N.S. Ramaswami, J.
1. This second appeal by the State Government and the Director of School Education (the defendants in the suit) arises out of a suit for declaration that the date of birth of the plaintiff is 14-2-15)23 and for a direction for entry of the said date in the service register. T. V. Hari Rao, the plaintiff in the suit was a Government servant. His date of birth as entered in the service register is 15-5-1921. That is in accordance with his date of birth entered in the S. S. L. C. book which he declared to be correct when he entered service. As per that date the plaintiff was due to retire by 14-5-1976. A few months prior to the retirement or superannuation, the plaintiff filed the suit for declaration and direction as mentioned earlier. According to him, 4us real date of birth is 14-2-1923, that the date had been wrongly given as 15-5-1921 in the S. S. L. C. book and that the same mistake had been carried over when he entered service. He said that some time prior to the filing of the suit he came across certain old papers while searching for records in connection with a partition among members of his family and then he found Exs. A-1 and A-2, said to be horoscopes relating to the plaintiff in the hand writing of the plaintiff's father who is now no more. According to the said horoscopes, the date of birth is given as 3rd of Masi of Thunthubi year which corresponds to 14-2-1923.
2. The defendants refuted the plaintiff's case that he was born on 14-2-1923 and challenged the genuineness of the horoscopes relied on by the plaintiff.
3. The trial Court held that the plaintiff has not proved that he was born on 14-2-1923, that the entry in the service register showing the date of birth as 15-5-1921 is not wrong and that the horoscopes relied on by the plaintiff are not genuine and cannot be acted upon.
4. The plaintiff filed A. S. No. 165 of 1976 on the file of the City Civil Court, Madras, and the First Additional Judge, holding that Exs. A-1 and A-2 are genuine documents, has given a declaration in favour of the plaintiff as prayed for. However, the plaintiff 'himself gave up before the lower appellate Court, his prayer for a direction to the defendants to correct the entry in the service register. The only prayer stressed before the lower appellate Court was for a declaration that the plaintiff's real date of birth is 14-2-1923. That has been granted by the lower appellate Court. Hence the second appeal by the defendants.
5. The finding of fact by the lower appellate Court is that the plaintiff had come across Exs. A-1 and A-2, only some time prior to the institution of the suit, that the two documents were in the hand writing of the plaintiff's father and that therefore they are genuine documents. This finding cannot be attacked in second appeal. The question is whether there is legal evidence to prove that the plaintiff's real date of birth is 14-2-1923 and not 15-5-1921. Ex. A-1 is described in the index of exhibits as original horoscope, but admittedly it is not the original. At the top of the paper containing the horoscope chart and the particulars of the child that was born, one finds the name, T. V. Hari Rao, B.A. Even according to the finding of the lower appellate Court this document ought to have been prepared only after the plaintiff had obtained the B. A. degree. Ex. A-2 is only an elaboration of Ex. A-1, and that is also said to be in the hand writing of the plaintiff's father. The view of the lower appellate Court is that the plaintiff's father ought to have had a kurippu containing the horoscopes and from that Ex. A-1 should have been prepared. That means Ex. A-1 is not the original horoscope but it is only a copy. Needless to say that Ex. A-2 which is said to be a document which came into existence subsequent to Ex. A-1 is also a copy and not the original.
6. At one stage the learned Advocate-General who appeared for the defendants-appellants contended that under Section 32(5) of the Evidence Act, the horoscope would be admissible as a statement of a deceased person only if the same had been prepared at about the time of the birth of the child; but I think there is no warrant for such a contention. If a deceased person had made a statement regarding relationship at any time before the question in dispute arose it would be admissible under Section 32(5) of the Evidence Act provided that the deceased who made the statement had special means of knowledge about relationship etc. As pointed out by the Supreme Court in Dolgobinda v. Nimaicharan : AIR1959SC914 , four conditions must be fulfilled for the application of Sub-section (5) of Section 32. They are: -- (1) The statements either written or verbal of relevant facts must have been made by a person who is dead or cannot be found etc. (2) The statements must relate to the existence of any relationship by blood, marriage or adoption. (3) The person making the statement must have special means of knowledge as to the relationship in question. (4) The statement must have been made before the question in dispute was raised. Statements contained in a pedigree or horoscope would certainly come under Section 32(5) provided the other conditions are satisfied. A statement in a horoscope need not necessarily be one made at about the time of the birth of the child to attract Section 32(5). Even if it is made subsequently it would be admissible provided it had been made before the question in dispute was raised and the other conditions mentioned earlier are satisfied. Therefore, on the ground that the horoscopes, Exs. A-1 and A-2 had not been written at about the time of the birth of the child it cannot be said that they are not admissible in evidence under Section 32(5). If the said horoscopes constituted a statement as contemplated under Section 32(5), then undoubtedly they would be admissible in evidence.
7. Now the finding is to the effect that Exs. A-1 and A-2 are only copies of a horoscope which should have been prepared earlier. If the plaintiff's father had merely taken copies from a horoscope which had been prepared earlier, the question is whether the father was making a statement then. If taking of copies of an original document cannot be construed as a statement, then Exs. A-1 and A-2 should be held to be inadmissible under Section 32(5). But I think it is unnecessary to give a finding as to whether Exs. A-1 and A-2, being copies of an original horoscope, contained a statement as contemplated under Section 32(5), made by the plaintiff's father, for, even admitting these documents there is no evidence to prove that the plaintiff was born only on 14-2-1923.
8. The plaintiff has examined himself as P. W. 2 and his elder brother has given evidence as P. W. 1. It is seen from their evidence that the plaintiff is the third child of their parents. Admittedly, the plaintiff has an younger brother. The point to be noted is that neither in the body of Ex. A-1 nor in that of Ex. A-2 there is any indication that they relate to the birth of the plaintiff. In the body of these two documents, all that is stated is that a male child was born on the 3rd of Masi Thuntubi year corresponding to 14-2-1923. Of course the parents' names and other particulars are given. But what is missing is any indication that they relate to the birth of the plaintiff. If it is stated in the body of these two documents that the child was the third issue of the parents, then one can connect the evidence of P. Ws. 1 and 2 and hold that Exs. A-1 and A-2 relate to the birth of the plaintiff. But there is no such reference in the body of Exs. A-1 and A-2. Therefore, without the name 'T. V. Hari Rao, B.A.' being written in English at the top of the papers, the horoscopes may as well relate to the birth of the plaintiff's younger brother. The plaintiff wants to connect the two documents with his birth only by the name found written at the top of the documents as mentioned earlier. The trial Court, on a consideration of the evidence and examintion of the two documents has given a categorical finding that the name T. V. Hari Rao, B.A. found at the top of the documents had been written in a different ink and it could not have been written at the same time when the horoscopes were written. The plaintiff and his elder brother who have given evidence have not specifically stated that the name of T. V. Hari Rao found written in Exs. A-1 and A-2 is also in the hand writing of their father. Merely stating that the horoscopes are in the handwriting of the father would not necesarily mean that the name written at the top of the paper is also in the hand writing of the father. Their omission to speak specifically about this aspect has to be considered with the pleadings in the plaint.
9. In the beginning of the plaint it has been categorically stated that the horoscopes had been prepared and preserved by the plaintiff's brother. Lower down in the plaint, no doubt it is stated that the horoscopes are in the hand writing of the father. No attempt had been made to correct the first part of the plaint where it is stated that the horoscopes had been prepared by the plaintiff's elder brother. There is also nothing in the evidence that that statement in the plaint is wrong. Therefore in this background, one cannot conclude that the name T. V. Hari Rao had also been written by the plaintiff's father and that too at the time when the horoscopes were written. As I said, the trial Court has given a clear finding that the name T. V. Hari Rao, B.A., is in a different ink and should have been written subsequently. This finding has not been disturbed by the lower appellate Court. That means the plaintiff has not shown that Exs. A-1 and A-2 really relate to his birth.
10. It is also to be noted that the plaintiff has not produced birth register extract either regarding his birth or that of his brothers. It is stated that an application was made at the office of the Sub-Registrar of Musiri for birth register extract and that the office said that no entry was found. However, no documentary evidence has been produced even to prove the fact that an application was made in the office of the Sub-Registrar.
11. Anyway, as matters now stand, I am of the view that there is no evidence that Exs. A-1 and A-2 really relate to the birth of the plaintiff. The version of P. Ws. 1 and 2 in the witness box that these two documents relate to the birth of the plaintiff is not legal evidence, for they speak only from what is contained in the documents and not from personal knowledge. They want to connect the documents with the birth of the plaintiff from the name T. V. Hari Rao written at the top. But that is not part of the horoscope, and as found by the trial Court, which finding has not been disturbed by the lower appellate Court, that writing is in a different ink, made subsequently.
12. Even original horoscopes, though may be admissible under Section 32(5) of the Evidence Act, their evidentiary value is very little -- See Bharat Basi v. Gopinath : AIR1941All385 V. M. Namboothiri v. K. K. Kuruvila : AIR1957Ker103 and Parasram v. Dayaldas . In the present case there is not even the original horoscope but only copies thereof. Even these copies have not been really connected with the plaintiff. Therefore it must be held that there is no evidence that the plaintiff was bom on 14-2-1923 as is now claimed.
13. Misconstruing of evidence and acting without evidence is certainly a substantial question of law as between the parties. The second appeal is therefore allowed. The judgment and decree of the lower appellate Court are set aside and those of the trial Court are restored. I make no order as to costs in the second appeal.