A.N. GROVER, J.—
1. This is an appeal from a judgment of the Allahabad High Court dismissing a petition filed by the defeated candidate who is the appellant before us challenging the election of the returned candidate respondent Chandra Narain Singh — to the Uttar Pradeah Legislative Assembly from the Charkhari Constituency in the district of Hamirpur.
2. In the mid-term poll held in the State of Uttar Pradesh the appellant contested the above seat along with the respondents including Respondent 1. In all 11 nominations were made but four were withdrawn within the specified period. The contest took place between the remaining seven candidates. Respondent 1 was declared elected by a margin of 324 votes. It may be mentioned that even after the decision of the High Court on the various issues Respondent 1 had polled more than 200 votes in excess of the votes cast in favour of the appellant. Various pleas were taken in the High Court on which 14 issues were framed. We are concerned in the present appeal with Issue 1 alone. That issue was in the following terms:
“Whether Respondent 1 was disqualified for being nominated for election by reason of his being less than 25 years of age.”
When the nomination papers of Respondent 1 were filed an objection was raised by the appellant that he was not qualified to be chosen to fill a seat in the State Legislature under Article 173(b) of the Constitution as he had not attained the age of 25 years at the time of filing his nomination papers. The correct date of his birth was stated to be 3-1-1946. Respondent 1 filed an affidavit in reply before the Returning Officer. In that affidavit all that he stated was that his age on 1-1-1969 was more than 25 years. The Returning Officer made an order on 10-1-1969 holding that Respondent 1 had completed the age of 25 years as in the electoral roll his age had been mentioned as 22 years on 1-1-1966.
3. The first submission on behalf of the appellant is that Respondent 1 did not deliberately state date of his birth in the affidavit in reply filed before the Returning Officer because he wanted to create false evidence. Before the High Court four types of evidence were adduced by the parties. The first was the oral evidence the second entries in the Kutumb register maintained by the Gaon Sabha; the third, entries in the school records and the fourth, birth certificate. The High Court did not rightly, place much reliance on the oral evidence. As regards the Kutumb register the original is kept in Kankua to which place Respondent 1 belongs and it is kept in the Block Development Office. Ext. A-8 is a certified extract taken from the original Kutumb register Ext. 1. The copy shows that one Chandra Narain Singh was born on 5-11-1942 but as pointed out by the High Court the figure of the year 1942 is difficult to decipher in the original register. In the copy itself it is written that the month is doubtful. Karori Lal, RW 2 who produced these documents stated that the register had been given to him by Respondent 1 and it was on the latter telling him that he was born in the year 1942 that he issued the copy. There is a discrepancy in the copy of the Kutumb register maintained in the Block Development Office inasmuch as the date of birth of respondent is shown as 5-12-1945 in it. The High Court rightly did not place any reliance on Ext. A-8 because apart from the matters pointed out the Kutumb register had been prepared for the first time in 1955 and could have little or no evidentiary value.
4. On behalf of the appellant a great deal of reliance was placed in the High Court and before us on the entries produced from the school records relating to Respondent 1. The entries made in the admission register of the Kankua Basic Primary School Ext. 2 show that he was born on 3-1-1946. These entries are repeated in the subsequent records of the educational institution attended by Respondent 1. A great deal of reliance has been placed on the statement of the Head Master, Diwakar Sharma who appeared as PW 4. He stated that he was the Head Master of the Basic Primary School, Kankua from 1946 to 1964. He made the entry relating to Respondent 1 in the admission register at Serial No. 217 in which the date of his birth was shown as 3-1-1946. According to this witness Respondent 1 was accompanied by his father and it was the latter who told him the date of birth of his son. In cross-examination he was unable to say about other entries as to who accompanied the students when they were brought for admission to the school. We find it difficult to place much reliance on the testimony of PW 4 because it is extremely difficult, if not impossible, for any head of the institution after a lapse of a number of years to remember the person or persons who accompanied a student when he came for admission. The High Court was influenced by the usual practice prevailing in this country of giving lower age than the correct one when children are admitted to school. It may be that judicial notice cannot be taken of any such practice but it would appear that if the birth certificate Ext. A-5 which has been produced is genuine it would furnish more cogent and reliable evidence than entries from the School register. Ext. A-5 is an extract from the birth register Ext. A-7. This register was maintained at Mahobkant Police Station, in the year 1943 in accordance with the provisions of Chapter 25 of the U.P. Police Regulations. According to the entries in that register a male child was born to Shiv Narain Lodhi of Kankua on 14-3-1943. The father of Respondent 1, Shiv Narain Singh stated that this entry related to Respondent 1. It has been pointed out on behalf of the appellant that there are certain indications in the original Register Ext. A-7 of entries having been tampered with or fabricated. It has been suggested that the caste Lodhi was added later to connect that entry, with the father of Respondent 1 Shiv Narain Singh whereas it related to some other Shiv Narain Singh. The High Court was satisfied and so are we that there was nothing suspicious about this entry. The word “Lodhi” appears to have been written with the same pen. The ink is slightly dimmer but it would appear, as has been pointed out by the High Court, that the ink was black in the beginning but got progressively weaker and faint as the four components of the name Shiv Narain Singh Lodhi were written at a stretch with one dip of the pen. Another suspicious feature which was brought to the notice of the High Court and to our notice is that in the certified copy Ext. A-5 the caste of Shiv Narain Singh, namely, “Lodhi” is not mentioned. While making the copy there may have been some accidental omission and we do not consider that the entry in the original register can be held to have been fabricated or tampered with merely for that reason. The only other irregularity which has been pointed out is that there are certain entries which are not in chronological order e.g. the date of birth of the entries preceding the entry in dispute is 12-4-1943. The suggestion is that the entries have been interpolated because an entry dated 14-3-1943 could not have been made after the entries relating to the month of April had been made. Some explanation may have been possible but as the person who made the entry was not produced it is difficult to make a guess in the matter. However a careful look at the various pages contained in this register is sufficient to convince the court that the register is a genuine document and there has been no fabrication of tampering with the entries contained therein. Shiv Narain Singh the father of Respondent 1 testified that he had two sons. The birth register entries in respect of both were produced. Ext A-5 related to the birth of Respondent 1 on 14-3-1943 and Ext. A-6 related to the birth of another son along with a twin sister on 24-11-1947. The High Court rightly observed that the appellant had failed to produce any entry from the birth register to show that any other son of Shiv Narain Singh had been born on some other date. We find no reason to disagree with the finding of the High Court given after a careful appraisal of the evidence that the birth entry Ext. A-5 relates to Respondent 1.
5. The only other point which has been urged is that the birth entry Ext. A-5 was not admissible in evidence. Section 35 of the Evidence Act provides that an entry in any public or other official book, register or record, stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by law of the country in which such book, register or record is kept is itself a relevant fact. It has been submitted on behalf of the appellant that no proof was adduced that the entries contained in the register A-7 had been made by the public servant in his official capacity. Our attention has been invited to Brij Mohan Singh v. Priya Brat Narain Sinha1 in which it was held that an entry made in an official record maintained by an illiterate Chowkidar by some body else at his request is not relevant under Section 35 of the Evidence Act. It was pointed out in that judgment that if the entry had been made by the Chowkidar himself it would have been relevant but where the Chowkidar himself was illiterate and had asked some one else to make the entry that could not be treated as an entry made by a public servant. The above decision was followed in Ram Prasad Sharma v. The State of Bihar2. In that case also no proof had been given as to who had made the entry and whether the entry had been made in the discharge of any official duty. There is nothing to show that the entries in the register Ext. A-7 were made by an illiterate person and were not made by the Head Moharir of the police station whose duty it was to do so under clauses III and VI of para 322 of the U.P. Police Regulations. The High Court which is familiar with these Regulations has referred to certain earlier decisions of that court also in which similar point came up for consideration and has pointed out that under the aforesaid regulations it is the Head Moharir of a police station who is the registration officer and he is required to make the entries in the register of births and deaths himself. No attempt was made on behalf of the appellant to assail the correctness of the statement made by the High Court regarding the Head Moharir being the registration officer and that the entries are required to be made by him under the Police Regulations. As no evidence was led by the appellant to rebut the presumption which the court is entitled to draw in the matter of regular performance of official acts we are unable to hold that the entries from the register Ext. A-7 are not relevant under Section 35 of the Evidence Act.
6. In the result the appeal fail and it is dismissed with costs.
1 1965 (3) SCR 861
2 AIR 1970 SC 326