LILADHAR BANIA Vs. MABIBI

JUDGEMENT

(1.) STAPLES , A.J.C. 1. The predecessor in title of the respondents, Mirzakhan, brought a suit on a bond for Rs. 800 dated 27th November 1927, executed by the appellant. The suit was dismissed, but on appeal the decree was reversed and the District Judge passed a decree for Rs. 912 with interest at 6 per cent, per annum from the date of the suit until realisation. The defendant has now preferred this second appeal.

(2.) THE execution of the bond was admitted, but two pleas were taken by the appellant: one that he was a minor at the date of the execution and therefore was not liable and secondly, that the bond was executed under undue influence. These pleas were accepted by the trial Court, which decided the case really on the first plea of minority. The lower appellate Court however has found that the appellant Liladhar was not a minor and that there was no undue influence. The finding as regards minority would appear to be a finding of fact, but it is not, I think, binding upon this Court in second appeal, because the lower appellate Court was under a misapprehension with regard to the documentary evidence adduced in the case. I would refer to the two certificates, Exs. D-1 and D-4, and to the copies of school registers, Exs. D-2 and D-3. The lower appellate Court purports to follow the decision in Mr. Collier v. Mrs. Baron (1906) 2 NLR 34 with regard to these certificates. That decision however had been distinguished in Manikchand v. Krishna AIR 1932 Nag 117, where it has been held, following the decision in Bhanudas v. Krishnabai AIR 1927 Bom 11, that these certificates being duly prepared according to authority are admissible in evidence. The case in Manikchand v. Krishna AIR 1932 Nag 117 was not published at the time that the appeal was decided in the lower appellate Court. Had it been published, there is no doubt that the District Judge would have taken a different view of the matter and would have accepted the evidence of the certificates, Exs. D-1 and D-4, and of the copies of the school registers, Exs. D-2 and D-3. As this evidence was improperly rejected by the lower appellate Court, I hold that the finding is not binding upon me, and on that evidence I find that Liladhar was a minor at the date of the execution of the bond.