JUDGMENT Rajeswari Prasad, J.
1. These are two connected second appeals which can be disposed of by a common judgment Courts below have also disposed of the two suits giving rise to the two second appeals by the common judgment.
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 Viiay 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 Viiay. The boy was reading in the Municipal School, Gudari Man-soor 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 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 of a third person. Vijay Shankar, therefore, filed his suit for a declaration that he was the father of the boy in question and was entitled to his custody. Injunction was also sought to direct Shankar Lal to deliver the child to Sri Vijay Shankar Shukla The written statement filed on behalf of Babu Lal Sharma and the Manager Shrimad Daya Nand Anathalaya in the suit of Shankar Lal disclosed that the two boys Rajendra Prasad and Ravindra Prasad were admitted in Shrimad Davanand Anathalaya. Agra on 28th May 1961 For a long time, nobody turned up to claim the children and as Babu Lal Sharma defendant no 2 was in need of adopting a son for himself, the Anathalava authorities agreed to give Ravindra Prasad in adoption to Sri Babu Lal Sharma Ceremonies of adoption were performed and the child in question was given to Babu Lal. He donated a sum of Rs. 501/- to the Anathalay. The Manager Anathalaya in his written statement admitted that the child in suit was the son of Vijay Shankar Shukla. It was denied that Sri Shankar Lal was the father of the child. On the basis of adoption, Sri Baboo Lal claimed to be entitled to the custody of the boy.
5. The trial court dismissed the suit of Sri Shankar Lal, namely, Suit No. 192 of 1962. Suit No. 277 of 1962, the suit of Sri Vijay Shankar Shukla was decreed. It granted a declaration that Sri Vijay Shankar was the father of the child in dispute and was entitled to his custody. The name of the child was Munna alias Ravindra.
6. Shankar Lal filed two appeals before the lower appellate court.
7. Both the appeals were dismissed by the lower appellate court and the decrees of the trial court were confirmed.
8. Being aggrieved from the above decision, Sri Shankar Lal has filed the above-noted two second appeals in this Court.
9. As observed by the lower appellate court, the only point for consideration that arose in the appeals was, whether the disputed child was the son of Sri Shankar Lal or of Sri Vijay Shankar Shukla.
10. Parties adduced documentary and oral evidence in support of their respective cases. The lower appellate court classified the documents into five groups.
11. The first group of documents according to the lower appellate court offered evidence in respect of the loss of the children and it consisted of the following documents:
(1) Ex. 2 is a report dated 8th July 1961 by Sri Ram Charan, brother of Sri Shankar Lal informing the Sewadal about the loss of Vijay The boy was described to be seven years old, wheat coloured and a bit off the mind.
(2) Ex. 3, a hand bill issued by Sri Shankar Lal declaring a reward for tracing out Vijay. It was indicated in the bill that there was certain infirmity in the hand and leg of the boy;
(3) Ex. 4 is an issue of Amar Ujala dated 13-7-1961 announcing the loss of the child.
(4) Exs. A-10 and A-11 are copies of general diary dated 21st May 1961 of police station Collectorganj. Kanpur about the disappearance of the two sons of Vijay Shankar Shukla. One of them, named, Munna alias Ravindra was described as of wheat colour;
(5) Exs. A1 and A2 are issues of Bharat and Northern India Patrika dated 12th July 1961 announcing the loss of Rajendra and Munna;
(6) Ex. A5 is a copy of application dated 31st July 1961 made by Sri Jiwan Shankar Shukla son of Sri Vijay Shankar Shukla informing the Intelligence Department of the Government about the loss of his two brothers;
(7) Ex. A6 is the certificate of posting which shows that the aforesaid application was actually sent; and (8) Ex. A7 is a copy of the application dated 4th August 1961 made by Sri Vijay Shanker Shukla to the District Magistrate for grant of a certificate for announcement of the loss of the two children from the All India Radio.
12. The aforesaid documents which have been classified in one group by the lower appellate court, afford evidence to prove that a son of Shankar Lal was lost on 8th July 1961 and that two sons of Vijay Shankar Shukla got lost on 19th July 1961. None of the two parties contested the allegations of each other on the point of loss of children.
13. The second set of documents consisted of the following papers:
(1) Ex. 7 is a copy of Admittance Register of Primary School, Gudri Mansoor Khan which went to show that Vijay the son of Sri Shankar Lal had been admitted in the said school;
(2) Ex. 8 is a copy of Attendance Register which shows that Vijay Singh son of Sri Shankar Lal remained absent from 8th July 1961:
(3) Ex. 9 is School Leaving Certificate of Sri Vijay Singh on the ground that the boy was lost:
(4) Exs A12 and A13 are Attendance Registers of a Private School at Kanpur run by Sri Rajendra Prasad. They go to show that Rajendra Prasad Shukla and Ravindra Prasad Shukla sons of Sri Vijay Shankar Shukla attended the school;
(5) Exs A3 and A4 are result sheets dated 20th May 1961 of the aforesaid two boys and it appears from the said certificate that both of them were successful at their examinations; and (6) Ex. 8 is a certificate granted by Sri Rajendra Prasad Pandey, a teacher of the school. He certified that the two boys attended school from 1st November 1960 to 16th May 1961 and that thereafter they did not attend the school. The above documents, therefore, are evidence of the fact that the sons of Sri Vijay Shankar and the son of Shankar Lal were studying in their respective schools upto a certain date and that thereafter they did not attend.
14. The third group of documents consists of blood reports given by Sri O. P. Bansal, a lecturer in the Medical College. It consists of Ex. 11 which is a report dated 4th May 1962, which had been obtained by Sri Shankar Lal, plaintiff-appellant, privately From the said report, it appears that Sri Shankar Lal, his wife and the disputed child are all of "B" group blood. The other three reports Exs. 12, 13 and 14 which were obtained under orders of the court, confirmed the previous report. Similarly Exs. A20, A21 and A22 are blood reports of Sri Vijay Shankar Shukla, Shrimati Vijay Shankar Shukla and the disputed child. Reports go to show that Vijay Shankar Shukla is of "A" group blood, while Mrs. Shukla and the disputed child are of "B" group blood.
15. The fourth group of documents consist of papers from Shrimad Daya Nand Anathalaya. Exs. A15 and A16 are Anathalaya Pravesh Patras. They relate to the admission of two boys Rajendra and Munna in the Anathalaya. Ex. A17 is a copy of daily report of the Anathalaya. Ex. A18 is the Register of Anathalaya. Ex. AH is the adoption deed dated 1st January 1962 executed by Sri Babu Lal Sharma.
16. It would, therefore, appear that the 4th group of documents are by way of evidence of the fact that the two boys were admitted in the Anathalaya, that one of them was given in adoption to Babu Lal Sharma.
17. The last group of the documents consists of copies of the orders of the City Magistrate, Agra Ex, 5 is a copy of order dated 7th March 1962. By means of this order the disputed child was given to Shankar Lal on his furnishing security. Ex. A9 is the copy of order dated 15th March 1962 by which the Magistrate decided to give the child in the custody of a third person.
18. With regard to the third group of documents, namely, the papers of Anath-alaya. The contention made on behalf of Sri Shankar Lal before the lower appellate court was, that they were wholly unreliable as there were cuttings in the register and there were irregularities in the maintenance of the register. The lower appellate court observed that the papers constituting the third group suggested that the boys were admitted in Shrimad Daya Nand Anathalaya, Agra on 28th May 1961, and that Sri Viiay Shanker Shukla was father of these children.
19. Even if it be assumed for a moment that the aforesaid documents proved that the two boys were admitted in Shrimad Daya Nand Anathalaya on 28th May 1961, I am unable to appreciate the other part of the observation of the lower appellate court, to the effect that the said documents, also went to prove that Sri Vijay Shanker Shukla was father of these children. The lower appellate court has relied on the said documents for the proof of the fact that Vijay Shanker Shukla was the father of the children and the question raised before me is whether the said documents of the Anathalaya, could be admissible evidence with regard to the paternity of the disputed child. I shall deal with this point later.
20. So far as the fourth group of the documents is concerned, the lower appellate court was right in coming to the conclusion that the said documents do not throw light on the issue in question.
21. The lower appellate court then dealt with the fifth group of the documents which as noted above consisted of the order of the City Magistrate. By the order dated 7th March 1962, the City Magistrate had ordered the child to be given to Sri Shanker Lal on his furnishing security. By his other order dated 15th March 1962, the Magistrate had ordered the child to be given in the custody of a third person. Tha lower appellate court observed that one thing was very significant in the order of the City Magistrate. The City Magistrate had remarked that the child refused to recognise his father, Shankar Lal. Till 17th March 1962, Sri Vijay Shanker Shukla had not come into the picture but from tha order of the Magistrate, it appeared to the lower appellate court that the child refused to recognise Shanker Lal as his father.
22. It has been correctly urged before me that the orders of the City Magistrate could not be read in evidence in this case and the facts indicated therein could not be taken to be proved unless the Magistrate himself had been examined as a witness in this case.
23. The oral evidence on behalf of Sri Shankar Lal consists of his own statement and 10 witnesses. Likewise, the oral testimony on behalf of Sri Vijay Shanker consists of his own statement and 10 witnesses.
24. The first two witnesses produced by Sri Vijay Shanker Shukla were Sarvsri Brij Bhushan Lal and Jagat Singh who were only formal witnesses. They were examined to prove the general diary of the police station Collectorganj, Kanpur. Out of the remaining seven witnesses, one of them is Sri Rajendra Prasad Pandey, the alleged teacher in the school where the sons of Vijay Shanker were studying and the other witnesses are Vijay Shanker himself, his wife and the other two sons. It will thus appear that the witnesses are either the alleged parents and brothers of the disputed child or a teacher of the disputed child. Apart from the witnesses produced by the parties, the court proceeded to examine the disputed child itself as a court witness The statement made by the disputed child has been considered at length by the lower appellate court and on the basis of the statement of the disputed child, the lower appellate court came to the conclusion that Shanker Lal was not the father of the disputed child, and that therefore, the statement made by the child went to support the evidence of Sri Vijay Shanker Shukla to the effect that the disputed child was the son of Vijav Shanker Shukla.
25. It has been urged before me that neither the statement of the disputed child nor the statement of Rajendra Prasad Pan-dey the teacher is admissible in evidence and that, therefore, the finding of the lower appellate court is based on mostly inadmissible evidence. This being so, though a finding of fact, the said finding is not binding in second appeal.
26. It has been argued before me at some length by the learned counsel for the appellant that evidence with regard to pedigree or paternity has to be admissible either under Section 32 Clause (5) or Section 50 of the Evidence Act and if such evidence is not covered by either of the two sections, the evidence cannot be held to be admissible on such question. There is no evidence in this case about which the question of admissibi-lity under Section 32(5), Evidence Act may arise. Therefore, all that has to be considered in this case is whether the evidence relied upon by the lower appellate court for the question of paternity, is evidence, admissible under Section 50 of the Evidence Act or not Section 50 of the Evidence Act reads thus:
"Opinion of relationship when relevant:
When the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject is a relevant fact."
It would appear that the necessary requirements of the aforesaid provision are: firstly that the Court is called upon to form an opinion as to the relationship of one person to another, secondly there must be an expression of opinion by conduct as to the existence of the relationship and thirdly it must relate to a member of the family or a person who otherwise has special means of knowledge on the subject If these three requirements are present, then what is relevant is the opinion as emerging from the conduct What has to be offered as evidence is the conduct of such person, whereafter it has to be found out whether the conduct proved, can be accepted as evidence of the opinion of a person who fulfils the requirements as given in the section.
27. In the case of Dolgobinda Paricha v. Nimaicharan Misra. AIR 1959 SC 914, their Lordships of the Supreme Court considered the implications of the provision of Section 50 of the Indian Evidence Act The view taken by their Lordships was that the offered item of evidence was 'the conduct' but what was relevant was the opinion emerging out of such conduct. It was further held that such conduct need not necessarily be proved by the person concerned himself, but other evidence can be adduced to prove the conduct of such person. Their Lordships further held that opinion in this context means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is a belief or a conviction resulting from what one thinks on a particular question. Their Lordships went on to observe that the 'belief' or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. According to their Lordships, the section makes such conduct or outward behaviour as evidence of the opinion relevant and one which can be proved.
Their Lordships also noticed the observation made in the case of Chandu Lal Agarwala v. Bibi Khatemonnessa, ILR (1942) 2 Cal 299 at p. 309 = (AIR 1943 Cal 76 at pp. 79-80). The said observation was to the effect that, what was made relevant under Section 50 of the Evidence Act was opinion as expressed by conduct and further that the offered item of evidence is 'the conduct' but what is made admissible in evidence is 'the opinion' the opinion as expressed by such conduct. The offered item of evidence thus only moves, the Court to an intermediate decision, to see if the conduct established any opinion of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the court to infer 'the opinion' the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the opinion. Their Lordships of the Supreme Court in the aforesaid decision further went on to observe that their Lordships accepted it as correct that Section 50 did not make evidence of mere general reputation (without conduct) admissible as proof of relationship.
28. For the question, as to how is such conduct to be proved reference is to be made to Section 60 of the Evidence Act. Section 60 of the Evidence Act enjoins that oral evidence must in all cases be direct, that is to say if it refers to a fact which could be seen it must be the evidence of a witness, who says he saw it, if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it. if it refers to a fact which could be perceived by any other sense or in any other manner it must be the evidence of a witness who says he perceived it by that sense or in that manner; and lastly if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds Their Lordships observed that, that portion of Section 60 which provides that the person who holds an opinion must be called to prove his opinion does not necessarilv delimit the scope of Section 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under Section 50 or by some other person acquainted with the facts which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of Section 60.
29. So far as the testimony of Rajen-dra Prasad Pandey, the teacher is concerned, all that he stated was that the two sons of Vijay Shanker i.e. Rajendra and Ravindra, were students in his school, they used to attend the classes and their attendance was marked by him. He did not disclose the source of his knowledge as to the paternity of the children. The statement of the said witness, therefore, is directed to prove the conduct of the witness in having admitted two sons of Vijay Shanker Shukla and in having marked their attendance in the school. The question still remains whether such conduct of the witness really went to establish any opinion on his part as to the relationship in question. I am of the view that the conduct of the witness in admitting two boys said to be sons of Shri Vijay Shanker and having given them lessons in the school, and marked their attendance, does not necessarily lead to the result that there was expression of opinion that the said boys, were the sons of Vijay Shanker Shukla. His testimony, cannot be treated as direct evidence on the question within the meaning of Section 60 of the Evidence Act. This being so. I am of the opinion that the testimony of Rajendra Prasad Pandey with regard to his conduct did not constitute evidence of paternity of the child in dispute within the meaning of Section 50 of the Indian Evidence Act.
30. With regard to the statement made by the child himself, it has been urged on behalf of the learned counsel for the appellant that the child in question was not a competent witness within the meaning of Section 118 of the Indian Evidence Act It was. therefore, submitted that the testimony of a person who was not competent to testify cannot be deemed to be legal evidence on any question.
31. On the calculation of age of the boy in question on the date of his statement on dates given on behalf of Sri Vijay Shanker Shukla, the age of the boy at the time of his statement was less than ten years. Section 118 of the Indian Evidence Act lays down that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease whether of body or mind or any other cause of same kind. The question that arises therefore is whether this particular boy who was examined by the court below, was a person who was prevented from understanding the question put to him or from giving rational answers to those questions by his tender years Such a question can be answered, only after some sort of test of the mental capacity of the witness. On the result of such test would depend the answer to the question whether by reason of his tender years, the witness was prevented from understanding the question put to him or from giving rational answers to those questions. It is, therefore, clear that we must look to the the statement of the witness himself in order to decide as to the extent of the mental capacity of the witness. What had happened in this case, was that the trial court put certain questions to the boy and thereafter proceeded to certify that the boy had the capacity to understand the question put to him and. that, therefore he was a competent witness.
32. The question before me is whether the opinion of the trial court with regard to the capacity of the witness can be said to be correct on the basis of the questions put to him.
33. The learned counsel for the respondent urged that such a question, is essentially a question to be answered by the trial court or at any rate, weight has to be attached to the opinion of the trial court on such a question. The trial court, according to the learned counsel, had opportunity to watch the demeanour of the witness and his movements Consequently, the trial court was in a better position to decide the above question. In support of his contention, the learned counsel for the respondent hat relied on a decision in the case of Nafar Sheikh v Emperor, ILR 41 Cal 406 : (AIR 1914 Cal 276). In the said case their Lordships of the Calcutta High Court were pleased to refer to the observation of Bremer, J in Wheeler v. United States. (1895) 159 US 523 and quoted a passage from that American decision which is as follows:
"The decision of this question (whether the child-witness has sufficient intelligence) primarily rests with the trial Judge who sees the proposed witness, notices his manners his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial Judge will not be disturbed on review, unless from that which is preserved, it is clear that it was erroneous."
The above quoted observation made in the said American decision came up for con-sideration in the case of Ram Hazoor Pan-dey v. State, AIR 1959 All 409. The inference drawn from the said observation by a Division Bench of this Court is expressed in the following terms-
"From the above quotation it would be clear that it is very desirable thai a trial Judge, who has a child witness before him, should preserve on the record, apart from the child witness's evidence in the case, some other questions and answers which could help the Court of Appeal to come to the conclusion whether or not the trial Judge's decision in regard to the competency of the child witness was right or erroneous."
The above noted observation made by the Division Bench of this Court would indicate that such, a question is a question, which may be considered by the appellate court also.
34. Apart from it, even in the opinion expressed by Bremer, J. it is clear that the opinion of the trial judge on such a question could be unjustified provided it is clear that it was erroneous. From the perusal of the question put to the child witness in this case and the answers given by him as well as from questions put to him which he did not answer, to my mind, it appears that the statement of the said child witness could not be safely relied upon as a piece of evidence to be used for recording finding with regard to the question of paternity of the said child witness. Sometimes, the witness gave answers, which indicated that question put to him had not been appreciated by him. I may exemplify this position by pointing out to some of the instances of this kind during the course of the examination of the witness. When a question was put to him as to what were the places that he had seen at Agra, he did not understand the question and kept silent. Again when it was inquired from him as to what places at Kanpur, he had gone, the Court had observed that the child did not give any answer. He only said "wahan rahte hain" Again when a question was put to him as to where did his father's sister live the child kept silent. Further, he said that he did not know the husband of his father's sister. When it was inquired from him in what Mohalla he lived, the answer was that he knew his father, mother, brother uncle and brother's wife. There are various other such instances, which are obvious from the perusal of his statement.
35. I, am, therefore, reluctant to hold that the disputed child was a person who could be taken to be a competent witness within the meaning of Section 118 of the Indian Evidence Act. If this be correct then his statement could not be deemed to be admissible evidence in this case. I am further of the view that registers and Pra-vesh Patras of the Anathalaya cannot be accepted as evidence on the question of paternity of the disputed child. They certainly do not furnish any direct evidence on the question within the meaning of Section 60 of the Evidence Act. As evidence of conduct of the Anathalaya authority or that of the lady Shri Rajeshwari Devi or lastly that of Babu Lal, the said evidence cannot be admissible for various reasons. The conduct proved does not lead to the expression of any opinion held by such person on the question of paternity of the boy. The conduct is not of person who would have any special source of knowledge with regard to the said relationship. If the statement of the child on the question of paternity and the documents of the Anathalaya be excluded from consideration, very little evidence is left on the question of paternity of the child. In that event, the only evidence available to the court for deciding the question will consist of the statement of Vijay Shanker, his wife and his other two sons, after excluding the statement of the teacher about which I have already expressed my opinion.
36. In this state of affairs, it appears that there are three courses which can possibly be adopted. I should proceed to decide the question of paternity of the child on the basis of the scanty evidence which is now left for consideration. I should send back the case to the lower appellate court to decide the issue on the basis of admissible evidence, as distinguished from inadmissible evidence and as pointed out above, and the third course would be to send back the case to the trial court itself so that the parties may have sufficient opportunity to produce better evidence and evidence which may be admissible under the law in order to establish their respective cases.
37. It would be said if a wrong paternity is attributed to the disputed child. In view of the importance of the issue, I consider it inappropriate to allow this matter to be decided on such scanty evidence which is now left, after separating the same from that part of the evidence which has been held by me to be inadmissible evidence Parties may have been misled by the idea that the statement of the disputed child so also that of the teacher and the document of the Anathalaya would be sufficient evidence on the issue. Relying on these pieces of evidence, parties might have refrained from adducing further evidence in support of their respective cases Apart from it, I find that no attempt was made in this case by any of the parties to examine the lady Shrimati Rajeshwari Devi who is said to have first discovered the lost boy and who is said to have got them admitted in the Anathalaya. The extract of birth register of the various issues of Vijay Shankar. which could go to fix the age of the disputed boy and would be relevant to the question of paternity have also not been filed. It, therefore, does not appear to be a case where further and better evidence is not possible. Keep-ins all this in view I think that the appropriate order to pass is to remand the case to the trial court for fresh trial after allowing the parties to adduce evidence in support of their cases.
38. Before parting with the case, I deem it necessary to observe that the part played by the Anathalaya people is rather of unusual type. It is not very clear why the name and number of the constable had not been noted at the time of admission of the boy in the Anathalaya. It is further not clear why the full and complete address of the lady who had taken the boy to the Anathalaya has not been noted down. It is also not clear how the name of the father of the boys was mentioned as Vijay Shankar Shukla at the time of the admission of the boys to the Anathalaya. Who was the person who disclosed such name at the time of admission is also in doubt. Further, no serious attempt appears to have been made by the Anathalaya people to find out the parents and the home of the aforesaid two boys. The disputed boy appears to have been given in adoption rather in a hurry. All this conduct of the Anathalaya need some enquiry, for the purpose of arriving at the truth of the case. This is an additional consideration for remanding the case for fresh trial to the trial court.
39. I, therefore, allow the appeals, set aside the decision of the courts below, and remand the cases to the trial court for fresh trial. The trial court may keep in mind the observations made by me in this order, The trial court will further permit the parties to produce such documentary and oral evidence as they would like to produce. It will be open to the parties or to the court itself, to examine the disputed child as a witness in this case, if now it is found that the boy is capable of understanding the questions put to him and is consequently a competent person to be a witness in the case.
40. Costs of this litigation will abide the final result of the case.