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Judgment
S.C. Malte, J.
Before I take up the merits of this case, it may be mentioned that by my order passed in C.M. No. 4095C of 1996, I have ordered to bring on record Smt. Amandeep Kaur wife of Iqbal Singh and Ravinderpal Kaur daughter of Iqbal Singh as legal representatives of Iqbal Singh who is said to be not heard of for more than 7 years and has met a civil death in terms of provisions of section 108 of the Evidence Act.
This matter pertains to a partition in respect of property left behind by one Gurmukh Singh. The appellant/plaintiff No. 1 has preferred this appeal and challenged the judgment of the Additional District Judge who while allowing the appeal partly has disentitled plaintiff 1/appellant from getting any share in the property of the deceased on the ground that she was not proved to the legally wedded wife of the deceased.
Respondent 1 Surinder Kaur (original defendant No. 1) has also filed crossobjection under Order 41 Rule 21 CPC and disputed the decree to the extent it granted shares to respondents 3 and 4 (original plaintiffs No. 2 and 3).
On the pleadings of the parties, the issue raised in the trial court pertained to the question whether appellant/plaintiff 1 is the widow of deceased Gurmukh Singh, and whether respondents 3 and 4 (plaintiff 2 and 3) were the children of the deceased. The question of shares of the parties mainly depended on the adjudication of these questions. The adjudication of the shares would become only an arithmetical calculation. It is not disputed that the property left behind by deceased Gurmukh Singh was his selfacquired property. It is also undisputed that Gurmukh Singh died intestate. The trial Court was of the view that appellant/plaintiff 1 was the legally wedded wife of Gurmukh Singh. On this main reasoning he declared that the plaintiffs, including the present appellant, have 5/8th share in the property left behind by the deceased. In appeal, the Additional District Judge was of the view that there were discrepancies in the evidence in so far as it related to the question of status of plaintiff 1 as a legally wedded wife of Gurmukh Singh. He, therefore, held that it was not proved that plaintiff 1 was the legally wedded wife. However, as regards the parentage of plaintiffs 2 and 3, he observed that they were entitled to the shares on the ground that they are the children from Gurmukh Singh. However, he was of the view that defendant 2 Iqbal Singh was not proved to be the son of Gurmukh. In view of that, Iqbal Singh was held to be not entitled to any share in the property, and to that extent the finding of the trial court was upset. In so far as it pertains to plaintiffs 2 and 3, he granted them share under section 16 of the Hindu Marriage Act, on the ground that these children would be entitled to succeed under that section though it is not proved that their mother was a legally wedded wife of Gurmukh Singh. In the set of these circumstances, the matter has come up before me in this second appeal.
The record shows that date of birth of Gurmukh Singh was 9.5.1936. The evidence also indicates that the first marriage of Gurmukh Singh was with respondent 1 Surinder Kaur. That marriage took place in 1948. It is, therefore, obvious that at the time of first marriage, said Gurmukh Singh was only about 12 years old. Evidence further shows that his first wife Surinder Kaur left for her parental house after about 4 or 5 years since her marriage. Thereafter there was no cohabitation between the two. Evidence is led to show that the efforts to bring about cohabitation failed. It is the claim of appellant/plaintiff that in June 1954 appellant/plaintiff 1 Gurmej Kaur married Gurmukh Singh. This claim made by her is disputed by the contesting respondents.
The counsel for the appellant brought my attention to various documents in which the birth date of the children of plaintiff and Gurmukh Singh was noted. It was submitted that in all these documents the name of the father of these children is mentioned which shows that Gurmukh Singh was their father. In so far as it pertains to plaintiffs 2 and 3, there is no dispute that Gurmukh Singh was their father and Gurmej Kaur was their mother. The dispute is in respect of the birth date of Iqbal Singh who is said to be the first child from the wedding of Gurmukh Singh and plaintiff Gurmej Kaur. Exhibit P5 is the school leaving certificate of Iqbal Singh which shows that he was born on 10.6.1955. His father''s name mentioned therein is Gurmukh Singh. Exhibit P4 is birth extract issued by the Additional District Registrar of Births and Deaths, Jalandhar. It shows that birth date of Iqbal Singh was 20.6.1955. The father''s name therein is Gurmukh Singh. On behalf of the respondents it was vehemently submitted that when there is such a discrepancy in respect of birth date, it cannot be relied on. For the following reasons I find no force in his submission.
The birth extract Exhibit P4 is the certified extract. It is a certified certificate issued by an authority entrusted with the job of maintenance of record of births and deaths. It forms the public record. A certified copy issued from the record maintained by the public servant in the course of his official duties can be relied upon as per section 76 of the Evidence Act. The discrepancy in figure of the date of birth mentioned in the school leaving certificate Exhibit P5 is insignificant because the variation is to the extent of 10 days only and, therefore, can be ignored. In view of that I find no difficulty in accepting that Iqbal Singh was born to Gurmukh Singh on 20.6.1955. From this date one can ascertain the possible date of conception of Iqbal Singh by counting 280 days back from the date of his birth, as in normal natural course of events, birth would be of a full term baby. The period of his conception, therefore, would be sometime in September, 1954. In the context of this, it may be recalled that the claim put forward by the appellant is that she married Gurmukh Singh in June 1954. That claim has been disbelieved by the Additional District Judge on the ground that there were discrepancies in respect of the date of wedding of Gurmukh Singh and Gurmej Kaur. He has also declined to accept Iqbal Singh as the son of Gurmukh Singh on the ground that there was discrepancy of the date of birth shown in Exhibit P4 and P5, and that in the record known as ''kinder roll'', that was prepared at the time of recruitment of Gurmukh Singh in the army, he has not mentioned the name of Iqbal Singh as his son. In so far as that aspect is concerned I will consider it at a later stage. The date of birth of Iqbal Singh as shown in P4, coupled with the name Gurmukh Singh as his father in Exhibits P4 and P5, is enough to conclude that Gurmukh Singh was the father of Iqbal Singh. The approximate date of conception of Iqbal Singh and his birth date 10th or 20th June, 1955 lends support to the claim made by Gurmej Kaur that she had married Gurmukh Singh in 1954. Such a conclusion would be obvious if one considers that it would be highly improbable that Gurmukh Singh would marry a woman on 1.7.1955 when she comes with a child Iqbal Singh who would be then about 10/20 days old. The counsel for the respondents relied on the statement by the petitioner Gurmej Kaur, while claiming the pension that she married Gurmukh Singh on 1.7.1955. Such a previous statement should have been confronted to the person before it could be used in evidence as per section 145 of the Evidence Act. The counsel for the petitioner was not able to show that even such a statement was confronted to Gurmej Kaur in order to ascertain whether she has an explanation to offer. Moreover, in my opinion, such a statement made by an illiterate woman would hardly carry weight because she cannot be expected to be in a position to give exact dates. In such cases, information is based on the best memory which is likely to fail sometimes. The reliability of such a previous statement, therefore, is required to be considered in the light of other pieces of evidence. Some of the circumstances in that respect have been considered by me in the earlier part of this judgment.
Reliance was placed by the counsel for the respondents on the "kinder roll" entries prepared at the time of recruitment of Gurmukh Singh in the army. The entries then made did not indicate that name of Iqbal Singh as his son, whereas the names of other two children Balwinder Kaur and Jaswinder Singh were mentioned. The entries in the "kinder roll" have been introduced during the evidence of Captain Yadav who was examined on commission. In the crossexamination he had stated that entries in the said roll were made on the basis of some oral questions put to Gurmukh Singh. He further stated that the concerned officer had not signed on that "kinder roll". The value of contents in the "kinder roll" is to be examined in the light of subsequent statement by Gurmukh Singh on 31.5.1960. That statement was also a part of the record of the army office and brought by Captain Yadav. Since it has come from proper custody and proved to have been signed by Gurmukh Singh (since deceased), it can be considered. In that statement Gurmukh Singh has stated that he married in 1954. He has also stated in the pension papers that he had a surviving wife and three children. This aspect clearly shows that Gurmukh Singh himself accepted to be the father of Iqbal Singh. These circumstances taken together clearly militate against the claim made by the respondents that Gurmej Kaur married Gurmukh Singh on 1.7.1955. In the set of circumstances, the Court will lean in favour of legitimacy of the children; and in view of that, irresistible inference would be that Iqbal Singh was born to Gurmej Kaur during the lawful marriage with Gurmukh Singh, who was the father of that child. I, therefore, find that the learned Additional District Judge committed error in holding that Iqbal Singh was not the son of Gurmukh Singh. He has further committed error in concluding that marriage of Gurmukh Singh and Gurmej Kaur took place on 1.7.1955. I, therefore, allow the appeal and set aside the judgment and decree passed by the Additional District Judge and restore the judgment and decree passed by the trial Court.
Consequently, the crossobjection filed by the respondent challenging the decree of the Addl. District Judge to the extent it gave relief to Balwinder Kaur and Jaswinder Singh also stands dismissed. No orders as to costs.