JUDGMENT : Das, J. - This is Plaintiffs' appeal arising out of a suit for partition. 2. Budhi Das had two sons, Dibakar and Shiba. Ananta is the son of Dibakar and Bhima is the son of Shiba. Nilamani is the son of Ananta. Sadhu and Radhu Defendant 1 and 2 respectively are the two sons of Bhima. Plaintiff 1, Keluni claims a partition and a share in the joint family property on the footing that she is the widow of Nilamam whom she married according to Hindu rites and that Plaintiff 2 Magi is the daughter of Nilamani born through her. Defendant-3 Mani widow of Bhima and is the mother of Defendants 1 and 2. 3. The Defendants resisted the claim of the Plaintiffs. Their main defence was that the Plaintiff-1 is not the wife nor Plaintiff-2 is the daughter of Nilamani. They alleged that Plaintiff-1 is in fact the legally married wife of Radhu (Defendant 2) and Magi is his daughter. Plaintiff-1 did not pull on well with her husband, and also her mother-in-law (Defendant-3) and left their house for her father's place while Plaintiff-2 (Magi) was still in womb. She gave birth to Plaintiff-2 at her father's place. All attempts to bring her back failed. So Radhu married for the second time one Dhobi who has given birth to a daughter Sabi alias Thukuri. Plaintiff-1 is now in the clutches of her uncle who is a person of litigious habits and it is at his insist she has filed the present case only with a view to take a share from the family properties. They resisted the claim and the share of the Plaintiff in the suit-properties. 4. The trial Court dismissed the suit of the Plaintiffs holding that the Plaintiff-1 is not the legally married wife of Nilmani as alleged by her and Plaintiff-2 is not the daughter of Nilamani. He dismissed the Plaintiffs' suit. It is against this decision of the trial Court, the Plaintiffs have filed present appeal. 5. Both parties have examined some witnesses in support of their respective contentions. The main question for consideration in this appeal is whether the Plaintiff has been able to establish that she is the legally married wife of Nalamani so as to be entitled to claim an interest in the disputed property and to get a decree for partition in respect of the same. 6. The main question for consideration in this appeal is whether the Plaintiff has been able to establish that she is the legally married wife of Nalamani so as to be entitled to claim an interest in the disputed property and to get a decree for partition in respect of the same. 6. I n order to appreciate the respective contentions of the parties, it is necessary to examine the evidence in some detail to find out if the Plaintiff-l is in fact the legally married wife of Nilamani and if Plaintiff No. 2 was the daughter born out of such marriage. 7. The learned Subordinate Judge rejected the story of the Plaintiff-I's marriage with Nilamani, mainly on the ground that the witnesses who proved her marriage, are interested, p.w.2 being her bhagchassi, p.w.3 a brother of Purna Chandra, a mortgagee from the Plaintiff. The presence of p.w.4 the uncle of Keluni at the time of her marriage was doubted as he made some discrepant statements. He relied upon Ext. A, the entry in the death register of village Ambasala where Nilamani has been shown to have died of colic pain on 23-3-1949 at the age of 27. As there was some evidence to indicate that Magi, Plaintiff-2 was aged about eleven years at the time of the hearing of the case (1962) her date of birth was calculated to be somewhere in 1951. On the basis of this evidence, he was of the view that Magi could not be the daughter of Nilamani as alleged by her mother Keluni. The evidence of the defence witnesses that Keluni was married to Radhu also weighed considerably with the learned trial Court to decide the main issue against the Plaintiffs. 8. The learned Counsel for each side placed the evidence at great length and advanced their comments on the evidence of the other. It was contended by Mr. Mukherjee, on behalf of the Appellants, that the Hatchitha book, Ext. A, has not been duly proved and cannot be used in evidence and the Plaintiffs only agreed to dispense with the formal proof of the handwriting of the person who made the entry. It was on the other hand urged by Mr. Ray that the entry, Ext. Mukherjee, on behalf of the Appellants, that the Hatchitha book, Ext. A, has not been duly proved and cannot be used in evidence and the Plaintiffs only agreed to dispense with the formal proof of the handwriting of the person who made the entry. It was on the other hand urged by Mr. Ray that the entry, Ext. A having been made in the Hatchitha book, a public record maintained by the Chowkidar a public servant, in discharge of his official duty, the entry is admissible u/s 35 of the Evidence Act and proves the truth of the facts stated therein. He contended that such entry sufficiently proves the fact that Nilamani died on 23-3-49 and falsifies the case of the Plaintiffs that Nilamani died in 1951 and that Magi who is aged eleven years was a posthumous daughter of Nilamani. 9. Before I proceed to examine the evidence on the question of marriage of Keluni, I propose to deal with the evidentiary value of Ext. A, an entry in the Hatchitha Book showing that Nilamani Das, son of Ananta Das, village Ambasal died on 23-3-49 of colic pain at the age of 27. The entry has been proved by d.w.3 to be in the handwriting of the Daffadar Baidhar swain. Pari Mallik the Chowkidar of the village, though summoned has not been examined. There is nothing in the Evidence to show that he is illiterate or why he got the entry written by the Daffadar. Except the mere proof of the entry, there is no other evidence to connect the entry with the date of death of Nilamani Das. The Supreme Court in a case Brij Mohan Singh Vs. Priya Brat Narain Sinha and Others has held that the entry made in the Hatchitha maintained by an illiterate Chowkidar by somebody else at his request does not come within Section 35 of the evidence Act, the reason being that when a public servant himself makes an entry in the discharge of his official duty the probability of its being truly and correctly recorded is high. The probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. Our attention was drawn to a decision of this Court in Padmalav v. Sm. The probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. Our attention was drawn to a decision of this Court in Padmalav v. Sm. Fula 31 C.L.T. 632 where the Hatchitha entry was held to be admissible in evidence even though the Chowkidar was illiterate and the entry was made by some other person. That case, however, is clearly distinguishable. That was a case where both the Chowkidar and the writer of the entry were dead and the entry in question was found to be admissible u/s 32(2) of the Evidence Act. In that case, the aforesaid decision of the Supreme Court was distinguished on the ground that their Lordships of the Supreme Court had no occasion to consider the applicability of Section 32(2) of the Evidence Act to a case of this nature. In that case also it was held by the Court that mere proof of the entry in the Chowkidari Hatchitha will not be sufficient to show that a person died on a particular date. In view of this legal position, Ext. A should be left out of consideration in coming to any conclusion about the date of death of Nilamani. 10. Let us see if there is any other evidence as to the date of death of Nilamani, since it has some bearing both on the question whether Keluni is the widow and Magi is the daughter of Nilamani as claimed by the Plaintiffs. Though there is no clear evidence on the point, yet 1 shall deal with the available evidence on the point while examining the question at issue. I shall first deal with the main issue if Keluni is the widow of Nliamani and shall examine the evidence as to the date of death of Nilmani wherever necessary. 11. It is the case of Keluni that she married Nilamani when she was aged seventeen years. If her age at the time of her deposition (1) 02) is taken into consideration, it comes to that she was married sometime in 1941. Her cas is that a daughter was born to her about two years after the consummation of the marriage. That daughter died immediately after her birth. Again she conceived and she was carrying seven months when her husband died about eleven years ago. Her cas is that a daughter was born to her about two years after the consummation of the marriage. That daughter died immediately after her birth. Again she conceived and she was carrying seven months when her husband died about eleven years ago. After Sudhi of her husband (Nilamani) was performed, she left for her father's place as she was apprehensive that the Defendants may cause abortion lest a Bon should be born and claim a share in the family property. That Keluni gave birth to Magi at the house of her father, Sanei Das, is not disputed. All that the Defendants say is that she was married to Radhu and that 'she is lady of mischievous and used to quarrel with her mother-in-law (Defendant-3). She left the house of Radhu and lived in her father's house where she gave birth to Magi. As all the persuasions of Radhu and other respectable people of the locality failed, they gave up all hope of her coming back. Thereafter Radhu married another girl named Dhobi Dei Borne seven or eight years back, that is, sometime in 1954-55. Dhobi has given birth a daughter name Sabi. Thus, it is admitted by the defence that Radhu married for the second time and that during the lifetime of his alleged first wife Keluni, the Plaintiff. It appears from the evidence that Nilamani married one Mali Dei, daughter of Bhajani Das of Narainpur. This fact is admitted by both sides. The only difference between the parties is that the Plaintiff Kenuli says that after the death of Mali Nilamani married her whereas the defence case is that Nilamani never married for the second time. In spite of the stand that the defence has taken that Nilamani never married for the second time, some of the witnesses for the defence have referred to Nilamani's marriage with Mali as his first wife implying thereby that Nilamani married for the second time. Brundaban Padhan d.w.5 had stated in cross-examination that Mali was seventeen or eighteen years when she married Nilamani and Nilamani's first marriage took place at the age of 26 or 27. though he stated immediately that Nilamani did not marry for the second time, he was unable to explain as to why he referred to Nilamani's marriage with Mali as his 1st marriage. though he stated immediately that Nilamani did not marry for the second time, he was unable to explain as to why he referred to Nilamani's marriage with Mali as his 1st marriage. This might have been taken as a mere slip or a mistake but Radhu himself has also stated in his cross-examination that the first marriage of Nilamani took place at Narainpur when he (Defendant-2) was 15 or 16 years of age. This reference to the marriage of Nilamani with Mali as his first wife is not without any significance. It is a tacit admission that Nilamani married for the second time particularly when such a case is sought to be made out by the evidence of the Plaintiff. It is the evidence of the Plaintiff as already pointed out, that she married Nilamani sometime in 1941 and after the death of her husband, she left for her father's place. This again gets some support from the suggestion of the defence. It was suggested to p.w.4 the uncle of Keluni that she left for her father's place after the death of her husband. If this suggestion has any significance it only implies that she was staying in her father's house after the death of her husband. Such a suggestion was wholly incompatible with the defence version as it is the case of the defence that Keluni left her alleged husband Radhu who was undoubtedly living land 1 she left for her father's place. This suggestion is more in consonance with the story of the Plaintiff than that of the defence. It is not the case of the defence that Radhu married Keluni after she became a widow. Though no case of a widow marriage was pleaded by the Plaintiff, the defence in para 7 of their written statement came forward with the story that the parties being milkmen by caste, the custom of widow marriage was not prevalent in their caste and some evidence was also led on the point. That only reveals the uncertainty of the defence version of the case. Coming back to the Plaintiffs' case it has to be seen if it has been established that Keluni is the legally married wife of Nilamani. According to her evidence she married Nilamani by about 1941 after the death of Mali. When exactly Mali married Nilamani and when she died there is not much evidence. Coming back to the Plaintiffs' case it has to be seen if it has been established that Keluni is the legally married wife of Nilamani. According to her evidence she married Nilamani by about 1941 after the death of Mali. When exactly Mali married Nilamani and when she died there is not much evidence. It is the evidence of Defendant-2 that he was 15 or 16 years old when the first marriage of Nilamani took place at Narainpur and he (Defendant-2) was 21 or 22 years' old when Nilamani died. If that is so, according to his evidence Nilamani married Mali by about the year 1941. He has also said that Mali died six months after her marriage. If the defence version that Nilamani died in 1949 is true, then there is a gap of about seven to eight year's after the death of Mali and that of Nilamani. It is the case of Keluni that during this period she married Nilamani by about 1941. After about two years, she gave birth to a daughter who died immediately after birth. She again conceived and gave a posthumous birth to Plaintiff No. 2 She has examined some witnesses including her uncle to prove the marriage. The learned trial Court did not find any explanation from the side of the Plaintiffs as to why Sanai Das the father of Keluni though living, did not come forward to tell the real story. True, Sanai would have been the most competent witness to speak about the marriage. But the mere non-examination of Sanai will not be sufficient to discard the case of the Plaintiff. Her story gets some support even from the defence version as discussed earlier. At this stage it is necessary to examine the relative story of the defence that Keluni married Radhu for the first time. It is not their case that Keluni was already a widow when Radhu married her. It is the evidence of Defendant-2 that his marriage with Keluni took place eleven years back. That takes us to 1950 or 1951. Keluni's age as given in the evidence is not challenged. She is thirty-eight and is two years older than Defendant-2. So by the time of the marriage of Defendant-2 with Keluni, Keluni must have been 26 or 27, and Defendant-2, 24 or 25. That takes us to 1950 or 1951. Keluni's age as given in the evidence is not challenged. She is thirty-eight and is two years older than Defendant-2. So by the time of the marriage of Defendant-2 with Keluni, Keluni must have been 26 or 27, and Defendant-2, 24 or 25. It is in evidence of Defendant 2 that he married Dhobi when she was aged 16 or 17 years. It is also in the evidence of d.w.5 that Mali was aged about 17 or 18 years when she married Nilamani. There is nothing in evidence to indicate why Keluni would marry at such an advanced age of 26 or 27 and to Radhu who is two years younger to her. At one place of his evidence Radhu says he was aged 25 or 26 when he married Dhobi and that was five years after his marriage with Kaluni. If that be so, he married Keluni at the age of 20 or 21, but his earlier evidence reveals that he married Keluni eleven or twelve years back, i.e., sometime at the age of 25. It is difficult to accept that Defendant-2 would not be able to give a consistent and correct version of his marriage with Keluni. The evidence of the defence on the point of marriage of Radhu and Keluni is wholly unsatisfactory. Though according to the evidence of Defendant-2, Keluni was about 25 or 26 years of age when she married him, d.w.2 puts her age at 20 or 22. Though it is the positive case of the defence that Dhobi had a daughter named Sabi, d.w.2 says that she had no issue. D.w.3 is a close friend of Radhu. He claims to have attended the marriage of Radhu with Keluni He is unable to give the name of the second wife of Radhu. He claims to have gone to the father's house of Keluni to call her to the house of Radhu, but he is unable to say the year in which he went. D.w.4 claims to have acted as a priest in the marriage of Keluni and Radhu, but he was unable to give her age at the time of marriage. Though it is the specific case of Radhu that he married Dhobi after [a] lapse of five years after his marriage with Keluni, the witness firmly puts it at three years. D.w.4 claims to have acted as a priest in the marriage of Keluni and Radhu, but he was unable to give her age at the time of marriage. Though it is the specific case of Radhu that he married Dhobi after [a] lapse of five years after his marriage with Keluni, the witness firmly puts it at three years. In view of this evidence and the circumstances, I am of the opinion that Keluni's marriage- with Nilamani has been well established in this case, and the defence plea of her marriage with Radhu must be rejected. 12. The next question is to find out if Magi is the daughter of Nilamani even though that question may not have any direct bearing on the present case. It is admitted by both Bides that she was born at the house of her maternal grand-father Sanai Das. The learned trial Court was not inclined to hold her as the daughter of Nilamani mainly on the ground that her age at the time of-hearing of the case in 1962 was about eleven years and she could not be the daughter of Nilamani who according to Ext. A died in 1949. I have already excluded. Ext. A from consideration on the ground already stated. According to Defendant-2, the Sradha of Nilamani is being performed in the month of Bhadrab. That statement sufficiently negatives the correctness of the entry, Ext. A, which says, Nilamani died in the month of March, 1949. By no process of calculation the month of Bhadrab can coincide with the month of March. On the side of the Plaintiffs it has been shown that Nilamani died in about 1951. It is the evidence of Keluni that she conceived for about seven months when her husband Nilamani died. Thus, there is a presumption u/s 112 of the Evidence Act that Magi is the daughter of Nilamani. Of course it is a rebuttable presumption and the burden lies on the defence to prove the contrary. It is admitted in the written statement of the defence (para 7) that Magi was recorded as the daughter of Nilamani in the Hatchitha Book of the Chowkidar. If the defence was fully aware of such an entry, they could have called for the same which could also have proved the date of birth of Magi and would have dissolved the point in controversy. If the defence was fully aware of such an entry, they could have called for the same which could also have proved the date of birth of Magi and would have dissolved the point in controversy. The defence has not produced any such evidence and has failed to discharge the onus. It is somewhat baffling that Radhu would take on steps to effect any correction in the Hatchitha if his own daughter gas been wrongly recorded as the daughter of somebody else. I must, therefore, hold that Magi is the daughter of Nilamani Das and not of Radhu. In the result, the Plaintiffs' suit for partition shall succeed. The decision of the trial Court is set aside and the appeal is allowed with costs. Barman, A.C.J. 13. I agree. Final Result : Allowed