2009 (4) TMI 959 - SC - Indian Laws

Summary

Issues Involved:
1. Legitimacy of the plaintiff and defendant no.4 u/s 112 of the Indian Evidence Act.
2. Validity of the Will executed by Balak Ram.
3. Nature of the property (ancestral or coparcenary).
4. Limitation period for filing the suit.

Summary:

Issue 1: Legitimacy of the plaintiff and defendant no.4 u/s 112 of the Indian Evidence Act
The High Court upheld the presumption of legitimacy u/s 112 of the Indian Evidence Act, stating, "The fact that any person who was born during the continuance of a valid marriage... 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." The court emphasized that "the presumption can only be rebutted by a strong, clear satisfying and conclusive evidence." The High Court concluded that the plaintiff and defendant no.4 were legitimate sons of Balak Ram as there was no evidence of non-access.

Issue 2: Validity of the Will executed by Balak Ram
The High Court noted that the Will was validly executed by Balak Ram in favor of defendant nos.1 and 2, stating, "The two courts below have concurrently held the Will Ex. DW 1/A to have been validly executed by the deceased Balak Ram." However, it was also observed that the property in the hands of Balak Ram was ancestral, and under the custom governing the parties, a Will could not be executed in respect of ancestral property.

Issue 3: Nature of the property (ancestral or coparcenary)
The High Court found that the property was ancestral, inherited by Balak Ram from his father. It was stated, "There is no denying that the property in the hands of the deceased Balak Ram was ancestral since admittedly he had inherited the same from his father." The court also noted that the District Judge erred in holding the property to be coparcenary without proper pleadings.

Issue 4: Limitation period for filing the suit
The High Court observed that the suit was not filed within the prescribed limitation period of three years. It was noted, "Considering the pleadings as a whole as set out in the plaint, the suit of the plaintiff as laid, on the face of it, was not within time." The court concluded that the findings of the Trial Court and the District Court on the issue of limitation were correct.

Conclusion:
The appeal was dismissed, with the High Court's findings on the issues of legitimacy, validity of the Will, nature of the property, and limitation being upheld. The court emphasized the strong presumption of legitimacy u/s 112 of the Indian Evidence Act and the inadmissibility of questioning the paternity of children born during a valid marriage.