Judgment:
Anoop V. Mohta, J.
1. This Second Appeal has been preferred by the original defendant No. 1/appellant herein, against the judgment and decree passed by the Additional District Judge, Wardha, in Regular Civil Appeal No. 28 of 1987 dated 8th January, 1991, whereby the judgment and decree passed by the Third Joint Civil Judge, Junior Division, Wardha, in Regular Civil Suit No. 369 of 1978 dated 22nd December, 1986, was set aside.
2. This Second Appeal was admitted on 19th June, 1991, on the question: Whether the presumption as envisaged by Section 112 is available under the set of circumstances as borne on record?
3. Heard learned counsel Mr. Modak for the appellants and Mr. A.B. Chaudhary, learned counsel for the contesting respondents. There is no other substantial question of law raised and/or argued. The learned counsel for the appellants, Mr. Modak, relied on , Ch. Kanhaiya Bux Singh and Anr. v. Mt. Ram Dei Kuer and Ors., : [1954]1SCR424 , Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana, and : [2001]3SCR729 , Smt. Kamti Devi and Anr. v. Poshi Ram. The learned counsel appearing for the respondents relied on AIR 1987 SC 1045, The State of Punjab v. Surjit Singh : 1993CriLJ3233 , Goutam Kundu v. State of West Bengal and Anr. and on unreported judgment in S.A. 92 of 1988 dated 26th August, 2003 of the Bombay High Court Vithalrao @ Wamanrao P. Deshmukh v. Ramesh s/o Wamanrao @ Vithalrao Deshmukh.
4. Original plaintiff Narayan/respondent No. 1 herein instituted a suit for partition and separate possession of alleged ancestral immovable and movable properties, and thereby claimed 1/3rd share from the share of the deceased Shamrao. The plaintiff has also claimed 1/24th share in the 1A share of the deceased Shamrao in the joint family property described in the Schedule to the Suit and also claimed the account of agricultural income for the last three years. Narayan's grandfather Dajiba Shende, who died in 1969, had three sons viz. Shamrao (deceased-defendant No. 1), Govinda (deceased) and one Gulab. Original defendant Nos. 2 to 5 are the legal representatives of Govinda. Original defendant No. 6 is the widow of the deceased Shamrao original defendant No. 1. Narayan, the original plaintiff is the only son of the deceased Shamrao and original defendant No. 6 Champabai. The said Gulab Dajiba Shende was separated from the joint family in the year 1969. He was separated in residence and estate. The movable and immovable properties of Dajiba was jointly held by the deceased Shamrao-defendant No. 1 and defendant Nos. 2 to 6.
5. The original defendant Nos. 2 to 5, therefore, resisted the case by their Joint Written Statement. Shamrao died pending the Suit and, therefore, by order dated 16th October, 1979, his legal representatives defendants Nos. 1(a) and 1(b) read with defendant No. 6 were brought on the record. Defendant Nos. 1(a) and 1(b) and defendant No. 6 filed their Joint Written Statement on 9th October, 1980. These defendants admitted that the plaintiff is the son of the deceased Shamrao and defendant No. 6 Champabai and the defendant Nos. 1(a) and 1(b) are the sisters of Narayan/original plaintiff. Therefore, they have also claimed their share in the joint family property. Defendant Nos. 2 to 5 denied that the plaintiff is the grandson of Dajiba Shende. They expressed their ignorance about their contention that the defendant No. 6 is his mother. They denied that Gulab was separated from the joint family in the year 1969 in mess and estate, as alleged. They denied the jointness of the property by deceased defendant No. 1-Shamrao and defendant Nos. 2 to 6. However, they contended that there was partition between Shamrao, Govinda and Gulab prior to about 15 to 16 years and since then, all the brothers were separated in mess and estate. They also alleged that the plaintiff is not the son of the deceased Shamrao and, therefore, has no right to file Suit for partition and separate possession. They contended that the property described in Schedule-B belongs to the wife of defendant No. 3 - Suryabhan, as she inherited this property from her father. That the defendant No. 6 had deserted her husband Shamrao prior to about 35 years and at that time, she was having only two daughters i.e. defendant No. 1(a) and 1(b) and, therefore, since then she was having no sexual relations with the deceased defendant No. 1 Shamrao and, therefore, the plaintiff is not the son of the deceased Shamrao. They claimed additionally that Shamrao had executed a Will on 9-7-1979 and bequeathed his entire property to defendant No. 3 Suryabhan. Defendant No. 1(a) to 1 b-a to b-f, the legal representatives of the deceased defendant No. 1(b) Indubai have adopted the Written Statement filed by their mother Indubai.
6. The parties led their evidence. The appellants led the evidence of (PW1) Narayan, (PW2) Gulabrao Shende, (PW3) Vasudeorao and (PW4) Narendra. The defendants led the evidence through (DW1) Suryabhan, (DW2) Suresh, (DW3) Bhaurao, (DW4) Krishna, (DW5) Dhananjay and (DW6) Madhukar. The learned Judge, after considering the evidence and material placed on the record, based on the issues framed, dismissed the Suit on the findings that the immovable property involved is an ancestral property. That Gulab had been separated from the joint family in mess and estate. Deceased Shamrao was entitled for 1/2 share in the field property. Defendant Nos. 2 to 5 proved that deceased Shamrao and his two brothers had effected a partition and were separate in mess and estate. That the property shown in Schedule-B is of defendant No. 3. The Court further held that the plaintiff failed to prove that he has 1/6th share + 1/24th share in the property involved. He is not entitled to get share in the agricultural income. The plaintiff is not entitled for partition and separate possession of his share. Defendant No. 1(a) and 1 b-a to b-f and defendant No. 6 failed to prove that they had share in the property of the deceased Shamrao. Therefore, they were not entitled for partition and separate possession of their share. Defendant Nos. 2 to 5 are not liable to give an account of the income to the plaintiff of his share. The learned Trial Judge in his reasoning held that Champabai had not given birth to Narayan at Fafarwada. No documentary evidence has been produced by Narayan. The School Leaving Certificate (Exh.40) does not mention the place of birth of Narayan. Plaintiff had not attended the funeral and other ceremonies of his father on 16th October, 1979. Above all, Champabai has also not been examined to show that she had attended the funeral ceremony of her husband deceased Shamrao. To the notice of Narayan (Exh.43), defendant Nos. 3 and 4 by their Notice (Exh.66) denied that Narayan is the son of the deceased Shamrao. It was specifically denied in the Notice that Narayan was Shamrao's son and that defendant No. 6 had deserted him prior to 35 years, sometime in the year 1940. The learned Judge, therefore, after considering the material, as well as, documents and evidence placed on the record, held that the plaintiff Narayan was not the son of the deceased defendant No. 1-Shamrao and defendant No. 6-Champabai. Therefore, he is not the legal heir of the deceased Shamrao. He is not entitled and/or has any right in the property of Shamrao.
7. The defendant Nos. 1(a) to 1b-a to b-f and defendant No. 6 have not led any evidence and/or they have not appeared in the matter. They have been proceed ex parte vide order dated 26-9-1986. However, liberty was granted to these defendants to establish their rights by filing separate Suit.
8. Appellants, therefore preferred First Appeal No. 28 of 1987 and by judgment and decree dated 8-1-1991, it was partly allowed as under.
'ORDER
The appeal is partly allowed.
The impugned judgment and decree passed by the learned trial Judge is set aside and the following order is passed.
It is hereby declared that the plff. Narayan has 1/6 - 1/24 - 5/24th share in the properties described in Schedule A annexed with the plaint which shall form part of the decree.
The agricultural land field survey No. 95/7 admeasuring 11.68 acres situated at mouza Nagpur, mouza No. 194 be partitioned by metes and boundary the Collector, Wardha, of any gazetted sub-ordinate of the Collector deputed by him in his behalf in accordance with the law for the time being in force relating to the partition and separate possession of shares as per Section 54 of the Code of Civil Procedure and the plff. Shall be placed in possession of 5/24th share.
The Commissioner be appointed to make a partition of the house and kotha as shown in Schedule 'A' annexed with the plaint and the plff. be put in possession of 5/24th share by effecting partition by metes and bounds as per the rights as declared in this decree, as per Order 26, Rule 13 of the code of Civil Procedure.
Rest of the claim of the plaintiff stands dismissed.
The parties are left to bear their own costs in circumstances.
A preliminary decree be drawn accordingly and the copy of the same be sent to the Collector Wardha for effecting a partition.'
9. The appellants, therefore, as referred above, have challenged the said Appellate Court's judgment and decree in this Second Appeal and the same was admitted on the question of law as referred above.
10. The learned Advocate appearing for the appellants objected to the reversal finding that the original plaintiff-Narayan is declared to be the son of the deceased defendant No. 1-Shamrao and the Will (Exh.68) executed by the deceased-Shamrao was not legal and valid. Therefore, he challenged the order that the plaintiff is entitled to 5/24th share in the property described in the Schedule. He further challenged the reversal order of the Appellate Court. He, therefore, submitted to maintain the judgment and decree passed by the Court below and supported the same. He read the evidence led by the parties to support his case.
11. In the present case, as parties have led their respective evidence, the Appellate Court has rightly considered the material, as well as, the evidence placed on the record and given a finding that the deceased Shamrao had an opportunity and/or access to have a sexual relationship with Respondent No. 6-Champabai. There is no evidence and/or material placed on the record and it has not been proved that the deceased Shamrao had no access and/or no possibility of any access to the said Champabai at any point of time. The presumption under Section 112 of the Evidence Act can only be rebutted if the party concerned could show that the parties had no access to each other at the time when the child would have begotten. Section 112 and Section 4 of the Evidence Act, 1872 is reproduced as under:
'112. Birth during marriage, conclusive proof of legitimacy.- The fact that any person 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 it could have been begotten.
4. 'May presume'.- Whenever it is proved by this Act that Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. '
The Apex Court in Kamti Devi (supra) dealt with this aspect as under :
'7. Learned counsel for the appellant raised two contentions. First is that the District Court went wrong in relying on the interested evidence of the plaintiff. Second is that the High Court failed in formulating the substantial question of law involved in this case as to whether the burden of a husband-plaintiff (to prove that he had no access to his wife) is as heavy as the burden of prosecution in a criminal case to prove the guilt of the accused.
8. Earlier there was a controversy so as to what is the true import of the word 'access' in Section 112 of the Act. Some High Courts held that access means actual sexual intercourse between the spouses. However, the controversy came to a rest when the privy council held in Karapaya Servai v. Mayandi, that the word 'access' connotes only existence of opportunity for marital intercourse. The said legal principle gained approval of this Court when a three Judge held Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana, : [1954]1SCR424 that the law has been correctly laid down therein.
9. When the legislature chose to employ the expression that a certain fact 'shall be conclusive proof' of another fact, normally the parties are disabled from disrupting such proof. This can be discerned from the definition of the expression 'conclusive presumption ' in Section 4 of the Act.
12. Whether the burden on the husband is as hard as the prosecution to prove the guilt of the accused in a trial deserves consideration in the above background. The standard of proof of prosecution to prove the guilt beyond any reasonable doubt belongs to criminal jurisprudence whereas the test of preponderance of probabilities belongs to civil cases. The reason for insisting on proof beyond reasonable doubt in criminal cases is to guard against innocent being convicted and set to jail if not to extreme penalty of death. It would be too hard if that standard is imported in a civil case for a husband to prove non-access as the very concept of non-access is negative in nature. But at the same time the test of preponderance of probability is too light as that might expose many children to the peril of being illegitimatised. If a Court declares that the husband is not the father of his wife's child, without tracing out its real father the fall out on the child is ruinous apart from all the ignominy visiting his mother. The bastardized child, when grows up would be socially ostracised and can easily fall into wayward life. Hence, by way of abundant caution and as a matter of public policy, law cannot afford to allow such consequence befalling an innocent child on the strength of mere tilting of probabilities. Its corollary is that the burden of the plaintiff-husband should be higher than the standard of preponderance of probabilities. The standard of proof in such cases must at least be of a degree between the two as to ensure that there was no possibility of the child being conceived through the plaintiff husband. '
12. According to me, the Appellate Court, after re-appreciating and re-evaluating the entire evidence based on the above principle of law, rightly observed as under:
'15. As per the provisions of Section 112 of the Indian Evidence Act (Act No. 1 of 1872) the child born in wedlock should be treated as the child of the person who was, at the time of its birth, the husband of the mother, unless it is shown that he had no access to the mother at the time of its conception quite irrespective of the question whether the mother was married woman or not at the time of conception. By having no access is meant having no opportunity of sexual intercourse, and in order to displace the conclusive presumption it must be shown that no such opportunity occurred down to point of time so near to the birth as to render paternity impossible. To rebut the legal presumption under this section, it is for those, who dispute the paternity of her child to prove non-access of the husband to his wife during the period when, with respect to the date of its birth, it must, in the ordinary course of nature, have been begotten.
17. I may usefully refer the decision of the Supreme Court : [1954]1SCR424 , Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana wherein it has been observed:
'The presumption contemplated by Section 112 is a conclusive presumption of law. It is proved that there was a valid marriage between man and a woman and during the valid marriage the child was born, a conclusive presumption of legitimacy arises. It can be displaced only by proof of non-access at the relevant time.'19............. The present Suit is the one in which there is absolutely no evidence to show that Shamrao had no opportunity to have access to his wife Champabai in the year 1954. The evidence of Gulab (PW.2) coupled with the documentary evidence clearly indicate that the plff. has been born to Champabai for Shamrao. Thus it is quite obvious that the learned trial judge has committed an error of law and facts in coming to the conclusion that the plff. Narayan is not the son of deceased Shamrao.'
20. ............... Hence simply because Champabai did not step into the witness box an adverse inference cannot be drawn, as has been done by the learned trial judge. In my view the learned trial judge has committed an error in drawing an adverse inference against the plff. For non-examination of Champabai as a witness. In fact the burden is on the defts. to prove non-access. '
13. In my view also, considering the material, as well as, evidence f)laced on record, including the reasoning given by the First Appellate Court and in view of the settled principle of law, as reflected above, the presumption as envisaged by Section 112, unless rebutted, is in favour of the respondent No. 1-original plaintiff Narayan. The original defendants-appellants herein failed to prove that the deceased Shamrao had no opportunity to approach his wife Champabai during the relevant period and/or Champabai had no opportunity to approach him. Therefore, the finding given by the First Appellate Court, as referred above, and in absence of any positive rebuttal evidence by the contesting respondents-appellants herein and the evidence and material placed on the record by both the parties, I see there is no reason to interfere with the finding of fact as arrived at by the First Appellate Court. This question of fact, according to me, after re-evaluation of the evidence and material placed on the record and the reasoning given in support of the same, is definitely borne out from the record and it is within the framework of law, as well as, record. There is no substantial question of law that would need any further discussion in the matter in view of the finding reached by the First Appellate Court, as observed above. The learned Advocate Mr. A. V. Chaudhari, appearing for the respondents has relied on an unreported judgment Vitthalrao @ Wamanrao s/o Parashram v. Ramesh s/o Wamanrao @ Vithalrao Deshmukh and on : 1987CriLJ849 , Smt. Dukhtar Jahan v. Mohd. Farooq, : 1993CriLJ3233 , Goutam Kundu v. State of West Bengal and anr. based on the principle as referred above of Section 112 of the Evidence Act and supported the reasoning given by the First Appellate Court on the foundation that the child borne during the lawful wedlock is legitimate and that access occurred between the parents and this presumption can only be displaced by strong preponderance of evidence and not by mere balance of probabilities. He also contended that on facts on the record and as rightly observed by the First Appellate Court, contesting parties failed to place on record any material to prove non-access as contended. The following observation in Vitthalrao (supra) concludes the present Second Appeal also.
'26. On close scrutiny of the material brought on record, I am of the considered view that this Court would not be justified in interfering into the findings of fact recorded by the Appellate Court. The conclusion drawn by the Appellate Court was reached on the strength of the evidence adduced by the parties, and the Appellate Court was justified in coming to the conclusion that the defendant No. 1 husband has failed to prove the non access, and when the marriage was subsisting, there was every opportunity for having access and therefore, the findings thus reached by the Appellate Court which is a final Court for finding of fact cannot be interfered in the Second Appeal, and I am of the view that no substantial question of law is involved in this appeal and therefore, the appeal is dismissed with costs.'
14. In view of this, the present Second Appeal is dismissed. No order as to costs.