In the case of reported as AIR 1954 SC 176
(Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana)
the Apex Court has discussed the provision of Section 112
of the Evidence Act. It is observed by the Apex Court that
fact of “non-access” can be proved like any other fact.
However, the “non-access” must be proved by clear and
satisfactory evidence. If the purpose behind provision of
Section 112 of raising presumption in favour of legitimacy
is kept in mind, it can be said that burden is on the party
who challenges legitimacy, to prove that the child is
illegitimate.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.286 of 1994
Bhanudas Yeshwant Nagawade
Versus
Dhondiba @ Bhimrao Bhanudas
Nagawade,
CORAM: T.V. NALAWADE, J.
DATE : 28th APRIL 2014
Citation;2014(6) MHLJ 238 Bom
Read original judgment here;click here
1) The appeal is filed against judgment and decree
of Regular Civil Appeal No.5 of 1987 which was pending
in the District Court Ahmednagar. The First Appellate
Court has dismissed the appeal filed by the present
appellant against the judgment and decree of Regular
Civil Suit No.68 of 1976 which was pending in the Court
of the Civil Judge, Junior Division, Jamkhed. Decree of
partition and possession is given in favour of respondent
No.1. Both the sides are heard.
2) The suit was filed by respondent No.1 in
respect of seven agricultural lands and two house
properties. It is the case of the plaintiff that the suit
property was the ancestral property of his predecessor –
Yeshwant Nagawade. It is contended that defendant No.2
Chandrabhaga is widow of Yeshwant. It is contended that
Yeshwant left behind other heirs like a son by name
Bhanudas (defendant No.1) and a daughter by name
Prayagbai (defendant No.5). It is the case of the plaintiff
that he is son of defendant No.1 and defendant No.3. It is
contended that defendant No.3 is the first wife of
defendant No.1 and defendant No.4 is second wife of
defendant No.1.
3) It is the case of the plaintiff that in April 1976
he demanded partition from defendant No.1 as he had
some dispute with defendant No.1. It is contended that
defendant No.1 refused to effect partition and so plaintiff
was required to file suit for partition. He has contended
that he has two Anna four Paisa share in the suit
properties.
4) Defendant No.1 contested the suit. He denied
that plaintiff is his son. He contended that in the year
1944 he had married with defendant No.3 Rahibai, but
Rahibai was of bad character and she left his company in
the year 1949. It is contended that Rahibai was living in
village Wangi since 1949 and during this period there was
no cohabitation between him and Rahibai. It is contended
that the plaintiff is born out of illicit relations of Rahibai.
5) It is the case of defendant No.1 that he had
filed proceeding for divorce against defendant No.3 in the
year 1955. It is contended that he compromised with
defendant No.3 out of Court and then divorce by mutual
consent was obtained by preparing a divorce document
on 21-9-1955.
6) It is the case of the defendant No.1 that
plaintiff was born in village Wangi and in the record of
school name of father of the plaintiff was shown as Bhau
Jagtap. It is contended that as per the school record
plaintiff was born on 1-6-1958 and so he cannot be treated
as a son of defendant No.1.
7) The defendant No.3 Rahibai, mother of the
plaintiff, filed consent written statement. She claimed that
as per Hindu Law she has also share in the property and
her share be separated.
8) On the basis of aforesaid pleadings issues were
framed by the trial Court. Plaintiff and defendant No.1
gave evidence. The trial Court has held that marriage tie
between defendant No.1 and defendant No.3 is in
existence. In view of this circumstance provision of
Section 112 of the Evidence Act is considered. The trial
Court has held that the plaintiff was born in the year
1955. These findings are confirmed by the District Court.
9) This Court has decided to formulate the
substantial questions of law on the basis of grounds
mentioned in the appeal memo at Ground Nos.3 to 6 and
8. Both the sides were allowed to argue on those grounds.
Following substantial questions of law are formulated :-
(i) whether presumption under section 112 of
the Evidence Act is available in favour of the
plaintiff ?
(ii) whether Courts below have committed
error in reading birth extract in respect of
plaintiff in evidence and giving more weight to
it than the school record ?
(iii) whether the defendant No.1 has proved
that marriage was dissolved under the
document of divorce deed ?
10) There is no dispute over the extent of shares
given to the plaintiff and his mother by the two Courts
below. The plaintiff did not challenge the decision of the
trial Court. It is not disputed that the suit properties are
ancestral properties. It is also not disputed that the
parties belong to Maratha community.
11) The marriage between defendant No.3 and
defendant No.1 took place in the year 1944. The
defendant No.1 is relying mainly on the document titled as
divorce deed to prove that there was divorce between him
and defendant No.3. The parties are Hindu and they are
from higher caste i.e. Maratha caste and so the Court is
required to start with the presumption that such divorce
under Hindu Law was not possible. In view of the
provisions of Shastric Hindu Law it was necessary for the
defendant No.1 to prove that there is custom of divorce in
his community and the divorce can be taken as contended
by him. There is virtually no evidence from the defendant
No.1 on such custom. Though there is such mention in the
document itself, only due to such mention inference about
custom cannot be drawn. There needs to be specific
pleading and convincing evidence in respect of such
custom. He belongs to “96 Kooli” Maratha, upper caste of
Hinduism. Both the Courts have held that defendant No.1
has failed to prove the custom. So, there is no need to
interfere in this finding of both the Courts. The evidence
needs to be considered with presumption that the
marriage tie was in existence when the plaintiff was born.
12) The document, divorce deed, at Exhibit 94 can
be considered for considering the other defences of
defendant No.1. This document can be considered for
proving the defence of defendant No.1 that from the date
of execution of the document, the parties started living
separate. If the document is seen, it can be said that there
is mention that the parties were living separate from each
other for about four years. In addition to this document
there is document like copy of marriage petition which
was filed in the year 1955 by defendant No.1 (Exhibit
133). This document shows that, the defendant No.1 had
contended that after 1949 he had visited village Wangi
where defendant No.3 was living on 3 to 4 occasions to
bring her back to matrimonial house. This contention is
nothing but admission that defendant No.1 had access. In
Exhibit 133 there is another mention that defendant No.1
had knowledge that defendant No.3 was carrying of 7 to 8
months on the date of the petition i.e. 31-8-1955. The
divorce document was created on 21-9-1955. In the
divorce document, there is no mention about pregnancy
and also about birth given by defendant No.3 to a son, the
plaintiff. If the husband had knowledge that a son was
born to defendant No.3 but it is illegitimate issue, he
would have taken care to mention about it in the
document. Such care is generally taken to see that no
share is claimed in the properties of the family. Yeshwant
has left behind huge immovable property. Defendant No.1
married two wives and admittedly defendant No.4 is his
second wife. Though there is some admission in the
evidence of defendant No.3 that defendant No.5 is elder
than plaintiff, that admission cannot be given much
weight as she is illiterate lady and there is other evidence
in that regard.
13) In the case of reported as AIR 1954 SC 176
(Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana)
the Apex Court has discussed the provision of Section 112
of the Evidence Act. It is observed by the Apex Court that
fact of “non-access” can be proved like any other fact.
However, the “non-access” must be proved by clear and
satisfactory evidence. If the purpose behind provision of
Section 112 of raising presumption in favour of legitimacy
is kept in mind, it can be said that burden is on the party
who challenges legitimacy, to prove that the child is
illegitimate. Both the Courts below have given finding
against defendant No.1 on this point. As defendant No.1
was expected to prove “non-access” which is a question of
fact, there is no need to interfere in the finding given on
this point. All the relevant material is considered by both
the Courts below. Further, there appears no force in the
case of the defendant No.1 about the bad character of
defendant No.3. There is evidence that sister of the
defendant No.1 was living in the village of defendant No.3.
In respect of this allegation there were no particulars
available with the defendant No.1.
14) For proving the date of birth, plaintiff has relied
on birth certificate which is at Exhibit 65. Evidence is
given that on the basis of report given by the defendant
No.1 to the authority like Police Patil, birth of the plaintiff
was registered. The report is at Exhibit 67. Date of birth is
mentioned as 30-8-1955. The record shows that original
register of births was brought to the Court by officer of
the authority. This record was with Tahsil office. PW 2 –
Macchindra Kamble has given evidence on the register.
15) Learned counsel for the appellant challenged
the record of birth register on the basis of observation
made by this Court in the case of 2005 (1) Mh.L.J. 94
(Gangadhar v. Trimbak) (Bombay High Court Aurangabad
Bench). In this case, this Court has discussed the
provisions of the Births, Deaths and Marriages
Registration Act, 1886. It is observed that as per section
20 of the Act only persons who are mentioned in the
section can give notice of birth to the authority. Said
persons are the father or mother of the child, any person
present at the birth. The provision of Section 22(2) is
considered and it is observed that the person giving
intimation needs to put signature on the register in the
presence of Registrar. Exemption is granted only in
respect of those persons who give notice in writing
disclosing sufficient identity of such person and establish
the same to the satisfaction of the Registrar. There cannot
be dispute over the observations made by this Court. They
are made for the purpose of identity and for ascertaining
as to whether such birth has really taken place. Even if
the record like report given by defendant No.1 to the
Police Patil is ignored, fact remains that incident of birth
of an issue born to defendant No.1 was reported to the
authority and it was entered in the register. Mother could
have given such report. It is very old record, created
before starting of the dispute and there is no reason to
doubt this record. There is one more circumstance like
mention in the marriage petition by defendant No.1 in the
same year that defendant No.3 was carrying and
pregnancy was in advanced stage. It can be said that a
son was already born to the defendant no.3 when such
contention was made in the marriage petition. It is not the
case of the defendant No.1 that said issue born to the
defendant No.3 is different or that issue is dead. Thus the
observations made by this Court in the case cited supra
are of no help to the defendant No.1. This record is to be
used only for the purpose of proving the date of birth,
which is a relevant fact. Provision of Section 114 of
Evidence Act is also available in support.
16) Reliance was placed by the learned counsel for
the respondent No.1 on the case reported as 2008 (5)
Mh.L.J. 147 (Vasudha v. C.I.D.C. of Mah. Ltd.). In this case
this Court has discussed the school record and also the
record of birth prepared under the aforesaid Act. It is
observed that the documents from the school record are
private documents and they carry no presumption in law.
It is observed that such private document needs to be
proved by direct evidence. It is laid down that when there
is variance between an unproved private document and a
certified extract of a public record, the public record must
prevail as it has more probative value and it carries the
presumption under section 79 of the Evidence Act.
17) In view of this position of law and further the
fact that no evidence is given to prove the basis on which
the school record was prepared, this Court holds that no
value at all can be given to the so called school record on
the basis of which the defendant No.1 wanted to prove
that plaintiff was born in the year 1958 and his father was
Bhau Jagtap.
18) The aforesaid discussion shows that both the
Courts below have given decision on the aforesaid points
against the appellant and there is no possibility of
interference in the decision given by both the Courts
below.
19) In the result, the appeal stands dismissed.
Sd/-
(T.V. NALAWADE, J.)
rsl
::: Downloaded on - 12/12/2014 11:22:01 :::
Print Page
(Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana)
the Apex Court has discussed the provision of Section 112
of the Evidence Act. It is observed by the Apex Court that
fact of “non-access” can be proved like any other fact.
However, the “non-access” must be proved by clear and
satisfactory evidence. If the purpose behind provision of
Section 112 of raising presumption in favour of legitimacy
is kept in mind, it can be said that burden is on the party
who challenges legitimacy, to prove that the child is
illegitimate.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.286 of 1994
Bhanudas Yeshwant Nagawade
Versus
Dhondiba @ Bhimrao Bhanudas
Nagawade,
CORAM: T.V. NALAWADE, J.
DATE : 28th APRIL 2014
Citation;2014(6) MHLJ 238 Bom
Read original judgment here;click here
1) The appeal is filed against judgment and decree
of Regular Civil Appeal No.5 of 1987 which was pending
in the District Court Ahmednagar. The First Appellate
Court has dismissed the appeal filed by the present
appellant against the judgment and decree of Regular
Civil Suit No.68 of 1976 which was pending in the Court
of the Civil Judge, Junior Division, Jamkhed. Decree of
partition and possession is given in favour of respondent
No.1. Both the sides are heard.
2) The suit was filed by respondent No.1 in
respect of seven agricultural lands and two house
properties. It is the case of the plaintiff that the suit
property was the ancestral property of his predecessor –
Yeshwant Nagawade. It is contended that defendant No.2
Chandrabhaga is widow of Yeshwant. It is contended that
Yeshwant left behind other heirs like a son by name
Bhanudas (defendant No.1) and a daughter by name
Prayagbai (defendant No.5). It is the case of the plaintiff
that he is son of defendant No.1 and defendant No.3. It is
contended that defendant No.3 is the first wife of
defendant No.1 and defendant No.4 is second wife of
defendant No.1.
3) It is the case of the plaintiff that in April 1976
he demanded partition from defendant No.1 as he had
some dispute with defendant No.1. It is contended that
defendant No.1 refused to effect partition and so plaintiff
was required to file suit for partition. He has contended
that he has two Anna four Paisa share in the suit
properties.
4) Defendant No.1 contested the suit. He denied
that plaintiff is his son. He contended that in the year
1944 he had married with defendant No.3 Rahibai, but
Rahibai was of bad character and she left his company in
the year 1949. It is contended that Rahibai was living in
village Wangi since 1949 and during this period there was
no cohabitation between him and Rahibai. It is contended
that the plaintiff is born out of illicit relations of Rahibai.
5) It is the case of defendant No.1 that he had
filed proceeding for divorce against defendant No.3 in the
year 1955. It is contended that he compromised with
defendant No.3 out of Court and then divorce by mutual
consent was obtained by preparing a divorce document
on 21-9-1955.
6) It is the case of the defendant No.1 that
plaintiff was born in village Wangi and in the record of
school name of father of the plaintiff was shown as Bhau
Jagtap. It is contended that as per the school record
plaintiff was born on 1-6-1958 and so he cannot be treated
as a son of defendant No.1.
7) The defendant No.3 Rahibai, mother of the
plaintiff, filed consent written statement. She claimed that
as per Hindu Law she has also share in the property and
her share be separated.
8) On the basis of aforesaid pleadings issues were
framed by the trial Court. Plaintiff and defendant No.1
gave evidence. The trial Court has held that marriage tie
between defendant No.1 and defendant No.3 is in
existence. In view of this circumstance provision of
Section 112 of the Evidence Act is considered. The trial
Court has held that the plaintiff was born in the year
1955. These findings are confirmed by the District Court.
9) This Court has decided to formulate the
substantial questions of law on the basis of grounds
mentioned in the appeal memo at Ground Nos.3 to 6 and
8. Both the sides were allowed to argue on those grounds.
Following substantial questions of law are formulated :-
(i) whether presumption under section 112 of
the Evidence Act is available in favour of the
plaintiff ?
(ii) whether Courts below have committed
error in reading birth extract in respect of
plaintiff in evidence and giving more weight to
it than the school record ?
(iii) whether the defendant No.1 has proved
that marriage was dissolved under the
document of divorce deed ?
10) There is no dispute over the extent of shares
given to the plaintiff and his mother by the two Courts
below. The plaintiff did not challenge the decision of the
trial Court. It is not disputed that the suit properties are
ancestral properties. It is also not disputed that the
parties belong to Maratha community.
11) The marriage between defendant No.3 and
defendant No.1 took place in the year 1944. The
defendant No.1 is relying mainly on the document titled as
divorce deed to prove that there was divorce between him
and defendant No.3. The parties are Hindu and they are
from higher caste i.e. Maratha caste and so the Court is
required to start with the presumption that such divorce
under Hindu Law was not possible. In view of the
provisions of Shastric Hindu Law it was necessary for the
defendant No.1 to prove that there is custom of divorce in
his community and the divorce can be taken as contended
by him. There is virtually no evidence from the defendant
No.1 on such custom. Though there is such mention in the
document itself, only due to such mention inference about
custom cannot be drawn. There needs to be specific
pleading and convincing evidence in respect of such
custom. He belongs to “96 Kooli” Maratha, upper caste of
Hinduism. Both the Courts have held that defendant No.1
has failed to prove the custom. So, there is no need to
interfere in this finding of both the Courts. The evidence
needs to be considered with presumption that the
marriage tie was in existence when the plaintiff was born.
12) The document, divorce deed, at Exhibit 94 can
be considered for considering the other defences of
defendant No.1. This document can be considered for
proving the defence of defendant No.1 that from the date
of execution of the document, the parties started living
separate. If the document is seen, it can be said that there
is mention that the parties were living separate from each
other for about four years. In addition to this document
there is document like copy of marriage petition which
was filed in the year 1955 by defendant No.1 (Exhibit
133). This document shows that, the defendant No.1 had
contended that after 1949 he had visited village Wangi
where defendant No.3 was living on 3 to 4 occasions to
bring her back to matrimonial house. This contention is
nothing but admission that defendant No.1 had access. In
Exhibit 133 there is another mention that defendant No.1
had knowledge that defendant No.3 was carrying of 7 to 8
months on the date of the petition i.e. 31-8-1955. The
divorce document was created on 21-9-1955. In the
divorce document, there is no mention about pregnancy
and also about birth given by defendant No.3 to a son, the
plaintiff. If the husband had knowledge that a son was
born to defendant No.3 but it is illegitimate issue, he
would have taken care to mention about it in the
document. Such care is generally taken to see that no
share is claimed in the properties of the family. Yeshwant
has left behind huge immovable property. Defendant No.1
married two wives and admittedly defendant No.4 is his
second wife. Though there is some admission in the
evidence of defendant No.3 that defendant No.5 is elder
than plaintiff, that admission cannot be given much
weight as she is illiterate lady and there is other evidence
in that regard.
13) In the case of reported as AIR 1954 SC 176
(Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana)
the Apex Court has discussed the provision of Section 112
of the Evidence Act. It is observed by the Apex Court that
fact of “non-access” can be proved like any other fact.
However, the “non-access” must be proved by clear and
satisfactory evidence. If the purpose behind provision of
Section 112 of raising presumption in favour of legitimacy
is kept in mind, it can be said that burden is on the party
who challenges legitimacy, to prove that the child is
illegitimate. Both the Courts below have given finding
against defendant No.1 on this point. As defendant No.1
was expected to prove “non-access” which is a question of
fact, there is no need to interfere in the finding given on
this point. All the relevant material is considered by both
the Courts below. Further, there appears no force in the
case of the defendant No.1 about the bad character of
defendant No.3. There is evidence that sister of the
defendant No.1 was living in the village of defendant No.3.
In respect of this allegation there were no particulars
available with the defendant No.1.
14) For proving the date of birth, plaintiff has relied
on birth certificate which is at Exhibit 65. Evidence is
given that on the basis of report given by the defendant
No.1 to the authority like Police Patil, birth of the plaintiff
was registered. The report is at Exhibit 67. Date of birth is
mentioned as 30-8-1955. The record shows that original
register of births was brought to the Court by officer of
the authority. This record was with Tahsil office. PW 2 –
Macchindra Kamble has given evidence on the register.
15) Learned counsel for the appellant challenged
the record of birth register on the basis of observation
made by this Court in the case of 2005 (1) Mh.L.J. 94
(Gangadhar v. Trimbak) (Bombay High Court Aurangabad
Bench). In this case, this Court has discussed the
provisions of the Births, Deaths and Marriages
Registration Act, 1886. It is observed that as per section
20 of the Act only persons who are mentioned in the
section can give notice of birth to the authority. Said
persons are the father or mother of the child, any person
present at the birth. The provision of Section 22(2) is
considered and it is observed that the person giving
intimation needs to put signature on the register in the
presence of Registrar. Exemption is granted only in
respect of those persons who give notice in writing
disclosing sufficient identity of such person and establish
the same to the satisfaction of the Registrar. There cannot
be dispute over the observations made by this Court. They
are made for the purpose of identity and for ascertaining
as to whether such birth has really taken place. Even if
the record like report given by defendant No.1 to the
Police Patil is ignored, fact remains that incident of birth
of an issue born to defendant No.1 was reported to the
authority and it was entered in the register. Mother could
have given such report. It is very old record, created
before starting of the dispute and there is no reason to
doubt this record. There is one more circumstance like
mention in the marriage petition by defendant No.1 in the
same year that defendant No.3 was carrying and
pregnancy was in advanced stage. It can be said that a
son was already born to the defendant no.3 when such
contention was made in the marriage petition. It is not the
case of the defendant No.1 that said issue born to the
defendant No.3 is different or that issue is dead. Thus the
observations made by this Court in the case cited supra
are of no help to the defendant No.1. This record is to be
used only for the purpose of proving the date of birth,
which is a relevant fact. Provision of Section 114 of
Evidence Act is also available in support.
16) Reliance was placed by the learned counsel for
the respondent No.1 on the case reported as 2008 (5)
Mh.L.J. 147 (Vasudha v. C.I.D.C. of Mah. Ltd.). In this case
this Court has discussed the school record and also the
record of birth prepared under the aforesaid Act. It is
observed that the documents from the school record are
private documents and they carry no presumption in law.
It is observed that such private document needs to be
proved by direct evidence. It is laid down that when there
is variance between an unproved private document and a
certified extract of a public record, the public record must
prevail as it has more probative value and it carries the
presumption under section 79 of the Evidence Act.
17) In view of this position of law and further the
fact that no evidence is given to prove the basis on which
the school record was prepared, this Court holds that no
value at all can be given to the so called school record on
the basis of which the defendant No.1 wanted to prove
that plaintiff was born in the year 1958 and his father was
Bhau Jagtap.
18) The aforesaid discussion shows that both the
Courts below have given decision on the aforesaid points
against the appellant and there is no possibility of
interference in the decision given by both the Courts
below.
19) In the result, the appeal stands dismissed.
Sd/-
(T.V. NALAWADE, J.)
rsl
::: Downloaded on - 12/12/2014 11:22:01 :::
No comments:
Post a Comment