SM NIRMALANALINI DEVI Vs. SMKAMALABALA DASSI

JUDGEMENT

(1.) This is an appeal by the plaintiff and arises out of a suit for enforcement of a mortgage said to have been executed by defendant 1's husband, one Dharma Das Datta, now dead, in favour of the plaintiff. Defendant 2 who is the brother of Dharma Das has been made a party to the suit, for the mortgage is said to have been executed for the necessities of the joint family which consisted of Dharma Das and his brother. The claim is laid at Rupees 1,339-13-0. Amongst several defences to the suit, the main defence is that the mortgagor Dharma Das was a minor at the time of execution of the mortgage bond and that therefore the mortgage is void as a minor is incompetent to contract. Both the Courts below have given effect to this defence and have agreed in dismissing the suit. The question in this appeal is whether these decisions are right. It has been contended that in arriving at the conclusion that the mortgagor was a minor the Courts below have relied on a horoscope which is not admissible under Section 32, Clause 6, Evidence Act. It has been found by the lower appellate Court that the horoscope comes from the custody of defendant 2, the brother of the husband of defendant 1, who made it over to the father of defendant 1 for filing it in the record of the suit. It is further found that it was written by an astrologer, now dead, whose handwriting has been proved by a near relation of the said astrologer. It has been further found that the astrologer died in 1326 B.S., before the death of Dharma Das and that the said astrologer used to prepare horoscope for others in the village in which Dharma Das resided. In these circumstances we are of opinion that the horoscope is admissible in evidence under Section 32, C1. 5, Evidence Act, to prove the date of the birth of Dharma Das.

(2.) The time of one's birth relates to the commencement of one's relationship by blood and a statement therefore of one's age made by a deceased person having special means of knowledge relates to the existence of such relationship within the meaning of Section 32, Clause (5). Illus. (1) Section 32 would go to show that any statement made by a person having special means of knowledge relating to the date of birth of a particular person on a given date is a relevant fact when the issue is what is the date of birth of that particular person. This view receives support from the decision of the Judicial Committee in Mahomed Ariff V/s. Yeoh AIR 1916 PC 242. Reliance has been placed by the appellant on the case of Satish Chunder Lal V/s. Mohendra Lal (1890) 17 Cal 849 in support of the contention that the horoscope is not admissible in evidence. It will appear from an examination of that case that there was no evidence that the person who made the horoscope had any special means of knowledge. In this case it has been proved that the astrologer used to prepare horoscopes for others in that village and consequently must be taken to have special means of knowledge of the date of the birth of Dharma Das. This statement was made ante litem motam. The Calcutta case just referred to was doubted in Raja Goundan V/s. Raja Goundan (1894) 17 Mad 134. It would seem also from the case of Krishnamachariar V/s. Krishnamachariar (1915) 38 Mad 166, that the horoscope would be admissible in evidence to prove the age of the person whose horoscope the document purports to be, if the person who made the horoscope is called is alive to testify to his special means of knowledge of the date of the birth of the person in question. We are therefore of opinion that in the circumstance the horoscope has been rightly admitted in evidence and the first ground taken therefore must fail. It appears also that the horoscope was examined and compared by Dharma Das's father-in-law at the time of Dharma Das's marriage with his daughter.

(3.) Apparently this horoscope was given by Dharma Das's mother to Dharma Das's father-in- law for comparison with the horoscope of Dharma Das's wife. The astrologer who made the comparison is dead and the mother of Dharma Das is also dead and their evidence was not consequently available at the hearing of the suit. The Subordinate Judge is of opinion that the horoscope is admissible in evidence under Section 32, Clause 6, Evidence Act, but we are of opinion that it is not receivable in evidence under Clause 6 but is receivable in evidence under Clause 5 which no doubt requires that the party making it must have special means of knowledge. In the circumstances detailed above it appears clear that the astrologer prepared the horoscope on the information of some one who had special means of knowledge, viz., some members of Dharma Das's family and the horoscope was adopted by the family as representing the correct date of Dharma Das's birth as it was used for the purposes of comparison at the time of Dharma Das's marriage. The next ground taken is that defendant 1 should have been made liable as the money borrowed was for the marriage of Dharma Das, a member of the joint family; and the expenses of the marriage is undoubtedly a legal necessity which would make the loan binding on the joint family; and would be recoverable from the joint family properties. The answer to this contention is that the finding of the lower appellate Court is that the creditor did not make any bona fide inquiry about the existence of necessity and that the brothers Dharma Das and defendant 2 were possessed of considerable landed property at the time and there was no justifying necessity for the mortgage. Both grounds taken in the appeal fail and the appeal must be dismissed.