TMI Blog2009 (4) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be proved 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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]. 13. In 1947 All LJ 569 at page 572 Hardan Singh v. Mukhtar Singh and 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 inkonest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. and 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. (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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a century. According to the legislative intention and spirit behind Section 112 of Evidence Act it is abundantly clear that once the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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