Credible birth evidence and discretionary court-fee cure upheld despite limitation objection in a declaratory decree dispute.

Credible direct evidence of birth and unreliable loose papers lacking regular custodial assurance were sufficient to uphold the finding that Binodini was the natural daughter of Govind Ballab Ray; Section 90 of the Indian Evidence Act, 1872 did not aid the contrary case. The decree was treated as declaratory, so the High Court could in its discretion allow amendment of the memorandum of appeal and cure deficit court-fee under Section 149 of the Code of Civil Procedure, 1908 despite a limitation objection. The preliminary objection failed, and the decree dismissing the suit remained undisturbed.

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Issues: (i) whether the respondents had established that Binodini was the natural daughter of Govind Ballab Ray; (ii) whether the High Court was justified in allowing amendment of the memorandum of appeal and in treating the question of court-fee as curable notwithstanding the objection based on limitation.

Issue (i): whether the respondents had established that Binodini was the natural daughter of Govind Ballab Ray.

Analysis: The oral and documentary materials relied upon by the appellants were found to be unreliable. The evidence supporting the respondents included direct testimony as to the birth of Binodini, while the account sheets and almanac entries produced by the appellants were loose papers, not shown to be regularly kept records and lacking sufficient probative force. The Court also agreed that Section 90 of the Indian Evidence Act, 1872 did not assist the appellants on the facts proved.

Conclusion: The finding that Binodini was the natural daughter of Govind Ballab Ray was upheld, and the respondents were treated as the nearer reversioners.

Issue (ii): whether the High Court was justified in allowing amendment of the memorandum of appeal and in treating the question of court-fee as curable notwithstanding the objection based on limitation.

Analysis: The decree under appeal was treated as declaratory in form and did not contain an operative direction for delivery of possession. In that setting, the High Court's power under Section 149 of the Code of Civil Procedure, 1908 to permit correction of court-fee was exercisable in its discretion, even though such permission could affect the plea of limitation. No legal infirmity or gross injustice in the exercise of that discretion was shown.

Conclusion: The preliminary objection regarding court-fee and limitation was rejected.

Final Conclusion: The appeal failed on both the merits and the preliminary objection, and the decree dismissing the suit was left undisturbed.

Ratio Decidendi: Loose and unconvincing documentary papers lacking regular custodial and evidentiary assurance cannot outweigh credible direct evidence, and a court may in its discretion permit deficit court-fee to be cured under Section 149 of the Code of Civil Procedure, 1908 despite a limitation objection.

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