JUDGMENT

Piggott, J. - In this case the plaintiff-respondent, Abbey Ram, is a minor suing, through his father Nawal, for restitution of conjugal, rights as against his own wife, Musammat Baldei, and certain other persons who are alleged to be keeping her from him. The substantial defence set up was that Musammat Baldei had never gone through any ceremony of marriage of any sort or kind with Abhey Ram, but that she had, as a matter of fact, boon married to Tika Ram, a brother of Abhey Ram, since deceased. The lower Appellate Court has found in favour of the plaintiff upon all essential issues of fact and the defendants have come to this Court in second appeal. There was in the Courts below some controversy as to the age of the first defendant, Musammat Baldei, as to which the lower Appellate Court seems to have come to the conclusion that this lady was under eighteen years of age when the suit was filed, but had apparently attained the ago of eighteen years and ceased to be a minor by the time the appeal came to be disposed of. The order passed by the learned Subordinate Judge in view of this finding appears to be correct and I do not quite understand why it is challenged in the third paragraph of the memorandum of appeal to this Court. Another point taken on behalf of the appellants is that the evidence on the record, falls short of what is legally sufficient to prove the marriage between Abhey Ram and Musammat Baldei. I think there is no force in this contention. This was not a case in which it was admitted that some sort of ceremony had been gone through between the parties : but the validity of the said ceremony as constituting a legal marriage was in question. It was an admitted fact that Musammat Baldei had been married to a son of Nawal's with all the cermonial necessary to constitute a legal marriage. The case for the plaintiff was that Abhey Ram was the son of Nawal to whom Musammat Baldei was married : whereas the defendants contended that she was married to Tika Ram. On the evidence before him I think the learned Subordinate Judge was quite entitled to come to a finding in favour of the marriage set up by the plaintiff. There is, however, a further contention that this finding is vitiated by the fact that it rests in part on inadmissible evidence. On the pleadings of the parties the question of the time of the death of Tika Ram, brother of Abhey Ram, and also of the age of the said Tikaram at the time of his death became relevant facts, as bearing on the question whether Musammat Baldei could ever have been married to the said Tika Ram. The plaintiff tendered evidence on this point which has undoubtedly produced some effect on the mind of the lower Appellate Court. Amongst other evidence the plaintiff put in the witness box Jiram, the village chowkidar, who gave evidence that Tika Ram, son of Nawal, had been born so many years before the institution of this suit and had died so many years after birth. The witness added that he had caused entries of the fact of Tika Ram's birth and the fact of his death, to be made in a register of births and deaths, which it was part of his duty as a village watchman to keep up. Ho produced two volumes of these registers, one containing a note of the fact of the birth of Tika Ram son of Nawal, and the other of the fact of his death each under its proper date. The contention for the appellants is that these registers have been wrongly admitted in evidence. The learned Subordinate Judge has held that the entries in question are capable of being proved u/s 35 of the Indian Evidence Act (1 of 1872). He cites no direct authority in support of this view, and seems to me to have been misled by a note in a wellknown commentary on the Indian Evidence Act which refers to a different matter,- namely, the records of a Registrar appointed under Act VI of 1886. I have only been able myself to find one authority in point, and this is the case of Sampat v. Gauri Shankar 10 Ind. Cas. 713 : 14 O. C. 68