S. Mohan, J.
1. The plaintiffs are the appellants before us in this appeal, which arises out of O.S. No. 221 of 1976, filed before the learned Subordinate Judge of Cuddalore. The said suit was for partition and separate possession.
2. The plaint averments are as follows: The first plaintiff is the second wife of deceased Muthusami Udayar. Plaintiffs 2 to 7 are the sons and daughters of the plaintiff, born through the said Muthusami Udayar. He had a first wife by name Alamelu. Through her, he had the first defendant, son. Defendants 3, 5 and 6 are the sons and daughters of the first defendant. The 4th defendant is the wife of the first defendant. The second defendant is the sister of the 1st defendant. The grandfather of plaintiffs 2 to 7, Poomalai Udayar, owned 2-66 acres of land at Virugavur. He also owned a terraced house, fully described in Schedule B. With the income from the lands Muthu-samy purchased another 6.30 acres, even during the lifetime of Poomalai. After the death of Poomalai, Muthusami inherited the entire property. Therefore, the suit properties are ancestral in character. The marriage between Muthusamy and first plaintiff took place in the year 1934. Muthusamy, his first wife Alamelu and the first plaintiff were all living together as one family till 1952. However, consequent to certain misunderstandings the first plaintiff shifted her residence to West Street, Virugavur, where she is living till today. Muthusamy used to visit her every day. He was also maintaining the first plaintiff and her children. He acquired about 10 acres of land besides 2 houses at Kallakurichi and three houses at Virugavur. Though the properties have been purchased in the name of defendants 1 to 5, all these belong to joint family. After the death of Muthusamy Udayar, the first defendant began to take an hostile attitude. When the first plaintiff called upon the first defendant to divide the joint family properties through a Panchayat, that request was refused. It is under these circumstances the present suit has come to he filed for partition and separate possession of 31/45 share in the suit properties.
3. In the written statement of the first defendant it was contended that the suit is a vexatious one. It is stoutly denied that the first plaintiff is the second wife of Muthusamy Udayar. it is equally denied that plaintiffs 2 to 7 are the children born to Muthusamy Udayar. The first plaintiff belongs to 'Man Oddar' community, while Muthusamy Udayar belongs to 'Malaimannar' community. The only wife was Alamelu. Therefore, Muthusamy Udayar did not and could not have married the first plaintiff. The first defendant understands that the first plaintiff was leading an immoral life and was begetting children. Plaintiffs 2 to 7 have nothing to do with Muthusaml. The first defendant's mother died in 1973. Muthusami died in 1376. The first defendant is the only son of Muthusami. All the allegations made with regard to the relationship of the plaintiffs to Muthusaml Udayar are untenable and false. The allegation that Muthusami Udayar was visiting her every day in the house at West Street is false. Because of the claim of paternity Muthusami Udayar himself inserted a publication in 'Malai Murasu' on 15th July, 1972 denying the authorship of invitation and also the relationship of V.M.R. Sekar. The property standing its the name of the defendants came to be purchased only by the defendants out of their own exertion and no claim can be made by the plaintiffs with regard to those properties. Since the decree has been obtained by the first defendant against one Thangavelu and since he owes large amounts to the first defendant's sister and his daughter, in order to defeat the same, he has instigated the plaintiffs to file the suit.
4. The written statement of the first defendant was adopted by defendants 2 to 6.
5. A reply statement was filed reiterating the allegations in the plaint.
6. On the above pleadings the following Issues were framed for trial:
(1) Whether the 1st plaintiff is the legally wedded wife of Muthusami Udayar?
(2) Whether plaintiffs 2 to 7 are the children of Muthusami Udayar?
(3) Whether the 1st plaintiff married Muthusami Udayar in the year 1934?
(4) Whether the items other than items 36 to 39, 44 to 49 and 52 of B schedule belong to the joint family?
(5) Whether items 57 and 58 of 6 schedule belong to 3rd defendant?
(6) Whether the items set out in C schedule exist?
(7) Whether items 10,21,24,29,30 to 32, 34 to 36,38,40 and 42 and 45,47,48 of C schedule belong to the 1st defendant?
(8) Whether the outstandings in schedule D exist?
(9) To what relief, are the plaintiffs entitled?
7. On the side of the plaintiffs, the documentary evidence consists of Exs.A-1 to A-47, and the oral evidence is that of P.Ws.1 to 6. On the side of the defendants, Exs.B-1 to B-29 were marked and the oral evidence consists of D.Ws.1 to 5.
8. On a consideration of the matter, the learned Subordinate Judge gave a finding on issues i to 3 that the plaintiffs have not proved their case. The claim of the first plaintiff that she was married to Muthusami Udayar and the claim of defendants 2 to 7 that they were the children through Muthusami Udayar were liable to be rejected. Accordingly he answered these issues against the plaintiffs.
9. Consequent to this finding he held that issues 4 to 8 would not arise for consideration. Therefore, they were left open without giving any finding. In the result, under issue No. 9 the suit was dismissed with costs. Hence, the appeal,
10. Learned Counsel for the appellants Mr. R. Alagar urges before us that the allegation of immorality against the first plaintiff, though recklessly made, was given sap during evidence. As regards the proof of marriage of the first plaintiff with Muthusami Udayar, there is abundant oral evidence as well as documentary evidence. The rejection of the same by the court below is incorrect, The marriage invitation of the 5th plaintiff, Ex.A-27 is dated 18th October, 1957 itself. Ex.A-28 is dated 12th July,. 1972. Ex.A-29 is dated 16th November, 1975, These marriage invitations, which were issued long before the disputes arose between the parties clearly prove that Muthusami Udayar was the father of plaintiffs 2 and 3. Once they are accepted no further proof is required. As regards 5th plaintiff, there is Ex.A-26, a certificate given by the Executive Officer, to evidence the fact that the marriage of the 5th plaintiff took place on 18th October, 1957. There is oral evidence to corroborate the actual celebration of the marriage.
11. There is the oral evidence of F.Ws.2, 3,4 and 5 to prove the factum of marriage. Their evidence has been wrongly rejected is the submission, since there is nothing to show that the witnesses are speaking falsehood. Ex.A-46 is the Register of Admissions of the Panchayat Union Elementary School, Virugavur. There is an alteration of columns 4 and 7 with regard to the name of the father and profession. P.W.6 speaks about the issuance of Ex.A-46 end about these alterations. In Ex.A-47, Survey No. 167 relates to one of the plaintiffs. Here again, there is an alteration. Ex.A-43 is a re-vaccination certificate. The rejection of these valuable documentary evidence cannot be supported. There is another set of documents by way of voters' list, Exs.A-31, A-32 and A-33. Curiously enough attempts were made in 1970 to have these altered to the advantage of the defendant. The next set of documents are the birth extracts. Ex.B-28 contains the thumb impression, instead of the signature. The informant is none other than Kulli, the mother of the first plaintiff. Exs.B-6 to B-9 strangely do not contain the father's signature. The cumulative effect of these documents establishes the marriage and that the plaintiffs 2 to 7 are the sons and daughters of Muthusamy, through the first plaintiff.
12. In so far as there is no allegation that Rajambal was leading a wayward life, nor was she a concubine, the presumption is to be made that she was only the wife. Ex.B-7 has evidentiary value though it does not give the father's name,
13. Ex.A-27 relates to Pattu Ammal, the 5th plaintiff, as spoken to by P.W. 1. Having regard to all these documents, and the oral evidence it cannot be denied that the marriage between the first plaintiff and Muthusami Udayar did take place. The plaintiffs 2 to 7 are the children of Muthusami Udayar.
14. Mr. M.R. Narayanaswami, learned Counsel for the first respondent (1st defendant) argues, the points that arose for determination relate only to issues 1 and 3. In the plaint, the marriage between the first plaintiff and Muthusami is stated to have taken place at a time when Poomalai, the father of Muthusami Udayar was alive, whereas the evidence of P.W.2 does not support the same. Then again, the definite case of the plaintiff was that the marriage took place in 1934. But, that is given a go by in evidence. As to what is the standard of proof required for a marriage, is laid down in Raghubir Kumar v. Shanmughavadivu : (1970)2MLJ193 . When the plaintiff came forward with a definite case of marriage on the theory of long cohabitation, three things require to foe proved:
(1) The society recognised them as man and wife;
(2) The members of the family accepted as such;
(3) The father acknowledging the paternity.
Not one of these has been proved. There must be proof of factum of marriage as laid down by this Court in A.S.No. 67 of 1965 dated 18th August, 1972. Therefore, the existence of other circumstances will not matter.
15. His attack of Ex.A-27 is that in order to prove the marriage it is rather strange that not one from bride-groom's family (Karuppa Udayar) has been examined. It is well settled law that marking of the documents by consent cannot amount to proof of the contents - Vide Palamappa Chettiar v. Bombay Life Assurance Co, Ltd. : AIR1948Mad298 .
16. As regards Ex.A-28, some one from Kanniappa's family could have been examined. The touch-stone for the credi-tability of the evidence is Ex.A-29. It is not an invitation from Muthusami Udayar. The recitals therein are tell-tale. No one from the printing press, nor any one of the persons who offered felicitations are examined. The oral evidence regarding these invitations is also scanty. Ex.A-26 has to be rejected. The evidence of P.W.2 as regards Ex.A-26 is that there was no marriage invitation for Pattu Ammal. Even Ex.A-28 was not sent through post.
17. As regards birth register extract, Ex.A-25 is dated 21st April, 1950. This is stated to relate to the 6th plaintiff. P.W. 1's evidence occurs at pages 79 and 80 of the typed set. How can the plaintiffs complain about the alterations contained in their own document, Ex.A-25? Then again, Manja Krishnamurthy is not 1st defendant's father. Who is Manja Krishnamurthy has been explained in oral evidence. In documents like Ex.B-14 Muthusami has signed. In Ex.B-5 the father's name is given as Samayathu Muthusamy. The said person is P.W.3. As a matter of fact the lower court has rendered a finding that there is no dispute that Exs.B-5 to B-9 relate to the children born to the first plaintiff. If that be so, the plaintiff's case stands totally falsified. Regarding the place of birth it is stated that P.W.2, the first plaintiff, gave birth to all the children in the house of Muthusami Udayar. If really that were so, Muthusami Udayar would have been the informant with regard to the birth register, but not Kulli, the mother of the first plaintiff.
18. As regards voters' list all that has been found by the court below cannot be impeached at all. It was pointed out that there are various vital discrepancies in the voters' list. The evidence of P.W. 1 is that the school records were burnt. If that be so, neither Ex.A-40 nor Ex.A-41 could be of any value.
19. Coming to Ex.A-43, a portion marked in the birth register, had been scored out, and the age is not correct. Kullammal, is described as wife of Muthusami. It U in the light of these documents the evidence of P.Ws.3 to 5 have to be assessed.
20. In the plaint it is averred that the 1st plaintiff had no quarrel with the first wife Alamelu. But in the evidence as P.W.2, the first plaintiff would state, because of the quarrel she went out of the house.
21. P.W.3 is inimically disposed of towards the defendants, because a decree was obtained by Alamelu. Added to that, he had to save himself from Ex.B-5. Then again there was a criminal complaint as evidenced by Ex.B-29. Therefore, his evidence is highly interested.
22. Equally unworthy is the evidence of P.W.4, who is inimically disposed towards Muthusamy Udayar, because he filed a suit on a promissory note against this witness.
23. There is no evidence from the family members that from 1934 to 1976 the 1st plaintiff was accepted as the wife of Muthuswami.
24. P.W.5 claims to know the family very well and he goes to the extent of stating that even at the time of Alamelu's marriage, Muthusami Udayar's father was alive. This version contradicts the averment in paragraph 3 of the plaint, which shows that he knows nothing about the family. As against this scanty interested evidence there is the evidence of D.W.3 and D.W.4 who were not in any way interested.
25. The general sub missions are : The suit notice was issued under Ex.A-38, dated 28th June, 1976. The reply by the defendant was under Ex.A-39 dated 6th July, 1976. On 24th August, 1976 the suit was filed. Except Ex.A-28 no other marriage invitation is filed, when there is a specific denial of marriage in the reply notice. Thus looked at from any point of view no exception can be taken to the findings of the court below. Therefore, the appeal deserves to be dismissed.
26. Mr. N.C. Raghavachariar, learned Counsel for the second respondent would contend that it is the plaintiffs who have to prove the fact of marriage. The onus is heavy on the plaintiffs. That onus has not been discharged. The plaint says that the marriage was in 1934, while in Ex.A-38, the suit notice no year is stated. At the time of Muthusami Udayar's death, all the children were grown up. If that were so, it is somewhat strange that there is no demand by them to the property. During the lifetime of Muthusami Udayar, the sons do not come forward to state the relationship between them and their father. The best evidence is not placed before the Court. Not even the Sambandhi is examined. P.W.1 disclaims knowledge about the existence of P.W.3. Therefore, the examination of P.W.3 itself is surprising. P.W.3 is a perjurer. He denies that he had no prefix in his name. Later, he was obliged to admit that he was known as Samayathu Muthusamy. Then again, at first he states that there was no decree against him. Later he admits that there were execution proceedings. Why is it that not one of the plaintiffs had access to the father, even by way of letters?
27. In the plaint, Chandra, the 6th plaintiff is stated as unmarried, while in fact it is admitted that she was married earlier.
28. In the absence of positive evidence of paternity, the evidence of P.W.2 has to be rejected, as mere ipse dixit. The filing of the suit after the death of Muthusami itself is suggestive of the fact that the plaintiffs have been waiting for an opportunity to coerce the defendants and get some property. Therefore, the appeal deserves to be dismissed.
29. The contention of Mr. M. Srinivasan, learned Counsel for other respondents, is that in 1972 itself if Ex.A-30 was issued without the knowledge of Muthusami, why was it that Muthusami did not make any provision when he was unwell at his last days? If really there was a concubinage and if the 1st plaintiff was illegitimate, Muthusami would have provided something for her.
30. If really D.W.3 was a friend of Muthusami and if the plaintiffs 2 to 7 are the children of Muthusami, he would depose about them. The non-examination of any independent witness to speak about the affairs of Muthusami itself is suggestive of the fact that the defendants are afraid of facing the truth. In support of this, learned Counsel relies on Gokul Chand v. Parvin Kumari : 1SCR825 . The alterations in the birth extracts have come to be done only by the plaintiffs who are influential persons in the locality. Therefore, the evidence let in on the side of the plaintiffs cannot be supported at all.
31. Having regard to the above arguments, the only question that arises before us is whether the marriage between Muthusami Udayar and the first plaintiff has been proved and if so, whether the plaintiffs 2 to 7 are the legitimate children of Muthusami Udayar, through the first plaintiff.
32. In paragraph 111(3) and 4 of the plaint it is stated thus:
The plaintiffs submit that after the death of Poomalai Udayar, Muthusami Udayar, inherited the entire property which is an ancestral one in character and he was in enjoyment of the same. Even during the lifetime of Poomalai Udayar, the said Muthusami Udayar married the 1st plaintiff in the year 1934 according to Hindu sastras. Prior to that the said Muthusami Udayar married one Alamelu Ammai and defendants 1 and 2 are her son and daughter.
(4) The plaintiffs submit that Muthusami Udayar, his 1st wife Alamelu Ammal and the 1st plaintiff were living together as one family in the family house aforementioned till about 1952. Thereafter on account of misunderstanding between the said Aiamelu Animal and the 1st plaintiff on the advice of Muthusami Udayar shifted her residence to west street, Viruguvur and she is living there till today, along with the other plaintiff So But the said Muthusami Udayar was visiting the house of the 1st plaintiff every day and he was also maintaining the 1st plaintiff and her sons and daughters from out of the family funds.
33. In the written -statement this is countered in paragraph 2 in the following manner:
This defendant very emphatically denies that the 1st plaintiff is the wife or the 2nd wife of Muthusami Udayar, or that plaintiffs 2 to 7 are the children of Muthusami Udayar. The 1st plaintiff who claims to be the mother of plaintiffs 2 to 7 belongs to Mannoddar community. Muthusami Udayar, the father, since deceased, of this defendant belongs to Malai Mannar community, Muthusami Udayar's only wife was one Alamelu Ammal, i.e. mother of this defendant, Muthusami Udayar did not and could not at any time marry 1st plaintiff. So far as this defendant is able to learn, she had not been married to anybody. No doubt she was living an immoral life and was begetting children. So far as this defendant is able to learn she had as many as 8 children, two of whom appear to have died. The other 6 children are plaintiffs 2 to 7. They had nothing to do with Muthusami Udayar. There is unimpeachable evidence to show that the 1st plaintiff was never the wife of Muthusami Udayar. Muthusami Udayar's wife, viz., this defendant's mother died in 1973. Muthusami Udayar himself died on 25th May, 1976. This defendant is the only son of Muthusami Udayar while the 2nd defendant is his daughter. Defendants 3 and 6 are this defendant's sons while the 5th defendant is the daughter of this defendant.
Ex.A-38 is the suit notice, dated 28th June, 1976. The reply of the 1st defendant is contained in Ex.A-19 dated 8th July, 1976. The suit came to be filed on 24th August, 1976. It requires to be noted that there was a specific denial of the marriage in the reply notice itself.
34. In Raghuvir Kumar v. Sat. Shanmughavadivu : (1970)2MLJ193 on a reference to the case law, it was held:
Rev. Taplin Watson v. Tate (1937)3 All E.R. 105 where Simonds, J. dealing with the question of repute, had expressed as follows;
They were there received into society, which was not a society of loose and uncertain morals, but with proper views as to material relations, and were at ail times regarded as man and wife. This presumption Is not to be disturbed except by evidence of the most cogent kind.
In this case it is clear from the evidence that the second plaintiff was received in the family of Palaniswami practically as one of its members and his mother Thathammal and his wife, the defendant, and other relations were treating the second plaintiff as another wife of Palaniswamy in ail these years upto death of Palaniswamy. It is significant to note that there is no piece of evidence that the second plaintiff was ever referred to by any one as a concubine of Palaniswamy until his death in 1960 but, on the other hand there is considerable evidence, both oral and documentary, showing that she was treated and recognised as a member of the family and that Palaniswamy himself had acknowledged the second plaintiff as his wife.
Again ag page 203 the following observations are found:
Then reference has to be made to a recent judgment of a Division Bench of this Court in Rajagopal Pillai v. Pakkiam Ammal : (1968)2MLJ411 which held that the presumption of law is the strongest of legal presumptions and not lightly to be repelled by a mere balance of probabilities and that the evidence repelling that presumption must be strong, distinct and satisfactory. After referring to the various decisions on the point, both English and Indian, dealing with She presumption of marriage, the learned judges, Ramamurthi and Alagiriswamy, JJ. expressed:
'The presumption of law is the strongest of legal presumptions and is not lightly to be repelled by a mere balance of probabilities and the evidence repelling that presumption must be strong, distinct and satisfactory. Every intendment is made in favour of a marriage de facto and the more distant, the date of the marriage, the more readily is the presumption drawn, based upon cohabitation and repute. The weight of the presumption gets strengthened when it is proved that the party whose marriage is in question distinctly intended to marry and went through a form of marriage with that intention and also subsequently lived together as man and wife and were esteemed and reputed 'as such by those who knew them,' The presumption still exists, even when there is no positive evidence of any marriage having taken place, The presumption is nor. only with regard to the factum of the marriage, but also with regard to the performance of the requisite ceremonies to constitute a valid marriage,'
As against these decisions which lend considerable support to the appellants' contention that there is a strong presumption in favour of the marriage and that the evidence adduced on the side of the defendants is quite insufficient to rebut the legal presumption arising from the established facts in this case, the learned Counsel for the respondents referred to the following authorities in support of his contention that such a presumption cannot arise in the case of a second marriage.
Even at the outset we have to state that the burden is entirely on the plaintiffs to prove the marriage. It is in this legal background we have to examine the documentary and the oral evidence to find out whether the plaintiffs have discharged the burden. The first set of documents would be marriage invitations, Ex.A-27 relating to 5th plaintiff. Ex.A-28 relating to 2nd plaintiff and Ex.A-29 relating to 3rd plaintiff.
35. First of all, we will take up Ex.A-27. Ex.A-26 is the certificate marked in support of the printed marriage invitation, Ex.A-27. Why the marriage took place at Chidambaram has not been explained, The certificates, Ex.A-26 was issued by a living person. He is not examined. That is very fatal, since the decision reported in Manicka Mudaliar v. Shanmugasundara Mudaliar : (1982)2MLJ301 requires such a procedure to be adopted, Therefore, in the absence of examination of the person who issued the certificate, we can attach no credential value to that document. More than this, this certificate was issued after suit. No doubt the document was marked. But mere marking even by consent, cannot amount to proof of the document. In Palaniappa Chettiar v. Bombay Life Assurance Co., Ltd. : AIR1948Mad298 a Division Bench of this Court has held thus:
Held, that the documents containing the statements of the dc - were not admissible in evidence without the doctor being examined as a witness. Nor were the statements admissible under Section 20, Evidence Act, 'because plaintiffs did not represent that they were prepared to accept the statement made by the doctor.
Held further, that by agreeing to the statements being marked in evidence without objecting to their admissibility, the plaintiffs cannot be said to have agreed to accept the correctness of every statement made by the doctor.
36. Again in Karuppanna Thevar v. Rajagopala Thevar : AIR1975Mad257 the head note reads as follows:
The consent of the party for marking the document only relieves the plaintiff of his obligation to prove that the original is a public document within the meaning of Section 74. But where document is alleged to have been signed by the defendant and that fact is disputed the plaintiff must prove the signature of the defendant or that the defendant signed the document as required by Section 67. The consent given by a party for marking a document does not dispense with either the proof of contents of the document or the truth or otherwise of the contends.
The oral evidence on this aspect of the matter is, what is spoken to by P.W.2. She categorically admits that no marriage invitation was issued for the marriage of Pattu Ammal. However, she would add that the marriage took place at Chidambaram. As to why no one from the bridegroom's family has been examined is hot explained.
37. Coming to Ex.A-28, the attack of the respondents is that someone from the side of the bride could have been easily examined. For reasons best known, that has not been done.
38. Ex.A-29 is another invitation, which, by a reading of it, would disclose that the recitals are tell-tale and Ex.A-29 does not purport to be an invitation from Muthusami Udayar. The invitations, Exs.A-27 to A-29, were issued by the same printing press. No one from the Press is examined. Then again, the persons who are supposed to have afforded felicitations have not been examined. The evidence of P.W. 1 is that for the marriage of Kolanchiappan, the 3rd plaintiff, Muthusami Udayar did not participate. The suggestion with regard to Ex.A-28 is that it was printed by P.W. 1 himself. Then again P.W.2 also says that for the marriage of Kolanchiappan, Muthusami Udayar did not come. We are unable to attach any importance to the marriage invitations, for the reasons stated earlier.
39. The next set of documents would be the birth extracts. Ex.A-25 is the extract of birth issued by the Sub-Registrar of Kallakurichi for the birth of a female child on 21st April, 1950. This is stated to relate to the 6th plaintiff. The evidence of P.W. 1 is that Manja Muthusami Reddiar is the father. How far this is acceptable can be assessed from his own evidence. He states in cross-examination that he does not know whether Veeramuthu Udayar, his maternal grandfather, was known as Muthusami Udayar. It was his family which is known as Manja Muthusami Udayar's family. In documents like Ex.B-14 etc., Muthusami Udayar himself has signed. If Ex.B-5 contains the name as Samayathu Muthusami Udayar, who is P.W.3, as brought out in evidence, certainly, it cannot relate to Muthusamy the father of the first defendant. As to who this Manja Muthusamy is clear from the evidence of D.W.I. He states that it would refer to only D.W. 1's maternal grandfather and that what is stated in Ex.A-25 would refer only to him and he alone. It requires to be noted that the informant is stated to be one Kulli. She is the mother of 1st plaintiff. Exs.B-6 to B-9 are the other birth extracts, wherein the father's name of the child is not mentioned. The mother's name alone is mentioned. The learned Subordinate Judge, in paragraph 6 of his judgment has rendered a finding as follows:
There is no dispute that Exs.B-5 to B-9 relate to the children born to the plaintiff. In Ex.B-5, the father's name is mentioned as Samayathu Muthusami Udayar. The informant is stated to be one Kulli who is none other than the mother of the first plaintiff.
If this be the real position, why Muthusami Udayar, the father of the children was not the informant, but it is only the 1st plaintiff or her mother Kulli or her brother? Then again there is a vital discrepancy as to the place of birth. The evidence of P.Ws.3 to 5 is that the first plaintiff gave birth to the children in her mother's house, while P.W.2 would state that it was only in the house of Muthusami she gave birth to six children. Likewise P.W.5 also would state that the children were born only in the mother's house. Why there could be such a discrepancy on this aspect, we are unable to understand. No doubt Ex.B-5 discloses the tampering of the same. As to why it is interpolated is a matter for guess. The evidentiary value of the birth extract has come to be laid down in Mahadeva Rao v. Yasoda Bai : (1962)2MLJ107 . Ananthanarayanan, J. as he then was, has held as follows:
Unless it could be established by evidence that the father of the child is himself the informant, on the basis of which information the paternity of the child is entered in the Birth Register of the Local Body an extract of such birth register where the name of the informant is not filled up, cannot give rise to any presumption as to the paternity of the child in a proceeding for maintenance under Section 488 of the Criminal Procedure Code....
40. Again in Narayanaswami Naidu v. Kochadai Naidu : AIR1969Mad329 the head note reads:
Under Section 35 of the Evidence Act (I of 1872), it is only the entry made by a public servant in the discharge of his official duties that is admissible as a relevant fact. Other particulars not strictly covered by the entries are not admissible under Section 35 of the Evidence Act. The name of the child recorded in the birth registration extract was inadmissible under Section 35 of the Evidence Act. The entries do not require the officer to record the name of the child. If there is other independent evidence connecting the entries, the entries and the independent evidence may supplement one another.
If somebody who gave the information had given evidence about his knowledge of the relationship, the entry would be corroborative evidence of the evidence of that witness under Section 157 of the Evidence Act, but not the entries themselves.
Therefore, these by themselves do not prove the paternity. That apart, there is no birth extract either for the 4th plaintiff or the 7th plaintiff. Why they have not been filed is not explained.
41. Then comes the voters' lists. Exs.A-31, A-32 and A-33. In Ex.A-31, serial number 460 is the entry relating to the 1st plaintiff. That states the Door No. 77 in Ward No. 7, while S.No. 247 is in Door No. 102 in Ward No. 1. The husband's name is given as Muthusami Udayar. The age of the 1st plaintiff is noted as 35. This voters' list was prepared in 1953 for the Panchayat election. Ex.A-32 is only a proposal for correction and not a voters' list. There, the door number is given as 76 in Ward No. 2. Ex.A-33 is the voter's list prepared in 1959. Kanjamalai is the son of Muthusamy. How he could live in Door No. 77 has not been explained. As against this, we have Ex.B-10 of the year 1966 relating to 1st defendant's family for Door No. 102, while Rajambal's family is shown at page 12 relating to Door No. 77. Ex.B-11 at page 5 relates to 1st defendant's family at Door No. 102. In Ex.B-12, S.No. 1016 relates to 1st defendant's family at Door No. 102. In Ex.B-12, the entry in S.No. 1016 relates to the plaintiffs. Rightly it has been observed by the learned Subordinate Judge that the persons who prepared the voters' list may not have personal knowledge and they rely purely upon the information supplied to them. Why the entry that Muthusamy is the husband of the 1st plaintiff is not found in Exs.B-10 and B-12 has not been explained.
42. Ex.A-43 is the re-vaccination certificate. We are totally unable to rely on this evidence, because the certificate part of it has been scored out. The column relating to the year of birth is not correct and Kullammal is described as Muthusami. As rightly held by the learned Subordinate judge, in the column relating to birth the age of Muthusatni is given as 1922, the age of the 1st plaintiff as 1931, that cannot relate either to the year of birth of Muthusami or the list plaintiff because, according to her, the marriage between her and Muthusami took place in 1934,
43.The last series of documents are EXS.A-46 and A-47. To prove the same, P.W.6 has been examined. These documents contain erasures and overwriting. We are in entire agreement with the learned Subordinate Judge in appreciating the value of this evidence. He states in paragraph 8 of his judgment as follows:
In Ex.A-46 in column 4 relating to the name of the parent something was originally written and subsequently erased. In column No. 5 relating to the name of guardian the name of the first plaintiff is given. In column No. 7 the occupation of the guardian is given as cooly. In the same manner in Ex.A-47 in column 4 the name originally written was erased and the name of the first plaintiff was written. In column 5 the name of the first plaintiff is written as guardian. in column 7 the occupation of the guardian is mentioned as cooly. According to the plaintiffs, the first defendant is an influential man and at his instigation these erasures were made in Exs.A-46. and A-47. If that is true, the other entries in other columns also ought to have been erased and subsequently written. Admittedly, Muthusami is not a cooly but a well to do landlord. In column 7 of Exs.A-46 and A-47 the occupation of the guardian is mentioned as cooly. According to the plaintiffs, the first defendant is an influential man and at his instigation these erasures were made in Exs.A-46 and A-47. If that is true, the other entries in other columns also ought to have been erased and subsequently written. Admittedly, Muthusami is not a cooly but a well to do landlord. In column 7 of Exs.A-46 and A-47 the occupation of the guardian is given as cooly. It is seen from the other entries in Ex.A-46 when the father's name is given in column 5 the guardian's name in column 5 is not given. But only in this entry alone in column 5 the name of the first plaintiff is given as guardian. There is no evidence that erasures are made by the first defendant. 'Exs.A-46 and A-47 are the public records maintained by the school authorities. It is not in the custody of the first defendant. Therefore, it cannot be said that the erasures were made by the first defendant for the purpose of this suit.
We fully concur with this finding.
44. One other document which cannot be left out of consideration is Ex.A-30. That does not contain the signature of Muthusami, while the corresponding Ex.B-26 contains the signature of Muthusami. In that document he repudiates the issue of invitation as far as the marriage of his son is concerned. Thus we find the documentary evidence filed on behalf of the plaintiffs is not in any way helpful to them to prove the factum of marriage.
45. Turning to the oral evidence, the 1st plaintiff as P.W.2 claims that her marriage took place in 1934. We have already referred to the plaint and the written statement filed in this regard. In paragraph 3 of the plaint it is stated that the marriage took place at the time when Poomalai, the father of Muthusami was alive, while in the evidence. P.W.2 admits that the father of Muthusami was not alive at the time of marriage.
46. The evidence of P.W.2 with regard to the factum of marriage is sought to be buttressed by examining P.Ws.3 to 5. They are stated to have attended the marriage. They state that in the temple sacred fire was lit and the thali was tied around the neck of the 1st plaintiff. The first plaintiff as P.W.2 states that immediately after the marriage, she was taken to the house of Alamelu, where she claims to have lived amicably with the first wife Alamelu along with Muthusami for a period of 15 or 16 years. However, she admits that at the time when she was taken to the house, the first wife refused to allow the first plain-slff and only after mediation she was permitted to enter the house. It appears to us very surprising that having regard to this conduct of the first wife Alamelu, the first plaintiff would have lived for 18 years and only thereafter she was taken away by Muthusami to live in her mother's house in the West Street, The evidence of P.Ws.3 to 5 cannot be accepted. P.W. 1 disclaims knowledge about P.W.3, while P.W.3 claims to have association with Muthusami's family. First of ail, P.W.3 is. a person who has no regard for truth. He would say that he had no prefix to his name but later ho was obliged to admit that a suit was filed by Alamelu against him and there was also a criminal complaint under Ex.B-29. More than all these, he had to save himself from the entry in Ex.B-5 which contains the name of Manja Muthusami. P.Ws.4 and 5 are also equality interested in the plaintiffs, because Muthusami filed a suit on a promissory note against P.W.4 and it is so admitted. P.W.5, who claims to have close knowledge of the affairs of Muthu-semi, would say the marriage of Alamelu took place at the time when Muthusami's father was alive. P.W. 1 would claim that Muthusami was doing business. It is so stated by him in his deposition while in paragraph 2 of the plaint it is stated that he was not doing any business, and in some places he is described as a cooly. For clearing all these doubts, why an Independent witness from the village has not been examined passes our comprehension. There is absolutely no evidence that the society accepted the 1st plaintiff as the wife of Muthusami, nor again the father had acknowledged the paternity of plaintiffs 2 to 7 at any point of time. On the contrary, the paternity for Sekar was denied under Ex.B-26 in 1972 itself. Why the plaintiffs remained quiet till 1976 till the death of Muthusami is one of the surprising features of the case. Therefor, on an anxious consideration of balancing the two factors, viz., imposing paternity on a person who was not really the father, as against attributing Illegitimacy to plaintiffs 2 to 7, we come to the conclusion that the plaintiffs have not proved their case. The learned Subordinate Judge is right in dismissing the suit, which we have no hesitation to uphold.
47. Accordingly, we dismiss the appeal. However, there will be no order as to costs.