TMI Blog1920 (5) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... the mother of one Kameshwar deceased. The plaintiff, who was a distant agnate and the next heir to the deceased, claimed a declaration as to his status as legal heir and nearest relation of Kameshwar Chowbey, and further he claimed possession of the estate of the deceased; and his main contention was that the defendant Sumitra, who was then in possession as mother of the deceased, was not in fact his mother at all, and that his mother had died some years earlier, and that the defendant had from the infancy of the deceased maintained him and hence had come to be regarded by certain people as his mother whilst in truth and in fact she was not his mother. That was the real and practically the only contention between the parties in the suit. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity or otherwise of this document, apparently attributed considerable importance to it in his judgment. He says: The defendant has proved a deed of gift executed by Musammat Mohra, the mother of Sumitra, under which she gifted away property to Kameshwar and Mooni describing them as her direct grandsons. Then he goes on and deals with other portions of the Evidence, and comes to the conclusion that the evidence on behalf of the defendant is to be accepted rather than that on behalf of the plaintiff and adds Sumitra's own evidence that she is the mother of Kameshwar and was the wife of Ramdaur is reliable and gets support from the deed of gift executed by her mother in favour of Kameshwar who could not but be her nati. Non-examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be given and what evidence may not in any suit. That section provides that Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. The Explanation to the section says: This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time feeling in force relating to civil procedure. It is clearly the duty of the Judge, apart altogether from any objection by the parties or their Pleaders, to exclude all irrelevant evidence, and in this case had the learned Munsif performed that duty, he would have entirely excluded this document on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y how far the mind of the Subordinate Judge was influenced by this document. It is obvious that it was a piece of evidence very largely relied upon by the defendant, because we find in the judgment of the Munsif that he states the defendant relies principally upon the hiba deed executed by Musammat Mohra in favour of Kameshwar Chowbey, and one must assume that in the Appellate Court they placed the same reliance upon it and as the learned Subordinate Judge accepted it, it is impossible for us to say in the circumstances that it had not a very considerable influence upon his mind in weighing the evidence and coming to a decision. In these circumstances it seems to me that the judgment of the learned Judge of this Court was perfectly right an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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