Andrews and others vs Anthony John alias Anthony Raj alias Manuvel and others

Srinivasan, J.—Defendants 3 to 5 are the appellants in this second appeal which arises out of a suit for partition and separate possession of the plaintiff''s one-eighth share in door No. 31, Kutti St., Nungambakkam, Madras 34. Though there was some dispute as to whether the property originally belonged to one Samuel, the grandfather of defendants 3 to 5, the matter is beyond challenge at this stage before me. The lower appellate Court has held that the property belonged to Samuel originally and nothing has been shown to me to disturb that finding. This Samuel admittedly had five sons and a daughter. The following genealogical tree will help an easy understanding of the relationship:-

This genealogical tree is found in the plaint. In the written statement, it is alleged by defendants 3 to 5 that their father had three more daughters by names Gnanambal, Regina and Gladis. In fact, Gnanambal has been examined as D.W.1 in this case.

The plaintiff claimed that he was the son of Benjamin and that the 1st defendant was his sister. Defendants 3 to 5 who are the contesting parties are admittedly the children of John, a brother of Benjamin. The status of the second defendant, as the grandson of Murugesan is disputed by defendants 3 to 5. Similarly, they dispute the status of the sixth defendant as the son of Arokiamary. According to the plaintiff his father Benjamin bad one-fourth share in the suit property and on his death, it had devolved on the plaintiff and the first defendant.

Defendants 3 to 5 resisted the suit contending that Benjamin had no issue and that the property belonged to themselves and their three sisters.

The trial court, accepting the contention of defendants 3 to 5, dismissed the suit. On appeal, the learned VII Additional Judge, City Civil Court, Madras, reversed the decision of the trial court and granted a decree in favour of the plaintiff as prayed for by him.

In this second appeal, Mr. S. Balasubramaniam, learned counsel for appellants, raises the following points:

(i) The lower appellate court is in error in relying upon Exs. A3 and A4, overlooking the discrepancies between them with regard to the date of birth as well as the name of the party concerned.

(ii) The lower appellate Court has failed to note that Ex. A4 is inadmissible in evidence in as much as the Register of Baptism kept in a Church is not a public document and it could not be proved by merely producing the certified extract. In other words, Ex. A4 is inadmissible in evidence.

(iii) The burden is on the plaintiff to prove his relationship as the son of Benjamin and in as much as he has not examined any family member in his support, no court can hold that his case has been proved. In this connection, reliance is placed upon S.50 of the Evidence Act.

(iv) The significant circumstance that the plaintiff as well as P.W.3 Arokianathan did not make any claim to the property till the date of suit, after the death of Murugesan and Benjamin, has been overlooked by the lower appellate Court.

(v) The names of defendants 3 to 5 were included in the house tax demand register, even during the lifetime of Benjamin, and this was a clinching circumstance to prove that the plaintiff or Arokianathan had no right to the property and this was again not considered by the lower appellate Court.

On the strength of the above said points, learned counsel for the appellants concludes that the lower appellate Court was wrong in reversing the well considered judgment of the trial court. He refers to the decisions in Nagayasami Naidu v. Kochadi Naidu 81 L.W. 436 = 1970.1-M.L.J. 105, Chirala Goverdhanareddy and Another Vs. Election Tribunal, Bapatla and Others, Shiv Ram Vs. Shiv Charan Singh, and B. Mahadeva Rao Vs. Yasoda Bai alias Radha Bai, in support of his contentions. I will refer to them at the relevant places.

The first of the documents relied upon by plaintiff to prove his status as the son of Benjamin in the serial order is Ex. A3 which is an extract from his service register. This document shows that the plaintiff''s father''s name is Benjamin. There is no dispute that this document relates to the plaintiff. The contention is that the document gives his date of birth as 25th December, 1946, whereas Ex. A4 gives it as 25th December 1945. The name of the plaintiff as found in Ex. A3 is Anthony John whereas in Ex. A4 the name of the child is given as Manuel. Learned counsel for the appellants contends that on account of the discrepancies, Ex. A3 should have been rejected. It is also pointed out by him that the lower appellate Court ventured to give an explanation on its own with regard to the date of birth, in that, the appellate court observed that it is usual for people entering service to give their age younger than what they really are. It is pointed out by learned counsel that the said explanation was not given by the party when he was in the witness box. With regard to this document, the evidence of P.W.1 is that his correct date of birth is 25th December, 1946 and not 25th December, 1945. There was no occasion for him to give any explanation as to why the date of birth was given as 25th December, 1946 when his case was that was the correct date of birth. In my opinion, it is not necessary to go into the question whether the plaintiff was born on 25th December, 1945 or 25th December, 1946. Learned counsel relies upon this aspect of the matter only to point out the discrepancies between the documents filed by the plaintiff in support of his case. The question before the Court is not with regard to the correct date of birth. The only question is whether the plaintiff is the son of Benjamin. As there is no dispute that Ex. A3 relates to the plaintiff, there is nothing wrong in the lower appellate Court accepting that document as a piece of evidence to show that the plaintiff is the son of Benjamin. Nothing was suggested to the plaintiff in the cross examination that he had falsely given his father''s name while entering service. The other discrepancy relied on is with regard to the name of the plaintiff himself. The plaintiff''s contention is that he had three names, viz., Manuel, Anthony John and Anthony Raj. It is not uncommon in this country for a person to have three names. It is customary among a majority of Hindus to give three names for any child on the 11th day after its birth. It is well known that Christians and Muslims living in this country adopt most of the customs of the Hindus. One cannot rule out the possibility of any Christian child being given three names. In this case, the lower appellate Court has chosen to accept the case of the plaintiff on the basis of some evidence on record with regard to his three names. I do not find any warrant to interfere with the same.

Coming to the next argument, Ex. A4 is a certified extract from the Register of Baptisms kept at St. Mary''s Church, Shivaji Nagar, Bangalore-1. The arguments of the learned counsel were mostly directed against this document. It is contended that the Register of Baptisms is not a public document under the Evidence Act. S. 74 of the Evidence Act categorises public documents as follows :-

"The following documents are public documents:-

(1) documents forming the acts or records of the acts.

(i) of the sovereign authority,

(ii) of Official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive of any part of India or of the Commonwealth or of a foreign country;

(2) public records kept in any state of private documents."

Under Ss.76 and 77 of the Evidence Act, certified copies of public documents can be produced in proof of the contents of the public documents. There is no doubt that the Register of Baptism does not fall under any of the classes mentioned in S.74 and it is not a public document. But there is a provision in S. 82 of the Evidence Act which reads as follows :-

When any document is produced before any court, purporting to be a document which, by the law in force for the time being in England and Ireland, would be admissible in proof of any particular in any court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the court shall presume that such seal, stamp or signature is genuine, and that the person signing it held, at the time when he signed it, the judicial or official character which he claims; and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland.

The object of S. 82 is to make applicable in India, the same presumptions which are recognised in England with regard to certain documents. They are declared to be admissible in the same manner as in England. It may be a matter of surprise that the section still continues to be in the statute book, even after 29 years of Independence, but so long as it is on the anvil of the Statute it has to be given effect to. The law in England relating to Register of Baptism is found in Halsbury''s Laws of England, IV Edn. volume 17

Ex "A register of Baptisms proves a baptism according to the rites of the Church of England, its date, the child''s Christian name, and the parents'' names, and in the case of baptisms Since 1812, it is evidence of the parent''s abode and quality, trade or profession.

Vide-paragraph 171 at page 127. Parish registers: of baptism, marriages, and burials being public documents, are admissible in evidence to prove the facts stated in them." Vide paragraph 170 in page 126. In David Lyell v. John Lawson and Kennedy 14 A.C. 37, the House of Lords held that Scotch parish registers or certified extracts from them, receivable in Scotch Courts as kept under the sanction of public authority, and receivable in English Courts and as to matters properly and regularly recorded in them Lord Selborne observed:

Foreign registers of baptism and marriages, or certified extracts from them, are receivable in evidence in Courts of this country, as to those matters which are properly and regularly recorded in them, when it sufficiently appears (in the words of Mr. Hubback''s learned work on Evidence.) that they have been kept under the sanction of public authority, and are recognised by the tribunals of the country (i.e., of the country where they are kept) ?as authentic records,

In Phipson on Evidence, X Edn., at para 1132 in 434, it is stated -

Registers of Baptism are evidence of the date and place of baptism, but not of the date or place of birth, though if it were proved aliunde that the child was very young at the former date, the register might afford presumptive proof of his birth in the Parish in which he was baptised.

In my view, the Register of Baptism will fall under S.82 and a certified extract therefrom will be admissible in terms of S.82 of the Evidence Act. In this case, there are two certificates of baptism one relating to the plaintiff and the other relating to the first defendant, his sister. The former is marked as Ex. A4 and the latter as Ex. A7. Though learned counsel raised considerable doubt with regard to the admissibility as well as the correctness of the entries in Ex. A4, the same cannot be said about Ex. A7. In Ex. A4, the name of the person baptised is given as Manuel and the date of birth is given as 25th December 1945. According to the plaintiff this date was wrongly given. He is not able to explain why a wrong date was given. One cannot expect him to give any explanation because he was only a child of 19 days on the date of baptism. As regards Ex. A7 it is issued by St. Antony''s Church, Rangoon. The salient feature is, it was issued on 4th December 1956. Nobody could have ever thought of any dispute in 1956 when that certificate was issued. Whether Ex. Al can be admitted in evidence by virtue of S.82 of the Evidence Act or not, Ex. A7 will definitely come within the scope of this section, In Ex. A7 the names of the parents of the first defendant are given as Benjamin and Arokiamary. Ex. A7 supports the case of the plaintiff to the full extent. There is no reason to reject Ex. A7, as a spurious or fabricated one. No suggestion was made to that effect when P.W.4 was in the witness box. The lower appellate Court has chosen to accept Ex. A7 as one of the documents proving the case of the plaintiff. I do not find any error in the same.

There is nothing for me to consider Ex. A5 which relates to the marriage of the plaintiff. Ex. A6 is an extract from the death register kept by the Corporation of Madras. In column 16, the name of the informant is found as Anthony John. There is a provision for mentioning the nature of relationship in the said document and it is stated therein that the informant is the son of the deceased. P.W.1 deposed that he gave information of his father''s death and he signed the Register. This was in 1967 when Benjamin died. One can say that this claim was made by the plaintiff long before the disputes arose.

The next document that is relied on by the lower appellate court is Ex. A21 the Voters'' list of the year 1967. It is found from the said document that Benjamin Nicholas the husband of the first defendant Anthony Raj, the plaintiff, were all living in door No. 31. As regards Exs. A6 and A21, the argument of the learned counsel for appellants is that entries in birth and death register and entries in Electoral rolls are not conclusive and they cannot be taken as acceptable evidence. In this connection, reliance is placed upon the decision in Nagaya Sami Naidu and others v. Kochadai Naidu 81 L.W. 436 = 1970 M.L.J. 105 wherein the Division Bench observed as follows.

But learned counsel, Sri Rajah Iyer submitted that in relying upon entries in extraces of Birth Register, it will be unsafe to rely upon all the particulars mentioned therein and that the use of the entries in the Birth and Death register extracts should be restricted to the limited information or limited details which the officer concerned is enjoined by law to record and any extraneous information outside the precise ambit of the entries should be eschewed. Columns 9, 10, 11 only require the officer concerned to record the name of the father of the child, the name of the mother of the child and the residence. He is not expected to record the further information concerning the details of either the father or the mother or their parentage, their ancestral history, etc. Under S. 35 of the Evidence Act, it is only the entry made by a public servant in the discharge of his official duties that is admissible as a relevant fact (Vide: Ramalinga Reddi v. Kotayya I.L.R(1917) 41 Mad. 26 = 6 L.W. 246 in which entries in Birth Register kept by village officers were held to be admissible under S. 35 of the Evidence Act. Vide, also Bagiammal v. Kamalammal ILR 1965 2 Mad. 556 = 78 L.W. 404. Sri Rajah Iyer drew our attention to some of the cases in which this note of caution was indicated that other particulars not admissible under S. 35 of the Evidence Act. In Venkayamma v Gangayya, 38 L.W. 779 = 65 M.L.J. 703 a Bench of this Court held that an entry in the Death Register extract is not admissible to prove the age on the date of death, even though that factum was also recorded. Again in Gurusami Nadar v. Irulappa Konar 67 M.L.J. 389 = 40 L.W. 502 in Death Register extract, particular person was described as a Christian and the learned Judge, Varadachariar, J., observed that at best it is safe to rely upon these registers only with reference to the fact of death and the date of birth. Here in Ex. A1, the Birth Register extract, column 7 relates to particulars of the child''s nationality and caste but no such information is required to be recorded with reference to the particulars of the parents in columns 9 to 11. Our attention was also drawn to the State v. Kamruddin ILR 1956 Nag. 282 in which the name of the child was recorded and it was held that it was inadmissible under S. 35 of the Evidence Act, on the ground that each and every entry made in the register does not by itself become admissible under the Evidence Act and the entries do not require the officer to record the name of the child. Our attention was not drawn to any decision in which it is held that entries like the one in columns 8 and 9 in Ex. Al and A2 are admissible with reference to the parentage of the father of the new born child. If there is other independent evidence connecting the entries no doubt, the entries and the independent evidence may supplement one another.

The passage extracted above shows that the Division Bench held that the entries were not conclusive and they would not be evidence by themselves. It was expressly pointed out that if there was any independent evidence connecting the entries such evidence and the entries would supplement one another. Learned counsel next referred to the decision in Mahadeva Rao v. Yesoda Bai 75 L.W., 17 = 1962-2-M.L.J. 107 wherein Ananthanarayanan, J. observed as follows:-

I am afraid that the relevant Birth Register ex-tracts are totally useless and they do not constitute evidence against the revision petitioner. S. 35 of the Indian Evidence Act has been referred to by the learned counsel for the respondent, but that would merely make the entries in such documents relevant facts, it the entries had been made by public servants acting in the discharge of their duties. In all these other documents the column relating to the informant is not filled up and, as far as we can gather, the came of the father must have been furnished by the respondent herself. That is not evidence of paternity, being a unilateral statement by an interested party.

In the present case, the entries in Ex. A.6 cannot be held to be conclusive but it is evidence of a claim made by the plaintiff himself long before the disputes arose that he was the son of the deceased Benjamin. Along with other pieces of evidence available in the case, it would enable the plaintiff to prove his status as son of Benjamin. It is one thing to say that a document is the conclusive piece of evidence and another to say that it will be one of the pieces of evidence. In this case Ex. A6 serves as one of the pieces of evidence and the lower appellate Court has not treated it as a conclusive piece of evidence. The decisions in Shivram v. Shivcharan Singh AIR 1964 Raj. 126 = ILR 1964 Raj. 25 and 1/3 Goverdhane Reddi v. Election Tribunal AIR 1979 A.P. 56 1969-1-An.W.R. 52 F.B. relate to entries in electoral rolls. It has been held in those decisions that entries in electoral rolls are not final or conclusive in regard to matters mentioned therein. As pointed out earlier, in this case, Ex A21 is not treated as a conclusive piece of evidence. It is being treated only as one of the pieces of evidence. Ex. A21 assumes importance because it relates to the period when Benjamin was alive. The entry shows that even during the lifetime of Benjamin, the plaintiff and the first defendant were living with him. Though this aspect of the matter was not questioned, during the arguments, I find from the written statement that the case of defendants 3 to 5 was that the husband of the first defendant was a tenant in that property and that the plaintiff came to live with him as his brother-in-law . However, the case of the tenancy as set out in the written statement has not been proved by any documentary evidence. As regards electoral rolls, a Full Bench of the Orissa High Court had occasion to consider the evidentiary value of the entries therein in Kirtan v. Thakur AIR 1972 Orissa 158 wherein it is held:-

Electoral roll prepared under the Representation of the People Act is a public record within S.35 and a Public document within S. 74(i)(iii) of the Act and is admissible in evidence as such and it is not necessary to call in evidence the author thereof or a person supplying the information to prove the roil as its genuineness will be presumed under this section when it is produced before the Court.

A similar view was taken in Smt. Aina Devi Vs. Bachan Singh and Another, wherein Deoki Nandan, J. held :

Certified extracts from the electoral roll and the family register of a village which are public documents are admissible in evidence to prove their contents. The entries made therein are presumptive evidence of what they recorded until disproved by satisfactory evidence to the contrary.

In Chellamal v. Angamuthu and others 1977 L.W. (Crl.) 217 = 1978-M.L.J. Crl. 327 Ratnavei Pandian, J., had occasion to deal with entries in Birth and Death Register as well as entries in the voters'' list. The learned Judge, after referring to a number of earlier judgments, pointed out that the entries are admissible in evidence in order to prove matters relating thereto. In view of what is stated above, the first and second points urged by learned counsellor the appellants are found against.

As regards the third point urged by the learned counsel, it may cut him both ways. If really there is a family member who is in the know of things, he could have been examined by the defendants to show that neither the plaintiff nor the first defendant was born to Benjamin. When there is other evidence available on record, with the aid of which the plaintiff is able to prove that Benjamin is his father, there is no necessity to resort to S. 50 of the Evidence Act. The next point that is urged is that neither the plaintiff nor P.W. 3 made any claim to the suit property for several years, after the death of Benjamin and Murugesan. As pointed out by the lower appellate Court, it is not necessary for a co-owner to make a claim for partition immediately on the death of his father or his predecessor in title. So long as they continue to be co-owners, their right to partition is not taken away, particularly in this case the plaintiff and the first defendant were in possession of the property The fact remains that defendants 3 to 5 filed a proceeding for eviction of the first defendant''s husband under the provisions of the Rent Control Act and in defence, to that proceeding the first defendant''s husband had set out a case that he was not a tenant and that his wife was one of the co-sharers, In that proceeding the present plaintiff has given evidence in support of his sister''s husband. It may be noted that, after the dismissal of the petition for eviction defendants 3 to 5 herein had filed an appeal before the appellate authority. Pending that appeal, they filed an application for marking certain documents as additional evidence. The order in the said application is marked as Ex. A28 in the present case. It is seen from Ex. A28 that defendants 3 to 5 wanted to produce certain baptism certificates to prove that the baptism certificates relied upon by the plaintiff herein, which were filed before the Rent Controller, were not true or genuine. No attempt has been made in the present proceedings to produce such baptism certificates which were sought to be produced before the appellate authority in the Rent Control proceedings. If really they are true Baptism certificates which go against the case of the plaintiff, they could have been produced by defendants 3 to 5 in the present case . This can be utilised as a circumstance against the case of the defendants.

The fact that the names of the defendants 3 to 5 were included in the house tax demand register even during the time of Benjamin and that the name of Arogianathan, the second defendant, was not so included, is a point in favour of defendants 3 to 5 but certainly it is not a point against the plaintiff and first defendant. We are not concerned here with the rights of the second defendant as he has not chosen to make any claim for his share by filing written statement. He chose to remain absent and he was set ex parte. Though he gave evidence as P.W.3, he had not made any claim either by filing an appeal before the lower appellate Court or otherwise.

Another circumstance that is urged against the plaintiff is that in criminal proceeding under S.75 of the City Police Act, the plaintiff''s name was given as Anthony Das. It is urged that it is the fourth name of the plaintiff and it shows that the plaintiff is conveniently having different names on different occasions. But Ex. B4 does not show that the name of the plaintiff was given by him or by anybody connected with him. Ex. B4 gives the name of three persons as accused. The third name is that of Shree Lakshmi, who is stated to be the wife of Antony Das. It is now stated in evidence that the said Lakshmi is the wife the plaintiff, and therefore, the plaintiff''s name is found in Ex. B4. As already pointed out, there is nothing to show that the name was given by the plaintiff. Some one might have wrongly given it as Antony Das instead of Antony Raj or Antony John, even assuming that the third accused is the wife of the plaintiff.

It is not necessary to rely upon the passage in the deposition of D. W. 1, as read out by counsel for the plaintiff. Suffice it to point out that the evidence relied upon by plaintiff and referred to in the judgment of the lower appellate Court as supporting the case of the plaintiff, is sufficient to uphold the claim of the plaintiff as the son of Benjamin. I do not think that there is any error in the judgment of the lower appellate court in reversing the judgment of the trial court. In the result the second appeal fails and is dismissed with costs.