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PETITIONER: S. AJARMA BI & S. HAJARAM BIHI AND ANOTHER

       Vs.

RESPONDENT: S.KHURSHID BEGUM & OTHERS

DATE OF JUDGMENT:       13/02/1996

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) RAY, G.N. (J)

CITATION:  1996 AIR 1663            JT 1996 (6)   155  1996 SCALE  (2)205

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T HANSARAI, J.      Leave granted. 2.   The dispute  at hand  relates to  property bearing door Nos.297 to 306 which once belonged to one M.Abdul Sattar and his vounder  brother M.Sattar. Respondent Nos.1 and 2 herein are the  daughters of  M.Sattar through  his first wife, the third respondent.  The two  appellants claimed themselves to be the  offspring of  M.Sattar through his second wife. They challenged a  deed of  settlement by  the aforesaid  Sattars relating to the property in favour of respondent Nos.1 and 2 on  the   ground  that   the  same   had  been  obtained  by misrepresentation, fraud  and coercion.  After the  death of both the Sattars, the appellants filed a suit in the file of Court of  Subordinate Judge,  Coimbatore, claiming that they were entitled  to 53  and 1/2  out of  72 shares  and  mesne profits. Respondents’  case  was  that  the  appellants  are illegitimate children  of M.Sattar,  and so, not entitled to any share;  and the  settlement deed  was valid.  The  trial court decreed  the  suit,  but  on  appeal  the  High  Court dismissed the  same holding  that the  appellants  were  not legitimate children  of M.Sattar and the settlement deed was valid. 3.   Shri Mohan,  learned counsel  for the  appellants,  has strenuously  urged  that  the  finding  of  the  High  Court relating to  legitimacy is  untenable inasmuch  as the Court gave undue  importance to  Exhibit A.9,  which is  a copy of marriage register containing recital of marriage of M.Sattar and his  second wife stating "I affirm that this date I have married".(Emphasis supplied). Shri Mohan contends that apart from this  exhibit, which is dated 26.8.1967, there are many documents to  show that  M.Sattar had acknowledged paternity prior  to   that  date.   It   is   submitted   that   these acknowledgements were  not viewed  in proper  perspective by the High Court.

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4.   We  have   felt  inclined   to  accept   the  aforesaid submission of  Shri Mohan  keeping  in  view  the  principle underlying section 112 of the Evidence Act and what has been stated in  section 114.  These two  sections  give  rise  to presumption  against   concubinage  and  permit  raising  of presumption of  legitimacy of  the children  born during the period of  continuous cohabitation.  Shri Nariman, appearing for the  respondents, has  no objection  to our holding that the  appellants   are  legitimate   offspring  of  M.Sattar, provided interest of his clients is adequately protected qua other properties  of the  two Sattars.  We, therefore, state that the  appellants would be accepted, taken and treated as legitimate children of M.Sattar. 5.   On the  question relating  to validity  or otherwise of the settlement  deed, we find no reason to disagree with the High  Court,   as,  whether   the  deed   was  obtained   by misrepresentation, fraud  and coercion is a question of fact which has  been thoroughly  gone into by the High Court with reference to  the materials on record. We, therefore, uphold the finding  of the  High Court  qua  the  validity  of  the settlement deed. 6.   It appears  to us  that to  do complete justice between the parties  it would  be apposite  to state that as we have decided  the   question  of   legitimacy  on  the  basis  of presumption, it  should be  made clear  that the  appellants would not  lay any  claim in respect of any property left by M.Sattar and/or  Abdul Sattar  on the basis of what has been held by us relating to the legitimacy of the two appellants; and we say so. 7.   The appeal  is allowed  accordingly with no order as to costs.