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Judgment
Bhat, J.
(1) This is a civil second appeal against the dismissal of the suit of the appellantplaintiff by the court of the Subjudge, Kathua on 1721964
confirmed in appeal by the District Judge, Kathua, on 1561966. The facts giving rise to this case are that the appellant brought a suit for joint
possession of 104 Kanals of land representing 118th of 2014 kanals 14 marlas comprised of various survey numbers in village Kathua on the side
of Tajwal. The case of the plaintiff was that Rangiloo, his father, was in possession of this land. He had married Lajoo. the daughter of Thaker
Singh of Berla at present Maro Patti Tebsil Bisohli. The plaintiff alongwith his sister Mst. Boo was born out of this wedlock. His father Rangillo had
by means of a sale deed dated 352013 Bikrami i. e 18th May J956 sold 14 kanals 6 marlas from survey No 242 and 8 kanals 6 marlas from
survey No 240 in favour of Hansraj defdt. No. 136 for Rs. 2000/. Rangiloo had received only Rs. 55/ out of the alleged consideration, and the
remaining Rs. 1.943/ which were deposited with the Sub Registrar Kathua, were taken away by the defendants 1 to 7 representing themselves to
be the heirs of Rangiloo by practising deception upon the Sub Registrar Later on the defendant No. 1 through his son Bedi Singh Defdt. 137 got a
suit for preemption with respect to this land instituted against the vendee defendant No. 136 Hansraj, but possession was not taken by this Badri
Singh on the basis of this suit. The alleged sale was without any legal necessity and only Rs. 55/ were received by Rangiloo, therefore this sale was
not binding upon the plaintiff who was the legitimate son of Rangiloo. Hence the plaintiffappellant prayed for decree for possession.
(2) A joint written statement was filed by a number of defendants. Defendant No. 135 Hans Raj, the vendee, filed a separate written statementThe
main pleas taken by the defendants were that Lajoo was not the legally weded wife of Rangiloo, she was the wife of one Sarbanoo and Puran
Singh plaintiff was not the legitimate child of Rangiloo from Lajoo.
(3) The following issues were framed in this case :
(1) The defendant 1 to 7 to prove that Rangiloo and Mst Lajoo parties to the marriage had no access to each other at any time when Puran Singh
Plaintiff could have been begotten ?
(2) Whether Mst. Lajoo was the Lawfully wedded wife of Rangiloo and whether the plaintiff was begotten to her during the said wedlock ? O. P.
Pltff.
(3) Relief.
(4) Evidence was led by the parties and both courts below have decided these issues against the plaintiff and dismissed the suit. Against these two
judgments and the decree of the lower courts, this second appeal has been preferred by the plaintiffappellant.
(5) We have heard the learned counsel for the parties) A preliminary objection was taken by the learned counsel for, the respondents that this case
is concluded by concurrent findings of fact recorded by the two courts below, hence this appeal should be dismissed We have given our careful
consideration to this aspect of the case. It is no doubt settled law that when two courts have recorded a concurrent finding after taking the
evidence led by the parties, into consideration, the High Court should not interfere in second appeal. In this behalf there are the decisions of the
Privy Council, the Supreme Court and of various High Courts. Only a few may be mentioned. The Privy Council in Durga Chowdhari Vs. Jawahir
Singh reported as (1891)17 I. A. 122 held that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact
however, gross the error may seem to be and the Supreme Court in Patabhiramaswamy Vs. Hanyamayya, reported as AIR 1959 SC 57 and in
Sinha Ramanuja Vs. Ranga Ramanuja as 1961 (2) SRC 5C9 affirmed this view. The decisions of other High Courts need not be mentioned in
view of the Privy Council and the Supreme Court decisions cited above. But to preclude the High Court from entertaining a second appeal on
questions of fact, the finding should be clear, specific and unambiguous. See Ram Lal Dutt Vs Dhirerdru Nath Roy reported as 7u OA '8. Yet at
the same time it has been held by the Supreme Court itself in Sir Chunilal Vs. Mehta and sons Ltd Vs. Century Spinning and Manufacturing Co.
Ltd. reported as AIR 1962 SC 1314 that the construction of a document of title or of a document which is the foundation of the rights of parries
necessarily raises a question of law. In Sathi Sattamna Vs. Sathi Subbi Reddy and another reported as AIR 1963 A. P 72 the Andhra Pradesh
High Court has laid down that ""the findings based on no evidence or on inadmissible evidence or in disregard of a evidence are within the operation
of Subclause (1) of Section 100 CPC. So also are the errors in inference of law or wrong application of law....................
The Allahbad High Court in Ram Krishan Prasad Vs. Mohd Yahia, reported as AIR 1960 Allahabad 432 interfered in second appeal where the
appellate court refused to consider material evidence on the erroneous ground that it was immaterial. It was held that this was an error of law In
another authority Rashid Ali Vs. Darparam Namasudra and others reported as AIR 1954 Assam 95, it was laid down ""whether a particular
contract is void on ground of perpetuity is undoubtfully a question depending upon the interpretation of the terms of a document of title and would
therefore, be a question of law open for consideration for the first time in second appeal."" The Orissa High Court in Ramakrushna Mahapatra and
others Vs. Gangadhar Mohapitra and others reported as AIR 1958 Orissa 25 held that ""the admissibility of a particular documents is undoubtedly
a question of fact. ""The Supreme court in Sri Meenakabi Mills Ltd. Vs. Commissioner of Income Tax reported as 1956 SCR 691, which was a
case under the Income Tax Act, laid down their conclusion about such matters and among the four conclusions arrived at held at No. 3 that 'a
finding on a question of fact is open to attack under section 66 (1) (of the Income tax Act) as erroneous in law when there is no evidence to
support it or if it is perverse.
(6) Keeping these well recognised tests in mind, let us approach the findings of the courts below in this case. So far as the question of marriage of
Rangiloo with Lajoo was proved and at other places it has held that it was not proved At page 5 of the judgment it says ""In the later part of this
judgment I shall have an occasion to state that even if the marriage be taken as proved for argument's sake, the husband Ranniloo had complete
nonaccess to Mst. Lajoo when the plaintiff could have been begotten."" ""At another place (at page 8 of judgment) it has remarked that "".........but it
gets difficult to disengage oneself from the impression on basis of the aforesaid facts that this lady Mst. Lajo coming probably in marriage with
Rangiloo stayed for however a short time with him at Kathua.'' (Not very intelligible) and it continues to say. But even if the marriage in question is
taken as proved the presumption of legitimacy contained in Section 112 of the evidence Act would not avail the plaintiff. If non access between
Rangiloo and Mst. Lajo at any time when the plaintiff could have been begotten is sustained. At the end of the judgment again it has remarked that
From the foregoing facts issues 1 and 2 are found in the manner that the plaintiff has failed to prove affirmatively the marriage in between Rangiloo
and his mother Mst. Lajo and even if the marriage be taken sustained nonaccess by Rangiloo to Mst Lajo at the time the plaintiff could have
begotten is established "" Thetheore from the judgment of the trial court itself it is clear that the trial court had no clear idea whether it should hold
that marriage between Rangiloo and Lajo as proved. The finding on this issue is vitiated and is legally erroneous because the trial court has
ommitted to draw the legal inference from certain proved documents and has disregarded the evidence of many of the witnesses of the contesting
defendants and other admissions made by them at different time. The plaintiff produced a number of witnesses to prove the marriage of his mother
Lajo with Rangiloo only some of them may be mentioned Hari Chand who deposed that he acred as a Prohit. Vishanodass, Munshiram Thakur,
Dhanoo Chowkidar, Lal Singh and Lajo herself appeared as witnesses. When we mention the witnesses, it should not be understood that we are
weighing the evidence for ourselves and setting aside the finding on this issue given by two courts below. But it will be clear from this judgment that
there is no categorical finding by the trial court about the marriage of Rangiloo with Lajoo as not having taken place at all and secondly that
important documents have been ignored, their legal effect not considered and many of other statements particularly in the shape of admissions have
been illegally ruled out of consideration. Therefore we donot propose to discuss the oral evidence led by the parties about this marriage and decide
the issue on the oral evidence of the parties only.
The number of witnesses produced is huge. The plaintiff has produced 18 witnesses and the defendants 36.
(7) NJW let us take some important piece of evidence, the legal effect where of has been completely overlooked by the courts below. Nanak
Singh and Baliram, two of the contesting defendants in their statements under Order X recorded on 1651561 have admitted having made a
statement in Nov. 1958 before the Revenue authorities at the time of mutation of this land, which was effected in favour of the plaintiff. In that
statement Balram had said that Rangiloo had married Shanker Singh's daughter Lajoo who was present in court. Nanak Singh had stated the same
and had further said that Lajoo was the name of Shanker Singh's daughter married to Rangiloo, about these statements the trial court had stated
quoting the authority of the Pepsu High Court reported as AIR 1954 Pepsu 65 that these statements were made before the framing of issues and
would not be evidence It has entirely misdirected itself on the legal inferece to be drawn from these statements. They were relied upon as
admissions made by the contesting defendants and would be ordinarily binding upon them. Therefore, this is the first blunder committed by the trial
court in appreciating the evidence in this case. There are other important documents. One is the application made by Raniloo to the Magistrate on
28th Assuj 2000 (Bikarami) markfd as Ex PI (B) proved by Gauri Shanker Petition Writer wherein Rangiloo has clearly stated that Lajwanti alias
Lajo is his wife and lives with him, her father who was the nonapplicant in that case, was creating some trouble. His statement also was recorded
on that very day which is to the same effect. Lajwanti also has made a statement in the court in which she has definitely stated that she was the wife
of Ranailoo and was living with him of her own accord. The applications of Nanak Singh and Baliram contesting defendants made before the
Revenue authorities have been proved by Harnam Dass D. W. as Ex. P W. I and Ex P. W. 2 The courts below have ruled out these important
pieces of documentary evidence holding that they were admissions made by Rangiloo himself in his own favour and therefore could not be relied
upon. But here again there has been a wrong approach. Rangiloo is dead. This statement of his can be read with advantage under the provisions of
Section 32 (5) of the evidence Act which lays down that
''When a statement relates to the existence of any relationship (by blood, marriage, or adoption) between persons as to whose relationship (by
blood, marriage or adoption) the person making the statement had special means of knowledge and when the statement was made before the
question in dispute was raised.
These statements were made as far back as 2000 Bikrami when the present dispute was not at all even in contemplation between the parties.
These important documents have been ignored and wrongly held by the courts below as not to be Relevant. They go a long way to disclose the
perversity of the findings of the courts below on issues No. 1 and 2.
(8) Even the defendants witnesses have supported the story of marriage of Rangiloo with Lajoo as put forward by the plaintiff. Only a few
witnesses may be mentioned and they are Khamandoo, Daljit Singh. Prakasho, Sansar Singh Fajoo and Dinanath. Besides there is a number of
other witnesses of the defendants who have stated that Lajoo and Rangiloo had at least for some time lived as man and wife. Under section 50 of
the Evidence Act ''When the court has to form an opinion as to the relationship of one person to another, the opinion expressed byconduct as to
the existence of such relationship of any person who as a member of the family or otherwise, has special means of knowledge on the subject, is a
relevant fact"". Treatment accorded to the alleged wives seem to be as much evidence of repute as of conduct of the persons who received them or
mixed with them as such. The dividing line between conduct and repute in such cases appears to be so thin as to be imperceptible. At any rate the
circumstances of their behavings themselves in society as man and wife etc, may be received as acts of admission by the parties themselves"" As to
repute treatment and recognition by strangers, in the case of marriage, the repute and conduct need not be confined to the family, reputation among
and treatment by friends and neighbours being receivable. A witness deposing to the existence of such a general reputation must not, however state
what some particular individual has said on the subject and if it appears that his testimony is based merely on the declaration of such persons, the
evidence ceases to be a general reputation and can only be received if declarant was a deceased member of the family. ""See Shedden Vs. A. G.
30 L. J, P&M 217 Phip. 6th Ed. Page 312. In the case of a marriage which is of a very long duration no direct evidence of performance of
marriage is necessary. On the other hand the law presumes that all religious formalities concerned in a particular marriage have been performed if
the man and woman have been living as man and wife for a pretty long time. In AIR 1950 Orissa 337 it has been held that the statement of a
donnee that certain lady was his legally married wife was held admissible under Clause (5) of Section 32 of the Evidence Act. It further held that it
raises a presumption of marriage and burden to prove that contrary is on him who so asserts It was further held that when a woman alleged her
marriage to have taken place long ago, Court would presume valid marriage even in absence of proof of ceremonies of marriage In this case Lajoo
has appeared as a witness. She has on soleman affirmation deposed that she was legally married to Rangiloo and the plaintiff Puran Singh is her
legitimate child born to her from the Loins of Rangiloo. This statement of hers will have very great effect on the decision of the issue No. 2 In view
of the circumstances above mentioned and the legal lapses committed by the trial court, we are constrained to set aside the finding about marriage
recorded in this case.
(9) In the determination of the second issue also there has been an entirely wrong approach by the trial court. The trial court even though quoting
an authority of the Supreme Court reported as AIR 1954 SC 176 and some other authorities remarked that ""the evidence for nonaccess must be
clear and satisfactory and yet after discussing the evidence came to a wrong conclusion about this issue. In this behalf before discussing the finding
of the trial court the provisions of Section 112 of the evidence Act may be reproduced :
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.
(10) When any child is born during the continuance of a valid marriage between his mother and a man, there will be a conclusive proof of his
legitimacy. This section lays down that merely the birth of a child during the continuance of a valid marriage of a man and a woman will clothe him
with the status of legitimacy. This legal presumption can be disproved only by cogent, clear and satisfactory proof about nonaccess. It cannot be
determined on mere probabilities. In this case a number of witnesses have been produced by the plaintiff who have deposed that Rangiloo had
access to his wife Lajoo. Some witnesses for the defendants have denied it. The trial court has remarked :
''The defendants 1 to 7's evidence given for nonassess of Rangiloo to Mst. Lajoo consists of quite a number of people. Amongst these are persons
from Rangiloo's (bradari). They are Sansar Singh, Roop Singh, Daljit Singh and Harnath Singh and thus likely to know of Rangiloo's
affairs............... I do not see any substantial reason to doubt their testimony to the effect that Mst. Lajoo did not stay here with Rangiloo, as that
also is the tenor of the evidence for the plaintiff.
(11) At another place the trial court has remarked that :
............Their bald statements do not satisfy. That the tale of Rangiloo visiting Mst. Lajoo at her father's and thus showing that he had access and
opportunity for sexual intercourse with her is a figment of imagination is shown by the application u/s 100 Cr. P. Code aforesaid, that Rangiloo
made as early as 28/6/2000 against his fatherinlaw for detaining Mst Lajoo his wife.''
(12) The learned Judge has based much of his conclusion on this issue on the application of Rangiloo u/s 100 Cr. P. Code. In the first place the
best person to depose about the legitimacy of the plaintiff or otherwise is his mother Lajioo. She has stated on solemn affirmation that Puran Singh
is his son by Rangiloo's liens. Secondly the case set up by the defendants was that Lajoo had married Sarbanoo. This Sarbanoo also has appeared
as a witness. He has denied this story. There are only versions about the birth of Puran Singh. According to the plaintiff he is the son of Rangiloo
his father. According to the defendant's he has been begotten from Sarbanoo whom Lajoo had married. Lajoo has denied her marriage with
Sarbanoo and so has Sarbanoo denied his marriage with her. There is no other version and as held by us the marriage of Rangiloo with Lajoo is
proved. Therefore regard being had to the bare provisions of Section 112 of the Evidence Act the conclusion that Puran Singh is the son of
Rangiloo is irresistible. Besides both in England and India the presumption of legitimacy is highly favoured and the proof of nonaccess should be
clear. In Morris Vs. Davjes 1837, 5 Cl. & F. 163, 265, Lord Lyndburst observed that .
........that presumption of law is not lightly to be repelled It is not to be broken in upon, or shaken by a mere balance of probability, the evidence
for the purpose of repelling it must be strong, distinct, satisfactory and conclusive.
(13) The very authority referred to by the trial court Viz. AIR 1954 SC 76 has held that :
On evidence of the case, that the father did nor succeed in proving that there was no opportunity for intercourse between him and the plaintiff's
mother at the time when the plaintiff was conceived.
(14) In T. P. Machicka Mudeliaa Versus Amme Kinnu alias Venka Lakshmt Ammal reported as AIR 1942 Madras 129 it has been held that :
Since every assumption is to be made in favour of legitimacy of a child who is found to have been born in lawful wedlock, the onus of proving
nonaccess that is the parries had no opportunities for sexual intercourse at any time as a result of which the child could have been begotten or that
of illegitimacy is on the party who alleges the same.
It is for the person alleging intimacy to show that the relations between them were strained and continued to be so without any reconciliation before
the child could have been begotten. The continuance of the strained and bitter feelings cannot be assumed in the absence of a divorce or such other
circumstances as may lead to that inference. The mere fact that the parties are living separately in two different houses is insufficient to establish
nonaccess. The nonaccess has to be proved 1ike any other physical fact and may be established both by direct and circumstantial evidence of an
unambiguous character but unless such evidence is forthcoming it will not be possible for a court 'to believe it to be probable that there was no
access'. The fact that the father took no interest in the child by itself is not of much value in establishing illegitimacy nor can the fact whether the
father did or did not perform the funeral obsequies of his wife be of very great assistance either.
(15) In Kahan Singh and another Vs Natta Singh and another, reported as AIR 1925 Lahore 414 a child born six months after the marriage was
held to be a legitimate son. In Narayanun Nair Vs. Manikkath Kulapura Vettil Bhargavi Atnne reported as AIR 1927 Madras 351 it was held that
:
Once the validity of the marriage is proved it is unnecessary for the party alleging legitimacy to establish affirmatively that the child is legitimate.
(16) 16 C. R. Sana Vs. D. S Sonavane & Co. reported as AIR 1946 Bombay 119 it has been held that even a woman living with a paramour will
not prove nonaccess.
(17) On the basis of the above authorities and proposition of fact, we are evidenced that there has been a legal error apparent on the face of the
record in the approach and decision of the trial court about this issue (No. 2) also. The appellate court has simply and mechanically affirmed the
findings of the trial court. It has not discussed all the evidence, taken all the circumstances into consideration and omitted to consider the very
material documents which have been proved in this case. When we have declined to accept the fir dings of the trial court on the issues the mere
certification of the same by the appellate court will not give the judgment of the lower court any more sanctity than that of the trial court.
(18) The last point for consideration is that of the relief. A sale of ancestral property can be affected by a Hindu for legal necessity. It has been
pointed out by the learned counsel for the appellant that the plea of legal necessity was not at all taken by the respondents. Therefore this point
does not arise for consideration. Even otherwise also the .sale recites that this money was required by the vendor Rangiloo for his marriage.
According to the finding recorded by us he, had already a married wife the date of the sale is 18th May 1956 and on that date the Hindu Marriage
Act had come into force. (That act came into force in 1955, 5th Nov. 1955). Therefore the object of the sale being one definitely prohibited by
Jaw could not be termed as legal necessity. It is also admitted that Rangiloo recovered only Rs. 55/ out of the sale consideration of Rs. 2000/
Therefore the question of legal necessity, in fact has not been pleaded and does not arise in this case for consideration.
(19) Therefore in our opinion the suit of the plaintiff has been wrongly dismissed. The plaintiff's; suit deserves to be decreed. Accordingly the
decrees passed by the two courts below are hereby set aside and the plaintiff's suit is decreed as proved for by him. The contesting defendants will
pay the costs of this appeal.