Sulaiman, C.J:— This is a plaintiff's appeal arising out of a suit for damages for breach of contract.
On the 18th September 1925 the plaintiff's husband sold half of a village called Aghwan Hera to the defendant for Rs. 35,000. On the 1st December 1925 three documents were executed, one was a sale deed by the defendant to the plaintiff for Rs. 25,000 returning the village previously purchased, another a sale deed by the plaintiff to the defendant for Rs. 28,000 of shares in another village, Pilkhani, and a third a security bond executed by the defendant in favour of the plaintiff.
Under the sale deed executed by the plaintiff in favour of the defendant Rs. 8,200 were acknowledged to have been previously received, and Rs. 19,800 were left in the hands of the defendant to be paid in equal amounts to two previous creditors. There was a statement in the deed that there were no prior encumbrances. Under the security bond executed by the defendant, he agreed to indemnify the plaintiff, if he did not carry out his part of the contract. The rubkar of the appellate court dated the 23rd February, 1926 indicates that mutation of names was effected in favour of the defendant. Basant Singh, in respect of the village Pilkhani.
It is not now disputed that the defendant did not discharge the prior encumbrances. The plaintiff has accordingly brought this suit for damages for the breach of this contract.
The claim was resisted on the ground, first, that the defendant was a minor on the 1st December 1925, and therefore is not bound by the contract made with the plaintiff. Secondly, that the contract had been obtained by fraud and misrepresentation, and is voidable at the option of the defendant.
The learned Subordinate Judge has come to the conclusion that the defendant was, in fact, a minor on the date of this transaction and that the document was obtained under some misrepresentation. He has accordingly dismissed the suit. In appeal his findings are challenged.
It would be convenient to take up the question of the minority of the defendant in the first place. It cannot be disputed that the burden of showing that the defendant was a minor on the date when he entered into the contract with the plaintiff lies heavily upon the defendant. We may only refer to the recent pronouncement of their Lordships of the Privy Council in the case of Nawab Sadiq Ali Khan v. Jai Kishori(1). The only question is whether the defendant has discharged this burden. The defendant produced three witnesses, besides himself, as to his age. The learned Subordinate Judge has not referred to the oral evidence on this question at all and has based his finding exclusively on the documentary evidence. The reason, in our opinion, is obvious. The oral evidence was not such as could be implicitly relied upon.
[Their Lordships, after discussing the oral evidence showing that the defendant was a minor when he entered into the contract, came to the conclusion that in their opinion, in a case of this kind they cannot accept the testimony of such witnesses, especially when they had not been relied upon by the learned Subordinate Judge who heard them.]
The case for the defendant rests entirely on the documentary evidence. This consists of (1) an entry in a birth register of the year 1906, (2) the deed of adoption dated the 8th July 1907, (3) a plaint filed by certain collaterals, Mewa Singh and others, dated the 30th March 1908 to set aside the deed of adoption, and (4) a plaint dated the 23rd August 1919 filed by Basant Singh through his certificated guardian for setting aside an alienation. The learned Subordinate Judge has strongly relied on all these pieces of evidence and has considered the documentary evidence produced on behalf of the plaintiff, which we shall discuss later, as insufficient to overweigh this evidence.
In a case of this kind where the principal question is one of fact, we would have been most reluctant to take a different view of the evidence, if we were not of the opinion that some of the documents relied upon by the court below are legally inadmissible in evidence.
We first take up the entry in the birth register of 1906-It shows that a boy was born to one Jwala, resident of Vihyen Pooin, who was a Hindu, on the 4th February 1906. The name of the informer was Lalu. No evidence was produced to connect this Jwala with the father of the defendant; nor can there be any certainty that there was only one person of the name of Jwala in this village Vihyen Pooin. The full name of the defendant's father was Sardar Jwala Singh.
In our opinion, a mere entry of this kind, assuming that this is a genuine record, would fail to establish the identity of the defendant's father; much less would it be any proof that this refers to the birth of the defendant and not to any younger brother of his. We are, therefore, of opinion that an entry of this type standing by itself is wholly insufficient to show that it refers to the defendant. We have given fuller reasons in our judgment in the case of Said-un-nissa Bibi v. Ruqaiya Bibi.
The deed of adoption was executed by the defendant's adoptive mother, Rani Bishen Kuer, and bears her signature in Gurmukhi. The endorsement of the Sub-Registrar says that she was a purdanashin lady and admitted the execution and completion of the document from behind the purdah of a wooden door leaf. In this document she refers to the fact of having adopted the boy, and that he would be the owner of the entire property of her husband like the begotten son of her husband. She also states that she had performed the adoption ceremonies according to the custom prevailing in her husband's family, and further states “at present Basant Singh aforesaid is about 1½ years old”. The lady is dead and cannot now be called. The condition required in the opening portion of section 32 of the Indian Evidence Act, which alone is relied upon for purposes of admissibility, is therefore fulfilled.
The learned advocate for the respondent strongly argues that this document falls within sub-section (5) of section 32, and that the statement, inasmuch as it relates to the existence of relationship by blood and adoption made by a person having a special means of knowledge and at a time when no question in dispute had arisen, was admissible in evidence.
There can be no doubt that the rule of English law is particularly strict, and the admission of hearsay evidence in pedigree cases is confined to the proof of pedigree and does not apply to proof of the facts which constitute a pedigree, such as birth, death and marriage, when they have to be proved for other purposes. In Haines v. Guthrie(2), an affidavit filed by the defendant's father stating the date of the defendant's birth in an action to which the plaintiff had not been a party was held inadmissible as evidence of the age of the defendant in support of his defence in India we have section 32 of the Indian Evidence Act, which does not seem to be so strict. It is, however, clear that if a statement does not fall within section 32, it could not be admissible under section 11 of that Act. Bela Ram v. Mahabir Singh and Munna Lal v. Kameshari Dat there is a difference between the existence of a fact and a statement as to its existence. Section 11 makes the existence of facts admissible, and not statements as to such existence, unless of course the fact of making that statement is itself a matter in issue.
If we were to take the sub-section (5) of section 32 literally, it might in one sense be said that a statement relating to the age of a boy is not a statement relating to the existence of any relationship by blood or by marriage. But it has been laid down by their Lordships of the Privy Council in the case of Mahomed Syedol Ariffin v. Yeoh Ooi Gark(3), following an observation made by a learned Chief Justice of the Madras High Court, that the question of age falls within this sub-section because it indicates the commencement of such relationship. When a person says that his relation was born on such and such a date, he by implication states that his relationship with the person came into existence on that date. In this view of the matter, a statement made as regards age would be tantamount to a statement as to the existence of relationship.
The learned advocate for the appellant, however, argues that ruling is not applicable to the case before us. The relationship between Rani Bishen Kuer and Basant Singh arose by virtue of his adoption, and not by virtue of his birth. The statement as to the date of adoption made by the adoptive mother would, therefore, undoubtedly come under sub-section (5), because it would be the commencement of the relationship by adoption with her. But it is urged that her statement that the boy had been previously born on a particular date is no part of any statement as regards the commencement of her relationship with him, and is therefore not admissible. It is true that to some extent the statement made by Rani Bishan Kuar as regards the age of the boy in the deed of adoption is distinguishable from the admission made by the father as to the age of his son in the case of Mahomed Syedol Ariffin v. Yeoh Ooi Gark. Nevertheless we think that we must apply the same principle to this case and hold that the statement made by the adoptive mother as regards the age of the boy, although it would not show her own relationship with him, was equally admissible. There is no doubt that their Lordships of the Privy Council have interpreted this sub-section in a liberal sense and it seems to be our clear duty to follow that example.
We are also of opinion that although there is something to be said for the view that she might possibly not have had special means of knowledge we must in this, case presume that she had such special means.
The learned advocate for the appellant points out that the defendant had been born in Vihyen Pooin which is in the district of Amritsar at some distance from the village in Saharanpur where his adoptive mother used to reside and that she might not have had personal knowledge of his birth. She must however have of necessity seen the boy at the time of the adoption and she must have made enquiries about him before the adoption. It may be that the age given in the deed of adoption was based on what she had heard from his parents or relations, or that it was based on her estimate of the age of the boy when she saw him. The estimate is approximately given, and the exact date of his birth is not stated. In view of all these circumstances, we think that we must hold that an adoptive mother who sees the boy at the time of the adoption, and who would in all probability have made enquiries about him, is a person who must be deemed to have special means of knowledge within the meaning of section 32(5). The learned advocate for the appellant has drawn our attention to the allegation made by the defendant's guardian in the plaint filed by him in 1919 that the lady was under the influence of Uttam Singh, who had obtained a deed of transfer in his favour before the adoption, and has suggested that Uttam Singh might have been anxious to prolong the period of the defendants minority in order to protect himself against any suit for setting aside the transfer, and has also urged that the lady herself might have been anxious to prolong the period of his minority in order to keep control over the property. But such suggestions are really directed against the weight of the evidence and not its admissibility. The question of its value, of course, is another matter.
We now come to the plaint of 1908 filed by a large number of collaterals. The defendant led no evidence to show that any of the persons who signed the plaint was dead or that he could not be found or that he had become incapable of giving evidence of that his evidence could not be procured. He, therefore, did not lay the foundation for the admission of this previous statement under section 32 of the Indian Evidence Act.
He did produce one Santa Singh, whose name was mentioned in the array of the plaintiffs, and who stated that he had filed a suit for the cancellation of the adoption. Santa Singh, however, is not one of the signatories to the plaint, and the allegation contained in the plaint cannot be regarded as a previous statement made by Santa Singh. We, therefore, think that in the absence of any evidence to show that the persons who actually made the statement and signed the plaint could not be conveniently produced, the plaint was not admissible in evidence at all. The mere fact that the signatories claimed to be collaterals, and some of them were residents of the same village, would not by itself necessarily imply that they had special means of knowledge as to the birth of the defendant. We, therefore, hold that this plaint is not admissible. We also think that an approximate estimate of the age of the defendant made by that party who might not have had any special means of knowledge is not of much value.
We now come to the certificate of guardianship of the year 1915. It may be noted that the defendant has produced the original certificate of guardianship granted to his certificated guardian by the District Judge, but not the application which was filed by the guardian. This certificate is on a printed form, and the note which we got recorded at the time, after inspecting it, would show that the words “date of birth—9th February 1906”, on which strong reliance is placed in order to prove the date of the birth of the defendant are put down as a marginal note, and not in the body of the document, and they are in a different ink and pen from the earlier marginal note which gives the name, parentage, caste and residence of the guardian, Pala Singh. In the body of the document the period during which the defendant's minority is to continue is stated to be up to February 1926. This is the only place where, according to the printed form, there is a blank place where his age could be specified. As noted above, there are two additions on the margin in manuscript, one giving the description of the guardian in a few lines, followed by other lines giving the date of the birth of the defendant in a different ink. Apart from the fact that the note giving the date of the birth is in ink different from that in which the other marginal note is written, there is a discrepancy between this date and the period of minority entered in the body of the document. We have also noted that although there is no ground for suspecting that any one on behalf of the defendant has tampered with the figure 1906, there is no doubt that figure 4 is also visible at the same place. We do not, however, regard it as a suspicious circumstance operating against the defendant for two reasons. First, because although we are not certain about it, figure 4 seems to have been written over figure 6 and not vice versa, and, secondly, because: no objection as to the genuineness of this marginal note was raised at the trial when the document was admitted against the plaintiff. The only thing that can be said is that it was not specifically admitted by the plaintiff (vide the admission of his vakil as found in the statement signed by him, and the note made by the Subordinate Judge at the end of the deposition of Mohammad Saddiq is differently recorded, but it is not signed by the vakil). The fact of a discrepancy between the period of minority ending in February 1926, as mentioned in the body of the document, and the date of the birth mentioned in the marginal note stands, and we find nothing suspicious in the year 1926 as written in the body of the document. This year would not tally with the year as given in the plaint; but it would still make the defendant a minor on the 1st December 1905. We are not prepared to regard this certificate of guardianship, in view of the discrepancies in the year in the same document, as being of any great value or a document on which we could implicitly depend, particularly when, as will be shown later, the original application of the guardian containing the date of the birth of the defendant is not produced, and the defendant has further omitted to produce the previous application for guardianship made by his own father.
We further think that this document is wholly inadmissible in evidence. It cannot be admitted under section 32 of the Indian Evidence Act, because it is signed by the District Judge who cannot be said to be a person having any special means of knowledge as to its contents. It is, however, urged that the document falls under section 35 of the Indian Evidence Act. In the case of Said-un-nissa Bibi v. Ruqaiya Bibi we have given our reasons for holding that this document cannot fall under section 35 of the Indian Evidence Act, because it does not contain any entry in any public or other official book register or record, inasmuch as there is no rule requiring the District Judge to maintain any such official book, register or record. Our view is in accordance with the view taken in an earlier case in this Court, and has been followed by the Calcutta and Patna High Courts. The Oudh Court, on the other hand, has taken a contrary view and that Court seems to have been of the opinion that such a certificate is admissible.
The learned counsel for the respondent relies strongly on the case of Nawab Sadiq Ali Khan v. Jai Kishori, decided by their Lordships of the Privy Council, and strenuously contends that we are bound by that ruling and must hold that the certificate is admissible in evidence.
In that case also the question of the minority of the defendant was in issue. The burden was held to lie on the defendants, and in order to discharge it they produced a deed of gift executed by their mother in their favour, in which their ages were stated, also an application for guardianship filed by the father in which their ages were stated, the order of the court granting the application and the certificate of guardianship issued by the court. Then again there was another application filed by the mother, who was subsequently appointed guardian in the place of the father, the order granting that application and the certificate of guardianship issued thereupon. So far as the record of the court was concerned, the defendants were obviously minors and under 21 years of age on the date when they executed the mortgage deeds. But the proceedings relating to the registration of the document indicated that it was assumed that the ordinary age of majority was 18 years and not 21. Their Lordships considered it to be reasonably certain that had the certificate of guardianship been brought under the notice of the Sub-Registrar, the transaction would not have been completed. This was all one sided evidence and there was nothing to contradict it. At page 687 their Lordships remark: “The documentary evidence and the proceedings instituted in elation to the two mortgagors are so weighty that, if they stood alone and were unchallenged, they would conclusively establish the fact of minority. Their lordships concluded that in their view this evidence was sufficient to satisfy the onus of proof which rested upon the appellants in the first instance. At page 69 their Lordships particularly emphasised that such evidence is always far less reliable than contemporaneous statements such as those made by the parents of the parties without any possible motive for misrepresenting the facts. The conclusion of their Lordships was that the onus of proving the minority was discharged. As the Oudh Court had been of opinion that a certificate of guardianship is admissible for the purpose of proving the age of a minor entered therein, this question was apparently not raised in the Oudh Court. Counsel before their Lordships of the Privy Council also did not raise any such question. Their Lordships' judgment indicates that their Lordships were resting mainly on the statement made by the parents of the minors, namely, those contained in the deed of gift, and the applications for guardianship, and not so much on the certificates of guardianship. Had there been any sentence in the judgment of their Lordships to indicate that their Lordships considered the certificate of guardianship, without the application on which it was based, to be itself admissible, it would have been our bounden duty to accept this document. We are of opinion that the mere fact that the certificate of guardianship was referred to by their Lordships of the Privy Council in Nawab Sadiq Ali Khan's case does not amount to overruling the previous decisions of this Court and other High Courts. We are, therefore, of opinion that until the ruling in Said-un-nissa's case, following an earlier ruling of this Court, is expressly overruled, we must reject this document.
The last document is a plaint dated the 23rd August 1919. It was filed by the defendant's certificated guardian, Pala Singh, and in paragraph 2 it was specifically stated that Basant Singh was born in 1906, and in paragraph 4 it was further stated that the plaintiff was about 1½ years old at the time of his adoption. But curiously enough at the head of the plaint the age of Basant Singh was put down as 15 years on the 23rd August 1919, which would tally more with the plaintiff's case that he was born in 1904 rather than with the defendant's case that he was born in 1906. There is, therefore, an obvious discrepancy in this very plaint, and one of the two statements is incorrect. One helps the plaintiff and the other helps the defendant. Standing by itself, therefore, we cannot consider it as a document of very great reliability.
We are further of opinion that this document also is not admissible in evidence. Pala Singh was summoned as a witness on behalf of the defendant in the list of witnesses, but he was not produced. There is no evidence on the record to show that he is dead or that he cannot be conveniently produced. In the absence of such evidence, the defendant did not, therefore, lay the foundation for proving this statement as required by the opening portion of section 32 of the Indian Evidence Act.
We must now deal with the point of estoppel raised on behalf of the defendant. It has been urged very strongly before us that it is not now open to the plaintiff's counsel to challenge the admissibility of the documents which were admitted in the court below, inasmuch as no such point was taken at the trial. That there is no reference to the question of admissibility in the judgment of the learned Subordinate Judge admits of no doubt. We are, therefore, prepared to presume in favour of the defendant that no question of the admissibility of these documents was raised at the time of the arguments.
We find from the order sheet that after the documentary evidence had been filed by the defendant, the plaintiff's counsel specifically stated that he did not admit the documents Nos. 1, 2 and 4 on the list. They were (1) a copy of the entry in the birth register, (2) the deed of adoption, and (3) the copy of the plaint filed by Basant Singh. The defendant attempted to summon one Lalu whose name appears in the entry in the birth register, produced Kala Singh, one of the attesting witnesses to the deed of adoption, and also summoned the original plaint of Pala Singh and produced a vakil to prove the signature. This was done on the 8th June 1929. After this the statements of the counsel for the parties were recorded and signed by them. It is in these words “Vakils for the parties state that copies of the documents registered or only obtained tendered in evidence by one party are admitted by the other”. The learned Subordinate Judge made a note of this admission at the foot of the deposition of a witness Mohammad Sadiq, Vakil, who proved the original plaint of Pala Singh. We may further note that on the same day the court noted that the defendant's exhibits F, G, H & K were taken in evidence. But the note made therein does not exactly tally with the admission made by the counsel which was signed by them. We think that we cannot be down the plaintiff's counsel to anything more than was admitted by him in the statement duly signed. He agrees to accept copies of all the documents which were registered or which had been duly obtained. That admission does not relate to any original document and particularly not to the deed of adoption which had not been admitted previously.
We are of opinion that when a party admits the genuineness of a document he is bound by his admission and cannot be allowed in appeal to go back upon it. But the question as regards the admissibility of the document would still be open to him if there has been no contrary admission in express language and no waiver. In the case of a trial by a jury the omission to waive an objection as to the admissibility of a document may not be allowed to be taken at a later stage because it would necessitate a retrial. But the position in the case of a trial by a Judge is quite different. We think that an appellate court which has the duty to weigh the evidence on both sides afresh and for its own satisfaction, is not bound to act upon inadmissible evidence merely because no objection to its admissibility was taken in express terms in the lower court. Indeed, we are inclined to think that it is our duty to ignore such a document if we are satisfied that it is not legally admissible. The learned advocate for the respondent relies on the case of Shahzadi Begam v. The Secretary of State and particularly on the passage in the judgment of their Lordships of the Privy Council at page 1074. But there the question of the admissibility of the document was neither raised in the trial court nor in the appellate court. On the other hand, assuming that it was admissible, the respondent's counsel was trying to challenge the document as a forged one. It was attempted to raise the question of its admissibility for the first time before their Lordships of the Privy Council, and accordingly their Lordships of the Privy Council observed, that they are further of opinion that it is now too late for the respondent to take an objection to the admissibility of a document which was received without objection at the trial. In the case of A.B Miller v. Madho Das their Lordships of the Privy Council remarked that an erroneous omission to object to the admission of inadmissible testimony did not make it available as a ground of judgment. No doubt there the question had arisen in the trial court itself. But there also, as pointed out above, there was no express waiver of any such objection on behalf of the plaintiff, though the judgment indicated that the point was not pressed at the time of the argument. We think that when weighing the evidence we must reject what we consider to be legally inadmissible. The learned advocate for the respondent also urges that if the plaintiff had taken the objection in the court below, his client might have been able to produce some further evidence in support of his case. We would, however, point out that the burden of proving the minority lay upon the defendant, and he led evidence in the first instance. The defendant was not entitled to assume that the evidence which he had led was necessarily sufficient and must be accepted by the court. Before he closed his evidence it was his duty to produce all the evidence which he thought it was necessary to produce and which was available.
We must now consider the evidence which has been produced on behalf of the plaintiff on this question of minority. The plaintiff being a stranger to the family has not produced any oral evidence, but has relied mainly on the previous admissions of the defendant and the admissions of his guardian. Reliance is also placed on the circumstance that, according to the admission of the defendant himself, the first guardian who had been appointed for him was his own father, Sardar Jwala Singh. No attempt has been made to produce the original application made by Sardar Jwala Singh or the certificate of guardianship granted to him. That would have been a far more reliable statement as regards the age of the defendant than that made by his uncle subsequently. We have already pointed out that the application for guardianship filed by Sardar Jwala Singh is not on the record. The certificate of guardianship is also not produced. We have already noted that the plaintiff further relies on the estimate of the age of the defendant as given by Pala Singh at the head of the plaint filed by him in 1919, which tallies with the year of birth as put forward on behalf of the plaintiff.
It appears that on the 18th April 1925 Pala Singh made an application before the Senior Subordinate Judge of Amritsar stating that the minor Basant Singh had come of age and that the guardian should be discharged. In that application, he distinctly stated that “Basant Singh minor has now become an adult and can manage his property”. The court on that very day ordered that Basant Singh had attained majority and he should have all accounts rendered to him by his guardian and file a receipt. On the same date Basant Singh filed a receipt in court in which he again stated that he had become an adult and had himself taken an account of income and expenses from his uncle. This receipt was verified by him before the Subordinate Judge.
It is difficult to believe that the Subordinate Judge passed the order discharging the guardian without seeing the file and satisfying himself that, according to the original application for the guardianship, the minor had attained majority. It is fair to presume that he must have done so, particularly when the record does not show that he made any enquiry or took down any oral evidence. It is, at any rate, certain that the Subordinate Judge himself saw the defendant on that date and might well have been convinced from his appearance that he must have come of age.
No reason has been suggested why the plaintiff's own uncle, the guardian, would have agreed to hand over the charge of the estate to a minor when the latter had in reality not become an adult. The defendant was apparently conscious of such an improbability, and in paragraph 8 of his written statement put forward an explanation which is obviously untrue. He stated that the advisers of the defendant, by an application made to the court, got the defendant's uncle, Pala Singh, removed from his office as guardian, and that the defendant was left no alternative but to look after his property himself. As shown above, there was no question of any removal of the guardian on the application of third parties. The guardian himself applied for a discharge on the ground that the minor had come of age.
On the 9th May 1925 Basant Singh filed an application in another suit praying that he had been declared by the court to be an adult and that in the plaint the words “minor under the guardianship of Pala Singh” might be struck off. On the 19th June 1925 he filed another application before the Senior Subordinate Judge stating that the court had previously discharged the guardian on the 18th April 1925, but had not declared the petitioner to have attained majority. He prayed that “the petitioner may be declared adult so that he may be able to do his work himself, or somebody may be appointed his guardian”. On this application the court ordered on the 20th June 1925 that the applicant, Basant Singh, had been declared adult by the previous order of the 18th April 1925. The defendant began to borrow money and executed a bond as an adult person on the 16th June 1925. In another case which was pending in the High Court a compromise was filed, in which it was stated that Basant Singh had already been declared major by the court under its order dated the 18th April 1925 and that he was competent to compromise the litigation. The compromise was signed by Basant Singh, and he was identified by his advocate.
In another application dated the 17th August 1925 Basant Singh applied to the District Magistrate of Saharanpur for the grant of a licence for a double barrel breach loading gun and stated that he had attained majority and that his guardian had been discharged. This application was granted by the District Magistrate on the same date and the sanction for the licence was given.
On the 28th August 1925 the defendant executed a sale deed in favour of another person as an adult person. On the 9th October 1925 a plaint on his behalf was filed for a perfect partition of a village through his general attorney, Phul Mohammad Khan, in which he again was described as of age. The defendant admits that he had executed a power of general attorney in favour of Phul Mohammad Khan. The previous admission of his authorised agent is admissible against him. It was after these transactions that the security bond in question was executed on the 1st December 1925.
Even after this date the defendant continued to describe himself as major. In the appeal preferred before the District Judge of Saharanpur on the 11th December 1926 he stated in the first ground of appeal that he had become an adult on the 18th April 1925. Similarly in a decree dated the 28th July 1927 he was described as of age. We have referred to the application made by Pala Singh to the District Judge merely for the purpose of counter-balancing to some extent the admission made by Pala Singh in the body of his plaint, as distinct from its heading. But we would consider that application is equally inadmissible in evidence because the plaintiff also has not made any attempt to summon and produce Pala Singh.
We must now dispose of one of the points urged on behalf of the appellants counsel. His contention is that inasmuch as the court declared the minor to have attained majority on the 18th April 1925 the order is final under section 48 of Guardians and Wards Act (Act VIII of 1890), and is not liable to be contested by suit or otherwise. We think there is absolutely no force in this contention. That section applies to a case where an order has been made under the Act. The Act contains no provision for the District Judge making an order declaring that the minor has attained majority. On the other hand, section 40 provides that a guardian may apply to the court to be discharged and if the court finds that there is sufficient reason for the application it shall discharge him. It does not go on to say that the court shall declare the minor to have attained majority in case that is the ground of discharge.
As a matter of fact, under the provisions of section 41, the powers of the guardian automatically cease on the ward ceasing to be a minor. No order by the court declaring him to have attained majority is required by section 41. We are therefore of opinion that the court, when it accepted the fact that the minor had attained majority, did not make any order under the Act which would be final and not liable to be contested by suit or otherwise. We think that it is open to the defendant to show that he had not attained the age of majority on that date, in spite of the orders passed by the Senior Subordinate Judge.
The question, therefore, resolves itself exclusively to one of weighing evidence. As remarked above, the burden of proving his minority on the 1st December 1925 lay heavily on the defendant, Apart from the oral evidence, which we have rejected as untrustworthy, the only evidence which we think can be legally admissible is the deed of adoption dated the 8th July 1907 executed by Rani Bishen Kuer, the defendant's adoptive mother. Its value would have been very great indeed if there were any question as to the date of the adoption and if the date were entered in the document. The date of the birth of the adopted boy as entered in the deed of adoption is not equally weighty. It must either have been based on what she heard from the boy's parents and relations, which is hearsay, though it may be admissible on a question of relationship, or she might have estimated his age by observing him. The estimate might be tolerably good, but cannot be exact. On the other hand, there is a possibility that the age was put down by some one responsible for the draft of the deed and that she took no objection to it. It is important to note that the exact date of his birth is not entered in it, but only his age “about 1 years old” is entered. It is obviously an approximate estimate. We have already noted that she was a purdanashin lady, and it may be a question whether an approximate estimate entered in a document signed by her is necessarily of great value. This evidence has been produced to contradict the previous admissions of the defendant and his course of conduct before the execution of the security bond in question. More reliable evidence, namely, the original application filed by his own father, Jwala Singh, for getting himself appointed as his guardian has not been produced; nor has his uncle, who was the next guardian, been produced as a witness; nor has any other relation of his who would have special means of knowledge as to the date of his birth been produced. Even the documentary evidence produced by the defendant, which we have rejected, contains discrepancies as regards the exact age.
Having regard to all these circumstances, we think that in a case of this kind where the defendant is repudiating a registered document solemnly executed by him, the burden of proving his minority has not been discharged by him. We, therefore, hold that it is not proved that the defendant was a minor on the 1st December 1925, and that therefore it is not proved that the security bond is void on that ground.
The next question is whether the transaction was voidable at the option of the defendant because of some misrepresentation made, or fraud committed, on behalf of the plaintiff.
The alleged misrepresentation consisted in assuring the defendant that there were no encumbrances on the property transferred, other than those mentioned in the deed of sale. The learned Subordinate Judge has emphasised the point that two more encumbrances were subsequently discovered which had not been disclosed at the time of the transaction. What he has overlooked, in the first instance, is that it was a part of the written agreement of contract that if it be proved contrary to the assurance that the property is not subject to any other encumbrance, hypothecation or transfer, the executant shall be responsible therefor. There was no covenant that the whole transaction would be voidable. The defendant, therefore, at most is entitled to throw the responsibility for the discharge of these extra encumbrances on the plaintiff, and can not repudiate the whole transaction.
Another point which has been overlooked by the learned Subordinate Judge is that there was some explanation as to why the two previous encumbrances were not mentioned in this deed, in paragraph 2 of the written statement the defendant referred to a prior debt of Lala Bhaggu Mal, Sehat Prasad and others, which he alleged had been fraudulently concealed. It, however, appears that the debt due to Sehat Prasad and others amounting to Rs. 20,000 had been incurred on the 4th July 1923 by the plaintiff's husband and that on the 7th July 1923 the present plaintiff had executed another document in favour of another person with regard to another property, under which she had left Rs. 20,000 in the hands of the transferee for payment to Lala Sehat Prasad. The plaintiff appears to have taken it for granted that the previous debt would, therefore, be discharged in this way. The learned Subordinate Judge has referred to this debt, and has pointed out that Rs. 20,000 were actually paid by Tarabai, but that the interest accumulated and in the year 1929 an amount of Rs. 1,800 only remained unrealised. The plaintiff is certainly liable to make good this amount; this circumstance cannot be treated as a misrepresentation which would nullify the whole transaction.
The other encumbrance is an amount which the plaintiff had undertaken to be responsible for as a surety under a security bond dated 5th September, 1923. It is pointed out by the counsel for the plaintiff that her liability would arise only in the event of the debt due from the principal debtor, her husband, not being recoverable from the property hypothecated by him. The property had been hypothecated by him for a sum of Rs. 28,000 and according to the evidence of Mohammad Ashiq, he had purchased the property for Rs. 60,000, so that the security was ample and the plaintiff thought that there was in substance no real liability upon her to make good any possible loss. Mohammad Ashiq further stated in his examination-in-chief that the of this village was sold by him for Rs. 15,000 and the mortgage was paid up (apparently, in part). The omission to mention this cannot be said to be such an omission as to make void the whole transaction.
We have already stated that it was a part of the terms of the sale deed that in case of any new encumbrance being discovered the executant would be liable for it. There was no provision that the whole transaction would fall through.
[The rest of the judgment deals with the evidence on the question of fraud and their Lordships found that fraud was not established.]
As, pointed out above the learned Judge has approached the question of damages from a different standpoint altogether. We ought therefore to have a clear finding as to the amount of damages to which the plaintiff is entitled on the supposition that the defendant was, of age on the date of the transactions in December 1925, and that there was no fraud committed by the plaintiff upon him which would render the transactions voidable.
We accordingly ask the court below to record a fresh finding on issue No. 4. The parties will not be allowed to produce any further evidence, as no one has been prevented from adducing any evidence. Let the findings be returned within three months from this date, if possible. The usual ten days will be allowed for objections.
[Note— The main judgment in the case has been reported in I.L.R 56 Allahabad, 766. But this judgment which was passed by the Division Bench on 7th April 1932 and by means of which an issue was remitted to the court below contains several important points of law. As such and in accordance with a direction of His Lordship Mr. Justice Verma we deem it proper to report it as well]—Law Reporter.