Manikchand v. Krishna

1. The respondent brought a suit for setting aside a sale of his half share in Field No. 29 of Mauza Mana in the Chanda District, which was effected by his mother Mt. Laxmibai in favour of the defendant-appellant Manikchand on 25th May 1919. Various pleas were put forward by the defendant in the trial Court and several issues were framed. The suit however was really dismissed on the ground of limitation only and it was held that the suit was barred under Article 44, Lim. Act, as the plaintiff had attained majority more than three years before the suit. On appeal however that finding was reversed by the District Judge, who held that the plaintiff was born on 24th July 1907, that he attained majority on 24th July 1925 and that the suit, which was brought on 21st July 1928, was within time. He accordingly reversed the decree of the trial Court and remanded the case under O. 41, R. 23 for a fresh decision upon merits. The defendant has now preferred this second appeal against this finding and the order of remand. The only question then to be determined in this appeal is whether the finding of the lower appellate Court that the respondent Krishna was born on 24th July 1907 is correct. That finding is a pure finding of fact on the evidence, and it cannot now be set aside in what amounts to second appeal as the lower appellate Court was under no misconception in the matter and has not misconceived the evidence. The argument however put forward by the learned counsel for the appellant was that the Courts below were wrong in admitting inadmissible evidence, namely, Exs. P-17, P-18, P-19 and P-20. The objection seems to be on two grounds: one, as stated in the second ground of the memorandum of appeal, that these documents were only copies of the original documents, which are not on the record, and, secondly, that they are not admissible in evidence to prove the age of the plaintiff-respondent according to the decision in Mr. Collier v. Mrs. Baron [1905] 2 N.L.R 34. Further as regards the declaration (Ex. P-17) it was argued that was a declaration by one Sheikh Ramzan, who was not the guardian of the minor.

2. As regards the fact that these exhibits are copies, I do not think much need be said and no argument was put forward before me by the learned counsel for the appellant.

3. They are, duly attested copies, and there is nothing to show that the originals were not produced in Court: on the contrary, it appears that the originals were produced and therefore the copies are admissible in evidence. As regards the contention that such entries in school admission registers or affidavits with regard to age and such registers are not admissible in evidence according to the decision in Mr. Collier v. Mrs. Baron [1905] 2 N.L.R 34, I would refer to my judgment in Deoba v. Durgaprasad Second Appeal No. 48-B of 1931, Decided on 21st October 1931. I would point out that a distinction can be drawn between an entry in a Baptismal register and an entry in a School Admission Register. As stated in that judgment, it is not the duty of a priest under any official order when baptizing a child to ascertain the age of the child or to record the age: on the other hand, a schoolmaster, when admitting a boy into his school, is bound under standing orders to inquire about his age and to enter his age in the register. As noted in Mr. Collier v. Mrs. Baron [1905] 2 N.L.R 34 at p. 37:

“a marriage register is evidence not only of the fact of marriage, but of the time of its celebration; for both these facts must have been known to the clergyman making the entry and it was his duty to state them correctly in the register.”

4. Thus, where there is an official duty cast upon any officer or minister to make an entry, and in pursuance of such a duty he duly makes an entry in his register, such entries are admissible in evidence. I would refer to the Education Manual of the Central Provinces and Berar, Part 12, Ch. 6, Article 27, which deals with the admission of pupils. It is there laid down that in the case of a pupil admitted to a recognized school for the first time, the date of his birth shall be ascertained;from the parent or guardian in writing land entered in the admission register. Thus under standing orders there is a duty imposed upon the schoolmaster to enter the age of all pupils whom he admits in his registers and such entries therefore are admissible in evidence to prove the age of the persons concerned. I would in this connexion refer to Bhanudas v. Krishnabai A.I.R 1927 Bom. 11 , 99 I.C 307 , 50 Bom. 716.

5. The other contention about the declaration or affidavit in Ex. P-17 has not, I think, much force. It is true that the affidavit was made by Sheikh Ramzan, who has been examined as P.W 18, and that he was not the guardian of the plaintiff at the time. On the other hand he has deposed that he has been in the service of the plaintiff's family for 30 years from the time of the plaintiff's father and that he made the affidavit as regards the plaintiff's age before the Head Master of the Punwat Marathi School about 10 or 11 years before the time of his deposition after consulting the Register of Births and Deaths, which was in the possession of the malguzar, and that he had satisfied himself of the correct date of the plaintiff's birth from that register. Such evidence is surely admissible and cannot be rejected merely on the ground that Shaikh Ramzan, who was acting on behalf of the plaintiff's mother and guardian, was not himself the plaintiff's guardian. Lam of opinion, then, that there is no force in the grounds put forward on behalf of the appellant, that no inadmissible evidence has been admitted by the Courts below and that the finding with regard to the age of the plaintiff-respondent cannot be disturbed. I therefore dismiss the appeal. Costs of the appeal will be borne by the appellant. I fix pleader's fees at Rs. 25. Other costs will follow the event.

V.B/R.K

6. Appeal dismissed.