IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 CRP.No. 1400 of 2002 SM.379/1977 OF TALUK LAND BOARD, ERNAD REVN. PETITIONER: ------------------ RARU, S/O. MAMUNNI, KOTTARATHIL HOUSE, KANNAMVETTIKAVU P.O., VIA PULIKKAL, MALAPPURAM DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI RESPONDENTS: ------------- 1. THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. TALUK LAND BOARD, ERNAD, MALAPPURAM DISTRICT. BY GOVERNMENT PLEADER SRI.S.DILEEP THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.M.P.NO.3542/2002 IN C.R.P.NO.1400/2002 DISMISSED 01/02/2008 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T.SANKARAN, J. -------------------------------------------- C.R.P. NO. 1400 OF 2002 H -------------------------------------------- Dated this the 1st February, 2008 O R D E R Proceedings under Section 85(7) of the Kerala Land Reforms Act were initiated against Kottarathil Mavunni. During the course of enquiry in the proceedings, Mavunni died in 1986. The draft statement was issued to the legal heirs of Mavunni. They filed objections. As per the draft statement, an extent of 43.70 acres of land equivalent to 18.37 standard acres was included in the account of the assessee. 2. The legal representatives of the assessee filed objections and additional objections. The Taluk Land Board considered those objections and disposed of the same as per the order impugned. It was held that the statutory family consists of eight members and that they could retain an extent of 20 ordinary acres. It was found that the statutory family is in possession of an extent of 9.90 acres as excess land. 3. It was contended that the properties held by Mavunni are joint family properties. The properties were acquired by Mavunni's grand father Karappan and Mavunni's father. The parties belong to Thiyya community following Hindu Mitakshara Law. A suit for partition was filed as O.S.No.15 of 1975, on the file of the Sub Court, Tirur, for partition of the joint family properties. The Taluk Land Board held that the properties C.R.P.NO.1400 OF 2002 :: 2 :: are joint family properties which were partitioned as per the decree in O.S.No.15 of 1975. The contention raised by the assessee in this regard was accepted by the Taluk Land Board. 4. Another contention raised was that Mavunni's children, namely, Raru and Vasu had attained majority as on 1.1.1970 and, therefore, their two-seventh shares in the family property has to be deleted from the account of the statutory family. The Taluk Land Board held that Vasu, son of Mavunni, had attained majority as on 1.1.1970. Accordingly, the Taluk Land Board held that one-seventh share of Vasu shall be deleted from the account of the assessee. 5. The contention that Raru had attained majority as on 1.1.1970 was not accepted by the Taluk Land Board. The only contention raised by the revision petitioner is that the Taluk Land Board was not justified in holding that the revision petitioner Raru was a minor as on 1.1.1970 and that the Board was not justified in including Raru in the statutory family. The revision petitioner contended that the petitioner is also entitled to one- seventh share in the family properties and that much extent is to be deleted from the account of the assessee. 6. The date of birth of the revision petitioner as per his Secondary C.R.P.NO.1400 OF 2002 :: 3 :: School Leaving Certificate is 1.3.1952. The revision petitioner produced his horoscope to establish that his actual date of birth is 28.12.1951 and not 1.3.1952. If his case that he was born on 28.12.1951 is accepted, the consequence would be his one-seventh share requires to be deleted from the account of the assessee. The Authorised Officer reported that as per the S.S.L.C. Book, the date of birth of the revision petitioner is 1.3.1952 and as per the horoscope, the date of birth is 28.12.1951. The Authorised Officer had also recorded the statement of the mother of the revision petitioner and also his paternal uncle. They stated in their depositions that entry in the School records was mistakenly made at the time of admission in the School and that the correct date of birth of the revision petitioner is the one shown in the horoscope. The horoscope was produced before the Taluk Land Board. It is a horoscope written on palmyra leaves. Before the Taluk Land Board, Velayudhan, younger brother of Mavunni (paternal uncle of the petitioner) was examined. He stated that the date of birth of the petitioner is 28.12.1951. He stated that the horoscope of the petitioner was prepared by Pulikkal Sankaranunni Panicker. He is no more. Velayudhan stated in his evidence that he met the astrologer and requested him to prepare the horoscope and got it back from the astrologer. He also stated that the revision petitioner was admitted in the school by his uncle and the date of birth was entered in School Admission Register by mistake. C.R.P.NO.1400 OF 2002 :: 4 :: 7. The Taluk Land Board referred to the decisions in 1988 (2) KLT Short Notes Case No.56, page 42 and Vishnu Maheswaran Nampoothiri v. Kuruvilla Kochitty Kuruvilla (1957 KLT 799). In 1988 (2) KLT Short Notes Case No.56 at page 42, it was held that an entry relating to 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. It was also held that the date of birth mentioned in the school register or Secondary School Leaving Certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined. In 1957 KLT 799 it was held that the date of birth entered in the official record is a relevant fact as contemplated by Section 35 of the Evidence Act and that the same can be proved by production of that record. The entries thus made in such official record by a public servant in discharge of his official duty has to be presumed to be correct in the absence of other reliable evidence to the contrary. It was also held that the horoscope by itself has very little evidentiary value and that the date of birth entered therein cannot be accepted as true and correct unless the person who prepared it or who caused it to be prepared is able to testify to the correctness of the date of birth as given in that document. It was also held that in fact, the C.R.P.NO.1400 OF 2002 :: 5 :: acceptance of the correctness of the date of birth as given in such a document entirely depends on the reliability of the evidence of the person who prepared the document or who caused it to be prepared. The Taluk Land Board rejected the evidence of Velayudhan, the paternal uncle of the revision petitioner, only on the ground that at the time of birth of the revision petitioner his father Mavunni was alive and, therefore, he would have been the person responsible for getting the horoscope prepared. The Taluk Land Board took the view that the father of the child would be more anxious and interested in getting the horoscope of his son prepared. The Taluk Land Board also found fault with the revision petitioner in not examining his uncle to prove that the date of birth was wrongly entered in the School records. 8. The Taluk Land Board also found fault with the revision petitioner in not producing the extract of the birth register to prove the correct date of birth. Another view taken by the Taluk Land Board to find against the petitioner is that the revision petitioner had ample opportunity to correct the date of birth in the S.S.L.C. Book and he has not so far availed that opportunity. On these reasonings, the Taluk Land Board rejected the contention raised by the petitioner. I am of the view that the Taluk Land Board was not justified, in the facts and circumstances of the case, in rejecting the contention of the petitioner that he had attained C.R.P.NO.1400 OF 2002 :: 6 :: majority as on 1.1.1970. The horoscope produced by the petitioner, when considered along with the evidence of his paternal uncle, would show that the correct date of birth of the petitioner is 28.12.1951. The only reason for the rejection of the evidence of the paternal uncle of the petitioner is that there was no reason why the paternal uncle should meet the astrologer instead of the father of the child. The social set up in Mitakshara joint families was not taken note of by the Taluk Land Board. In a joint family, the head of the family normally would not indulge in the day-to-day affairs of the family and those matters would be attended to by the younger members of the family. There was nothing wrong on the part of the paternal uncle of the petitioner in approaching the astrologer and giving the details for preparation of horoscope. It is also a well accepted social reality that in olden times, there was no strict adherence to the correct date of birth being entered in the School register and that the children would be taken to the School for admission by some younger members in the family or even by servants. The legitimate rights of the petitioner to hold the ancestral property cannot be denied on a hyper- technical approach. It is true that the SSLC Book contains the date of birth of the petitioner as 1.3.1952 which would indicate that the revision petitioner had attained majority on 1.3.1970. The state of affairs as on 1.1.1970 shall be taken into account for the purpose of ascertaining the ceiling area. If the date of birth as entered in the horoscope is taken as C.R.P.NO.1400 OF 2002 :: 7 :: the correct one, the revision petitioner would be a major as on 1.1.1970. I am of the view that the approach made by the Taluk Land Board has resulted in serious prejudice to the petitioner and that the questions of law were not correctly decided by the Taluk Land Board, which warrants interference by this Court in a Revision under Section 103 of the Kerala Land Reforms Act. 9. For the aforesaid reasons, the order impugned is set aside in so far as it relates to the finding that the revision petitioner was a minor as on 1.1.1970 and, therefore, he was to be included as a member of the statutory family. I hold that the revision petitioner had attained majority as on 1.1.1970 and, therefore, his one-seventh share in the joint family property is liable to be excluded from the ceiling account of Mavunni. The Taluk Land Board shall pass appropriate orders on the basis of this finding. The Civil Revision Petition is allowed only to the extent indicated above. No order as to costs. (K.T.SANKARAN) Judge ahz/ K.T.SANKARAN, J. ------------------------------------------- ------------------------------------------- C.R.P.NO. 1400 OF 2002 O R D E R 1st February, 2008 -------------------------------------------