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2012 DIGILAW 149 (KAR)

Paramesh v. S. Hanumantharayappa

2012-02-24

H.G.RAMESH

body2012
JUDGMENT HULUVADI G. RAMESH, J.—The plaintiffs are before this Court in appeal aggrieved by the dismissal of the suit by the XLIII Addl. City Civil and Sessions Judge, Bangalore in OS 194/2003 on 30.11.2010. 2. The defendants have also filed cross objection praying that the judgment and decree passed in OS 194/2003 be confirmed. 3. Suit in OS 194/2003 came to be filed by the plaintiffs seeking for partition and separate possession of their share in the schedule properties by metes and bounds and for mesne profits. It is stated, the 1st defendant had five children by name Bylappa, Chikkamuniyappa, Subbaiah, Subbanna and Hanumanthaiah. The father of the 1st defendant had movable and immovable properties at Kereguddadahalli, Yeshwanthpur, Bangalore and the properties were divided amongst the family members on 14.4.1972. The properties in the C schedule fell to the share of the 1st defendant and his name has been entered in the revenue records. It is further stated, the 1st defendant had two wives by name Galamma and Krishnamma. The 2nd defendant is the son of the 1st defendant through the first wife Galamma and plaintiffs are the children of the 1st defendant through the second wife Krishnamma. After the death of his first wife, the 1st defendant has married Krishnamma in the year 1976. Being the children of the 1st defendant they sought for their share in the schedule properties but the same has been refused. It is also stated, the defendants have jointly alienated the property in Sy. No. 41/6 measuring 10 guntas of Somashettyhalli, Yeshwanthpur for Rs. 8 lakhs two years prior to the filing of the suit. Subsequently, the property in Sy. No. 9/3 of Kereguddadahalli measuring 32 guntas has also been sold for a sale consideration of Rs. 20 lakhs and have also executed an agreement to sell in respect of Sy. No. 10/2 measuring 1.08 guntas for Rs. 25 lakhs and have also received Rs. 50,000/- advance during November, 2002. According to the plaintiffs, the defendants are receiving rent of Rs. 8,000/- in respect of property in Sy. No. 12/4 measuring 3 guntas situate at Kereguddadahalli wherein four RCC residential houses are existing and Rs. 2,500/- rent in respect of another four houses. 25 lakhs and have also received Rs. 50,000/- advance during November, 2002. According to the plaintiffs, the defendants are receiving rent of Rs. 8,000/- in respect of property in Sy. No. 12/4 measuring 3 guntas situate at Kereguddadahalli wherein four RCC residential houses are existing and Rs. 2,500/- rent in respect of another four houses. Since the defendants did not allow the plaintiffs to receive any rent or stay in the houses in spite of repeated requests and also refused to part with their share in the suit properties, the suit came to be filed. 4. On service of summons, defendants appeared before the Court, however, only the 1st and 2nd defendant filed their written statement denying the plaint averments. At the first instance, they have denied the relationship of the plaintiffs with the 1st defendant while admitting the family partition in the year 1972. It is stated, the 1st defendant was working at HMT and retired from service during August, 1987. He had married Galamma and the 2nd defendant is his only son. On the death of Galamma on 21.3.1997, he never married Krishnamma as stated in the plaint and denied that the plaintiffs are children of the 1st defendant through Krishnamma. It is stated, the plaintiffs are in no way concerned with the family of 1st defendant and, therefore, are not entitled for any relief as claimed. Further, stating that 1st and 2nd defendants are the absolute owners of the schedule properties and the plaintiffs have no right title or interest over the same to question the transactions done by them in respect of the schedule properties, they prayed for dismissal of the suit. 5. Based on the pleadings, the trial judge has framed as many as five issues — 1. Whether the plaintiffs prove that Krishnamma is the 2nd wife of 1st defendant and that they are the children of the 1st defendant born to Krishnamma; 2. Whether the plaintiffs prove that they and the defendants 1 and 2 are the members of the joint family and the suit properties are joint family properties; 3. Whether the defendants 1 and 2 prove that they are the only persons entitled to hold the properties as absolute properties; 4. Whether the plaintiffs prove that they are entitled for a share in the suit properties; 5. What decree or order. 6. Whether the defendants 1 and 2 prove that they are the only persons entitled to hold the properties as absolute properties; 4. Whether the plaintiffs prove that they are entitled for a share in the suit properties; 5. What decree or order. 6. The 1st plaintiff got examined himself as PW1 along with three other witnesses and got marked Exs.Pl to 18 in support of his case. The 2nd defendant examined himself as DW 1 along with three other witnesses and got marked Exs. D1 to D12. After inquiry, after hearing, while answering issues 1 and 4 in the affirmative, the suit came to be dismissed. Hence, this appeal. 7. It is the argument of the appellants’ counsel even illegitimate children have got share, as per the dictum of the Apex Court, equal to that of legitimate children and in support of his contention, he has relied upon the case of Kenchegowda vs. K. B. Krishnappa and others, ILR 2008 Kant. 3453. It is also the argument of the counsel, with the consent of Galamma, first wife of the 1st defendant, the marriage had taken place and Ex. P is the wedding invitation card. Referring to Section 16 of the Hindu Marriage Act, 1955, counsel has relied upon the case of Sri Mahaveer alias Vilas Shanthappa alias Shantagowda Patil and others vs. Sri Sukumar Tulajagonda Patil and others, ILR 2011 Kant. 2077 to contend illegitimate children are to be treated as legitimate children. The status of legitimacy was confirmed on children born out of void marriage and the property rights are conferred on illegitimate children and argued why illegitimate children who are treated as legitimate be denied the right of succession or inheritance. 8. It is argued, the trial Court has erred in dismissing the appeal on the point of entitlement and succession. The larger issue is pending before the Apex Court regarding right to property for children born out of void marriage and, on the question whether the right of children born out of void marriage are only entitled to self acquired property of the parents or even it extends to ancestral property has been referred to the larger bench in the case of Revanasiddappa and another vs. Mallikarjun and others, 2011 AIR SCW 2447. 9. 9. Counsel has also argued, while defending the finding of the trial Court, on the issue regarding parenthood, in the cross appeal filed by the respondents that the plaintiffs prove Krishnamma is the second wife of the 1st defendant and plaintiffs are the children of 1st defendant born to Krishnamma. Referring to Ss. 50 and 60 of the Evidence Act, it is submitted, all efforts have been made to bring in the relationship of the plaintiff with that of 1st defendant through Krishnamma and as per Section 50, Court has to form an opinion as to the relationship of one person to another and, the opinion expressed by conduct as to the existence of such relationship of any person who has a special means of knowledge on the subject of that relationship is a relevant fact. Accordingly, he has relied upon the decision in Dolgobinda Paricha vs. Nimai Charan Misra and others, AIR 1959 SC 914 . Learned counsel, having taken me through the evidence let in by the parties, contended long after the marriage it is difficult to prove that a man and woman who lived as husband and wife in the society are compelled to prove half a century later, by eye witnesses, that they were validly married to be able to succeed and accordingly, has relied upon the case of Badri Prasad vs. Dy. Director of Consolidation and others, AIR 1978 SC 1557 . Counsel has relied upon the case of Sheodhar Prasad Singh vs. Jagdhar Prasad Singh and others, AIR 1964 Pat. 318 regarding presumption of law in favour of marriage and against concubanage and, long cohabitation raises a rebuttable presumption of wedlock. 10. He has also relied on the case of Vaikuntam Mamikyamma vs. Puppala, AIR 1971 Ori. 49 as regards opinion expressed by conduct on relationship and eye witnesses deposing to performance of the marriage and the conduct evidence may not be necessary and standard set by Section may not have to be applied. 11. In the case of Ningu Vithu Bamane and others vs. Sadashiv Ningu Bamane and others, AIR 1987 Bom. 27 , it is held, when a man and a woman live together as husband and wife for sufficiently long time and were treated as husband and wife by friends, relatives and neighbours there is always a presumption in favour of their marriage. 27 , it is held, when a man and a woman live together as husband and wife for sufficiently long time and were treated as husband and wife by friends, relatives and neighbours there is always a presumption in favour of their marriage. If children are born to such a couple, there is a further presumption in favour of their legitimacy. 12. In the case of Jinia Keotin vs. Kumar Sitaram Manjhi and others, (2003) 1 SCC 730 , referring to Section 16(3) of the Hindu Marriage Act, 1955 as amended by Act 68 of 1976 as regards children born of void or voidable marriage, it has been held, they are not entitled to claim inheritance in ancestral co-parcenary property but entitled to claim inheritance in property of parents. In this context, it is argued, plaintiffs are entitled for a share in the ancestral property inherited by the1st defendant-whether legitimate or illegitimate and also, the issue in question has been referred to a larger bench by the Apex Court and the matter be kept in abeyance. It is also submitted, the relationship of the parties has been established by conduct of the parties and evidence of the relatives and accordingly, counsel has sought for allowing the appeal. 13. Per contra, counsel representing the respondents who are also the cross objectors, on the finding on issue 1, submitted Ex. P1-marriage invitation card is not reliable and it has not been duly proved. Mere production is not sufficient. It is stated, Krishnamma belongs to Banajiga community but 1st defendant is a Vokkaliga. Galamma was the first wife of the 1st defendant. Even the evidence of defendants makes it clear that Galamma is the wife of the 1st defendant and there was no other marriage. A story has been built up by the plaintiffs without proving the factum of marriage by examining the priest or a person who attended the marriage as per the requirement. In this regard, learned counsel has relied upon the decision of the Apex Court in the case of Life Insurance Corporation of India and another vs. Ram Pal Singh Bisen, (2010) 4 SCC 491 to contend, mere fact that documents were exhibited in civil suit did not mean that their contents stood proved. The admission of documents may amount to admission of contents but not its truth. The admission of documents may amount to admission of contents but not its truth. The documents which have not been proved as required under the Evidence Act cannot be relied upon by the Court. Referring to Section 101 of the Evidence Act, it is stated, failure to prove defence does not reverse or discharge plaintiff’s burden of proof. 14. It is the argument of the appellants’ counsel referring to the various documents produced including Ex.Pl that the oral and documentary evidence are quite inconsistent to the case of the plaintiffs and even Ex.P2 and P3 which are produced shows that the 1st plaintiff is the resident of Sira Taluk. Even the community is shown as Banajiga and without requiring the plaintiff to produce proof that Vokkaliga and Banajiga are one and the same community, the trial Court proceeded to form an opinion that both the communities are the same. Ex. P3-transfer certificate of the 1st plaintiff itself depicts that at an undisputed point of time, the community of the parent is shown as Banajiga. Even the name of father of the 1st plaintiff is shown as Subbanna while in Ex.P3, the name of the father is shown as Subbaiah. It is submitted, as is elicited in the cross-examination of the defendants, Subbaiaha the 1st defendant had five brothers. He was never called as Subbanna at any point of time nor he was a Banajiga so as to create nexus and relationship between the plaintiffs and the 1st defendant. It is also stated, the factum of co-habitation of 1st defendant and Krishnamma has not been proved except the interested witnesses who deposed about the marriage. Nobody have specifically stated about the whereabouts and residence of Krishnamma with the 1st defendant Subbaiah at Keregulladahalli or anywhere else together cohabitating to prove the paternity of the plaintiffs and except the 1st plaintiff who has stepped into the witness box, the whereabouts of the 2nd plaintiff, alleged daughter is not proved. There was no marriage nor illicit relationship with Krishnamma. No cogent evidence is produced. Even one of the independent witness who was examined has not deposed about attending the marriage of Krishnamma with the 1st defendant. There was no marriage nor illicit relationship with Krishnamma. No cogent evidence is produced. Even one of the independent witness who was examined has not deposed about attending the marriage of Krishnamma with the 1st defendant. The father of the plaintiffs is some other person and not the 1st defendant as is evident from the documents produced by the plaintiffs themselves at Ex.P2 and P3 which specifically refers to the name of the father of the 1st plaintiff as Subbanna and even the community of the parent is shown as Banajiga whereas the 1st defendant is a Vokkaliga. As such, it is submitted, no iota of evidence is produced to show that plaintiffs 1 and 2 are born to the 1st defendant either by producing entries in the hospital register regarding birth or voters card and, the plaintiffs have tried to create a nexus with the 1 st defendant to knock of valuable property. Having taken me through the entire evidence of the plaintiffs and the defendants, it is submitted, the various documents produced-that of the 1st defendant, depict that he was never called as Subbanna and he is Subbaiah as such, there is no nexus or relationship between the plaintiffs and the 1st defendant. In the absence of any proof as to parentage to show that the father of plaintiffs 1 and 2 is the very same 1st defendant-Subbaiah, the trial Court in a mechanical manner, has arrived at a conclusion and its finding is perverse. It is also submitted, plaintiffs never produced any document depicting the relationship of the 1 st defendant with Krishnamma either by way of voters card or ration card or any proof of residence together with Subbaiah at Bangalore or elsewhere even to form an opinion as to parentage of the plaintiffs. 15. Relying upon the various documents produced on behalf of the defendants like the voters card, ration card and the birth and death certificates, counsel for the respondents/cross-objectors submitted, the trial Court failed to take note of the difference in the caste of the plaintiffs and the 1 st defendant and also, no proof is produced and proved by the plaintiffs regarding relationship of the 1st defendant with Krishnamma or themselves with that of the 1st defendant. Accordingly, it is submitted, in the absence of any relation being proved as required, based on a private document which has not been duly proved, by forming an opinion based on the evidence of interested witnesses, the trial Court has miserably failed in holding that there exists a relationship, only on surmises and conjectures. It is also submitted, the genealogical tree-Ex.D12 depict the fact that this Subbaiah had also a brother by name Subbanna, along with other brothers which demonstrate this Subbaiah/1st defendant is not the one mentioned in Exs.P2 and P3, voters card and the transfer certificate. He must be some other person belonging to Banajiga community whereas the 1st defendant belongs to Vokkaliga community and both are distinct and separate communities even if it is taken for judicial notice. It is accordingly argued that in the absence of any proof of relationship and parentage, the primary evidence which are produced are quite contrary to oral evidence. If the documentary evidence, which is in the form of primary evidence, too depict there is no relationship between the 1st defendant and the plaintiffs. It is submitted, the finding rendered on issue 1 by the trial Court is perverse and needs to be set aside. It is also submitted, in the absence of proof of relationship as required under the Evidence Act, the suit itself is not maintainable and question of answering the issue that plaintiffs are illegitimate or legitimate children, does not arise much less any other issue and accordingly, pray for allowing the cross-objection and to dismiss the appeal filed by the plaintiffs. 16. It is also his submission, the question of deferring the matter awaiting the decision of the larger bench of the Supreme Court as to rights of legitimate/illegitimate children would not arise. 17. 16. It is also his submission, the question of deferring the matter awaiting the decision of the larger bench of the Supreme Court as to rights of legitimate/illegitimate children would not arise. 17. In the light of the arguments advanced, the points that arise for consideration are — Whether the trial Court is justified in holding that plaintiffs are able to prove that Krishnamma is the second wife of the 1st defendant and that plaintiffs are the children of the 1st defendant born to Krishnamma; Whether the plaintiffs are entitled for partition and separate possession of the property if they are held to be legitimate or illegitimate children of Subbaiah; Whether the plaintiffs have established the paternity of the 1st defendant Subbaiah with themselves to claim relationship and a share in the property of the 1st defendant. 18. As against the finding of relationship as held by the trial Court, cross appeal/objection has been preferred. The main argument of the respondents/cross objector is, the plaintiffs have produced certain documents out of which, the alleged marriage invitation card (Ex. P1) does not have any authenticity and it is a private document. None of the independent witnesses including the purohit of the temple where the marriage is said to have taken place, has been examined. It is also argued, except producing the document at Ex. P1, the same has not been proved. 19. As argued by the cross-objector, it is noticed, this document depict the fact that there wasmarriage of Krishnamma with Subbaiah. Whether the 1st defendant is the same Subbaiah or not has not been made out except the oral evidence of the 1st plaintiff and other supporting witnesses who are the relatives of the plaintiffs. One person who is stated to be the colleague of the 1st defendant Subbaiah, viz., PW 2-Venkatappa although was examined, he has not whispered anything about this 1st defendant and Krishnamma living together as husband and wife so as to establish the parenthood of the plaintiffs. Though he has stated that marriage of 1st defendant has taken place with Krishnamma but, he has not attended the marriage nor he has personal knowledge of marriage. Also, no evidence has come on record to show that the 1st defendant and Krishnamma were living together as husband and wife. Though he has stated that marriage of 1st defendant has taken place with Krishnamma but, he has not attended the marriage nor he has personal knowledge of marriage. Also, no evidence has come on record to show that the 1st defendant and Krishnamma were living together as husband and wife. He has admitted, he came to Court at the instance of PW 1 and also admits that he has not produced any document to show he was working in HMT On the other hand, the 1st defendant who has signed the written statement and the 2nd defendant, son of the 1st defendant born to Galamma wife of the 1st defendant, have produced the voters card/list of Galamma and also the ration card to show that 1 st defendant, 2nd defendant and Galamma are the father, son and mother whereas except the marriage invitation card, a private document at Ex.Pl produced by the plaintiffs does not bear any authenticity. The evidence of plaintiff as PW1 and PW 3, aunt of PW1 and PW 4, the maternal uncle of PW 1 is to the effect the marriage of Krishnamma has taken place at Bylanjaneya Swamy Temple near Tumkur with one Subbana in the year 1976 and PW 3 has also stated that Krishnamma was living with Subbanna for some time and thereafter, at Chokkasandra, as there arose a dispute. But, PW 3 admits that she has not produced document to show Krishnamma was residing at Chokkasandra. She also pleads ignorance about consent given for marriage of Krishnamma. PW 4, brother of Krishnamma speaks about attending the marriage and his evidence is also similar to that of PW 3. The version of PW 4 is to deny the very caste of the 1st defendant that he is not a Vokkaliga. This shows he tries to make out a relation that Subbanna is a Banajiga and to stand by the plaintiffs contention which gives rise to some suspicion in the veracity of the plaintiffs’ case. Even the primary evidence produced by the defendants show that the 1st defendant is a Vokkaliga and Ex.D8 is the caste certificate. 20. To counter the stand of plaintiffs’ witnesses on behalf of defendants, DW 1 to 4 have stated, the 1st defendant was married to Galamma and she is the only wife and there was no second marriage of the 1st defendant. 20. To counter the stand of plaintiffs’ witnesses on behalf of defendants, DW 1 to 4 have stated, the 1st defendant was married to Galamma and she is the only wife and there was no second marriage of the 1st defendant. The trial Court simply relied on the oral evidence of PW1 to 4 to accept the marriage and relationship without examining the primary document which contradicts the case of the plaintiffs as to caste and parenthood and also in the absence of any positive primary evidence like, proof of residence of Krishnamma with the 1st defendant at Kereguddadahalli or Chokkasandra or the ration card or voters list, the trial Court erred in holding issue No. 1 in the affirmative. The documents and evidence produced by the defendants overweighs the case of plaintiffs. On the contrary, what is being noticed is in the documents produced by the plaintiffs themselves, i.e., the transfer certificate and the voters card that of the 1st plaintiff, do depict the name of the father as Subbanna and not as Subbaiah. What is also not in dispute is, at one point of time, the name of the plaintiffs’ father (husband of Krishnamma) is shown as Subbaiah in the wedding invitation card whereas as per the primary document, viz., the voters card and the transfer certificate, the name of the father of 1st plaintiff is shown as Subbanna. Thus, the documents produced by the plaintiffs are rather contrary to the stand taken by them. The documents, i.e., the voters card and the transfer certificate evidence that the 1st defendant is not the person to establish the relationship with the plaintiffs. Since the name of the 1st defendant is shown as Subbaiah, the trial Court without looking into the genealogy stated on behalf of the defendants, proceeded to form an opinion by way of presumption and assumption that in the village side, people are called suffixing ‘aiah’ and ‘anna’ to their names and accordingly, opined that the 1st defendant is the father of the plaintiffs and plaintiffs are born to Krishnamma through the 1st defendant. What is pertinent to note in the context is, throughout in the oral evidence of the plaintiffs’ witnesses, they have stated the 1st defendant and Krishnamma, mother of the plaintiffs were living together and theirs was a consent marriage and consent is obtained from the first wife- Galamma. What is pertinent to note in the context is, throughout in the oral evidence of the plaintiffs’ witnesses, they have stated the 1st defendant and Krishnamma, mother of the plaintiffs were living together and theirs was a consent marriage and consent is obtained from the first wife- Galamma. But, except the oral testimony, there is no material to show that there is consent much less the celebration of the marriage as per rituals has not been established. The appellants went to the extent of arguing, even if the marriage had not taken place and if it is a second marriage, i.e., a void marriage, the children born to them are also entitled for a share being the illegitimate children, to assert and claim a right. As noted above, except the oral evidence of the plaintiffs themselves there is no primary evidence to show that this Krishnamma mother of the plaintiffs was not shown to have lived at Kereguddadahalli with the 1st defendant Subbaiah as husband and wife and out of wedlock or illicit relation, the plaintiffs 1 and 2 are born. The marriage is said to have taken place, as per Ex. P1, during 1976 and if that is the case, there should have been an entry in the register of the Temple where the marriage has taken place evidencing marriage as alleged by the plaintiffs. Furthermore, there is no residential address provided as to where this 1st defendant and Krishnamma were living together. The defendants were able to produce the voters card as well as the ration card to depict that the 2nd defendant and Galamma are the only family members of the 1st defendant and not Krishnamma. However, to go by the version of the plaintiffs that there was consent marriage and that Galamma had consented for the marriage of the 1st defendant with Krishnamma, necessarily there was no impediment for the plaintiffs to produce the ration card depicting the name of Krishnamma as the second wife of the 1st defendant Subbaiah. Another aspect not to be lost sight of is, even the voters card/list of Krishnamma at the relevant point of time also is not produced to show that Krishnamma was living as second wife of the 1st defendant Subbaiah. Even the birth place of the 1st plaintiff is shown as Sira Taluk, Tumkur District. Another aspect not to be lost sight of is, even the voters card/list of Krishnamma at the relevant point of time also is not produced to show that Krishnamma was living as second wife of the 1st defendant Subbaiah. Even the birth place of the 1st plaintiff is shown as Sira Taluk, Tumkur District. If at all the 1st plaintiff or the 2nd plaintiff are born to the 1st defendant at Chokkasandra or Kereguddadahalli, i.e., a part of Bangalore, necessarily there should have been entries in the hospital register or nursing home for having born to the 1st defendant through Krishnamma. In the absence of any documentary evidence to prove the relationship, in the factual circumstance and as to parenthood of the 1 st defendant with that of plaintiffs 1 and 2, plaintiffs have miserably failed to prove the relationship with 1st defendant. This argument does not stand to reason. 21. It is also evident to note, as per the genealogy stated by the defendants, the 1st defendant Subbaiah had four brothers, apart from himself, one brother by name Subbanna was also there. In this context, it is to be noted with close scrutiny, if really the plaintiffs are born to the 1st defendant, in the voters card as well as in the transfer certificate of the 1 st plaintiff, the name of the father could have been invariably mentioned as Subbaiah and not Subbanna. As regards the evidence let in on behalf of the plaintiffs with regard to proof of caste is concerned, what is to be noted is, the plaintiffs are persons belonging to Banajiga community and the caste of the 1st plaintiff and that of his father is shown as Banajiga in the transfer certificate which is an authentic document whereas, the 1st defendant is a Vokkaliga, as per records. The argument of appellants’ counsel is, there is also possibility of inter-caste marriage, though the plaintiffs are treated as illegitimate children though not by a legal marriage and the trial Court has rightly held that there is relationship between the 1st defendant and the plaintiffs. 22. On the issue of caste, counsel for the cross-objectors and the respondents has submitted, as a matter of custom and convention and also as is known to the society at large, Vokkaliga community is different from Banajiga community and Banajiga community is not a sub-caste of vokkaliga community or vice versa. 22. On the issue of caste, counsel for the cross-objectors and the respondents has submitted, as a matter of custom and convention and also as is known to the society at large, Vokkaliga community is different from Banajiga community and Banajiga community is not a sub-caste of vokkaliga community or vice versa. As a matter of convention and custom and as a matter of judicial notice, both Banajiga and Vokkaliga are two different castes. The Courts take judicial notice of it and the trial Court without getting any material document, simply proceeded to form an opinion that both Banajiga and Vokkaliga would be the same caste. So far as identification to establish relation and parenthood is concerned, even assuming that the 1st defendant is the father of the plaintiffs, then necessarily in the documents which are produced on behalf of the plaintiffs, the caste of the plaintiffs should have been mentioned as Vokkaliga so as to accept the relationship and parenthood. In the case on hand, the voters card as well as the transfer certificate produced do depict the name of the father of the plaintiffs as Subbanna who belongs to Banajiga caste. If really there was a relationship and if really the plaintiffs are born to the 1st defendant, there was no impediment to mention the name of the caste of the father of the plaintiffs as Vokkaliga. On the other hand, all the material documents produced by the plaintiffs themselves is self contradictory and primary documents prevails over the oral evidence and in the absence of any evidence to show that there was consummation of relationship of Krishnamma with the 1 st defendant and the documents of the plaintiffs themselves contradict the version of the oral evidence, only on surmises the trial Court forming an opinion, in the village side people are called as ‘aiah’ and ‘anna’ and as such, it need not be given importance, appears to be perverse. 23. In Life Insurance Corporation of India’s case (supra), the Apex Court has clearly held that mere fact that the documents were exhibited in a civil suit did not mean that their contents stood proved. In the absence of such proof, the documents cannot be relied upon and cannot be held to be positive evidence. In the case on hand, Ex. In Life Insurance Corporation of India’s case (supra), the Apex Court has clearly held that mere fact that the documents were exhibited in a civil suit did not mean that their contents stood proved. In the absence of such proof, the documents cannot be relied upon and cannot be held to be positive evidence. In the case on hand, Ex. P1-marriage invitation card itself is doubtful, might be concocted to establish a relationship in the background and the property dispute involved in the case. It is also seen, the 1st defendant is a person from Kereguddadahalli. Also when the plaintiffs state that, it was a consent marriage, no proof is produced by way of photographs of celebration of marriage much less the entry in any register regarding marriage in the temple where the marriage is said to have taken place and also non-examination of the priest of the temple or any other independent person, to believe the version of the plaintiffs, it has to be held plaintiffs have miserably failed to prove the celebration of marriage of Krishnamma with the 1st defendant and, the plaintiffs have also failed to establish that Krishnamma and the 1st defendant were living together as husband and wife and out of which relationship plaintiffs are born. Rather, defendants were able to prove there was no relationship of plaintiffs with the 1st defendant, successfully. 24. The judgment cited supra, relied upon by the appellants’ counsel, although speaks on the principle which cannot be disputed, but in the absence of any cogent evidence as to establishing relationship, and the documents produced by the plaintiffs themselves are contrary to the oral evidence let in by them, I am of the opinion, the said judgment does not lend any support to the case of the plaintiffs. 25. In Dolgobinda Paricha’s case (supra) relied upon by the appellants’ counsel as regards Sections 50 and 60 of the Evidence Act — opinion evidence with regard to relationship and oral evidence let in by the plaintiffs is sufficient. In this context it is to be noted, except the testimony of the interested witnesses regarding alleged marriage and relationship, no other documents are produced rather, the documents produced by the plaintiffs themselves contradict the stand of the plaintiffs as to their relationship with the 1st defendant. 26. In this context it is to be noted, except the testimony of the interested witnesses regarding alleged marriage and relationship, no other documents are produced rather, the documents produced by the plaintiffs themselves contradict the stand of the plaintiffs as to their relationship with the 1st defendant. 26. In the Division Bench judgment in Lakshmamma’s case (supra) it is held, if a man and woman professing to be husband and wife cohabited for a long length of time and if the society has recognised that relationship, a presumption arises that they are legally wedded, but in the present case, there is no specific evidence let in to show that 1st defendant and Krishnamma cohabited for a long time as husband and wife out of which, the plaintiffs are born. In the absence of the same, the plaintiffs have failed to establish a relationship. 27. The judgment in Badriprasad’s case (supra) is not applicable to the case on hand wherein in the said case, it is held when a man and woman living together as husband and wife for about 50 years, a strong presumption arises in favour of wedlock. In the case on hand, except stating there was a marriage taken place, nothing has been stated as to 1st defendant and Krishnamma living together as husband and wife for several years and it is also not stated where they were living as husband and wife and for how many years. 28. In Sheodar Prasand Singh’s case (supra) noted above, it is stated, law presumes in favour of marriage and against concubanage. A long cohabitation raises rebutable presumption of wedlock. In the present case, though it is stated by the witnesses that there was a marriage, it is not specifically stated as to whether the 1st defendant and Krishnamma were living as husband and wife and, no material evidence is produced either by way of voters list or ration card as to the relationship of the 1st defendant with Krishnamma except the alleged oral testimony of the interested witnesses. Though it is argued by the appellants counsel that the 1st defendant is from Kereguddadahalli and plaintiffs are from a village near Sira Taluk of Tumkur District, they could not secure any of the independent witnesses from Kereguddadahalli or Chokkasandra and no attempt is shown to have been made to examine any of the witnesses from Kereguddadahalli or Chokkasandra. Though it is argued by the appellants counsel that the 1st defendant is from Kereguddadahalli and plaintiffs are from a village near Sira Taluk of Tumkur District, they could not secure any of the independent witnesses from Kereguddadahalli or Chokkasandra and no attempt is shown to have been made to examine any of the witnesses from Kereguddadahalli or Chokkasandra. Even if they had not supported, they could have been cross-examined on that aspect. That attempt has not been made by the plaintiffs. 29. In the case of Raghuvir Kumar and another vs. Smt. Shanmughavadifu and others, AIR 1971 Mad. 330 , relied upon by the appellants’ counsel, it is held parties undergoing some form of marriage and there is long cohabitation of fifteen years as husband and wife, the evidence of conduct and repute would be sufficient to recognise the relationship as husband and wife. In the present case, there is no such evidence regarding long cohabitation much less the bare evidence of the plaintiffs and that would not be sufficient to presume there was marriage or the requirement regarding proof of marriage. 30. The decision in Ningu Vithu Bamane’s case (supra) is relied upon on the principle of marriage and legitimacy and that presumption is in favour of marriage. But in the case on hand, the documentary evidence altogether contradicts the version of the plaintiffs as to the parenthood of the 1st defendant with that of plaintiffs. 31. Thus, to sum up, the finding of the trial Court, based on the evidence of the plaintiffs’ witnesses who are relatives to the plaintiffs and also that of one person said to be a colleague of the 1st defendant who does not know anything in detail as to the status of the 1st defendant nor has he attended the alleged marriage of the 1 st defendant with Krishnamma, mother of the plaintiffs, it has to be held that plaintiffs have failed to establish their relationship with the 1st defendant as their father and they have also failed to establish that they are born to the 1st defendant through Krishnamma. Rather, defendants have discharged the burden that Krishnamma was not married to the 1st defendant and plaintiffs are not related to the 1st defendant. Accordingly, the finding of the trial Court on issue No. 1 is reversed. 32. Rather, defendants have discharged the burden that Krishnamma was not married to the 1st defendant and plaintiffs are not related to the 1st defendant. Accordingly, the finding of the trial Court on issue No. 1 is reversed. 32. In the circumstances, when the plaintiffs have failed to establish that they are children born to 1st defendant and when defendant disproves the relationship of plaintiffs with the 1st defendant, question of seeking partition and separate possession of the properties would not arise. Though the trial Court declined right to the plaintiffs on a different ground, since the plaintiffs themselves have failed to establish the relationship with that of the 1st defendant, necessarily the suit of the plaintiffs fails. In that view of the matter, the appeal filed by the plaintiffs/appellants against the order declining a share in the property of the 1 st defendant has to be dismissed while allowing the cross-objection/appeal filed by the defendants/respondents having regard to the nature of evidence on record. 33. Accordingly, appeal is dismissed. The cross-objection filed is allowed. No costs.