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Mt. Anwari Jan Vs. Baldua and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1936All218; 159Ind.Cas.190
AppellantMt. Anwari Jan
RespondentBaldua and anr.
Excerpt:
- - the trial court was of the opinion that the oral evidence produced on behalf of the plaintiff was satisfactory, that the oral evidence produced on behalf of the defendant was not reliable and that the entries in the municipal birth and death registers were not sufficient to prove that mendua was a hindu at the time of his death......house partitioned. the defence was that mendua at the time of his death was a hindu and after his death the house devolved solely on baldua and the plaintiff was not entitled to obtain a partition on the basis of her sale deed. the defendants to the suit were baldua and mt. kaunsila alias rahiman.2. it is therefore clear that the sole question for the determination of the courts is as to whether mendua was a hindu or a mahomedan at the time of his death. parties tendered oral and documentary evidence, the latter consisting of certain copies of entries in the municipal birth and death registers. the trial court was of the opinion that the oral evidence produced on behalf of the plaintiff was satisfactory, that the oral evidence produced on behalf of the defendant was not reliable and.....
Judgment:

Bajpai, J.

1. This is an appeal by the plaintiff who brought a suit for partition of 7/24th of a certain house. The plaintiff based her title on the fact that she had purchased 7/24th of the house on 20th July 1923, from one Mt. Sharbati. It appears that one Mendua was the owner of a certain house who died leaving a widow Mt. Kaunsila alias Rahiman, a son Baldua and a daughter Mt. Sharbati. The plaintiff alleged that Mendua at the time of his death was a Mahomedan, and as such his daughter Mt. Sharbati inherited seven out of 24 sihams and as the plaintiff has got a sale deed from Mt. Sharbati she is entitled to have the house partitioned. The defence was that Mendua at the time of his death was a Hindu and after his death the house devolved solely on Baldua and the plaintiff was not entitled to obtain a partition on the basis of her sale deed. The defendants to the suit were Baldua and Mt. Kaunsila alias Rahiman.

2. It is therefore clear that the sole question for the determination of the Courts is as to whether Mendua was a Hindu or a Mahomedan at the time of his death. Parties tendered oral and documentary evidence, the latter consisting of certain copies of entries in the Municipal Birth and Death Registers. The trial Court was of the opinion that the oral evidence produced on behalf of the plaintiff was satisfactory, that the oral evidence produced on behalf of the defendant was not reliable and that the entries in the Municipal Birth and Death Registers were not sufficient to prove that Mendua was a Hindu at the time of his death. That Court was therefore of the opinion that Mendua was a Mahomedan at the time of his death and therefore Mt. Sharbati was entitled to 7 out of the 24 sihams of the house and the plaintiff as transferee from Mt. Sharbati was entitled to obtain partition.

3. The lower appellate Court, while reviewing the plaintiff's oral evidence, came to the conclusion that it was not satisfactory. It then went on to say that the defendant examined himself, Ghasi Ram, Raghubar, Dwarka, Dilawar and Shiam Sundar and the evidence of all these witnesses, taken with certain exhibits which were extracts from the Birth and Death Registers of the Municipal Board, was much more satisfactory. It therefore came to the conclusion that Mendua was a Hindu at the time of his death and therefore Baldua alone inherited the house and Mt. Sharbati, was not entitled to transfer any share in the house to the plaintiff. It therefore dismissed the plaintiff's suit.

4. In second appeal it is contended before me that the entries in the Municipal Birth and Death Register are not admissible in evidence and reliance is placed on the case of Sheo Balak v. Gaya Prasad 1922 20 ALJ 601. Learned Counsel for the respondents has drawn my attention to the case of Shibdeo Misra v. Ram Prasad 1925 22 ALJ 690, wherein the earlier case was considered and distinguished. My attention was also drawn to the case of Jai Bhagwan v. Guttu 1934 Oudh 167. Both these cases support the contention of the respondents and in the Allahabad case it was held that a Death Register of a Police Station, in accordance with the Police Regulations under the Police Act, was an official document within the meaning of; Section 35, Evidence Act. In the Oudh case it was held that under Section 35 a Municipal Register of Births and Deaths is admissible in evidence as it is kept by a public servant in the discharge of his duty. I have also come to the same conclusion. The Municipal Registers are kept under Section 298(2), Clause 1(b), U.P. Municipalities Act. A form is prescribed in the Municipal Manual and therefore it is obvious that the register is admissible in evidence under Section 35, Evidence Act. The correctness of the copies has to be presumed under Section 79, Evidence Act, and there is further a specific provision under the Municipalities Act, namely, Section 330, which lays down the mode of proof of Municipal Records. A copy, in this view, is admissible in evidence and although it was contended by Mr. Baleshwari Prasad that the copy shows that the entry is not exactly in the prescribed form inasmuch as the name of the reporter and the signature of the recording officer are not given, I am not prepared to hold that because of this defect the entry becomes inadmissible. In Shibdeo Misra v. Ram Prasad 1925 22 ALJ 690, mentioned above, a similar argument was repelled by a Bench of this Court.

5. The entries being admissible, the finding becomes a finding of fact. But it is argued that the entries are admissible only for the purposes of proving the date of birth and death and not for the purpose of proving the religion of the person entered in the register. This is a question regarding the weight to be attached to the particular document and I cannot say that if the learned Judge of the lower appellate Court, who after all is a final judge of facts took the fact of Mendua's being entered as a Hindu in the register corroborating the oral evidence produced by the defendant, he was in error as a matter of law. For the reasons given above, I am of opinion that the decision of the lower appellate Court is correct, and I dismiss this appeal with costs.

6. Leave to appeal under the Letters Patent is refused.


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