Raj Kishore Prasad, J.

(1) This appeal by defendant 1 is from a judgment of affirmance decreeing the plaintiffs suit.

(2) The facts are simple, and may, briefly, be stated as below :

(3) On the 24th October 1942, the plaintiff is alleged to have sold the land in suit to defendant 1, appellant, under a registered sale deed, Ext. A, for a sum of Rs. 99/-. The plaintiff, thereafter, brought a suit, out of which the present appeal arises, on the 29th June, 1954, for a declaration that at the time of the execution of the impugned sale deed, Ext. A, he was a minor, being then only 17 years 5 months old, and, therefore, it was void and it conferred no title on the defendants. (3a) The suit was contested by the defendant-appellant, according to whom, the plaintiff on the day of execution of the disputed sale deed, Ext. A, was aged 24 to 25 years, and, not 17 years 5 months, as alleged by him, and the sale was valid.

(4) On a consideration of the evidence both oral and documentary, both the courts below concurrently held that the plaintiff was a minor at the time of the execution of the impugned sale deed, Ext. A, and, therefore it was void, and, as such, the defendant did not acquire any title thereunder. On this ground, therefore, the plaintiffs suit was decreed.

(5) On second appeal to this Court, the above concurrent finding of fact is sought to be got over, on behalf of the appellant, by urging that as it was based on inadmissible evidence it was vitiated. Mr. Bhabanand Mukherji, who appeared for the appellant, developed his argument by contending :

1. That the Admission Register of the School, Ext. A, which has largely influenced the decision of the courts below, is inadmissible, because the mother of the plaintiff, on whose statement, admittedly as deposed to by P.W. 1, the age of the plaintiff was recorded in the Admission Register, Ext. 1, although alive, had not been examined, and therefore, unless the maker of the statement is examined, Ext. 1 cannot, in law, be used in evidence. In support of his contention, he placed strong reliance on a Bench decision of the Calcutta High Court in Janald Nath Roy v. Jyotish Chandra Acharya, AIR 1941 Cal 41 [LQ/CalHC/1940/192] and on a Single Judge decision of the Lahore High Court in Asa Nand v. Gian Chand, AIR 1936 Lah 598;

2. That the finding that the plaintiff was a minor at the material date is vitiated also because it is based on oral evidence, which was valueless to prove age in a case like the present. In support of this contention, reliance was placed upon a decision of the Privy Council in Bhagwan Baksh Singh v. Mahesh Baksh Singh, AIR 1935 PC 199 [LQ/PC/1935/65] ;

3. That the alleged age of 17 years 5 months is so close upon 18 years, which is the legal age of maturity, that it is difficult to say whether a person is a minor or a major, and here, the plaintiff knew, according to his own case, that he was 17 years 5 months old, and he treated himself as a major, because he admitted that a mortgage bond was got executed by him by the plaintiff;

4. That, in any view of the matter, the defendant-purchaser was entitled to a refund of the sale consideration of Rs. 99/-, in the present case, because it was the plaintiffs own admission that the defendant got executed by him a document in 1942, when he was 17 years 5 months old, in respect to his one-third share, asserting that it was a mortgage deed, but no consideration was paid and it remained inoperative. Mr. Mukherji, therefore, submitted that the considerations which weighed with their Lordships of the Privy Council in disallowing the claim for such a refund in Mohori Bibee v. Dharmodas Ghose, ILR 30 Cal 539, are not present in the present case, and, therefore, justice required that a refund of the consideration money should be allowed as a condition precedent to the plaintiff getting a declaration that the sale deed of the defendant was void.

(6) In reply, however, it was contended by Mr. S. K. Mazumdar, who appeared for the plaintiff-respondent, in the first place, that the finding as to whether the plaintiff was a minor or major on the date of the execution of the impugned sale deed, Ext. A, is a finding of fact, and as both the courts below have concurrently held on a consideration of the evidence of both sides, that the plaintiff was a minor on the crucial date, this Court cannot interfere with it in second appeal, and, in the second place, that the School Admission Register, Ext. 1, is admissible under Section 35 of the Evidence Act, or, even under Section 74 of the Evidence Act, and, therefore, it cannot be said that it is inadmissible, simply because the maker of the statement, on which the date of plaintiffs birth was recorded in it, has not been examined. In support of his contention, he relied on Munna Lal v. Kameshari Dat, AIR 1929 Oudh 113, which was relied upon also by the trial court, and also on a Single Judge decision of the Kerala High Court in Vishnu Maheswaran v. Kochitty Kuruvila, AIR 1957 Kerala 103.

(7) In support of the plaintiffs case, a teacher; (P.W. 1), Godi, L. P. School, where the plaintiff received his education was examined. He produced the Admission Register of the School and proved the relevant entry No. 117, dated 2-1-1931 (Ext. 1) on which date the plaintiff Mangaram Gorain was admitted in the school, and, this states the date of birth of the plaintiff to be in May, 1925, and, at the time of his admission in the school, the plaintiff is shown to be aged 5 years 8 months. This Admission Register of the School also bears the signature of the Superintendent of Schools, Sri H. Misra, whose signature was proved by P. W. 1 as Ext. 1 (a). P.W. 1 stated that the date of birth of the plaintiff was recorded in the Admission Register, Ext. 1, the statement of his mother. It may be mentioned that the genuineness of the School Admission Register is not challenged.

(8) Re (1) : I will now examine the contention whether the School Admission Register, Ext. 1, is admissible in evidence.

(9) In this connection, a reference to the Bihar and Orissa Education Code, Fourth Edition, 1928, which was then in force in 1931, at the material date, is necessary. It will appear from it that, at page 115, there is a separate chapter, Chapter V, which deals with Schools for general instruction. Section 1 of Chapter V is General, and Note (1) to Section 1 says that the rules in this section apply to all Government, board, municipal, aided and unaided schools recognised by the department. Article 181 of this Chapter V deals with recognition of primary schools, like the Gourdih L. P. School in question. In the present case, there is no dispute that the school in question was such a recognised school. Article 187 prescribes the Registers which must be maintained by every recognised school. Article 187 (1) speaks of Admission Register, and, it provides by its Clauses (a) to (k), the various particulars, which it must contain. One of the several particulars, mentioned in Clauses (a) to (k) of Article 187 (1), which an Admission Register must contain, is laid down in Clause (e), which is Date of birth (year, month and day). Clearly, therefore, the entry regarding the date of the birth of the plaintiff in this Admission Register of the School, Ext. 1, would be relevant under S. 35 of the Evidence Act, hereinafter referred to as the.

(10) Section 35 of theis in these terms: "

3

5. Relevancy of entry in public record, made in performance of duty. -- An entry in any public or other official book, register, or record stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact."

(11) It is true, on the decision of the Supreme Court in Dwarka Nath Tewari v. State of Bihar, AIR 1959 SC 249 [LQ/SC/1958/129] , Article 187 also, like Article 182 of the Education Code, would have no greater sanction than an administrative order or rule, as it is not based on any statutory authority, or, other authority which could give it the force of law; nevertheless, Article 187, like the other Articles of the Education Code, is an administrative order, or rule, which has to be obeyed and followed by all the recognised schools of the Education Department.

(12) From Article 187 of the Education Code, and Section 35 of the Evidence Act therefore, the legal position which emerges is this :

(13) The Education Code enjoins upon the Head Master of each school to prepare and maintain an admission register of the pupils admitted to that particular school. On the several particulars to be entered in such a register the date of birth of the pupil as stated by the parent or guardian is an important item. Thus there can be no doubt that the admission register is a public record maintained by the head of the institution who is in duty bound to maintain such a register containing certain particulars relating to each pupil as required by the Education Code. In making such entries in the admission register the head of the institution, who is a public servant, is merely discharging his official duty. Such entries, therefore, made by a public servant in a public or official register in the discharge of his official duty would be relevant under Section 35 of the Evidence Act. The date of birth, as entered in such an official record, therefore, is a relevant fact, as contemplated by Section 35 of the Evidence Act, and the same can be proved by production of that record. The entry thus made in such an official record by a public servant, in the discharge of his official duty, has to be presumed to be correct in the absence of other reliable evidence to the contrary.

(14) The above view was also taken by Sanka-ran, J., of the Kerala High Court, in AIR 1957 Kerala 103, relied upon by the respondent. In that case, it was held that the date of birth as entered in such an official school register is a relevant fact, as contemplated by Section 35 of the Evidence Act.

(15) The crux of the matter, however, is whether the entry in the School Admission Register, Ext. 1. which as held by me, is a relevant fact under Section 35 of the Evidence Act, is admissible, because of the non-examination of the mother in the present case, although alive. It is well settled that statements of living persons, not examined as witnesses, unless the case comes within Section 32 or any other provisions of the Evidence Act, are inadmissible in evidence.

(16) Admittedly, as stated by P. W. 1, the entry in the School Admission Register, Ext. I about the date of birth of the plaintiff, was recorded on the statement of the plaintiffs mother, who gave the year and month of his birth. There is, therefore, no doubt that the mother, the maker of the statement, on which the entry in question, Ext. 1, was made, was the most competent person, having special means of knowledge about the date of birth of her own son. In the present case, however, she was not examined on the ground that she had become incapable of giving evidence, because, as stated by P.W. 5, "she has become old and Mind and unable to move and is invalid."

(17) The question, therefore, is, what then is the position in law The decision of the Privy Council in Rai Jagatpal Singh v. Raja Jogeshwar Baksh Singh, LR 30 Ind App 27, supports the view that a document purporting to prove certain statements made by a person, even since deceased, is inadmissible in evidence when it appeared that the deceased was alive at the time that the party tendering it, closed his case without having called him, the alleged author of the statement, as a witness. Such documents are inadmissible as evidence of statements of a living person not called as witness.

(18) Before, however, T express my own opinion, let us see if the cases relied upon at the Bar supply the key to the solution of the controversy before us.

(19) I shall deal first with the two cases relied upon on behalf of the appellant.

(20) In the first case, AIR 1941 Cal 41 [LQ/CalHC/1940/192] , it was held by a Division Bench of the Calcutta High Court that:

"The statement in the school register about the age of a person in absence of evidence to show on what materials the entry in the register about the age of that person was made has not much evidentiary value."

In the above case, as rightly pointed out by the trial Judge also, there was no evidence to show on what materials the entry in the register about the age of the plaintiff of that suit was made, and, therefore, it was held that the school register, produced in that case, had not much evidentiary value. In the present case, however, there is a definite evidence of P. W. 1 that the statement about the age of the plaintiff was entered in the school register on the statement of his mother. This case, therefore, is of no assistance here.

(21) The second case is the decision of a learned Single Judge of the Lahore High Court in AIR 1936 Lah 59

8. In that case, it was held no doubt, that entries in school registers are of little value as evidence of age, but, because, in that case, it had not been clearly established that the entry in the register of births related to the defendant of that case. In the present case, however, there is no dispute that the entry in the school register in question is in respect of the plaintiff. That case also, therefore, is of no help to the appellant.

(22) The two cases relied upon by the respondents also are not much helpful in resolving the riddle.

(23) In the first case, AIR 1929 Oudh 113, it was held, by a Division Bench of the Oudh High Court, that the entry of the date of birth of a person in the school register based upon the statements of his deceased father is admissible under Section 32(5), and, also under Section 35, Evidence Act, the entry being in a public register stating a fact and made by a public servant in discharge of his official duty. In the above case, however, the father, on whose statement the age was entered in the school register was dead, and therefore, naturally, the entry was admissible under Section 32 (5). But, here the mother, the maker of the statement, is alive, and has admittedly been not examined, and, there fore, the first part of the above decision is of no assistance.

(24) But the second part of the said decision, holding the entry in the school register to be admissible under Section 35, Evidence Act is, of course, relevant and, it does support the respondents" contention that here also Ext. 1 is admissible under Section 35, Evidence Act. I will, however, consider this aspect later.

(25) The second case relied upon is the decision of a learned Single Judge of the Kerala High Court in AIR 1957 Kerala 103 above mentioned. In that case also, the father, who presented the application for getting his son admitted to the school was dead, and, therefore, it was held that the entry in the school register was admissible under Section 32 (5) of the Evidence Act. This decision also, therefore, has no application here.

(26) We. therefore, find that none of the authorities cited at the Bar are to the point, and, they do not help us in solving the real controversy.

(27) To me, however, it appears, that here, on the facts of the present case, the entry in the school register, Ext. 1, is admissible under Section 32 (5) of the Act, notwithstanding, that the author of the statement, on which the entry about the date of the birth of the plaintiff was made in the school register, Ext. I, was alive, and, had not been examined for the reasons given by P.W. 5.

(28) Let us first read Section 32 (5) of the. Section 32 (5), and, Illustration (1) appended to Section 32, with which alone we are concerned here, are in these terms :

"

32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- XX XX (5) or relates to existence of relationship. -- When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised." x x x x x Illustrations (1) The question is, what was the date of the birth of A. A letter from As deceased father to a friend, announcing the birth of A on a given day, is a relevant fact."

(29) On the plain language of Section 32 (5), quoted above, it is, therefore, plain that four conditions must be fulfilled for the application of Sub-section (5) of Section 32 : Firstly, the statements, written or verbal, of relevant facts must have been made by a person who is dead, or, who cannot be found, or, who has become incapable of giving evidence, or, etc., as mentioned in the initial part of the section; Secondly, the statements must relate to the existence of any relationship by blood, marriage or adoption; Thirdly, the person making the statement must have special means of knowledge as to the relationship in question; and, Fourthly, the statements must have been made before the question in dispute was raised, per S. K. Das, J., in Dolgobinda Paricha v. Nimai Charan-Misra, AIR 1959 SC 914 [LQ/SC/1959/77] .

(30) Sir Shadi Lal, of the Privy Council, also in Mt. Biro v. Atma Ram, AIR 1937 PC 101 [LQ/PC/1937/17] : 64 Ind App 92, while considering the scope of Sub-section (5) of Section 32 of the Act, observed:

"The language of Sub-section (5) requires only that the statement tendered in evidence must be one made by a person having special means of knowing the relationship to which it relates, and that it must have been made ante litem motam. These are the only pre-requisites to the admission of the statement, and it is nowhere laid down that a third condition should be fulfilled, namely, that the statement should be relevant to the matter in issue in respect of which it was made. As observed by Lord Shaw, of the Privy Council, in Mohamed Syedol Arifin v. Yeoh Ooi Gark, AIR 1916 PC 242 : 43 Ind App 256 ........in the construction of the Evidence Act it is the duty of a Court of law to accept -- if that can be done --the illustrations given as being both of relevance and value in the construction of the text. The illustrations should in no case be rejected because they do not square with ideas possibly derived from another system of jurisprudence as to the law with which they or the sections deal. And it would require a very special case to warrant their rejection on the ground of their assumed repugnancy to the sections themselves. It would be the very last resort of construction to make any such assumption. The great usefulness of the illustrations, which have, although not part of the sections, been expressly furnished by the legislature as helpful in the working and application of the statute, should not be thus impaired."

(31) Section 32 (5) admits a statement which "relates to the existence of any relationship", when all the other conditions as to knowledge, time when made, etc., are fulfilled. The illustration (1) to Section 32 puts the question thus : "What is the date of the birth of A". And "A letter from As deceased father to a friend announcing the birth of A on a given day is a relevant fact". It was held, an the just mentioned Privy Council case, that there is no repugnance between a statement which relates to the existence of a relationship and the illustration by a statement as to when A was bora, that is to say, when the relationship began.

(32) It is also well established, by the above mentioned decision of the Privy Council in AIR 1916 PC 242, that the time of ones birth relates to the commencement of ones relationship by blood and a statement, therefore, of ones age made by a person having special means of knowledge, relates to the existence of such relationship as that referred to in Section 32 (5) of the. Clearly, therefore, if the mother of the plaintiff can come under one of the four classes of persons envisaged in the initial part of Section 32, then the entry here, made on her statement would be admissible under sub-s

. (5) of Section 32 of the.

(33) In the present case, there is no dispute that the entry Ext. 1 was made in the School Register, on the statement of the plaintiffs mother, who undoubtedly had special means of knowledge, and, there is no suggestion either that the statement was also made, admittedly, ante litem motam, and not post litem, that is, it was made before any question cf dispute between the parties, or before the question in dispute was raised. The conditions contemplated by Sub-section (5) of Section 32 are, therefore, fulfilled here, There can be also no doubt that the statement of the mother, on which the entry in question was made in the School Register, is of a relevant fact, as contemplated by the opening words of Section 32 of the.

(34) The sole question, rather the crux of the matter, however, is, whether, on the facts of the present case, the statement in question of the mother can be said to have been made by a person "who has become incapable of giving evidence", within the meaning of the initial part of Section 32

(35) There is no doubt that the four conditions, stated earlier, postulated by Section 32 (5) of themust co-exist. The words "incapable of giving evidence" occur also in Section 33 of the. If this question can be answered in the affirmative, then certainly the entry in dispute, Ext. 1, would be admissible under Section 32 (5) of the.

(36) The incapacity to give evidence contemplated by Section 32 of theneed not be a permanent incapacity. To hold that the incapacity should be of a permanent character in the strict sense would be to push the meaning beyond reasonable limits. A person may not be stricken with illness, for example, of a permanent character, but may yet be incapable of attending court and giving evidence. The Court is the sole judge in this matter. Incapacity, however, must be proved, and proved strictly. There is also no doubt that the onus of establishing the circumstances that would bring a statement within any of the exceptions in Section 32 of thelies on the party wishing to avail itself of the statement.

(37) Here, the plaintiff, on whom the onus lay, in my opinion, has discharged it. Here, it was the evidence of P.W, 5, a nephew of the plaintiff, a credible witness, whose evidence has been accepted by both the courts below, that the plaintiffs mother, for the reasons given by him, was incapable of giving evidence.

(38) The court of appeal below in this connection observed:

"But we get from the evidence of Bhuban P.W. 5, the nephew of the plaintiff, that plaintiffs mother is very old and has become blind and cannot move. He says that this is her condition for the last two or three years and she can move with difficulty for a small distance. There is no evidence contrary to this and there is no reason to disbelieve this witness. It cannot be said that had the mother been able to move or capable of giving evidence she would not have deposed for her son."

(39) The court of appeal below, which was the sole judge in this matter, was satisfied that the mother of the plaintiff had "become incapable of giving evidence", and, as such, one of the conditions precedent, contemplated by Section 32, was also fulfilled here.

(40) In this view, in my opinion, all the conditions postulated by Section 32 (5) of theare satisfied, and, therefore, clearly enough the entry in the school register, Ext. 1, about the date of the birth of the plaintiff, on the facts of the present case was admissible, and, had rightly been admitted in evidence.

(41) Pollock, J. of the Nagpur High Court, in Aga Jan Khan v. Kesheo Rao Nathuram, AIR 1940 Nag 217, held that school registers are admissible under Section 35, Evidence Act, as entries made by a public servant in a public or official register in the discharge of his official duty; and, that the question whether he had any special means of knowledge so as to make the entry relevant under Section 32 (5), Evidence Act, does not affect the admissibility of the entry under Section 35, though it may affect its value, because Section 35 stands by itself independently of Section 32 (5) of the. The above observation undoubtedly supports the contention put forward on behalf of the respondent. I have already held that the entry about the date of the birth of a person in a school register is a relevant fact under Section 35 of the. It is, therefore, not necessary, at present, to say anything further on this question.

(42) It is also, therefore, not necessary to consider the contention of the respondents that Ext. I is also admissible under Section 74 (1) (iii) of the.

(43) Re. (2) : As regards the second contention of the appellant that the finding of the court of appeal below is vitiated, because it is based also on the oral evidence, which was valueless to prove age, I do not find any force in it. It is true that in AIR 1935 PC 199 [LQ/PC/1935/65] , Sir John Wallis. of the Privy Council, who delivered the opinion of the Judicial Committee, at page 200, observed : "The evidence of Indian witnesses on question of age is notoriously often very vague and unreliable ........." but, that case, in my opinion, has no application here. In that case also, the school register was produced, but no reliance was placed on it, because it had not been produced from the proper custody, and, further it was found that it had been tampered with for the purpose of that case, and was utterly useless. In such a state of evidence the above observation was made by their Lordships of the Privy Council on the facts and on the evidence of that case. The above observation cannot be said, on the observation itself reproduced before, to be of universal application. Every case depends 011 the facts of each individual case. The above observation, therefore, does not mean that, in no case, however reliable the oral evidence on the question of age may be, reliance should not be placed on it.

(44) In the present case, however, reliance was placed by the plaintiff, P. W. 4, not only on his own evidence, and on the evidence of his nephew, P. W. 5 and P. W. 1, the school teacher, but also on some documentary evidence. Both the courts below have considered both the oral and documentary evidence, and, on a consideration of the same, have accepted the oral evidence adduced on behalf of the plaintiff to be reliable, as it was supported by reliable and unimpeachable documentary evidence. It was for the courts below to weigh and judge the oral evidence of the witnesses of the plaintiff, and, if they both have concurrently found their evidence to be reliable, it cannot be said that they have acted illegally in relying on them.

(45) Re. (3) : I do not think there is any substance in this contention as well. When the age of majority has been provided by law to be 18 years, any person less than that age, even by a day, would be a minor in law. The fact, therefore, that 17 years 5 months is very close upon 18 years is no legal ground for holding that, in such a case, the plaintiff should be considered to be a major in law. Likewise, the contention of the appellant, the admission of the plaintiff that he thought that the defendant was getting a mortgage bond executed by him, which amounts to the plaintiff treating himself as major, is also no legal ground for holding either that the plaintiff, who was, on the concurrent finding, a minor then, was estopped from pleading his minority, or that, in this view, he should be held to be a major.

(46) In my opinion, therefore, there is no substance in the above contentions of the appellant.

(47) Both the courts below have concurrently held that the plaintiff was a minor on the date, when he is alleged to have executed the impugned sale deed in favour of the defendant, and therefore, it has rightly been held to be void.

(48) Re. (4) : The next question is whether the defendant is entitled to get a refund of the consideration money on the grounds urged on behalf of the appellant. In my opinion, on the authority of the Privy Council decision in 30 Ind App 114 : ILR 30 Cal 539, there appears to be no doubt that a contract by a minor is void, and, when it is void, the defendant appellant is not entitled to claim any refund of the consideration money paid by him to the plaintiff respondent as there is no equity in his favour.

(49) Mr. Mukherji, however, relied on the following observation of Sir Ford North, who delivered the Opinion of the Board in the above case,

"Another enactment relied upon as a reason why the mortgage money should be returned is Section 41 of the Specific Relief Act (I of 1877) which is as follows : Section 41. On adjudging the cancellation of an instrument the Court may require the party to whom such relief is granted to make any compensation to the other which justice may require. Section 38 provides in similar terms for a case of rescission of a contract. These sections, no doubt, do give a discretion to the Court; but the Court of first instance, and subsequently the Appellate Court, in the exercise of such discretion, came to the conclusion that under the circumstances of this case justice did not require them to order the return by the respondent of money advanced to him with full knowledge of his infancy, and their Lordships see no reason for interfering with the discretion so exercised", and, relying on the above observation it was argued that Sections 38 and 41 of the Specific Relief Act (1 of 1877) give a discretion to the Court, and, therefore, the Courts below should have ordered the return by the respondent of the consideration money advanced to him.

(50) On the evidence and under the circumstances of this case, justice did not require the courts below, or even, this Court, to order the return by the respondent of the money paid to him by the appellant with full knowledge of his infancy. That seems to be the reason why this claim was never made by the defendant in his written statement, and, why this question was not put into the issues in the trial court, nor, was it advanced before any of the courts, below.

(51) The claim for a refund was put forward also on the ground that one who seeks equity must do equity.

(52) The above contention was also advanced in Mohori Bibees Case (30 Ind App 114 : ILR 30 Cal 539), just mentioned, and it was rejected.

(53) In my opinion, the short answer to the above contention is the observation of Romer, L. J. in Thurstan v. Nottingham Permanent Benefit Building Society, (1902) 1 Ch 1, at p. 13, which was quoted with approval by Sir Ford North, in the above mentioned Privy Council case, "........ that a Court of Equity cannot say that it is equitable to compel a person to pay any moneys in respect of a transaction which as against that person the Legislature has declared to be void". So here.

(54) For the reasons given above, I would, therefore, reject both the grounds urged as invalid.

(55) All the four grounds taken in the appeal having been found to be devoid of any merit, and, rejected, the appeal cannot succeed.

(56) In the result, the appeal fails, and is dismissed with costs.