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Judgment
Das, J.—This appeal must succeed. In coming to the conclusion that the defendant Baldeo Narain Singh was a minor the learned Judge in the Court below relied, upon Ex. A-l which is an extract from register of application in respect of minors and lunatics. Exhibit A-l no doubt shows that Baldeo Narain 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 respondents, that the petition of Behari 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 Behari Singh, nor does the extract show that there was any statement, made by Bihari Singh that Baldeo Narain Singh was born on the 12th of May, 1888. It cannot be relied on as secondary evidence of the statement which may have been made by Behari 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 Behari Singh has been destroyed, one can look upon Ex. A-l 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. Narain Singh was in fact a minor at all relevant dates connected with this case. That may be so, but 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 Ex. A-l from his consideration.
I would allow the appeal, set 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 Ex. A l 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.