and had a certificated guardian, the note was void because of his minority. The Trial Court gave effect to this contention and dismissed the suit. Upon appeal, the District Judge has reversed that decision and has decreed the suit. The District Judge has held that the oral evidence adduced on behalf of the defendant in proof of the date of his birth was unreliable, which is conclusive in second appeal; he has also held that the documentary evidence was inadmissible in law. The documentary evidence consisted of an order made by this Court on the 15th August 1910 for the appointment of a guardian of the person of the defendant, which contains a recital that the defendant was born on the 6th February 1895. The defendant also produced a subsequent order of this Court for discharge of the guardian, made on the assumption that he had attained his majority on the 6th February 1916. On the presents appeal the argument has been restricted to the question of the admissibility of the recital of the date of birth of the defendant in the orders for the appointment and discharge of his guardian. This question must plainly be determined with reference solely to the provisions of the Indian Evidence Act; see the observations of the Judicial Committee in Lekeraj Kuar v. Mahpal Singh 7 I.A. 63 at p. 65 : 5 C. 744 : 6 C.L.R. 593 : 4 Sar. P.C.J. 93 : 3 Suth. P.C.J. 704 : Rafique and Jackson's P.C. No. 61 : 4 Ind. Jur. 423 : 2 Ind. Dec. (N.S.) 1081 (P.C) : see also the decision of the Full Bench in Emperor v. Panchu Das 58 Ind. Cas. 929 : 47 C. 671 : 31 C.L.J. 402 : 24 C.W.N. 501 : 21 Cr.L.J. 849 (F.B.).

2. The decision in Satis Chandra Mukhopadhya v. Mohendra Lal 17 C. 849 : 8 Ind. Dec. (N.S.) 1110 shows that a certificate of guardianship is a document which is issued to a person, appointing him the guardian of another person, on the ground that that person' is a minor. This certificate is neither a book nor a register nor a record kept by any officer in accordance with any law, but is a certificate, as it professes to be, of which there is only one, and which is not a public record or register of any kind, but is a document issued to a particular person, giving to that particular person and only to him, a particular kind of authority. On these grounds, Petheram, C.J., held that the certificate could not be regarded as evidence of minority under Section 35 of the Indian Evidence Act. This was followed by Edge, C.J., in Gunjra Kuar v. Ablakh Pande 18 A. 478 : A.W.N. (1896) 158 : 8 Ind. Dec. (N.S.) 1025 and the decision of the Judicial Committee in Mungniram v. Gursahai Nand 17 C. 347 : 16 I.A. 195 : 13 Ind. Jur. 449 : 5 Sar. P.C.J. 463 : 8 Ind. Dec. (N.S.) 770 does not militate against this view.

3. This, however, does not conclude the question of admissibility, for, though not admissible under Section 35, either of the documents may be admissible under some other provisions of the Indian Evidence Act. If it were treated as a judgment, it would clearly not be admissible as a judgment in rem, like a grant under the Probate and Administration Act; Hemangini Debi v. Sarat Sundari Debya 66 Ind. Cas. 882 : 34 C.L.J. 457. On the other hand, treated as a judgment not in rem and not inter partes, it would be admissible not to prove its contents but only to prove that such a judgment was in fact pronounced; see Basi NathPal v. Jagat Kisore Acharjee 35 Ind. Cas. 298 : 23 C.L.J. 583 : 20 C.W.N. 643, Tripurana Seethapati Rao Dora v. Rokkam Venkanna Dora 66 Ind. Cas. 280 : 42 M.L.J. 324 : 15 L.W. 316 : 30 M.L.T. 160 : (1922) M.W.N. 147 :45 M. 332 : (1922) A.I.R. (M.) 71, Ram Parkash Das v. Anand Das 33 Ind. Cas. 583 : 43 C. 707 : 43 I.A. 73 : 20 C.W.N. 802 : 14 A.L.J. 621 : (1916) M.W.N. 406 : 31 M.L.J. 1 : 18 Bom. L.R. 490 : 3 L.W. 556 : 24 C.L.J 116 : 20 M.L.T. 267 (P.C).

4. The only other provision which has been invoked by the appellant is that contained in Section 32(5) of the Indian Evidence Act, which renders admissible statements relating to existence of relationship, made before the question in dispute was raised, when the person making the statement had special means of knowledge and is dead at the time of the suit, or cannot be found, or has become incapable of giving evidence, or cannot be procured without an unreasonable amount of delay or expense. In such circumstances, it has been held that a statement by the defendant's aunt in an application for guardianship, that he was born on a certain date, is admissible under Section 32(5); see Monindra Mohan Roy v. Ram Krishna 28 Ind. Cas. 595 : 21 C.L.J. 621, overruling Ram Krishna v. Monindra Mohan Ray 27 Ind. Cas. 30 : 20 C.L.J. 302, which had been doubted in Achyutananda Das v. Jagannath Das 27 Ind. Cas. 739 : 21 C.L.J. 96 : 20 C.W.N. 122. This accords with the decisions in Ram Chand a Dutt v. Jogeswar Narain Deo 20 C. 758 : 10 Ind. Dec. (N.S.) 511, Dhanmull v. Ram Chunder Ghose 24 C. 265 : 1 C.W.N. 270 : 12 Ind. Dec. (N.S.) 844 and Oriental Government Security Life Assurance Co. Limited v. Narsimha Chari 25 M. 183 : 11 M.L.J. 379. On his principle, it has been ruled that a statement made by the father of a boy as to the date of his birth, which forms the foundation of a horoscope, is receivable in evidence under Section 32(5); Annamalai Chetii v. Annamalai Chetti 52 Ind. Cas. 456 : 10 L.W. 67, Ramanathan Chetty v. Murugappa Chetty 33 Ind. Cas. 969 : (1916) 1 M.W.N. 208 : 3 L.W. 21; Amardayal Singh v. Liar Pershad Sahu 58 Ind. Cas. 72 : 5 P.L.J. 605 : 1 P.L.T. 511, Patinharkuru v. Raman Varma 24 Ind. Cas. 519 : 28 M.L.J. 669. This view receives support from the decision of the Judicial Committee in Mahomed Syedol Ariff v. Yeoh Ooi Gark 39 Ind. Cas. 401 : 43 I.A. 256 : 21 C.W.N. 257 : (1917) M.W.N. 162 : 19 Bom. L.R. 157 : (1916) 2 A.C. 575 : 86 L.J.P.C. 15 : 115 I.T. 564 : 33 X.L.R. 678 (P.C.). The defendant, however, is not entitled to the benefit of Section 32(5), because it transpires that the guardianship proceedings were founded on an application and affidavit made by one Panna Lal Seal, who was alive during the trial of the suit in the Primary Court and might have been, but was not called. The fact that he has since then died, apparently during the pendency of the appeal in this Court, clearly cannot improve the position of the defendant.

5. We may add that our attention was invited on behalf of the respondent to the decision in Haines v. Guthrie (1884) 13 Q.B.D. 818 : 53 L.J.Q.B. 211 51 L.T. 645 : 33 W.R. 99 : 48 J.P. 756, which lays down an even stricter rule than what is contemplated by the Indian Evidence Act. There, in an action against A for goods sold, to which A pleaded infancy, an affidavit by A's father (deceased) stating the date of A's birth and made in a former action to which the plaintiff was not a party, was held inadmissible as evidence for A to prove his age, though it would be otherwise on matters of pedigree. This does not accord with the decision of the Judicial Committee in Mahomed Syedol Ariff v. Yeoh Ooi Gark 39 Ind. Cas. 401 : 43 I.A. 256 : 21 C.W.N. 257 : (1917) M.W.N. 162 : 19 Bom. L.R. 157 : (1916) 2 A.C. 575 : 86 L.J.P.C. 15 : 115 I.T. 564 : 33 X.L.R. 678 (P.C.). The decision in Oriental Government Security Life Assurance Co. Limited v. Sarat Chandra Chatterji 20 B. 99 : 10 Ind. Dec. (N.S.) 624, which was mentioned in the course of argument, only shows that declarations by relatives may be received to prove the age of the insured in an action against the Company, the contract allowing resort to non-admissible evidence.

6. We are of opinion that the District Judge has correctly held that the orders for the appointment and discharge of guardian could not be received in evidence to prove the date of birth of the defendant from the recitals contained therein. The decree made by the District Judge must consequently be affirmed and this appeal dismissed with costs.


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