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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Aravind Kumar, J.
P.S. Shivakumar - Appellant
Vs.
P.H. Subbarayappa and Ors. - Respondents
W.P. Nos. 31182 of 2016 & 36236 of 2015 (GM-CPC)
Decided On : 20-04-2017
INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Section 112 - Paternity of child - Presumption of legitimacy of child - Plaintiff claiming partition by pleading himself to be son of defendant and his first wife, constituting HUF - Alleged mother of plaintiff denying him to be her son - Also admitting that during 10 years of marriage with defendant she could not conceive and asked defendant to do second marriage - No plea of defendant that there was no cohabitation between them or he had no access to his first wife - Presumption under Section 112, not available.
INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Section 112 - Presumption as to legitimacy of child - Child born during subsistence of valid marriage - Question of presumption about paternity of child under Section 112 would be available when there is no dispute that parties are husband and wife or as man and woman living together, they had access to each other and living together. There may be circumstances where father in order to avoid liability or to avoid discharging his marital obligation arising out of such relationship, may attempt to stave-off such liability or obligation by raising dispute with regard to paternity of person claiming to be his son or daughter. It is in this background, law presumes strongly in favour of legitimacy of off-spring, as it is birth that determines status of person. When child is born in lawful wedlock, law presumes that married couple had sexual intercourse between themselves. Principle, underlying rule is on ground of public policy. However, presumption is rebuttable, but only by very strong and clear proof of non-access or when there is strong evidence to establish that wife was not in position to beget child or wife was not in position to conceive. Presumption available under Section 112 would come into play where husband questions paternity of son or daughter, as case may be, by contending that he had no access to wife. Presumption of fact depends upon satisfaction of certain circumstances. Those circumstances would ultimately lead to fact sought to be presumed. This is what Section 112 provides for by way of presumption.
Aravind Kumar, J.
1. Though matter is listed for preliminary hearing, by consent of learned Advocates appearing for the parties, matter is taken up for final disposal. I have heard the arguments of Sriyuths A.V. Gangadharappa and S.K. Venkatareddy, learned Advocates appearing for parties and perused the records.
2. Pleadings in respect of both the writ petitions are one and the same. Parties in both the writ petitions are also same. Hence, both the writ petitions are taken up together for adjudication and disposal.
3. W.P. No. 36236/2015 is preferred by defendants 1 to 3 in O.S. No. 1/2010 being aggrieved by the order dated 31.07.2015 passed on I.A. No. 49 filed by plaintiff under Order 14 Rule 5 of CPC for recasting of issue No. 1, which has since been allowed. W.P. No. 31182/2016 is preferred by plaintiff in O.S. No. 1/2010 being aggrieved by the order dated 29.04.2016 passed on I.A. No. 54 filed by first defendant under Order 26 Rule 10(A) read with Section 151 CPC and Section 45 of the Evidence Act for a direction to the plaintiff to undergo DNA test with first defendant and his wife Smt. Radhamma for confirmation of his paternity, which has since been allowed. Parties are referred to as per their rank in the trial Court.
BRIEF BACKGROUND OF THE CASE:
4. Plaintiff has filed the suit O.S. No. 1/2010 for the relief of partition and allotment of half share in the suit schedule property and to declare that the gift deed dated 20.11.2009 executed by first defendant in favour of third defendant is null and void. The contention of plaintiff in brief as alleged in the suit is:
First defendant Sri. P.H. Subbrayappa is his father; second defendant is the second wife and she is a 'Dasi' as per Hindu Law and third defendant is the son born through second defendant and 'Dasi Putra', plaintiff is the son of first defendant through his first wife Smt. B.N. Radhamma. Hence, claiming that he and first defendant constitute a Hindu Undivided Joint Family, has sought for share in the suit property. Though several pleas have been raised in the plaint, this Court is of the considered view that it would not be necessary to delve upon them, since it would have no bearing on the adjudication of impugned orders.
5. On service of suit summons, defendants - 1 to 3 have appeared and filed their written statement and it is specifically denied that first defendant is the father of plaintiff and it is contended that plaintiff is the second son of late Sri. K.L. Vasanthaiah. It is also contended that marriage of first defendant with second defendant was with the consent of first wife Smt. B.N. Radhamma. It was also admitted by the defendants that first defendant has executed a registered gift deed in favour of third defendant. However, it is contended that it is the self acquired property of first defendant. Except to the extent expressly admitted in the written statement, all other averments made in the plaint has been denied.
6. Trial Court on the basis of the pleadings has framed issues on 03.11.2012. Issue No. 1 framed earlier was deleted by order dated 14.12.2012, additional issues came to be framed on 05.10.2013 and issue No. 1 was recasted by order dated 31.07.2015. They read as under:
"1. Whether the plaintiff proves that he is the biological son of defendant No. 1 born through Smt. Radhamma, the 1st wife of defendant No. 1? (Deleted as per order dated 14.12.2012)
2. Whether the plaintiff proves that he and defendant No. 1 are the members of Hindu Joint Family and the suit schedule properties are their joint family properties and they are in joint possession of the same?
3. Whether the plaintiff proves that gift deed dated 20.11.2009 executed by defendant No. 1 in favour of defendant No. 3 is not binding on the share of plaintiff in the suit schedule properties?
4. Whether defendant No. 1 to 3 prove that the suit is barred by limitation?
5. Whether plaintiff is entitled to the relief sought for?
6. What decree or order?"
Recasted Issue No. 1.
"1. Whether t
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