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Vishnu Maheswaran Nampoothiri Vs. Kuruvilla Kochitty Kuruvila and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 43 of 1955 (E)
Judge
Reported inAIR1957Ker103
ActsTravancore Malayala Brahim Act, 1106 - Sections 5; Evidence Act, 1872 - Sections 32 and 35; Transfer of Property Act, 1882 - Sections 3
AppellantVishnu Maheswaran Nampoothiri
RespondentKuruvilla Kochitty Kuruvila and ors.
Appellant Advocate P. Govindan Nair,; G.B. Pai and; U.K.V.R. Shenoi, Ad
Respondent Advocate K.K. Mathew, Adv. for 1st Respondent
DispositionAppeal allowed
Cases ReferredEvidence Act. In Latafat Husain v. Onkar Mal
Excerpt:
.....on mortgage - plaintiff demanded setting aside of sale deed on ground that despite being major on date of sale he had been described as minor - attesting witness cannot be expected to know correct age of parties - absence of strong and convincing evidence to prove date of birth of appellant - defendant cannot execute sale deed by wrongly describing appellant as minor - held, sale deed invalid as appellant was major on date of execution of sale deed. - - 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 tra-vancore malayala brahmin act (act iii of 1106). section 5 of that act prescribes the conditions to be satisfied for a valid alienation of a property belonging to a malayala brahmin illom or family. ' in..........document containing those statements. the question of the admissibility in evident 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 (a), 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 section 35 of the evidence act. in latafat husain v. onkar mal, air 1935 oudh 41 (b) 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.....
Judgment:

Sankaran, J.

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 8 and 5 to 7. The plaint property belongs to the family of these parties and it was outstanding on mortgage. On 10-9-1111 the equity of redemption of this property was sold by the 2nd defendant and other members of his family iu favour of the first defendant. Exhibit 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. 1227, Chuckrams 10 1/2 was reserved with him. The price for the equity of redemption of the property was fixed at Rs. 123 Chuck-rams 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 and 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. I 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 Tra-vancore Malayala Brahmin Act (Act III of 1106). Section 5 of that Act prescribes the conditions to be satisfied for a valid alienation of a property belonging to a Malayala Brahmin Illom or family. The section states that

'Except for consideration or Illom necessity and with the written consent of all the major members of the Illom, no karanavan or other managing member shall sell Illom immovable property or execute kanam deeds in respect thereof, or mortgage it with possession for a period of more than twelve years or lease it with or without premium for a period of more than twelve years.'

In view of this statutory provision, the sale of a property belonging to a Malayala Brahmin Illom effected subsequent to the passing of the Malayala Brahmin Act can be upheld as valid only if all the three conditions specified in Section 5 are fully satisfied, viz., that the sale was for consideration, that it was proper necessity binding on the Illom and that all the major members of the Illom Rave given their written consent to the sale. If on the date of Ex. A the present plaintiff was really a major member of his Illom as contended by him, he is entitled to have the sale avoided for the reason that ho has not given his written consent to it, even apart from the question whether the sale is supported by consideration and Illom necessity. The evidence as to the exact date of birth of the plaintiff is, therefore, a matter of vital importance in this case.

3. For proving the date of birth of the plaintiff, the Admission Register of the Government Pri-mary 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. The original records were produced by P.W. 1 who had custody of those records in her capa- -city as the Headmistress 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 P.W. 1 and the same was marked as Ex. C. The relevant entry regarding the plaintiff in the Admission Register in that school was also proved by P.W. 1 and that entry was marked as Ex. B. The lower Courts have taken the view that these documents Exs. 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 Section 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 bs correct in the absence of other reliable evidence to the contrary.

In the present case the entry Ex. B in the admission register was made on the basis of Ex. C the application for admission of the plaintiff presented by his father. The date of birth of the pupil entered in Ex. B as 27-10-1091 is the same as the date given in Ex. C. The application Ex. 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 D.W. 1, that the plaintiff had been admitted to the Government Primary School at Azhiyadathuchira and that the plaintiff was taken to the school by his own father. The names of the plaintiff and his father, their house name and other relevant particulars are correctly entered in Exs. B and C.

In view of these facts and circumstances them can be no doubt that the application Ex. C was presented by the plaintiff's father himself. Since the father is no more the particulars as stated by him in Ex. C can be proved and admitted in evidence under Section 32 of the Evidence Act, by the production of the document containing those statements. The question of the admissibility in evident 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 (A), 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 Section 35 of the Evidence Act. In Latafat Husain v. Onkar Mal, AIR 1935 Oudh 41 (B) 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 Section 32 and also under Section 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 offcial duties.

4. The evidence furnished by Exs. B and C is to the effect that the plaintiff was born on 27-10-1091 and it goes in support of the plaintiff's case that on the date of the impugned sale-deed Ex. A he was a major. For rebutting the presumption in favour of the correctness of the date of birth as entered in Exs. B and C, the contesting 1st defendant has placed reliance on Ex. I which purports to be the horoscope of the plaintiff. According to this document the date on which the plaintiff was born is 24-10-1094. At the outset it has to be pointed out that Ex. I has not been properly proved. It was produced by the 2nd defendant as having been found among other horoscopes kept in his Illom. No significance can be attached to the production of such a self-serving private document from the custody of the interested party. The 2nd defendant as D.W. 1 admits that he does not know who wrote the horoscope Ex. I or when and at whose instance it was written. Thus it is obvious that D.W. 1 was not competent to prove Ex. I. Nobody who had anything to do with the preparation of this horoscope has been examined in this case.

The horoscope by itself has very little evidentiary value. The date of birth as entered in such a document cannot be accepted as true and correct unless the person who prepared it or who caused it to be prepared is able to testify to the correctness of the date of birth as given in that document. In fact, the acceptance of the correctness of the date of birth as given in such a document, depends entirely on the reliability of the evidence of the person who prepared the document or who caused it to be prepared & who may he in a position to swear to the exact date of birth of the person concerned. There is a total absence of such evidence in this case and hence Ex. I has only to be rejected as having no evidentiary value at all. It is pointed out on behalf of the respondent that in Ex. A and other documents executed by defendants 2 to 4 in the year 1111 the present plaintiff had been described as minor and these documents have been attested by persons who knew the plaintiff and other members of his Illom very well.

The argument is that if these attesting witnesses were not sure that the plaintiff was only a minor on. the dates of these documents, they would have refused to attest the documents. I do not think it will be sale to draw any such inference. The attesting witnesses cannot be expected to know the correct age of each and every one of the parties to the documents and these witnesses could not interest themselves in such a matter. The existence of a few documents similar to Ex. A cannot be relied on as a circumstance to suggest that the plaintiff's age as given in Ex. A must be correct. In the absence of strong and convincing evidence to show that the age as given in Ex. A is his correct age, it cannot be said that the presumption arising from Exs. B and C has been rebutted.

It follows therefore that the plaintiff must be taken to have been born on 27-10-1091 as stated in Exs. B and C. He was aged 20 on the date of Ex. A and as such the 2nd defendant had no authority to act as the guardian of the plaintiff after wrongly describing him as a minor while executing the sale-deed Ex. A. Since the plaintiff who was a major on the date of Ex. A has not given his written consent to the same, as required by Section 5 of the Malayala Brahmin Act, the sale under Ex. A cannot be upheld as valid. It is liable to he avoided at his instance. In this view of the matter, it is not necessary to go into the further question as to whether Ex. A is supported by consideration and necessity.

Both the lower Courts have found on the evidence on record that Ex. A is fully supported by consideration. That finding calls for no interference. At the same time it cannot be said that there was any pressing necessity for the Illom to sell away the equity of redemption of the plaint property. There is no warrant for assuming that the plaintiff's Illom would not have been able to discharge the hypothecation debt of Rs. 101 recited in Ex. A. On the date of Ex. A the creditor had not taken any step for enforcing that debt against the property. It is therefore clear that the sale-deed Ex. A was executed without any necessity binding on the Illom.

5. In the result this second appeal is allowedand in reversal of the decree of the lower Courts, Ex.A sale-deed in respect of the equity of redemptionof the plaint property is set aside and the suit decreed accordingly. The plaintiff will get his coststhroughout from the contesting 1st defendant.


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