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1916 Supreme(SC) 52
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BUCKMASTER L.C., EARL LOREBURN, AND LORD SHAW OF DUNFERMLINE.
MAHOMED SYEDOL ARIFFIN - Appellant
Versus
YEOH OOI GARK - Respondents
On Appeal From the Supreme Court of the Straits Settlements.
Decided On : July. 20. 1916.
Evide nce—Infancy—Date of Birth—Family Re cord—Admis s ibility— Illus trations to Statute —Straits Se ttle me nts Ordinance III. of 1893, and Indian Evide nce Act (I. of 1872), s. 32, s ub-s . 5, and Illus tration (l).
In an action in the Straits Settlements to recover the amount due upon certain mortgages the defendant pleaded that he was an infant when he executed them. As evidence in support of this plea there was tendered at the trial an entry recording the date of the defendants birth made by the defendants deceased father in a book in which he made similar entries with regard to his family :—
Held, that under the Straits Settlements Evidence Ordinance, 1893, s. 32, sub-s. 5, and having regard to illustration (l) to that section, the entry was admissible in evidence. (The section and illustrations reproduce the Indian Evidence Act s. 32.)
Illustrations appended to sections of a statute should be accepted, if that can be done, as being of relevance and value in construing the text ; they should be rejected as repugnant to the section only as the last resort of construction.
A statement by a deceased person regarding a person's date of birth is admissible as evidence of a relationship by blood, as the birth date marks the commencement of that relationship. Statutory illustrations must be given weight in interpreting the scope of such evidence laws.
Headnote:(A) Evidence Ordinance, 1893 - Section 32(5) - Admissibility of statements made by a deceased person relating to the existence of relationship by blood - A statement regarding the date of birth of a person is admissible as it relates to the commencement of the relationship by blood - Illustrations provided in the statute are of relevance and value in construction and should not be rejected unless there is a special case of repugnancy to the section - The rule of evidence in a jurisdiction must be accepted as found in its own statutes, and the application of foreign common law is not permissible if it varies or denies effect to the true meaning of the local statute. (Paras 15-22)
(B) Fraud - Misrepresentation of age by a minor - A minor who fraudulently represents himself to be of age is not liable in damages. (Para 24)
Facts of the case:
A money-lender sued for the recovery of principal and interest under mortgages. The defendant pleaded that he was a minor at the time of execution. To prove his age, an entry in a family record book kept by the deceased father, recording the date of birth, was produced. The lower courts excluded this evidence, holding that a statement of birth date did not relate to the existence of a relationship by blood under the applicable evidence law and that the restrictive rules of English hearsay evidence should be followed.
Findings of Court:
The entry in the family record book was admissible in evidence. The statement of the date of birth is a statement relating to the existence of a relationship by blood as it marks the commencement of such relationship.
Issues: Whether an entry in a family record book made by a deceased father recording the date of birth of a son is admissible as evidence of age under Section 32(5) of the Evidence Ordinance, 1893.
Ratio Decidendi: The court held that the law of the jurisdiction must be interpreted according to its own Evidence Ordinance. The illustrations accompanying the section, which specifically cite a letter announcing a birth date as a relevant fact, are helpful in the application of the statute and should be accepted. There is no repugnance between a statement relating to the existence of a relationship and a statement as to when a person was born. Additionally, a minor cannot be made liable in damages for fraudulent misrepresentation of age.
Result: Judgment of the Court below recalled and action dismissed with costs.
Legal Category Hierarchy
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practice and procedure
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evidence
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hearsay
- pedigree
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hearsay
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evidence
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contract law
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capacity
- minority
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capacity
Judgement
Appeal from a judgment of the Court of Appeal of the Supreme Court of the Straits Settlements (March 2, 1915) affirming the judgment at the trial.
The respondent sued the appellant in the Supreme Court of the Straits Settlements (Penang) to recover the principal and interest due under mortgages executed by the appellant in 1912 and 1913. The appellant pleaded that he was an infant at the time when he executed the mortgages. The respondent by his reply joined issue, and pleaded further that he was induced to lend upon the mortgages by the fraudulent misrepresentation of the appellant that he was then of age, and that if he was in fact then an infant the amount claimed was recoverable as damages. At the trial before Sercombe-Smith J. the appellants brother proved an entry in a book kept by the deceased father of the appellant and containing records of the births, deaths, and marriages of his family; this entry recorded that the appellant was born on September 17, 1895, according to which date he was between seventeen and eighteen when the mortgages were executed. There was no other evidence to establish the age of the appellant. The witness stated that the entry did not come to the appellants knowledge; there was further evidence, referred to in the judgment of their Lordships, relevant to the alleged fraud.
The learned judge held that the entry was not admissible in evidence under s. 32, sub-s. 5, of the Evidence Ordinance, 1893, the material parts of which are set out in their Lordships judgment, and gave judgment for the respondent. In case he was wrong in so deciding he dealt with the question of fraud. He found that the advances were induced by the appellant fraudulently representing that he was of age, and held that the respondent was entitled to a charge upon the property mortgaged.
The Court of Appeal held that the evidence was properly excluded and accordingly affirmed the judgment without dealing with the alleged fraud.
The acting Chief Justice, Woodward J., was of opinion that a statement of the date of a persons birth was not one relating to the existence of a relationship by blood within s. 32, sub-s. 5. The terms of the sub-section extended the English law in that they applied in certain circumstances to statements made by living persons, but subject to that extension he thought that the intention was to reproduce the English law. Under that law Haines v. Guthrie (( 1884) 13 Q. B. D. 818.)) showed clearly that the statement was not admissible. Where in the section the English law of evidence was altered it was done so in clear terms, and he did not think that an intention to depart from that law ought to be inferred from illustration (l). The learned judge was of opinion that the explanation of the illustration was that given by Sercombe-Smith J., namely, that it was " an attempt to illustrate English law which admits such incidents of family history as are immediately connected with, and required for proof of, issues involving family succession, relationship, and legitimacy, such as the birth, marriage, and death of members of the family with the respective dates and places of those events.” Ebden and Earnshaw JJ. concurred.
1916. June 2. Sir Erle Richards, K.C., and Sir W. Garth, for the appellant. It is conceded that under the English law of evidence the entry in the book would only have been evidence of pedigree, and not of the date of birth. It was, however, admissible under the Evidence Ordinance, s. 32, sub-s. 5, as a statement relating to the existence of relationship by blood ; this is made clear by illustration (l). Sect. 32 reproduces s. 32 of the Indian Evidence Act (I. of 1872) as amended by s. 2 of Act XVIII. of 1872, and the same illustrations are appended. The Indian Courts have held that a family record of this character is admissible under s. 32, sub-s. 5, as evidence of the date of birth recorded Dhanmull v. Ram Chunder Ghose (( 1890) I. L. R. 24 Calc. 265.); Ram Chandra Dutt v. Joges
