Judgment : 1) The appeal is filed against judgment and decree of Regular Civil Appeal No.5 of 1987 which was pending in the District Court Ahmednagar. The First Appellate Court has dismissed the appeal filed by the present appellant against the judgment and decree of Regular Civil Suit No.68 of 1976 which was pending in the Court of the Civil Judge, Junior Division, Jamkhed. Decree of partition and possession is given in favour of respondent No.1. Both the sides are heard. 2) The suit was filed by respondent No.1 in respect of seven agricultural lands and two house properties. It is the case of the plaintiff that the suit property was the ancestral property of his predecessor – Yeshwant Nagawade. It is contended that defendant No.2 Chandrabhaga is widow of Yeshwant. It is contended that Yeshwant left behind other heirs like a son by name Bhanudas (defendant No.1) and a daughter by name Prayagbai (defendant No.5). It is the case of the plaintiff that he is son of defendant No.1 and defendant No.3. It is contended that defendant No.3 is the first wife of defendant No.1 and defendant No.4 is second wife of defendant No.1. 3) It is the case of the plaintiff that in April 1976 he demanded partition from defendant No.1 as he had some dispute with defendant No.1. It is contended that defendant No.1 refused to effect partition and so plaintiff was required to file suit for partition. He has contended that he has two Anna four Paisa share in the suit properties. 4) Defendant No.1 contested the suit. He denied that plaintiff is his son. He contended that in the year 1944 he had married with defendant No.3 Rahibai, but Rahibai was of bad character and she left his company in the year 1949. It is contended that Rahibai was living in village Wangi since 1949 and during this period there was no cohabitation between him and Rahibai. It is contended that the plaintiff is born out of illicit relations of Rahibai. 5) It is the case of defendant No.1 that he had filed proceeding for divorce against defendant No.3 in the year 1955. It is contended that he compromised with defendant No.3 out of Court and then divorce by mutual consent was obtained by preparing a divorce document on 21-9-1955. 5) It is the case of defendant No.1 that he had filed proceeding for divorce against defendant No.3 in the year 1955. It is contended that he compromised with defendant No.3 out of Court and then divorce by mutual consent was obtained by preparing a divorce document on 21-9-1955. 6) It is the case of the defendant No.1 that plaintiff was born in village Wangi and in the record of school name of father of the plaintiff was shown as Bhau Jagtap. It is contended that as per the school record plaintiff was born on 1-6-1958 and so he cannot be treated as a son of defendant No.1. 7) The defendant No.3 Rahibai, mother of the plaintiff, filed consent written statement. She claimed that as per Hindu Law she has also share in the property and her share be separated. 8) On the basis of aforesaid pleadings issues were framed by the trial Court. Plaintiff and defendant No.1 gave evidence. The trial Court has held that marriage tie between defendant No.1 and defendant No.3 is in existence. In view of this circumstance provision of Section 112 of the Evidence Act is considered. The trial Court has held that the plaintiff was born in the year 1955. These findings are confirmed by the District Court. 9) This Court has decided to formulate the substantial questions of law on the basis of grounds mentioned in the appeal memo at Ground Nos.3 to 6 and 8. Both the sides were allowed to argue on those grounds. Following substantial questions of law are formulated:- (i) whether presumption under section 112 of the Evidence Act is available in favour of the plaintiff? (ii) whether Courts below have committed error in reading birth extract in respect of plaintiff in evidence and giving more weight to it than the school record? (iii) whether the defendant No.1 has proved that marriage was dissolved under the document of divorce deed? 10) There is no dispute over the extent of shares given to the plaintiff and his mother by the two Courts below. The plaintiff did not challenge the decision of the trial Court. It is not disputed that the suit properties are ancestral properties. It is also not disputed that the parties belong to Maratha community. 11) The marriage between defendant No.3 and defendant No.1 took place in the year 1944. The plaintiff did not challenge the decision of the trial Court. It is not disputed that the suit properties are ancestral properties. It is also not disputed that the parties belong to Maratha community. 11) The marriage between defendant No.3 and defendant No.1 took place in the year 1944. The defendant No.1 is relying mainly on the document titled as divorce deed to prove that there was divorce between him and defendant No.3. The parties are Hindu and they are from higher caste i.e. Maratha caste and so the Court is required to start with the presumption that such divorce under Hindu Law was not possible. In view of the provisions of Shastric Hindu Law it was necessary for the defendant No.1 to prove that there is custom of divorce in his community and the divorce can be taken as contended by him. There is virtually no evidence from the defendant No.1 on such custom. Though there is such mention in the document itself, only due to such mention inference about custom cannot be drawn. There needs to be specific pleading and convincing evidence in respect of such custom. He belongs to “96 Kooli” Maratha, upper caste of Hinduism. Both the Courts have held that defendant No.1 has failed to prove the custom. So, there is no need to interfere in this finding of both the Courts. The evidence needs to be considered with presumption that the marriage tie was in existence when the plaintiff was born. 12) The document, divorce deed, at Exhibit 94 can be considered for considering the other defences of defendant No.1. This document can be considered for proving the defence of defendant No.1 that from the date of execution of the document, the parties started living separate. If the document is seen, it can be said that there is mention that the parties were living separate from each other for about four years. In addition to this document there is document like copy of marriage petition which was filed in the year 1955 by defendant No.1 (Exhibit 133). This document shows that, the defendant No.1 had contended that after 1949 he had visited village Wangi where defendant No.3 was living on 3 to 4 occasions to bring her back to matrimonial house. This contention is nothing but admission that defendant No.1 had access. This document shows that, the defendant No.1 had contended that after 1949 he had visited village Wangi where defendant No.3 was living on 3 to 4 occasions to bring her back to matrimonial house. This contention is nothing but admission that defendant No.1 had access. In Exhibit 133 there is another mention that defendant No.1 had knowledge that defendant No.3 was carrying of 7 to 8 months on the date of the petition i.e. 31-8-1955. The divorce document was created on 21-9-1955. In the divorce document, there is no mention about pregnancy and also about birth given by defendant No.3 to a son, the plaintiff. If the husband had knowledge that a son was born to defendant No.3 but it is illegitimate issue, he would have taken care to mention about it in the document. Such care is generally taken to see that no share is claimed in the properties of the family. Yeshwant has left behind huge immovable property. Defendant No.1 married two wives and admittedly defendant No.4 is his second wife. Though there is some admission in the evidence of defendant No.3 that defendant No.5 is elder than plaintiff, that admission cannot be given much weight as she is illiterate lady and there is other evidence in that regard. 13) In the case of reported as AIR 1954 SC 176 (Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana) the Apex Court has discussed the provision of Section 112 of the Evidence Act. It is observed by the Apex Court that fact of “non-access” can be proved like any other fact. However, the “non-access” must be proved by clear and satisfactory evidence. If the purpose behind provision of Section 112 of raising presumption in favour of legitimacy is kept in mind, it can be said that burden is on the party who challenges legitimacy, to prove that the child is illegitimate. Both the Courts below have given finding against defendant No.1 on this point. As defendant No.1 was expected to prove “non-access” which is a question of fact, there is no need to interfere in the finding given on this point. All the relevant material is considered by both the Courts below. Further, there appears no force in the case of the defendant No.1 about the bad character of defendant No.3. There is evidence that sister of the defendant No.1 was living in the village of defendant No.3. All the relevant material is considered by both the Courts below. Further, there appears no force in the case of the defendant No.1 about the bad character of defendant No.3. There is evidence that sister of the defendant No.1 was living in the village of defendant No.3. In respect of this allegation there were no particulars available with the defendant No.1. 14) For proving the date of birth, plaintiff has relied on birth certificate which is at Exhibit 65. Evidence is given that on the basis of report given by the defendant No.1 to the authority like Police Patil, birth of the plaintiff was registered. The report is at Exhibit 67. Date of birth is mentioned as 30-8-1955. The record shows that original register of births was brought to the Court by officer of the authority. This record was with Tahsil office. PW 2 – Macchindra Kamble has given evidence on the register. 15) Learned counsel for the appellant challenged the record of birth register on the basis of observation made by this Court in the case of 2005 (1) Mh.L.J. 94 (Gangadhar v. Trimbak) (Bombay High Court Aurangabad Bench). In this case, this Court has discussed the provisions of the Births, Deaths and Marriages Registration Act, 1886. It is observed that as per section 20 of the Act only persons who are mentioned in the section can give notice of birth to the authority. Said persons are the father or mother of the child, any person present at the birth. The provision of Section 22(2) is considered and it is observed that the person giving intimation needs to put signature on the register in the presence of Registrar. Exemption is granted only in respect of those persons who give notice in writing disclosing sufficient identity of such person and establish the same to the satisfaction of the Registrar. There cannot be dispute over the observations made by this Court. They are made for the purpose of identity and for ascertaining as to whether such birth has really taken place. Even if the record like report given by defendant No.1 to the Police Patil is ignored, fact remains that incident of birth of an issue born to defendant No.1 was reported to the authority and it was entered in the register. Mother could have given such report. Even if the record like report given by defendant No.1 to the Police Patil is ignored, fact remains that incident of birth of an issue born to defendant No.1 was reported to the authority and it was entered in the register. Mother could have given such report. It is very old record, created before starting of the dispute and there is no reason to doubt this record. There is one more circumstance like mention in the marriage petition by defendant No.1 in the same year that defendant No.3 was carrying and pregnancy was in advanced stage. It can be said that a son was already born to the defendant no.3 when such contention was made in the marriage petition. It is not the case of the defendant No.1 that said issue born to the defendant No.3 is different or that issue is dead. Thus the observations made by this Court in the case cited supra are of no help to the defendant No.1. This record is to be used only for the purpose of proving the date of birth, which is a relevant fact. Provision of Section 114 of Evidence Act is also available in support. 16) Reliance was placed by the learned counsel for the respondent No.1 on the case reported as 2008 (5) Mh.L.J. 147 (Vasudha v. C.I.D.C. of Mah. Ltd.). In this case this Court has discussed the school record and also the record of birth prepared under the aforesaid Act. It is observed that the documents from the school record are private documents and they carry no presumption in law. It is observed that such private document needs to be proved by direct evidence. It is laid down that when there is variance between an unproved private document and a certified extract of a public record, the public record must prevail as it has more probative value and it carries the presumption under section 79 of the Evidence Act. 17) In view of this position of law and further the fact that no evidence is given to prove the basis on which the school record was prepared, this Court holds that no value at all can be given to the so called school record on the basis of which the defendant No.1 wanted to prove that plaintiff was born in the year 1958 and his father was Bhau Jagtap. 18) The aforesaid discussion shows that both the Courts below have given decision on the aforesaid points against the appellant and there is no possibility of interference in the decision given by both the Courts below. 19) In the result, the appeal stands dismissed.