VILASINI, MOHANAN, SANKUNNY v. THANKAM ALIAS THANKAMMA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 22ND DAY OF FEBRUARY 2016/3RD PHALGUNA, 1937** **RSA.No. 1452 of 2013** **------------------------** **AGAINST THE JUDGMENT IN AS 129/2010 OF PRINCIPAL SUB COURT, IRINJALAKUDA DATED 09-07-2013. AGAINST THE JUDGMENT IN OS 54/2009 OF MUNSIFF COURT, KODUNGALLUR DATED 30-08-2010.** **...........** ## **APPELLANT(S)/APPELLANTS/PLAINTIFFS:** **----------------------------------------------------------------** **1. VILASINI, AGED 69 YEARS,** **D/O.KOOTTALA KOCHUKUTTY AMMA AND KRISHNAN NAYAR (S/O.PAZHOORU KUNJIKUTTY AMMA), KAIPAMANGALAM VILLAGE AND DESOM, KODUNGALLOOR TALUK.** ## **2. MOHANAN, AGED 65 YEARS,** **S/O.KOOTTALA KOCHUKUTTY AMMA AND KRISHNAN NAYAR (S/O.PAZHOORU KUNJIKUTTY AMMA), KAIPAMANGALAM VILLAGE AND DESOM, KODUNGALLOOR TALUK.** **3. SANKUNNY, AGED 60 YEARS, S/O.KOOTTALA KOCHUKUTTY AMMA AND KRISHNAN NAYAR (S/O.PAZHOORU KUNJIKUTTY AMMA), KAIPAMANGALAM VILLAGE AND DESOM, KODUNGALLOOR TALUK.** ## **BY ADV. SRI.K.S.BHARATHAN** ## **RESPONDENT/RESPONDENT/DEFENDANT:** **--------------------------------------------------------------** **THANKAM ALIAS THANKAMMA, AGED 75 YEARS, D/O.PAZHOORU KALYANI AMMA, KAIPAMANGALAM VILLAGE AND DESOM, KODUNGALLOOR TALUK, NOW RESIDING AT PAZHOORU HOUSE, C/O.FRANCIS PAREKKADAN, (UNION WORKER) VENGINISSERY P.O., PALAKKAL, THRISSUR DISTRICT - 680 001.** **BY ADV. SRI.K.G.BALASUBRAMANIAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28-01-2016, THE COURT ON 22-02-2016 DELIVERED THE FOLLOWING:** **mbr/** ## **C.R.** ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **R.S.A. No.1452 of 2013 ----------------------------------------------Dated 22[nd] February, 2016.** ## **J U D G M E N T** The plaintiffs in a suit for partition are the appellants. 2. The properties sought to be partitioned belonged to the predecessor-in-interest of the plaintiffs, namely, Krishnan Nair and his mother Kunjukutty Amma. The properties owned the by Krishnan Nair and Kunjukutty Amma were partitioned between them as per Ext.A1 partition deed in the year 1952. The properties included in the C-schedule to Ext.A1 partition deed were allotted to Kunjukutty Amma, her daughter Kalyani Amma and her daughter, the defendant. Krishnan Nair died thereafter. Kunjukutty Amma also died later. According to the plaintiffs, Kunjukutty Amma died on 25.12.1957, after the introduction of the Hindu Succession Act and as such, on her death, her one half share over the properties included in the C RSA 1452 of 2013 2 schedule to Ext.A1 partition deed devolved on them as the legal representatives of her pre-deceased son Krishnan Nair and the suit is for partition of the said one half share over the said properties. The defendant resisted the suit, contending, among others, that Kunjukutty Amma died prior to the introduction of the Hindu Succession Act, in the year 1955 itself and that therefore, the plaintiffs have not acquired any right in the suit properties on her death. The trial court non-suited the plaintiffs holding that the plaintiffs have not established their case that Kunjukutty Amma died after introduction of the Hindu Succession Act as claimed by them. Though the matter was taken up in appeal, the appellate court, on a reappraisal of the materials on record, confirmed the decision of the trial court. The plaintiffs, who are aggrieved by the concurrent decisions against them have thus come up in this second appeal. 3. Heard the learned counsel for the appellants as also the learned counsel for the respondent. 4. The short point arising for consideration is as to whether the plaintiffs have succeeded in establishing their case RSA 1452 of 2013 3 that Kunjukutty Amma died after the introduction of the Hindu Succession Act. In order to establish the death of Kunjukutty Amma, the plaintiffs have relied on Ext.A2 death certificate issued to them from the Kaipamangalam Grama Panchayat on 1.11.2008. It is certified in Ext.A2 that Kunjukutty Amma died on 25.12.1957. Section 13(3) of the Registration of Births and Deaths Act, 1969 provides that any death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the First Class or a Presidency Magistrate after verifying the correctness of the death. It is seen that about 50 years after the death of Kunjukutty Amma, on 28.8.2008, the third plaintiff has applied before the Sub Divisional Magistrate, Thrissur seeking orders directing the concerned Registrar of Births and Deaths to register the death of Kunjukutty Amma and on the basis of the said application, Ext.A7 order was issued by the Sub Divisional Magistrate, Thrissur on 26.9.2008, directing the Kaipamangalam Grama Panchayat to register the death of Kunjukutty Amma. It is conceded that the death of Kunjukutty RSA 1452 of 2013 4 Amma has been registered only thereafter and Ext.A2 death certificate has been issued based on the said registration. Ext.B3 is a document executed in the family of Kunjukutty Amma on 7.2.1956, wherein, there is a recital to the effect that Kunjukutty Amma is no more. In the light of Ext.B3, the courts below took the view that the entry in the register of births and deaths maintained by the local authority is not a conclusive proof as to the correctness of the date of death entered in the register and consequently rejected the case set up by the plaintiffs based on Ext.A2 death certificate. 5. The learned counsel for the appellants, relying on the decisions of the Apex Court in **Rajindra Kumar v. Shri Chandra Narain Singh and others** [(1970)2 SCC 277] and **Harpal Singh v. State of Himachal Pradesh** (AIR 1981 SC 361), contended that an entry made by the Registrar of Births and Deaths in the register maintained by him as regards the death of a person is admissible in evidence as a relevant fact under Section 35 of the Indian Evidence Act. As such, according to the learned counsel, the courts below ought to RSA 1452 of 2013 5 have accepted the case set up by the plaintiffs based on Ext.A2 death certificate. True, an entry made by the Registrar, who is a public servant, in the register maintained by him as regards the death of a person, in his official duty is a relevant fact, but the relevancy is only the test of admissibility, for, Section 5 of the Evidence Act permits evidence to be let in only as regards existence or non-existence of the facts in issue and of such other facts as are declared to be relevant under the said Act. In **Birad Mal Singhvi v. Anand Purohit** (1988 Suppl. SCC 604), the Apex Court has held that an entry relating to the date of birth made in the school register is relevant and admissible under Section 35 of the Evidence Act, but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. In other words, merely for the reason that the birth register is proved, it does not mean that the contents of the document is proved. The relevant portion of the judgment of the Apex Court reads thus : “If the entry in the scholar's register regarding date of birth is RSA 1452 of 2013 6 made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents Exs.8, 9, 10, 11 and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs.8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue.” The view taken by the Apex Court in **Birad Mal Singhvi v. Anand Purohit** (supra) has been followed by the Apex Court in **Cidco v. Vasudha Gorakhnath Mandevlekar** (JT 2009(8) SC 495). In **Cidco v. Vasudha Gorakhnath Mandevlekar** (supra), it was clarified that the deaths and births register maintained by the statutory authorities raises only a presumption of correctness. The decisions of the Apex court in RSA 1452 of 2013 7 ## **Rajindra Kumar v. Shri Chandra Narain Singh and others** (supra) and **Harpal Singh v. State of Himachal Pradesh** (supra), in the circumstances, may not be of any benefit to the plaintiffs. 6. The learned counsel for the appellants further contended that since the death of Kunjukutty Amma was registered based on an order issued by the Sub Divisional Magistrate under Section 13(3) of the Registration of Births and Deaths Act, 1969, in the light of the provisions contained in the said Section that an order under the said Section shall be issued only after verifying the correctness of the death, the entry regarding the date of death in the register shall be reckoned as correct. The policy of law embodied in Section 13(3) of the Registration of Births and Deaths Act, 1969 is only to avoid manipulation in the entries relating to the date of births and deaths. As such, merely for the reason that an entry has been made pursuant to the direction of the Magistrate under Section 13(3) of the Registration of Births and Deaths Act, 1969, the same cannot be reckoned as conclusive as to the disputed date RSA 1452 of 2013 8 of death. As far as the present case is concerned, as noticed above, in Ext.B3 document executed on 7.2.1956, it is recited that Kunjukutty Amma is no more. The plaintiffs have no case that kunjukutty Amma referred to in Ext.B3 is not the Kunjukutty Amma referred to by them in the plaint. In the light of Ext.B3, it is not safe to rely on the entry in Ext.A2 death certificate to hold that the plaintiffs have established the date of death of Kunjukutty Amma as pleaded by them. In the said view of the matter, there is no merit in this second appeal and the same is, accordingly, dismissed. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)