Bombay High Court
Tukaram Narayan Karhale And Another vs Laxmibai Tukaram Karhale And Another on 20 February, 2025
2025:BHC-AUG:5520
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SA 512.95.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 512 OF 1995
1. Tukaram s/o. Narayan Karhale
Aged 58 years, Occ. Nil
R/o. Bhategaon, Tq. Purna, Dist. Parbhani.
2. Maroti s/o. Wamanrao Bhonsale,
Aged 40 years, Occ. Agriculture
r/o. Bhategaon, Tq. Purna,
Dist. Parbhani.
. Appellants
( original defendants)
VERSUS
1. Laxmibai w/o. Tukaram Karhale,
Aged 49 years, Occ. Household,
R/o. Pangra, Tq. Purna, Dist. Parbhani.
2. Bapurao s/o. Tukaram Karhanale
Age 27 years, Occ. Agriculture,
r/o. As above.
3. Ramesh s/o. Tukaram Karhale
Age 20 years, Occ and r/o. As above.
Respondents
(original plaintiffs)
Mr. B.A. Darak, Advocate for appellants.
Ms. Rekha M. Mohale-Chaudhari h/f. Mr. S.S. Choudhari, Advocate for
respondents.
CORAM : S.G. CHAPALGAONKAR, J.
DATE : 20TH FEBRUARY, 2025.
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SA 512.95.odt
JUDGMENT :
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1. The appellant/original defendant takes exception to the
judgment and decree dated 14.9.1995 passed by learned District Judge
Parbhani in Regular Civil Appeal No. 76 of 1988, thereby upholding the
judgment and decree dated 29.2.1988 passed by civil Judge (Junior
Division), Parbhani in RCS No. 488 of 1986, by which the suit of the
respondent/plaintiffs seeking decree of partition and separate possession
has been decreed.
2. The respondents/plaintiffs instituted R.C.S. No. 488 of 1086
contending that she is legally wedded wife of defendant No.1 Tukaram.
Out of said wedlock, plaintiff Nos. 2 and 3 are born. The suit property is
ancestral joint family property of plaintiffs and defendant. Defendant
No.1 Tukaram is addicted to vices, therefore, there was conflict between
plaintiff No.1 Laxmibai and defendant No.1 Tukaram. There was oral
partition prior to about 9 years, in that Tukaram allotted lands Gat No. 2
and 39 and Hissa No.1 from Gat No., 24 to the plaintiffs, so also, portion
of residential house. However, mutation could not be effected in
pursuance to said oral partition. Defendants obstructed their peaceful
possession. Therefore, cause of action arose to file the suit. In the
alternative, plaintiffs claimed for effecting partition by metes and bounds
and grant a decree of partition and separate possession of suit property.
3. Appellants/defendants filed written statement. They
admitted that plaintiff No.1 Laxmibai is legally wedded wife of defendant
- Tukaram, however, denied paternity of plaintiff No.2 Bapurao and
Plaintiff no.3 Ramesh.
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SA 512.95.odt
4. Trial court framed issues, recorded evidence of parties and
decreed suit of plaintiffs accepting their case that defendant no.1 is father
of plaintiff nos. 2 and 3 born, from plaintiff No.1. As such, granted 3/4th
share to defendant No.1 in suit property. Defendants assailed decree in
appeal, appellate court pleased to uphold the decree.
5. Present second appeal has been admitted on 6.3.1997
treating ground Nos. 1 to 5 as stated in appeal memo as substantial
questions of law. Learned advocate for appellants submits that he would
restrict his submissions on those substantial questions of law as
mentioned in the form of grounds of appeal in para. 1 to 5, which read
thus :-
" 1. That, the burden of proof to prove that plaintiffs
2 and 3 are the sons of defendant No.1 Tukaram born from
plaintiff No.1 Laxmibai was on the plaintiff. The plaintiffs
would succeed or fail on the basis of the evidence led by
them. Whether said burden could be shifted on the
shoulders of the defendants to prove the plaintiffs 2 and 3
were not the sons of defendant No.1, is a substantial
question of law in this second appeal.
2. Whether in the matter of appreciation of oral
evidence, the Courts below could apply different standards
for appreciating or believing the evidence of plaintiffs and
the defendants, is also a substantial question of law in this
second appeal.
3. When there is oath against oath and witnesses
are deposing on the question of relationship of defendant
no.1 with plaintiffs 2 and 3 on the point of paternity, the
Courts below required to give solid and credible reason for
believing one set of evidence and discarding the other set of
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SA 512.95.odt
evidence. The failure to do so, has given rise to substantial
question of law in this second appeal.
4. That, the failure to lead or produce any
documentary evidence showing the plaintiffs 2 and 3 as the
sons of defendant no.1 either from the birth and death
register or from the school or from any source or conduct till
before the filing of the suit, is sufficient to cast a serious
shadow of doubt on the credibility of the oral evidence.
Failure to consider this aspect has given rise to a substantial
question of law in this second appeal.
5. That plaintiff no.1 could not have been believed
in her deposition that there was no birth and death register
at village Panghra, where the plaintiffs no.2 and 3 were born
admittedly, and further that they did not take any school
education right from their birth. The total absence of any
conduct or assertion about the legitimacy of plaintiffs 2 and
3 as well as of plaintiff no.1 to claim or assert that they were
the sons of defendant no.1 is also a very material point
sufficient to discard the oral testimony of plaintiff no.1 and
her brother PW 3 Balaji. The finding so recorded in the
above background about the paternity of plaintiffs 2 and 3,
is vitiated and has no sanctity in the present second appeal."
6. Heard Mr. Darak, learned advocate for appellant on
aforesaid substantial questions of law. The sum and substance of
aforesaid questions of law is that, burden to prove paternity of plaintiff
Nos. 2 and 3 was on the plaintiffs and it could have never been shifted to
defendants and courts below were not justified in accepting case of
plaintiffs that plaintiff Nos. 2 and 3 were born to plaintiff No.1 from her
matrimonial relationship with defendant No.1 Tukaram.
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SA 512.95.odt
7. Apparently, defendants filed a joint written statement and
admitted that plaintiff No.1 - Laxmibai, is wife of defendant No.1
Tukaram. In the wake of admitted matrimonial relationship, it would be
necessary to refer to Section 112 of the Indian Evidence Act which reads
thus :-
"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 he could have been begotten.
It is pertinent to note that apart from clear admission as to
validity of marriage and substance of such matrimonial relationship,
defendants have not pleaded that plaintiff No.1 was living adulterous
life. Therefore, it is undesirable to inquire into paternity of children
unless it has been brought on record that defendant No.1 had no access
to plaintiff No.1. It is trite that presumption under section 112 of the
Evidence Act, is based on public morality and public policy, particularly,
the principle of law that odiosa et inhonesta non sunt in lege
praesumenda (nothing odious or dishonourable will be presumed by the
law).
8. In light of aforesaid legal position, if the findings recorded
by courts below, on appreciation of evidence are perused, it can be seen
that defendant No.1 could not bring any evidence to show that defendant
Tukaram had no access to plaintiff No.1 Laxmibai. Apparently, the
burden to rebut presumption in favour of paternity was upon defendant
No.1 Tukaram. He relied upon evidence of three witnesses including
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himself. Tukaram states in his evidence that Laxmibai resided with him
for about 10 ½ years after marriage, although in pleadings, he states that
Laximibai resided with him at village Bhategaon for 4 to 5 years after the
marriage.
9. The appellate court, on appreciation of evidence, observed
that evidence of defendant Tukaram is absolutely inconsistent and
unreliable. Evidence of DW-2 Shivaji and DW-3 Vitthal, who are relatives
of defendant No.1, is of no assistance to rebut the presumption. As
rightly observed by appellate court, in written statement at Exh. 27, there
is no pleading that plaintiff No.1 and defendant No.1 Tukaram had no
access at all. On the other hand, plaintiff No.1 has entered into witness
box and given consistent evidence that plaintiff Nos. 2 and 3 are begotten
out of her wedlock with defendant No.1 Tukaram. There are concurrent
findings of fact recorded by courts below on the vital issue that
defendant No.1 failed to discharge his burden and dislodge the
presumption under Section 112 of the Evidence Act.
10. The Supreme Court of India in the case of Smt. Kamti Devi &
Anr vs Poshi Ram (2001)5 SCC 311, observed in para.9 as under :-
" Section 112 which raises conclusive presumption about the
paternity of the child born during subsistence of a valid
marriage, itself provides the outlet to the party who wants
to escape from the rigor of that conclusiveness. Said outlet
is, if it can be shown that parties had no access to each other
at the time when child could have been begotten, the
presumption can be rebutted."
Therefore, the only way available for defendant No.1 to rebut
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presumption was to bring home an impeccable evidence that there was
no access between himself and Laxmibai when plaintiff Nos. 2 and 3
were born. However, defendants miserably failed to bring on record
evidence to establish non-access. While interpreting the term non-access,
it is consistently held that non-access means impossibility, not merely
inability of spouses to have marital relations with each other. For a
person to rebut the presumption of legitimacy, it is necessary for him to
first assert non-access, which in turn, must be substantiated by evidence.
In present case, as observed by the appellate court, written statement
sans such assertion. In that view of the matter, substantial questions of
law as framed do not arise in this appeal. Second appeal sans merit,
hence dismissed. Civil application, if any, stands disposed of.
[S.G. CHAPALGAONKAR, J]
grt/-
