The Court applied the principle of balance of probabilities and relied on the Evidence Act to establish the legitimacy of the child and reach its decision.

VALMIKI J. MEHTA, J.

1. The challenge by means of this Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC), is to the impugned judgment of the trial Court dated 14.5.2004. By the impugned judgment the suit of the respondent/plaintiff for partition, permanent injunction etc. was decreed with respect to the suit property being H.No. 80(part) Samaipur Main Market, Delhi.

2. The only issue which is urged before this Court is as to whether respondent /plaintiff was or was not the legitimate child of Sh. Rajender Singh and Smt. Murti Devi. Putting it differently, the issue is whether the date of birth of the respondent /plaintiff is 1.3.1975 and whether Smt. Murti Devi married Sh. Rajender Singh earlier on 20.4.1974 as per the case of the respondent/plaintiff or later on 15.12.1975(i.e. after 1.3.1975) as per the case of the appellants/defendants.

3. The facts of the case are that Smt. Murti Devi, mother of the respondent/plaintiff was married to the elder brother of the defendant no.1. The elder brother namely Sh. Suraj Singh died in the year 1969 and the respondent/plaintiff was born on 1.3.1975 inasmuch as Smt. Murti Devi lived with and got married to Sh. Rajender Singh/defendant No.1 who is the younger brother of Sh. Suraj Singh, the deceased husband of Smt. Murti Devi.

4. The issue as to what was the date of marriage of Smt. Murti Devi, mother of the respondent/plaintiff with Sh. Rajender Singh, the second husband has been dealt with by the trial Court in the following paragraphs.

“5. Issue No.2 to 4

Main dispute between the parties is as to whether plaintiff is son of defendant no.1 or not. It is admitted case that Murtidevi who is mother of the plaintiff was married to elder brother of defendant no.1 who died in the year 1969. This is also not in dispute that plaintiff was born on 1-3-75. Therefore, only disputed question is whether Murti Devi married defendant no.1 on 15-12-75 as claimed by defendant no.1 or on 20-4-74 as claimed by the plaintiff.

6. In her affidavit pw2 Murtidevi has stated that after death of her first husband Suraj Singh in the year 1969, she started staying with defendant no.1 as his wife and their marriage as per customary rites was performed on 20-4-74. She has produced certificate of marriage Ex.PW2/A. PW3 Rampat Yadav is a resident of Village Samaipur. In his affidavit he has stated that Murti Devi started living with defendant no.1 after death of her husband Suraj Singh in the year 1969 and their marriage as per customary rites took place on 20-4-74. PW4 Mohanlal Yadav is another resident of Village Samaipur. He has corroborated the deposition of PW2 and PW3. PW5 Balbir singh Yadav is Pradhan of village Samaipur. In his affidavit he has stated that he has attended marriage of Murti Devi with defendant no.1 on 20-4-74 and certificate Ex.PW2/A was issued by him as Pradhan of the village. He has also claimed that Murti Devi was residing with defendant no.1 since the death of her husband Suraj Singh in the year 1969.

7. In rebuttal defendant no.1 Rajender Singh has stated that after the death of his elder brother Murti Devi was residing separately with her children and he married her only on 15-12-75 when the plaintiff was of the age of about 9 months. According to him plaintiff is not his son and his (defendant’s) name has been wrongly mentioned in the school record by Murti Devi. He has also stated that he is realizing rent of `950/- pm from the two shops let out in the suit property.

8. DW2 Kanwar Singh is also resident of village Samaipur. In his affidavit he has stated that Murti Devi was married to defendant no.1 on 15-12-75 and the plaintiff was 9 months old at that time.

9. Ex.DW1/1 is the birth certificate of the plaintiff. This document has been filed by the defendant no.1 himself. In his cross examination defendant no.1 has admitted that he had obtained the birth certificate of plaintiff Ex.DW1/1. A perusal of the birth certificate shows that