Nandu vs Surender Kumar and Others

J.V. Gupta, J.—This judgment will dispose of R.S.A. Nos. 1765 of 1979, 1766 of 1979, 1767 of 1979, 1768 of 1979 1769 of 1979 and 2218 of 1979, as the questions involved are common in all these appeals. Moreover, even the lower appellate Court decided all these cases by a common judgment.

The sales in all these cases were effected by Shankar Lal, the father of the Plaintiffs-Respondents. The case of the Plaintiffs is that they alongwith their father Shankar Lal formed a Joint Hindu Family and that the properties in dispute were Joint Hindu Family properties. Since the sales were effected by their father Shankar Lal without consideration and legal necessity, the same were not binding on them. The alienations in these appeals were made from 1949 to 1951. All these suits were filed in October and November, 1965. In the written statements the vendees pleaded that the impugned sales were for consideration and legal necessity and otherwise also it was an act of good managment and for the benefit of the estate. Factum of the Plaintiffs being the sons of Shankar Lal and the family being a joint Hindu family and the nature of the property being ancesteral was categorically denied. A specific plea was taken that the suit was barred by time, as it was filed after three years of attaining majority by Plaintiff Surinder Kumar. The trial Court found that the suit was barred by time, under issue No. 7 as the Plaintiff Surinder Kumar had failed to prove that the suit was filed within 3 years'' of his attaining the majority. According to the trial Court, the date of birth of Surinder Kumar was not proved by cogent evidence. It was further found under issue No. 5, that the sales in dispute were for consideration and for legal necessity, as well as an act of good management and for the benefit of the estate. In view of these findings all the suits filed by the Plaintiffs were dismissed. In appeal the learned Additional District Judge reversed the said two findings of the trial Court. According to the lower appellate Court, Surinder Kumar Plaintiff was born on 17th November, 1944, and from that date the suits had been filed within three years after attaining the majority. It was further found that though the sales were for consideration, but they were not for legal necessity. In view of these finding the Plaintiffs suits were decreed. Dissatisfied with the same the vendees have filed these second appeals in this Court.

Learned Counsel for the vendee-Appellants submitted that there is no cogent evidence on the record to prove the date of birth of Surinder Kumar Plaintiff. The entries in the school register had no evidentiary value as such and, therefore, the finding of the lower appellate Court in this behalf is wrong and illegal. According to the learned Counsel the trial Court rightly came to the conclusion that the Plaintiff has failed to prove his date of birth by any cogent evidence. In support of his contention a reference was made to Brij Mohan Singh Vs. Priya Brat Narain Sinha and Others, . It was also contended that the Plaintiff did not produce the best evidence to prove his date of birth and, therefore, the presumption will be against the Plaintiffs that had the evidence been produced it would have gene against him.

In support of his contention reference was made to Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others,

After hearing learned Counsel for the parties and going through the relevant evidence on the record, I find force in the contentions raised on behalf of the vendee-Appellants. The approach of the lower appellate Court in this behalf is wholly misconceived, wrong and illegal. There is no explanation as to why the birth entry of Surinder Kumar Plaintiff in Municipal record could not be produced. Not only that the Plaintiff produced his Purohit, who, stated that his date of birth was as entered in the ''Patra'', but no such Patra was ever produced, nor the father of the Plaintiff Shankar Lal produced his diary, in order to show the date of birth of the Plaintiff The Plaintiff was satisfied with the entries in the school register made at the time of his admission. Even if the said entries were admissible per-se, their evidentiary value was very little in view of the authoritative pronouncement of the Supreme Court in Brij Mohan Singh''s case (supra). It has been held therein that:-

In actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The court of fact cannot ignore this fact while assessing the value of the entry and it would be improper for the court to base any conclusion on the basis of the entry, when it is alleged that the entry was made upon false information supplied with the above motive.

The lower appellate Court mainly relied on the judgment of this Court in Anant Ram v. The State of Punjab (1975) 77 P. L. R. 75. The ratio of the said judgment has absolutely no applicability to the facts of the present case. In that case from the evidence on the record it was found as a fact that the Plaintiff has failed to prove his date of birth and that finding was upheld in second appeal. Reference was made to Brij Mohan Singh''s case (supra), and after noticing the same it was observed:-

In the instant case there is no evidence on the file that in which school the Appellant read upto 5th Class and what was the entry for the date of birth in that school .

Ultimately it was held that in view of the law laid down in the said case, no reliance can be placed on the entries in Exhibits P-1 and P-2. In a way the said case helps the contention of the learned Counsel for the Appellants. The trial Court has discussed this matter in details and rightly came to the conclusion that

Therefore, the whole oral and documentary evidence hangs on the school admission register on the basis of which even the matriculation certificate produced by the Plaintiff indicates the age of Surinder Kumar Plaintiff, because there is always tendency to adhere to such entry made in school admission register, but the circumstances detailed above show that the entries in school admission register have not been proved sufficiently and these are inconclusive and are of suspicious nature The admission and with-drawl register in which entry No. 1329 there is form and does not show that it has been kept in the ordinary course of the business.

The said finding has been reversed by the lower appellate Court on wrong assumptions According to the lower appellate Court, in case the date of birth of Surinder Kumar had not been as 17th November, 1944, it was not difficult for the vendee Defendants to have placed on the record the birth entries of the Municipal record to rebut the same. At observed earlier this approach of the lower appellate Court is wholly misconceived. It was not for the Defendants to produce the birth entry of the Plaintiff, but it was for the Plaintiff to produce the best evidence to show his date of birth, which was most material. Admittedly the sale which was made in the year 1951 was challenged in the year 1965, i.e., after about 14 years thereof In these circumstances the onus was very heavy on the Plaintiff to prove as to what was his date of birth, so as to bring the suit within limitation. The best evidence would have been the birth entry in the Municipal record, for which there is no explanation as to why the same was not produced. Moreover, the Purohit who was produced by the Plaintiff as his witness did not produce the Patra, which he claimed to have maintained. Thus from all these circumstances it is quite evident that the Plaintiff with-held the best evidence to prove his date of birth. Unless there was any cogent evidence to that effect, the mere fact that there was no rebuttal thereto, was of no significance Apart from that, from the entries made in the school register and the copy of the entry No. 1329, Exhibit PW 5/6, it is not clear that what was the exact date of birth of Surinder Kumar Plaintiff. In Hindi the date of birth is given as ''Satra November San Chaunve'', whereas in English it is written Seventeenth November, Nineteen Hundred and forty-four-17-11-1944. Such being the affairs with regard to the entries in the school register it cannot be said with certainity that the Plaintiff was born on 17th November 1944.

Reliance was also placed by the lower appellate Court on the copy of the Matriculation certificate (certified copy) Exhibit P-8, wherein the date of birth was shown as 17th November, 1944. Surprisingly enough the original matriculation certificate was never placed on the record. A typed copy was placed on the record. Any how the entry in the matriculation certificate is the same as was made in the school register and continued subsequently. However, since the best evidence, which was available with the Plaintiff, was not produced the presumption will be against the Plaintiff As observed earlier in the present case the onus was very heavy on the Plaintiff to prove his date of birth, because the suit was being filed after about fourteen years from the date of the sale. The approach of the lower appellate Court being wrong and illegal, the finding arrived at is vitiated. However, learned Counsel for the Plaintiff Respondent cited Ramautar v. Balbir 1976 P. L. J. 312 to support his contention that entries in the register of Government school regarding the date of birth was admissible in evidence. As observed earlier, the question is not of admissibility as such. but it is that of its evidentiary value and the same in view of Brij Mohan Singh''s case (supra), in the present case is very little.

Before the lower appellate Court it was conceded that Gobind Ram Plaintiff No 2 was born long after the impugned transactions took place because his date of birth is alleged to be 14th November, 1953, while the latest impugned sale it of 27th October, 1951. Thus it was the common case of the parties in the Courts below that if the Plaintiff Surinder Kumar succeeds to show that be was born on 17th November, 1944 then the present suit was certainly within time, as the same was filed within three years of attaining majority. This, as observed earlier, the Plaintiff has failed to prove by any cogent evidence, rather the best evidence has been with-held by him.

It was also contended on behalf of the Defendants that the sales were for legal necessity and were made as an act of good management as he was a big landlord. According to the learned Counsel the vendor Shankar Lal purchased a tractor in December, 1952, for which the entry in the Registration Book is Exhibit DW 6/A. Thus argued the learned Counsel that after the impugned sales were made the vendor purchased the tractor. It was also pointed-out that from the documentary evidence on the record it was amply proved that the vendor constructed certain shops and purchased the immoveable property as well after the impugned alienations were made by him,

Learned Counsel for the Plaintiff Respondents submitted that this being a finding of fact cannot be interfered in second appeal. He also referred to Shri 108 AIR 1945 1 (Privy Council) and Varada Pillai Vs. Sriramalu Reddiar and Another,

However, in view of the finding given earlier, that the Plaintiffs'' suit was barred by time I need not go into the question of legal necessity as such for the purposes of this appeal.

In view of the above discussion, all the appeals succeed and are allowed with costs. The judgments and decrees of the lower appellate Courts are set aside and those of the trial Court dismissing the Plaintiffs'' suit are restored.