Chakravarthi Nainar vs Pushpavathi Ammal

Venkatasubba Rao, J.—After giving this matter my very careful consideration, I am satisfied that the decision of the learned Judge is correct,

that he has committed no error of law, and that I cannot interfere with his judgment in second appeal. He had a very difficult task to perform and I

think he performed it well.

One Marudappa died leaving a Will in favour of his mother, and the present suit has been filed by a reversionary heir attacking the Will. The

plaintiff''s case is that Marudappa was a minor at the date of his death and was thus not competent to make a Will. The question to be determined

is, therefore, whether Marudappa was a minor or a major at the time of his death. The learned District Judge has come to the conclusion that he

was a major, and I am asked to decide, whether his decision is vitiated by any error of law. I am satisfied that it is not.

Exhibit 2 which has been relied on by the District Judge establishes that Marudappa was born in the year 1900 and was thus a major at the date

of his death. As the learned Judge points out there can be no doubt that it is genuine, because Narayana Pillai, the Village Munsif of Vippedu, the

place where the testator was born, ia whose hand writing Ex, 2 is, died long ago, that is, in 1902, and it is impossible to suggest that the document

was fabricated for purposes of the suit. Even P.W. 2 admits that Ex. 2 is in the handwriting of Narayana Pillai. This exhibit purports to be a copy

of the Birth Register for 1900. The original Birth Register was not produced although the defendants took every possible step in order to cause its

production. The Karnam, P.W. 2, who produced the Birth Registers for several years as well, as a Death Register, says that he is unable to

produce the Birth Register for the year 1900, the year in question. The District Judge seems to suspect the bona fides of this witness. I agree with

him that strong suspicion attaches to the non-production of the original Birth Register for the year 1900. It is in these circumstances that the

defence had to rely upon Ex. 2 which purports to be a copy of that Birth Register.

The contention that was put forward for the plaintiffs in the lower Courts was that Marudappa in Ex. 2 is a mistake for Ammaiyappa, the elder

brother of Marudappa. In paragraph 6'' of his judgment the District Judge has shown the absurdity of this contention.

Now it is argued before me that Exs, 2 and 2-a were not admissible in evidence and it is said that objection was taken to these two documents

going in. It is denied by the defendants that any such objection was taken, On going through the judgment of the two lower Courts I am disposed

to agree that there was no objection raised to the filing of Exs. 2 and 2-a. It is no doubt true that a gentleman who conducted the case for the

plaintiff has filed an affidavit to say that objection was taken, but it must be remembered that this affidavit was sworn so long after the events to

which reference is made in it, and I am not in the least satisfied that it will be safe to act on the recollection of this gentleman. On a perusal of the

two judgments it is impossible to resist the conclusion that no objection was taken. The learned Subordinate Judge who has refused to act upon

Exs. 2 and 2 a for certain reasons has not said that there was any objection raised to their being filed. On the other hand, his mode of dealing with

those documents clearly shows that such an objection could not have been taken. Similarly the judgment of the District Judge leaves no doubt that

no such objection was taken before him either. It must also be noticed that the Subordinate Judge has noted several objections raised in regard to

other documents with his rulings thereon. It would be strange in these circumstances if he had failed to note this particular objection had it been

really put forward. The impression that. I have formed on a reading of these judgments is strengthened by the denial in the counter-affidavit filed on

behalf of the defendants. I may also remark that Mr. Govindaraghava Aiyar who appeared in the District Court says that to the best of his

recollection no objection was taken.

u/s 35 of the Evidence Act, on proper proof being given, Ex. 2 might become admissible. An entry in a record made by a public servant in the

discharge of his official duties is under that section admissible in evidence. If objection had been raised, it would have been open to the defendant

to show that there was a duty cast on the Village Munsif to make a copy such as Ex. 2. Again the statement in Ex. 2, that it is a true copy over the

signature of the Village Munsif, would be admissible in evidence u/s 32, provided it was shown that it was made in the ordinary course of business.

If these documents had been allowed to go in without objection, it would not have been necessary for the defence to make out that the conditions

mentioned in Sections 32 and 35 existed. The result of accepting the plaintiff''s contention would be to remand the case to allow the defendants to

give evidence. I fail to see why I should now take this step at this late stage. Ex. 2-a is a list of boys to be vaccinated. P.W. 2 admits that it is

necessary to prepare such a list. Some attempt has now been made to suggest that the last sheet of Ex. 2-a stands on a different footing from that

of the first sheet. This may be so ; but no point seems to have been made of this in the lower Court. Speaking for myself, I am disposed to attach

greater weight to Ex. 2 than to Ex. 2-a.

If the objection relating to the admissibility of these documents fails, there is nothing else that the appellant can urge. I cannot go into the

reasoning of the District Judge in second appeal, but I may say that, in my opinion, his reasoning is entirely sound. The plaintiff relies upon the

negative evidence furnished by Ex. G on the one hand and Exs. H, H-1, and H-2 on the other. This evidence is entitled, as the District Judge points

out, to very little weight. I am satisfied that the District Judge has drawn proper conclusions, and in any event, there is absolutely no ground for

interfering with his judgment in second appeal. It accordingly fails and is dismissed with costs.