Case: Shyam Lal @ Kuldeep Vs. Sanjeev Kumar

2. The appellant herein, who was the plaintiff before the Trial Court, filed a suit for declaration to the effect that mutation number 1313 dated 20.2.1988 in favour of defendant nos.1 and 2 was illegal, null and void. The plaintiff and defendant nos.3 and 4 are the sons and defendant nos.5 and 6 are the daughters of late Shri Balak Ram. They were joint owners and in possession of the estate of the deceased Balak Ram in equal shares. Balak Ram died on 31.10.1987. After his death, his estate came to be mutated in favour of his grandsons, defendant nos.1 and 2, on the basis of a Will executed on 4.12.1978, vide mutation number 1313 dated 20.02.1988.3. According to the plaintiff, the estate was inherited by the deceased Balak Ram from his father Mohar Singh and as such the same was ancestral in his hands. It is further alleged by the plaintiff that the deceased Balak Rams Hindu Undivided Family (HUF) consisted of himself, the plaintiff and the defendants. Late Balak Ram was governed by the Hindu Law and Customs in the matter of alienation and succession whereby he could not bequeath the ancestral property. It was further pleaded that no Will was executed by the deceased Balak Ram during his lifetime. The Will, if any, was forged and fabricated and ultimately the mutation of inheritance sanctioned on 20.2.1988 was illegal, null and void.4. The respondents herein, who were defendants in the Trial Court, while resisting the suit admitted that the deceased Balak Ram had inherited the property from his father Mohar Singh. They, however, denied that such property was ancestral in the hands of the deceased. They also denied that the deceased was governed by the customs in the matter of alienation and succession. They pleaded that the deceased Balak Ram on 4.12.1978 was in a sound disposing mind when he had executed a valid Will in favour of defendant nos.1 and 2. The Will was registered on 23.12.1987 in the office of Sub-Registrar.5. It was also submitted that Smt. Durgi, wife of deceased Balak Ram, had deserted her husband during her lifetime while he was in service at Chandigarh. She developed illicit relations with one Mehar Singh. The plaintiff and Phanki Ram, defendant no.4 were born to Smt. Durgi from the loins of the said Mehar Singh. The Trial Court framed the followingWhether the mutation no.1313 dated 20.2.88 is illegal, null and void and not operative against the plaintiff as alleged? OPP2. Whether the plaintiff and defendant nos.3 and 6 are joint owners in possession of the suit land as alleged? OPP3. Whether there is a validly executed will in favour of defendant nos.1 and 2 as alleged? OPD4. Whether the plaintiff has no cause of action to file the present suit? OPD5. Whether the suit is not maintainable as alleged? OPD6. Whether the suit is not properly valued for purpose of court fee and jurisdiction. OPD7. Whether the plaintiff is estopped from filing the present suit as alleged. OPD8. Whether the suit is within time? OPD9. Whether the suit is bad for want of better particulars, as alleged? OPD10. Whether the alleged will in favour of defendants 1 and 2 is the result of fraud etc. as alleged?"The Trial Court decided issues nos.1, 2 and 10 against the plaintiff and issues no.3, 7 and 9 against the defendants. Consequent upon such findings, the suit of the plaintiff was dismissed by the Trial Court on 27.8.1996.7. The plaintiff, aggrieved by the said judgment filed an appeal before the learned District Judge, Solan who partly allowed the said appeal on 11.9.1997. The plaintiff and defendant no.4 were held to be the sons of deceased Balak Ram. The property in the hands of deceased Balak Ram was held to be ancestral to the extent of his share in the coparcenary property.8. Defendant nos.1 to 3 and 6, aggrieved by the said judgment of the District Judge, Solan filed a second appeal before the High Court on the following substantial questions of law:1. Whether the relationship, particularly regarding parentage, is required to be proved strictly in consonance with the provisions of Section 50 and 60 of the Indian Evidence Act? Can the evidence of persons who having no special means of knowledge of such relationship be held to be admissible and are not the findings of the lower appellate court unsustainable which are based on such inadmissible evidence?2. When it was duly established that Smt. Durgi had illicit relationship with Mehar Singh in whose company she had begotten the plaintiff and defendant no.4, could the learned lower appellate court raise the presumption as envisaged under Section 112 of Indian Evidence Act relating parentage to Shri Balak Ram deceased from whom she severed all the relationship, merely on the ground that there was no legal divorce between Smt. Durga Devi and Shri Balak Ram?3. Whether Ext. P-2 was inadmissible in evidence having not been proved in accordance with law and findings based on the same are illegal and unsustainable?4. When the learned lower Appellate Court has held the custom to have been abrogated on account of the provisions of Sections 4 and 30 of the Hindu Succession Act, was not the will executed by Shri Balak Ram in favour of defendant nos.1 and 2 valid for the entire property when its due execution and validity has been upheld?5. Whether the findings of the learned lower Appellate Court are incorrect to hold the property firstly to be Joint Hindu Family property, secondly ancestral property and thereby restricting the validity of the will executed by Shri Balak Ram qua his coparcenary interest in the property without holding that there existed a coparcenary amongst the parties to the suit and ascertaining the interest of Shri Balak Ram therein?9. The High Court after hearing learned counsel for the parties answered questions nos.1 and 2 as follows:-"The learned District Judge in coming to the conclusion that the plaintiff and defendant No.4 are the sons of the deceased Balak Ram, has relied upon the presumption under Section 112, Evidence Act, 1872, which reads:-"112. Birth during marriage, conclusive proof of legitimacy. – The fact that any person who was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."The rule, contained in the above Section, that continuance of a valid marriage will prevent an inference being drawn to the effect that the children born to a woman during the continuance of the valid marriage were born to another person as a result of adulterous intercourse is only a rule of evidence. The presumption which Section 112, Evidence Act, 1872, contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the Section, namely, non-access between the parties to the marriage at a time when according to the ordinary course of nature, the husband could have been the father of the child."

Reasoning: 37. In the impugned judgment the High Court set aside the decree dated 11.9.1997 of the District Judge and that of the learned Trial Court dismissing the suit of the plaintiff restored. In the impugned judgment, the High Court also dealt with the question of limitation. The High Court observed that learned Trial Court while recording the findings under issue no.8 has held the suit to be not within time. No findings have been recorded by the learned District Judge on the question of limitation. Considering the pleadings as a whole as set out in the plaint, the suit of the plaintiff as laid, on the face of it, was not within time. There were neither pleadings nor evidence as to the date on which the plaintiff had derived the knowledge about the mutation and/or the Will.38. Both the Trial Court and the District Court did not deal with this aspect of limitation in a proper perspective. The High Court, in our considered view has given correct findings regarding limitation. We have carefully and critically examined the findings of the High Court on the issues of Will and consequent mutation. The findings of the High Court are based on correct evaluation of evidence and record of the case.39. The findings of the High Court on the interpretation of Section 112 of the Evidence Act are based on correct analysis of Indian and English cases for the last more than a century. According to the legislative intention and spirit behind Section 112 of Evidence Act it is abundantly clear that once the validity of marriage is proved then there is strong presumption about the legitimacy of children born out of that wedlock. The presumption can only be rebutted by a strong, clear satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt.40. In the instant case, admittedly the plaintiff and defendant no.4 were born to Smt. Durgi during the continuance of her valid marriage with the deceased Balak Ram. Their marriage was infact never dissolved. There is no evidence on record that the deceased Balak Ram at any point of time did not have access to Smt. Durgi. According to the clear interpretation of section 112 of the Evidence Act, there is strong presumption about the legitimacy of children born out of continuation of the valid marriage.41. It is well settled principle of law that Odiosa et inkonesta non sunt in lege prae sumenda (nothing odious or dishonourable will be presumed by the law). The law presumes against vice and immorality. In a civilized society it is imperative to presume legitimacy of a child born during continuation of a valid marriage and whose parents had "access" to each other.42. It is undesirable to enquire into paternity of a child whose parents "have access" to each other. Section 112 of the Evidence Act is based on presumption of public morality and public policy.