BOMMA GHANTALAYYA Vs. BOMMA RAMANNA

JUDGEMENT

(1.) I cannot agree with the lower Courts that Exhibit A-1 is admissible in evidence. Under the second proviso to section 8 of the Madras Registration of Births and Deaths Act :

(2.) An entry made contrary to this proviso cannot be held to fall under section 35 of the Indian Evidence Act which speaks of an entry in any public or other official register made by a public servant in the discharge of his official duty. When the statute espressly prohibits an official from making a particular kind of entry unless certain conditions are satisfied, an entry made without the fulfilment of the specified conditions cannot be said to have been made by him in the discharge of official duty. In fact, it must be held that in such a case he would be guilty of a dereliction of his duty in making the entry. In those circumstances, it is impossible to hold that the entry is admissible under section 35 of the Evidence Act. The view of the lower Appellate Court that the presumption under section 114, Illustration (e) of the Evidence Act applies is not correct. No act can be said to be an " official" act within the meaning of that Illustration when it is forbidden by a statute. Nor is the view of the lower Appellate Court correct that because the register of births and deaths is a public document the entry becomes admissible. The learned Sub-ordinate Judge has overlooked the fact that two conditions are necessary before an entry could be admitted in evidence,viz-, (1) that the entry should be in an Official Book, and (2) that the entry should have been made by a person in the discharge of his official duty. The mere fact that the first condition is satisfied will not suffice to make an entry, made contrary to the above condition No. 2, admissible. Therefore, Exhibi A-1 should be ruled out of consideration.

(3.) But I am satisfied however that there is enough evidence on record upon which the concurrent findings of the lower Courts as to the defendant being the natural father of the plaintiff could be justified . In this view, this second appeal must fail and it is accordingly dismissed, but in the circumstances without costs. No leave. Appeal dismissed.