Mohan Singh & Ors. Vs. Rajni Kant & ANR.  INSC 631 (13 August
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 6466 of
2004 Madan Mohan Singh & Ors. ..Appellants Versus Rajni Kant & Anr.
This appeal has been preferred against the judgment and order
dated 14.8.2003 in Civil Misc. Writ Petition No.19334 of 2003 passed by the
High Court of Judicature at Allahabad by which the High Court dismissed the
writ petition of the appellants in view of the concurrent findings recorded by
the three statutory authorities under the Statute.
Facts and circumstances giving rise to this case are that one
Chandra Deo Singh was recorded as the khatedar of Khata Nos.485, 620, 146 and
66 of Village Bhojapur and Khata No.21 of Village Kanshari. The respondents in
appeal, Rajni Kant and Anjani Kumar claimed themselves to be the sons of said
Chandra Deo Singh and filed objections under Section 9-A(2) of U.P. Consolidation
of Holdings Act, 1953 (hereinafter referred to as `Consolidation Act') and they
asked for inclusion of their names as his heirs. Another objection was filed by
the appellants in the disputed khata submitting that the said respondents had
no right or interest in the suit land, not being the sons of late Chandra Deo
Singh and the appellants were his only legal heirs. The Consolidation Officer
having framed large number of issues and having provided full opportunity of
hearing to both the parties to lead evidence and make submissions, passed an
order dated 8.11.2000, allowing the objections filed by the respondents and
further directing to record their names. Being aggrieved, the appellants
preferred the appeal before the Settlement Officer which had been dismissed
vide judgment and order dated 16.2.2001. Being aggrieved, the appellants
preferred Revision No.958 under Section 48 of the Consolidation Act which also
stood dismissed vide judgment and order dated 15.3.2003.
The appellants further agitated the issue, challenging the said
judgments and orders by filing Writ Petition No.19334/2003 which has also been
dismissed vide judgment and order dated 14.8.2003.
Shri Mahabir Singh, Ld. Senior counsel, appearing for the
appellants, has submitted that mother of the appellants, Smt. Sonbarsa died in
1945. Chandra Deo Singh, father of the appellants remained in Jail as a Freedom
Fighter from 1945-47. There is nothing on record to show that appellants'
father got married with the mother of the respondents Smt. Shakuntala in
accordance with law.
most she could be concubine of Chandra Deo Singh and being illegitimate
children, the respondents have no right to inherit any share in the suit land.
More so, the respondents were born prior to having started live-in-relationship
between Chandra Deo Singh and said Smt. Shakuntala as is evident from the
School Register and School leaving certificate produced by the appellants
before the statutory authorities as well as before the High Court and this
documents had not been properly appreciated by any of the authorities. The
findings of facts recorded by the statutory authorities 3 are perverse being
contrary to evidence on record produced by the appellants. The High Court did
not make any attempt to appreciate the evidence at all. Findings so recorded,
are perverse, being contrary to the evidence on record. The appeal has merit
and thus, deserves to be allowed.
Per contra, Shri Abhay Kumar, Ld. Counsel appearing for the
respondents has submitted that three statutory authorities under the
Consolidation Act have recorded the concurrent finding of fact that Chandra Deo
Singh and Smt. Shakuntala were living together for a long time. Their
relationship as husband and wife had been accepted by the Society as well as
the family members. In many official documents, name of Chandra Deo Singh has
been shown as the father of the respondents. In the beginning, Chandra Deo
Singh did not disclose the relationship with Smt. Shakuntala because of social
conditions that the Society may not accept their relationship even after the
death of his wife Smt. Sonbarsa. Both the respondents were born out of their
relationship. Appeal lacks merits and is liable to be dismissed.
We have considered the rival submissions made by learned counsel
for the parties and perused the record.
statutory authorities under the Consolidation Act enjoys the powers of the
Civil Court as well as the Revenue Court as all matters pending before the Civil
Court stand abated once a notification of initiation of proceedings under the
Consolidation Act is issued. Authorities under the Consolidation Act have been
conferred powers of the Civil Court to adjudicate upon any matter of title or
right to inherit the property etc.
there are concurrent findings of facts recorded by three authorities under the
Consolidation Act after appreciating the entire evidence on record. The
authorities have recorded following findings of facts:- (I) Chandra Deo Singh
was having relationship with Smt.
for long time;
After the death of his wife Sonbarsa in 1945, Chandra Deo Singh had
live-in-relationship with Smt. Shakuntala and started living as husband and
Chandra Deo Singh started living with Smt. Shakuntala in a different village
namely, Murdah in 1960-1961.
Their relationship continued till the death of Chandra Deo Singh on 31.12.1979
and therefore, they lived together as husband and wife for a long period;
respondents and other four daughters were born out of this relationship between
Chandra Deo Singh and Smt.
and (VI) Their relationship as husband and wife had been accepted not only by
the Society but also by the family members.
The aforesaid concurrent findings of facts recorded by the
authorities under the Consolidation Act have been affirmed by the High Court
though without having full-fledged appreciation of evidence. The High Court
reached the conclusion that findings of facts recorded by three courts below
did not require re-appreciation of evidence and further that no interference
was required with same in exercise of writ jurisdiction.
Shri Mahabir Singh, learned Senior counsel appearing for the
appellants persuaded us to have recourse to the unusual procedure submitting
that in spite of concurrent findings of facts by courts below, 6 this Court
must appreciate the evidence itself for the reason that findings of facts so
recorded are perverse. He has placed a very heavy reliance on the documents the
appellants have submitted and contended that the said documents are admissible
under Section 35 of the Indian Evidence Act, 1872 (hereinafter called the
`Evidence Act') and mere reading of those documents would not leave any doubt
that the findings recorded by the courts- below are contrary to the evidence on
record. In order to substantiate his submission, he has placed reliance on
large number of judgments of this Court.
before entering into any law, we would like to examine the documents which are
so heavily relied by learned Senior counsel. The documents so placed on record
are basically School Leaving Certificates, School Registers, Voter Lists and
other documents prepared by the authorised persons in exercise of their
official duty. Annexure P-1(Colly) is the copy of Electoral Rolls for
Legislative Assembly of the three consecutive elections. The particulars of
Smt. Shakuntala had been shown therein as under:- 7 Electoral S.No. House Name
& Father/ Male/Female Age Rolls for Husband/Mother's year of No. Name 1975
128 20 Smt. Shakuntala- Female 34 Saraswati 1979 138 20 Smt. Shakuntala- Female
36 Saraswati 1980 157 20 Smt. Shakuntala- Female 41 Saraswati
These entries are very relevant to determine the controversy
regarding the date of birth of the respondents and other family members. As per
the first document in Annex.P-1 (Colly), Smt. Shakuntala should have been born
in 1941 as she was 34 years of age in 1975. As per the 2nd list she should have
been born in 1943 as she was 36 years of age in 1979. Immediately, after one
year in 1980 she became 41 years of age and according to this document she
should have been born in 1939.
so much inconsistency that these documents cannot be read together for the
reason that in 1979 if Smt. Shakuntala was 36 years of age, in 1980 she had
been shown 41 years of age. So, after expiry of one year, her age had gone up
by 5 years.
Annexure P-3 has been filed as the copy of the report prepared by
the Tahsildar in view of the order passed by the competent court 8 dated
31.7.1984. According to that Asha Devi, daughter of Smt. Shakuntala and sister
of respondents was born on 7.7.1951.
if Smt. Shakuntala as per the first document was born in 1941, question of
giving birth to Asha could not arise at the age of 10 years. If we go by the
second document of 1979, Smt. Shakuntala was born in 1943 and she could not
have given birth to Asha in 1951 at the age of 8 years. According to the third
document, Smt. Shakuntala was 41 years of age in 1980. So, at the time of birth
of Asha, Smt. Shakuntala was 12 years of age. Same is the position in respect
of Savitri, another daughter of Smt. Shakuntala. As per Annexure P-4, School
Leaving Certificate, her date of birth has been recorded as 1.9.1949. If this
document is taken to be true and age of Smt. Shankutala is taken from Annex.P-1
(Colly), we will have to record a finding of fact that Smt. Shakuntala gave
birth to Savitri at the age of 6 years.
Now we come to the most material evidence (Annex. P-8) submitted
by the appellants in respect of age of Rajni Kant, respondent No.1. The said
document is a Certificate for practicing Unani medicine and therein his date of
birth has been shown as 9 15.7.1940. If this document is taken to be true and
compared with the document contained in Annexure P-1 (Colly) wherein Smt. Shakuntala
had been shown 34 years of age in 1975 and 36 years of age in 1979, it becomes
arithmetically clear that Smt. Shakuntala had given birth to him even prior to
her own birth.
The aforesaid documents placed on record by the appellants and so
heavily relied upon by them, if taken into consideration, they would simply
lead not only to improbabilities and impossibilities but absurdity also. It is
most unfortunate that none of the courts below had analysed these documents in
this manner while taking them into consideration and none of the lawyers have
thought it proper to bring these most glaring facts to the notice of and of the
684, this Court dealt with a similar contention and held as under:-
"Admissibility of a document is one thing and its probative value quite
another - these two aspects cannot be combined. A document may be admissible
and yet may not carry any 10 conviction and weight of its probative value may
be nil.. . . . .
report is given by a responsible officer, which is based on evidence of
witnesses and documents and has "a statutory flavour in that it is given
not merely by an administrative officer but under the authority of a Statute,
its probative value would indeed be very high so as to be entitled to great
The probative value of documents which, however ancient they may
be, do not disclose sources of their information or have not achieved
sufficient notoriety is precious little."
Therefore, a document may be admissible, but as to whether the
entry contained therein has any probative value may still be required to be
examined in the facts and circumstances of a particular case. The aforesaid
legal proposition stands fortified by the 11 these cases, it has been held that
even if the entry was made in an official record by the concerned official in
the discharge of his official duty, it may have weight but still may require
corroboration by the person on whose information the entry has been made and as
to whether the entry so made has been exhibited and proved. The standard of
proof required herein is the same as in other civil and criminal cases.
Such entries may be in any public document, i.e. school register,
voter list or family register prepared under the Rules and Regulations etc. in
force, and may be admissible under Section 35 of West Bengal AIR 1999 SC 1587.
So far as the entries made in the official record by an official
or person authorised in performance of official duties are concerned, they may
be admissible under Section 35 of the Evidence Act but the court has a right to
examine their probative value. The authenticity of the entries would depend on
whose information such entries stood 12 recorded and what was his source of
information. The entry in School Register/School Leaving Certificate require to
be proved in accordance with law and the standard of proof required in such
cases remained the same as in any other civil or criminal cases.
For determining the age of a person, the best evidence is of
his/her parents, if it is supported by un-impeccable documents. In case the
date of birth depicted in the school register/certificate stands belied by the
un-impeccable evidence of reliable persons and contemporaneous documents like
the date of birth register of the Municipal Corporation, Government
Hospital/Nursing Home etc, the entry in the school register is to be discarded.
(Vide: Brij Mohan State of Haryana JT 2010 (7) SC 500).
If a person wants to rely on a particular date of birth and wants
to press a document in service, he has to prove its authenticity in terms of
Section 32(5) of the Evidence Act by examining the person 13 having special
means of knowledge, authenticity of date, time etc.
AIR 2005 SC 1868).
State of U.P. & Anr. AIR 2006 SC 2522, held that
live-in-relationship is permissible only in unmarried major persons of
Padayachi & Ors. AIR 1992 SC 756, this Court held that if man
and woman are living under the same roof and cohabiting for a number of years,
there will be a presumption under Section 114 of the Evidence Act, that they
live as husband and wife and the children born to them will not be
The courts have consistently held that the law presumes in favour
of marriage and against concubinage, when a man and woman have cohabited
continuously for a number of years.
such presumption can be rebutted by leading 14 Eknath Gajanan Kulkarni, (1996)
7 SCC 681; and Sobha SCC 244).
In view of the above, the kind of material placed by the
appellants on record cannot be termed enough to disbelieve the claim of the
respondents. The findings of facts recorded by the courts below cannot be
disturbed on this material. The appellants' case has been that the respondents
were born prior to 1960 i.e. prior to the year Chandra Deo Singh started living
with Smt. Shakuntala. As per the Annexure P1 (Colly), Smt. Shakuntala was born
near about 1941.
documents filed by the appellants are taken to be true, we will have to record
a finding of fact that Smt. Shakuntala gave birth to her two daughters, namely,
Asha and Savitri, when she was only 5-6 years of age and in case, the
Certificate of Rajni Kant-respondent no.1, contained in Annexure P8 is taken to
be true and is considered in the light of the documents contained in Annexure
P1 (Colly), it could be arithmetically clear that Smt. Shakuntala had given
birth to Rajni Kant, respondent No. 1 on 15.7.1940, i.e., even prior to her own
15 birth in 1941. If all the said documents are accepted, they would simply
lead not only to improbabilities and impossibilities but absurdity also. It is
most unfortunate that none of the courts below had analysed documents in
correct perspective. The live-in- relationship if continued for such a long
time, cannot be termed in as "walk in and walk out" relationship and
there is a presumption of marriage between them which the appellants failed to
In view of the above, the appeal does not present special facts
and circumstances which may warrant further re-appreciation of the evidence as
the appeal is based on totally unreliable/contradicting documents and not worth
placing any reliance. It is accordingly dismissed. No cost.
..................................J. (P. SATHASIVAM)