A death register extract is admissible in evidence under Section 35 of the Indian Evidence Act and Section 17 of the Madras Act III of 1899.

JUDGMENT :- The plaintiff is the appellant in the second appeal. The courts below have given diverse findings on the same question of fact. The suit was filed for partition and separate possession of the plaintiff's half share in the suit properties, which admittedly belonged to one Ramaswami alias Kannappan. The case of the plaintiff, who is the mother of the deceased Ramaswami, is that her son Ramaswami died intestate on 13-07-1956, leaving besides her, his widow - Kamalammal, the first defendant in the suit. The second defendant in the suit is an alienee of the suit properties from the widow. The plaintiffs right, it goes without saying, is based upon the provisions of Act 30 of 1956, which came into force on 17-06-1956, Along with the plaint, a death register extract was filed. In the written statement by the first defendant, while putting the plaintiff to proof that Ramaswami died on 13-07-1956, the first defendant also stated that he died in May 1956. In her evidence, the plaintiff stated that Ramaswami died in the month of Ani. The only other person, who is competent to speak about when Ramaswami died, the wife who is the first defendant in the case, has not gone into the witness box. D.W. 1 is a close relation of the first defendant. He does not speak specifically as to when Ramaswami died. The trial court, acting upon the death register extract, Ex. A. 1, held that Ramaswami died on 13-7-1956, and granted the plaintiff the decree for partition as prayed for. On appeal, the learned Subordinate Judge observed that the trial Court lad taken it for granted that Ex. A. 1 had been proved, and that it was an essential mistake that had been committed in the case. Observing further that the trial court ought to have called upon the plaintiff to prove the- document Ex. A. 1, and found that the plaintiff had not discharged the burden on her, the learned Subordinate Judge held that Ex. A. I had to be rejected as not proved and the suit had to go as the same rested mainly on Ex. A. 1.

2. Now, before me in appeal, it is contended on behalf of the plaintiff, that the learned Subordinate Judge erred in his view that Ex. A. 1 had not been proved. It is pointed out that in the memorandum of grounds of appeal to the lower appellate court no objection had been taken to the proof of the document Ex. A. 1. The only ground relating to the date of death of Ramaswami is ground No. 2, where it is averred that the lower Court (the trial court) ought to have accepted the appellant's case that Ramaswami alias Kannappan,. the husband of the first defendant, died in May 1956 and not on 13-7-1956.

3. My attention is drawn to the provisions of Madras Act III of 1899, Registration of Births and Deaths Act, and S. 17 therein ha particular. Section 17 provides that any person may obtain an extract from the register of births and deaths, and clause (2) of the section provides that all extracts given under the section shall be certified as provided in S. 76 of the Indian Evidence Act and may be produced in proof of the entries of which they purport to be copies. In Ramalinga Reddi v. S. Kotayya, ILR 41 Mad 26 : (AIR 1918 Mad 451) it is observed as follows :

"It is, therefore, clear that the record of death would be an entry made in a public register s required by the Evidence Act."

It is also observed that apart from the provisions of Madras Act III of 1899, there was no reason for holding that the register would not be covered by the language of S. 35 of the Evidence Act, it is further observed that a village karnam or a reddi keeping a register of deaths will be acting as a public servant in the discharge of his official duly. In Rangappa v. Rangaswami, AIR 1925 Mad 1005, at p. 1009 it is observed as follows :

"This death register is a public document and would, in ordinary circumstances, be bound to have been accepted as conclusive of the matter".

The learned Subordinate Judge's view that the document Ex. A. 1 is not proved cannot be sustained, in