IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 RSA.No. 270 of 2004(F) ---------------------- AS.26/1991 of PRINCIPAL SUB COURT,ATTINGAL OS.123/1985 of MUNSIFF COURT,ATTINGAL .................... APPELLANTS/RESPONDENTS 1 & 2 IN AS/DEFENDANTS ----------------------------------------------------------------- 1. CHINNAN NEETHIPALAN, VALIYAVILAKATHU VEEDU, NEDUMPARAMBU, NAGAROOR DESOM, NAGAROOR VILLAGE. 2. KRISHNAN SARASWATHY, VALIYAVILAKATHU VEEDU, NEDUMPARAMBU, NAGAROOR DESOM, NAGAROOR VILLAGE. BY ADV. SRI.P.PARAMESWARAN NAIR RESPONDENT(S): APPELLANT & 3RD RESPONDENT IN AS/PLAINTIFF&3RD DEF ----------------------------------------------------------------- 1. SOMAN RAJU, VALIYAVILAKATHU VEEDU, NANTHAIVANAM, NAGAROOR DESOM, NAGAROOR VILLAGE. 2. RAMAN KAMALAMMA, VALIYAVILAKATHU VEEDU, NANTHAIVANAM, NAGAROOR DESOM, NAGAROOR VILLAGE. ADV. SRI.SAJAN VARGHEESE K. FOR R1 SRI.LIJU. M.P FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/06/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA NO. 270 OF 2004 ............................................ DATED THIS THE 13th DAY OF JUNE, 2011 JUDGMENT Defendants 1 and 2 in O.S.123 of 1985 on the file of Munsiff Court, Attingal are the appellants. First respondent is the plaintiff and second respondent, his mother, the third defendant in the suit. First respondent instituted the suit to set aside Ext.A1 sale deed executed by the second respondent in favour of appellants and for recovery of possession of the plaint schedule property. Plaint schedule property admittedly originally belonged to Pappu pennu. On her death, it devolved on her children second respondent and her sister Thankamma. It is not disputed that Pappu pennu, the second respondent and Thankamma are members of a Marumakkathayam thavazhy. Subsequent to the death of Pappu pennu, the properties were divided between second respondent and Thankamma under an oral partition. The plaint schedule property thus came to vest with second respondent. Second respondent under Ext.A1 registered sale deed assigned the property in favour of appellants on 9.2.1967 RSA 270/2004 2 ( not 1957 as shown in the Appendix to the judgment of the trial court). First respondent instituted the suit contending that though on the death of Pappu pennu, the grand mother, the property devolved on her children, being a member of the thavazhi of the second respondent, by birth he has a right and under Ext.A1, second respondent mother alienated the property after his birth and therefore the document is not binding on him and hence Ext.A1 sale deed is liable to be set aside and he is entitled to get recovery of possession. 2. Appellants resisted the suit contending that first respondent has no right in the property. The property belonged absolutely to second respondent and for valid consideration she sold the property to the appellants and first respondent was not born at that time and therefore he had no right in the property. 3. Learned Munsiff, on the evidence dismissed the suit holding that first respondent did not establish that he was born on 30.5.1966 as alleged and though a photocopy of the driving license was produced, it was not proved and though copy of an admission register was produced, it was also not proved and hence first respondent is not entitled to the decree sought for. RSA 270/2004 3 First respondent challenged the judgment before Sub Court, Attingal in A.S.26 of 1999. Learned Sub Judge, on reappreciation of the evidence found that the extract of the admission register issued from the school and produced by the first respondent is a public document and learned Munsiff should have admitted it in evidence. As it was not admitted, first appellate court received it and marked Ext.A3 and relied on the entry in the admission register extract and found that first respondent was born prior to the execution of Ext.A1 sale deed. Learned Sub Judge also found that as first respondent was born prior to the alienation of the property by the mother, it is not binding on him and therefore held that first respondent has half right in the property and passed the following decree:- “The suit is decreed finding that plaintiff is co- owner of the plaint schedule property and Ext.A1 does not affect his half right over the plaint schedule property. Plaintiff is allowed to take separate possession of his share restricted as the northern one half portion of the entire plaint schedule property from the possession of defendants 1 and 2”. RSA 270/2004 4 The judgment is challenged in the second appeal. 4. The second appeal was admitted formulating the following substantial question of law:- “Whether the lower appellate court was justified in accepting the extract of the school admission register in proof of the age of the plaintiff, without proper proof of the same and to decree the suit holding that the suit property is tharawad property in the hands of plaintiff's mother ?” 5. Learned counsel appearing for appellant and respondent were heard. 6. Plaint schedule property admittedly originally belonged to Pappu Pennu. Second respondent and Thankamma are her children. On the death of Pappu Pennu it devolved on second respondent and Thankamma. They are admittedly governed by marumakkathayam law. Hence the daughters will take it as for and on behalf of their thavazhi. If second respondent was having any child on the date of inheritance, the inheritance could only be by second respondent and her child. Even if there was no child RSA 270/2004 5 born at that time, the moment a child is born, he/she would be a member of the thavazhi and would inherit a right equal to that of the mother. Therefore, if appellant was born to the second respondent before execution of Ext.A1 sale deed, the sale will not affect the right of first respondent as rightly found by first appellate court. But even in that event the decree granted by the first appellate court cannot be upheld for several reasons. First of all, when the suit is for recovery of possession of the plaint schedule property, even if it is found that Ext.A1 sale deed will not affect the right of first respondent, the son of the assignor under Ext.A1 and thereby he is a co-owner along with the assignees under Ext.A1, first appellate court is incompetent to grant a decree for recovery of possession holding that first respondent is entitled to the northern half. Even if first respondent is a co-owner, his right cannot be restricted to either the north or south of the undivided property, unless the property is divided. Unfortunately, first appellate court directed division of the plaint schedule property into two and allotment of the northern half to first respondent, without considering whether such division is equitable, which is impermissible. At best a RSA 270/2004 6 preliminary decree for partition could have been passed, if first respondent is entitled to one half share. 7. Though learned Munsiff found that there is no evidence to prove that first respondent was born before the execution of Ext.A1 sale deed, first appellate court relied on a document by marking it as Ext.A3, though index of the judgment does not show it as an additional evidence. That document was produced before the trial court along with I.A.1889 of 1988 after closing the evidence of the plaintiff without an application to reopen the evidence and that too without an affidavit supporting the application. The learned Munsiff did not receive the document on evidence and judgment shows that learned Munsiff did not receive it as it was not proved. 8. Appeal memorandum of the first appeal shows that dismissal of I.A.1889/1988 was not taken as a ground to challenge the judgment. So also no application was filed before the first appellate court to receive the said document as additional evidence under Rule 27 of Order XLI of Code of Civil Procedure in spite of the dismissal of I.A.1889/1988 by the trial court. First appellate court received it as additional evidence RSA 270/2004 7 exercising the power under clause (a) Rule 27 of Order XLI of Code of Civil Procedure. But perusal of I.A.1889/1988 shows that it was filed without an affidavit and without any explanation for the non production of the document before the evidence was recoded. The suit was disposed by the learned Munsiff on 30/5/2000. Before Rule 1 and 2 of Order XIII of Code of Civil Procedure was amended by CPC Amendment Act 46/1999 which came into force with effect only from 1/7/2002 Rule 2 of Order XIII provided that no documentary evidence in the possession or power of any party, which should have been, but has not been produced in accordance with the requirement of Rule 1 shall be received at any subsequent stage of the proceedings, unless good cause is shown to the satisfaction of the court receiving any such evidence shall record the reasons for so doing. Hence when the document was not produced as provided under Rule 1 and was produced not only after settlement of the issues but after his evidence was filed, he should have filed the application to receive it as evidence explaining the reason why it was not produced earlier. Moreover, if it is to be received the court is bound to record the reasons for receiving the document as evidence. Under RSA 270/2004 8 Civil Rules of Practice a petition, unless it is a verified petition as provided under Rule 120, shall be filed along with an affidavit. I.A.1889/1988 was not a verified petition. It is not accompanied by an affidavit. Therefore, in law the Munsiff could not have recorded it in evidence. Learned Munsiff did not receive the document. Munsiff cannot be find fault for the same, especially when the document was thrust subsequent to the closing of the evidence of the plaintiff, without an application to receive the same and without explaining the reasons for its non production earlier. Unfortunately, first appellate court did not verify this aspect and solely for the reason that it is a public document received it as an additional evidence, ignoring the fact that dismissal of the application was not challenged in the memorandum of appeal and no application was filed to receive it as additional evidence under clause (a) of Rule 27 of Order XLI of Code of Civil Procedure. In such circumstances, first appellate court was not justified in receiving the additional evidence and that too without formal proof with regard to the correctness of the entry shown therein. The learned Sub Judge was therefore, not correct in receiving the additional evidence and then deciding RSA 270/2004 9 the first appeal based on the additional evidence. 9. Though certified copy of admission register extract of a Government school is admissible in evidence, the question is whether the correctness of the entry therein could be presumed without proof. First appellate court relied on the entry and found that first respondent was born on 30.5.1966. Though a photocopy of the driving licence, which shows the same date of birth, was produced before the trial court, it was not relied on as it was a photocopy. As declared by the Honourable Supreme Court in Birad Mal Singhvi v. Anand Purohit (1988(Supp) SCC 604) courts have consistently held that the date of birth mentioned in the school register or secondary school 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, (Jagdamba Prasad v. Jagannath Prasad (42 ELR 465 ), K.Paramalali v. I.M.Alangam (31 ELR 401 ) Krishna Rao Maharu Patil v. Onkar Narayan Wagh. (14 ELR 386 ) In the light of the law based on the entry regarding the date of birth in the admission register extract marked as additional evidence, it cannot be found that first respondent was born on 30.5.1966, RSA 270/2004 10 prior to the alienation of the property by the mother. 10. The whole dispute could be settled only on the proof of the date of birth of the first respondent. Though first respondent contended that he was born on 30.5.1966, case of the appellants was that he was born subsequent to the execution of the sale deed by the mother, though not even the year of birth was disclosed. Whatever it be, on the facts and circumstances of the case, I find that an opportunity is to be granted to the first respondent, to prove the relevant entry in the admission extract by examining the mother or the person who had given the information, based on which the entry in the original school register was recorded. 11. The appeal is allowed in part. The judgment of the first appellate court in A.S.26/1991 is set aside. O.S. No. 123/1985 on the file of Munsiff Court, Attingal is remanded to the learned Munsiff for fresh disposal. Learned Munsiff is directed to grant opportunity to the first respondent to prove the relevant entry in the admission register extract produced as per I.A.1889 of 1988 and marked by the first appellate court as Ext.A3. It is made clear that the first respondent shall get ready with the evidence RSA 270/2004 11 and shall not protract the trial. If necessary parties are entitled to adduce further evidence. Parties are directed to appear before Munsiff Court, Attingal on 19.7.2011. M.SASIDHARAN NAMBIAR JUDGE lgk/uj/tpl/- RSA 270/2004 12 M.SASIDHARAN NAMBIAR, J. --------------------- RSA NO.270/2004 --------------------- JUDGMENT 13TH JUNE, 2011