High Court

Legal Reasoning

{1} SA 512.95.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 512 OF 19951.Tukaram s/o. Narayan KarhaleAged 58 years, Occ. Nil R/o. Bhategaon, Tq. Purna, Dist. Parbhani.2.Maroti s/o. Wamanrao Bhonsale,Aged 40 years, Occ. Agriculturer/o. Bhategaon, Tq. Purna,Dist. Parbhani..Appellants ( original defendants)VERSUS1.Laxmibai w/o. Tukaram Karhale,Aged 49 years, Occ. Household,R/o. Pangra, Tq. Purna, Dist. Parbhani.2.Bapurao s/o. Tukaram KarhanaleAge 27 years, Occ. Agriculture,r/o. As above.3.Ramesh s/o. Tukaram KarhaleAge 20 years, Occ and r/o. As above.Respondents(original plaintiffs)Mr. B.A. Darak, Advocate for appellants.Ms. Rekha M. Mohale-Chaudhari h/f. Mr. S.S. Choudhari, Advocate for respondents. CORAM : S.G. CHAPALGAONKAR, J. DATE : 20TH FEBRUARY, 2025. {2} SA 512.95.odtJUDGMENT :-1.The appellant/original defendant takes exception to thejudgment and decree dated 14.9.1995 passed by learned District JudgeParbhani in Regular Civil Appeal No. 76 of 1988, thereby upholding thejudgment and decree dated 29.2.1988 passed by civil Judge (JuniorDivision), Parbhani in RCS No. 488 of 1986, by which the suit of therespondent/plaintiffs seeking decree of partition and separate possessionhas been decreed.2.The respondents/plaintiffs instituted R.C.S. No. 488 of 1086contending that she is legally wedded wife of defendant No.1 Tukaram.Out of said wedlock, plaintiff Nos. 2 and 3 are born. The suit property isancestral joint family property of plaintiffs and defendant. DefendantNo.1 Tukaram is addicted to vices, therefore, there was conflict betweenplaintiff No.1 Laxmibai and defendant No.1 Tukaram. There was oralpartition prior to about 9 years, in that Tukaram allotted lands Gat No. 2and 39 and Hissa No.1 from Gat No., 24 to the plaintiffs, so also, portionof residential house. However, mutation could not be effected inpursuance to said oral partition. Defendants obstructed their peacefulpossession. Therefore, cause of action arose to file the suit.In thealternative, plaintiffs claimed for effecting partition by metes and boundsand grant a decree of partition and separate possession of suit property.3.Appellants/defendants filed written statement. Theyadmitted that plaintiff No.1 Laxmibai is legally wedded wife of defendant– Tukaram, however, denied paternity of plaintiff No.2 Bapurao andPlaintiff no.3 Ramesh. {3} SA 512.95.odt4.Trial court framed issues, recorded evidence of parties anddecreed suit of plaintiffs accepting their case that defendant no.1 is fatherof plaintiff nos. 2 and 3 born, from plaintiff No.1. As such, granted 3/4thshare to defendant No.1 in suit property. Defendants assailed decree inappeal, appellate court pleased to uphold the decree.5.Present second appeal has been admitted on 6.3.1997treating ground Nos. 1 to 5 as stated in appeal memo as substantialquestions of law. Learned advocate for appellants submits that he wouldrestrict his submissions on those substantial questions of law asmentioned in the form of grounds of appeal in para. 1 to 5, which readthus :-“ 1.That, the burden of proof to prove that plaintiffs2 and 3 are the sons of defendant No.1 Tukaram born fromplaintiff No.1 Laxmibai was on the plaintiff. The plaintiffswould succeed or fail on the basis of the evidence led bythem. Whether said burden could be shifted on theshoulders of the defendants to prove the plaintiffs 2 and 3were not the sons of defendant No.1, is a substantialquestion of law in this second appeal.2.Whether in the matter of appreciation of oralevidence, the Courts below could apply different standardsfor appreciating or believing the evidence of plaintiffs andthe defendants, is also a substantial question of law in thissecond appeal.3.When there is oath against oath and witnessesare deposing on the question of relationship of defendantno.1 with plaintiffs 2 and 3 on the point of paternity, theCourts below required to give solid and credible reason forbelieving one set of evidence and discarding the other set of {4} SA 512.95.odtevidence. The failure to do so, has given rise to substantialquestion of law in this second appeal.4.That, the failure to lead or produce anydocumentary evidence showing the plaintiffs 2 and 3 as thesons of defendant no.1 either from the birth and deathregister or from the school or from any source or conduct tillbefore the filing of the suit, is sufficient to cast a seriousshadow of doubt on the credibility of the oral evidence.Failure to consider this aspect has given rise to a substantialquestion of law in this second appeal.5.That plaintiff no.1 could not have been believedin her deposition that there was no birth and death registerat village Panghra, where the plaintiffs no.2 and 3 were bornadmittedly, and further that they did not take any schooleducation right from their birth. The total absence of anyconduct or assertion about the legitimacy of plaintiffs 2 and3 as well as of plaintiff no.1 to claim or assert that they werethe sons of defendant no.1 is also a very material pointsufficient to discard the oral testimony of plaintiff no.1 andher brother PW 3 Balaji. The finding so recorded in theabove background about the paternity of plaintiffs 2 and 3,is vitiated and has no sanctity in the present second appeal.”6.Heard Mr. Darak, learned advocate for appellant onaforesaid substantial questions of law. The sum and substance ofaforesaid questions of law is that, burden to prove paternity of plaintiffNos. 2 and 3 was on the plaintiffs and it could have never been shifted todefendants and courts below were not justified in accepting case ofplaintiffs that plaintiff Nos. 2 and 3 were born to plaintiff No.1 from hermatrimonial relationship with defendant No.1 Tukaram. {5} SA 512.95.odt7.Apparently, defendants filed a joint written statement andadmitted that plaintiff No.1 – Laxmibai, is wife of defendant No.1Tukaram. In the wake of admitted matrimonial relationship, it would benecessary to refer to Section 112 of the Indian Evidence Act which readsthus :-“112.Birth during marriage, conclusive proof of legitimacy.- The fact that any person was born during the continuance ofa valid marriage between his mother and any man, or withintwo hundred and eighty days after its dissolution, the motherremaining unmarried, shall be conclusive proof that he is thelegitimate son of that man, unless it can be shown that theparties to the marriage had no access to each other at anytime when he could have been begotten.It is pertinent to note that apart from clear admission as tovalidity of marriage and substance of such matrimonial relationship,defendants have not pleaded that plaintiff No.1 was living adulterouslife. Therefore, it is undesirable to inquire into paternity of childrenunless it has been brought on record that defendant No.1 had no accessto plaintiff No.1. It is trite that presumption under section 112 of theEvidence Act, is based on public morality and public policy, particularly,the principle of law that odiosa et inhonesta non sunt in legepraesumenda (nothing odious or dishonourable will be presumed by thelaw). 8.In light of aforesaid legal position, if the findings recordedby courts below, on appreciation of evidence are perused, it can be seenthat defendant No.1 could not bring any evidence to show that defendantTukaram had no access to plaintiff No.1 Laxmibai. Apparently, theburden to rebut presumption in favour of paternity was upon defendantNo.1 Tukaram. He relied upon evidence of three witnesses including {6} SA 512.95.odthimself. Tukaram states in his evidence that Laxmibai resided with himfor about 10 ½ years after marriage, although in pleadings, he states thatLaximibai resided with him at village Bhategaon for 4 to 5 years after themarriage.9. The appellate court, on appreciation of evidence, observedthat evidence of defendant Tukaram is absolutely inconsistent andunreliable. Evidence of DW-2 Shivaji and DW-3 Vitthal, who are relativesof defendant No.1, is of no assistance to rebut the presumption. Asrightly observed by appellate court, in written statement at Exh. 27, thereis no pleading that plaintiff No.1 and defendant No.1 Tukaram had noaccess at all. On the other hand, plaintiff No.1 has entered into witnessbox and given consistent evidence that plaintiff Nos. 2 and 3 are begottenout of her wedlock with defendant No.1 Tukaram. There are concurrentfindings of fact recorded by courts below on the vital issue thatdefendant No.1 failed to discharge his burden and dislodge thepresumption under Section 112 of the Evidence Act. 10.The Supreme Court of India in the case of Smt. Kamti Devi &Anr vs Poshi Ram (2001)5 SCC 311, observed in para.9 as under :-“ Section 112 which raises conclusive presumption about thepaternity of the child born during subsistence of a validmarriage, itself provides the outlet to the party who wantsto escape from the rigor of that conclusiveness. Said outletis, if it can be shown that parties had no access to each otherat the time when child could have been begotten, thepresumption can be rebutted.”Therefore, the only way available for defendant No.1 to rebut {7} SA 512.95.odtpresumption was to bring home an impeccable evidence that there wasno access between himself and Laxmibai when plaintiff Nos. 2 and 3were born. However, defendants miserably failed to bring on recordevidence to establish non-access. While interpreting the term non-access,it is consistently held that non-access means impossibility, not merelyinability of spouses to have marital relations with each other. For aperson to rebut the presumption of legitimacy, it is necessary for him tofirst assert non-access, which in turn, must be substantiated by evidence.In present case, as observed by the appellate court, written statementsans such assertion. In that view of the matter, substantial questions oflaw as framed do not arise in this appeal. Second appeal sans merit,hence dismissed. Civil application, if any, stands disposed of.[S.G. CHAPALGAONKAR, J] grt/-