IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA 184 of 1997. Date of decision August 26, 2008. Sukh Dei and another ….Appellants. Versus Subhdha ….Respondent. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the appellants Mr. K.D.Sood, with S/Sh. B.K.Sood and Sanjeev Sood, Advocates. For the respondent Mr. Bhupinder Gupta, Sr. Advocate, with Mr. Neeraj Gupta, Advocate. Dev Darshan Sud, J. (Oral). Plaintiffs Sukh Dei and Gopal Singh, (who was a minor at the time when the suit was filed), have filed this appeal against the judgment of reversal passed by the learned Additional District Judge, setting aside the judgment and decree of the learned Senior Sub Judge, Kullu, granting declaration and consequential relief of injunction 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - for the suit land as described in the plaint. They claimed ownership on the basis that they were the legal heirs of deceased Room Singh, son of late Mani Singh, who was the plaintiff and claimed inheritance to the estate of deceased Kesar Singh. The suit was resisted by the defendant on a number of grounds. She pleaded that Mani Singh was married to Ganga Devi, who is her mother and she was born from this wedlock. She pleaded that one Smt. Sita Devi, widow of Budhi Singh is the mother of the plaintiff and though he was born to her from the loins of Mani Singh, but Smt. Sita Devi was not the legally wedded wife of Mani Singh and the plaintiff is his illegitimate son. She claimed to be the sole heir of late Mani Singh and entitled to inherit the estate exclusively. It is unfortunate that the defendant seeks to set up a case where in one stroke she claims declaration of illegitimacy of the birth of the plaintiff Gopal Singh and impeaches Sukh Dei’s character and claims exclusive inheritance to the estate of Mani Singh. This case reveals an unfortunate tendency of exclusive claim(s) of inheritance driving litigants to any extent to exclude their so called rivals even if it be at the - 3 - cost of questioning the legitimacy of the progeny of the deceased and his conjugal relationship. Three issues were settled by the learned trial Court. The first and second issues related to the fact as to whether plaintiff Room Singh was the sole and exclusive heir of deceased Kesar Singh and whether he had inherited the suit property. On consideration of the evidence on record, the Court held that the defendant had not been able to place on record any evidence to show her exclusive claim to the property by virtue of her birth in the family of the deceased whose estate was the subject matter of the suit. The suit was accordingly decreed. The learned District Judge has reversed the judgment in appeal. This appeal was admitted by this Court on 13.8.1997 on the following substantial questions of law: 1. Whether the District Judge has erred in law in reversing the judgment of the trial court by relying upon inadmissible oral and documentary evidence and holding that the defendant - 4 - was entitled to inherit the estate of Kesar Singh? 2. Whether in the facts and circumstances of the case, when Kesar Singh had died issueless, and the relationship of the plaintiff with Kesar Singh having been admitted, and the defendant has failed to prove herself to be the sister of Kesar Singh, the plaintiff was entitled to a decree for declaration and injunction? 3. Whether in view of the fact that the custom required a deed in writing of marriage and divorce, which had not been produced in this case and the plaintiff being in exclusive possession of the property was entitled to decree for declaration and injunction? 4. Whether in view of the fact that Room Singh was inducted as tenant by Kesar Singh, the plaintiff was entitled to decree for injunction? Questions 1 to 3 - 5 - Taking questions 1 to 3 first for decision, learned counsel submits that reliance placed by the learned District Judge on the oral and documentary evidence was not correct as these documents were neither admissible in evidence nor proved in accordance with law. Learned counsel appearing for the plaintiff- appellant submits that Ex.D-1 which is the birth certificate placed on record showing the birth of Shri Mani Singh, predecessor in interest of the plaintiff corresponding to the year 1910-12 did not prove that it in fact related to the father of the defendant. Similarly, Ex.D-2 mutation No. 4079 in which Room Singh had admitted before the Assistant Collector, IInd Grade, that the respondent was the daughter of Mani Singh and is his sister, does not establish this fact. Similar objections have been taken with respect to Ex. D-3 pedigree table which purportedly tries to establish the parentage and descent of Mani Singh. Learned counsel have addressed extensive arguments relating to admissibility of oral as well as documentary evidence with - 6 - reference to Sections 35 and 79 of the Indian Evidence Act. Learned counsel for the appellants has urged that these documents even though they may be public documents are not perse admissible and have to be admitted through a witness. In this case they have been simply tendered in evidence by the counsel for the defendant-respondent during the trial, without, in any manner correlating them with identity of the person(s). He submits that merely tendering documents in evidence does not constitute proof of the facts stated therein as it has not been proved on record that the certified copy is substantially in the form required by law and executed in the manner provided by the statute / rules in that behalf. Sections 35 and 79 of the Indian Evidence Act provide: “35. Relevancy of entry in public (record or an electronic record) made in performance of duty.- An entry in any public or other official book, register, or (record or electronic record), stating a fact in issue or relevant fact, and made by a - 7 - public servant in the discharge of his official duty, or by any other person in performance of duty specially enjoined by the law of the country in which such book, register, or (record or an electronic record) is kept, is itself a relevant fact.” “79. Presumption as to genuineness of certified copies.- The Court shall presume (to be genuine] every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any [of the Central Government, or of a State Government, or by any officer (in the State of Jammu and Kashmir] who is duly authorized thereto by the Central Government] : Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom - 8 - any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper.” Reliance was placed by the learned counsel for the respondents on Madamanchi Ramappa and another v. Muthaluru Bojjappa , AIR 1963 SC 1633, holding: “(9) ..the respondent moved the High Court under S. 100 C. P. C., and his appeal was heard by Sanjeeva Rao Nayudu, J. The learned Judge emphasized the fact that no sale-deed had been produced by the appellants to prove their title, and then examined the documentary evidence on which they relied. He was inclined to hold that Ext. A-8 had not been proved at all and could not therefore, be received in evidence. It has been fairly conceded by Mr. Sastri for the respondent before us that this was plainly erroneous in law. The document in question being a Certified copy of a public document need - 9 - not have been proved by calling a witness. Besides, no objection had been raised about the mode of proof either in the trial Court or in the District Court….” He also referred to the decision in Biswambhar Singh and others v. State of Orissa and another , AIR 1954 SC 139, holding: “12. A question has been raised that the original Ekrarnama of 1879 has not been filed and as no evidence was led to explain the reason for its non production, secondary evidence of its contents is inadmissible. We see no force in this belated contention. The Rubakari and the other documents referred to above were filed without any objection as to their admissibility on the ground that they are merely secondary evidence of the contents of the Ekrarnama. Indeed, in the matter of production and proof of documents the parties undoubtedly proceeded a little informally….” Based on these two judgments, learned counsel contends that all three documents being public documents were not only relevant but - 10 - perse admissible in evidence in proof of the facts they stated and did not require any formal proof through any witness. Learned counsel appearing for the defendants has relied upon the decision of the High Court of Punjab and Haryana in Sarwan Singh and another v. Ashok Kumar and others, AIR 1983 Punjab and Haryana 366, holding that mere production of a copy of birth entry does not as a matter of law or fact connect it with the person claiming the birth entry as his own. The Court was interpreting the provisions of Sections 35, 77 and Section 114 (g) of the Indian Evidence Act. He also places reliance on the decision in Chitru Devi v. Smt. Ram Dei and others , AIR 2002 HP 59 holding that entry in birth and death register though admissible, but unless the plaintiff shows as to how this document came into his possession is not admissible in evidence. One of the other judgments referred to is Sitaram v. Ram Charan and others, AIR 1995 Madhya Pradesh 134 holding that revenue entries without proof that they were made in accordance with the manner - 11 - prescribed in the rules and a copy issued accordingly would not perse constitute proof of the facts stated therein. At this juncture, the judgment Bhinka and others v. Charan Singh , AIR 1959 SC 960 may be noticed. The Court, while interpreting the provisions of Section 79 of the Indian Evidence Act, held: “7. The first point, in the manner presented before us, does not appear to have been raised in any of the three courts. Section 79 of the Evidence Act reads: ` The court shall presume to be genuine every document purporting to be a certificate. . . . . . . . . . which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer -of the central government or of a State government. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Provided that such document is substantially in the form and purports to be executed in the manner directed by law in - 12 - that behalf. The court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper `. Under this section a court is bound to draw the presumption that a certified copy of a document is genuine and also that the officer signed it in the official character which he claimed in the said document. But such a presumption is permissible only if the certified copy is substantially in the form and purported to be executed in the manner provided by law in that behalf. Section 4 of the Evidence Act indicates the limits of such a presumption. The relevant part of that section reads: “Whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved”. To put it differently, if a certified copy was executed substantially in the form and in the manner provided by law, the - 13 - court raises a rebuttable presumption in regard to its genuineness. The khatauni of 1355 fasli with which we are concerned, gives the relevant details and purports to have been signed by Ahmed Ali, the patwari of the village. It cannot be disputed that the patwari was an officer appointed by the State government and that he was authorized to issue certified copies of the record of rights. The U. P. Land Records Manual gives the rules prescribing the form and the manner in which a certified copy of the record of rights should be issued. Paragraph 26 of the Manual confers upon him the power to give to the applicants certified copies from his record; and under cl. “(d) of the said paragraph he should enter in his diary a note of such extracts. He should also note the amount of fee realised by him in the diary as well as on the extract. In this case neither the diary was produced to prove that the procedure prescribed was followed nor the - 14 - extract to disclose that the officer made any note of payment. It cannot, therefore, be said that the certified copy was issued by the patwari in substantial compliance with the provisions of law governing such issue. If so, it follows that the court is not bound to draw the presumption in regard to its genuineness.” Lastly the decision in Bami Bewa v. Krushna Chandra Swain @ Gochhayat and others, AIR 2004 Orissa 14, holds that entries in public record are to be considered subject to relevancy and by assessing as a whole and not in isolation. It is no doubt true that public record is perse admissible in evidence. It is also not in dispute that these documents are relevant. However, on the wider proposition that the documents be accepted as proof of a particular fact without anything more, cannot be accepted in view of the fact that the entry made in the record has to be proved as being connected with the person who places reliance on it for the proof of a particular fact and - 15 - the proof of the pre-requisites as laid down in Bhinka’s case supra. One other fact needs to be noticed that in the present case mutations are being relied upon as proof of title and of the other facts stated therein. This is not a satisfactory way of proving one’s exclusive title. It is well settled by now that mutation entries do not confer any title. (See Sawarni v. Inder Kaur, AIR 1996 SC 2823, Durga Dass v. Collector, AIR 1996 SC 2786, Balwant Singh v. Daulat Singh, AIR 1997 SC 2719, Vishal Singh v. State of M.P., AIR 1998 SC 308, Pakhar Singh Atwal v. State of Punjab, AIR 1995 SC 2185, Baleshwar Tiwari v. Sheo Jatan Tiwary, AIR 1997 SC 2089 and Vishnu Sharan v. Ajuddhibai, AIR 2004 MP 252). Precedent on the point need not be multiplied. On the Certificate Ex.D-1 all that need be said is that it only proves the birth of a child and nothing more. On the other documents relied upon by the learned appellate Court all the caution of the Supreme Court in Bhinka’s case supra has not been followed at - 16 - all, but the provisions of law have been applied without in any manner considering the fact as to whether the documents were prepared etc. in the manner provided by law. The learned District Judge was clearly wrong in basing his judgment exclusively on the facts as stated in the three documents referred to above. Having said that, one other aspect needs to be considered and that is it is not mrely on the principle of law advanced that a decision has to be rendered. It is the conduct of the parties which is also to be evaluated. The evidence of DW-2 Tek Singh, who was the chowkidar of the village and who has stated on oath that the plaintiff Room Singh had admitted in his presence at the time when the mutation Ex.D-2 was sanctioned that the defendant is his sister and daughter of Mani Singh has remained unrebutted. In all fairness, it may also be stated that the counsel appearing for the defendant has stated at the bar that the defendant respondent has given up her claim to inherit the land exclusively as pleaded by her - 17 - in her written statement and stated on oath while appearing in the witness box, she said that she would be satisfied with mutation Ex.D- 2. The appellate Court holds that in these circumstances, both the parties are entitled to inherit the land in equal shares. The learned District Judge holds: “ ..Since the learned counsel representing to the appellant/defendant has stated at the Bar that the defendant has given up her claim to inherit the entire suit land exclusively as pleaded by her in the written statement and stated while stepping in the witness box and further that she is satisfied with the mutation of inheritance Ex.D-2, sanctioned on 30.4.93, therefore, in view of such submissions, the defendant and plaintiff both are entitled to inherit the suit land in equal share. The factum of the defendant having satisfied with the mutation is also apparent from her conduct as she has not challenged the mutation Ex.D-2 save and except - 18 - mild objection taken in her written statement.” I hold that despite the fact that exclusive reliance could not be placed on Exts. D-1, D-2 and D-3, the appellant is not entitled to any relief as evidence of DW-2 Tek Singh conclusively establishes on record that the deceased Room Singh had admitted the defendant – respondent to be her sister at the time of the mutation proceedings. The principle of estoppel would clearly be attracted in this case. In the facts and circumstances of the case, both the parties that is the appellants and the respondent would be entitled to share the suit property in equal shares. Question No. 4 In view of what I have held above, this question does not survive for determination. This appeal is accordingly disposed of with the direction that the parties to this appeal are entitled to inherit the estate of the deceased in equal shares. There shall be no order as to costs. Pending application(s) shall stand disposed of. August 26, 2008 (PC). (Dev Darshan Sud), J.