The burden of proof lies on the person asserting illegitimacy, and there is a general presumption in favour of legitimacy under section 114 of the Indian Evidence Act.

JUDGMENT - H.H. KANTHARIA, J.:---The short question that arises in this civil revision application filed under section 115 of the Civil Procedure Code, is as to on whom the burden of proof lies of the statements/averments made by him/her in his/her pleadings.

2. The respondent (Original plaintiff) filed S.C. Suit No. 1228 of 1978 in the City Civil Court, Bombay, against the petitioner (original defendant ) for possession of certain restaurant business alongwith certain moveable properties as also the premises in which the said business is carried on and payment of certain sum of money together with damages or mesne profits at certain rate and for accounts. In the said suit her pleading in para 1 of the plaint is as under :---

"The plaintiff is the daughter of one Ramayya Shetty who died intestate at Bombay on 4th August, 1977, leaving him surviving plaintiff as his only heir and legal representative."

To this pleading the petitioner replied by his written statement vide para 2 thus :---

"The defendent further submits that the plaintiff has no cause of action insasmuch as the plaintiff is not the heir and legal representative of one Ramayya Dassu Shetty, the plaintiff being an illegitimate child of the said deceased Ramayya Dassu Shetty. The plaintiff is daughter of one Smt. Gulabi, who was not married to the said deceased Ramayya Dassu Shetty."

On these pleadings of the parties initially, while framing several other issues on other pleadings,the learned trial Judge framed Issue No.1 as under:

"Whether the plaintiff proves that she is the heir of the deceased Ramayya D. Shetty ?"

The suit was then set down for hearing and final disposal and when it came up on board on August 16, 1983 for recording the evidence the respondent applied for re-setting Issue No. 1 submitting that the said issue be recast and the burden of proof be shifted from the plaintiff to the defendant. Thereafter, on hearing the parties, the trial Court recast original issue No. 1 by its order dated September 26, 1983 as under :---

"Whether the defendant proves that the plaintiff is illegitimate child of deceased Ramayya ?"

It is the said order recasting Issue No. 1 as above that has been challenged by the petitioner in this revision application.

3. Mr. Badkar, learned Counsel appearing on behalf of the petitioner, urged that the burden of proof as to whether the respondent is the legal heir and representative of deceased Ramayya Dassu Shetty is on her as plaintiff and the burden should not have been shifted to the petitioner to prove whether she was the illegitimate child of deceased Ramayya Dassu Shetty. Mr. Badkar brought to my notice several decisions as regards the burden of proof in the like matters in cases of (Mt. Basanti v. Pohlu)1, A.I.R. 1952 Bilaspur 13; (K.S. Nanji and Co. v. Jatashankar Dossa and others)2, A.I.R. 1961 S.C. 1474; (B. Mahadeva Rao v. Yesoda Bai)3, A.I.R. 1962 Madras 141; (Sunkavilli Surana and others v. Goli Sathiraju and others)4, A.I.R. 1962 S.C. 342 and (Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati)5, A.I.R. 1965 S.C. 364, to show as to how the burden of proof shifts and on whom ultimately it lies to be discharged. As rightly submitted by Mr. Shetty, in reply, all these rulings have no relevance because they pertain to appreciation of the evidence regard being had to the nature of the facts and circumstances obtaining in those individual cases. The only authority having some relevance to which Mr. Badkar has invited my attention is the case of (Ch. Kanhaiva Bux Singh and another v. Mt. Ram Dei Kuer and others)6, A.I.R. (31)1944 Oudh, 162, in which it was held :---

"Where a plaintiff claims to recover property as the son of any person by his lawfully married wife and the defendant denies that the wife ever gave birth to the child and sets up that the plaintiff was the son of a woman other than the lawfully married wife, the onus of proof is upon the person who claims to show that the lawfully wedded wife gave birth to him, befor

Click Here to Read the rest of this document