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I would therefore allow the appeal and setting aside the
decree of the lower appellate Court, dismiss the plaintiff's suit
with costs in all Courts,

Chamikr, a. J. C. — I concur.



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354 . THE OUDH CASES. [Vol. VII.

MISCELLANEOUS APPEAL, No, 43 OF 1904.*



Before Mr, Chamier.



1904 Mohammad Yad Ali (Objector) Appellant v. Musammat

Nov. 30 Amibunnisa (Applicant) and Dildar Ali (Opposite party)
Respondents.

Lunatics Estates Act (XXXV of 1858) s. S—RepoH or
certificate hy medical expert as to the mental capacity of an
alleged lunatic^ admissibility in evidence of in a contentious
proceeding — Indian Evidence Act^ s. 32.



A report or a certificate by a Civil Surgeon who was not called as a witness
as to the mental capacity of an alleged lanalic given in the coarse of and for
the purpose of a case is not admissible in evidence in a contentions proceeding
either under s. 32 of the Indian Evidence Act or under s. 5 of the Lunatics
Estates Act (XXXV of 1858).



For Appellant. — B. Basdeo Lai holding brief o£ Mr. E. *
Manuel.

For Respondent No. 1.— Mr. Harrison.

Chamier, a. J. C — This is an appeal against an order of
the District Judge of Lncknow whereby one Dildar Ali was
adjudged to be o£ unsound mind and incapable of managing
his afiEairs and the respondent his wife was appointed to be
guardian of his person and property.

The proceedings were instituted by the respondent in
February 1903. On March 4th the Judge wrote to the Civil
Surgeon Colonel Anderson I. M. S. requesting him to examine
Dildar Ali and report upon his mental capacity by April 24th,
On April 22nd Colonel Anderson reported in writing that he had
*' interviewed and examined Dildar Ali on some ten occasions "
and was of opinion that he was ^' of unsound mind and incap-
** able of managing his afiEairs." On May 16th the Court at the
request of the appellant made an order permitting the appellant
to have Dildar Ali examined by Dr. Varis and Major Macdonald
K. A. M. C. The former after having had Dildar Ali under

* Against the order of H. D. Griffin Esq., District Judge, Lucknow, dated
6th January 1904.



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Vol. VII,]



THE OUDH CASES.



355



observation for about 10 days reported that in his opinion Dildar
Ali's mental capacity was not such as to disqualify him from
managing his affairs. This opinion was considered too in-
definite and Dr. Varis furnished another that the alleged lunatic
" was of sound mind and capable of managing his own affairs."
Major Macdonald on May 26th 190S, wrote that he had that
day examined Dildar Ali and was of opinion that he was of
unsound mind and on June 8th 1903 wrote that he had seen
Dildar Ali again and was still of the same opinion. It is in
evidence that Major Macdonald could not converse with Dildar
Ali except through an interpreter.

Finally, the case came on for hearing in May 1904 when the
Court recorded the evidence of the present Civil Surgeon Colonel
Pratt I. M. S., Dr. Varis and Dildar Ali. Colonel Pratt deposed
that he had examined DUdar Ali on April 13th 1904 that the
man had given intelligent linswers to questions regarding his
name, age and residence, but that otherwise his answers had
been confined to monosyllables and had generally been accom-
panied by a laugh, that he had had Dildar Ali under observa-
tion on that one occasion only for 20 minutes, and that he
would have liked to keep him under observation for "some time"
but bad not asked for an opportunity of doing soas'his examin-
ation of Dildar Ali had taken place in the presence of Colonel
Anderson who had had the man under observation for a consi-
derable time. Dr. Varis in his deposition repeated the opinion
previously given by him namely that Dildar Ali was of sound
mind and capable of managing his aCEairs. The result of Dildar
All's appearance in the box and the impression which he made
on the Judge's mind are thus described in the judgment: — "His
" manner was somewhat excitable. He professed himself
" ignorant of some matters which he ought to have remembered
" and remembered others. These lapses of memory may be due
" to a weak intellect or may on the other hand be feigned.

The learned Judge has noted that upon his saying that in
face of the opinion of the medical experts it was useless to take
other evidence as to Dildar Ali's mental capacity, the pleader for
the appellant declined to examine a number of witnesses who



Mohammad

Yad Ali

r.

Amirunnisa

and another.



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356



THE OUDH CASES.



[Vol. VII.



Mohammad

Yad All

r.

Amirunoifla

aod another.



had been summoned. In his order the learned Judge pots
aside the evidence o£ Dr. Varis because he furnished a
faltering certificate in the first instance, and on the strength
of the report of Colonel Anderson the certificate of Major
Macdonald and the evidence of Colonel Pratt he finds that Dildar
Ali is of unsound mind and incapable of managing his affairs.

The first question to be considered in this appeal is whether
the report made by Colonel Anderson and the^certificate given by
Major Macdonald, neither of whom was called as a witness, are
admissible under s. 32 of the Evidence Act or any other provision
of the law. If the report and certificate are admissible there
may be sufficient evidence that Dildar Ali is a lunatic, bat it
they are not admissible the case must go back. Mr. Harrison
for the respondent faintly contended that the report and certi-
ficate were admissible under s. 32 j^ statements made in the
ordinary course of business, but it has never been held that
statements made in the course of and for the purpose of a case
are admissible in that case under this clause or the corresponding
rule of English Law. I must hold that the report and certi-
ficate are not admissible under this clause.

Mr. Harrison's main contention was that the admission of
the report and certificate was justified by section 5 of the
Lunatics Estates Act (XXXV of 1858). That section provides
that the Court, " may require the alleged lunatic to attend at
" such convenient time and place as it may appoint for the
" purpose of being personally examined by the Court or by any
" person from whom the Court may desire to have a report of
" the mental capacity and condition of such alleged lunatic.

" The Court may likewise make an order authorizing any
'' person or persons therein named to have access to the alleged
" lunatic for the pui-pose of a personal examination."

The learned advocate for the appellant pointed out that
this section unlike analogous provisions in other Acts, e. g.
section 46 of the Guardians and Wards Act does not provide that
the Court may treat the report as evidence and he contended that



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Vol. VII.]



THE OUDH CASES.



357



there was no reason why an enquiry in a contentious pro-
ceeding under the Act should not be subject to the same rules
of evidence as any other civil proceeding. On the other hand Mr.
Harrison on behalf of the respondent asked to what use reports
furnished under section 5 are to be put if they are not
to be admitted in evidence. The answer to Mr. Harrison's
question is, I think, to be found in the history of the law
on the subject. It is evident that Acts XXXIV, XXXV
and XXXVI of 1858 are founded upon the English Law
relating to lunatics and their estates as it stood at the time
when these Acts were passed. Some of the provisions are cer-
tainly taken from the English Lunacy Regulation Act of 1853
by which the conduct of inquisitions in lunacy was committed
to Masters in Lunacy and provision was made for enquiry by
those officers with or without a Jury. Upon an application for
an enquiry which had to be supported by affidavits as to
the state of the alleged lunatic's mind it was the practice to
call for a report from one or more medical men nominated by
the Master in Lunacy because as a rule an enquiry would not be
ordered unless the Master or other authority was satisfied that it
was probable that the person concerned was of unsound mind.
Sometimes the Master had a personal interview with the alleged
lunatic and dispensed with medical reports. Substantially the
same practice still prevails. Much harm might be done if
an order for a formal enquiry were a matter of course upon an
application being presented.

The first part of section 5 of the Lunatics Estates Act thus
reproduces the English practice and the second half of the
section also reproduces the English practice whereby a party
having permission to attend an inquisition could obtain an
order authorizing an examination of the alleged lunatic by
medical men. Under the English Law an inquisition in lunacy
where the application is contested is conducted in the same
manner as a regular action, the witnesses being examined cross-
examined and so forth. I can find no authority upon the ques-
tion whether the report of a medical man furnished at the
instance of a Master in Lunacy is admissible in evidence at



Mohammad

Yad Ali

r.

Amiranniaa

and another.



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358



TfiEOUf)fi CASES.



[V(L VlL



liohammad

Yad AU

t,

Amirunnim

and another.



an inquisition) but in a recent case it was held that a report
obtained by a party to the enquiry could not be called for by the
opposite party as it was in the nature of a proof of the evidence
which the doctor would give at the enquiry. The rule now
embodied in clause 2 of section 82 of the Evidence Act,was well
known at the time the Lunatics Estates Act was passed and
I think it is unlikely that the Legislature intended that state-
ments should be admitted in evidence in proceedings under the
Act which would not be admitted in ordinary civil proceedings.

Full effect can be given to ' section 5 without construing
it in the manner suggested by the respondent I cannot
believe that the Legislature intended that a person should be
adjudged a lunatic in a formal and contentious proceeding not
upon evidence taken in the usual way but upon a report or
reports furnished behind the back of one of the parties to the
proceeding. Foe these reasons I hold that the report made by-
Col. Anderson and the certificate given by Major Macdonald
ought not to have been admitted in evidence. I may also point
out that according to ike practice in England neither the report
nor the certificate is in proper form; neither would be accepted
by an English Court, for according to a rule there in force the
soundness of which can scarcely^be questioned a written opinion
as to the mental capacity of an alleged lunatic filed in support
of an application for an enquiry or under the order of a Master
must be accompanied by a statement of bets observed by the
medical man, t. e, the grounds upon which his conclusion is
based. The only evidence in this case which complies with that
rule is that of Colonel Pratt but, as he himself said that he
would have liked to keep Dildar Ali under observation for a
longer time, his evidence cannot be accepted as sufficient as it
stands. I accept the appeal^ set aside the order of the District
Judge and remand the case to him*

The parties must be allowed to adduce farther evidence
and the Court will then pass orders. I make no order as to th6
costs of this appeal.



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Vol. Vn.] THE OUDH CASES. 359

SECOND CIVIL APPEAL, No. 361 OF 1903.»



Before Mr. Charmer.



Ram Dial (Plaintijf) v. Musahmat Jafbi Bbgah and 1904
oiheTB (Defendants). Nov. 15,



Pre^emptionj euU for^-'Eateneion of time for payment of
price by Court of appeal-^Application by appellant for extension
of time for payment of price — Appeal.



A plaintiff in » pre-emptioB oMe oannot merely by lillDg an appeal obtain
an extension of the time fixed for payment of the price. A Goort of appeal has
power to extend the time, but in practice it does not do so except for some
ipedal reason.

An appellant in a pre-emption case who wishes to hare the time for
payment of the price extended is not bound to put in a separate written
application to that effect but may make the request at the hearing.



For Appellant — B. Ishwari Dayal.

Fob Bb8P0KDBNTS — Mr. Fdkhruddin Hasan.

Chamibr, k, J. C — ^This was a suit for pre-emption of a
share in a village which had ostensibly been sold to defend*
ants 2 to 5 for Bs 3,000 in regard to which it was said that
Rs 1,000 had been paid before the sale, that Bs. 1,200 had been
paid on the date of the sale and that the purchaser had given
the vendor a bond for the remaining Bs, 800.

The first Court found that the price had been fixed in good
faith and therefore proceeded to inquire what was the fair
market value of the property sold. It found that the market
value was Bs. 2,000 and gave the plaintiff a decree for possession
of the property on payment of that sum on or before March
30th 1903. The plaintiff on March 1st 1903 appealed to the

* Against the decree of B.Lindsay Esq., District Judge, Sitapore, dated
34th Jaly 1908, reversiDg the decree of B. Jawala Fershad, Subordinate Judge,
Biawan, dated Slst January 1903.



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SCO THE OUDH CASES. [Vol. Vlt

Ram Dial District Court nrging tha4 there was OTidenco tbat ibe price
Musammat actuall J paid for the property was Bs. 1,200, tbat tbere was no
and oth^ evidence that the market vahie was Us*. 2,000 and that, there
being evidence of the sum actually paid, the Conrt ought not to
have inquired into the market value of the property. The
plaintiff did not pay in the sura of Ra. 2,000 within the time
specified in the decree of the first Court. The IHstriet Judge
who heard the appeal after the expiry of the period fixed by the
first Court found that Bs. 2^000 was the fair market value of
the property but he declined to extend the time for paymeBt of
the price. Accordingly he dismissed the plaintiff's appeaL

In second appeal it is contend e d firstly, that the District
Judge was bound to extend the time and secondly, that under
the cricumstances of the case he ought to have done so.

The first contention cannot possibly be accepted. It
amounts to this that a plaintiff in a pre-emption case can merely
by filing*an appeal obtain an extension of the time fixed for pay-
ment of the price^ but this has never been regarded as the law in
this Court. Nor has such a rule been followed in the Allahabad
High Court. See Jagar Nath Pande v. Johhu Tewari (1).

The second contention must also be rejected. A Court of
appeal has no doubt power to extend the time but it is not bound
to do so and in practice does not do so except for some special
reason. The special reason suggested in the present case is that
the plaintiff was fairly entitled to ask that he should be allowed
to pay Rs. 1,200 in cash and give a bond for Rs. 800 as the pur-
chaser did, but this was not suggested in the grounds of appeal
to the lower appellate Court and such a course would be contrary
to sections 13 and 14 of the Oudh Laws Act which provide that
if the price is not fixed in good faith, the Court shall fix such
price as appears to it the fair market value of the property sold
and the decree shall specify a day on which the purchase money
is to be paid. All three grounds of appeal to the District Court
were untenable. There were no special circumstances and I

(1) I. L. B., 18 All., 223.



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VoLi vn.] THfi OUDH OASSfi. S61

shonH eMtoinly not bav^ extoiid^d tbe period for p<iyi&0nt 4>E ^^^ ^^^^

the price. MoBammat

Jafri Begam
One passage in the learned Jndge^s judgment suggests ^^ othera.
that an appellant in a pre-emption case who wishes to have the
time extended must put in a separate petition to that effect. I
do not consider that a written petition is absolutely necessary,
llie appellant is entitled to make the request at the hearing.
As, in my opinion, the learned Judge was right in refusing to
extend the time in this case, I dismiss the appeal with costs.



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362 THE OUDH CASES. L^ol VIL

SECOND CIVIL APPEAL, No. 284 OP 1904. •



Before Mr. Chamier.



Nov 16. Kallu and another (Defendomti) ». Qaya Din (Plaintiff).

Poaeseion o/shamilat land and demolition of construction there'
on hloeHng a road^ euit against co^sharers for— Decree for joint
possession ijohen no such relief is prayed for^ interference of Court
in Second Appeal unth— Blocking a road^ remedy of co^sharer
against other co-sharers for. -

The plaintifl eaed some of his oo-sharera for poeseasion of « pteoe of skMm,\!UA
land and for demolition of a oKav,]^ erected thereon by them. The xemainilg
co-Bharers were alao added as defendants bj the first Goort. The pUintift's
case was that the original defendants had blocked np a road nsed for oarts afad
foot passengers bj erection complained of and had thereby pat the plaintiff to
inoonrenience. The Gonrt passed a decree in fayoor of the plaintiif for postfte*
sion jointly with the added defendants.

On the contention that the plaintiff having claimed ezclnsiTe possess ion
was not entitled to a decree for joint possession, it was hM that even if be
had done so the Court should not on that groand interfere in second appeal
with the decree for joint possession if on other grounds the plaintiff was found
to be entitled to such possession.

On the finding that the road had been blocked to some extent, it was
htlA that the plaintiff was entitled to the relief prayed for as the damage could
not be remedied by a partition.

{Ram^phaL Bai v. RaghunaKdan (1) distinguished. 7\9ta ▼. Sardul Singh and
Belect Case No. 270 referred.]

For Appellants— Mr. Mohammed Nasim.

For BBSP02n>Birr — Mr. Puttu Lai.

Chamikb, a. J. C. — ^Thig was a suit for possession of a piece
of shamitat land in an ahadi and for demolition of a chaupal
erected ttiereon by the original defendants. The plaintiff is a

* Against the decree of Fandit Tribhuwan Nath Sopori, Subordinate Judge,
Lucknow, dated 18th May 190i, reversing the decree of Pandit LUIei Dbar JoAi.
Munsif (South), Lucknow.

(I) LL.B.,10AU.,i98. (2) L L. B., 10 All., 563.



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Vol. Vn.] THE OUDH CASES. 363

co-sharer in the patti in which the land lies and the remaining KaUu and
eo-sharers of the patti were added as defendants by the first tr.

Court. The plaindrs case was that the original defendants ^^^^ ^^'
had blocked up a road used for carts and foot passengers by
erecting the chaupal in question and that they had thereby
put the plaintifiE to inconvenience. The defendants pleaded
that they had built a house on the plot many years ago by
permission of the lambardar and that the chaupal in question
was merely an addition thereto and that no road had been block-
ed up and no harm done to the plaintiff. The lower appellate
Court has found that the chaupal blocked up a road as alleged
by the plaintifiE and passed a decree in favour of the plaintifiE
for possession jointly with the added defendants.

In second appeal it is contended that the pkintifiE having
claimed exclusive possession was not entitled to a decree for
joint possessiob* It is doubtful whether the plaintifiE ever in-
tended to claiin e^cltisive possession but even if he did I do not
think that I should on ttat ^ound interfere in secoild appeal
with the decree for joint possession if oil other grounds the
plaintifiE is found to be entitled to such possessioui The only
other point taken is that the plaintifiE was not entitled to a dec- .
ree withotit showing that the erection of the chaupal interfered
With his enjoyment of the shamilat land^ A glance at the plan
which has been prepared shows that the new chaupal narrows ,
the road to about 2 feet whereas formerly the width V^as 7 or
8 feet. Thei*e can therefore be no doubt that the I'oad has been
blocked but it is not shown that the plaintifiE has sufiEered from
the obstruction any greater inconvenience than any other in-
habitant of the village. It was contended that he was bound
to show that he had sufiEei'ed special damage according to the
rule applied in Ramphal Rat V. Raghunandan (IJ But in my
opinion the present case is more like that of Totay. Sardul
Singh (2) where it was held that the rule applied in the earlier
case did not govern a suit by a zemindar in respect of an inter-
ference with his own rights of property* In the present case the
plaintiff is one of the owners of the land on which the new
(1) I.L.B»,10AU»,498. (2) I. L. B., W AU., 563.



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364 THE OUDH CASES. [Vol. VD.

Kaiiu and oKaupal stands and the case is rieally one between him and h»
f. oo-sharers, to which the decision in Select Case No. 270 applies.

Mfty* Dm, J have followed that decision in several cases and the oorrectDess
of it is not disputed in the present case. It seems to me that
this is cleariy a case in which reHef should be given to ^
plaintifE, The closing of a village road is very difiEerent from
the erectioH of a bnilding npon an open piaoe of joini ]mA
where the parties may be left to adjust their differenees npoor
a partition. In Hbe present case the damage dose woold not be
remedied by a partition. • I therefore agree with the lower
appellate Court and dismiss the appeal with costsw



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VuL. VII.] THE OU DH CASES. 365

FIRST CIVIL APPEAL, No. 84 OF 1904.*



Before Mr, Scott and Mr. Chamier,



Raj Gobardhan Singh (Plaintiff) v. Musammat Nasiban 1904
and another (Defendants). ^^^* ^•



Certified copy of registered document^ admissihility in evidence
of — Pvblic document — Evidence Act, ss, 65 (i) and (/) and '
74 (2) — Registration Act^ s. 67.



A private document which has been registered does not become a public
document under s. 74 (2) of the Evidence Act ; and a certified copy of
it cannot be used to prove the contents of the original either under s. 65
(e) or C/J of that Act or under section 67 of the Registration Act.

[Beni Pershad v. SaJutl Lai and others (1) overruled; Harith Chunder t,
Prtfiuntw Coomar (2) referred to.]



For Appbllant — B. Basudeo Lai.

For Respondent No. I. — M. Mohan Lai.

Scott, J. C. and Chamier, A. J. C. — This is a plaintiflE's
appeal against a decree o£ the Subordinate Judge o£ Kheri
whereby the suit was dismissed with costs.

The plaintiff's case was that the first defendant Musam-
mat Nasiban on October 29th 1891, mortgaged a share in
a village to the second defendant Ajudhia Pershad, to secure
the re-payment of Rs. 1,000 of which Rs. 600 are said to have
been advanced in cash and Rs. 400 are said to have been due
upon two previous mortgages for Rs. 150 and Rs. 125 respec-
tively; that the second defendant assigned all his interest
under the mortgage to the plaintiff by a deed dated



* Against the decree of M. Mohammad Taj-nd-din, Subordinate Judge,
Kheri, dated 24th May I90i.

(1) 7 0. C, 827. (2) 22W.R.,303.



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3*66 THE OUDH CASES. [Vol. VIL

Raj Q^J>*r- October 30th 1895; that a farther deed styled an agreement

tj. dated November 12th 1895^ was executed for the purpose of

Nasiban explaining and rectifying a mistake in the deed of October

and another. 30th 1895 ; and that a sum of Rs, 7,249 odd was due to the

plaintiff on the mortgage.

• . The defendant Aju:dhia Pershad, made a counter claim

against the plaintiff under the agreement of November 12th
which is i^ot now ipaterial but otherwise did not defend the
^uit. Musammat Nasiban denied that she had mortgaged
any property to the second defendant and asserted that the
mortgage-deed in suit was a forgery concocted by the plaintiff
and the second defendant' who had been her agents. The
plaintiff did not produce the mortgage-deed of October 29th
1891, or the deed of assignment dated October 30th 1895,
or the agreement of November 12th 1895. He alleged that
all three deeds had been stolen from his agent Murlidhar on
June 10th 1903, as the agent was returning from Sitapur,
whether he had gone to consult a pleader with a view to filing
a suit upon the mortgage. The first question is whether the

loss of the deed has been proved [The Court

upheld the decision of the Court below that the loss of the
documents had not been proved.]

It was contended that the plainCff was not bound to prov«
the loss of the originals but could prove his case by means of
certified copies of the documents all three of which were regis-
tered. The learned Advocate for the plaintiff relied upon
section 65 of the Evidence Act, section 57 of the Registration
Act and upon the decision of Mr. Wells in Beni Pershad v.



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