Back
IN THE HIGH COURT OF ALLAHABAD
Mushtaq Ahmad, J.
BHOOP SINGH - Appellant
Versus
TARIF SINGH - Respondents
Second Appeal 1678 Of 1947
Decided On : 10/05/1950
PARENTAGE - DECLARATION OF - LEGAL CHARACTER - LIMITATION - SECTION 42, SPECIFIC RELIEF ACT - ARTICLE 120, LIMITATION ACT - LEGITIMACY - STATUS - RES JUDICATA - SECTION 11, CIVIL PROCEDURE CODE - ADOPTION - MAINTENANCE - PENSION - STATUS OF A PERSON - RELATIONSHIP - SLANDER - LIBEL - REPUTATION - ANCESTRAL PROPERTY - RIGHT TO PROPERTY - SPRING BOARD FOR FUTURE LITIGATION - USELESS RELIEF - BRUTUM FULMEN - DISCRETION OF THE COURT - MOTIVE OF THE PLAINTIFF - EVIDENCE - BURDEN OF PROOF - ADVERSE POSSESSION - OUSTER - DISPOSSESSION - EJECTMENT - INJUNCTION - DAMAGES - MESNE PROFITS - ACCOUNT - COSTS.
Fact of the Case:
The plaintiff, claiming to be the legitimate son of Mohkam Singh, filed a suit for a declaration of his parentage and to establish his status as such. The defendant, Mohkam Singh's cousin, denied the plaintiff's claim and pleaded that the suit was barred by res judicata, limitation, and Section 42 of the Specific Relief Act. The trial court dismissed the suit, holding that the plaintiff was not entitled to a declaration of parentage and that the suit was barred by limitation. The lower appellate court affirmed the decree, holding that the suit was barred by the six-year rule of limitation under Article 120 of the Limitation Act.
Finding of the Court:
The High Court held that the plaintiff was entitled to a declaration of his parentage and that the suit was not barred by limitation. The court interpreted the words "legal character" in Section 42 of the Specific Relief Act as an expression of wide import so as to embrace the status of the person concerned. The court held that the plaintiff had a legal character within the meaning of Section 42, as he was seeking a declaration of his status as the legitimate son of Mohkam Singh. The court also held that the suit was not barred by limitation, as each denial of the plaintiff's status was a fresh encroachment on the latter's right giving rise to a fresh cause of action in his favor.
Issues: 1. Whether the plaintiff was entitled to a declaration of his parentage under Section 42 of the Specific Relief Act? 2. Whether the suit was barred by limitation under Article 120 of the Limitation Act?
Ratio Decidendi: 1. The court held that the plaintiff was entitled to a declaration of his parentage under Section 42 of the Specific Relief Act. The court interpreted the words "legal character" in Section 42 as an expression of wide import so as to embrace the status of the person concerned. The court held that the plaintiff had a legal character within the meaning of Section 42, as he was seeking a declaration of his status as the legitimate son of Mohkam Singh. 2. The court held that the suit was not barred by limitation under Article 120 of the Limitation Act. The court held that each denial of the plaintiff's status was a fresh encroachment on the latter's right giving rise to a fresh cause of action in his favor.
Final Decision: The High Court allowed the appeal, set aside the decrees of the courts below, and granted a decree to the plaintiff in the terms prayed for with costs throughout.
( 1 ) THIS is a plaintiffs appeal in a suit for declaration that the plaintiff is a son of one Mohkam singh and not of Ganga Sahai. His case was that he was Mohkams son by his legally wedded wife, Mt. Kallo, who had previously been the wife of the said Ganga Sahai. Mt. Kallo having thus been the wife of each of these two persons at different times and the plaintiffs case being that he is a son of Mohkam Singh and not of Ganga Sahai, the relief prayed for by him really meant that he wanted a declaration that he was a legitimate son of Mohkam Singh by that lady.
( 2 ) THE plaintiff set out a pedigree in the plaint, according to which one Hira Singh had four sons, nagar Singh, Mohkam Singh, Bhole Singh and Ram Sahai. Nagar Singh admittedly left a son tarif Singh, the defendant respondent in this case.
( 3 ) MOHKAM Singh had left India a long time ago for the Mauritius Island, returning home after about 30 years. During his absence hia property had been taken possession of by Nagar Singh, his brother. On his return, Mohkam Singh had to bring a suit against Nagar Singh for the recovery of his property.
( 4 ) THE suit giving rise to this appeal was filed on 21-9-1945 for the relief I have already mentioned. There had been two previous suits, one in 1914 and the other in 1922, by the plaintiff alleging himself to be a son of Mohkam Singh against the defendant. They were dismissed. To that part of the case I shall have to advert on a particular point later.
( 5 ) THE defence was that the plaintiff was not a son of Mohkam Singh, nor was Mt. Kallo the latters legally wedded wife, that on his return from the Mauritius Island Mohkam Singh had sued the defendants father for the recovery of his property that the suit had been decided by arbitration to the effect that Mohkam Singh had no son and that, on Mohkam Singhs death the defendants father would be the owner of his (Mohkam Singhs) property that the present suit was barred by res judicata in view of the dismissal of the plaintiffs previous suits in 1914 and 1922 and that it was also barred by limitation and Section 42, Specific Relief Act.
( 6 ) THE Court of first instance dismissed the suit holding that in the present case the plaintiff was not entitled to a declaration of his parentage, as the grant of such a declaration would only be a stepping stone for another suit in future, that it would also be useless to grant such a declaration, the same being in the nature of brutum fulmen, that the plaintiff was a son of Mohkam Singh but that Mt. Kallo had not been the legally wedded wife of Mohkam. The Court found in the plaintiffs favour that the decrees in the earlier suits did not operate as res judicata, that the suit was not barred by limitation, as such denial of the plaintiffs parentage by the defendant gave a fresh cause of action, and that the suit being in regard to the legal character claimed by the plaintiff as a son of Mohkam Singh, it was also not barred by Section 42, Specific Relief Act.
( 7 ) THE lower appellate Court affirmed this decree, holding, in agreement with the trial Court, that no declaration of parentage could be claimed in the present case, and holding, in disagreement with that Court, that the suit was barred by the six years rule of limitation under Article 120, limitation Act. With regard to the question of Mt. Kallos status as the wife of Mohkam Singh, the learned Judge remarked that, in view of his findings on the other points it was unnecessary to determine that question, adding at the same time that, if it were necessary to do so, he would not agree with the trial Court. That is to say, the learned Judge was inclined to think on the basis of the rules of presumption of legitimacy that Mt, Kallo had been the legally wedded wife of mohkam Singh.
( 8 ) IN this state of the findings of the Courts below, only two questions arise for decision, (1)whether, in the circumstances of the case, the plaintiff was or was not entitled to a declaration
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
