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Judgment
Das, J.—This appeal must succeed. In, coming to the conclusion that the defendant Baldeo Narayan Singh was a minor, the learned Judge in the Court below relied upon Exhibit A-1 which is an extract from Register of Applications in respect of Minors and Lunatics. Exhibit A-1 no doubt shows that Baldeo Narayan Singh was born on the 12th of May 1888, but that document is, in my opinion, inadmissible in evidence on the question of age.
It was argued by Mr. Sushil Madhab Mullick on behalf of the respondents that the petition of Bihari Singh having been destroyed we could properly take this extract in evidence as secondary evidence. This is an impossible argument. The extract does not purport to embody the statements which were made by Bihari Singh, nor does the extracts show that there was any statement made by Bihari Singh that Baldeo Narayan Singh was born on the 12th of May, 1888. It can not be relied on as secondary evidence of the statement which may have been made by Bihari Singh in his petition, nor can it be regarded as a corroborative piece of evidence. The learned Subordinate Judge in the Court below thought that as the petition filed by Bihari Singh has been destroyed, one can look upon Exhibit A-1 as a corroborative piece of evidence. This again is an impossible position.
It was lastly contended by Mr. Sushil Madhab Mullick that there is sufficient evidence in the record to show that Baldeo Narayan Singh was in fact a minor at all relevant dates connected with this case. That may be so, bun this Court is not a Court of facts. It is quite impossible for it to investigate the facts, and it is impossible for me to say what view the learned Judge would have taken of the oral evidence advanced, had he rejected Exhibit A-1 from his consideration.
I would allow the appeal, sell aside the judgments and decrees passed by the Courts below and remand the case to the lower appellate Court for a decision after entirely rejecting Exhibit A-1 from its consideration. The appellants are entitled to the costs of this appeal. The costs incurred in the Courts below will abide the result and will be disposed of by the lower appellate Court.
Ross, J.
I agree.