High Court of KeralaSingle Judge2014-02-13Remanded to trial court for fresh consideration

Sobhana v. Kala Sivaranjan and others

Case / Petition Number:RSA No. 374 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Bhavadasan
Judgment Date: 2014-02-13
Court Decision / Holding: The judgments and decrees of the courts below are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law, with liberty for both sides to adduce further evidence. The parties shall appear before the trial court, and it is directed that the trial court endeavor to dispose of the matter, if possible, before the Summer Vacation. Both parties may amend pleadings.
Final Disposition: Remanded to trial court for fresh consideration

Parties to the Case

Appellants / Petitioners

Kala Sivaranjan
Vishnu Narayanan
Sethu Narayanan
Susheela

Respondents

Sobhana

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Thomas Abraham
• Sri. Dipu R
• Smt. Merciamma Mathew
• Sri. K.S. Haridas
• Sri. V. Renjith Kumar

Counsels for Respondents

• Sri. G. Krishnakumar
• Smt. M.P. Rethnam
• Sri. Titto Thomas

Case Synopsis & Summary

This Regular Second Appeal concerns a suit for cancellation of Ext.A2, a sale deed allegedly executed by the plaintiff when she was a minor. The plaintiff claims Ext.A1 partition deed allotted the property to her, but her late brother Sivarajan allegedly obtained a document under the garb of a loan and induced her to execute Ext.A2, which later turned into a sale to defendant No.4. The trial court dismissed the suit, holding that Ext.A3, an extract from a school admission register, was insufficient evidence of the plaintiff’s age because the issuer was not examined and the underlying register was not produced. The first appellate court disagreed, treating Ext.A3 as a public document adequate to prove age as on the date of Ext.A2, and decreed the suit. The High Court framed the substantial question: whether Ext.A3, being an extract from the admission register, suffices without examining the issuer or producing the original register, especially since Ext.A1 shows the plaintiff’s age as 13 in 1977. Counsel for the appellants submitted that Ext.A3 cannot establish age absent primary evidence; the respondent contended Ext.A3 is a public document admissible as proof without further evidence. The High Court held Ext.A3 cannot be proved without the school register or issuer’s examination and remanded the matter to the trial court for fresh evidence and proper legal application, with liberty for pleadings to be amended and disposal before the summer vacation.

Legal Doctrines & Maxims

Public documents are admissible in evidence (Ramappa v. Bojjappa, AIR 1963 SC 1633)
To prove age from a school admission register, primary evidence or examination of the issuer is required (Sunil v. State of Haryana, (2010) 1 SCC (Crl.) 910)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that Ext.A3 is only an extract from the school admission register and cannot alone prove the plaintiff’s age. The person who issued Ext.A3 has not been examined, and the original register or the register from which the extract was prepared has not been produced. Relying on Ext.A3 alone would be legally untenable; the partition deed Ext.A1 shows the plaintiff was 13 in 1977, which would indicate an age inconsistent with the claimed minor status at the relevant time. They urged that the proper approach is to require primary evidence or examination of the issuer and the school records, as endorsed by the Sunil v. State of Haryana decision, and consequently that the trial court should be given an opportunity to examine evidence and determine age in accordance with law.

Contentions of Respondents

The respondent argued that Ext.A3, being a public document, is admissible and sufficient to prove the plaintiff’s age, and no further evidence is required. They urged the lower appellate court’s view that Ext.A3 sufficed to establish the plaintiff’s minority on the relevant date and that the decree based on Ext.A3 should stand.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramappa v. Bojjappa	AIR 1963 SC 1633	Mentioned Only	Cited by respondent to support admissibility of public documents; however, the court does not adopt this proposition to treat Ext.A3 as conclusively proved and relies more on Sunil v. Haryana for the need of primary evidence.
Sunil v. State of Haryana	(2010) 1 SCC (Crl.) 910	Positive	Principle followed: to prove age, a school admission register requires examination of the issuer or production of the original register; Ext.A3 is not proved without such evidence.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Sobhana v. Kala Sivaranjan and others and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 13TH DAY OF FEBRUARY 2014/24TH MAGHA, 1935** **RSA.No. 374 of 2011 ( )** **-----------------------AS. NO.89/2009 OF SUB COURT, PERUMBAVOOR. OS. NO.133/2005 OF MUNSIFF COURT, PERUMBAVOOR.** **..........** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** **--------------------------------------------------------------------** **1. KALA SIVARAJAN, AGED 38 YEARS (AS PER SUIT), W/O. LATE SIVARAJAN, MALIKALA HOUSE, VENGOLA KARA, VENGOLA VILLAGE, PERUMBAVOOR, ERNAKULAM.** **2. VISHNU NARAYANAN, AGED 13 YEARS (AS PER SUIT), S/O. LATE SIVARAJAN, MALIKALA HOUSE, VENGOLA KARA, VENGOLA VILLAGE, PERUMBAVOOR, ERNAKULAM.** **3. SETHU NARAYANAN, AGED 11 YEARS (MINOR) (AS PER SUIT), S/O. LATE SIVARAJAN, MALIKALA HOUSE, VENGOLA KARA, VENGOLA VILLAGE, PERUMBAVOOR, ERNAKULAM, REPRESENTED BY HIS MOTHER, KALA SIVARAJAN (1ST APPELLANT).** **4. SUSHEELA, W/O. BHASI, PUTHANPURAKKAL HOUSE, VENGOLA KARA, VENGOLA VILLAGE, PERUMBAVOOR, ERNAKULAM.** **BY ADVS.SRI.THOMAS ABRAHAM, SRI.DIPU.R,** **SMT.MERCIAMMA MATHEW, SRI.K.S.HARIDAS, SRI.V.RENJITH KUMAR.** ## **RESPONDENT/APPELLANT/PLAINTIFF:** **---------------------------------------------------------** **SOBHANA, AGED 39 YEARS (AS PER SUIT), W/O. REGHU, CHERIRUPURAYIDATHIL HOUSE, THULASIPARA, KALKOONTHAL VILLAGE, UDUMBANCHOLA TALUK.** **BY ADVS. SRI.G.KRISHNAKUMAR, SMT.M.P.RETHNAM, SRI.TITTO THOMAS.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 374 of 2011 - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of February, 2014. ## **JUDGMENT** The plaintiff laid the suit seeking cancellation of a sale deed which is alleged to have been executed by her and marked as Ext.A2. The claim of the plaintiff was that she had obtained the property as per Ext.A1 partition deed dated 4.7.1977 and her brother Sivarajan, who is no more, managed to obtain a document from her making her believe that it was for the purpose of obtaining a loan. She believed him and executed the deed. Later, it turned out to be a sale deed. Subsequently defendants 1 to 3 sold the property to the fourth defendant. According to the plaintiff, at the time of execution of Ext.A2 she was a minor and therefore the sale deed is not valid. On the same set of allegations, she seeks cancellation of the sale deed. 2. The defendants resisted the suit. Defendants 1 to 3 are none other than the wife and children of late RSA. 374/2011. 2 Sivarajan. Defendant No.4 is an assignee from defendants 1 to 3. 3. The defendants contended that the plaintiff was a major at the time of execution of Ext.A2 document and the claim that she was a minor is without basis and the sale deed is valid and binding on her. Based on the above pleadings, parties went to trial and issues were framed by the trial court. 4. The evidence consists of the testimony of P.W.1 and the documents marked as Exts.A1 to A5 from the side of the plaintiff. The defendants did not adduce any oral evidence. They produced Exts. B1 to B10. Exts.C1 and C1(a) are the commission report and plan. The trial court mainly on the ground that Ext.A3 produced by the plaintiff was insufficient in law to prove her age in the sense that the person who has issued the same has not been examined and the register on the basis of which Ext.A3 extract has been issued, has not been produced, refused to accept the plea that RSA. 374/2011. 3 the plaintiff was a minor at the time of execution of Ext.A2. Accordingly, the suit was dismissed. 5. The plaintiff carried the matter in appeal as A.S.89 of 2009. 6. The lower appellate court differed in its view with regard to the probative value of Ext.A3 document and was of the view that being a public document, its production is sufficient and it is sufficient to prove the age of the plaintiff as on the date of execution of Ext.A2 document. Going by Ext.A3 document, the lower appellate court came to the conclusion that the plaintiff was a minor. Accordingly the suit was decreed. ## 7. At the time of admission, this Court framed the following substantial question of law: “When Ext.A3 is only an extract of the school admission register, without examination of the parents or the person who had furnished the information based on which the date of birth is entered in the original RSA. 374/2011. 4 admission register, whether the first appellate court was justified in holding that appellant was born on 1.6.1965, especially when Ext.A1 partition deed shows that she was aged 13 years in 1977 and if so, whether the decree granted is sustainable.” 8. Learned counsel appearing for the appellant contended that the lower appellate court was not justified in holding that Ext.A3 is sufficient proof of the age of the plaintiff. It is trite that the person who has prepared Ext.A3 will have to be examined in order to prove the same. It is contended that the school register on the basis of which Ext.A3 was issued has also not been produced and therefore reliance could not have been placed on Ext.A3. It is therefore contended that the finding of the court below that Ext.A3 is sufficient to prove the age is incorrect and cannot be sustained in law. 9. Learned counsel appearing for the respondent on the other hand relied on the decision in Ramappa v. Bojjappa RSA. 374/2011. 5 (AIR 1963 SC 1633) and contended that being a public document, it is admissible in evidence and no further evidence is required. 10. On merits, it is difficult to accept the contention of the learned counsel for the respondent. Ext.A3 is only an extract of the admission register issued from the School where the plaintiff might have studied last. In order to prove the same, it is necessary to examine the person who issued the same and also produce the register on the basis of which the extract was issued. If any authority is required for the above proposition, that will be provided by the decision reported in Sunil v. State of Haryana ((2010) 1 SCC (Crl.) 910), wherein it was held as follows: “25. The prosecution also failed to produce any Admission Form of the school which would have been primary evidence regarding the age of the prosecutrix. The School Leaving Certificate produced by the prosecution was also procured on 12.9.1996, six days after the incident and three days after the arrest of the RSA. 374/2011. 6 appellant. As per that certificate also, she joined the school in the middle of the session and left the school in the middle of the session. The attendance in the school of 100 days is also not reliable. The prosecutrix was admitted in the school by Ashok Kumar, her brother. The said Ashok Kumar was not examined. The alleged School Leaving Certificate on the basis of which the age was entered in the school was not produced.” 11. In the light of the principle laid down in the above decision, it is held that unless the register of the school is produced or the person who issued the same is examined or atleast a person who is in charge of the school at the relevant time has been examined, it cannot be said that Ext.A3 is proved. 12. Learned counsel for the respondent then prayed that an opportunity may be given to the plaintiff to adduce evidence in that regard. 13. Learned counsel for the respondent pointed out that in the partition deed the age of the plaintiff is shown as RSA. 374/2011. 7 13 years which would show that as on the date of Ext.A1 document the plaintiff has passed the age of 17 and she was 18 years of age. It is also contended that the subsequent documents would show that she was a major at the relevant time. 14. In the light of the fact that reliance has been placed on Ext.A3 document to grant a decree in favour of the plaintiff which as already noticed is not sustainable in law, it is felt that the proper course is to remand the matter to the trial court after giving an opportunity to both sides to adduce evidence with regard to the age of the plaintiff. In the result, the judgments and decrees of the courts below are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. The parties will be at liberty to adduce further evidence. The parties shall appear before the trial court on 12.3.2014. The trial court may make RSA. 374/2011. 8 every endeavour to dispose of the matter, if possible, before the commencement of the Summer Vacation. Both parties are at liberty to amend the pleadings. P. BHAVADASAN, JUDGE sb.