TMI Blog1950 (12) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... two months after Govind Ballab's death. Govind Ballab left him surviving a widow Sarnamayee, who died in 1935, She gave birth to a son, Lal, who died in infancy, and a daughter, Indubala, who died in 1904. The deceased Govind Ballab Ray had left also certain debutter properties but no decision in respect of those properties was given as the proper contesting parties were not before the Court. It was contended on behalf of the plaintiffs (appellants before us) that they are the next reversioners of Govind Ballab on the death of Sarnamayee. On behalf of the defendants (respondents) it was contended that the first wife of Govind Ballab had given birth to a second daughter Binodini on 29th of Baisakhi 1287 (9-5-1880) and that Binodini di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cussed in connection with this issue (the birth of Binodini) it may seem that there are some strong circumstances in support of the defendant's case......I might have been probably inclined to decide the question of daughtership in favour of the defendants had I not been encountered by certain documents on the plaintiffs' side which I am proceeding to discuss now. The circumstances as also the documents on the side of the defendants can be explained away as I have done but I find no reasonable ground on which I can do away with the plaintiffs' exhibits, especially the account papers (exh. 32 series). The High Court has quite appropriately started examining the judgment of the Subordinate Judge on the basis of these observa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court, consists of loose sheets of papers. They have not the probative force of a book of account regularly kept. Being old documents, naturally, the writer is not called and barring the fact that they were produced from the Receiver's possession there is nothing to show their genuineness. Section 90, Evidence Act, does not help the appellants because this is not a case where the signature of a particular person is in question or sought to be established. We do not propose to repeat the reasons given by the High Court to show why these documents are not of that compelling nature as thought by the Subordinate Judge. They are all well summarized in the judgment of the High Court. In its judgment the High Court has also pointed ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to these defects therefore it is not possible to say that the entries have been made in the regular course of business and have the necessary probative value. In our opinion therefore the conclusion of the High Court is correct. 5. Mr. Umrigar, following the argument of Mr. Chatterjee who argued the main points in the appeal, contended that there was a preliminary objection to the appeal being heard. He argued that after the Subordinate Judge passed the decree in favour of the appellants the respondents filed the appeal, without the necessary court-fees stamp. On the appellants' objection the matter was discussed before the Registrar who held that 'ad valorem' court-fee must be paid on the appeal. At that time the prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge, as drafted, is only a declaratory decree and contains no order directing delivery of possession. It is true that in the judgment of the Subordinate Judge there are directions about delivery of possession but they do not appear to have been included in the decree as drawn up. Secondly, the power of the High Court to allow an amendment under Section 149, Civil Procedure Code is clearly one under which the plea of the bar of limitation may be ignored. There are decisions of very high authority taking that view. The contention therefore that by allowing the amendment the High Court took away the present appellants' valuable right to plead the bar of limitation cannot be accepted. It was a matter of discretion for the High Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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