JUDGMENT D.D. Sinha, J. Heard Shri J.P. Mulgaonkar, Advocate for the appellants and Shri E.P. Lobo, Advocate for the respondents. 2. The appeal is directed against the judgment and decree passed by the Civil Judge, Senior Division, Mapusa in Special Civil Suit No. 495 of 1986 whereby the said suit was dismissed. 3. The facts in nutshell are that, the appellants filed the suit for partition of the suit property bearing survey No. 63/7 of village Killan, Guiriim, Bardez, Goa. There is a house bearing No. E/94 situated therein. The said house was originally belonging to Mahadev Nagvenkar. Mr. Mahadev was married to Parvati but had no issues from the said marriage. On the death of Parvati, Mahadev was married to appellant No. 1 and out of the said wedlock, they had two issues namely the appellant No. 2 and respondent No. 1 herein (respondent No. 1 is elder). The house in question was always used as the residential house by the parties. However, after sometime, the respondents started to reside in a separate house and stopped maintaining the appellants. Since the respondent No. 1 managed to enter his name in the survey record of the suit property without the knowledge of the appellants and on the strength of the said records, the respondents started objecting to the repairs being carried out to the house by the appellants and also started claiming light in the suit property. The appellants filed the present suit for partition. 4. It is the case of the appellants that the appellant No. 1 being the widow of Mahadev is entitled for half share in the suit property whereas the appellant No. 2 and respondent No. 1 being sons are entitled for one-fourth share each in the suit property. Since, the respondent No. 1 is trying to do construction illegally in the suit property, the appellants are entitled for necessary order to restrain the respondent No. 1 from doing any construction. It is also a case of the appellants that some part of the residential house has been let out to the respondents and the appellants are entitled to the share according to the rights in the property. 5. The case of the respondents on the other hand is that the appellant No. 1 is not the mother of appellant No. 2 as well as of respondent No. 1. 5. The case of the respondents on the other hand is that the appellant No. 1 is not the mother of appellant No. 2 as well as of respondent No. 1. They have also denied that Mahadev was married twice. It is their case that the name of the wife of Mahadev was Laximibai but she was also known as Parvati and they had only one issue out of their wedlock and that is the respondent No. 1. As regards the appellant No. 1, it is the case of the respondent that she was kept as mistress by late Mahadev but has no child. It is not disputed by the respondents that the appellants are residing in the suit house though it was contended that appellant No. 2 is residing in the suit house for about ten years as a guest of respondent No. 1. It was further admitted that the appellant occupied half of the suit house but the same was on account of she being the mistress of late Mahadev. It is the case of the respondent that appellants have no right to the suit house or the suit property and, therefore, they have no right to share any income from the suit property. The allegation regarding obstruction for repairs as well as construction by the respondents is totally denied. 6. The appellants in support of their claim examined appellant No. 1 as PW 1, Yeshwant Lotlikar as PW 2 and Kamlavati as PW 3. The respondent examined the respondent No. 1 as DW 1 in support of their respective claims. 7. The appellants produced the certificate of inscription in respect of the property of late Mahadev as also the tax certificate from the Panchayat. The appellant also produced birth certificate of respondent No. 1 and also a xerox copy of birth certificate of appellant No. 2 as Exhs. P-4 and P-5 respectively. 8. Shri E.P. Lobo, Advocate appearing for the respondents before the trial Court after conclusion of recording of evidence along with his written submissions produced document stated to be the birth certificate of Ramesh Mahadev Nagvenkar. The trial Court after considering the other evidence on record as well as this document submitted along with the written submissions dismissed the suit. Being aggrieved, the appellants have preferred the present appeal. 9. The trial Court after considering the other evidence on record as well as this document submitted along with the written submissions dismissed the suit. Being aggrieved, the appellants have preferred the present appeal. 9. The trial Court on the basis of the pleadings of the parties framed the issues for the purpose of determination of all the material questions involved in the suit. Issue 3-A which goes to the root of the case and the decision on this issue had a positive bearing on other issues No. 1 to 3, the trial Court dealt with issue No. 3-A at the outset itself. For the purpose of convenience, issue No. 3-A is reproduced below :- "Issue No. 3-A-Whether the plaintiff proves that she is the legal wife of late Mahadev." 10. The appellant No. 1 (plaintiff No. 1) in support of her case examined herself as PW 1, Yeshwant Lotlikar as PW 2 and Kamlavati as PW 3. In rebuttal, the respondent No. 1 (defendant No. 1) examined himself as DW 1 and no other witness has been examined by the defendant No. 1. 11. In the instant case, the appellant No. 1 stated that her alleged marriage with Mahadev has not been registered in the office of the Civil Registrar as per the Portuguese law although both were Portuguese nationals at the relevant time. The marriage between the plaintiff No. 1 and Mahadev Nagvenkar has been denied by the defendants. The appellant No. 1 claims that respondent No. 1 is her own son while respondent No. 1 asserts that the appellant No. 1 was the mistress of his deceased father and the appellant No. 2 is not the son of Mahadev but is the son of one Kashinath. 12. On the basis of the above referred stand taken by the parties, the question which fell for consideration of the trial Court was whether there was any legal marriage between the appellant No. 1 and late Mahadev Nagvenkar. 13. Appellant No. 1 deposed that she was married to Mahadev when she was only 15 years of age at Sakirwhal (Maharashtra), in the house of a bhat (hindu priest). She has further deposed that her maternal uncle Bhiku Lotlikar (PW 2) had attended the wedding. The marriage was performed by Gajanan Barve (the priest). Appellant No. 1 deposed that after her marriage. she came to reside at Guirim with Mahadev. She has further deposed that her maternal uncle Bhiku Lotlikar (PW 2) had attended the wedding. The marriage was performed by Gajanan Barve (the priest). Appellant No. 1 deposed that after her marriage. she came to reside at Guirim with Mahadev. It has come in her deposition that after one and half years of her marriage, the respondent No. 1 Shripad was born. In support of her statement, she produced a birth certificate Annexure P-4. She has further deposed that after four years, the appellant No. 2 Ramesh was born and produced a xerox copy of the birth certificate, the birth certificate which was provisionally marked as P-5 subject to production of original. Appellant No. 1 has never produced the original birth certificate of appellant No. 2 during the trial. 14. The learned Advocate for the defence has produced the birth certificate of appellant No. 2 as well as death certificate of Mahadev along with his written arguments. Although, these documents were not formally tendered during the evidence the trial Court admitted them in the evidence being a public document and also placed reliance on these documents. The trial Court rejected document Exh. P-5 i.e. xerox copy of birth certificate of appellant No. 2 Ramesh on the ground that it is not admissible in the evidence since the original birth certificate of appellant No. 2 produced on record by the advocate for the defence could be accepted being a primary evidence. The trial Court on the basis of the birth certificate of appellant No. 2 produced by the advocate for the defence along with his written notes of argument held that appellant No. 2 Ramesh is not the son of plaintiff No.1 and/or Mahadev but he is the son of Kashinath Nagvenkar. The trial Court further held that appellant No. 1 has, therefore, made a false statement claiming that appellant No. 2 is her own son. She also made a false statement by claiming that respondent No. 1 is her own son having been born one and half years after her marriage with Mahadev. The trial Court finally held that the appellants have failed to prove that appellant No. 1 was legally wedded wife of deceased Mahadev. Similarly, the trial Court in para 10 of its judgment observed that "she admits that Mahadev died about 47 years back when Shripad was three years old. The trial Court finally held that the appellants have failed to prove that appellant No. 1 was legally wedded wife of deceased Mahadev. Similarly, the trial Court in para 10 of its judgment observed that "she admits that Mahadev died about 47 years back when Shripad was three years old. Even death certificate produced by Shri Prabhu, the learned Advocate for defence discloses that Mahadev died on 25th March, 1946. As such the plaintiff No. 2 was not born even at the time of death of Mahadev. He was not born in the year 1960 i.e., 14 years after the death of Mahadev. As such, the statement of plaintiff No. 1 that the plaintiff No. 2 Ramesh is the son of Mahadev is patently false and it cannot be accepted." 15. It is no doubt true that the trial Court has also considered the other evidence on record, however. the very procedure adopted by the trial Court in allowing the advocate for the defence to tender the birth certificate of appellant No. 2 and death certificate of Mahadev along with his written notes of arguments and placing reliance thereon is not only inconsistent with the rules of evidence but same is misconceived and devoid of substance. The trial Court has given complete go-by to the established principles of the Evidence Act viz-a-viz proving of document. The trial Court ought not to have permitted the learned advocate for defence to tender the birth certificate and death certificate of Mahadev along with the written notes of argument, being totally divorced of procedural law as well as rules of evidence and further committed grave mistake in placing reliance on the said documents in order to discard the other evidence adduced by the appellant No. 1 and her witnesses. The trial Court, in my opinion, has shown total ignorance about the rules of evidence and admitted a document in evidence divorced of procedure in this regard which has resulted in total miscarriage of justice and also caused great prejudice to the appellants who did not even get opportunity in this regard. 16. It is appropriate at this stage to consider the scheme of the relevant provisions of the Evidence Act. 16. It is appropriate at this stage to consider the scheme of the relevant provisions of the Evidence Act. Under Section 64, a document must be proved by primary evidence which means the document itself produced for the Court's inspection, an exception to this rule is found in Section 65(e) which lays down that if the original is a public document under Section 74 of the Evidence Act, secondary evidence may be given of its existence, condition or contents, however, it is necessary for the party producing the secondary evidence to prove that the document is one of those mentioned under Section 65, whether it is original document itself or secondary evidence of a certified copy, its execution and attestation shall have to be proved as required under Sections 67, 68 and 69 of the Evidence Act. It must be borne in mind that mere marking of an exhibit to the document does not dispense with the proof of the document. It is well settled that where no witness is examined in proof of a document whose certified copy is approved and exhibited, no reliance could be placed on it. It is no doubt true that the document must be proved by primary evidence except in the cases enumerated in Section 65 of the Indian Evidence Act. As I have already observed, primary evidence means a document itself produced for the inspection of the Court and according to Section 67 of the Evidence Act, if a document is alleged to have been signed or written wholly or in part by any person the signature or the handwriting of so much of the document as is alleged to be in the person's handwriting must be proved to be in his handwriting. Where certain documents have been marked as exhibits in a case without objection but the contents thereof have not been put to the person connected with them either in their examination-in-chief or cross-examination, it is not possible to make use of these statements made therein for the purpose of drawing inference one way or the other. 17. In view of the above referred legal position, the question which falls for consideration is whether the original of a public document can be admitted in the evidence without proving its execution in accordance with law. 17. In view of the above referred legal position, the question which falls for consideration is whether the original of a public document can be admitted in the evidence without proving its execution in accordance with law. It is no doubt true that Section 79 of the Evidence Act raises a presumption of genuineness of certified copies. However, the said presumption is rebuttable with regard to the genuineness of certified copies and that too only if they are executed substantially in the form and in the manner provided by law. Section 79 of the Act, therefore, lays down that it needs to be proved that a certified copy was executed substantially in the form and in the manner provided by law. Similarly, neither Section 67 nor Section 68 of the Evidence Act lay down that the signature and the handwriting on the document must be duly proved and does not carve out any exception in case of public documents. 18. The other aspect which needs to be considered is whether a presumption of genuineness of the original of a public document should be drawn by reason of illustration of sub-section (e) of Section 114 of the Indian Evidence Act to the effect that official acts have been regularly performed. In view of the scheme of the provisions of Sections 67 and 68 of the Evidence Act, no presumption under Section 114 can be drawn in view of the mandatory character and unqualified terms of above referred sections of the Evidence Act and cannot be used to contravene these provisions of the Act. 19. While considering the issue involved in the present case, the truth of contents of birth certificate must be proved by examining a person issuing the certificate as well as by producing the original register. If this procedure is not followed, then it will result in failure to prove the author of entry and, therefore, the certificate cannot be relied upon. I am fortified in my view by the judgment of the Apex Court in the matter of Lala Satyanarain Prasad v. Gadadhar Ram and others reported in (1975) 2 SCC 564 . 20. If this procedure is not followed, then it will result in failure to prove the author of entry and, therefore, the certificate cannot be relied upon. I am fortified in my view by the judgment of the Apex Court in the matter of Lala Satyanarain Prasad v. Gadadhar Ram and others reported in (1975) 2 SCC 564 . 20. In the instant case, the trial Court has completely ignored the above referred relevant provisions of the Evidence Act and has also given complete go-by to the procedural law and miserably failed in holding that this document can be read in evidence since it is a public, document issued by the Directorate of Planning, Statistics and Evaluation. The finding recorded by the trial Court, in my opinion, therefore, is misconceived and cannot be sustained. 21. The impugned judgment and decree is quashed and set aside. The matter is remanded back to the trial Court only for the purposes of giving opportunity to the plaintiff to produce original of Exh. P-5 and allow the defendants to prove the certificate of birth dated 24th November, 1988 as well as death certificate of Mahadev tendered by the a learned advocate for the defence at the time of written submissions. The trial Court is directed to consider the admissibility of these certificates in evidence as per the relevant provisions stated hereinabove of the Evidence Act and consider the same in the light of the other evidence already adduced by the parties and record the final decision in the suit. 22. The trial Court is directed to dispose of the matter within a period of six months from the date of receipt of this judgment. 23. The appeal is partly allowed with no order as to costs. Appeal partly allowed.