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2014 Supreme(Bom) 1000
In the High Court of Bombay at Aurangabad
T.V. NALAWADE, J.
Bhanudas Yeshwant Nagawade Since deceased through legal representative:
Versus
Dhondiba @ Bhimrao Bhanudas Nagawade & Others
Second Appeal No. 286 of 1994
Decided on : 28-04-2014
For the Appellant:S.S. Bora, Advocate.
For the Respondents:S.N. Gaikwad, Advocate.
The judgment emphasizes the importance of proving legitimacy and the probative value of official records such as birth certificates in establishing paternity and inheritance rights.
Headnote:
Presumption - Partition Suit - Evidence Act - Section 112, 79 - Hindu Law - Custom of Divorce - Legitimacy - Birth Certificate - School Record
Fact of the Case:
The suit involved a dispute over ancestral properties, with the plaintiff claiming a share based on being the son of the defendant. The defendant contested the paternity, citing a divorce deed and school records to refute the plaintiff's legitimacy.
Finding of the Court:
The court analyzed the evidence, including the divorce deed, birth certificate, and school records, and found that the defendant failed to prove the custom of divorce in his community and the legitimacy of the plaintiff. The court also emphasized the probative value of the birth certificate over the school record.
Issues: The key issues included the presumption under Section 112 of the Evidence Act, the validity of the divorce deed, and the credibility of the birth certificate and school records in determining legitimacy.
Ratio Decidendi: The court held that the burden of proving legitimacy lay with the party challenging it, and the defendant's failure to prove the custom of divorce and the legitimacy of the plaintiff led to the dismissal of the appeal.
Final Decision: The appeal was dismissed, affirming the lower courts' decisions in favor of the respondent.
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
