Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 6466 of 2004

Madan Mohan Singh & Ors. ..Appellants

Versus

Rajni Kant & Anr. ..Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1.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.

2.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.

2

3.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.

Hence, this appeal.

4.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.

At the 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 Court.

The said 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.

5.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.

4

6.We have considered the rival submissions made by learned

counsel for the parties and perused the record.

In fact, 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.

Undoubtedly, 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.

Shakuntala for long time;

(II)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 wife;

(III)Chandra Deo Singh started living with Smt. Shakuntala in a

different village namely, Murdah in 1960-1961.

5

(IV)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;

(V)The respondents and other four daughters were born out of

this relationship between Chandra Deo Singh and Smt.

Shakuntala; and

(VI)Their relationship as husband and wife had been accepted

not only by the Society but also by the family members.

7.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.

8.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.

However, 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

Rolls for

year of

S.No.House

No.

Name & Father/

Husband/Mother’s

Name

Male/FemaleAge

1975 128 20 Smt. Shakuntala-

Saraswati

Female 34

1979 13820 Smt. Shakuntala-

Saraswati

Female 36

1980 15720 Smt. Shakuntala-

Saraswati

Female 41

9.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 2

nd

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.

There is 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.

10.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.

Therefore, 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.

11.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.

12.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 courts.

13.In State of Bihar & Ors. Vs. Radha Krishna Singh & Ors. AIR

1983 SC 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.. . . . .

Where a 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 weight.

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.”

14.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

judgments of this Court in Ram Prasad Sharma Vs. State of Bihar

AIR 1970 SC 326; Ram Murti Vs. State of Haryana AIR 1970 SC

1029; Dayaram & Ors. Vs. Dawalatshah & Anr. AIR 1971 SC 681;

Harpal Singh & Anr. Vs. State of Himachal Pradesh AIR 1981 SC

361; Ravinder Singh Gorkhi Vs. State of U.P. (2006) 5 SCC 584;

Babloo Pasi Vs. State of Jharkhand & Anr. (2008) 13 SCC 133;

Desh Raj Vs. Bodh Raj AIR 2008 SC 632; and Ram Suresh Singh

Vs. Prabhat Singh @Chhotu Singh & Anr. (2009) 6 SCC 681. In

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.

15.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

the Evidence Act as held in Mohd. Ikram Hussain Vs. The State of

U.P. & Ors. AIR 1964 SC 1625; and Santenu Mitra Vs. State of

West Bengal AIR 1999 SC 1587.

16.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.

17.For determining the age of a person, the best evidence is of

his/her parents, if it is supported by un-impeachable documents. In

case the date of birth depicted in the school register/certificate stands

belied by the un-impeachcable evidence of reliable persons

andontemporaneous 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

Singh Vs. Priya Brat Narain Sinha & Ors. AIR 1965 SC 282;

Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC 1796; Vishnu

Vs. State of Maharashtra (2006) 1 SCC 283; and Satpal Singh Vs.

State of Haryana JT 2010 (7) SC 500).

18.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) or Sections 50, 51, 59, 60 & 61 etc.of the

13

Evidence Act by examining the person having special means of

knowledge, authenticity of date, time etc. mentioned therein. (Vide:

Updesh Kumar & Ors. Vs. Prithvi Singh & Ors., (2001) 2 SCC 524;

and State of Punjab Vs. Mohinder Singh, AIR 2005 SC 1868).

19.In S. Khushboo Vs. Kanniammal & Anr. (2010) 5 SCC 600,

this Court, placing reliance upon its earlier decision in Lata Singh Vs.

State of U.P. & Anr. AIR 2006 SC 2522, held that live-in-relationship

is permissible only in unmarried major persons of heterogeneous sex.

20.In S.P.S. Balasubramanyam Vs. Suruttayan @ Andali

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 illegitimate.

21.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.

However, such presumption can be rebutted by leading

unimpeachable evidence. (Vide: Mohabbat Ali Khan Vs. Mohd.

Ibrahim Khan, AIR 1929 PC 135; Gokalchand Vs.. Parvin Kumar,

14

AIR 1952 SC 231; S.P.S. Balasubramanyam Vs. Suruttayan,

(1994) 1 SCC 460; Ranganath Parmeshwar Panditrao Mali Vs.

Eknath Gajanan Kulkarni, (1996) 7 SCC 681; and Sobha

Hymavathi Devi Vs. Setti Gangadhara Swamy & Ors., (2005) 2

SCC 244).

22.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.

If the 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 rebut.

23.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)

……………………..…

…..J.

New Delhi, (Dr. B.S. CHAUHAN)

August 13, 2010

16

17