Dhanalakshmi v. S. Prabhavathy

JUDGMENTThis Second appeal is focussed by the Defendant No.11 in theoriginal suit animadverting upon the judgment and decree dated20.09.2007 passed in A.S.No.175 of 2006 by the IV Additional Judge,City Civil Court, Chennai, confirming the judgment and decree of theXVIII Assistant City Civil Court, Chennai in O.S.No.4716 of 1997,which was suit filed for partition. The parties are referred tohereunder according to their litigative status and ranking before thetrial Court.2. Narratively but precisely, broadly but briefly, the relevantfacts absolutely necessary and germane for the disposal of thisSecond Appeal would run thus:(a) The plaintiffs filed the suit seeking the following reliefs:"(i) For a decree for partition and separatepossession of her 1/3rd share in the schedulementioned properties and if the properties are notcapable of the division, to order sale of them andallot 1/3rd share of sale proceeds; (ii) Against the defendants 1 to 4 to render anaccount of all amounts received and disbursed bythem in the business 'Modern Transports' and alsothe house property No.3, Arthoon road, Royapuram,Madras 13 listed in the schedule hereunder from7.9.83 till decree;(iii) for declaration that the 3rd to 5thydefendants have no manner of right or interest inany of the properties listed in the schedulehereunder; and(iv) For costs."(extracted as such)(b) D1 and D2 filed the written statement which was adopted byD6 to D8. D5 and D11 filed their written statements separately.D10 filed the written statement adopted by D9. D1 filed theadditional written statement which was adopted by D6 to D8. D2, D9and D10 filed their additional written statements separately.(c) Whereupon issues were framed by the trial Court.(d) During trial, the plaintiff-Prabavathi examined herself asP.W.1 and Exs.A1 to A10 were marked. On the side of the defendants,D.Ws.1 to 4 were examined and Exs.B1 to B74 were marked. 3. Ultimately the trial Court decreed the suit granting onethird share each in favour of the plaintiff, D1 and D2. Whereupon, https://hcservices.ecourts.gov.in/hcservices/ only D11 preferred appeal for nothing but to be dismissed by theappellate Court confirming the judgment and decree of the trial Court.4. Challenging and impugning the judgments and decrees of boththe Courts below, D11 filed this Second Appeal on various groundssuggesting the following substantial questions of law:"(a) Whether prolonged cohabitation between a manand woman continuously over four decades will give torise to legal presumption to establish the marriagebetween them?(b) Whether mere filing of a document can be reliedupon by the Court without any proof of the contents ofthe document is valid in law?(c) Whether the finding by the appellant courtcontrary to the documentary evidence (Ex.B72 to B74) issustainable?"5. The learned counsel for the plaintiff placing reliance on thegrounds of Second Appeal would detail and delineate thus:(a) Both the Courts below failed to take into consideration thefact that D11 happened to be the legitimate daughter born toVaradarajulu and Krishnabai. In fact, Krishnabai happened to be thelegitimate first wife of Varadarajulu and during their wedlock, thecouple gave birth to the appellant/D11 and also one son and two moredaughters, but those children have not been added as parties whilethe plaintiff Prabavathi filed the suit. (b) Ex.B71 cannot be taken as proof for the reason that markingis different from proving and the plaintiff, D1 and D2 who areclaiming to be allegedly the only legitimate children of Varadarajulushould have proved the contents of Ex.B71, but they have not done so.Hence the Courts below misdirected themselves warranting interferencein the Second Appeal.(c) Even though the plaintiff, D1 and D2 repeatedly averred asthough Krishnabai was earlier married to one Andi Munusamy and thather relationship, if any, with Varadarajulu was an adulterous one,yet they have not chosen to prove that Krishnabai was married to AndiMunusamy. (d) The Hon'ble Apex Court held that the Court should bereluctant to bastardise a child, but both the Courts failed to takeinto consideration those aspects.(e) Simply because Jagadeeswari, the mother of the plaintiff, D1and D2 is referred to as the wife of Varadarajulu in Exs.A2(B2), A5, https://hcservices.ecourts.gov.in/hcservices/ and B3 it cannot be presumed that Jagadeeswari was the legitimatewife and that too, when the Courts below gave verdict thatVaradarajulu was in the habit of having physical relationship withvarious ladies. (f) P.W.1-the plaintiff herself admitted that Krishnabai andVaradarajulu lived in the same house along with Jagadeeswari. It isa trite proposition of law that if a man and a woman livecontinuously as man and wife for several decades, marriage betweenthem should be presumed. But both the Courts below failed to do so.Ex.B72-the Birth Certificate of D11, Ex.B73-the marriage invitationof D11 and B74-the paper publication with regard to the death ofVaradarajulu were not properly appreciated by the Courts below.Accordingly, the learned counsel for the plaintiff would pray forsetting aside the judgments and decrees of both the Courts below andfor dismissing the original suit.6. Piloting the arguments on the side of R1, R2, R4 to R6, R7and R8, the learned Advocates in unison would put forth and set forththeir points thus:(a) Ex.B71-Power of Attorney was produced by the appellant/D11herself and got it marked and in such a case without any rhyme orreason on the part of the appellant, she contends as though thecontents of Ex.B71 should have been proved by the plaintiff, D1 andD2. If at all the said document was produced by the plaintiff or D1or D2 and D11 objected to the marking, then the question of provingthe contents by them would have arisen. As such both the Courtsbelow correctly and appropriately placed reliance on Ex.B71, whereinthere is categorical admission by D4, the brother of D11 thatKrishnabai was only the mistress of Varadarajulu and whereas in thesame power of attorney it was admitted that Jagadeeswari was the wifeof Varadarajulu. (b) Mere joint living would not lead to the inference ofmarriage between a man and a lady. Here both the Courts belowhighlighted the point that it is not as though Krishnabai andVaradarajulu lived exclusively in a house and gave birth to children,but here admittedly Krishnabai was living in the house whereJagadeeswari and Varadarajulu were living and in such a caseautomatically the presumption arising out of long co-habitationcannot be ushered in and both the Courts below appropriately appliedthe law warranting no interference in the Second Appeal. (c) Exs.B72 to B74 also cannot be taken as conclusive proof toprove the marriage because those certificates of alone would not leadto the inference that there was marriage between the parents and thatchildren born were legitimate ones. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the learned counsel for the respondents pray for thedismissal of the Second Appeal.7. On hearing both sides, I am of the considered view that thefollowing substantial questions of law do emerge:(1) Whether both the Courts below failed to takeinto consideration the prolonged co-habitation ofVaradarajulu and Krishnabai and the fact of theyhaving given birth to children as evidenced by Exs.B72to B74 and whereby failed to draw presumption thatthere was legitimate marriage between the parents ofsuch children?(2) Whether the averments in Ex.B71 was expectedto be proved by the plaintiff or D1 or D2 despite thesaid document have been marked on the side of theappellant/D11?(3) Whether there is perversity or illegality inthe judgments and decree of both the Courts below?8. I fumigate my mind with the following decisions of theHon'ble Apex Court:(i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH(MINOR) VS. SESHAMMAL.(ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAMSINGH AND ANOTHER.(iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL(iv) (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs. COMMISSIONER OF INCOME TAX, DELHI]A mere poring over and perusal of those judgments would conveyand portray, that the High Court while exercising its power underSection 100 of CPC should see as to whether there is any substantialquestion of law is involved in the matter. However, after framingsuch substantial question of law, interference would be possible.Hence, it is the paramount duty of the Court to find out as towhether there is any perversity or illegality on the part of theCourts below in deciding the factual and legal issues involved in thematter.9. For better appreciation, I am of the considered view thatpithily and precisely, avoiding finicky narration the germane factscould be set out thus: https://hcservices.ecourts.gov.in/hcservices/ Indubitably and indisputably, unarguably and undeniably, oneVaradarajulu lived with as many as three ladies, namely Krishnabai,Jagadeeswari and Ranganayaki and for that matter even with some otherladies. On the one hand, the plaintiff namely Prabhavathi wouldcontend that her father Varadarajulu legitimately marriedJagadeeswari and during their wedlock the plaintiff Prabhavathi, D1and D2 were born and they are the only legal heirs of Varadarajuluwho died during the year 1983. 10. Whereas, D11 the appellant herein, would contend thatKrishnabai happened to be the elder sister of Jagadeeswari and bothKrishnabai and Jagadeeswari were living in one and the same housealong with Varadarajulu. Even though at the initial stage it wascontended on behalf of D11, that Jagadeeswari was not the legallywedded wife of Varadarajulu, that it was Krishnabai who was the legalwedded wife of Varadarajulu and that Jagadeeswari simply startedliving with Varadarajulu, yet subsequently before this Court it wascontended that both Krishnabai as well as Jagadeeswari both livedwith Varadarajulu, D11 even went to the extent agreeing for treatingall the children born to both ladies as legal heirs.11. D5-Ranganayaki would contend that she is the legitimate wifeof Varadarajulu and the children born to her namely D9 and D10 arethe legitimate children. However, she after meeting with herwaterloo in the trial Court has not chosen to file any appeal and sheremained ex parte before the first appellate Court as well as here. 12. At this juncture, I would like to refer to the decision ofthe Hon'ble Apex Court reported in 2010(7) SCC 717 [ Laxman TatyabaKankate and another vs. Taramati Harishchandra Dhatrak]; an excerptfrom it would run thus:"24. It is a settled principle of law that before thefirst appellate court, the party may be able to support thedecree but cannot challenge the findings without filing thecross-objections. ..........................."13. Accordingly, D5-Ranganayaki and her children D9 and D10 whodid not file any appeal or second appeal now cannot be taken ashaving any objection for the preliminary decree passed in favour ofthe plaintiff, D1 and D2. Wherefore, the finding as against D3, D9ad D10 became final. It is also to be noted here that D11 claimsherself as the legitimate daughter of Varadarajulu and Krishnabai-D3,but D3-Krishnabai and her son D4-Ranganathan have not chosen tocontest the matter at all and throughout they remained ex parte. 14. The learned counsel for the appellant/D11 would contend thatneither Krishnabai nor Ranganathan was examined before the Court atthe instance of the plaintiff or D1 or D2, forgetting for the moment https://hcservices.ecourts.gov.in/hcservices/ that D11 herself has not taken steps to examine those persons. Atone point of time it was submitted on behalf of D11 that Krishnabaiwas aged about 100 years at the time of the trial and hence she couldnot be examined and D4 even though the brother of D11 was notexamined because he was not co-operating with D11. However, thelearned Advocates for the plaintiff, D1 and D2 in unison would submitthat such contention on the part of the D11 is neither here nor therefor the reason that the onus of proof was on the D11 to prove thatshe is the legitimate daughter of Krishnabai and Varadarajulu, butshe has not chosen to take any steps to secure their presence andexamine them. I would like to point out that if D11 had takeninitiative to examine D3, she could have got an Advocate Commissionerappointed for examining her at the residence itself, because thefirst appellate Court correctly pointed out that D1 herself admittedthat D3 was conscious at the relevant time and she could even walkwith hand stick. When such was the position, D11 will not be heard tocontend now that Krishnabai could not be examined because of her oldage. The best person to speak about the marriage between D3-Krishnabai and deceased Varadarajulu, was Krishnabai herself. Butthe plaintiff claiming to be the legitimate child of Krishnabai andVaradarajulu had not chosen to examine her. Further more, D4 beingthe brother of D11 was also not examined. Atleast he could have beensummoned as a Court witness and examined before Court at the instanceof D11, but that was also not done. 15. In such a case, I could see considerable force in thesubmission made by the learned counsel for the plaintiff, D1 and D2that the preponderance of probabilities are in favour of theplaintiff, D1 and D2 who contends that Varadarajulu had only onelegitimate wife, namely Jagadeeswari and that was why D3-Krishnabaiherself and D4-Ranganathan, the son of Krishnabai refrained frommaking appearance before the Court. 16. I would like to call up and recollect the trite propositionof law that witnesses might lie, but the circumstances will not lie.Except Prabavathi, her brothers and sisters and her mother Krishnabaihave not chosen to contest the matter at all or lay claim over thesuit property because obviously and axiomatically, Krishnabai was notthe legitimate wife of Varadarajulu. The learned counsel for D11would contend that the long co-habitation was an admitted fact byP.W.1 herself and in such a case placing reliance on the aforesaidtrite proposition of law and the admitted facts, the Courts couldhave decided the lis in favour of D11. The first appellate Courtappropriately and appositely, correctly and convincingly highlightedand pointed out that it is not a simple case of Krishnabai havinglived with Varadarajulu, but it is an indisputable and unassailablecase that Krishnabai was living in the house where Jagadeeswari andVaradarajulu were living and Krishnabai is none but the elder sisterof Jagadeeswari. In such a case unless there is clinching evidenceto show that Varadarajulu and Krishnabai got married, the question of https://hcservices.ecourts.gov.in/hcservices/ drawing presumption by invoking Section 112 of the Indian EvidenceAct would not arise.17. At this juncture, I recollect and call up the followingdecisions:"24. An excerpt from the decision of the Hon'ble Apex Courtreported in AIR 1971 SC 2352 (Perumal Nadar (dead) by LegalRepresentative vs. Ponnuswami Nadar (Minor) would run thus:"12.Nor can we accept the contention that theplaintiff Ponnuswami is an illegitimate child. If it beaccepted that there was a valid marriage between Perumaland Annapazham and during the subsistence of the marriagethe plaintiff was born, a conclusive presumption arisesthat he was the son of Perumal, unless it be establishedthat at the time when the plaintiff was conceived, Perumalhad no access to Annapazham. There is evidence on therecord that there were in 1957 some disputes betweenAnnapazham and Perumal. Annapazham had lodged a complaintbefore the Magistrate’s court that Perumal had contractedmarriage with one Bhagavathi. That complaint was dismissedand the order was confirmed by the High Court of Madras.Because of this complaint, the relations between theparties were strained and they were living apart. But it isstill common ground that Perumal and Annapazham were livingin the same village, and unless Perumal was able toestablish absence of access, the presumption raised bySection 112 of the Indian Evidence Act will not bedisplaced.13.In Chilukuri Venkateswarlu v. ChilukuriVenkatanarayana3 in a suit filed by a Hindu son against hisfather for partition it was contended that the plaintiffwas not the legitimate child of the defendant. Thedefendant relied upon certain documents by which he hadagreed to pay maintenance to the plaintiff’s mother andupon a deed gifting a house to her and assertions made in aprevious suit that he had no intercourse with her after hemarried a second wife. The Court in that case observed,following the judgment of the Privy Council in Karapaya v.Mayandi4 that “non-access could be established not merelyby positive or direct evidence; it can be provedundoubtedly like any other physical fact by evidence,either direct or circumstantial, which is relevant to theissue under the provisions of the Indian Evidence Act,though as the presumption of legitimacy is highly favouredby law it is necessary that proof of non-access must beclear and satisfactory”, and since on the basis of thatproof there was evidence on the record that the plaintiff’s https://hcservices.ecourts.gov.in/hcservices/ mother lived in the house gifted to her by her husband andthere was no impossibility of cohabitation between theparties, there was no acceptable evidence of non-access."(emphasis supplied) (ii) An excerpt from the decision of the Hon'ble Apex Courtreported in AIR 1993 SC 2295 (Goutam Kundu vs. State of West Bengaland another) would run thus:"21. above is the dicta laid down by the various HighCourts. In matters of this kind the court must have regardto Section 112 of the Evidence Act. This section is based onthe well-known maxim pater est quem nuptiae demonstrant (heis the father whom the marriage indicates). The presumptionof legitimacy is this, that a child born of a married womenis deemed to be legitimate, it throws on the person who isinterested in making out the illegitimacy, the whole burdenof proving it. The law presumes both that a marriageceremony is valid, and that every person is legitimate.Marriage or filiation (parentage) may be presumed, the lawin general presuming against vice and immorality.(emphasis supplied)22. It is a rebuttable presumption of law that a childborn during the lawful wedlock is legitimate, and thataccess occurred between the parents. This presumption canonly be displaced by a strong preponderance of evidence, andnot by a mere balance of probabilities.(emphasis supplied) 23. Dukhtar Jahan (Smt) v. Mohammed Farooq this Courtheld: (SCC p. 629, para 12)“... Section 112 lays down that if a person was born duringthe continuance of a valid marriage between his mother andany man or within two hundred and eighty days after itsdissolution and the mother remains unmarried, it shall betaken as conclusive proof that he is the legitimate son ofthat man, unless it can be shown that the parties to themarriage had no access to each other at any time when hecould have been begotten. This rule of law based on thedictates of justice has always made the courts inclinetowards upholding the legitimacy of a child unless the factsare so compulsive and clinching as to necessarily warrant afinding that the child could not at all have been begottento the father and as such a legitimation of the child wouldresult in rank injustice to the father. Courts have alwaysdesisted from lightly or hastily rendering a verdict andthat too, on the basis of slender materials, which will have https://hcservices.ecourts.gov.in/hcservices/ the effect of branding a child as a bastard and its motheran unchaste woman.”(emphasis supplied) 24. This section requires the party disputing thepaternity to prove non-access in order to dispel thepresumption. “Access” and “non-access” mean the existence ornon-existence of opportunities for sexual intercourse; itdoes not mean actual “cohabitation”.(emphasis supplied) 25. The quintessence of the legal point that could beunderstood from the aforesaid decisions is that thepresumption contemplated under Section 112 of the IndianEvidence Act is only a rebuttable one. It is therefore,just and necessary to extract the relevant Section, viz.,Section 112 of the Indian Evidence Act."112. Birth during marriage, conclusive proof oflegitimacy – The fact that any person was born during thecontinuance of a valid marriage between his mother and anyman, or within two hundred and eighty days after itsdissolution, them other remaining unmarried, shall beconclusive proof that he is the legitimate son of that man,unless it can be shown that the parties to the marriage hadno access to each other at any time when he could have beenbegotten."(emphasis supplied) 17. No doubt, the Hon'ble Apex Court unambiguously andunarguably highlighted and spotlighted the proposition that the Courtshould be reluctant to bastardise a child. While recollecting thesaid decision, one should not lose sight of the fact that in theprocess of not bastardising one person, the Court also should notbastardise another person who is not liable to be bastardised. Assuch I would like to point out here that during the life time ofVaradarajulu himself Jagadeeswari was referred to as the wife ofVaradarajulu. By way of adding strength to the contention of theplaintiff, D1 and D2 in Ex.B3-the mortgage deed, Varadarajulu,Jagadeeswari and their two children were parties, whereincategorically and candidly it is found exemplified and demonstratedthat Varadarajulu acknowledged and treated Jagadeeswari and thechildren born to them as the legitimate children. This happened inthe year 1949 so to say long prior to the arisal of the dispute orlitigation so to say it is an ante litem document having evidentiaryand probative force of its own. Over and above that it is also anancient document within the meaning of Section 90 of the IndianEvidence Act. https://hcservices.ecourts.gov.in/hcservices/

18. No doubt, there are certain documents which would alsoexemplify and demonstrate that Varadarajulu during his lifetimedescribed Ranganayaki as his wife, but both the Courts belownegatived the contention of Ranganayaki and her children and heldthat they are not the legitimate heirs of deceased Varadarajulu asagainst which they have not chosen to prefer any objection or appealand as such this Court need not ponder over those documents. Thereis no iota or shred, shard or miniscule, pint of jot of evidenceavailable on the side of D11 to demonstrate that Krishnabai was everreferred to by Varadarajulu as his wife even though Krishnabai claimsto have lived with him for four decades or so. The reliance placedon the Birth Certificates undoubtedly refer to the parents of thosechildren as Krishnabai and Varadarajulu. Simply because the childrenwere born to them, it cannot be presumed that there was legitimaterelationship between the two and that that too in the wake ofspecific allegation by the plaintiff, D1 and D2 that Krishnabai wasalready married to Andi Munusamy and one of the children was born toKrishnabai through Andi Munusamy and the remaining children were bornof Varadarajulu. Any children born out of adulterous relationshipcannot be treated as the ones eligible to invoke Section 16 of theHindu Marriage Act. Over and above that, I would like to refermomentI even thought of referring to the old Hindu Law which wouldcontemplate that even an illegitimate child born out of a keptmistress or concubine could also be taken as one entitled to a smallmoiety along with the legitimate child. But in this case,Varadarajulu died only in the year 1983 long after the commencementof Hindu Marriage Act as well as Hindu Succession Act and oncecodified new law in the form of Section 16 of the Hindu Marriage Actstarted occupying the filed, the question of invoking the contraryold Hindu Law does not arise. In such an event also I would like topoint out that no where in the old Hindu law it is found envisagedthat a child born out of adulterous connection would be entitled fora share in the self acquired property of its Hindu father. The firstappellate Court in paragraph Nos.23 and 24 of its judgment clearlydealt with those points, so to say au fait with the correctproposition of law the dispute was decided warranting no interferencein the Second Appeal. With a fine-toothed comb, the matter does notwarrant it to be combed as already such exercise was properlyperformed by the first appellate court.19. The learned counsel for the appellant/D11 would draw theattention of this Court to the relevant portion of the crossexamination of P.W.1 Prabhavathi/plaintiff and point out thatPrabhavathi herself admitted that the children born to Krishnabaiwere through Varadarajulu and that there was a long co-habitationetc. I would like to point out that the deposition of P.W.1 shouldbe read in entirety. In the chief examination as well as duringcross examination, her stand was that Krishnabai's husband was AndiMunusamy and in such a case there is nothing to indicate that there https://hcservices.ecourts.gov.in/hcservices/ was any semblance of legitimate relationship between Varadarajulu andKrishnabai.20. The learned counsel for the appellant/D1 would submit thatonly the plaintiff or D1 or D2 should have proved that Andi Munsuamywas alive at the time Krishnabai living with Varadarajulu and givingbirth to the children, but they have not discharged their burden.21. At this juncture, I recollect the following maxims:(1) Affirmantis est probare : The person who affirms must prove(2) Affirmanti, non neganti, incumbit probatio : The proof isincumbent on the one who affirms, not on the one who denies.22. Here D11 alone after getting herself impleaded as one of thedefendants in the suit asserted that she is the legitimate daughterof Krishnabai. So, at the first instance it is for her to establishthe fact that she is the legitimate daughter of Varadarajulu. Onusof proof is ambulatory and not static. Had D11 placed before theCourt some admissible piece of evidence that she is the legitimatedaughter of Varadarajulu born through Krishnabai, then the onus ofproof would have got shifted towards the plaintiff or D1 or D2 toprove that Andi Munusamy was alive and that the relationship betweenKrishnabai and Varadarajulu was an adulterous one. Wherefore, D11cannot try to fob off the onus from her side to others artificially.Since D11 herself has not discharged her initial burden, the questionof mulcting the plaintiff or D1 or D2 with liability would not arisein this case.23. The learned counsel for the appellant/D11 would vehementlyargue that the contents of Ex.B71- the power of attorney should havebeen proved. In this connection, I hark back to the decision of theHon'ble Apex Court reported in (2010) 8 SCC 423 [ ShalimarChemical Works Limited vs. Surendra Oil and Dal Mills (Refineries andothers) ]; certain excerpts from it would run thus:10. ....................."An objection to theadmissibility of the document can be raised before suchendorsement is made and the court is obliged to form itsopinion would depend, the document being endorsed, admittedor not admitted in evidence. In support of the submissionhe relied upon a decision of this Court inR.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami &V.P.Temple where it was observed as follows: (SCC p.764,para 20)"20. .....The objections as to admissibility ofdocuments in evidence may be classified into twoclasses: (i) an objection that the document which is https://hcservices.ecourts.gov.in/hcservices/ sought to be proved is itself is inadmissible inevidence; and (ii) where the objection does notdispute the admissibility of the document in evidencebut is directed towards the mode of proof alleging thesame to be irregular or insufficient. In the firstcase, merely because a document has been marked as 'anexhibit', an objection as to its admissibility is notexcluded and is available to be raised even at a laterstage or even in appeal or revision. In the lattercase, the objection should be taken when the evidenceis tendered and once the document has been admitted inevidence and marked as an exhibit, the objection thatit should not have been admitted in evidence or thatthe mode adopted for proving the document is irregularcannot be allowed to be raised at any stage subsequentto the marking of the document as an exhibit. Thelatter proposition is a rule of fair play. Thecrucial test is whether an objection, if taken at theappropriate point of time, would have enabled theparty tendering the evidence to cure the defect andresort to such mode of proof as would be regular. Theomission to object becomes fatal because by hisfailure the party entitled to object allows the partytendering the evidence to act on an assumption thatthe opposite party is not serious about the mode ofproof. On the other hand, a prompt objection does notprejudice the party tendering the evidence, for tworeasons: firstly, it enables the court to apply itsmind and pronounce its decision on the question ofadmissibility then and there; and secondly, in theevent of finding of the court on the mode of proofsought to be adopted going against the party tenderingthe evidence, the opportunity of seeking indulgence ofthe court for permitting a regular mode or method ofproof and thereby removing the objection raised by theopposite party, is available to the party leading theevidence. Such practice and procedure is fair to boththe parties. Out of the two types of objections,referred to hereinabove, in the latter case, failureto raise a prompt and timely objection amounts towaiver of the necessity for insisting on formal proofof a document, the document itself which is sought tobe proved being admissible in evidence. In the firstcase, acquiescence would be no bar to raising theobjection in a superior court." (emphasis inoriginal).24. In this case adding fuel to the fire Ex.B71 itself wasmarked by D11 and it was she who produced it, however, she wouldexpect the contents of it to be proved by plaintiff or D1 or D2. If https://hcservices.ecourts.gov.in/hcservices/ at all the plaintiff or D1 or D2 had produced such a document andmarked it and at the time of such marking, D11 objected then thequestion of proving the contents by them would arise.25. Marking of a document would not amount to proving adocument, but here the position is some what different. It is D11,the appellant who is protagonist of the act of producing the documentEx.B71 before the Court and marking it. However, she would contendthat the contents should not be relied upon. I could see no rhyme orreason in the contention of D11 as it is niggard and bereft of legalsignificance. The Hon'ble Apex Court in the cited decision suprapointed out that if at all there is any objection to the marking of adocument, then the person concerned would be in a position to secureevidence to prove the contents. But without any demur if a documentis allowed to be marked then at a later stage, the opposite partyshould not be taken by surprise as though he ought to have proved thecontents by examining witnesses. As such no more elaboration in thisregard is required. Hence, considering the pros and cons of thematter, I am of the considered view that there is no perversity orillegality in the findings of the trial Court as well as theappellate Court warranting interference in the Second Appeal. 26. Wherefore, the substantial question of law No.1 is decidedto the effect that the Courts below did not take into account thealleged prolonged co-habitation of Varadarajulu and Krishnabai andthereby correctly rejected the claim of the plaintiff that she is thelegitimate daughter of Varadarajulu and Krishnabai.27. The substantial question of law No.2 is decided to theeffect that the averments in Ex.B71 was not expected to be proved bythe plaintiff or D1 or D2 as against D11 as it was produced by D11.28. The substantial question of law No.3 is decided to theeffect that there is no illegality or perversity in the findings ofthe Courts below.In the result, the Second Appeal is dismissed. No costs.Consequently, connected miscellaneous petition is closed. Sd/ Asst. Registrar/true copy/Sub Asst.Registrargms https://hcservices.ecourts.gov.in/hcservices/ To1. The IV Additional Judge, City Civil Court, Chennai2. The XVIII Assistant, City Civil Court, Chennai1 cc To Mr.N.A.Kareem, Advocate, SR.166231 cc To Mr.G.Rajan, Advocate, SR.16471S.A.No.527 of 2008SGL (CO)RH (21.4.11)