The matriculation certificate is the best evidence for determining the date of birth, and a DNA test can only be ordered in exceptional circumstances.

JUDGMENT :

1. This case is arising out of a proceedings initiated under Section 9A(2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as “Act, 1953”).

2. Parties have not disputed the pedigree so far as relations are concerned that land in dispute was in the name of Yaqoob, who has three sons, namely, Shakeel, Jameel and Furkan. The eldest son Shakeel had married with Petitioner-1, Smt. Mobin on 01.03.1997. However, unfortunately he died on 27.07.1997. It is the case of Petitioner-1 that out of wedlock of Shakeel a daughter was born (Petitioner-2 herein) whereas case of contesting-respondents is that Petitioner-1, after death of her husband, remarried and Petitioner-2 was born out of wedlock with her second husband. It is further case of contesting-respondents that since Petitioner-1 has not taken care of her husband during his life time, therefore, he executed a Will dated 12.07.1997 in favour of contesting-respondents, i.e., his two brothers.

3. Petitioners have lost before all the three authorities, i.e., Consolidation Officer, Settlement Officer of Consolidation and Deputy Director of Consolidation. Relevant part of impugned orders are mentioned hereinafter :

Order dated 12.04.2022 passed by Consolidation Officer

Order dated 28.06.2022 passed by Settlement Officer of Consolidation

Order dated 13.04.2023 passed by Deputy Director of Consolidation

4. Sri Onkar Singh, learned counsel for petitioners has not disputed above referred date of marriage of Petitioner-1 with Shakeel and date of his death. Learned counsel has vehemently urged that parentage of Petitioner-2 that she was born out of wedlock of Petitioner-1 and Shakeel was rejected on the basis of date of birth mentioned in her High School certificate, i.e., 04.05.1999 whereas date of death of Shakeel was 27.07.1997 and since there was a difference of 615 days between date of birth of Petitioner-2 and date of death of Shakeel, therefore, Shakeel could not be held father of Petitioner-2 without considering or disputing that in certificate parentage of Petitioner-2 is shown as Shakeel and Petitioner-1.

5. Learned counsel for petitioners further submitted that there were other documents on record wherein parentage of Petitioner2 was shown to be daughter of Petitioner-1 and Shakeel, however, they were erroneously not considered. He further submitted that in order to verify the parentage of Petitioner-2, DNA test could be done and appropriate orders may be passed by this Court in this regard.

6. Aforesaid submissions are opposed by Sri Abhitab Kumar Tiwari, learned counsel appearing for contesting-respondents. He refers the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015 that with regard to determination of date of birth the educational certificate of High School is considered to be best evidence. He further submitted that order to conduct DNA test could not be passed in normal circumstances as well as that in terms of Section 171 of U.P. Zamindari Abolition and Land Reforms Act, 1950 Petitioner-1 could not be considered to be legal heir of Shakeel since admittedly she got remarried.

7. Heard learned counsel for parties and perused the material available on record.

8. This Court now proceed to consider first argument regarding determination of date of birth on basis of matriculation certificate. In this regard relevant paragraph of a judgment passed by Supreme Court in Sanjeev Kumar Gupta v. State of U.P., (2019) 12 SCC 370 is reproduced hereinafter :

“17. The 2015 Act came into force on 15-1-2016. Section 111 repeals the earlier the 2000 Act but stipulates that despite the repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of the new legislation. Section 94 contains provisions in regard to the determination of age, is in the following terms:

“94. Presumption and determination of age.—(1) Where, it is obvious to the Committee or the Board, based on the