15. Such entries may be in any public document, i.e. school register, voter list or family register prepared under the Rules and Regulations etc. in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram Hussain Vs. The State of U.P. & Ors., AIR 1964 SC 1625; and Santenu Mitra Vs. State of West Bengal AIR 1999 SC 1587.
16. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entry in School Register/School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.
17. For determining the age of a person, the best evidence is of his/her parents, if it is supported by un-impeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the un- impeachcable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, Government Hospital/Nursing Home etc, the entry in the school register is to be discarded. (Vide: Brij Mohan Singh Vs. Priya Brat Narain Sinha & Ors. AIR 1965 SC 282; Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC 1796; Vishnu Vs. State of Maharashtra (2006) 1 SCC 283; and Satpal Singh Vs. State of Haryana JT 2010 (7) SC 500).
18. If a person wants to rely on a particular date of birth and wants to press a document in service, he has to prove its authenticity in terms of Section 32(5) of the Evidence Act by examining the person having special means of knowledge, authenticity of date, time etc. mentioned therein. (Vide: Updesh Kumar & Ors. Vs. Prithvi Singh & Ors., (2001) 2 SCC 524; and State of Punjab Vs. Mohinder Singh, AIR 2005 SC 1868)."
Madhya Pradesh High Court
Rameshchandra & Ors. vs Kailash & Ors. on 14 September, 2017
2/ Undisputed facts are that the suit land was purchased by the respondent No.1 Kailashchandra from its earlier owner Jani Bai on 2.5.1978. Kailashchandra had entered into an agreement with the appellant on 30.5.1986 for sale of the suit land for consideration of Rs.24,480/- and had received part consideration amount and the possession was delivered to the appellant.
3/ The appellant had filed the suit for specific performance of the contract and permanent injunction pleading that the respondent had entered into the agreement with the appellant on 30.5.1986 for sale of the suit land for consideration of Rs.24,000/- and had received Rs.12,000/- at the time of execution of the agreement and had delivered the possession to the appellant. As per the agreement the appellant was to pay Rs.480/- till 16.11.1986 and remaining Rs.12,000/-on 29.5.1987 and on receipt of this amount the registered sale deed was to be executed in favour of the appellant. The appellant had paid the full consideration amount but the sale deed was not executed by the respondent No.1 on the ground that the mutation and Rin Pustika was not prepared and later on respondent No.1 had disputed the receipt of the consideration amount.
4/ The suit was opposed by the respondent No.1 admitting the execution of the agreement and also admitting that Rs.12,000/- was received by respondent No.1 and possession was delivered to the appellant but taking the plea that the appellant had not paid the balance consideration amount. A further plea was raised that on the date of execution of the agreement, respondent No.1 was minor and that the suit was barred by time.
5/ The trial Court had decreed the suit and had directed the respondent No.1 to execute the sale deed of the suit land in favour of the appellant within 2 months and further directed the respond No.1 not to interfere in possession of the appellant.
6/ The first appellate court has reversed the judgment of the trial Court on the ground that on the date of execution of the agreement, the respondent No.1 was minor, therefore, in view of Section 11 of the Contract Act the agreement was void ab initio.
7/ This court has admitted the appeal vide order dated 13.4.2003 on following substantial question of law:-
"Has the lower appellate court erred in basing his finding that Kailashchandra Patidar (R.1) was minor on the date of agreement i.e. on 30.5.1986 only on the basis of school certificate, without any specific evidence and without any definite proof of age and disregarding the fact that Kailashchandra Patidar (R.1) has appeared before the notary and got the document certified on 4.6.86 and thereafter had continued to accept consideration under the agreement."
8/ Having heard the learned counsel for the appellant and on perusal of the record, it is noticed that both the courts below have concurrently found that the agreement dated 30.5.1986 was executed by respondent No.1 in favour of the appellant. It has also been found that the appellant had paid part consideration amount at the time of execution of agreement and the possession of the suit property was delivered to him. The courts below have also found that subsequently the entire consideration amount was paid by the appellant and the Rin Pustika was also prepared in 1993-94 but even thereafter the respondent No.1 had not executed the sale deed. The plea of the respondent No.1 about the fabricatedentries and forged signature on the back side of the agreement relating to the receipt of the consideration amount, has not been proved. Even after recording the aforesaid finding, the first appellate court has reversed the decree of specific performance of the contract granted by the trial Court solely on the ground that on the date of execution of the agreement, the respondent No.1 was a minor. The first appellate court on the basis of the hand written certificate dated 10.7.1995 (Ex.D/2-A) issued by the Head Master of the school that as per the school record date of birth of the respondent No.1 was 2.6.1968, has held that as on 30.5.1986 the respondent No.1 was minor but while holding so the first appellate court had not considered the correct position in law in respect of acceptance of the date of birth mentioned in such a certificate without there being any other corroborative evidence. The Head Master of the school who had given the certificate, has not been examined nor any record of the school was produced, on the basis of which such a certificate was issued. The respondent No.1 has been examined as DW-1. In his statement also he has not disclosed his date of birth and has simply proved the certificate of the school as Ex.D/2. He has also not stated as to on whose information the date of birth of 30.5.1986 was recorded in the school. It is also not his case that on the statement of his parents such a date of birth was recorded. Even the record of the school has not been produced to show that such a date of birth was in fact recorded in the school register. Apart from producing Ex.D/2 and recording his own statement, no other material was produced by the respondent No.1 to prove his date of birth. The Supreme Court in the matter of Birad Mal Singhvi Vs. Anand Purohit reported in AIR 1988 SC 1796 has held that the date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of the information given by the parents or a person having special knowledge about the date of birth of the person concerned. It has been held in this case that :-
"14. .................................................. No evidence was produced by the respondent to prove that the aforesaid documents related to Hukmi Chand and Suraj Prakash Joshi who had filed nomination nation papers. Neither the admission form nor the examination form on the basis of which the aforesaid entries relating to the date of birth of Hukmi Chand and Suraj Prakash Joshi were recorded was produced before the High Court. No doubt, Exs. 8, 9, 10, 11 and 12 are relevant and admissible but these documents have no evidentiary value for purpose of proof of date of birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece of evidence is missing, because no evidence was placed before the Court to show on whose information the date of birth of Hukmi Chand and the date of birth of Suraj Prakash Joshi were recorded in the aforesaid document. As already stated neither of the parents of the two candidates nor any other person having special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents. Parents or near relations having special knowledge are the best person to depose about the date of birth of a person. If entry regarding date of birth in the scholars register is made on the information given by parents or some one having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved. The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made in the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents Exs. 8, 9, 10, 11 and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of HukmiChand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouch safe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts.
namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted.
15. The High Court held that in view of the entries contained in the Ex. 8, 9, 10, 11 and 12 proved by Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5, the date of birth of Hukmichand and Suraj Prakash Joshi was proved and on that assumption it held that the two candidates had attained more than 25 years of age on the date of their nomination. In our opinion the High Court committed serious error. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to 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. In Raja Janaki Nath Roy v. Jyotish Chandra Acharya Chowdhury, AIR 1941 CAL 41 a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the country, see Jagan Nath v. Moti Ram, AIR 1951 Punjab 377; Sakhi Ram v. Presiding Officer, Labour Court, North Bihar, Muzzafarpur & Ors., AIR 1966 Patna 459; Ghanchi Vora Samsuddish Isabhai v. State of Gujarat, AIR 1970 Gujarat 178 and Radha Kishan Tickoo v. Bhushan Lal Tickoo, AIR 1971 J&K 62. In addition to these decisions the High Courts of Allahabed, Bombay, Madras have considered the question of probative value of an entry regarding the date of birth made in the scholar's register or in school certificate in election cases. The Courts have consistently held that the date of birth mentioned in the scholars 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, see Jagdamba Prasad v. Sri Jagannath Prasad, (1969) 42 ELR 465 (ALL); K. Paramalali v. L.M. Alangaram, (1967) 31 ELR 401 and Krishna Rao Maharu Patil v. Onkar Narayan Wagh, (1958)14 ELR 386 (Bom).
16. In Brij Mohan Singh v. Priyu Brat Narain Sinha, [1965] 3 SCR 861 : (AIR 1965 SC 282) a question arose whether the returned candidate had attained the age of 35 years on the date of his nomination. The High Court had set aside the election of the returned candidate on the ground that he was below the age of 25 years on the date of filing the nomination. This Court set aside the order of the High Court and upheld the election of the returned candidate on the ground that the burden of proving that the returned candidate had not attained the age of 25 years on the date of his nomination was on the election petitioner and since he had failed to prove that, the election of the returned candidate could not be set aside. This Court held that an entry recorded in the birth register maintained by an illiterate Chowkidar by somebody else at his request, was not admissible and had no probative value withinSection 35 of the Indian Evidence Act. In Ram Murti v. State of Haryana, AIR 1970 SC 1029 the date of birth of a girl mentioned in the school certificate was not accepted. However in Mohd. Ikram Hussain v. State of U.P., AIR 1964 SC 1625 this Court accepted the date of birth of a girl as mentioned in the school certificate as the date of birth mentioned therein was supported by an affidavit filed by the father of the girl."
9/ In the subsequent judgment in the matter of Madan Mohan Singh and others Vs. Rajni Kant and Another reported in AIR 2010 SC 2933 the Hon'ble Supreme Court has considered all the earlier judgments and reiterated the same position in law by holding that:-
"14. Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma Vs. State of Bihar, AIR 1970 SC 326; Ram Murti Vs. State of Haryana AIR 1970 SC 1029; Dayaram & Ors. Vs. Dawalatshah & Anr. AIR 1971 SC 681; Harpal Singh & Anr. Vs. State of Himachal Pradesh AIR 1981 SC 361; Ravinder Singh Gorkhi Vs. State of U.P. (2006) 5 SCC 584; Babloo Pasi Vs. State of Jharkhand & Anr. (2008) 13 SCC 133; Desh Raj Vs. Bodh Raj AIR 2008 SC 632; and Ram Suresh Singh Vs. Prabhat Singh @Chhotu Singh & Anr.
(2009) 6 SCC 681. In these cases, it has been held that even if the entry was made in an official record by the concerned official in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases.
15. Such entries may be in any public document, i.e. school register, voter list or family register prepared under the Rules and Regulations etc. in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram Hussain Vs. The State of U.P. & Ors., AIR 1964 SC 1625; and Santenu Mitra Vs. State of West Bengal AIR 1999 SC 1587.
16. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entry in School Register/School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.
17. For determining the age of a person, the best evidence is of his/her parents, if it is supported by un-impeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the un- impeachcable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, Government Hospital/Nursing Home etc, the entry in the school register is to be discarded. (Vide: Brij Mohan Singh Vs. Priya Brat Narain Sinha & Ors. AIR 1965 SC 282; Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC 1796; Vishnu Vs. State of Maharashtra (2006) 1 SCC 283; and Satpal Singh Vs. State of Haryana JT 2010 (7) SC 500).
18. If a person wants to rely on a particular date of birth and wants to press a document in service, he has to prove its authenticity in terms of Section 32(5) of the Evidence Act by examining the person having special means of knowledge, authenticity of date, time etc. mentioned therein. (Vide: Updesh Kumar & Ors. Vs. Prithvi Singh & Ors., (2001) 2 SCC 524; and State of Punjab Vs. Mohinder Singh, AIR 2005 SC 1868)."
10/ That apart it is also noticed that even as per the date of birth 2.6.1968 as mentioned in Ex.D/2 when the agreement dated 30.5.1986 was executed the respondent No.1 was only 2 days short of completing the age of 18 years. The agreement was notarized on 2.6.1986 when the respondent No.1 even otherwise had completed 18 years. The Notary PW- 2 has stated that respondent No.1 had come to him for getting the agreement notarized and the agreement was entered by Notary in his register, in which the respondent No.1 had signed. The record further reveals that much prior to the agreement in question the respondent No.1 had purchased property from Jani Bai on 2.5.1978 vide Ex.P/2. In that sale deed the respondent No.1 is not shown to be minor.
11/ The aforesaid facts clearly establish that respondent No.1 had failed to discharge the onus of proving that he was minor on the date of execution of agreement.
12/ In view of the aforesaid, the finding of the court below that the respondent No.1 was minor on the date of execution of the agreement, cannot be sustained and is hereby set aside since it is a perverse and illegal finding. Since the agreement has duly been proved, the appellant has paid full consideration amount to the respondent No.1 and the possession has also been delivered to the appellant and without any justifiable reason the respondent No.1 has failed to execute the sale deed, therefore, the appellant is entitled to the decree for specific performance of the contract and protection of his possession till the sale deed is executed.
13/ Hence, appeal is allowed and the judgment of the first appellate court is set aside and judgment and decree passed by the trial Court is restored.
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