HARA KUMAR DEY Vs. JOGENDRA KRISHNA RAY

JUDGEMENT

(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 11 June 1915. The defendant admitted the execution of the document, but contended that as he was born on the 6 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 wag inadmissible in law. The documentary evidence consisted of an order made by this Court on the 15 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 6 February 1916. On the present 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 Lekhraj Koer V/s. Mahapal Singh [1879] 5 Cal. 744 (P.C.) see also the decision of the Full Bench in Emperor V/s. Panchu Dos [1920] 47 Cal. 671 (F.B.).

(2.) The decision in Satis Chunder V/s. Mohendro Lal [1890] 17 Cal. 849 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/s. Ablakh Pande [1896] 18 All. 478 and the decision of the Judicial Committee in Mungniram V/s. Gursahai [1889] 17 Cal. 347 (P.C.) 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 provision 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. Rani Hemangini v. Sarat Sundari A.I.R. 1921 Cal. 292. 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 Kashi Nath V/s. Jagat Kishore [1915] 20 C.W.N. 643, Tripurana V/s. Rokkam A.I.R. 1922 Mad. 71, Ram Prakas V/s. Ananta Das A.I.R. 1916 P.C. 256.