High Court

Legal Reasoning

(1) sa-697-2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.697 OF 2019WITHCIVIL APPLICATION NO.4517 OF 20241.Vishnu s/o Magan Somwanshi,Age: 57 yrs, Occu: Agril,R/o. Motegaon, Tq. Renapur,Dist: Latur.2.Vishal s/o Vishnu Somwanshi,Age: Major, Occu: Education,R/o. Motegaon, Tq. Renapur,Dist: Latur.3.Sunita d/o Vishnu Somwanshi,Age: Major, Occu: Education,R/o. Motegaon, Tq. Renapur,Dist: Latur.4.Manish d/o Vishnu Somwanshi,Age: Major, Occu: Education,R/o. Motegaon, Tq. Renapur,Dist: Latur...Appellants(Orig. Defendants)Versus1.Ashruba s/o Vishnu Somwanshi,Age: 26 yrs, Occu: Agril,R/o. Motegaon, Tq. Renapur,Dist: Latur.2.Vimal Vishnu Somwanshi,Age: Major, Occu: Household,R/o. Tatborgaon, Tq. Ambajogai,Dist: Beed.3.Babasaheb s/o Magan Somwanshi,Age: 62 yrs, Occu: Agril,R/o. Motegaon, Tq. Renapur,Dist: Latur.4.Mina Hanmant BhiseAge: 52 yrs, Occu: Household,R/o. Pimpari-Amba Post. Yeli,Tq. & Dist: Latur. (2) sa-697-2019.odt5.Jayshree Shrimant SonwaneAge: 47 yrs, Occu: Household,R/o. Shera, Post. Darjiborgaon,Tq. Renapur, Dist: Latur...Respondents(Respt. No.1 & 2- Orig. Plaintiffs)(Respt. No.3 to 5- Orig. Defendants)…Mr. A. A. Joshi h/f Mr. S. V. Natu, Advocate for Appellants.Mr. T. G. Gaikwad, Advocate for Respondent Nos.1 and 2.Mr. M. D. Shinde, Advocate for Respondent Nos.4 and 5.Respondent No.3 is served.... CORAM : S. G. CHAPALGAONKAR, J. DATED :31st JANUARY, 2025.ORDER:-1.The appellants/original defendant nos.2, 5, 6 and 7 assailjudgment and decree dated 18.11.2017 passed by the PrincipalDistrict Judge, Latur in Regular Civil Appeal No.205/2014, therebyupholding judgment and decree dated 05.12.2014 passed by theJoint Civil Judge, Junior Judge, Renapur in Regular Civil SuitNo.9/2011. (Hereinafter, parties are referred to by their originalstatus for the sake of convenience and brevity).2.The respondent nos.1 and 2 (original plaintiffs) institutedRegular Civil Suit No.9/2011 seeking decree of partition andseparate possession in respect of suit property, particularlydescribed in plaint. The plaintiffs contend that plaintiff no.2-Vimalmarried with defendant no.2-Vishnu in the year 1990. Theplaintiff no.1-Ashruba is begotten from the said marriage. Thedefendant no.2 ill-treated plaintiff no.2. Therefore, after (3) sa-697-2019.odtcohabitation of about two and half years, she was forced to leavehome. According to plaintiffs, defendant no.2 failed to providemaintenance to them. On 24.12.2010, plaintiffs asked defendantsto allot them share in the joint family properties, but they refused.Lastly, legal notice dated 30.12.2010 sent by registered post, whichwas not replied. Hence, cause of action arose to file the suit.3.The defendant no.2-Vishnu filed written statement atExhibit-49. He admitted marriage with plaintiff no.2. However,denies paternity of plaintiff no.1. The Trial Court framed issuesbased on pleadings of parties and referring to presumption underSection 112 of the Indian Evidence Act accepted the case ofplaintiffs that plaintiff no.1 is son of defendant no.2 borne fromplaintiff no.2. Resultantly, declared that plaintiffs are having1/12th share in the suit properties and granted decree for partitionand separate possession. Aggrieved defendants filed Regular CivilAppeal No.205/2004. The learned District Judge concurred withthe decree passed by the Trial Court and dismissed the Appeal. 4.Mr. Joshi, learned Advocate appearing for the appellantssubmits that defendant no.2 has specifically denied paternity ofplaintiff no.1. However, Courts below have erroneously held thatplaintiff no.1 is biological son of defendant no.2. According to him,plaintiff no.2 left the house of defendant no.2 within a period of twomonths of marriage. As such, there was no access between plaintiff (4) sa-697-2019.odtno.2 and defendant no.2, although their marriage was subsisting.Referring to contradiction in the statement of plaintiff no.1 andplaintiff no.2 as to the place of birth of plaintiff no.1, he submitsthat Courts below erred in accepting plaintiffs case. He wouldfurther submit that second wife of defendant no.2 was necessaryparty. In her absence, suit was not maintainable.5.Mr. Gaikwad, learned Advocate appearing for respondentnos.1 and 2/plaintiffs supports the decree contending thatconcurrent findings of the fact has been recorded by the Courtsbelow on appreciation of evidence by applying correct legalposition. As such, no substantial questions of law arises forconsideration in this Appeal.6.Having considered submissions advanced, limitedcontroversy that has been raised in this Appeal is as regards to theconcurrent findings recorded by the Courts below that plaintiff no.1is biological son of defendant no.2-Vishnu. The Trial Court hasdiscussed in detail the pleadings and evidence of the parties whilerecording findings against issue no.1. The Trial Court referred toSection 112 of the Indian Evidence Act regarding the presumptionof legitimacy when a birth took place during the continuance of avalid marriage between the mother and another man. The TrialCourt rightly observed that, in light of the admission of thesubsistence of marriage between plaintiff no.2 and defendant no.2, (5) sa-697-2019.odtit was for the defendant to establish that he did not have access toplaintiff no.1 when denying paternity of plaintiff no.1. Reference isgiven to the observations of Supreme Court of India in case ofKamti Devi and another Vs. Poshi Ram1. It is accordinglyobserved that normally rule of evidence is that the burden is on theparty who asserts, but in wake of legislative intent againstillegitimating child, the burden is cast on the parties, who pleadsnegative. The Trial Court further observed that plaintiff no.2deposed that her marriage took place on 13.05.1990 with defendantno.2 and she lived with him for about two and half years till shewas driven out of the house and plaintiff no.1 borne out of suchmatrimonial relationship. The plaintiffs have specifically broughton record date of birth of plaintiff no.1 as 25.06.1991, which is notbeen specifically denied by defendants. As such, on appreciation ofevidence and legal position, finding of facts has been arrived as topaternity of defendant no.2 in relation to plaintiff no.1. TheAppellate Court concurred with the findings. No infirmity can befound in concurrent findings of the Courts on the aspect ofpaternity of defendant no.2.7.Both the Courts have concurrently hold that plaintiffs have1/12th share each in the suit property alongwith defendant no.2. Noinfirmity can be found in carving out shares looking to the settledlegal position. So far as applicant nos.2, 3 and 4 (original1AIR 2001 SC 2226. (6) sa-697-2019.odtdefendant nos.5, 6 and 7) are concerned, admittedly they arechildren borne from second marriage of Vishnu during subsistenceof his marriage with plaintiff no.2. So far as their rights areconcerned, they are governed by the law laid down by the SupremeCourt of India in the case of Revanasiddappa and another Vs.Mallikarjun and others2, wherein, upon interpreting Section16(3) of the Hindu Marriage Act and provisions of the HinduSuccession Act, the right of illegitimate children to share in theirparents' property along with legitimate children has been upheld.However, they have no independent right in coparcenary property,nor do they have the right to seek partition during the lifetime oftheir parents. In view of the settled legal position, appellant nos.2to 4 can assert their right to partition only after the lifetime oftheir father, Vishnu.8.Consequently, Second Appeal sans merit. Hence, SecondAppeal stands dismissed.9.In view of dismissal of Second Appeal, nothing survives inCivil Application and same is accordingly disposed of. (S. G. CHAPALGAONKAR)JUDGEDevendra/February-20252(2023) 10 SCC 1.