Entries in a public record made by someone other than the public servant responsible for maintaining the record are not admissible in evidence under Section 35 of the Evidence Act, 1872.

JUDGMENT :- Defendants 1 and 2 are in appeal against a confirming judgment of the learned Subordinate Judge, Jajpur in a suit for title and possession.

2. The disputed property admittedly belonged to one Balakrushna whose wife was Hema. The plaintiffs claimed title to the disputed property on the basis of a sale deed taken in the name of plaintiff No. 1 from one Radha Dei (defendant No. 4) on 19-1-1960 (Ext. 2). Radha in her turn had purchased the said property from one Jagannath (defendent No. 3) by a registered sale deed dated 20-6-1959 (Ext. 5). Jagannath, defendant No. 3, is the son of Malati. Malati claims to be the sole daughter of Hema. After Balakrushna, Hema had made a gift of the property in favour of Malati on 23-9-1936 (Ext. 1).

3. Defendants 1 and 2 who are brothers lay claim to the property on the basis of a registered sale deed dated 24-2-1960 executed by Bhama in favour of Jaladhar, defendant No. 1. According to them, Bhama is another daughter of Hema. It thus appears that the plaintiffs and the contesting defendants claim under two competing sale deeds. The plaintiffs purchase is ultimately from defendant No. 3 who is admittedly the son of Malati. The defendant's purchase is from Bhama who claims to be the daughter of Hema, but whose daughtership, is in dispute.

4. The real point that arose in this background for determination in the courts below was as to whether Bhama was the daughter of Balakrushna and Hema. Issue No. 9 in the suit was "Is Bhama daughter of Hema and did she inherit Hema?" The learned Munsif returned the finding negativing Bhama's daughtership. The appellate court has now affirmed it. The alienee-defendants on the basis of their sale deed from Bhama are the appellants.

5. Ext. 1 is Hema's deed of gift in favour of Malati. There is a clear recital therein by Hema that Malati was her only daughter. This certainly is a very strong piece of evidence against the defence claim. Hema was most competent to state as to whether Bhama was her daughter. By 1936 there was certainly no dispute and Hema was not supposed to take side with Malati derogatory to the interest of Bhama. There is no explanation for Hema's conduct in making such statement in Ext. 1, except what is advanced by Mr. Dasgupta in this Court, namely, that Malati and her husband had been living with Hema and Malati's husband had been a domesticated son-in-law. This does not appear to be a sufficient explanation and the unequivocal statement of Hema in Ext. 1 cannot be brushed aside on the basis of this explanation.

6. The Choukidari Hat Chitha Book has been marked as Ext. C series. One entry is Ext. C of 1908 and the other is Ext. C/l of 1911. On the basis of these two entries from the defence side it was contended that Balakrushna had two daughters born to him through Hema - one was born in 1908 and the other in 1911. The learned Appellate Judge refused to attach importance to these entries mainly on account of the fact that the names of the daughters were not mentioned. That certainly is a very improper reason. By the time birth is reported normally a child is not named. The learned Appellate Judge should have been alive to the normal practice obtaining in these parts of the country that at least until the 21st day a name is not given to a son and for a month from the date of birth ordinarily a daughter is not named.

7. There was, however, a serious objection in law about the evidentiary value of these documents which both the courts below seem to have overlooked. The learned Appellate Judge instead of applying his mind to that aspect of the matter brushed aside these entries by saying that the names of the daughters had not been given.

8. These entries have been exhibited on the basis of evidence of D. W. 8. He has stated,

"Ext. C is the writing of Gopal Samal and Ext. C/l is the writing of Gajendra Samal. I know their respective writings. ........ The writers of Exts. C and C/l wrote in my presence."

On the basis of this evidence these two en