REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2888  OF 2001

Shyam Lal @ Kuldeep  ... Appellant

Versus

Sanjeev Kumar & Others ... Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. This  appeal  is  directed  against  the  judgment  dated

21.09.2000 of the High Court of Himachal Pradesh at Shimla

in Regular  Second Appeal  No.10 of  1998 whereby  the  High

Court allowed the appeal of the respondents and set aside the

judgment  and decree  passed by the learned District  Judge,

Solan.

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 Ram’s 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

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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

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the said Mehar Singh.  The Trial Court framed the following

issues:-

“1.   Whether the mutation no.1313 dated 20.2.88 is  illegal,  null  and  void  and  not  operative against  the  plaintiff  as  alleged? OPP

2. Whether the plaintiff and defendant nos.3 and 6 are  joint  owners  in  possession  of  the  suit land as alleged?                                         OPP

3. Whether  there  is  a  validly  executed  will  in favour of defendant nos.1 and 2 as alleged?

OPD

4. Whether the plaintiff has no cause of action to file the present suit?

OPD 5. Whether  the  suit  is  not  maintainable  as

alleged? OPD

6. Whether  the  suit  is  not  properly  valued  for purpose of court fee and jurisdiction.

OPD

7. Whether  the  plaintiff  is  estopped  from filing the  present  suit  as  alleged. OPD

8. Whether the suit is within time? OPD

9. Whether  the  suit  is  bad  for  want  of  better particulars, as alleged?

OPD

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10. Whether  the  alleged  will  in  favour  of defendants 1 and 2 is the result of fraud etc. as alleged?”

OPP

6. 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

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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

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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

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the  marriage  at  a  time  when  according  to  the ordinary course of nature, the husband could have been the father of the child.”

10. Section  112  of  the  Indian  Evidence  Act  is  based  on

English law.   Section 112 reproduces  rule of  English law

that it is undesirable to inquire into paternity of child when

mother is married woman and husband had access to her.

Adultery on her part will not justify finding of illegitimacy if

husband has had access.  [See: Nga Tun E v. Mi Chon A.I.R.

1914 Upper Burma 36].

11. More than a century ago in Bhima v. Dhulappa (1904) 7

Bombay Law Reports 95, the Court aptly observed that section

112 of the Evidence Act is based on the principle that when a

particular relationship, such as marriage, is shown to exist,

then its continuance must prima facie be preserved.

12. The  fact  that  a  woman is  living  in notorious  adultery,

though of course it amounts to very strong evidence, is not, in

itself  quite  sufficient  to  repel  this  presumption  [See:  R  v.

Mansfield, 1941, 1 QB 444, 450].   

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13. In  1947  All  LJ  569  at  page  572  Hardan  Singh v.

Mukhtar Singh & Anr. , the Allahabad High Court observed:

“The mere fact that a woman is immoral or is living in a house  separate  from that of  her  husband is having relations with other men is not sufficient to rebut  the  conclusive  presumption  of  legitimacy which is raised by section 112 of the Evidence Act, unless it is proved that the husband and wife had no access to each other during the period indicated in the section.”   

14. In  Lal  Haribansha  v.  Nikunja  Behari, ILR  1960

Cuttack 230, relying on Ma Wun Di and Another v. Ma Kin

and Others XXXV IA 41, the Court stated that:   

“It is the principle of law that “Odiosa et inkonesta non sunt in lege prae sumenda” (Nothing odious or dishonourable will be presumed by the law).  So the law presumes against vice and immorality.  One of the  strongest  illustrations  of  the  principle,  is  the presumption in favour of legitimacy of children in a civilized society.  But, where illegitimacy seems as common as marriage and legitimacy, a presumption of  legitimacy  cannot  be  drawn  and  legitimacy  or illegitimacy will have to be proved like any other fact in issue.”

15. The  High Court  placed  reliance  on a  judgment  of  this

court  in  Chilukuri  Venkateswarlu v. Chilukuri

Venkatanarayana AIR 1954 SC 1761 as under:-

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“It may be stated at the outset that the presumption which  section  112  of  the  Indian  Evidence  Act 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. Access and non-access again connote, as has been held by the Privy Council (Vide Karapaya v. Mayandy, AIR 1934 PC 49(A), existence and non- existence of opportunities for material intercourse. It  is conceded by Mr. Somayya,  who appeared on behalf  of  the  plaintiff  appellant,  that  non-access could be established not merely by positive or direct evidence;  it  can  be  proved  undoubtedly  like  any other  physical  fact  by  evidence,  either  direct  or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is high favored by law it  is  necessary  that  proof  of  non-access  must  be clear and satisfactory…….”

16. Reliance has also been placed in Perumal Nadar (dead)

by Legal Representative v. Ponnuswami Nadar (minor) AIR

1971 SC 2352 where the parties, i.e., the husband and wife

were living separately long before the birth of the child.  It was

held that unless the husband is able to establish absence of

access, presumption raised under section 112 of the Indian

Evidence Act will not be displaced.  The proof of non-access

must be clear and satisfactory.   

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17. In  Badri Prasad v.  Deputy Director of ConsolidatioN

& Others AIR 1978 SC 1557 : (1978) 3 SCC 537, it has been

laid  down  that  a  strong  presumption  arises  in  favour  of

wedlock where the partners have lived together for a long spell

as husband and wife.  If man and woman who live as husband

and wife in society are compelled to prove, half a century later,

by eye-witness evidence  that  they were  validly  married,  few

will succeed.  

18. In  Goutam Kundu v. State of W.B. & Another, AIR

1993 SC 2295, this Court summarized the law as under:

“(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.

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

19. In  Raghunath  Parmeshwar  Panditrao  Mali  and

Another   v. Eknath  Gajanan  Kulkarni  and  Another,

(1996) 7 SCC 681 it was observed that if a man and woman

have lived together for long years as husband and wife and a

son having been born to them, legal presumption would arise

regarding  valid  marriage,  though  such  a  presumption  is

rebuttable  similarly  in  S.P.S.  Balasubramaniyam v.

Suruttayan  alias  Andalipadayachi  & Others,  1994  (1)

SCC 460  it was observed by this court that if a man and

woman live together for long years as husband and wife then

a  legal  presumption  arises  as  to  the  legality  of  marriage

existing  between  the  two,  but  such  a  presumption  is

rebuttable.        

20. In  Smt. Kanta Devi and Another v. Poshi Ram AIR

2001 SC 2226, this Court held as under:

“Section  112  which  raises  a  conclusive presumption about the paternity of the child born during  the  subsistence  of  a  valid  marriage,  itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness.   The said

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outlet is, if it can be shown that the parties had no access  to  each  other  at  the  time  when  the  child could have been begotten the presumption could be rebutted.”

21. In the impugned judgment, the High Court observed that

in the present case admittedly the plaintiff and defendant no.4

were  born  to  Smt.  Durgi  during  the  continuance  of  her

marriage  with  the  deceased  Balak  Ram.   Therefore,  in  the

absence of cogent and reliable evidence as to non-access on

the  part  of  the  deceased  Balak  Ram,  presumption  under

Section 112 of the Indian Evidence Act would be available and

it will have to be held that plaintiff and defendants are sons of

deceased Balak Ram.

22. On ground of public policy, it is undesirable to enquire

into the paternity of a child whose parents “have access” to

each other.  The presumption of legitimacy arises from birth in

wedlock and not from conception.    

23. The  High  Court  also  observed  that  since  the  onus  to

rebut the presumption was on the defendants, it was for them

to prove that the plaintiff and defendant no.4 are not the sons

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of the deceased.  Sections 50 and 60 of the Indian Evidence

Act  cannot  be  pressed  into  service  by  the  defendants  to

contend that the plaintiff has failed to prove his relationship

with the deceased Balak Ram.

Question No.3

24. One of the documents relied upon by the learned District

Judge in coming to the conclusion that the plaintiff is the son

of  the  deceased  Balak  Ram  is  Ex.P.2,  the  School  Leaving

Certificate.  The learned District Judge, while dealing with this

documents has observed:

“on the other hand, there is a public document in the shape of school leaving certificate Ex.P.2 issued by Head Master, Government Primary School, Jabal Jamrot recording Kuldip Chand alias Sham Lal to be the son of Shri Balak Ram.  In the said public document  as  such  Kuldip  Chand  alias  Sham Lal was recorded son of Shri Balak Ram.”

25. The findings of the learned District Judge holding Ex.P.2

to  be  a  public  document  and  admitting  the  same  without

formal proof cannot be questioned by the defendants in the

present appeal since no objection was raised by them when

such document was tendered and received in evidence.  It has

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been held in Dasondha Singh and Others v.  Zalam Singh

and Others [1997(1) P.L.R. 735] that an objection as to the

admissibility and mode of proof of a document must be taken

at the trial before it is received in evidence and marked as an

exhibit.   Even  otherwise  such  a  document  falls  within  the

ambit of Section 74, Evidence Act, and is admissible per se

without formal proof.

26. Even if such document is excluded from consideration,

the defendants,  as held under  questions no.1 and 2 above,

have not been able to rebut the presumption available under

Section 112, Evidence Act.

Question No.5

27. The  High  Court,  regarding  question  no.5,  in  the

impugned judgment observed as under:-

“The learned District Judge has held the property  in  the  hands  of  the  deceased Balak  Ram to  be  coparcenary  property. Be it stated that such findings cannot be sustained.   The  plaintiff  has  nowhere pleaded that the property in the hands of his father the deceased Balak Ram was a coparcenary  property.   His  pure  and simple case,  as set out in the plaint,  is that  the  property  in  the  hands  of  the deceased  was  ancestral  and  under  the

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custom  governing  the  parties  such ancestral  property  could  not  be bequeathed by way of a will.  By holding the property in the hands of the deceased Balak  Ram to  be  coparcenary  property, the  learned  District  Judge  has  in  fact made out a new case for the plaintiff.  On this short  ground alone,  the findings of the learned District Judge deserve to be set aside.”

Question No.4

28. The two courts below have concurrently held the Will Ex.

DW 1/A to have been validly executed by the deceased Balak

Ram in favour of defendant nos.1 and 2.  Such concurrent

findings being purely on a question of fact, that is, with regard

to  execution  of  the  Will,  cannot  be  interfered  within  the

present Second Appeal.

29. There is no denying that the property in the hands of the

deceased Balak Ram was ancestral since admittedly he had

inherited the same form his father.

30. In  so  far  as  the  question  whether  under  the  custom

governing the parties, a Will could be executed in respect of

ancestral  property  is  concerned,  the  same  is  no  more  res

integra.  A learned Single Judge of this court in Kartari Devi

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and Ors. v. Tota Ram [1992 (1) Sim. L.C. 4021] has held that

in  view  of  section  30  read  with  section  4  of  the  Hindu

Succession Act, 1956 a male Hindu governed by Mitakshara

system  is  not  debarred  from  making  a  Will  in  respect  of

coparcenary/ancestral property.

31. The above view of the learned Single Judge was upheld

and approved by a Division Bench of this court in Tek Chand

and Another v.  Mool Raj and Others [1997 (2) Hindu L.R.

306].

32. In view of the above ratio, the learned District Judge has

erred in upholding the validity of the Will Ex. DW 1/A only to

the  extent  of  the  interest  of  the  deceased  in  the  property.

Such findings are wrong and liable to be set aside.

33. There is yet another significant aspect of the case.  The

present suit was filed by the plaintiff for a declaration that the

mutation  of  inheritance  bearing  No.1313  sanctioned  on

20.2.1988 was wrong, illegal, null and void and not binding on

his rights and that the land property in dispute was jointly

owned  and possessed  by  him and defendant  nos.3  to  6  in

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equal shares. Further that the Will dated 4.12.1978 was null

and  void  and  inoperative  beyond  the  competency  of  the

deceased and also being the result of fraud, misrepresentation

etc.  Such suit was filed on 21.5.1991.  

34. Regarding question no.4 pertaining to the Will, the High

Court has observed that the concurrent findings being purely

on the question of fact, i.e. with regard to the execution of the

Will cannot be interfered with in the Second Appeal.  The High

Court  also  observed  that  the  property  in  the  hands  of  the

deceased  Balak  Ram was  ancestral  in  character.  The  High

Court also observed that a Will could not be executed as far as

ancestral property was concerned and in view of the clear legal

position this matter was no longer res integra.

Limitation (Issue No.8)

35. Regarding  the  limitation,  the  High  Court  observed  as

under:-

“Undisputedly,  the  period  of  limitation  prescribed under the law for such a suit is three years from the date the cause of action accrued to the plaintiff.  It has been averred by the plaintiff  in para 9 of his plaint, as to cause of action, as under:-

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“that the  cause  of  action has arisen on 31.10.87  from  death  on  20.2.88  from mutation  and  on  various  other  dates from the knowledge of the illegalities and wrongful actions of Village Jabal Jamrot Pargana  Haripur  Teh.  and  Distt.  Solan within  the  jurisdiction  of  this  Court, hence this matter has jurisdiction in the matter.”

36. The  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.

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

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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

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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

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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.   

43. It  our  considered  view,  no  interference  is  called  for.

This  appeal  being  devoid  of  any  merit  is  accordingly

dismissed leaving the parties to bear their own costs.   

…….……………………..J.  (Dalveer Bhandari)

…….……………………..J.  (H.L. Dattu)

New Delhi; April 15, 2009  

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