1. This is an appeal from a decree in a suit brought by a reversioner to recover possession of the properties belonging to one Pedda Venkatarayudu, the last male owner. His daughter Venkamma was in possession until she died. The first question argued before us related to the date of the death of this woman. The plaintiffs' allegation was that she died on the 9th January 1902; The 12th defendant stated that Venkamma died in 1899 and that the suit was barred by limitation. The Subordinate Judge came to the conclusion that the plaintiffs' suit was in time. The main argument against this conclusion was that Exhibit A, the public extract of the register of the death of Venkamma was not receivable in evidence, and that the judgment of the Subordinate Judge which is mainly based on that document should be reversed.
2. The learned Vakil for the appellants broadly contended that this document is not receivable in evidence under Section 35 of the Indian Evidence Act. He argued that there is no legislative enactment making it compulsory upon village officers to maintain a register of this kind and that an extract from such a register is not covered by Section 35. There are two answers to this contention. In the first place, Madras Act III of 1899 provides for village officers beyond Municipal towns keeping a register of Births and Deaths. Under Section 5, the Collector may appoint any person either by name or by virtue of his office to be Registrar of Births and Deaths in each village. There are provisions in the Act for such registers being sent up to the taluk outcherry.
3. Under Section 17, the extracts given in the Taluk office are required to be certified as provided in Section 76 of the Indian Evidence Act. Such extracts may be produced in proof of the entries of which they purport to be copies. It is, therefore, clear that the record of death would be an entry made in a public register as required by the Evidence Act. It is true that under Section 2, the Local Government has to extend the operation of this Act to the districts On such a notification, Section 4 would enable the Collector to proclaim that registration shall be compulsory. As the point has been taken for the first time in appeal and as the appellants denied the existence of any legislative enactment on the subject, the respondent has not been able to ascertain whether the Act has been extended to the District of Guntur and whether the registration has been made compulsory in that District. But even apart from this question we see no reason for holding that the register would not be covered by the language of Section 35 of the Evidence Act. The entry spoken of in the first part of the section must either (a) be made by a public servant in the discharge of his official duty or (b) by any other person in the performance of a duty specially enjoined by the law of the country. The second part alone relates to legislative enactments; the first part is general in its terms A reference to the Standing Order No. 101 of the Board of Revenue shows that the system of registering Births and Deaths was inaugurated in 1865; by the Board's proceedings dated 5th February 1874 the duty of keeping such registers was cast upon the village officials. It is clear, therefore that a village Karnam or a Reddi keeping a register of Deaths will be acting as a public servant in the discharge of his official duty. It is not necessary that a public servant should be compellable by legislative enactment to discharge such a duty. In Ratcliff v. Ratcliff and Anderson (1859) 1 S. W. 467, it was pointed out that a register of Births and Deaths kept under the orders of the East India Company was a public document of the description mentioned in Section 35 of the Evidence Act. Lord Campbell in that judgment speaks of the register having been kept in obedience to directions given by the East India Company in its sovereign capacity. No legislation of the company is referred to as having authorised the keeping of such a register. We are therefore of opinion that even apart from Act III of 1899 the registers which are being kept under the directions of the Board of Revenue since the year 1865 do come under Section 35 of the Evidence Act. It need hardly be stated that the Board of Bevenue are the agents of the Executive Government of the Presidency. (See The Secretary of State for India in Council v. Kasturi Reddi I.L.R. (1902) M. 268.
4. One other argument of the learned Vakil for the appellants was that the extract is not evidence of the actual date of the death mentioned in it. Reliance was placed upon certain observations contained in In re Wintle (1870) L.R. 9 Eq. 373. It is clear that these observations have not been accepted as good law in England, See In the Estate of Goodrich : Payne v. Bennett (1904) P. 138. We are therefore of opinion that Exhibit A was rightly admitted in evidence and that it is evidence of the actual date of the death.
5. Upon the facts we have no hesitation in concurring with the conclusion of the Subordinate Judge that the plaintiff had proved that Venkamma died within twelve years of the date of suit. The evidence let in on behalf of the defendants is utterly worthless, having regard to the fact that the 12th defendant who professes to have known the date of the death all along did not state it in the written statement filed by him.
6. Another contention was that Chinna Venkatarayudu and Pedda Venkatarayudu were not divided; but the documentary evidence on the question is very clear. Exhibits L.N and Z of the year 1860 show that by that time the two brothers had become divided in status. Then it was suggested that the family compromise evidenced by Exhibit D, is binding upon the present plaintiffs. The contest in that case was between the widow of a co-parcener who claimed maintenance from the family and the 12th defendant's father. The 12th defendant's father claimed that he was entitled to the whole of the property; he entered into a compromise. The present plaintiffs were not parties to the compromise and by no stretch of imagination can they be said to have been represented either by Bangaramma or by the 12th defendant's father. We hold that the compromise is not a family arrangement binding upon the plaintiffs. We must, therefore, for these reasons confirm the decree of the Subordinate Judge and dismiss the appeal with costs. We dismiss the memorandum of objections also with costs.