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Chirutha Amma Appili Amma Vs. Neelakanta Pillai Kunju Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 391 of 1956
Judge
Reported inAIR1957Ker106
Acts(Travancore) Registration of Births and Deaths Act, 1096 - Sections 17; Evidence Act, 1872 - Sections 35
AppellantChirutha Amma Appili Amma
RespondentNeelakanta Pillai Kunju Pillai and ors.
Appellant Advocate P.K. Krishnankutty Menon, Adv.
Respondent Advocate K.N. Narayanan Nair, Adv.
DispositionAppeal allowed
Cases ReferredHemanta Kumar v. Alliantz and Stuttgarter Life
Excerpt:
.....mentioned by defendants cannot be doubted as it was executed much before filing present suit - suit filed after three years of attaining of majority of appellants - held, suit dismissed on ground that it was barred by limitation. - - therefore, without some evidence or admission of the parties about the identity of the parents and the child mentioned in the register of births and deaths, it is not safe to accept a mere entry in that register as proof of the age of the child concerned, solely on the ground that there is a similarity in the mother's name and that the certified copy of the register itself has been produced as relating to the particular child by the party on whom rested the burden of proof regarding the child's age. no doubt a person's parents ars the best witnesses..........plaintiff 1 was bora on 22-7-1102, and so he attained majority only on, 22-7-1120 and the suit filed on 7-7-1123 is withto time. to prove that plaintiff 1 was born on 22-7-1102 the plaintiffs relied upon ext. b, which is a certified copy of an entry in the register of births and deaths of nedumbanam pakuthy and the evidence of the plaintiffs' parents. defendant 8 and the plaintiffs are living in nedumbanam pakuthy in quilon taluk. ext. b shows that a son was born on 22-7-1102 to a woman having the name of defendant 8. the son's name is not given in ext. b. the lower courts assumed that ext. b related to plaintiff 1, and it is relying upon that entry that the finding that the suit has been filed within three years of the attainment of majority by plaintiff 1 has been recorded......
Judgment:

Kumara Pillai, J.

1. This second appeal arises out of a suit for cancellation of a sale deed and recovery of possession of the property sold thereunder. Plaintiffs 1 to 7 are the children of defendant 8, and the plaintiffs' case is that the plaint property belonged to the sub-tarwad consisting of them and their mother, defendant 8, and that defendant 8 had sold the property on 26-6-1110 in favour of defendant 1 without consideration and tarwail necessity. The suit was filed on 7-7-1123. Defendant 1 contended that the suit was barred by limitation in as much as it was filed more than twelve years after the date of sale and more than three years after plaintiff 1 had attained majority and that the sale was supported by consideration and tarwad necessity and was not liable to be set aside. The trial Court found that the suit was not barred by limitation as it was filed within three years of the attainment of majority by plain-tiff 1. But it dismissed the suit holding that the sale was supported by consideration and tarwad necessity. From the trial court's decree the plaintiff filed an appeal to the District Court of Quilon, and defendant 1 also filed a memorandum of objections as regards the finding on the question of limitation. The learned Second Additional District Judge of the District Court of Quilon, who heard the appeal, dismissed defendant 1's memorandum of objections and allowed the plaintiffs' appeal holding that the sale was not supported by consideration and tarwad necessity. The present second appeal is filed by defendant 1 against the decree of the District Court allowing the plaintiffs' appeal decreeing the suit.

2. Only two points were urged by the appellant's counsel at the time of hearing in this Court. The first was that the suit is barred by limitation and the second that the sale deed (Ext. A) is supported by consideration and tarwad necessity.

3. At the time of the execution of Ext. A defendant 8 was the only adult member in the plaintiff'ssub-tarwad. All the remaining members of the sub-tarwad were minors, and of them plaintiff 1 was the oldest. As the suit is on behalf of the plaintiffs' sub-tarwad and as it has been filed more than twelve years after the execution of Ext. A it will be saved from limitation only if it has been filed within three years of the date on which plaintiff 1 attained majority. According to the plaintiffs, plaintiff 1 was bora on 22-7-1102, and so he attained majority only on, 22-7-1120 and the suit filed on 7-7-1123 is withto time. To prove that plaintiff 1 was born on 22-7-1102 the plaintiffs relied upon Ext. B, which is a certified copy of an entry in the Register of Births and Deaths of Nedumbanam Pakuthy and the evidence of the plaintiffs' parents. Defendant 8 and the plaintiffs are living in Nedumbanam Pakuthy in Quilon Taluk. Ext. B shows that a son was born on 22-7-1102 to a woman having the name of defendant 8. The son's name is not given in Ext. B. The lower Courts assumed that Ext. B related to plaintiff 1, and it is relying upon that entry that the finding that the suit has been filed within three years of the attainment of majority by plaintiff 1 has been recorded. The appellant's counsel contended that this assumption was wrong and that there was no evidence to prove that the child whose birth is mentioned in Ext. B was plaintiff 1 or that the mother mentioned in Ext, B was defendant 8. The respondents' counsel contended that under Section 17 of the Registration of Births and Deaths Act, VII of 1096 (Travancore) certified copies of entries in the Register of Births and Deaths were themselves evidence and that there was no necessity to prove them by any oral evidence. In support of this contention he also relied upon the decision of the former High Court of Travancore in Karthyayini Amma v. Raman Nair, 22 Trav, LJ 26 (A).

Section 17 of Act VII of 1096 reads as follows:--

''Subject to any Rules which Our Government may make under Section 20, any person may, at all reasonable times, on payment of a fee of seven chuckrams for each visit, search any register of births and deaths, and may on payment of a further fee of seven chuckrams obtain an extract from such register relating to any birth, or death registered therein.

All copies of extracts given under this section shall be certified to be true copies of such extracts and may be produced in proof of the entries of which they purport to be copies'.

4. In Karthyayini Amma v. Raman Nair (A) it was held that, under Section 17 of Act VII of 1096, certified copies of entries in the Register of Births and Deaths may be produced in proof of the entries of which they purport to be copies and that such entries are admissible in evidence under Section 35 of the Evidence Act, whatever be their probative value. It is plain from the second paragraph of Section 17 of Act VII of 1096 that ail that the said section enjoins is only that the certified copies of the extracts or entries would be proof of the fact that there are entries in the original register corresponding to the copies produced and not that the certified copies should be taken as furnishing prdof of the truth of the facts stated in the entries in the original register. Section 17 of Act VII only obviates the necessity to produce the register itself to prove the entry, and it is only by invoking Section 35 of the Evidence Act that the entries in the register can be taken as furnishing proof of the truth of the facts stated in the entries.

The scope of Section 35 of the Evidence Act has been considered in Mt. Saidunnisa v. Mt. Ruqya, AIR 1931 All 307 (B), Hemanta Kumar v. Alliantz and Stuttgarter Life, Ins. Co., AIR 1938 Cal 120 (C); and Biseswar Misra v, The King, AIR. 1949 Orissa 22(D). In AIR 1931 All 307 (B) it was held that a mere entry in a birth register that a daughter was born to a certain Ali Huesam without any statement as to his identity is sufficient to prove the date of birth of the particular woman whose date of birth was in question. Similarly, in AIR 1938 Cal 120 (C) it was held that entries of the names of persons in a register of births or deaths or marriages cannot be positive evidence of birth, death or marriage of such persons unless their identity is fully proved. In AIR 1949 Orissa 22 (D) it was held that without evidence connecting the enty with the individual concerned the birth certificate does not amount to proof of the age of that person.

A mere entry that a son was born to a person having the name of plaintiff 1's mother is no proof of the fact that the person to whom the child was born was plaintiff 1's mother or that the child born was plaintiff 1 himself. It is quite possible that there might have been another woman bearing the same name; and even if there was no other woman but plaintiff 1's mother having the same name it would not necessarily foilow that the child mentioned in the entry without any name was plaintiff 1 himself and not another child.

Therefore, without some evidence or admission of the parties about the identity of the parents and the child mentioned in the Register of Births and Deaths, it is not safe to accept a mere entry in that register as proof of the age of the child concerned, solely on the ground that there is a similarity in the mother's name and that the certified copy of the register itself has been produced as relating to the particular child by the party on whom rested the burden of proof regarding the child's age. In the Travancore case relied upon by the respondents' counsel the question did not arise for decision whether the entry in the register could be acted upon without other evidence regarding the identity of the persons concerned when there were not sufficient indications in the entry regarding their identity. There is absolutely no evidence in the case that the child or the mother mentioned in Ext. B was plaintiff 1 or defendant 8. Not even plaintiff 1 or his parents have deposed to the identity of the child and the mother mentioned in Ext. B. Ext. B was produced in Court with a petition, and beyond the statement in that petition that Ext. B was being produced to prove plaintiff 1's date of birth there is nothing at all to show that tho entry in the register relates to plaintiff 1. In the circumstances, I hold that Ext. B cannot be accepted as affording proof of the date of birth of plaintiff 1.

5. The respondents' counsel contended that even if Ext. B cannot be accepted in proof of plaintiff 1's age the evidence of his parents can be accepted and acted upon. No doubt a person's parents ars the best witnesses to give evidence regarding his age and date of birth, but in this case it cannot be denied that plaintiff 1's parents are highly interested in the result of the suit institution by their children on behalf of the mother's sub-tarwad. There is also the further fact that the parent's evidence that plaintiff 1 was born on 22-7-1102 is belied by Ext III the partition deed executed on 4-7-1104 by the members of the common tatwad to which the plaintiffs and defendant 8 originally belonged. That partition deed was executed nineteen years before the date of the present suit and six years before the execution of the sale deed now sought to be set aside, and the plaintiff's mother was a party to it. In Ext. III plaintiff 1 is described as 2-1/2 years old, and the inference from that description is that he must have been horn at least in Chiugom 1102.

Having regard to plaintiff 1's age given in Ext. III and the fact that it was executed by his mother and other members of his tarwad long before the institution of the present suit at a time when they had absolutely no motive to make a false statement regarding his age, I have no doubt of the fact that plaintiff 1 was born before the end of Chingom 1102. It follows that he must have attained majority before 1-2-1120 and that the suit filed on 7-7-1123 is barred by limitation and has to be dismissed on that ground.

6. In view of the finding on the question of limitation it is not necessary to consider in this second appeal the contentions of the parties regarding consideration and tarwad necessity for Ext.A.

7. In the result the second appeal is allowed,the decree of the lower appellate court is set asideand the suit dismissed. Parties will bear their coststhroughout.


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