ORDER
Satya Brata Sanyal, J.
1. This is plaintiff’s petition against order of the court below abating the suit as a whole by refusing to substitute the heirs of defendant I, the vendor. This revision arises out of a suit for specific performance of contract. Defendant 2 is the subsequent purchaser from the principal vendor, defendant 1, who is now dead.
2. An application for substitution in the court below was filed on 2-1-1976. According to the case of the plaintiff, defendant 1 died on 2-10-1975 whereas according to the defendant the date of death is 18-9-1975. If the date of death is 18-9-1975, the application for substitution was barred by limitation whereas if the date of death is 2-10-1975, which is the case of the plaintiff to be the correct date, the petition for substitution was in time.
3. In support of the respective cases of the parties, evidence has been led by both sides oral as well as documentary. Defendant examined many witnesses and filed the Death Register (Exhibit A) in support of his assertion that the date of death is 18-9-1975. On behalf of the plaintiff witnesses were examined including the Purohit, who is said to have participated in the Shradh function and according to them the defendant died on 2-10-1975. The courts below have considered the oral evidence and concluded that the date given by the defendant is correct. In support of the said conclusion the courts below relied upon Exhibit A, the death register. The trial court after having held the date furnished by the defendant to be correct and refusing substitution of the legal representative of defendant 1 concluded that the suit has abated as a whole. As against that the plaintiff preferred an appeal and the appellate court refused to interfere with the findings of fact recorded by the trial court and affirmed the judgment of the trial court.
4. Mr. Kapildeo Singh, appearing for the plaintiff, contended that the judgment of the court below is vitiated because of reliance on Exhibit A i.e. the death register. According to learned counsel the entry in the death register was not made by the Choukidar but by the Gram Sevakand, therefore, it is not an entry in consonance with the requirement of Section 35 of the Evidence Act. Learned counsel in support of his contention has relied on the case of Brij Mohan v. Priya Bhat AIR 1965 SC 282 and on the case of Jaladhar Samal v. Malati Dei AIR 1971 Orissa, 230. Learned counsel further contended that even if the substitution was not allowed, the courts below were not correct in abating the suit as a whole because in the eye of law defendant 2, the purchaser, who is a necessary party to the suit, will be deemed to represent the estate of the deceased vendor and a decree as against him could always be granted because of the devolution of the interest of the property unto him.
5. Learned counsel appearing-for the opposite party contended that Exhibit A, the death register, is a register, which is required to be maintained under the Bihar Panchayat Raj Act, 1947, which is manifest from the duties prescribed under Section 15(c) of the Act. He further contended that the entry has been made by the Gram Sevak, who is a public servant and not as was in the case of Brij Mohan Singh (AIR 1965 SC 282) (supra) where the entry was made by a person, who was not a public servant and it was not his duty to make entry. It was contended that it was the duty under the Gram Panchayat Act to maintain the register and the Gram Sevak, who is the officer of the Gram Panchayat, is empowered to make the entry. As in this case the said entry was made by the Gram Sevak, a public servant, the entry is very much admissible and the courts below acted within their jurisdiction to rely upon the said register. He also contended that there is no force in the second limb of the argument of the petitioner that the suit can still proceed against the purchaser and in support of the said submission learned counsel relied upon the case of Chhotalal Hariram v. Dilip Kumar Chatterjee AIR 1976 Cal 337.
6. The first question which is required to be considered is whether the court below acted within its jurisdiction in relying upon the entry of death made in the Death register. In short whether Exhibit A is admissible or inadmissible, Section 35 of the Evidence Act envisages where an entry is made in any public or official book, register or record of a relevant fact or a fact in issue the entry is relevant if it is made by a public servant in the discharge of his official duty or by any person in performance of a duty specially enjoined by the law of the country. According to learned counsel, Mr. Kapildeo Singh, Exhibit A is not an entry pursuant to Registration of Births and Deaths Act, 1969 and Bihar Registration of Births and Deaths Rules 1970 or Bengal Death Registration Act 1873, therefore, the entry in question which is in the register of Gram Panchayat is not an entry in public record made in performance of a duty enjoined by law. Further Gram Sevak is not authorised under those Acts to perform the said duty.
7. The argument of the learned counsel, in my opinion, is not sustainable. Section 15 of Bihar Panchayat Raj Act 1947 deals with supplementary duties of Gram Panchayat. It provides amongst, others under Section 15(c) if the Government so directs or prescribes, a Gram Panchayat is enjoined with the duty to maintain the registration of Births, Deaths and Marriages. The State Government by its letter No.’314 dt. 22-2-1957 issued direction that Panchayat Sevaks would act as Registrars having power to make registration of Births and Deaths. On 27-12-1961, the Government further directed that Dafadar and Choukidar pursuant to duty cast upon them under Bengal Births and Deaths Registration Act 1873, should lay information about it and it was Gram Sevak whose duty would be to make necessary entry in a register ‘ to be maintained by Gram Panchayat.
In that view of the matter, I hold that Exhibit ‘A’ the entry in the death register maintained by Gram Sevak of a Gram Panchayat pursuant to the discharge of public duty cast upon him under the Panchayat Raj Act, is admissible in evidence as well as relevant in view of the provisions of Section 35 of the Evidence Act.
8. Having heard the parties and having thought over the matter, I am of the opinion that it is not permissible for this Court to interfere with the findings of the fact recorded by the courts below as to the date of death of defendant 1. The finding recorded by the court below is not vitiated because of reliance on Exhibit A. Mr. Sheo Kumar Singh, learned counsel appearing for the defendant, is correct in submitting that since under the Bihar Panchayat Raj Act the duty has been cast upon the Gram Panchayat to maintain the birth and death register and the entry having been made by a public servant of the said institution, who is empowered to make the entry, the register is admissible in evidence and the entry in the said register is a relevant fact, which can be taken into consideration by the Court. Learned counsel further contended that the Gram Sevak has been examined and there has been no cross-examination that he was not empowered as a Gram Sevak to make the entry in the death and birth register or that it was not his duly to do so. In absence of any such evidence I am compelled to accept the argument of the learned counsel appearing for the opposite party. I, therefore, find that the courts below have rightly refused to substitute the heir of defendant No. 1.
9. For the purpose of consideration of the second question the first thing required to be looked into is whether upon the death of the vendor the substitution of his legal representative is at all required. The other concerned question would be if a legal representative is required to be substituted and such a legal representative is not substituted whether the case can proceed against the purchaser if he is a party to the suit. It appears that specific performance of contract is not wholly personal. The obligation vests in the legal representatives of the vendor under Section 37 of the Contract Act; the contract in question not being entirely personal. Therefore, 1 am of the opinion that the legal representative of the vendor is required to be substituted in a suit for specific performance of contract. So far as the question whether the suit can proceed against the purchaser if such a substitution has not been made or disallowed, even though Section 40 of the Transfer of Property Act read with Section 19 of the Specific Relief Act permits the enforceability of the contract against the transferee but the said transferee is not the person to complete the contract since he was not the person, who had entered into contract. He is in the nature of a trustee of a thing and, therefore only a necessary party to the suit as held by the Supreme Court in the case of Dwarka Prasad Singh v. Harikant Prasad Singh AIR 1973 SC 655. This matter came to be considered by a Division Bench of the Calcutta High Court in the case of Chhotalal Hariram v. Dilip Kumar Chatterjee AIR 1976 Cal 337 and their Lordships observed.
“The primary obligation to perform ihe contract, therefore, always remains on the vendor and on his death on his legal representatives. Hence, there is no escape from the position that on the death of the principal-defendant. vendor, it was necessary that his legal representatives must he brought on the record in his place and the right to sue could not have survived against the subsequent transferees alone. That not having been done, the suit must be taken to have abated against the said principal defendant.”
Their Lordships further considered the question that the suit cannot proceed against the transferee alone, because, the interest is not severable and the transferee has to join in the conveyance to be executed by the vendor on specific performance of contract and the transfereesare not to perform the contract on their own nor are they to execute any conveyance independently of the original vendor. I am in complete agreement with the law laid down in Chhotolal’s case AIR 1976 Cal 3371 (supra). 1 hold that a suit tor specific performance of contract is not maintainable in absence of the vendor or his legal representative being party to the suit. The suit is not saved by transferee along being a party even though he is also a necessary party to the suit.
10. In the result, the application fails and is dismissed accordingly. There will, however, be no order as to costs.