P (PLP)

It was on 5th July 1947, that Mo. Zulekha instituted a suit 'against Abdullah, Mst. Rasul Bibi and Mst. Sahib Poor, alleging that the sale of the land in dispute incorporat ed in a deed, dated 22nd June 1943 was effected during, her minority, and consequently she was not in any way bound by it. A reference to the sale‑deed shows that as a matter of fact there were three executants, viz., the plaintiff, and the other two ladies already referred to above; and the sole vendee was Abdullah. The main question, which formed the bone of contention between the parties in the two Courts below as well as before me, was that of the age of the plaintiff. In support of her assertion that she was a minor at the time of the sale, she put into Court two documents, firstly a certificate awarded to her by' a, Lady Doctor (P. Qureshi), dated 10th September, 1947, which give her age to be 1920 at the time of examination, and secondly, a copy of an entry from the birth register, which gave her date of birth at fat February 1927. The learned trial Court based its, view on its view on the opinion of the Lady Doctor, and held that the plaintiff was a minor at the time of the sale, whereas the learned lower Appellate Court came to the same conclusion but relied almost entirely‑upon the entry in .the birth register. The learned trial Court decreed the suit on the condition that the plaintiff should pay a sum of Rs. 730 to compensate the vendee for the price which he had paid for the land in suit. As against this decree two appeals were filed in the Court of the District Judge, one by the plaintiff seeking exoneration from the liability to repay the price alleged to have been paid by the vendee, and the other, by the vendee for the dismissal of the suit in toto. The learned lower Appellate Court dismissed the vendee's appeal but on the other hand; accepted that of the plaintiff, with the result that the suit stood decreed unconditionally. The vendee (Abdullah) has called into question the correctness of the decree of the learned lower Appellate Court by filing a revision petition here, wherein he has prayed simply for the dismissal of the suit, and said not a word in regard to the question of compensation. His learned counsel tried to reopen the question of compensa tion, but in view of the narrow scope of the petition put in, he was not allowed by me to do so. The simple question then which is involved in the petition is one of the minority of the plaintiff‑respondent at the, time of execution of the sale‑deed. It was contended by the learned counsel for the defendant petitioner that the certificate awarded by the Lady Doctor (P. Qureshi) was not admissible in evidence, and at any rate could not carry any weight in the eye of law. The relevant section of the Indian Evidence Act is 45, accord ing to which it has been held in a large number of cases that it was for the Court to decide whether a person was qualified to give evidence as a medical expert in regard to the point in issue before it In the present case the learned trial Court had considered the Lady Doctor (P. Qureshi) as a person competent to depose as to the age of the plaintiff‑respondent. and in fact, no question appears to have been put to her when she was in the witness box to discredit her in this behalf to expose her want of medical study or experience. The learned counsel for the defendant‑petitioner finally seemed not to attach much importance to the question of the inadmissi bility of the evidence of the Lady Doctor in this case, but stressed very emphatically the other aspect of the case, namely, that her opinion in the present case was not worth much. To strengthen the point of view put forth by him, the learned counsel relied upon a Privy Council ruling reported .as A I R 1916 (P C) p. 242 its well as on A I R 1939 All, p. 708, No doubt the Privy Council does says that the evidence of the medical witness in that case in regard to age was worthless, but the case which their Lordships had before them came from Straits Settlement, and was to be decided in accordance with the, provisions‑of‑the Evidence Ordinance‑of 1893 of that Colony. We do not exactly know what: were the provisions of that Ordinance in regard to a certificate of the awarded by a doctor, I am, therefore, of the view that the case before he cannot be governed by the view expressed by their Lordships of the Privy Council in the case relied upon by the learned counsel for the defendant petitioner. The next case, viz A I R 1939 All. p, 708, simply quotes the view of their Lordships of the Privy Council as contained in A I R 1916, (P C) p: 242, without noticing that the said view is not based upon the Evidence Act as applicable in the Sub-continent of India ; and without entering into any comprehensive discussion of the point,' their Lordships of the Allahabad High Court simply remarked that in their opinion the learned Assistant Sessions Judge was right in holding that there was no left proof of the age of Mat. Bhagwania. They had before them the report of the Civil Surgeon, which was based upon certain physical peculiarities such as teeth, height, etc., of the person concerned, but without giving any reason as to why the view of the, doctor, who was otherwise competent to give evidence within the meaning of section 45 of the Indian Evidence Act, could not be considered as legal evidence of age, they simply agreed with the Assistant Sessions Judge. With due deference on their Lordships of the Allahabad High Court, I must say that the opinion of a doctor 'in such cases is a relevant piece of evidence, and it is quite a different question as to what weight in a particular case, ought to be attached to such an opinion. In the case before me I do of see my way to reject the opinion of the Lady Doctor (P. Qureshi), especially when it has been relied upon by the learned trial Court, and. is also supported by the entry in the birth register. The latter piece of evidence was also taken exception to by the learned counsel , for the defendant‑peti tioner, and it was argued, that there was no conclusive proof that the entry in question necessarily related to the plaintiff‑respondent. Now, the plaintiff‑respondent bas herself come into the witness‑box, and has definitely stated that the entry related to‑ her: The defendant petitioner too appeared as his own witness, but in no way tried to controvert the 'statement of the plaintiff respondent as far as this point was concerned. Great strength to lint to the statement of the plaintiff. respondent by the evidence of one of the witnesses produced by the defendant petitioner himself, and that it Muslim Shah, who has said that the Sub‑Registr6r.at feat refused to register the sale deed on the ground that the plaintiff respondent appeared to him to be 4 minor, and it was only when the witness, aria Muslim Shah took the girl again to the Sub‑Registrar that the latter was prevailed upon to register the document, noting the age of the plaintiff‑respondent to be 18 on the date of the registration, That also shows that even at the time of registration the rage was not given out to be more than 18, and this too, lends support to the medical certificate as well as the entry in the birth register. Integrating the two pieces of evidence together, I find myself in complete agreement with the finding of the learned Courts below in regard to the age of the plaintiff‑respondent; Moreover, the question involved was one of pure fact, and in determining. it, the learned Courts below , have not committed any material irregularity or contravened any provision of law. The sole point, therefore, which was urged before me is decided against the defendant‑petitioner, with the result that his petition is dismissed with costar . A. H. Petition dismissed.