Admissibility of evidence under Section 35 of the Evidence Act and the implications of notional partition on the widow's share in the property.

K. Sreedhar Rao, J.--The appeal filled against the judgment and decree of the I Additional Civil Judge, Senior Division, Bijapur in O.S. No. 208/1995. The Appellants are the defendants in the suit. The Respondents-Plaintiffs filed the suit for partition and separate possession of the suit properties claiming to be the joint family properties and belonging to the husband of the first defendant. The second defendant is the daughter of the first defendant. The Plaintiffs are the nephews. According to Plaintiffs one Shankarappa who is the propositus had two sons by name Gurulingappa and Sharanappa. The first Plaintiff is the wife of Sharanappa who died in the year 1951 and the second Plaintiff is born in the wedlock between Sharanappa and the first Plaintiff. Shankarappa the propositus died in the year 1962 leaving behind his son Gurulingappa. The defendants 1 to 4 are the children of Gurulingappa who died in the year 1986. It is the contention of the Plaintiffs that the properties are the joint family properties and that the Plaintiffs are entitled to half share in the suit property. The defendants have disputed the relationship of Plaintiff as the wife of Sharanappa and the relationship of second Plaintiff Gangabai as daughter of Sharanappa.

2. Before the trial Court, the Plaintiffs have produced the documentary evidence like the school records of the second Plaintiff to show that Sharanappa is her father. The mutation entry in the land revenue records of the year 1962 is produced as Ex.P.17. The contents of the mutation entry discloses that Shankarappa had two sons by name Gurulingappa and Sharanappa and Gurulingappa pre deceased Sharanappa, the husband of the first Plaintiff Bangarewwa. Thereafter Gurulingappa is said to be the manager of the joint family property and accordingly mutation entries were carried out. Later on an addition is also made to clarify that both Gurulingappa and Bangarewwa have equal half share in the properties. The said mutation entry also mentions that notices to the parties was issued before the mutation entry is carried out. In addition to the documentary evidence, the oral evidence of independent witnesses P. Ws 3 and 4 is issued. Besides the Plaintiffs are examined themselves as P. Ws 1 and 2. The school records and birth certificate of the second Plaintiff is produced and marked in evidence. The trial Court on the basis of the evidence found that the first Plaintiff is the wife of Sharanappa and the second Plaintiff is her daughter. Accordingly, the suit is decreed for partition granting half share in the suit properties to the Plaintiffs together. Being aggrieved by the judgment and decree, the present appeal is filed.

3. Sri Praveenkumar Raikote appearing for the Appellant relied on the ruling of this Court in Khatalsaheb Wd. Khadirsaheb Inamdar Vs. Ameersaheb, ILR (1995) KAR 78 wherein it is held as follows:

Birth and Death extracts can be admissible in evidence under Section 35 of the Evidence Act to show that a particular person by that name mentioned in the document was either born or dead on that particular day. But, in order to establish that the said entry relates to a particular person, there must be some evidence led by the party contending that such an entry relates to a particular person. Further, it is very clear that the entry in that birth or death extract cannot be a document to prove the paternity of a person mentioned there, because it is not the duty of the person who makes those entries to make any entry as to the paternity of the person mentioned there. The entries are only regarding birth and death of the person concerned and the official concerned is required to make these entries only in the discharge of his official duties. The document cannot be used for any purpose other than to prove the date of birth or death of a particular person mentioned in the extract. On the basis of mere entries in the birth or death extract, the paternity of a person cannot be determined