Evidence Act, 1872: s.35 – Entry recording date of birth in school register – Suit for partition and separate possession of share in suit property based on claim that plaintiff was minor at the time of death of his father in 1963 and that he continued as a member of joint Hindu family – To prove that he was minor, plaintiff produced school leaving certificate – Trial court dismissed the suit accepting the case of defendant that in 1963, plaintiff demanded and wished to separate himself from the joint Hindu family and executed a release deed and severed all connections with joint Hindu family after receiving Rs.5000 for his share and relinquished all his rights in the family and started staying at his in- laws house – Trial court did not rely on the date of birth of plaintiff mentioned in the school leaving certificate as the same was not put by the head master of the school nor the head master was examined to prove the contents of the certificate – First appellate court upheld the order of trial court – High Court returned a finding that the plaintiff was minor and school leaving certificate was admissible as proof of age under s.35 of the Evidence Act and that since the plaintiff was minor on the date when the release deed was executed in 1963, therefore, such deed was null and void – On appeal, held: The plaintiff produced photocopy of the certificate on the records of appeal – Such certificate did not show that it was certified copy of a public document as contemplated by s.76 of the Act – The person who recorded the date of birth in the school register was also not examined – No official from the school nor any person proved the signatures of his father on such certificate – Apart from the selfserving statement, there was no evidence to show that the entry of the date of birth was made by the official in-charge, which alone would make it admissible as evidence under s.35 of the Evidence Act – The fact that plaintiff left village and stayed in the house of his father-in-law was admitted by him when he appeared as PW- 1 – The onus was on the plaintiff to prove that he was a minor at the time of execution of release deed which he failed to prove and, therefore, his suit was rightly dismissed by the trial court and the first appellate court – High Court committed a grave error in interfering in the second appeal by merely taking a different view on the basis of same evidence on the basis of which both the trial court as well as first appellate court held that plaintiff has failed to prove his date of birth – Code of Civil Procedure, 1908 – s.100. Evidence Act, 1872: s.76 – Public document – Held: s.76 of the Act gives a right to any person to demand a copy of a public document on payment of a fee together with the certificate written at the foot of such copy that it is a true copy of such document – Certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
Code of Civil Procedure, 1908: s.100 – Second appeal, scope of interference – When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached.
Allowing the appeal, the Court
HELD: 1. The public document in terms of Section 74 of the Evidence Act, 1872 includes the documents forming records of official bodies or tribunals. Section 76 of the said Act gives a right to any person to demand a copy of a public document on payment of a fee together with the certificate written at the foot of such copy that it is a true copy of such document. Certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. The plaintiff has produced photocopy of the Certificate on the records of this appeal. Such Certificate does not show that it is said to be a certified copy of a public document as contemplated by Section 76 of the said Act. [Para 14] [636-A-C]
2. School Leaving Certificate has been produced by the plaintiff and said to be signed by his father. The person who has recorded the date of birth in the School Register or the person who proves the signature of his father in the School Transfer Certificate has not been examined. No official from the School nor any person has proved the signatures of his father on such certificate. Apart from the self-serving statement, there is no evidence to show that the entry of the date of birth was made by the official in-charge, which alone would make it admissible as evidence under Section 35 of the Indian Evidence Act, 1872. However, the High Court has not found any other evidence to prove the truthfulness of the Certificate (Ex.P/1). [Para 15][636D-E]
3. The High Court gravely erred in law in interfering in the findings of fact recorded by the First Appellate Court. The plaintiff has not challenged the release deed dated 15th June, 1963 in the plaint on the ground that he was minor on the date of execution nor has he challenged on the ground of fraud, coercion or undue influence in execution of the said document. He has not pleaded so as is required to be pleaded in terms of Order VI Rule 4 Code of Civil Procedure, 1908. The only pleading raised by the plaintiff is that he was a minor at the time of death of his father in 1963. He has not disclosed the date of death of his father in the plaint. The averment in the plaint is that his signatures have been obtained on certain documents but he does not know the contents thereof. There is a categorical plea in the written statement that the release deed was voluntarily executed and he walked away from the family and stayed in the village of his father-in-law. The fact that he left village and stayed in the house of his father-in-law is admitted by him when he appeared as PW-1. [Paras 20, 21][639B-D]
4. The plaintiff has taken benefit of consideration of Rs.5,000/- in pursuance of the release deed executed on 15 th June, 1963. He has not challenged such release deed in the suit filed but asserted to be member of joint Hindu family though as per his own evidence, he left joint family and started living in the Village of his father-in-law. Thereafter, on the basis of the release deed, the other members of the family have transferred some of the property in favour of the other defendants; therefore, the suit could not have been decreed when the two registered documents are not disputed by the plaintiff when confronted with such document in the cross-examination. [Para 22][639-E-F]
5. The onus was on the plaintiff to prove that he was a minor at the time of execution of release deed. He failed to prove his date of birth as 8th April 1946, therefore, his suit is to be dismissed and was rightly dismissed by the trial court and the First Appellate Court. The High Court in Second Appeal could not reappreciate the evidence to take a different view that such document is proved. The illegality on account of alleged improper consideration does not give rise to a substantial question of law. [Para 23][639-G-H; 640-A]
6. The plaintiff has admitted the release deed and the marriage deed dated 15 th June, 1963 and 29 th June, 1964 respectively having been executed by him when confronted with in his cross examination. Both the documents are registered documents. On the basis of admission, both courts have returned a finding of fact that the plaintiff has not been able to prove date of birth as 8th April, 1946. The High Court committed a grave error in interfering in the second appeal by merely taking a different view on the basis of same evidence on the basis of which both the trial court as well as First Appellate Court held the plaintiff has failed to prove his date of birth as 8th April 1946. The findings of fact cannot be interfered with in a second appeal unless, the findings are perverse. The High Court could not have interfered with the findings of the fact. [Paras 24, 30][640-B-C; 643-E] Karnataka Board of Wakf v. Anjuman-E-Ismail MadrisUn-Niswan (1999) 6 SCC 343; Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors. (1999) 3 SCC
722 : [1999] 2 SCR 728; Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 : [2001] 1 SCR 948; State of Rajasthan v. Shiv Dayal (2019) 8 SCC 637 – relied on Wali Singh v. Sohan Singh AIR 1954 SC 263;
Madhegowda (Dead) by LRs v. Ankegowda (Dead) by LRs & Ors. (2002) 1 SCC 178 : [2001] 5 Suppl. SCR
290 – held inapplicable.
Birad Mal Singhvi v. Anand Purohit (1988) Supp. SCC
604 : [1988] Suppl. SCR 1; Nawab Sadiq Ali Khan & Ors. v. Jai Kishori & Ors. AIR 1928 Privy Council 152; Madan Mohan Singh & Ors. v. Rajni Kant & Anr. (2010)
9 SCC 209 : [2010] 10 SCR 30; Ram Suresh Singh v. Prabhat Singh & Anr. (2009) 6 SCC 681 : [2009] 7 SCR 451 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.