MT KUNDAN BIBI Vs. MAGAN LAL

JUDGEMENT

(1.) This is an appeal by defendants 3 to 8, Mt. Kundan Bibi and; others, against a decree for sale on two simple mortgages. The sole plaintiff was one Magan Lal who was a mortgagee under two deeds as follows : (1) 21 January 1916 for Rs. 1,100 executed by Bihari Lal, and (2) 25 January 1917 for Rs. 600 also executed by Bihari Lal. the claim was for Rs. 15,000, a certain amount of the compound interest having been given up. The following pedigree is relevant:

(2.) The main question which is before us-on appeal is whether on the date of execution of these two mortgages Bihari Lal was or was not a minor. There was also a further question as to whether the consideration in the two deeds was actually received by Bihari Lal, but the main point is that of minority or majority. On the one hand it was alleged that the date of birth of Bihari Lal was 7th September 1897, and according to the plaintiff the date was four years earlier, 7th September 1893. One of the main questions which has been argued on appeal, was the admissibility or otherwise of the records of certain proceedings taken for guardianship in the years 1900 and 1903 and specially as regards the application in guardianship and the application in objection. There was a miscellaneous case No. 33 of 1900 before the District Judge of Allahabad in which Mt. Sundardei made an application on 8 June 1900 for the guardianship of her two minor sons Gaya Prasad and Bijayi Lal, and there was on 11 September 1903 an application by Mt. Kashidei, the grand mother of these two minors. At pp. 67 and 75 of the paper book are printed the form which is used for the benefit of the District Judge. We have ascertained from the records that that form is apparently an English translation prepare by the Head Clerk and, Translator of the District Judge's Court from vernacular applications. Under the rules then in force these vernacular applications were weeded out after a period of 15 years, and the two records which are now before us no longer contain the vernacular applications, but there is a note on the order-sheet that they have been duly weeded out. In the Court below objection was taken, as shown on p. 52 of the paper book, that the copy of the application does not show -that it was verified and therefore it is no evidence. As the copy in question was merely a translation by the translator, the verification naturally was not written on it. But in this Court of appeal the respondent have formulated a different objection, and that is to the effect that these documents are not evidence of the originals, because they are not copies a of the vernacular applications and still less admissible are the certified copies a which were tendered to the lower Court.

(3.) As the objection took this form, we considered it proper to send for the original records, and it is now apparent from the original record in miscellaneous case No. 33 of 1900 that the formal order of the District Judge which is in vernacular and signed by the District Judge sets forth the vernacular application made to his Court in full. Accordingly we consider that this is copy made from the original within the meaning of Section 63(3). Under Section 65(c), as the original has been destroyed, secondary evidence can be given. We therefore consider that the formal order is evidence of the original application in Urdu of Mt. Sundardei. We direct that copy of that formal order in vernacular be placed on this record. (His Lordship then considered the importance of this application of Mt. Sundardei and concluded that at the time of execution of the two mortgage deeds in suit Bihari Lal was a minor). One further point remains, and that is that the learned counsel for the respondents used that defendant 2, the wife of Bihari Lal, who was a donee of some property from Bihari Lal, has not made an appeal and therefore that this Court would not set the decree aside as against her. Admittedly this Court has discretion under Order 41, Rule 4, and the question is should that discretion be exercised or not. Dihari Lal does not appear to have treated his wife very well, and after making the deed of gift to her he attempted to cancel it by transferring the property to some one else on the ground that she had left him. This defendant 2 is apparently poor and was unable to appeal. We consider under these circumstances that this is a case in which we should exercise our discretion, and accordingly under Order 41, Rule 4 we set aside the decree as against defendant 2 also. Issue 2 is whether Bihari Lal led the plaintiff into the belief that he was then a major, and if he led the plaintiff into that belief, are the contesting defendants precluded by estoppel from pleading: Bihari Lal?s minority in answer to the-suit. The contesting defendants, we may note, are subsequent transferees from Bihari Lal. Now the documents in suit are printed at pp. 191 and 199. The document at p, 191 is the earlier, and it states that B. Radhe Shiam had filed suit No. 55 of 1915 against Bihari Lal, and that for looking after that suit Bihari Lal borrowed money occasionally, and stood in need of money for the purpose of the appeal preferred by B. Radhe Shiam in the High Court. Now we consider in view of that recital that the plaintiff must have been aware of the nature of the suit in question, and that the plea of Bihari Lal was that he was at the time a minor. We do not consider therefore-that Bihari Lal can have misled the. plaintiffs by any statement in the mortgage deeds in question. Section 115, Evidence Act defines estoppel by stating: When one person has, by his declaration,, act or omission, intentionally caused or permitted another person, to believe a thing to be true and to act upon such belief.