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Allahbad High Court
RAJESWARIPRASAD
Shanker Lal - Appellant
Versus
Vijay Shanker Shukla - Respondent
Decided On : 04/05/1966
EVIDENCE - ADMISSIBILITY - PEDIGREE OR PATERNITY - SECTION 32(5) AND SECTION 50 OF THE EVIDENCE ACT - OPINION EXPRESSED BY CONDUCT - RELEVANCE - COMPETENCY OF WITNESS - SECTION 118 OF THE EVIDENCE ACT - CHILD WITNESS - TEST OF MENTAL CAPACITY - OPINION OF TRIAL COURT - WEIGHT TO BE ATTACHED - REMAND FOR FRESH TRIAL.
Fact of the Case:
Two suits were filed, one by Shankar Lal claiming to be the father of a child named Munna alias Vijay, and the other by Vijay Shankar Shukla claiming to be the father of the same child. The child was found in the custody of Babu Lal Sharma, who had adopted him from Shrimad Daya Nand Anathalaya, Agra, where the child had been admitted by a lady who had brought him from Kanpur. The trial court dismissed Shankar Lal's suit and decreed Vijay Shankar Shukla's suit. Shankar Lal appealed to the lower appellate court, which dismissed the appeals and confirmed the trial court's decrees.
Finding of the Court:
The lower appellate court erred in relying on the documents of the Anathalaya as evidence of the paternity of the disputed child. The statement of the disputed child and the testimony of Rajendra Prasad Pandey, the teacher, were also inadmissible evidence. The remaining evidence was insufficient to establish the paternity of the child.
Issues: 1. Whether the documents of the Anathalaya were admissible evidence of the paternity of the disputed child? 2. Whether the statement of the disputed child was admissible evidence? 3. Whether the testimony of Rajendra Prasad Pandey, the teacher, was admissible evidence? 4. Whether the remaining evidence was sufficient to establish the paternity of the child?
Ratio Decidendi: 1. The documents of the Anathalaya were not admissible evidence of the paternity of the disputed child because they did not constitute direct evidence within the meaning of Section 60 of the Evidence Act and did not express any opinion held by a person with special knowledge of the relationship in question. 2. The statement of the disputed child was not admissible evidence because the child was not a competent witness within the meaning of Section 118 of the Evidence Act. 3. The testimony of Rajendra Prasad Pandey, the teacher, was not admissible evidence because it did not constitute direct evidence within the meaning of Section 60 of the Evidence Act and did not express any opinion held by a person with special knowledge of the relationship in question. 4. The remaining evidence was insufficient to establish the paternity of the child.
Final Decision: The appeals were allowed, the decisions of the courts below were set aside, and the cases were remanded to the trial court for fresh trial.
2. Suit No. 192 of 1962 was filed by Sri Shanker Lal, who is now the appellant before me against Sri Vijay Shanker, Sri Baboo Lal Sharma and Manager Shrimad Daya Nand Anathalaya, Agra. The other suit No. 277 of 1962 was filed by Sri Vijay Shanker Shukla aforesaid against Sri Shanker Lal, Baboo Lal and Manager, Shrimad Dayanand Anathalaya. Suits are in the nature of cross-suits. Consequently, the plaint allegations in the suit of Shri Shanker Lal are the allegations in his written statement in the other suit and vice versa. The only difference is that in the suit of Sri Shanker Lal, namely, Suit No. 192 of 1962. Sri Babu Lal Sharma and the Manager Shrimad Daya Nand Anathalaya, Agra have filed written statements to contest the claim of Shanker Lal while these two defendants have not filed any written statement in Suit No. 277 of 1962 filed by Shri Vijay Shanker Shukla.
3. The case of Sri Shanker Lal appellant was that a son was born to him on 21st September 1953. He was named Munna alias Vijay. The boy was reading in the Municipal School, Gudari Mansoor Khan situate in Bhando Wali Gali in the city of Agra. On 8th July 1961, the boy did not return home from his school. Efforts were made to recover the boy but in spite of report in the Sewadal and distribution of handbills, the boy could not be traced out. On 4th March 1962, the boy was seen in the custody of Babu Lal Sharma defendant no. 2 in a tonga. In Sadar Bazar, Agra. The boy was then taken to the police station and was thereafter given in the custody of another person, Sri Shanker Lal. The boy was produced in the Court of City Magistrate on the 5th March 1962, at Agra. By the order of the Magistrate, the boy was then put in the custody of the Manager of the defendant Anathalaya but on 7th March 1962, the boy was given in the custody of Sri Shanker Lal on his furnishing security. On the 10th March 1962, Sri Vijay Shanker Shukla went to Agra from Kanpur, visited Shrimad Daya Nand Anathalaya. He moved an application on the 12th March 1962 in the court of the City Magistrate for delivery of the child to him. Sri Shankar Lal, plaintiff-appellant, therefore, filed the suit giving rise to one of the second appeals for a declaration that he was the father of the said Munna alias Vijay and that the defendants had no concern with the child. Necessary injunction was also sought by Shankar Lal.
4. The case of Sri Vijay Shankar Shukla is to the effect that he is a poor Brahman residing at Kanpur and he is the father of six children. Two of his sons Rajendra Prasad aged 10 years and Munna Lal alias Ravindra aged 8 years, who were studying in a Basic School at Mohalla Bhusa Toli in the city of Kanpur, disappeared from the house in the morning of 19th May 1961. They did not return. He made a report of the matter on 21st May 1961 at police station Collectorganj Kanpur. Sri Kirpa Shanker another son of Sri Vijay Shankar Shukla was in service at Allahabad at that time and he got notices published in Northern India Patrika as well as Bharat about the loss of his two brothers. A lady is said to have brought the two boys from Kanpur to Agra and when the matter was brought to the knowledge of the police, the police got the two boys admitted in Shrimad Daya Nand Anathalaya on 28th May 1961.
On 10th March 1962 Shri Vijay Shankar went to Agra, visited the Anathalaya and found one of his sons Rajendra Prasad there and then he came to know about the whereabouts of his other son Munna. He then moved an application on 12th March 1962 before the Magistrate for delivery of the child. The Magistrate, however, in his discretion decided that the child should not be allowed to live with either Sri Shankar Lal or Sri Vijay Shankar the competitive fathers of the boy, but that he should be kept in the custody
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