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CASE NO.: Appeal (civil)  2918 of 2005

PETITIONER: Shri Banarsi Dass

RESPONDENT: Mrs. Teeku Dutta and Anr

DATE OF JUDGMENT: 27/04/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

(Arising out of SLP(C) No.17427 of 2004)

ARIJIT PASAYAT, J.

       Leave granted.

       The core question involved in this appeal is whether a direction  for Deoxyribonucleic Acid Test (commonly known as DNA test) can be  given in a proceeding for issuance of succession certificate under the  Indian Succession Act, 1925 (in short the ’Act’).   

       Challenge in this Appeal is to the order of a learned Single  Judge of the Delhi High Court setting aside the order of learned  Administrative Civil Judge, Delhi dated 20.12.1999 whereby he had  allowed an application under Section 151 of the Code of Civil  Procedure, 1908 (in short the ’CPC’) filed by the appellant seeking DNA  test of the respondent no.1\026Smt. Teeku Dutta and Sh. Ram Saran Dass  Sharma, (who is not a party in this appeal). Respondent No.1 has filed  case No.86 of 1944 for grant of succession certificate under Section  372 of the Act.

       Background       facts in a nutshell are as follows:

The respondent No. 1 filed a petition for grant of Succession  Certificate in respect of the properties of one Iqbal Nath Sharma  (hereinafter referred to as the ’deceased’) claiming that she was his  daughter and the only surviving Class I legal heir under the Hindu  Succession Act, 1956 (in short the ’Succession Act’).  It was indicated  in the petition that the deceased had died intestate leaving behind  five brothers- Sh. Banarsi Dass, Sh. Amar Nath Sharma, Sh. Ram Saran  Dass Sharma, Sh. P.L. Sharma and Sh. K.C. Sharma.  Originally Sh.  Banarsi Dass was not impleaded and rest four were impleaded. Out of  them Sh. P.L. Sharma and Sh. K.C. Sharma had expired and only Amar Nath  Sharma and Ram Saran Dass Sharma were alive and were impleaded as  respondents to the petition. During the pendency of the petition  Banarsi Dass, was also impleaded. He filed objection to the grant of  Succession Certificate disputing Mrs. Teeku Dutta’s claim.  It was  stated that she was not the daughter of the deceased.  Evidence has  been led and documentary evidence was also filed in support of the  respective stands. At this stage the application under Section 151 CPC  was moved by the objector \026 Banarsi Dass alleging that the respondent  Mrs. Teeku Dutta was not the  daughter of the deceased, but in fact is  the daughter of Ram Saran Dass Sharma and since the deceased and his  wife both were dead it would not be possible to subject them to a DNA  test and compare with the DNA test of Mrs. Teeku Dutta. Since Ram Saran  Dass Sharma is alive, DNA test of Sh. Ram Saran Dass Sharma and Mrs.

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Teeku Dutta would conclusively establish the paternity of Mrs. Teeku  Dutta. The application was opposed on the ground that it was malafide  and was made with a view to delay the proceedings.  It was further  stated that the DNA test would not serve any purpose as sufficient  documentary evidence has already been brought on record.  The trial  court allowed the application primarily on the ground that Mrs. Teeku  Dutta had initially concealed the fact that the deceased had five  brothers and had deliberately left out Banarsi Dass Sharma from the  array of respondents, and this casts doubt on the bonafides of the  applicant’s claim of being the daughter of the deceased. The  trial  court considered the petition for grant of succession certificate and  the "no objections" filed by other respondents namely Ram Saran Dass  and Amar Nath Sharma to be somewhat collusive. Another reason which  appears to have weighted heavily with learned trial judge was that the  documentary evidence brought on record was not cogent enough to show  that she was the daughter of the deceased.  Further the trial court  held that since the applicant for the DNA test was willing to bear the  cost of the said DNA test, there would not be any difficulty in  directing DNA test.   

The High Court found that this is not a fit case where such a  direction could be given.  It was noticed that the scope of the enquiry  was very limited and the trial court being a testamentary court should  have left the parties to prove their respective cases by such evidence  produced during trial, rather than creating evidence by directing DNA  test.  Accordingly, the Revision Petition filed under Section 115 of  the CPC by Mrs. Teeku Dutta was allowed.

In support of the appeal learned counsel for the appellant  submitted that the trial court had kept in view the correct  perspectives of the case and instead of leaving the matter to be  decided by oral and documentary evidence, the High Court should have  held that the conclusive DNA test would have provided necessary  material for an effective adjudication.

Learned counsel appearing for the respondents submitted that the  order of the High Court is based on the correct legal position as  regards the desirability of DNA test in such matters.

   In Goutam Kundu v. State of West Bangal and Another (1993 (3)  SCC 418) this Court held, inter alia, as follows:

"(1)That courts in India cannot order blood test  as a matter of course;

(2)Wherever applications are made for such  prayers in order to have roving inquiry, the prayer for  blood test cannot be entertained.

(3) There must be a strong prima facie case in  that the husband must establish non-access in order to  dispel the presumption arising under Section 112 of the  Evidence Act.

(4) The court must carefully examine as to what  would be the consequence of ordering the blood test;  whether it will have the effect of branding a child as  a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of  blood for analysis.

                It was noted that Section 112 of the Indian Evidence Act, 1872

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(in short the ’Evidence Act’) requires the party disputing the  patronage to prove non-access in order to dispel the presumption of the  fact under Section 112 of the Evidence Act. There is a presumption and  a very strong one, though rebuttable one. Conclusive proof means proof  as laid down under Section 4 of the Evidence Act.         In matters of this kind the court must have regard to Section 112  of the Evidence Act. This section is based on the well-known maxim  pater est quem nuptiae demonstrant (he is the father whom the marriage  indicates). The presumption of legitimacy is this, that a child born of  a married women is deemed to be legitimate, it throws on the person who  is interested in making out the illegitimacy, the whole burden of  proving it. The law presumes both that a marriage ceremony is valid,  and that every person is legitimate. Marriage of filiation (parentage)  may be presumed, the law in general presuming against vice and  immorality.  It is rebuttable presumption of law that a child born during the  lawful wedlock is legitimate, and that access occurred between the  parents. This presumption can only be displaced by a strong  preponderance of evidence, and not by a mere balance of probabilities.  In Dukhtar Jahan (Smt.) v. Mohammed Farooq (1987 (1) SCC 624)  this Court held:(SCC p. 629, para 12):  "... Section 112 lays down that if a person 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 and the mother  remains unmarried, it shall be taken as conclusive  proof that he is the legitimate son of the 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. This rule of law based  on the dictates of justice has always made the courts  incline towards upholding the legitimacy of a child  unless the facts are so compulsive and clinching as  to necessarily warrant a finding that the child could  not at all have been begotten to the father and as  such a legitimation of the child would result in rank  injustice to the father. Courts have always desisted  from lightly or hastily rendering a verdict and that  too, on the basis of slender materials, which will  have the effect of branding a child as a bastard and  its mother an unchaste woman."  

       The view has been reiterated by this Court in many later cases  e.g. Amarjit Kaur v. Harbhajan Singh and Anr. (2003 (10) SCC 228).   We may remember that Section 112 of the Evidence Act was enacted  at a time when the modem scientific advancements with deoxyribonucleic  acid (DNA) as well as ribonucleic acid (RNA) tests were not even in  contemplation of the legislature. The result of a genuine DNA test is  said to be scientifically accurate. But even that is not enough to  escape from the conclusiveness of Section 112 of the Act e.g. if a  husband and wife were living together during the time of conception but  the DNA test revealed that the child was not born to the husband, the  conclusiveness in law would remain irrebuttable. This may look hard  from the point of view of the husband who would be compelled to bear  the fatherhood of a child of which he may be innocent. But even in such  a case the law leans in favour of the innocent child from being  bastardised if his mother and her spouse were living together during  the time of conception. Hence the question regarding the degree of  proof of non-access for rebutting the conclusiveness must be answered  in the light of what is meant by access or non-access as delineated  above. (See Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001 (5) SCC 311).   The main object of a Succession Certificate is to facilitate  collection of debts on succession and afford protection to parties  paying debts to representatives of deceased persons. All that the  Succession Certificate purports to do is to facilitate the collection

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of debts, to regulate the administration of succession and to protect  persons who deal with the alleged representatives of the deceased  persons. Such a certificate does not give any general power of  administration on the estate of the deceased.  The grant of a  certificate does not establish title of the grantee as the heir of the  deceased. A Succession Certificate is intended as noted above to  protect the debtors, which means that where a debtor of a deceased  person either voluntarily pays his debt to a person holding a  Certificate under the Act, or is compelled by the decree of a Court to  pay it to the person, he is lawfully discharged.  The grant of a  certificate does not establish a title of the grantee as the heir of  the deceased, but only furnishes him with authority to collect his  debts and allows the debtors to make payments to him without incurring  any risk.  In order to succeed in the succession application the  applicant has to adduce cogent and credible evidence in support of the  application.  The respondents, if they so chooses, can also adduce  evidence to oppose grant of succession certificate. The trial court  erroneously held that the documents produced by the respondents were  not sufficient or relevant for the purpose of adjudication and DNA test  was conclusive. This is not a correct view.  It is for the parties to  place evidence in support of their respective claims and establish  their stands. DNA test is not to be directed as a matter of routine and  only in deserving cases such a direction can be given, as was noted in  Goutam Kundu’s case (supra). Present case does not fall to that  category.  High Court’s judgment does not suffer from any infirmity.   We, therefore, uphold it. It is made clear that we have not expressed  any opinion on the merits of the case relating to succession  application.

Above being the position, the direction for DNA test as was given  by the trial court is clearly unsustainable and the High Court has  rightly set it aside.          Appeal is dismissed with no orders as to costs.