CHACKO Vs. CHELLAPPAN PILLAI

JUDGEMENT

(1.) These two Second Appeals are by the plaintiff in O.S. No. 333 of 1121 and O.S. No. 115 of 1119, respectively, on the file of the Munsiff of Mavelikara. The parties may be referred to hereinafter by their position in O.S. No. 333 of 1121. Both the suits were for redemption of the same mortgage evidenced by Ext. B in O.S. No. 333. The mortgagee assigned his rights in favour of defendants 1 to 5 who are members of the tarwad of the mortgagors. The suit property was the separate property of the mortgagor, Narayanan Padmanabhan. He died on 28-6-1089 leaving behind him the 6th defendant his widow, the 7th defendant daughter through her, and the 8th defendant a daughter by another wife. Defendants 6 and 7 assigned their rights to the plaintiff in O.S. No. 333 of 1121 as per Ext. A dated 1-11-1118, and in O.S. No. 333 of 1121 he claims to redeem the mortgage. Earlier, the 8th defendant has instituted another suit O.S. No. 115 of 1119 for redemption of the same mortgage. The defence in both the suits has been that Narayanan Padmanabhan died before 1088 and therefore his property devolved on his tavazhi and the plaintiffs in both the suits did not have any right in the suit property. The Munsiff decreed O.S. No. 115 of 1119 finding that Narayanan Padmanabhan died in 1089 only, undivided from his tarwad, and therefore half of the property devolved on his marumakkathayam heirs and the other half on his daughter. That decree was made on 15-7-1124. Subsequently O.S. No. 333 of 1121 came up for decision on 2-6-1129 and the Munsiff decreed the suit allowing redemption of one-half the property by the plaintiff therein. Thus, as between the two plaintiffs the entire property was allowed to be redeemed by the Trial Court. The 4th defendant in O.S. No. 115, who was the 1st defendant in the other suit, took the matter in appeal before the Additional District Judge, Mavelikara, who found the date of death of Narayanan Padmanabhan not been proved to have been after the commencement of the Travancore Act 1 of 1088 and therefore dismissed both the suits. Hence this Second Appeal by the respective plaintiffs.

(2.) Ext. D in O.S. No. 333 of 1121 (another copy of the same is Ext. B in O.S. No. 115 of 1119) is the certificate of death issued by the Taluk Registrar of Births and Deaths, being art abstract of the relevant entry in the Register of Births and Deaths kept in the Village Office, Chennithala. It shows that Padmanabhan, aged 49, of Kaimal Veettil Vadakkethil house, Tripperumthara Kara, Chennithala Village, Mavelikara Taluk, Quilon District, died on the 28th Makaram 1089. The description is of the father of defendants 7 and 8 and tallies with the description of the mortgagor in the suit mortgage deed. Pw. 2 who is admittedly the younger brother of the above said Narayanan Padmanabhan deposed that his brother Padmanabhan died in 1089. Except making a futile challenge of his testimony by cross examination, no evidence was let in by the defence to prove the date of death of Padmanabhan. Dw. 1 was not born in 1089 and therefore his testimony could only be hearsay. The Trial Court, accepting the evidence of Pw. 2 corroborated by the official certificate of death, held Narayanan Padmanabhan to have died in 1089. The Additional District Judge relying on a ruling in 25 TLJ 1250 held that the Village Register of Births and Deaths was not kept under any statute and therefore could not be relied on and held the date of death not been proved in the case.

(3.) Shri. T.K. Kurian, counsel for the appellant referred to Travancore Land Revenue Manual, Vol. I, Page 29, where in the Revised Rules for the Destruction of Records made on the 28th October 1911, as amended on the 24th August, 1912 (9-1-1088 M.E.) mention is made of Register of Births and Deaths among the records to be kept permanently by the Village Offices. These rules have been passed under the Destruction of Records Regulation, III of 1057 and have therefore statutory force. A record directed to be maintained by an executive order cannot, without positive proof, be deemed to have been directed by a statute to be preserved permanently. Though the particular statute under which the Register of Births and Deaths was directed to be kept in the Village Office is not shown in this case, in view of the reference in Regulation III of 1057, and the rules framed thereunder, I presume that there must have been a statutory regulation making it incumbent on the Village Officers to keep such a register.