MAHASAY GANESH PRASAD RAY Vs. NARENDRA NATH SEN

JUDGEMENT

(1.) This is an appeal from the judgment and decree of the High Court of Judicature at Patna (Cuttack Circuit) reversing the decree of the Subordinate Judge and dismissing the suit of the plaintiffs. The relevant facts material for deciding the points urged before us in the appeal are these. Rai Bahadur Govind Ballab Ray died on 30-7-1896. By his first wife, who had predeceased him, he had a daughter Sabitri who died about two months after Govind Ballab's death. Govind Ballab left him surviving a widow Sarnamayee, who died in 1935. She gave birth to a son, Lal, who died in infancy, and a daughter, Indubala, who died in 1904. The deceased Govind Ballab Ray had left also certain debutter properties but no decision in respect of those properties was given as the proper contesting parties were not before the Court.

(2.) To repel the contention of the respondents it was strenuously urged that Binodini could not have been born to the first wife of Govind Ballab because Sabitri was born to that lady about six to seven months -before 9-5-1880 and therefore the alleged birth of Binodini on 9-5-1880 as a full grown healthy child, who lived for 58 years thereafter, was an impossible story. Before the trial Judge numerous witnesses were called on each side for and against the contention that Binodini was the natural daughter of Govind Ballab. The appellants had, in addition, produced certain old papers alleged to be of the deceased Govind Ballab suggesting that Sabitri was born on the date mentioned by them. The trial Judge, as stated in his judgment, did not feel convinced of the plaintiffs' contention on the oral evidence led by them. As noticed by the High Court the Subordinate Judge observed:

(3.) The Subordinate Judge, according to his judgment, felt compelled to hold against the respondent because of the accounts (Exh. 32 series) and the entries in the almanac. The High Court has considered these entries carefully and we agree with their line of reasoning in holding that they are not of such a nature and character as to compel the conclusion which the Subordinate Judge thought he was forced to come to. Exhibit 32 series as noticed by the High Court, consists of loose sheets of papers. They have not the probative force of a book of account regularly kept. Being old documents, naturally, the writer is not called and barring the fact that they were produced from the Receiver's possession there is nothing to show their genuineness. Section 90, Evidence Act, does not help the appellants because this is not a case where the signature of a Particular person is in question or sought to be established.