VISHNU MAHESWARAN NAMPOOTHIRI Vs. KURUVILLA KOCHITTY KURUVILA

JUDGEMENT

(1.) Plaintiff is the appellant. Himself and defendants 2 to 7 are members of a Malayala Brahmin family. The 2nd defendant is the managing karnavan of this family. His mother was the first wife of his father, whose, second wife was the mother of the plaintiff. The 4th defendant is the wife of the 2nd defendant and their children are defendants 3 and 5 to 7. The plaint property belongs to the family of these parties and it was outstanding on mortgage. On 10th Medom 1111 the equity of redemption of this property was sold by the 2nd defendant and other members of his family in favour of the first defendant. Ext. A is copy of that sale deed. The mortgage and puravaipa amounts were recited in the sale deed and the first defendant was directed to redeem the property on payment of these debts. For that purpose a sum of Rs. 1,227, Chuckrams 10% was reserved with him. The price for the equity of redemption of the property was fixed at Rs. 123, Chuckrams 18, out of which Rs. 22, Chuckrams 18 was received in cash and the balance of Rs. 101 was reserved with the vendee for discharging a mortgage debt charged on the equity of redemption of the plaint item and also on certain other items of properties. Plaintiff's suit is to set aside the sale deed Ext. A on the ground that it is not supported by consideration and necessity binding on his family and that even though he was a major on the date of the sale deed he was wrongly described as a minor represented by the 2nd defendant as his guardian. The contesting first defendant denied all these allegations and maintained that the plaintiff was only a minor on the date of the document and that it is fully supported by consideration and necessity. The lower courts upheld the contention of the first defendant and dismissed the suit. Hence this second appeal by the plaintiff.

(2.) The main point urged on behalf of the appellant is that the lower court acted illegally in rejecting the evidence adduced by the plaintiff in proof of his age and in upholding the contention that the plaintiff was only a minor on the date of Ext. A by placing reliance on Ext. 1 which has not been properly proved in the case. The question of the validity of the sale deed Ext. A has to be examined in the light of the relevant provision contained in the Travancore Malayala Brahmin Act (Act III of 1106). S.5 of that Act prescribes the conditions to be satisfied far a valid alienation of a property belonging to a Malayala Brahmin Illom or family. The section states that

(3.) For proving the date of birth of the plaintiff, the Admission Register of the Government Primary School in which he studied as also the application presented by his father for getting him admitted to that school, were caused to be produced in the case. These original records were produced by PW 1 who had custody of those records in her capacity as the Headmistrerss of the school for the time being. The application presented by the plaintiff's father for getting the plaintiff admitted to the Government Primary School at Azhiyadathuchira was proved by PW 1 and the same was marked as Ext. C. The relevant entry regard-the plaintiff in the admission register, in that school was also proved by PW 1 and that entry was marked as Ext. B. The lower courts have taken the view that these documents Ext. B and C cannot be relied on as sufficient proof of the date of birth of the plaintiff. The Education Code enjoins upon the Headmaster of each school to prepare and maintain an admission register of the pupils admitted to that particular school. Of the several particulars to be entered in such a register, the date of birth of the pupil as stated by the parent or guardian is an important item. Thus there can be no doubt that the admission register is a public record maintained by the head of the institution who is in duty bound to maintain such a register containing certain particulars relating to each pupil as required by the Education Code. In making such Entries in the admission register the head of the institution who is a public servant is merely discharging his official duty. The date of birth as entered in such an official record is a relevant fact as contemplated by S.35 of the Evidence Act and the same can be proved by production of that record. The entry thus made in such an official record by a public servant in the discharge of his official duty, has to be presumed to be correct in the absence of other reliable evidence to the contrary. In the present case the entry Ext. B in the admission register was made on the basis of Ext. C the application for admission of the plaintiff presented by his father. The date of birth of the pupil entered in Ext. B as 27th Edavam 1091 is the same as the date given in Ext. C. The application Ext. C was presented several years prior to the present controversy and there is no reason to suppose that the father would have given a wrong date of birth so as to make the pupil appear older than his real age. It has come out in the evidence of the second defendant, who was examined as Dw. 1, that the plaintiff had been admitted to the Government Primary School at Azhiyadathuchira and that the plaintiff was taken to that school by his own father. The names of the plaintiff and his father, their house name and other relevant particulars are correctly entered in Exts B and C. In view of these facts and circumstances there can be no doubt that the application Ext. C was presented by the plaintiff's father himself. Since the father is no more the particulars as stated by him in Ext. C can be proved and admitted in evidence under S.32 of the Evidence Act, by the production of-the document containing those statements. The question of the admissibility in evidence of entries in school registers for the purpose of proving the age of the pupil concerned, has come up for consideration in other jurisdictions also. In Manickchand v. Krishna AIR 1932 Nag. 117 it was held that where there is an official duty cast upon an officer to make an entry in the school register regarding the date of birth of the pupil and where in pursuance of such a duty the officer has made the entry in the school register, the entry as contained in the register is admissible in evidence under S.35 of the Evidence Act. In Latafat Hussain v. Onkar Mal (AIR 1935 Oudh. 41) also it was held that where the question is as to the age of a person, the entry of the date of his birth in the school register based on the statements of his deceased father is admissible in evidence under sub-section 5 of S.32 and also under S.35 of the Evidence Act, the entry being in a public register stating the fact in issue and made by the public servant in the discharge of his official duties.