JUDGMENT P.T. Raman Nayar, J. 1. This is an appeal under S.116A of the Representation of the People Act, 1951, for short, the Act of 1951. The appellant was the respondent before the Tribunal, and, to save confusion, we shall hereafter refer to him as he is referred to in the order of the Tribunal, namely, as the respondent, and to the respondent here, who was the petitioner before the Tribunal, as the petitioner. 2. At the last general election to the State Assembly, the petitioner, an independent candidate supported by the Communist Party, and the respondent, a Congress-man supported by the Congress, the P. S. P. and the Muslim League (compendiously known as the United Front) were the contestants from the Tellicherry Constituency. The poll was on the 1st February 1960, and, on the following day, the Returning Officer declared the respondent duly elected by a majority of 23 votes, as having secured 28,380 votes against the petitioner's 28,357 votes. On the 15th March 1960, the petitioner instituted the present petition claiming a declaration that the election of the respondent was void and claiming the further declaration that he himself had been duly elected. 3. The grounds alleged (to indicate them very briefly, by catchwords as it were, leaving out those that are no longer in issue) were corrupt practices, miscount, double voting, the allegation being that the same persons voted twice for the respondent taking advantage of their names appearing in two places in the electoral roll, tendered votes, presumably in favour of the petitioner, following upon the exercise of the particular elector's vote by an impostor, and, to use a convenient transferred epithet, minor votes in favour of the respondent. In June the respondent gave notice under sub-s.(1) of S.97 of the Act of 1951 accompanying the notice with a recriminatory statement under sub-s.(2) wherein he sought the declaration that, if the petitioner had been returned, his election would have been void on grounds similar to that alleged by the petitioner excepting that there was no allegation of a misconduct. On the 11th August 1960, the petitioner made an application, I. A. 30 of 1960 for a recount. This was opposed by the respondent but was allowed by the Tribunal by an order dated the 18th October 1960. On the 11th August 1960, the petitioner made an application, I. A. 30 of 1960 for a recount. This was opposed by the respondent but was allowed by the Tribunal by an order dated the 18th October 1960. The respondent thereupon came to this court seeking a writ to quash that order, but his application for the purpose was dismissed on the 14th November. Thereafter, from the 28th November to the 2nd December, the Tribunal conducted a scrutiny and recount excluding from the scrutiny, in terms of its order of the 18th October, the ballot papers which had been rejected by the Returning Officer. As a result of this scrutiny, the Tribunal rejected eight ballot papers [on what grounds does not appear from its order or from any proceeding to which our Attention has been drawn, but presumably on the ground of uncertainty falling under R.57(2A) of the Representation of the People (Conduct of Elections and Election Petitions) Rules 1956, the Election Rules for short]; and, as a result of the recount of the remaining ballot papers, it found that the respondent had secured 28,369 votes against the petitioner's 28,360 votes thus reducing his majority from 23 to 9. 4. The Tribunal rejected the charges of corrupt practices levelled by both sides. So far as double voting was concerned it found four instances of the vote of the same elector having been exercised twice in favour of the respondent in exploitation of a duplicate entry in the electoral roll; it found no such instance of votes cast for the petitioner. In the absence of evidence to show that both votes were cast by the same person, in which case both would be void under sub-s.(4) of S.62 of the Act of 1951, or to show that both were personated votes, in which case both would be void by reason of sub-s.(1) of the same section, it presumed that one was a genuine vote and the other a spurious vote without however being able to determine which was genuine and which was spurious. Since, however, both votes were found to have been cast in favour of the respondent it left one vote out of account - it did not matter which ; but the position would have been difficult, indeed impossible, had it been found that one of the votes had been cast for the petitioner and the other for the respondent. On this account therefore the Tribunal deducted four votes from the respondent's votes. The Tribunal upheld one tendered vote in favour of the petitioner adding this to the petitioner's total and deducting the corresponding spurious vote which was found to have been cast in favour of the respondent from the respondent's total. It upheld one tendered vote in favour of the respondent, but finding that the corresponding spurious vote had also been cast in favour of the respondent added the one and deducted the other to his total making no difference to the position. With regard to minor votes, the Tribunal found that 17 such votes had been cast in favour of the respondent (in respect of one of them, the allegation in the petition was not that it was a minor vote, but that it was a duplicate vote) and four in favour of the petitioner and on this account it deducted 17 votes from the respondent's total and four from the petitioner's. The result of these additions and deductions was that the number of valid votes for the petitioner was reduced by three, to 28,357, and the number for the respondent by 23 to 28,347, thus giving the petitioner a majority of 10 votes. Accordingly the Tribunal allowed the petition, declared the election of the returned candidate, namely, the respondent, to be void and further declared the petitioner to have been duly elected: 5. Both sides have taken objection to the findings of the Tribunal under the different heads and we shall consider these objections one by one. 6. The first objection taken on behalf of the respondent, namely the appellant before us, is that the Tribunal acted without jurisdiction, or at any rate erroneously, in making a recount. The matter has been considered at length by the Tribunal in its order dated 18-10-1960 and by this Court on the respondent's writ petition O P. No. 1290 of 1960, (the judgment wherein has been reported in 1960 KLT 1267 : 1961 KLJ 16 ). The matter has been considered at length by the Tribunal in its order dated 18-10-1960 and by this Court on the respondent's writ petition O P. No. 1290 of 1960, (the judgment wherein has been reported in 1960 KLT 1267 : 1961 KLJ 16 ). It seems to us beyond doubt that, where there is an allegation of a miscount, a Tribunal has jurisdiction to make a recount. Of course, it will not lightly embark on such a task seeing that the counting of votes is a duty which by the statute is assigned to the Returning Officer. It will not allow an application for the purpose as a matter of course, but will exercise its judicial discretion and before ordering a recount it will require strong prima facie grounds for thinking that there has possibly been a mistake on the part of the Returning Officer. 7. Under S.84 of the Act of 1951, a petitioner may claim, as the present petitioner has done, a declaration that he himself has been duly elected. Under S.98(c) the Tribunal may make such a declaration, and, under S.101(a) a ground on which such a declaration may be given is that, in fact, the petitioner received a majority of the valid votes. Therefore, where such a declaration is sought, it is the duty of the Tribunal to ascertain whether, in fact, the petitioner has received a majority of the valid votes and the only way of doing this, where there is reason to doubt the correctness of the return, is to make a recount. Therefore, unless there is some prohibition in the Act or in the rules it should be within the power of the Tribunal to make a recount. There is no such prohibition. Rule 64(6) of the Election Rules which says that no application for a recount shall be entertained after the Returning Officer has completed and signed the result sheet, obviously applies only to an application before the Returning Officer. Rule 64 itself deals only with a recount by the Returning Officer on application for the purpose, and has no bearing on a recount by a Tribunal; on the other hand rule 188 provides for the inspection or production of the used ballot pappers under the orders of the Tribunal. 8. Rule 64 itself deals only with a recount by the Returning Officer on application for the purpose, and has no bearing on a recount by a Tribunal; on the other hand rule 188 provides for the inspection or production of the used ballot pappers under the orders of the Tribunal. 8. It is argued that what S.101(a) of the Act of 1951 authorises the Tribunal to determine is whether in fact the petitioner received a majority of the valid votes, and that the word 'valid' appearing before the word 'votes' indicates that the determination must proceed solely on an elimination of the votes found to be invalid and cannot proceed on a counting of all the votes. This argument can scarcely bear examination. As we have already said, the one way of finding whether, in fact, the petitioner has received a majority of valid votes is to count the votes after rejecting these that are invalid, and the word 'valid' is inserted in the section only for the purpose of ensuring that the votes found to be invalid do not enter into the count. Doubtless, where there is no allegation of a miscount, the determination will proceed solely on the elimination of the invalid votes cast for the several candidates, but where there is an allegation of a miscount the correctness of the counting must be ensured before the question whether the petitioner has received a majority of the valid votes can be decided. In fact, it is possible to conceive of an election petition based solely on the allegation that the votes have been wrongly counted and that if properly counted there would be a majority for the petitioner. There can be no doubt, that such a petition will lie (see Halsbury, Third Edition, Volume XIV paragraph 559 at page 310); and yet, if the respondent's contention were correct the Tribunal would have no means of deciding it. 9. It is next argued that there was no prayer for a recount in the petition and that, in the absence of such a prayer, the Tribunal had no power to make a recount. 9. It is next argued that there was no prayer for a recount in the petition and that, in the absence of such a prayer, the Tribunal had no power to make a recount. But a recount is only a process in the trial of a petition like, for example;, the recording of evidence or the issue of a commission, not a relief in itself; and it might as well be argued that no evidence can be recorded and no commission issued in a suit unless the plaint itself asks for this. The substantive relief to be sought in such a case is a declaration that the petitioner has been duly elected -- see S.84 -- and the ground on which such a declaration can be given is that, in fact, the petitioner received a majority of the valid votes -- see S.101(a). That relief is sought and that ground alleged in the present petition, and the only question is whether it has been further alleged that there was a mistake on the part of the Returning Officer so as to make the correctness or otherwise of his count, a matter in issue. Such an allegation there is in paragraph 3(b)(3) of the petition which says that the result of the election, in so far as it concerned the respondent, has been materially affected by error and malpractice in counting, and also in paragraph 6 which says that non-compliance with the provision of rules and orders has materially affected the election of the petitioner and goes on to explain the numerous ways in which the counting by the Returning Officer could have gone wrong and did, in fact, go wrong. 10. In its order dated 18-10-1960 the Tribunal has given as its reasons for ordering a recount, that the votingwas very close, that the counting arrangements denied a proper and effective supervision and check by the counting agents of the candidates, and that there were discrepancies and mistakes in the returns of the Presiding Officer as compared with those of the Returning Officer. These grounds are well founded and are sufficient to point to the strong possibility of there having been a mistake in counting materially affecting the result of the election. These grounds are well founded and are sufficient to point to the strong possibility of there having been a mistake in counting materially affecting the result of the election. An application for a recount made by the petitioner had been rejected by the Returning Officer, and, in these circumstances, we consider that the Tribunal exercised its discretion properly in undertaking a recount. In any case, he would be a bold man who would assert that the discretion was wrongly exercised when, in fact, the recount has disclosed that the original count by the Returning Officer was wrong. 11. The recount was conducted in the presence of the candidates or their representatives, and counsel for both parties have signed the statement, Ext. C1 prepared by the Tribunal setting forth the result of the recount and the scrutiny, obviously in token of the correctness thereof. No objection is taken on the score that any mistake was made in the recount itself; but both sides attack the rejection of eight ballot papers at the recount, and each would have it that the majority of these rejected votes were cast for it. Neither side is, however, able to tell us how we can discover for whom these votes were counted by the Returning Officer, and, therefore, the attack, even if well founded, is profitless. As we have already observed, there is nothing on record to show on what ground the rejections were made and can only assume that the rejections were under R.57(2A) of the Election Rules. Since the Tribunal can count only the valid votes, it seems to us that it was within its powers to reject ballot papers which the Returning Officer should have rejected; and, in any, case, we think that counsel for both sides appended their signatures to Ext. C1 not merely in token of their acceptance of the counting made by the Tribunal but also in token of their acceptance of the rejections made by it. If either party had any objection to the rejections it is inconceivable that the objection should not have been stated before the Tribunal. 12. We shall first consider the charges of corrupt practices levelled by each side against the other, confining ourselves to those on which we have been addressed. If either party had any objection to the rejections it is inconceivable that the objection should not have been stated before the Tribunal. 12. We shall first consider the charges of corrupt practices levelled by each side against the other, confining ourselves to those on which we have been addressed. The charges pressed by the petitioner relate to three speeches made by R. W. 96, coming, it is said, within the mischief of S.123(4) of the Act of 1951 and one speech made by Baffaki Thangal, the President of the Kerala Muslim League, coming, it is said, within S.123(3). The charges pressed by the respondent relate to the publication of the pamphlets Exts. B1 and B3, coming, it is claimed, within S.123(3), and the procuring and using of vehicles coming within S.123(5). None of the charges it will be recalled was accepted by the Tribunal and we are, as it were, sitting in appeal against acquittal. [His Lordship in paras 13-17 (inclusive) discusses the evidence adduced in respect of the allegation of corrupt practices under S. 123(3) and (4).] 18. S.123(5) is not very easy to understand. On a bare reading of the section it would appear that the offence, if we may call it so, lies in the hiring or procuring of a vehicle or vessel for the prohibited use and not in the use itself, so that if there is a hiring or procuring for such a use the offence is complete even if it is not followed by actual use. Further, that no offence is committed if the candidate uses his own vehicle for the prohibited purpose unless the detailing of his own vehicles for the particular purpose can be regarded as procuring. However, in the vast majority of cases what can be alleged and proved will be only the actual use of vehicles for the prohibited purpose. Evidence of the hiring or procuring will be difficult, if not impossible, to secure, and, although hiring or procuring must be alleged, proof thereof will be largely a matter of inference from actual use. And, of course, where there has been use for the prohibited purpose that cannot be dissociated from the hiring or procuring. Evidence of the hiring or procuring will be difficult, if not impossible, to secure, and, although hiring or procuring must be alleged, proof thereof will be largely a matter of inference from actual use. And, of course, where there has been use for the prohibited purpose that cannot be dissociated from the hiring or procuring. In this case, although it is an undisputed fact that the petitioner procured motor vehicles for use in his election campaign there is no direct evidence that the precuring was for the purpose of taking electors to the polling stations. That would be a matter for inference from the use to which the vehicles were put and therefore what we have to consider is whether the use of the vehicles for the prohibited purpose is proved. 19. It has been argued on behalf of the respondent that what S.123(5) really means is not what appears from a literal reading thereof and that the offence really lies in the use of vehicles hired or procured, for the prohibited purpose. Even so what has to be considered is whether use for the prohibited purpose is proved, and, in the view that we are taking, namely, that it is not, it is not necessary for us to consider whether this is what the section means. [His Lordship in paras 20 and 21 discusses the evidence in respect of the allegation of corrupt practice under S. 123(5)]. 22. We hold with the Tribunal that none of the corrupt practices alleged by cither party has been proved. 23. With regard to minor votes, the case of each side is that the other obtained a large number of votes from persons who, although below 21 on the qualifying date (1-1-1959) had somehow or other crept into the roll. One hundred and fifty such instances were alleged in the petition and 144 in the recrimination. But, some time after filing his recrimination, the respondent amended his counter statement (with leave of the Tribunal) adding a new paragraph, paragraph 7A, so as to take the objection that the electoral roll was final on the question of adulthood and that it was not open to the Tribunal to go behind it and investigate whether any person entered in the roll was, in fact an infant. Nevertheless both sides adduced evidence in proof of their allegations, the Tribunal not pronouncing upon the respondent's objection until by paragraph 200(a) of its order it disposed of the objection by observing that it was not in dispute that the Election Tribunal could go behind the electoral roll and decide whether a particular elector was a minor or not on the qualifying date. As we have seen, the Tribunal found 17 instances of minor votes in favour of the petitioner. It found only four in favour of the respondent and for reasons that are not far to seek, the respondent strongly presses his objection regarding the finality of the roll. 24. It is contended on behalf of the petitioner that the objection cannot be countenanced, both because of what is said by the Tribunal in paragraph 200(a) of its order, and because the respondent having adduced evidence before the Tribunal in the hope of being able to prove a larger number of instances than the petitioner, cannot, now that he has failed, be allowed to go back to the objection he had abandoned. It is conceded on behalf of the respondent that no arguments were addressed to the Tribunal on the objection taken by him, but it is denied that there was, at any time, an abandonment of the objection. We do not think that we should go behind what the Tribunal has said in its order, but, even so, we consider that the objection taken being wholly one of law, what is recorded by the Tribunal can at best amount to little more than a concession by counsel for the respondent on a pure question of law. Therefore the concession, if any, made cannot preclude the respondent from pressing his objection. And, so long as the Tribunal had taken no decision on the objection, the respondent had no option but to press and adduce evidence in respect of the instances alleged by him against the possibility of his objection being disallowed so that there is here no question of the respondent, "blowing hot and cold". We do not think that the objection can be shut out. 25. We do not think that the objection can be shut out. 25. On the 15th November 1961 we referred the following question to a Full Bench: "Whether in the case of a person whose name appears in the electoral roll and who has exercised his vote, the Election Tribunal can go into the question whether or not he had attained the age of twenty one on the qualifying date, and, on the finding that he had not, exclude his vote from the count, or whether under the scheme underlying the relevant provisions of the Constitution, of the Representation of the People Act, 1950 and of the Representation of the People Act, 1951, the question of age is to be finally decided at the registration so that capacity or incapacity on that account is conclusively determined by inclusion in or exclusion from the roll." The Full Bench has answered that the Tribunal can go into the question of nonage and exclude a minor vole from the count. 26. The petitioner adduced evidence in respect of 35 instances of minor votes. With regard to two of these the Tribunal found, on verification, that no vote had actually been cast. Sixteen instances the Tribunal regarded as proved, and it added one more from the instances alleged by the petitioner as instances of double voting. The rest, the Tribunal found to be not proved. The respondent, on the other hand, adduced evidence in respect of 38 instances. Two were rejected because they were not alleged in the recrimination, 15 were not pressed, four were held to be proved, and the rest not proved. The Tribunal verified, with reference to the ballot papers, that the 17 instances of minor votes proved by the petitioner were all cast in favour of the respondent and the four instances proved by the respondent in favour of the petitioner. 27. The evidence adduced by both sides in proof of the allegations was oral as well as documentary. The oral evidence was of persons who claimed to know the electors in question and most of whom also gave their ages making out that they were below the age of 21 on the qualifying date. The documentary evidence consists of certified extracts from birth registers, rural and urban, and entries in admission registers of schools, public and private, said to relate to the electors in question. 28. The documentary evidence consists of certified extracts from birth registers, rural and urban, and entries in admission registers of schools, public and private, said to relate to the electors in question. 28. The witnesses examined are persons with no special means of knowledge of the age of the electors about whom they gave evidence -- at best they are only neighbours -- and it is not pretended by either side that on the strength of their evidence as to age we should hold that the age entered in the electoral roll is wrong. With regard to the documentary evidence, so far as the admission registers of private schools are concerned it was rightly held by the Tribunal -- and both sides accept that holding -- that the entries in these registers are not evidence. So far as the entries in the registers of public (Government and Municipal) schools are concerned, these are no doubt relevant under S.35 of the Evidence Act; but so, for that matter, are the entries in !he electoral roll which are sought to be disproved. Having regard to the circumstances in which an entry regarding the dale of birth of an admitted pupil is made in school registers, and the temptation of the person taking the child for admission (whose statement is the sole basis for the entry) to take a year or two, or as much as is possible, off the child's real age, we consider that entries in the school registers are of far less evidentiary value than the entries in the electoral roll and are therefore of little avail to show that the age shown in the electoral roll is wrong. 29. The entries in the birth registers stand on a different footing. These registers are maintained by public servants in the discharge of their official duty, a duty moreover specially enjoined by law, in the urban areas by the rules made under S.286 of the Madras District Municipalities Act, and in the rural areas by the Madras Registration of Births and Deaths Act, III of 1899. These registers are maintained by public servants in the discharge of their official duty, a duty moreover specially enjoined by law, in the urban areas by the rules made under S.286 of the Madras District Municipalities Act, and in the rural areas by the Madras Registration of Births and Deaths Act, III of 1899. In the statute, and the statutory rules and executive instructions thereunder, there are elaborate provisions for ensuring the accuracy of the entries which are, as a rule, made on information supplied shortly after the birth of the child (within one week in the case of urban areas and within a fortnight in the case of the rural areas) by the parent or by some other member of the family of the child, or by the midwife or other person attending on its birth. In the generality of cases these entries, therefore, furnish the best evidence of the date of the birth and can safely be accepted unless they are shown to be wrong. If the entry in the birth register relating to a particular elector is produced, and that entry shows his age to be different from that shown in the electoral roll, then that entry must prevail, and, if according to it, an elector whose vote has been cast is below the age of 21 on the qualifying date, then a case of minor vote is established. 30. What has to be proved then is that the birth register entry relates to the elector concerned, in other words, that the person described in the electoral roll and the person described in the birth register entry are one and the same. This is to be determined primarily by a comparison of the entries themselves to see whether there is agreement regarding a sufficient number of particulars to point to identity, there being no unreconciled differences. Other evidence -- unless it be of a witness who has personal knowledge both of the registration in the birth register and the registration in the electoral roll and can therefore say that both are of the same person -- is of little value except where it reconciles a discrepancy or furnishes additional particulars for comparison. Other evidence -- unless it be of a witness who has personal knowledge both of the registration in the birth register and the registration in the electoral roll and can therefore say that both are of the same person -- is of little value except where it reconciles a discrepancy or furnishes additional particulars for comparison. The particulars furnished in the electoral roll are in the order in which they appear : (1) The serial number in the particular part of the roll; (2) The number of the house (residence, in some cases, comparatively few, place of business) of the elector ; (3) The name if any of the house in round brackets. (This if it happens to be the family house is adopted by the Marumakkathayees of Malabar -- and excepting Christians all the persons we are considering, whether Hindus or Moplahs, are Marumakkathayees -- as their family or tarwad name and generally forms part of their full name ; (4) The name of the elector ; (5) The name of the father or the mother or the karnavan or the husband of the elector in square brackets. We may call this the surname, and add that in Malabar the name of the karnavan is rarely given in describing a person ; (6) The sex of the elector ; (7) The age of the elector in terms of completed years on the relevant date, namely, the 1st January 1959. The particulars given in a birth register entry leaving out those which are not useful for our purpose are : (1) Name of child. (2) Sex. (3) Name of father. (4) Name of mother. (5) Date of birth. (6) Date of registration. (7) Informant's signature and address and his relationship to the child. The points on which, therefore, comparison can usefully be made for the purpose of determining identity are the common particulars of name, surname (the surname in the roll being usually the father's name) and the tarwad name (indicated in the roll by the name of the house if it is not shown as part of the name). The points on which, therefore, comparison can usefully be made for the purpose of determining identity are the common particulars of name, surname (the surname in the roll being usually the father's name) and the tarwad name (indicated in the roll by the name of the house if it is not shown as part of the name). If in respect of these particulars there is agreement (there being of course no conflict on a particular like sex -- which is usually revealed by the name and which particular we may leave out of account since there is, naturally enough no conflict with regard to it in any of the cases we are considering -- or even beyond the limits of elasticity on the disputed particular of age as, for example, where the roll gives the age as say 21 while the birth register entry shows it as 10) we should think that, unless the contrary is shown, a prudent man should act upon the supposition that the person described in the roll and the person described in birth register entry are one and the same, in other words, that identity is proved, there being no case that either entry is fictitious. 31. As we have already said, other evidence becomes useful when there is a discrepancy to be reconciled or when it is able to furnish further points for comparison. No witness has been examined who has had anything to do with the registration of the elector in question, so that when a witness says that he knows the elector what he really means is that he knows a person answering to the description given in the particular entry in the roll. This means that he must be able to give sufficient particulars of the person to prove his identity with the person described in the roll. If he can give only the name, that is obviously insufficient. Even if he is able to give the surname as well, the possibility of there being two persons with the same name and surname (especially when both are common names) is not too remote to be excluded. If he can give only the name, that is obviously insufficient. Even if he is able to give the surname as well, the possibility of there being two persons with the same name and surname (especially when both are common names) is not too remote to be excluded. But, if he is able to give the name of the residence of the elector as well, in particular its number, or the names of the other members of the house, these names finding place in the roll under the same house number, then it can be regarded as proved, if these particulars agree with the particulars in the roll, that the person of whom the witness is speaking is the elector concerned. Once that stage is reached, if the witness is able to give the tarwad name of the father and the name and tarwad name of the mother of the elector -- the mother's tarwad name in the case of Marumakkathayees would be the same as the elector's tarwad name -- then that would furnish additional points for comparison in order to establish identity. Or again, if the witness is able to speak to a change in the name or surname of the elector (as for example on marriage) that would reconcile an apparent discrepancy between the entry in the electoral roll and the entry in the birth register. This, it seems to us, is the extent to which oral evidence can be useful or is necessary. 32. The burden of proving the identity of the person entered in the electoral roll with the person entered in the birth register lies on him who asserts it. True enough, this burden never shifts, but, if a comparison of the particulars furnished in the two entries yields sufficient points of similarity (and none of dissimilarity) as to make identity so probable that, unless the contrary is shown, namely, that the two persons are different, a prudent man ought to act upon the supposition that they are the same, the burden of adducing further evidence shifts to him who wants the court to act on the supposition that the two persons are different. We should think that, generally speaking, if the name, the surname and the tarwad name as shown in the two entries agree and there is no unexplained discrepancy then that would be prima facie proof of identity and a stage would be reached where the burden of adducing evidence to disprove the identity shifts. 33. As we have seen it is the respondent who is anxious to take the minor votes out of consideration and it is not surprising that he should insist on a very high standard of proof. It is said on his behalf that before we can act on the birth register entry as proving the age of a particular elector it must be proved beyond reasonable doubt, as in a criminal case, that the birth register entry relates to the elector. And since, except in a case where there is direct evidence as to who was the person who exercised the vote (and there is no such evidence here) we are acting on circumstantial evidence, the circumstances must be such as to be consistent only with identity and to exclude all possibility of the two entries being of two different persons. We do not think that the burden of proof in the matter of a minor vote (which is not a corrupt practice and does not involve any penal consequences to the party against whom it is proved) is as heavy as in a criminal case; the burden we should think is no more than what lies on a plaintiff or a defendant for obtaining a verdict in a civil action. 34. In keeping with this stand, it has been argued on behalf of the respondent that the best evidence to show that a particular voter was a minor on the qualifying date would be the evidence of the voter himself (to prove that he voted) and of his parent or some other member of his family to prove his age. No such evidence having been adduced in this case and no explanation having been furnished for the failure, all the charges of minor votes must fail. But the explanation is quite obvious. The case is that a particular person although a minor and therefore not entitled to vote, favoured the opposite party by voting for him. No such evidence having been adduced in this case and no explanation having been furnished for the failure, all the charges of minor votes must fail. But the explanation is quite obvious. The case is that a particular person although a minor and therefore not entitled to vote, favoured the opposite party by voting for him. It is scarcely to be expected that either he or the members of his family would come and give evidence in support of this charge, and a party is not expected to examine witnesses who are not likely to support him but are, on the other hand, likely to support the opposite side. It is true that a person or a member of his family would not ordinarily give false evidence on such matters as that person's name, father's name, mother's name and such other particulars as are found in the birth register entries, but it would be easy enough for him to say that there is another and older person answering to the description given of the particular elector. And if such a statement is made, it would become virtually impossible for the party who called the witness to disprove it. The inference to be drawn from the non-examination of the voter or members of his family is that, if examined their evidence would be unfavourable to the party who withholds them. (See illustration (g) to S.114 of the Evidence Act). But that inference can do little damage to a party in cases where there is good reason to think that, whatever be the truth, the person concerned will not speak in favour of the party. On the other hand, if indeed the voter is riot the person described in the birth register entry, then it should be easy enough for the party in whose favour the vote was given, to locate the voter and call him or members of his family to prove that he was over the age of 21 on the qualifying date, and to show that the birth register entry relied upon does not relate to him. It should be easy enough for that party to produce the birth register entry of the voter (if, as must be his case, the entry produced showing that the voter was a minor is not his entry) in support of that case. It should be easy enough for that party to produce the birth register entry of the voter (if, as must be his case, the entry produced showing that the voter was a minor is not his entry) in support of that case. If indeed the case put forward that a particular voter was a minor is untrue, it could be readily disproved by the opposite party, and the circumstance that a case alleged by one party is, if untrue, capable of ready disproof can only have the effect of shifting the burden of adducing further evidence earlier than otherwise. In our view, no adverse inference is to be drawn from the non-examination of the voters concerned or the members of their family even though in some cases the alleged voter was summoned and was in attendance for the purpose of being identified by the witnesses called to prove that he was a minor. 35. Under what we might call the urban law, the birth of a child has to be reported within a week of the event, under the rural law within a fortnight. However, we find from the registers produced in the case that, as a rule, the birth is reported within two or three days thereof, that is, before the child is named. (The evidence shows that among the Hindus of the area, a child is named on or after the 28th day, among the Moplahs after two days and among Christians also the baptism is generally a few days after the birth). This means that the vital particular of the name of the child is entered some time after its birth is registered, and both the urban law and the rural law make provision for this being done within a reasonable time, either on a further report by the parent or guardian or other close relative of the child, or, failing that, on enquiry made by the registrar himself. The Tribunal has gone into the provisions of both laws at the relevant time in some detail and has shown that, while under the urban law, it is the duty of the parent or near relative to report the name to the registrar within 13 months of the date of its birth and sign the register in token thereof, there is a duty cast on the registrar himself to ascertain the name of the child within three months of its birth and enter the name in the register. And where this is done there is nothing requiring the registrar to attest the entry. But, under the rural law prevailing at the time, it is optional for the parent or guardian to report the name, but, if this is done within 12 months of the registration of the birth, the registrar is bound to enter the name in the register and to initial and date the entry. In this view it drew a distinction regarding the reliance to be placed on the name as entered in the registers of the two areas. It sent for and examined the original registers of which certified extracts had been adduced in evidence. It found that in no case did the entry regarding name bear an attestation. In the case of the urban registers, however, it accepted the entry as regularly made, even if it was, on the face of it, not made at the same time as the remaining entries pertaining to the child (presumably as disclosed by the ink and handwriting) on the assumption that the entry must have been made by the registrar as a result of enquiries made by himself in which case no attestation of the entry was enjoined. So far as the rural registers were concerned, it assumed that if the entry regarding name appeared to be in the same ink and the same handwriting as the remaining entries appertaining to the child, the entry must have been made along with the remaining entries at the time of registration (an assumption for which there is little warrant and seems to be disproved by the circumstance that in most of the cases the registration was before the child could have been named) and was therefore regular. But if the entry appeared to be in a different ink or different handwriting then it must have been made some time later (as indeed most of the entries must have been made) and, since it did not bear the dated initial of the registrar as required by law, the entry could only be regarded as casual and therefore undependable. We consider that there is little basis for this distinction. As a matter of plain common sense the value to be attached to an unattested subsequent entry in both kinds of registers must be the same. The one does not become more dependable because under the rules governing the maintenance of the register no attestation is necessary in certain circumstances, or the other less dependable than the former because attestation is required. It is not every irregularity in the maintenance of an official register that makes an entry therein valueless. If a register has been regularly kept, a failure to attest a particular entry as required by the rules cannot by itself make that entry valueless. We have gone through the original registers sent for by the Tribunal and have found that the name of the child is almost invariably entered both in the urban and in the rural areas. The particular cases we are considering form a very small fraction of the total member registered, and we see no reason to suspect that the entries regarding the name could possibly have been made for the occasion. After all the rural registers remain with the registrar (village officer) only for a short time after the year to which they relate. In the following year they are sent to the Taluk Office where they are checked, and, after check, sent to the Sub-Registrar's Office for safe keeping. Therefore the entries regarding name must have been made within about a year of the registration of the child, and the possibility of a false or incorrect name having been entered about 20 years ago and being made use of now for the purposes of this case is so remote that it can be excluded. Unless it is shown that a particular entry is false - and that has not been shown with regard to any instance - we are prepared to accept the name as entered in the registers, whether urban or rural, as the name of the child whose birth was registered. Unless it is shown that a particular entry is false - and that has not been shown with regard to any instance - we are prepared to accept the name as entered in the registers, whether urban or rural, as the name of the child whose birth was registered. 36. To pass to the particular instances, we shall first deal with the 16 instances found by the Tribunal in favour of the petitioner, that is, instances of minor votes cast for the respondent. With the one instance added by the Tribunal from the charge of double voting we shall deal when considering that charge. The Tribunal dealt with the instances in four different groups, group A being of instances in proof of which birth registers of the Tellicherry Municipality were adduced, group B where birth registers of rural areas were adduced group C where admission registers of Municipal schools were adduced and group D where admission registers of private schools were adduced. In the view we have taken, there is no difference between groups A and B on the one hand and groups C and d! on the other : [His Lordship in paras 36 to 39 (inclusive) discusses the evidence relating to the instances of minor votes] 40. We have dealt with all the disputed instances of minor votes and there remains only the allegation of double voting -- for the rest no attempt has been made before us to question the findings of the Tribunal. 41. The case of double voting rests on the finding of the Tribunal that, in certain cases, the same person was registered twice in the roll and that both votes were cast. (Duplicate registration can arise because the same person is registered both at his residence and his place of business or because the same person is registered both in his own house and in his wife's house -- a Marumakkathayee, adhering to the traditional sammandam marriage, divides his residence between his own house and his wife's house). There was no dependable evidence to show who actually exercised the vote and therefore the Tribunal assumed that one of the votes must have been cast by the elector and the other by an impostor. There was no dependable evidence to show who actually exercised the vote and therefore the Tribunal assumed that one of the votes must have been cast by the elector and the other by an impostor. There was nothing to show which was the genuine and which the spurious vote and so the Tribunal, after finding (on an examination of the marked copy of the roll and the ballot paper) that both votes had been cast for the same candidate in all the instances found by it, in favour of the respondent, deducted one vote in respect of each instance from the number of votes secured by that candidate. Both sides have objected to this, the petitioner on the ground that the presumption must be that both votes were cast by the elector himself and that therefore both votes should have been counted out by reason of S.62(4) of the Act of 1951 and the respondent on the ground that the Tribunal had no right to violate the secrecy of the ballot in respect of a valid vote and that it had jurisdiction to discover for whom a particular vote had been cast only after finding that that vote was a void vote. Not having been able to determine which of the duplicate votes was valid and which was void, it had no jurisdiction to examine the ballot paper and find out for whom the vote was cast in respect of either. 42. These objections notwithstanding we are satisfied that what the Tribunal did was proper. There are three possibilities and only three : (1) That both votes were cast by an impostor or impostors in which case both would be bad under S.62(1) of the Act of 1951 ; (2) That both votes were casts by the elector in which case both would be bad under S.62(4); and (3) That one was cast by the elector and the other by an impostor in which case the one would be good and the other bad under S.62(1). Now it is true that under the rules the Presiding Officer of a polling station issues a ballot paper to an elector only after identifying him and that he has the assistance of local persons to help him in this, and that there are the agents of the candidates to challenge an impostor. Now it is true that under the rules the Presiding Officer of a polling station issues a ballot paper to an elector only after identifying him and that he has the assistance of local persons to help him in this, and that there are the agents of the candidates to challenge an impostor. This gives rise to a presumption of fact (under S.114 of the Evidence Act) that every vote is cast by the elector himself and not by an impostor, but, despite the precautions, personation is, as the decided cases show, by no means rare, and the presumption is not a very strong presumption. The indelible ink device on the other hand might not be tamper-proof but it guarantees, to a substantial extent, that the same person does not vote twice. And hence there is the presumpation (also under S.114 of the Evidence Act) that both votes were not cast by the same person, a presumption which we should think is stronger than the presumption that every vote is cast by the elector concerned, especially where, as in the present case, the poll was only on one day. The combined effect of the two presumptions justifies the assumption of the Tribunal that one of the votes was cast by the elector concerned and the other by an impostor. 43. It is no doubt true that secret ballot is the basic principle of our elections and that the Act of 1951 and the rules made thereunder contain provisions for ensuring secrecy. But this does not mean that a Tribunal is precluded from ascertaining for whom a particular vote was cast when it becomes necessary for it to do so in order to adjudicate on the dispute before it. It cannot adjudicate on a dispute falling within S.100(1)(d)(iii) or S.101 of the Act without finding out for whom, what we might call the improper voles, were cast. In fact it is not disputed that it can and must do so in the case of votes which it has found to be had. But what if it finds one of two votes to be bad without being able to decide which of the two is bad ? What precludes it from ascertaining for whom the two votes were cast, and, on finding that both were cast for the same candidate, deducting one from the number of votes polled for him ? But what if it finds one of two votes to be bad without being able to decide which of the two is bad ? What precludes it from ascertaining for whom the two votes were cast, and, on finding that both were cast for the same candidate, deducting one from the number of votes polled for him ? What the Tribunal has to determine in a matter falling under S.101(a) is which candidate received a majority of the valid votes and unless there is a prohibition, it necessarily has jurisdiction to conduct the investigation necessary for determining this question. We have been referred to no provisions in the Act or in the rules which either expressly or by implication prohibits the Tribunal from ascertaining for whom a vote was cast if that becomes necessary for deciding the dispute before it -- in fact the very system of tendered votes requires this to be done when the Tribunal finds that the tendered vote was the genuine vote. (S.94 of the Act of 1951 only says that a voter shall not be required to state for whom he has voted and does not prevent the Tribunal from ascertaining this by other modes while S.128 which enjoins secrecy on the election staff says that disclosure may be made for some purpose authorised by or under law. Both provisions apply to void as well as to valid votes). We are unable to find any basis either in principle or in authority for the contention put forward on behalf of the respondent that while a Tribunal can, and indeed must, ascertain for whom a bad vote was cast, it has no jurisdiction to ascertain for whom a valid vote was cast even if that be necessary for the adjudication. 44. There is the further objection taken by the respondent that the allegation in the petition is that the same person voted twice. But that the petitioner was unable to prove who cast the votes does not mean that the Tribunal cannot draw the inference to which the facts proved lead. 45. Before proceeding to the particular instances of double voting we might refer to a device adopted by the petitioner or his supporters for the purpose of securing evidence thereof. But that the petitioner was unable to prove who cast the votes does not mean that the Tribunal cannot draw the inference to which the facts proved lead. 45. Before proceeding to the particular instances of double voting we might refer to a device adopted by the petitioner or his supporters for the purpose of securing evidence thereof. As we understand it the device was this: A letter (in fact only an envelop with some blank paper inside) was sent by registered post acknowledgement due to the elector to the name, description and address as given in the two entries alleged to be duplicate entries, and it was sought to be proved that both letters were delivered to the same person. This proof depended on a comparison of the signatures in the two acknowledgements by the Tribunal unaided by an expert -- none of the postmen examined spoke to the fact that both the letters were delivered to the same person except in one case where the address written was a combination of the description in both entries. Therefore there was no dependable proof that letters to the different addresses were delivered to the same person, and even if there were, it seems to us that such evidence as this device secures is of little value. It depends on the presumption of fact that a postal communication is delivered to the addressee, and, from the fact of delivery to the same person, works back to the result that the addressees are the same and therefore that the two entries in the roll relate to the same person. But the letters were sent after this petition was instituted, and, without suggesting that the postmen were parties to a fraud, it should not be difficult for a person answering to the description given in the address to obtain delivery of a letter addressed in the same description but to a different place. 46. Thirty-one instances of double voting were alleged by the petitioner and these are detailed in Schedule IV to his petition. With regard to eight of them no evidence was adduced, five others were not pressed, and in five other cases it was found on examining the marked copy of the roll that there was no double voting. The Tribunal considered the remaining 13 cases and found four of them established. With regard to eight of them no evidence was adduced, five others were not pressed, and in five other cases it was found on examining the marked copy of the roll that there was no double voting. The Tribunal considered the remaining 13 cases and found four of them established. These four are assailed before us by the respondent while the petitioner would press four more for our acceptance. The respondent on the other hand led evidence regarding 16 instances ; none of them was found; but five instances are commended for our acceptance. [His Lordship in para 47 discusses the evidence regarding the allegation of double voting.] 48. Four instances of double voting rejected by the Tribunal (by paragraphs 149, 155, 157 and 158 of its order) are pressed before us by the petitioner and five such instances (those considered in paragraphs 171, 175, and 176 of the Tribunal's order) by the respondent. These need not detain us long. We have examined each one of them and agree with the Tribunal that in none of them is the evidence sufficient to make out that the two entries relate to the same person. 49. We believe we have dealt with all the matters that have been canvassed before us. If we have omitted any, doubtless the parties will bring it to our notice before we make our final order in the case. 50. Tomorrow we shall proceed to ascertain for whom the six minor votes newly found by us ((b), (c), (d) and (i) of paragraph 37 of this order at the instance of the petitioner, and (a) and (c) of paragraph 39 at the instance of the respondent) were cast. 6th December, 1961. 51. We have examined the marked copy of the roll and the ballot papers concerned in the presence of counsel on both sides and find that the four minor votes found by us in paragraph 37(b), (c), (d) and (i) of this order were cast for the respondent, Kunhiraman (the appellant before us) and the two minor votes found by us in paragraph 39(a) and (c) for the petitioner, Krishna Iyer. From the 28,347 votes secured by the respondent according to the Tribunal's final conclusion must be deducted these four minor votes and must be added the five votes referred to in paragraph 36(b), (j), (n), (o) and (p) of this order thus giving the respondent 28, 348 votes. From the 28,357 votes secured by the petitioner according to the Tribunal's final conclusion, must be deducted the two minor votes found by us with the result that he gets 28,355 votes. This means that the petitioner wins by a margin of seven votes. 52. In the result we dismiss this appeal with costs. Advocates fee Rs. 500/-. 7th December, 1961.