(1) The plaintiff is the appellant in the second appeal. The courts below have given diverse findings on the same question fact. The suit was filed for partition and separate possession of the plaintiff's half share in the suit properties, which admittedly belonged to one Ramaswami alias Kannappan. The case of the plaintiff, who is the mother of the deceased Ramaswami, is that her son Ramaswami died intestate on 13-7-1956, leaving besides her, his widow-Kamalammal, the first defendant in the suit. The second defendant in the suit is an alience of the suit properties from the widow. The plaintiff's right, it goes without saying, is based upon h the provisions of Act 30 of 1956, which came into force on 17-6-1956. Along with the plaint, a death register extract was filed. In the written statement by the first defendant, while putting the plaintiff to proof that Ramaswami died on 13-7-1956, the first defendant also stated that he died on May 1956. In her evidence, the plaintiff stated that Ramaswami died in the month of Ani. The only other person, who is competent to speak about when Ramaswami died the wife who is the first defendant in he case, has not gone into the witness box. D. W. 1 is a close relation of the first defendant. He does not speak specifically as to when Ramaswami dies.
The trial court, acting upon the death register extract, Ex. A. 1, held that Ramaswami died on 13-7-1956, and granted the plaintiff the decree for partition as prayed for. On appeal, the learned Subordinate Judge observed that the trial Court had taken if for granted that Ex. A. 1 had been proved, and that it was an essential mistake that had been committed in the case. Observing further that the trial court ought to have called upon the plaintiff to prove the document Ex. A. 1 and found that the plaintiff had not discharged the burden on her, the learned Subordinate Judge held that Ex. A. 1 had to be rejected as not proved and the suit had to go as the same rested mainly on Ex. A. 1.
(2) Now, before me in appeal, it is contended on behalf of the plaintiff, that the learned Subordinate Judge erred in his view that Ex. A. 1 had not been proved. It is pointed out that in the memorandum of grounds of appeal to the lower appellate court no objection had been taken to the proof of the document Ex. A. 1. The only ground relating to the date of death of Ramaswami is ground No. 2 where it is averred that the lower Court (the trial court) ought to have accepted the appellant's case that Ramaswami alias Kannappan, the husband of the first defendant, dies in May 1956 and not on 13-7-1956.
(3) My attention is drawn to the provisions of Madras Act III of 1899, Registration of Births and Deaths Act, and S. 17, therein in particular. Section 17 provides that any person may obtain an extract from the register of births and deaths, and clause (2) of the section provides that all extracts given under the section shall be certified as provided in S. 76 of the Indian Evidence Act and may be produced in proof of the entries of which they purport to be copies. In Ramalinga Reddi v. S. Kotayya, ILR 41 Mad 26: (AIR 1918 Mad 451) it is observed as follows:
"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 also observed that apart from the provisions of holding Act III of 1899, the was no reason for holding that the register would not be covered by the language of S. 35 of the Evidence Act. It is further observed that a village karma or a reddi keeping a register of deaths will be acting as a public servant in the discharge of his official duty. In Rangappa v. Rangaswami, AIR 1925 Mad 1005, at p. 1009 it is observed as follows:
"This death register is a public document and would, in ordinary circumstances, be bound to have been accepted as conclusive of the matter."
The learned Subordinate Judge's view that the document Ex. A. 1 is not proved cannot be sustained in view of the provisions of S. 35 of the Indian Evidence Act and the provisions of the Births and Deaths Act (Act III of 1899), which enjoin a duty on village officials of maintaining such registers. The rejection of the document buy the learned Subordinate Judge, is therefore, erroneous and cannot be sustained.
(4) Learned counsel appearing for the first defendant contends that mere production of the death register extract would not do and that the person referred to in the extract must be identified as the person, the date of whose death is in question in the proceedings. True, if there is any controversy about the same mere production of the death register extract will not be sufficient. But in this case, there has been no such controversy. As already pointed out, the death register extract had been filed along with the plaint. In the written statement no objection is taken and no point is made that the entry in death register in question did not relate to the deceased Ramaswami, the husband of the first defendant. A point is made that this Ramaswami has as alias name "Kannappan" and that alias name is not given in the death register extract. It is also pointed out that in the death register extract his name is shown as Papala Ramaswami where as in he plaint that house name is not found. But the sale deed Ex. B. 1 relied upon by the first defendant, shows that the house name of the parties is Papala, sufficiently identifying the death register extract as relating to this family. The informant is shown as brother Parthasarathi. The first defendant, as already stated, has not gone into the box. The plaintiff has gone in the box and has spoken to the fact that Ramaswami died in Ani. There is no evidence contra apart from the assertion in the written statement, that he died in May.
It is contended on behalf of the first defendant by the learned counsel that the inference is a pure finding of fact, which this court is not competent to interfere with in second appeal. But, as pointed out in the judgment of the Supreme Court in Ramachandra v. Ramalinga. where there is a substantial error or defect in the procedure provided by the Code, or by another law for the time being in force which may have produced error or defect in the decision of the case upon the merits, the High Court can interfere in second appeal. It is noticed that the lower appellate court allows a new point of fact to be raised of the first time before it, or permits a party to adopt a new plea of fact, or makes out a new case for a party, that may, in some cases, be said to amount to a defect or error in procedure. An erroneous approach to the case will also be a defect in procedure, if it substantially affects the merits of the case. In this case, the learned Subordinate Judge takes the view that Ex. A. 1 had to been proved. Proof of a document is not a mere question of fact. It can in some cases, as in this case, be a mixed question of fact and law. S, 35 of the Indian Evidence Act makes the document in question admissible in evidence. But the learned Subordinate Judge had come to the erroneous conclusion that the date of death has not been established. He proceeded as if is a case of no evidence. In fact, he has rejected the document. Ex. A. 1, as nor proved. This error has vitiated the finding of the learned Subordinate Judge.
(5) Learned counsel appearing for the respondents submits that this is a proper case where this court can remand the case either to the trial court or the lower appellate court of fresh disposal. Oral evidence as to this aspect of the case, I think will at this stage give room for perjured evidence. It is not as if the parties had no opportunity to let in the evidence they desired or had. The first defendant has refrained from going into the box, and no evidence has been let in by her as to the date of death. The plaintiff, the mother, has filed the death register extract. She has, in the box, stated that her son died in Ani. On this evidence, in the absence of any controversy as to the identity of the death register extract, which had been filed along with the plaint, the trial court properly came to the conclusion that the deceased died on 13-7-1956, after Central Act 30 of 1956. The reversal of the judgment of the trial court by the Appellate Court is in the circumstances not proper.
(6) In the result, the second appeal has to succeed. The decree of the lower appellate court is set aside and that of the trial court is restored. In the circumstances of the case, the parties will bear their respective costs throughout. No leave.
(7) Appeal allowed.