Himachal Pradesh High Court
Ram Gopal vs Of on 11 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.109 of 2022 a/w RSA Nos. 356 and 412 of 2019 .
Reserved on: 06.12.2023 Date of Decision: 11.01.2024
1. Cr.MMO No.109 of 2022 Ram Gopal ...Petitioner Versus of Vidya Devi ...Respondent
2. RSA No.356 of 2019 Vidya Devi &Ors.
rt ...Petitioners
Versus
Ram Gopal &Anr ...Respondents
______________________________________ 3. RSA No.412 of 2019 Raksha &ors. ...Petitioners Versus Ram Gopal &ors. ...Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes Cr.MMO No.109 of 2019 For the Petitioner : Mr. Nimish Gupta, Advocate.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 11/01/2024 20:34:24 :::CIS 2For the Respondent : Mr. Sanjeev Bhushan, Sr. Advocate, with Mr. Rakesh Chauhan, Advocate.
RSA No.356 of 2019 & RSA No.412 of 2019 .
For the Petitioner : Mr. Sanjeev Bhushan, Sr. Advocate, with Mr. Rakesh Chauhan, Advocate in both the appeals.
For Respondent No.1 : Mr. Nimish Gupta, Advocate in both the appeals of For Respondent No.2 : Mr. Vinod Kumar Thakur, in both the appeals.
rt Mr. Sumesh Sharma, Advocate, for contemnor in CMP No.3649 of 2021 in RSA No.3256 of 2019.
Rakesh Kainthla, Judge The present proceedings have arisen between the parties because of the order dated 05.12.2002 passed by learned CJM Sirmour at Nahan, vide which, Vidya Devi, Kumari Raksha, Surinder and Master Lokesh (petitioners/defendants before learned Trial Court) were awarded maintenance @ ₹ 500/- each from Ram Gopal (respondent/plaintiff before learned Trial Court).
(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. The plaintiff (Ram Gopal) filed a civil suit seeking a declaration that defendant No.1-Vidya Devi is not his legally ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 3 wedded wife, defendants No.2 to 4 are not his daughter and sons and they are the wife, daughter and sons of defendant No.5. They .
are not entitled to get maintenance @₹ 500/- each per month and the order passed by learned CJM, Nahan, learned Sessions Judge, Nahan and this Court are not binding on the plaintiff. A consequential relief of permanent prohibitory injunction for of restraining defendants No.2 to 4 from getting the maintenance @ ₹500/- per month each was also sought. It was asserted that rt plaintiff and defendant No.5 are the sons of Bija Ram(defendant No.5) who is the elder brother of the plaintiff. The marriage between defendant No.5 and defendant No.1 was solemnized as per Hindu Rites, Ritual and Customs about 25 years ago.
Defendant No.1 is the legally wedded wife of defendant No.5.
Defendants No.2 to 4 are children of defendant No.1 and defendant No. 5. Defendant No.2-Raksha was born on 25.10.1987. Defendant No.3 was born on 10.01.1990 and defendant No.4 was born in the year 1992. Defendants No.3 and 4 were admitted to the School by defendant No.5. Defendant No. 5 also showed the other defendants as members of his family in the ration card. The voter list for the year 2002 also shows defendants to be related to each other. The plaintiff was married to Kala Devi in the year 1991. Uma Devi, ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 4 Jyoti, Sarojani, Anjna, Anuj and Sachin were born to the plaintiff and Kala Devi. Defendant No.2 was married to Suresh Chand. The .
name of defendant No.2 was deleted from the family of defendant No.5-Babu Ram and was included in the family of her husband-
Suresh Chand. The plaintiff was working as a daily wage worker in HPPWD and he was regularized as a work-charged Beldar.
of Defendant No.1 filed a petition seeking maintenance for herself and the other defendants from the plaintiff. This petition was rt allowed and maintenance @ ₹500/- each per month was awarded by learned CJM. The revision petition was dismissed by the learned Sessions Judge and Cr.MMO filed before this Court was also dismissed. Defendant No.1 is claiming maintenance based on the order passed by the Criminal Court. Defendant No.1 was requested not to claim any maintenance for herself and Defendant No.4 but she refused. Defendants No. 2 and 3 have become major and they are not entitled to any maintenance; hence, the suit was filed to seek the relief mentioned above.
3. The suit was opposed by defendants No.1 to 4 by filing a written statement taking the preliminary objections regarding lack of maintainability & cause of action, the suit being collusive, the suit being barred by limitation and the question of the validity ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 5 of the marriage having been decided in the previous litigation. The contents of the plaint were denied on merits. It was asserted that .
no marriage was solemnized between defendants No.1 and 5.
Defendant No.1 is the legally wedded wife of the plaintiff.
Defendants Nos.2 to 4 are the daughters and sons of the plaintiff and defendant No.1. The name of defendant No.1 was entered as of the wife of Ram Gopal in the Gram Panchayat and names of defendants no.2 to 4 were recorded as children of the plaintiff.
rt Defendants No. 3 and 4 never got any education from Government Primary School, Beyong Tatwa but they got their initial education from Primary School,Ajroli. The plaintiff in connivance with defendant No.5 procured manipulated applications and ration cards. The documents are forged and not binding on the rights of the defendants. Defendant No.1 is an illiterate lady and wrong entries have been made in the Pariwar Register by taking advantage of her illiteracy. Defendant No.1 was recorded as the wife of Ram Gopal in the record of the tubectomy operation conducted on 14.12.1992. The Courts had discussed the evidence in the previous proceedings and concluded that defendants No.1 is the wife and defendants No. 2 to 4 are the children of the plaintiff.
::: Downloaded on - 11/01/2024 20:34:24 :::CIS 6These findings are binding upon the plaintiff; therefore, it was prayed that the present suit be dismissed.
.
4. A separate written statement was filed by defendant No.5. It was asserted that the marriage of defendant No.5 was solemnized with defendant No.1 as per Hindu Rites and Customs.
Defendant No.1 is legally wedded wife of defendant No.5 and of defendant Nos.2 to 4 are their children. It was prayed that the suit of the plaintiff be decided accordingly.
5. rt A replication denying the contents and affirming those of the plaint was filed.
6. Learned Trial Court framed the following issues on 08.04.2010:-
1. Whether the defendant No.1 is not legally wedded wife of the plaintiff, as alleged? ..OPP
2. Whether defendants No.2 to 4 are not daughter and sons of the plaintiff? ...OPP
3. Whether the defendant No.1 is the wife and defendants No.2 to 4 are sons and daughter of defendant No.5? ...OPP
4. Whether the defendants No.1 to 4 are not entitled to the maintenance amount of ₹500/- per month as per order of ld. CJM, Nahan and subsequent order of Revisional Courts, as alleged? ...OPP ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 7
5. Whether the plaintiff is also entitled to the consequential relief of permanent prohibitory injunction, as prayed for?
...OPP .
6. Whether the suit of the plaintiff is not maintainable in the present form? ...OPD
7. Whether the suit of the plaintiff is hit by doctrine of res judicata, as alleged? ...OPD
8. Whether the suit filed by the plaintiff is collusive with of defendant No.5 and effect thereof? ...OPD
9. Whether the suit is barred by limitation, as alleged? ...OPD rt
10. Relief.
7. The parties were called upon to produce the evidence and the plaintiff examined himself (PW1), Raj Kumar (PW2), Bali Ram (PW3),Satpal(PW4), and Bahadur Singh (PW5). Defendant No.5 examined himself (DW1). Defendants No.1 to 4 examined S.K. Sablok (DW1), Daya Ram (DW2), Kanthi Ram Sharma (DW3), Kedar Singh (DW4), Shiv Ram (DW5), and defendant No.1 Vidya Devi (DW6).
8. Learned Trial Court held that the plaintiff did not mention the date, month and year of the solemnization of the marriage between defendants No.1 and 5. The plaintiff admitted that he had acknowledged the status of defendant No.1 as his wife in the proceedings under Section 125 of Cr.P.C. His plea that he was ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 8 married to Kala Devi was also not proved. Kala Devi did not appear in the witness box to corroborate this fact. The statement of .
defendant No. 5 regarding his marriage with defendant No.1 was not satisfactory. The plea of defendant no.1 that she was married to the plaintiff was more probable than the denial of the plaintiff.
The record was erased and manipulated to show defendant no.1 to of be wife of defendant no.5 and no reliance could be placed upon the same. The report of DNA analysis shows that defendants No.2 to 4 rt are not the biological children of the plaintiff. Hence, issues No. 2, 6, 8 and 9 were answered in affirmative,the rest of the issues were answered in negative and the suit of the plaintiff was dismissed.
9. Being aggrieved from the judgment and decree passed by learned Trial Court, the plaintiff filed an appeal and defendants No.2 to 4 filed cross objections, which were decided by learned Additional District judge, Sirmaur at Nahan. The First Appellate Court held that the entries in the Pariwar Register show defendant No.5 to be the husband of defendant No.1 and defendant No.2 to 4 his children. The entry in the voter list shows defendant No.1 to be the wife of defendant No.5.The interpolation in the entries is not sufficient to reject them. The evidence led by the defendants did not establish the essential ceremony of saptapatigamana and the ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 9 marriage between the plaintiff and defendant No.1 was not proved as per the law. The report of the DNA analysis shows that .
defendants No.2 to 4 are not the children of the plaintiff. Learned First Appellate Court did not concur with the findings recorded by the learned Trial Court and reversed them. Learned First Appellate Court partly allowed the appeal filed by the plaintiff and dismissed of the cross-objections filed by defendants No.2 to 4. A decree was passed that defendant No.1 is not his legally wedded wife and rt defendant No.2 to 4 are not plaintiff's sons and daughter from Vidya Devi.
10. Being aggrieved from the judgment and decree passed by the learned First Appellate Court, two separate appeals have been filed.
11. It has been asserted in the first appeal that the learned First Appellate Court misread the pleadings and the evidence on record. Learned Trial Court had dismissed the suit of the plaintiff based on oral and documentary evidence. Learned First Appellate Court failed to consider the evidence on record and erred in setting aside the judgment and decree passed by the learned Trial Court. It was duly proved that defendant No.1 is the legally wedded wife of ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 10 the plaintiff. This fact was duly established in the criminal proceedings. The suit filed by the plaintiff was barred by the .
limitation and the learned First Appellate Court failed to notice this fact. Therefore, it was prayed that the present appeal be allowed and the judgment and decree passed by the learned First Appellate Court be set aside.
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12. In the second appeal, it was asserted that the learned First Appellate Court misappreciated the pleadings. Plaintiff is the rt biological father of defendants No. 2 to 4 and defendant No.1 is the legally wedded wife of the plaintiff. Defendant No.1 did not supply the sample for comparison of the DNA and the report should not have been relied upon. Hence, it was prayed that the present appeal be allowed and judgment and decree passed by the learned First Appellate Court be set aside.
13. RSA No.412 of 2019 was admitted on the following substantial questions of law on 20.11.2019:
1. Whether the findings of the learned Trial Court as well as the First Appellate Court are result of complete misreading and misinterpretation of the evidence and material on record and against the settled position of law?
2. Whether both the Courts below have erred in holding that the suit of the plaintiff is within limitation, which otherwise is barred by the limitation?::: Downloaded on - 11/01/2024 20:34:24 :::CIS 11
3. Whether Ld. Lower Appellate Court and ld. Trial Court have wrongly concluded solely on the account of DNA profiling, that the appellants No.1 to 3 can be held not to be the children of the plaintiff?
.
4. Whether both the Courts below have wrongly interpreted the Section 112 of the Evidence Act and thus have reached a wrong conclusion?
14. Whereas, RSA No.356 of 2019 was admitted on the following substantial questions of law on 08.01.2020:
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1. Whether Ld. Lower Appellate Court below has misread and mis-appreciated the pleadings of the parties, as also the evidence on record, and on account of such misreading and rt mis-appreciation, the findings of the Ld. 1st Appellate Court are vitiated and deserves to be set aside?
2. Whether the Ld. Lower Appellate Court has failed to take into the consideration of the pleadings of the parties, as also the evidences on record, especially the statements of DW-1, Ex. DW-1/A and Ex. CW-1/A and on account of such misreading and misappreciation, the findings of the Ld. 1st Appellate Court are vitiated and deserves to be set aside?
3. Whether the Ld. Lower Appellate Court has erred in holding that the suit of the plaintiff is within limitation, which otherwise barred by the limitation?
4. Whether the Ld. Lower Appellate Court has failed to take into the consideration that appellant No.1 is the legally wedded wife of plaintiff/respondent as per the pleading of parties on account of such misreading and mis-
appreciation, the findings of the Ld. 1st Appellate Court are vitiated and deserves to be set aside?
5. Whether Ld. Lower Appellate Court has wrongly averred on the account of DNA profiling of the children, the appellant No.1 can be held not to be the wife of the plaintiff?
6. Whether Ld. Lower Appellate Court has wrongly averred on the account that the appellants No.2 to 4 are not the sons ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 12 and daughter of the plaintiff/respondent as observed by the Ld. Trial Court and whether failure to do so has vitiated the findings?
15. The following additional substantial question(s) of law .
was framed on 04.12.2023:-
"Whether the learned First Appellate Court erred in reversing the findings recorded by learned Trial Court by wrongly shifting the burden of proof and thereby recorded the findings which were perverse?"
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16. The DefendentNo.1 filed an application under Section 127 of Cr.P.C. seeking enhancement of the maintenance. This rt application was allowed on 06.06.2018 and the plaintiff was directed to pay a sum of ₹5,000/- per month. A petition under Section 482 of Cr.P.C. was also filed assailing the order dated 06.06.2018 but this Court dismissed the petition on 13.06.2019, in view of the availability of alternative & efficacious remedy to the plaintiff. The plaintiff filed a petition under Section 127 (2) of Cr.P.C. for variation of the maintenance and this application was dismissed by learned Trial Court on 08.05.2020.
17. Being aggrieved from the order dated 08.05.2020, the present petition has been filed under Section 482 of Cr.P.C. read with Article 227 of the Constitution of India. It has been asserted that in view of the judgment of the learned First Appellate Court, ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 13 defendant No.1 is not the legally wedded wife of the plaintiff and she cannot be held entitled to the maintenance. Learned Trial .
Court erred in dismissing the application under Section 127(2) of Cr.P.C. The DNA report proves that the plaintiff is not the biological father of defendants No.2 to 4; therefore, the whole story propounded by defendant No.1 regarding the marriage was of false. Hence, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
18. rt The application is opposed by filing a reply taking preliminary objections that defendant No.1 was unnecessarily dragged into a prolonged and protracted litigation. A huge amount is due to her and the plaintiff and defendant No. 5 are doing everything to deny maintenance to her. The children are also facing a lot of stigma as some of the documents show the name of their father as Ram Gopal and some of the documents show the name of their father as Babu Ram. Defendant No.1 is suffering from cancer and she would not survive in case of denial of maintenance. Learned First Appellate Court erred in reversing the judgment passed by the learned Trial Court. This judgment has been stayed by this Court, hence, defendant No.1 is entitled to the maintenance. The plaintiff was married to defendant No.1. He has ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 14 re-married and he wants to avoid the liability to pay maintenance to defendant No.1. He forged the documents in connivance with .
defendant No.5; hence, it was prayed that the present petition be dismissed.
19. A rejoinder denying the contents of the reply and affirming those of the petition was filed.
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20. I have heard Mr Sanjeev Bhushan, learned Senior Counsel assisted by Mr Rakesh Chauhan, learned counsel for the rt petitioners/defendants. Mr. Nimish Gupta, learned counsel for the plaintiff and Mr. Vinod Thakur, learned counsel for respondent No.2/defendant No.5.
21. Mr. Sanjeev Bhushan, learned Senior Counsel for the petitioners submitted that the learned First Appellate Court erred in reversing the well-reasoned judgment of the learned Trial Court. Learned First Appellate Court erred in holding that the solemnization of the marriage was not proved. The documents were manipulated and came into existence after the commencement of the lis between the parties. They could not be relied upon; therefore, he prayed that the present appeals be ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 15 allowed and judgment and decree passed by learned First Appellate Court be set aside.
.
22. Mr. Nimish Gupta, learned counsel for respondent No. 1/plaintiff supported the judgment and decree passed by the learned First Appellate Court. He submitted that the burden to prove the marriage between the plaintiff and defendant no. 1 was of upon defendant No.1. She had failed to adduce sufficient evidence to establish her marriage. Learned First Appellate Court was right rt in discarding the erroneous findings recorded by the learned Trial Court; therefore, he prayed that the present appeals be dismissed.
23. Mr. Vinod Thakur, learned counsel for defendant No.2/5 supported the submissions made by Mr. Nimish Gupta and prayed that the appeals be dismissed.
24. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
Substantial questions of law No.1, 2 and 4 in RSA 356 of 2019, substantial question of law No.1 in RSA No.412 of 2019 and Additional Substantial questions of law in RSA No. 356 of 2019:
25. All these substantial questions of law relate to appreciation of the evidence regarding the validity of the marriage ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 16 between plaintiff and defendant No.1;therefore, they are being taken up together for convenience.
.
26. Mr Sanjeev Bhushan, learned Senior Counsel referred to findings recorded by the learned First Appellate Court in Para 25 that the positive burden was cast upon defendant No.1 to prove that she is legally wedded wife of the plaintiff and negative burden of was cast upon the plaintiff that defendant No.1 was not his legally wedded wife. Defendant No.1 relied on a copy of the pariwar rt register(Ext. DW2/A), in which, there was tampering, to show that she was the legally wedded wife of Babu Ram. She also relied upon the family planning operation card (Ext. DW1/B) and the testimony of the priest (DW4). He submitted that the suit was filed by the plaintiff and the burden was upon the plaintiff to prove that defendant No.1 was not his legally wedded wife. Defendant No.1 was not supposed to lead any evidence to establish her marriage but she was to rebut the evidence of the plaintiff. Learned First Appellate Court had reversed the burden of proof and this vitiated the findings recorded by learned First Appellate Court. This submission is not acceptable. It has been observed in Sarkar's Law on Evidence (Lexis Nexis 2016) at page 2356 while explaining Section 101 of the Indian Evidence Act that the burden to prove the ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 17 positive lies upon a person and there is no burden to prove the negative. It was observed:
.
This section is based on the rule, ieincumbitprobatio qui dicit, non qui negat-the burden of proving the fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. "It is an ancient rule founded on the consideration of good sense and should not be departed from without strong reasons. [per Lord Maugham in of Constantine Line vs I.S. Corporation (1941) 2 All. E.R. 165, 179]. This rule is derived from Roman Law and is supported not only upon the ground of fairness but also upon that of greater practical difficulties which is involved in proving rt the negative than in proving the affirmative.[Hals 3rdEdn. Vol. 15 para 488]
27. It was laid down by Madhya Pradesh High Court in Chief Engineer v. Mithila Prasad Dwivedi, 2011 SCC OnLine MP 486:
ILR 2011 MP 1945 : (2011) 4 MP LJ 373, that negatives are not to be proved because it is almost impossible to prove a negative fact.
Only the positive assertion can be proved. It was observed:
"3. It has not been disputed that the workman had pleaded that he was not gainfully employed during such a period. The employer has filed this writ petition on the ground that the workman did not prove that he was not gainfully employed. That is not the law. Once the employee pleads that he was not gainfully employed during the period of termination, the burden lies upon the employer to prove when, how and where the employee was gainfully employed during the period he stood terminated.
4. As a general proposition also, normally, the negatives are not proved because it is almost impossible to prove the ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 18 negative fact. It is only the positive assertions which can be proved. To illustrate by example, it is possible to give proof of (positive) that one has committed theft. But it not possible for anyone to give proof of the (negative) that he .
has not committed theft, except perhaps by taking an alibi."
28. The Andhra Pradesh High Court also held in Commissioner of Income-tax v. Lanco Industries Ltd., 1999 SCC OnLine AP 763 : (2000) 1 ALT 746 : (2000) 242 ITR 357 : (2000) 162 of CTR 459 : (2000) 110 Taxman 172, that a person cannot be asked to prove a negative fact. It was observed:
rt "4. Later on, Mr. Koneru addressed a letter dt. 23-5-1994 requesting for payment of the amount covered by the cheque as well the balance amount of ₹ 6.82 lakhs. It was the case of the appellant that the Company did not accept the request of Mr. Koneru and no payment was made to him at all by the date of search or later. Mr. Koneru denied having received any commission. On these facts, the conclusion reached by the Tribunal cannot be said to be without evidence or that no reasonable person could have reached that conclusion. The question of placing the burden of proof to prove a negative fact does not arise. In fact, the Revenue wants the assessee to prove a negative factor that no payment was made after the cheque was returned. The Tribunal was therefore not inclined to take into account the unfructified transaction though clandestine it was."
29. The Hon'ble Supreme Court also held in Laxmibai v.
Bhagwantbuva, (2013) 4 SCC 97: (2013) 2 SCC (Civ) 480: 2013 SCC OnLine SC 101, that a negative fact cannot be proved by adducing evidence. It was observed:
::: Downloaded on - 11/01/2024 20:34:24 :::CIS 19"21. The appellate courts have failed to appreciate that a negative fact cannot be proved by adducing positive evidence. This is not a case where there have been adequate judicial pronouncements on the said issue previously, of .
which the court could have taken judicial notice. Special customs which prevail in a family, a particular community, etc. require strict proof and the respondent-defendants have failed to prove the same."
30. Therefore, it was sufficient for the plaintiff to say that he was not married to defendant No.1 and the burden would shift of upon defendant No.1 to prove her marriage with the original plaintiff. It was laid down by the Hon'ble Supreme Court in Rajbir rt Kaur v. S. Chokesiri and Co., (1989) 1 SCC 19 that the legal burden remains constant and the evidential burden keeps on shifting. It was observed:
"The burden of establishing facts and contentions which support the party's case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according to the weight of the evidence adduced by the party during the trial."
31. Therefore, it was sufficient for the plaintiff to say that defendant no. 1 is not his legally wedded wife and that defendants no. 2 to 4 are not his children and the burden will shift upon the defendants to prove that defendant no. 1 is the legally wedded wife ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 20 of the plaintiff and the defendants no. 2 to 4 are his children.
Hence, there is no infirmity in the approach of the learned First .
Appellate Court.
32. Plaintiff specifically stated in his proof affidavit (Ext.
PW6/A) that the marriage of defendant No.1 was solemnized with defendant No.5. Defendants No.2 to 4 were born to defendant no.1 of and defendant No.5. Defendant No.1 is not his wife. Defendants No.2 to 4 are not his children, thus, the plaintiff had discharged rt the burden placed upon him by denying the relationship between him and defendant No. 1. Hence, the burden will shift upon defendant No.1 to prove the marriage.
33. Kedar Singh (DW4) stated in his proof affidavit (Ext.
DW4/A) that he had solemnized the marriage between plaintiff and defendant No.1 as a Pandit on 07.11.1985 in Village Ajroli.
Dhunta Ram was pandit on behalf of plaintiff Ram Gopal. The marriage was solemnized in a very simple manner. He stated in his cross-examination that he did not know the number of brothers and sisters of Ram Gopal. Vidya Devi has two brothers and four sisters. She was aged about 19 to 20 years at the time of marriage. The age of the groom was 23 to 24 years. He could not ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 21 say that Vidya etc were seven sisters. He knew the family of Vidya for a long time. He denied that Vidya was married to Babu Ram. He .
had never solemnized the marriage of any child aged 10 years.
Dhunta Ram was a Pandit of Beyong and he was Pandit of Ram Gopal. He denied that he was making a false statement.
34. Learned First Appellate Court held that the priest failed of to state even the name of the father of Ram Gopal, who had called him to solemnize the marriage of his son with Vidya Devi. Learned rt First Appellate Court misread the evidence. Kedar Singh (DW4) specifically stated in his proof affidavit (DW4/A) and his cross-
examination that Dhunta Ram was the pandit of Ram Gopal; thus, he never claimed that he was called by Ram Gopal. He was a pandit from the side of the bride and could not have any knowledge regarding the name of the father of the bridegroom and the number of brothers and sisters of the bridegroom.
35. Learned First Appellate Court heavily relied upon the copy of Pariwar Register of Ram Gopal (Ext. PW4/B) which shows the age of Ram Gopal as 37 years in the year 2007,to conclude that the age of Ram Gopal was 15 years in the year 1985 and this ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 22 contradicts the testimony of the priest that the age of the bridegroom was 24 years at the time of the marriage.
.
36. The dispute between the parties arose in the year 2000 when defendants No.1 to 4 filed a petition seeking the maintenance. This petition was allowed in the year 2002. The plaintiff filed a reply, in which he denied that defendant No.1 is his of wife or defendant No. 2 to 4 are his children. Thus, the copy of the Pariwar Register for the year 2007 came into existence after the rt dispute had arisen between the parties. It was laid down by the Hon'ble Supreme Court in State of Bihar v. Radha Krishna Singh, (1983) 3 SCC 118, that the genealogy can be proved by ante litem motam evidence. It was further held that the documents and judgments which are relied upon should not be post-litem motam.
It was observed:
"120. We now pass on to the next limb of the argument of the plaintiffs-respondents viz. that there are unimpeachable documents which throw a flood of light on the case propounded by them in their plaint. In this connection, they have relied on private documents, public documents, recitals in judgments, judgments inter partes as also judgments which are not inter partes sale-deeds, mortgage deeds and other documents of a similar nature which we proceed to discuss hereafter but before doing so we would like to expound the legal position of the admissibility of most of the documents which have been filed by the plaintiffs in support of their case. For this ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 23 purpose, the documents may be classified under three heads:
(1) documents which are per se inadmissible, .
(2) recitals in judgments not inter partes, and (3) documents or judgments post litem motam."
136. It is also well settled that statements or declarations before persons of competent knowledge made ante litem motam are receivable to prove ancient rights of a public or general nature vide Halsbury's Laws of England (Vol. 15: 3rd Edn. p. 308) where the following statement is to be found:
of "Declarations by deceased persons of competent knowledge made ante litem motam, are receivable to prove the ancient right of a public or general nature. The admission of declarations as to those rights is rt allowed partly on the ground of necessity since without such evidence ancient rights could rarely be established; and partly on the ground that the public nature of the rights minimises the risks of misstatement."
137. The admissibility of such declaration is however considerably weakened if it pertains not to public rights but to purely private rights. It is equally well settled that declarations or statements made post litem motam would not be admissible because in cases or proceedings taken or declarations made ante litem motam, the element of bias and concoction is eliminated. Before, however, the statements of the nature mentioned above can be admissible as being ante litem motam they must be not only before the actual existence of any controversy but they should be made even before the commencement of legal proceedings. In this connection, in para 562 at p. 308 of Halsbury's Laws of England, the following statement is made:
"To obviate bias, the declarations must have been made ante litem motam, which means not merely before the commencement of legal proceedings, but ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 24 before even the existence of any actual controversy, concerning the subjectmatter of the declarations. So strictly has this requirement been enforced that the fact that such a dispute was unknown to the .
declarant, or was fraudulently begun with a view to shutting out his declarations, has been held immaterial."
138. This position however cannot hold good of statements made post litem motam which would be clearly inadmissible in evidence. The reason for this rule seems to be that after a dispute has begun or a legal proceeding is of about to commence, the possibility of bias, concoction or putting up false pleas cannot be ruled out. This rule of English law has now been crystallised as one of the essential principles of the Evidence Act on the question of rt the admissibility of judgments or documents. M.M. Prasad, J., has dealt with this aspect of the matter fully and we entirely agree with the opinion expressed by him on this point. In fact, Section 32(5) of the Evidence Act itself fully incorporates the doctrine of post litem motam, the relevant portion of which may be extracted thus:
"32. Cases in which a statement of relevant fact by a person who is dead or cannot he found, etc. is relevant.--
*** (5) ... the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised."
(emphasis supplied)
139. In Kalka Parshad v. Mathura Parshad [ILR (1908) 30 All 510: 35 IA 166: 1 IC 175] the Privy Council refused to accept a pedigree which was of the year 1892 because the controversy had originated in the year 1891, that is to say, a year before the pedigree was filed. In this connection, commenting on the genealogy relied upon by the plaintiff Their Lordships observed as follows:
::: Downloaded on - 11/01/2024 20:34:24 :::CIS 25"Taking them in the reverse order, the last is inadmissible, having been made post litem motam... In order to make the statement inadmissible on this ground, the same thing must be in controversy before .
and after the statement is made."
140. In Hari Baksh v. Babu Lal [AIR 1924 PC 126: 51 IA 163: 83 IC 418] Their Lordships observed as follows:
"It appears to Their Lordships that these statements of Bishan Dayal who was then an interested party in the disputes and was then taking a position adverse to Hari Baksh cannot be regarded as evidence in this suit of and are inadmissible."
141. It appears, in that case, one Bishan Dayal who was the defendant in a suit for partition which was brought on rt August 7, 1908, made a will on November 26, 1908, that is to say, about two and a half months after the suit was filed. The statement of Bishan Dayal in the suit of 1908 was sought to be relied on but the Privy Council held the statement to be inadmissible because he had already become an interested party and the case, therefore, had been hit by the doctrine of post litem motam.
142. In DolgobindaParicha v. Nimai Charan Misra [AIR 1959 SC 914: 1959 Supp 2 SCR 814: 1960 SCJ 879] this Court held that the statement in question was admissible because it was made before the question in dispute had arisen. In other words, this Court held that in the facts and circumstances of that case, the statement and the pedigree relied upon were made ante litem motam and not post litem motam, for if the latter had been the case, the document would have become inadmissible and in this connection, the court observed thus:
"That being the position, the statements as to pedigree contained in Ex. I were made before the precise question in dispute in the present litigation had arisen."
143. In Kalidindi Venkata Subbaraju v. Chintalapati Subbaraju[AIR 1968 SC 947 : (1968) 2 SCR 292 : (1968) 2 SCJ ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 26 513] while construing the provisions of sub-section (5) of Section 32 of the Evidence Act this Court observed as follows:
"Both sub-sections (5) and (6) of Section 32, as .
aforesaid, declare that in order to be admissible the statement relied on must be made ante litem motam by persons who are dead i.e. before the commencement of any controversy actual or legal upon the same point."
144. Relying on an earlier case of the Privy Council this Court further observed thus:
of "In Kalka Parshad v. Mathura Parshad [(1908) 35 IA 166: ILR (1908) 30 All 510: 1 IC 175] a dispute arose in 1896 on the death of one Parbati. In 1898 in a suit rt brought by one Sheo Sahai, a pedigree was filed. After this, the suit from which the appeal went up to the Privy Council was instituted in 1901. It was held there that the pedigree filed in 1898 was not admissible having been made post litem motam."
145. Thus, summarising the ratio of the authorities mentioned above, the position that emerges and the principles that are deducible from the aforesaid decisions are as follows:
(1) A judgment in rem e.g. judgments or orders passed in admiralty, probate proceedings, etc., would always be admissible irrespective of whether they are inter partes or not.
(2) Judgments in personam not inter partes are not at all admissible in evidence except for the three purposes mentioned above.
(3) On a parity of aforesaid reasoning, the recitals in a judgment like findings given in appreciation of evidence made or arguments or genealogies referred to in the judgment would be wholly inadmissible in a case where neither the plaintiff nor the defendant were parties.::: Downloaded on - 11/01/2024 20:34:24 :::CIS 27
(4) The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little.
.
(5) Statements, declarations or depositions, etc., would not be admissible if they are post litem motam."
37. In the present case, the matriculation certificate of Raksha Devi (Ext. PX) came into existence in the year 2006, and of Voter List (Ext. PW2/A) came into existence in the year 2002. Copy of Pariwar Register (Ext. PW4/B) was issued on 19.09.2007.
rt Therefore, all these documents were post-litem motam and would be inadmissible and no reliance could have been placed upon them to establish/deny the relationship between the plaintiff and defendant No. 1.
38. Learned First Appellate Court held that every marriage between two Hindus should have three ceremonies. 1. Bethrotal. 2.
Recital of holy text before the sacred fire and 3. saptapatigamana.
If there is a custom that saptapatigamana is not essential to complete the marriage then such a custom has to be proved. The priest did not state whether there was a recital of holy text before the sacred fire and whether the plaintiff and defendant no.1 had performed saptapatigamana or not; therefore, his testimony was ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 28 insufficient to prove the marriage between the plaintiff and defendant No.1.
.
39. The learned First Appellate Court misdirected itself while discussing the essential conditions for a marriage. Section 7 of the Hindu Marriage Act, 1956 provides that a marriage may be solemnized as per the customary rites and ceremonies of either of party thereto. Where such rites and ceremonies include saptapadi(i.e. the taking of 7 steps by the bridegroom and the bride rt jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. Therefore, the Hindu Marriage Act does not provide that saptapatigamana is an essential part of the Hindu Ceremony in the absence of which, there cannot be a valid marriage. It only provides that where there is a custom of saptapatigamana, the marriage will become complete on taking the seventh step. Learned First Appellate Court reversed this position and held that there has to be a custom that saptapatigamana is not necessary to complete the marriage. The position, as noticed above, is otherwise. The custom of saptapatigamana has to be proved and not the absence of the custom; hence, the learned First Appellate Court erred in discarding the testimony of the priest on irrelevant consideration.
::: Downloaded on - 11/01/2024 20:34:24 :::CIS 2940. Daya Ram (DW2) stated that he had brought the record from 1979 till 31.12.1990. As per the record, Babu was prefixed to .
Ram and the word which suffixed Ram was erased. Similar alterations were made in the name of Raksha. Satya Devi, Murato Devi and Tulsa Devi were shown to be the wives of Babu Ram. He stated in his cross-examination that there were some cuttings in of the register brought by him. He volunteered to say that the names of those persons were deleted who had left. He admitted that this rt cutting is made as per the information supplied by a person. He could not say that he had made the cuttings. The register is kept in the custody of the Secretary. He denied that this erasure was made to benefit the plaintiff.
41. The Learned Trial Court held that the testimony of this witness corroborates the version of defendant No.1 and the alteration was visible to the naked eye. The name of the plaintiff was initially recorded in the Panchayat Record as husband of the defendant no. 1 but it was altered to show that defendant No.5 is the husband of defendant No.1. Learned First Appellate Court held that the statement of this witness is silent regarding the actual word, which was erased from the Register. It cannot be said that Ram Gopal was changed to Babu Ram. Defendant No.1 was bound ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 30 to send the document for comparison and to find out what was written on the erased portion. The document was a photocopy and .
no certified copy was retained.
42. Learned First Appellate Court erred in holding that the document did not help defendant No.1 and could not be relied upon as it was only a photocopy. This document was proved by of examining a custodian of the record who had brought the original record to the Court. Thus, the original record was produced and rt the Court had only retained a photocopy for which the defendant no. 1 cannot be faulted. Defendant No.1 had done what was permissible under the law by producing the original document before the Court. The Court was bound to retain the photocopy after comparing it with the original as per Order XIII Rule 5 of CPC.
If the Court had not complied with the provision of the CPC, defendant no. 1 could not have been penalised for the same.
43. The entry proves that initially the name of Babu Ram was not mentioned. It is also apparent from the bare perusal of Exhibit DW2/A, wherein Babu is written in a different handwriting than Ram. Even the spelling of Babu against the names of Vidya and Raksha are different. In addition to this, Satya Devi, Murto ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 31 Devi and Tulsa Devi are shown to be the wives of Babu Ram. The documents were prepared before the controversy had arisen .
between the parties and this document clearly shows that before the controversy, Babu Ram was not recorded as the husband of defendant No.1. Therefore, even if it is not proved that Vidya was shown to be the wife of Ram Gopal, it is proved by this document of that Babu Ram was not originally recorded as the husband of Vidya and this document falsifies the version of defendant No.1 rt and the plaintiff that defendant No.1 is the wife of defendant No.5.
44. S.K. Sablok, retired BMO stated that the names of the woman who was operated on and her husband were mentioned in the Card of Primary Health Center Haripur dhar dated 19.12.1992.
He stated in his cross-examination that it does not bear the signatures of Medical Officer, Vidya Devi and Ram Gopal.
45. Kanthi Ram Sharma (DW3) did not bring the original record as it was not traceable.
46. The document (Ext.DW1/B) shows that Vidya Devi wife of Ram Gopal resident of Village Beyong had undergone a sterilization operation on 14.12.1992 after two male and one female child. It is signed by the Medical Officer. This document ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 32 clearly shows that Vidya Devi was described as the wife of Ram Gopal in the year 1992. This document was also prepared before .
the controversy between the parties had arisen. It mentions that Vidya Devi had three children, two male and one female, which is also as per the record because Vidya Devi has one female child and two male children. This document was prepared by a public of official in the discharge of his official duty and is per se admissible.
Learned First Appellate Court held that this document was not rt proved as per law. Merely marking a document does not dispense with its proof. It does not bear the signatures of Ram Gopal and the Doctor who had operated upon Vidya Devi was not examined.
This finding is not correct. Dr. S.K. Sablok had specifically stated that he was posted as BMO, Sangrah and as per the card, the operation was conducted. He has nowhere stated that this document was forged. He stated that this card was probably filled by Dr. R.C. Mahindaru, which shows that the document is not forged. Hence, there was no reason to doubt the entries in the Card.
47. The statement contained in the card that Vidya Devi is the wife of Ram Gopal-plaintiff before the controversy had arisen ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 33 corroborates the version of defendant No.1 that she was married to the plaintiff.
.
48. Shiv Ram (DW5) father of defendant No.1 stated that the marriage between Vidya Devi and Ram Gopal was solemnised as per Hindu Rites and Customs. Kedar Nath was pandit on his side and Dhontu Ram was the pandit on the side of the bridegroom. He of stated in his cross-examination that Vidya Devi is aged about 38 years. She was married on 07.11.1985. He denied that Vidya Devi rt was married to Babu Ram. He volunteered to say that Babu Ram was already married. He denied that Ram Gopal was aged 12 years on the date of the solemnization of the marriage. The name of Vidya Devi was deleted from his family register. He admitted that defendants No.2 to 4 were born to Vidya Devi after the marriage.
He had made a report to the Panchayat Officer regarding the wrong entry of Babu Ram. Ram Gopal had got the children admitted to the school. He denied that Kala Devi was the wife of Ram Gopal. He volunteered to say that Ram Gopal married Vidya Devi and thereafter brought Kala Devi. He did not know that Ram Gopal had married Kala Devi and six children were born to them.
::: Downloaded on - 11/01/2024 20:34:24 :::CIS 3449. The testimony of this witness is also as per the statement of the priest. This witness has also stated that Dhontu .
Ram was the priest on the side of the bridegroom and Kedar Singh was the pandit which corroborates the testimony of Kedar Singh that he was the pandit on behalf of the bride.
50. Babu Ram (DW1) stated that the plaintiff is 10 years of younger than him. The marriage of Vidya Devi was solemnized with him (Babu Ram) as per Hindu Rites and Customs about 28 rt years ago. Defendants No. 2 to 4 were born to him and Vidya Devi.
He stated in his cross-examination that he had married only once.
Satya Devi, Murto Devi and Tulsa Devi were wrongly recorded as his wives. He admitted that Vidya Devi filed a petition for maintenance in which, she was treated to be the wife of Ram Gopal. He had not objected to the panchayat record, in which Vidya Devi has been shown as the wife of Ram Gopal. Dhontu Ram Pandit resident of Beyong was the Pandit in the marriage. Only three persons namely he, his father and Lachhi Ram attended the marriage. He denied the portions A to A, B to B, C to C and D to D of his previous statement recorded in the proceedings under Section 125 Cr.P.C. wherein it was mentioned that the marriage was solemnized 18 years before the date of deposition (02.09.2002) ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 35 and he had carried the barat having 8 to 9 persons. He could not say the month and date of the marriage and Kedar Singh was .
pandit in the marriage.
51. A perusal of these two statements shows that he had given different versions before the Court regarding the number of persons who had attended the marriage, the month and year of of the marriage and the pandit who had solemnized the marriage. All these facts are intricately connected to the marriage and any rt discrepancy in them will make it difficult to place reliance on his testimony that marriage was solemnized between him and Vidya Devi as per Hindu Rites and Customs.
52. Bahadur Singh also deposed about the paternity of Surinder. Since defendants No.2 to 4 were not found to be the biological children of the plaintiff-Ram Gopal as per the report of the DNA analysis, therefore, the testimonies of these witnesses are not relevant.
53. It was submitted that the entry of parentage of Babu, Surinder as Babu Ram falsifies the version of defendant No.1 that she was married to the plaintiff and corroborates the version of defendant No.5 that defendant No.1 was married to him. This ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 36 submission is not acceptable. Bali Ram (PW3) stated that the names of Surinder and his father were recorded in different inks .
whereas other names were in the same ink which casts doubt regarding the correctness of these entries. Further, Bahadur Singh (PW5) stated that he had brought an application form; however, it has not been proved in whose handwriting this application form of was filled. Thus, the application form is not proved as per the law.
54. The plaintiff had also produced Raj Kumar who proved rt the voter list and Satpal who proved the panchayat record;
however, as already stated, these documents are post-litem motam and inadmissible.
55. Ram Gopal (PW1) reiterated the contents of the plaint in his proof affidavit. He stated in his cross-examination that he was not aware that Satya Devi, Murto Devi and Tulsa were recorded as wives of Babu Ram. Babu Ram had made a similar statement. Their testimonies clearly show that they do not acknowledge the correctness of the entries regarding other wives of Babu Ram. A person cannot take the benefit of a document and at the same time discard the same. A person cannot blow hot and cold in the same breath and cannot approbate and reprobate at the ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 37 same time. It was laid down by the Hon'ble Supreme Court in Union of India v. N. Murugesan, (2022) 2 SCC 25 : (2022) 1 SCC (Civ) .
711 : (2022) 1 SCC (L&S) 328: 2021 SCC OnLine SC 895 that a person cannot claim under an instrument while questioning the same. It was observed at page 38:
Approbate and reprobate of
26. These phrases are borrowed from the Scots law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt rt into the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt into this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally.::: Downloaded on - 11/01/2024 20:34:24 :::CIS 38
56. Similar is the judgment in Lakshmi Ammal and Ors. vs. Ammayi Ammal and Ors. (29.04.2022 - MADHC):
.
MANU/TN/3281/2022, wherein it was observed:
"19. In the considered view of this Court, the very fact that the Ex.A1 settlement deed was placed before the Tribunal by Perumal Chettiar and the Tribunal acted upon this document while passing orders on 9.6.1991, is ample proof that the settlement deed has been acted upon. Just because of Perumal Chettiar had chosen to deal with the properties inspite of executing the settlement deed in favour of his daughters, does not in any way revive the lost right of Perumal Chettiar. A person cannot be allowed to make a rt judicial or a quasi-judicial forum to act upon a document in order to get a favourable order and thereafter disown the document and continue to deal with the property. A competent Civil Court cannot give its approval for such dishonest conduct and sanctify his illegal act. The foundation of the law of election is that a person cannot accept and reject the same instrument. This is popularly referred to in the legal parlance as approbate and reprobate.
The law does not permit a person to both approbate and reprobate.
20. This Court had an occasion to deal with this issue in G. Nagaiyan and Another Vs. K. Palanivel, S.A. No. 125 of 2014, by judgment dated 29.3.2022. The relevant portions in the judgment are extracted hereunder:
"24. It is a well-established rule in equity that a man cannot approbate and reprobate. The general rule, which originated from Scotland and is the foundation of the principle of election, was set out by Lord Redesdale in the early case of Birmingham v. Kirwan (1805 2 Sch. & Lef. 449) in the following way:
"The general rule is that a person cannot accept and reject the same instrument, and this is the foundation of the law of election."::: Downloaded on - 11/01/2024 20:34:24 :::CIS 39
25. Years later in Smith v. Baker [[L.R.] 8 C.P. 350], Honeyman, J., explained the doctrine thus:
"As to the general rule of law, there is no dispute. A man cannot at the same time blow .
hot and cold. He cannot say at one time that the transaction is valid, and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and at another time say it is void for the purpose of securing some further advantage."
26. In Verschures Creameries Limited v. Hull and of Netherlands Steamship Company [[1921] 2 K.B. 608], the Court of Appeal noted that the doctrine of election was not confined to instruments alone. These principles were finally approved by the House of rt Lords in Lissenden v. C.A. Bosch Limited [[1940] A.C. 412], where Viscount Maugham pointed out as under:
"My Lords, I think our first inquiry should be as to the meaning and proper application of the maxim that you may not both approbate and reprobate. The phrase comes to us from the northern side of the Tweed, and there it is of comparatively modern use. It is, however, to be found in Bell's Commentaries, 7th ed., vol. i., pp. 141-2; and he treats "the Scottish doctrine of approbate and reprobate" as "approaching nearly to that of election in English jurisprudence." It is, I think, now settled by decisions in this House that there is no difference at all between the two doctrines."
27. Turning to its application to Wills and other instruments, Viscount Maugham opined thus:
"The doctrine is founded on the intention, explicit or presumed, of the testator in the case of a will and of the author or donor in the case of instruments, namely, the intention that a ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 40 man shall not claim under the will or instrument and also claim adversely to it."
28. These principles have been consistently followed in this country. In R.N. Gosain v. Yashpal Dhir, .
MANU/SC/0078/1993 : (1992) 4 SCC 683, the Supreme Court has observed as under:
"Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot of say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for rt the purpose of securing some other advantage". [See: Verschures Creameries Ltd. v.
Hull and Netherlands Steamship Co. Ltd. [[1921] 2 K.B. 608, 612 (CA)], Scrutton, L.J.]"
29. In Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil Aviation, MANU/SC/0543/2011 :
(2011) 5 SCC 435, the Supreme Court has held thus:
"12. The doctrine of election is based on the rule of estoppel--the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity..... Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolonging proceedings unnecessarily."
30. In Union of India v. N. Murugesan (MANU/SC/0809/2021 : (2022) 2 SCC 25), the English decisions on the point were cited with approval by the Supreme Court. It is important to notice that the ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 41 Supreme Court has recognised it as a principle emanating out of the common law and not from the statutory text of Section 115 of the Evidence Act. This is clear from the following observations:
.
"A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, of thereafter questions the other part. An element of fair play is inbuilt into this principle. It is also a species of estoppel dealing with the rt conduct of a party."
31. In its latest decision in Premalata @ Sunita v. Naseeb Bee (Civil Appeal Nos. 2055-2056 of 2022), decided on 23.03.2022, the Hon'ble Supreme Court applied the doctrine of approbate and reprobate holding that a litigant cannot be permitted to take two different/contradictory stands before two different forums. The Hon'ble Supreme Court has observed as under:
The respondents - original defendants cannot be permitted to take two contradictory stands before two different authorities/courts. They cannot be permitted to approbate and reprobate once the objection raised on behalf of the original defendants that the Revenue Authority would have no jurisdiction came to be accepted by the Revenue Authority/Tahsildar and the proceedings under Section 250 of the MPLRC came to be and thereafter when the plaintiff instituted a suit before the Civil Court it was not open for the respondents - original defendants thereafter to take an objection that the suit before the Civil Court would also be barred in view of Section 257 of the MPLRC."::: Downloaded on - 11/01/2024 20:34:24 :::CIS 42
32. In the considered view of this Court, the respondent is not entitled to claim for any right or title over the 'C' schedule property. There is no requirement for this Court to undertake the exercise .
of finding out how much of property was acquired and how much was left out by the Government. This is in view of the fact that the respondent went before the competent Civil Court and obtained a Decree on the ground that no right or title was conveyed to him under the sale deed dated 27.8.1974 marked as Ex.B3. This crucial fact was lost sight of by both the Courts of below and both the Courts unnecessarily undertook the exercise of finding out the ownership of the respondent over the 'C' schedule property. The third substantial question of law is answered accordingly. rt
21. The principle of law that was discussed in the above judgment will squarely apply to the facts of the present case. The settlement deed marked as Ex.A1 was presented before the Land Reforms Tribunal by Perumal Chettiar and he had obtained a favourable order and that fact by itself will amount to acting upon Ex.A1 settlement deed. The fact that the said Perumal Chettiar dealt with the properties even thereafter, is irrelevant and not binding on his daughters in whose favour the properties were settled. The first and second substantial questions of law and the first additional substantial question of law are answered accordingly in favour of the appellants.
57. It was laid down by the Hon'ble Supreme Court in Bhagwat Sharan v. Purushottam, (2020) 6 SCC 387: 2020 SCC OnLine SC 348 that a person claiming under a Will cannot challenge the remaining portion of the Will. It was observed at page 397:
"26. It is also not disputed that the plaintiff and Defendants 1 to 3 herein filed suit for eviction of an occupant in which he claimed that the property had been bequeathed to him by ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 43 Hari Ram. According to the defendants, the plaintiff having accepted the will of Hariram and having taken benefit of the same, cannot turn around and urge that the will is not valid and that the entire property is a joint family property. The .
plaintiff and Defendants 1 to 3 by accepting the bequest under the will elected to accept the will. It is a trite law that a party cannot be permitted to approbate and reprobate at the same time. This principle is based on the principle of the doctrine of election. In respect of wills, this doctrine has been held to mean that a person who takes benefit of a portion of the will cannot challenge the remaining portion of of the will. In Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd. [Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 rt SCC 470 : (2013) 3 SCC (Civ) 153: AIR 2013 SC 1241], this Court made an observation that a party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one party knowingly accepts the benefits of a contract or conveyance or an order, it is estopped to deny the validity or binding effect on him of such contract or conveyance or order.
27. The doctrine of election is a facet of the law of estoppel. A party cannot blow hot and blow cold at the same time.
Any party which takes advantage of any instrument must accept all that is mentioned in the said document. It would be apposite to refer to the treatise Equity--A Course of Lecturesby F.W. Maitland, Cambridge University, 1947, wherein the learned author succinctly described the principle of election in the following terms:
"The doctrine of election may be thus stated: that he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it...."
This view has been accepted to be the correct view in Karam Kapahi v. Lal Chand Public Charitable Trust [Karam Kapahi v. Lal Chand Public Charitable Trust, (2010) 4 SCC 753 : (2010) 2 ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 44 SCC (Civ) 262]. The plaintiff having elected to accept the will of Hari Ram, by filing a suit for eviction of the tenant by claiming that the property had been bequeathed to him by Hari Ram, cannot now turn around and say that the .
averments made by Hari Ram that the property was his personal property, is incorrect."
58. Therefore, it is not permissible for them to say that the part of the document is correct regarding the name of the husband of defendant No.1 but the entries are incorrect regarding the of names of wives of defendant No.5.
59. Learned Trial Court had rightly noticed that the rt plaintiff had not examined Dhontu Ram, the priest who had solemnized the marriage between defendant No.1 and defendant No.5. He was the best person to depose about the parties to the marriage and in the absence of his examination, the version of the plaintiff that defendant No.1 is the wife of defendant No.5 is not acceptable.
60. Thus, on the balance of probability, the version of defendant No.1 that she is the wife of the plaintiff was acceptable, whereas the version of defendant No.5 that defendant No.1 is the wife of defendant No.5 is not probable. Learned First Appellate Court relied upon the post-litem motam documents. It also discarded the relevant evidence and misdirected itself while ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 45 appreciating the requirement of the marriage. Therefore, the substantial questions of law are answered accordingly.
.
Substantial question of law No.2 in RSA No.412 of 2019 and Substantial question of law No.3 in RSA No.356 of 2019:
61. Both these questions of law relate to the question of limitation and are being taken up together.
of
62. The learned Trial Court held that the period of limitation has to be calculated from the order passed by learned rt CJM, wherein, it was held that defendant No.1 is the legally wedded wife of the plaintiff. The cause of action did not remain suspended from the date of passing of the order by learned CJM and could not have been calculated with reference to the order passed by the High Court. Learned First Appellate Court did not deal with this issue. Article 58 of the Limitation Act deals with the limitation for filing a suit for declaration and provides the period of three years from the date when the right to sue first accrues. It was held in Khatri Hotel Private Limited versus Union of India, 2011 (9) SCC 126 that there is a distinction between Article 58 and Article 120 of the Limitation Act because Article 58 mentions when the right to sue first accrues as the starting point of limitation, whereas, the word first is not mentioned in Article 120.
::: Downloaded on - 11/01/2024 20:34:24 :::CIS 46Therefore, if there are multiple cause of action, the plaintiff is bound to file the suit when his right is first infringed. In the said .
case, a written statement denying the contents of the plaint was filed and it was held that the cause of action will start from the date of filing of the written statement. It was observed:
"25. Article 58 of the Schedule to the 1963 Act, which of has a bearing on the decision of this appeal, reads as under:
rt "THE SCHEDULE
PERIOD OF LIMITATION
[See Sections 2(j) and 3]
First Division--Suits
Descriptio Period Time
n of suit of from
limitatio which
n period
begins
to run
* * *
PART III--Suits Relating To Declarations * * *
58. To obtain Three When any other years the declaratio right to n. sue first accrues ."
26. Article 120 of the Schedule to the Limitation Act, 1908 (for short "the 1908 Act") which was interpreted in the judgment relied upon by Shri Rohatgi reads as under:
::: Downloaded on - 11/01/2024 20:34:24 :::CIS 47"Description of suit Period of Time from limitation which period begins to run * * * .
120. Suit for which no Six years When the period of limitation is right to sue provided elsewhere in accrues."
this Schedule.
27. The differences which are discernible from the language of the above reproduced two articles are:
of
(i) The period of limitation prescribed under Article 120 of the 1908 Act was six years whereas the period of limitation prescribed rt under the 1963 Act is three years and,
(ii) Under Article 120 of the 1908 Act, the period of limitation commenced when the right to sue accrues. As against this, the period prescribed under Article 58 begins to run when the right to sue first accrues.
28. Article 120 of the 1908 Act was interpreted by the Judicial Committee in Bolo v. Koklan [(1929-30) 57 IA 325 : AIR 1930 PC 270] and it was held: (IA p. 331) "There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted."
The same view was reiterated in Annamalai Chettiar v. Muthukaruppan Chettiar [ILR (1930) 8 Rang 645] and Gobinda Narayan Singh v. Sham Lal Singh [(1930-31) 58 IA 125] .
29. In Rukhmabai v. Lala Laxminarayan [AIR 1960 SC 335 : (1960) 2 SCR 253] , the three-Judge Bench noticed the earlier judgments and summed up the ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 48 legal position in the following words: (Rukhmabai case [AIR 1960 SC 335 : (1960) 2 SCR 253] , AIR p. 349, para 33) "33. ... The right to sue under Article 120 of the .
[1908 Act] accrues when the defendant has clearly or unequivocally threatened to infringe the right asserted by the plaintiff in the suit.
Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a of particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or rt jeopardizes the said right."
31. In the light of the above, it is to be seen as to when the right to sue first accrued to the appellants. They have not controverted the fact that in the written statement filed on behalf of DDA in Suit No. 2576 of 1990, Lal Chand v. MCD, it was clearly averred that the suit land belonged to the Gaon Sabha and with the urbanisation of the rural areas of Village Kishangarh vide Notification dated 28-5-1966 issued under Section 507 of the DMC Act, the same automatically vested in the Central Government and that vide Notification dated 20-8-1974 issued under Section 22(1) of the DD Act, the Central Government transferred the suit land to DDA for development and maintaining as green. This shows that the right, if any, of the appellants over the suit land stood violated with the issue of notification under Section 507 of the DMC Act and, in any case, with the issue of notification under Section 22(1) of the DD Act. Even if the appellants were to plead ignorance about the two notifications, it is impossible to believe that they did not know about the violation of their so-called right over the suit land despite the receipt of copy of the ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 49 written statement filed on behalf of DDA in December 1990. Therefore, the cause of action will be deemed to have accrued to the appellants in December 1990 and the suit filed on 14-2-2000 was clearly barred by .
time."
63. This position was reiterated in L.C. Hanumanthappa v.
H.B. Shivakumar, (2016) 1 SCC 332 : (2016) 1 SCC (Civ) 310 : 2015 of SCC OnLine SC 759, wherein it was held that the first denial will be sufficient to unable the plaintiff to file a suit. In this case also, a rt written statement was filed and it was held that it has the effect of denial of the title of the plaintiff and the plaintiff was bound to file the suit within three years from the date of the filing of the written statement or it would be barred by limitation. It was held:-
"13. We have heard the learned counsel for the parties. It is not disputed that Article 58 of the Limitation Act would apply to the amended plaint inasmuch as it sought to add the relief of declaration of title to the already existing relief for grant of permanent injunction. In Khatri Hotels (P) Ltd. v. Union of India [(2011) 9 SCC 126 : (2011) 4 SCC (Civ) 484] , this Court while construing Article 58 of the Limitation Act held as follows: (SCC pp. 138-39, paras 25-30) ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 50 "25. Article 58 of the Schedule to the 1963 Act, which has a bearing on the decision of this appeal, reads as under:
'THE SCHEDULE .
PERIOD OF LIMITATION
[See Sections 2(j) and 3]
First Division--Suits
Description Period of Time from which period
of suit limitation begins to run
* * *
PART III -- Suits
of
Relating to Declarations
* * *
8. To obtain any Three When the right to
other declaration. years sue first accrues.'
26. Article
rt 120 of the Schedule to the
Limitation Act, 1908 (for short 'the 1908 Act') which was interpreted in the judgment relied upon by Shri Rohatgi reads as under:
'Description of suit Period of Time from which period
limitation begins to run
* * *
120. Suit for which Six years When the right to sue accrues
no period of
limitation is
provided
elsewhere in
this Schedule.
27. The differences which are discernible from the language of the above reproduced two articles are:
(i) The period of limitation prescribed under Article 120 of the 1908 Act was six years whereas the period of limitation prescribed under the 1963 Act is three years, and
(ii) Under Article 120 of the 1908 Act, the period of limitation commenced when the right to sue accrues. As against this, the period prescribed under Article 58 begins to run when the right to sue first accrues.::: Downloaded on - 11/01/2024 20:34:24 :::CIS 51
28. Article 120 of the 1908 Act was interpreted by the Judicial Committee in Bolo v. Koklan [(1929-30) 57 IA 325 : AIR 1930 PC 270 : (1930) 32 LW 338] and it was .
held: (IA p. 331) 'There can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.' of The same view was reiterated in Annamalai Chettiar v. A.M.K.C.T. rt Muthukaruppan Chettiar [ILR (1930) 8 Rang 645 : (1930-31) 58 IA 1 : (1931) 33 LW 30] and Gobinda Narayan Singh v. Sham Lal Singh [(1930-31) 58 IA 125 : (1931) 33 LW 707] .
29. In Rukhmabai v. Lala Laxminarayan [AIR 1960 SC 335 : (1960) 2 SCR 253] , the three- Judge Bench noticed the earlier judgments and summed up the legal position in the following words: (AIR p. 349, para 33) '33. ... The right to sue under Article 120 of the [1908 Act] accrues when the defendant has clearly or unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 52 threat effectively invades or jeopardizes the said right.'
30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a .
departure from the language of Article 120 of the 1908 Act. The word 'first' has been used between the words 'sue' and 'accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, of successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of rt limitation counted from the day when the right to sue first accrued."
14. Given this statement of the law, it is clear that the present amendment of the plaint is indeed time- barred in that the right to sue for declaration of title first arose on 16-5-1990 when in the very first written statement the defendant had pleaded, in Para 13 in particular, that the suit for injunction simpliciter is not maintainable in that the plaintiff had failed to establish title with possession over the suit property. The only question that remains to be answered is in relation to the doctrine of relation back insofar as it applies to amendments made under Order 6 Rule 17 of the Code of Civil Procedure.
29. Applying the law thus laid down by this Court to the facts of this case, two things become clear. First, in the original written statement itself dated 16-5- 1990, the defendant had clearly put the plaintiff on notice that it had denied the plaintiff's title to the suit property. A reading of an isolated paragraph in the written statement, namely, Para 2 by the trial court ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 53 on the facts of this case has been correctly commented upon adversely by the High Court in the judgment under appeal. The original written statement read as a whole unmistakably indicates .
that the defendant had not accepted the plaintiff's title. Secondly, while allowing the amendment, the High Court in its earlier judgment dated 28-3-2002 [L.C. Hanumanthappa v. H.B. Shivakumar, RFA No. 415 of 1999, decided on 28-3-2002 (KAR)] had expressly remanded the matter to the trial court, allowing the defendant to raise the plea of limitation.
of There can be no doubt that on an application of Khatri Hotels (P) Ltd. [(2011) 9 SCC 126 : (2011) 4 SCC (Civ) 484] , the right to sue for declaration of title first arose on the facts of the present case on 16-5-1990 rt when the original written statement clearly denied the plaintiff's title. By 16-5-1993 therefore a suit based on declaration of title would have become time-barred. It is clear that the doctrine of relation back would not apply to the facts of this case for the reason that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away. This being so, we find no infirmity in the impugned judgment [H.B. Shivakumar v. L.C. Hanumanthappa, 2015 SCC OnLine Kar 3860] of the High Court. The present appeal is accordingly dismissed."
64. In the present case also, once the defendants No.2 to 4 filed a claim for maintenance claiming that defendant No.1 is the legally wedded wife and defendants No.2 to 4 are the sons and ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 54 daughters of the plaintiff, the cause of action arose on that day because the legal status of the plaintiff was put in jeopardy. In any .
case, once the order was passed by the learned CJM, there was an unequivocal threat to the right of the plaintiff because he was bound to pay the maintenance as per the order passed by learned CJM. Hence, the cause of action had accrued on the date of the of pronouncement of the order and even if subsequent cause of action has arisen on the date of the passing of the judgment by rt learned Sessions judge or by this Court, the same will not have any effect on the limitation because the date of accruing the first right to sue is significant and any subsequent accrual of the cause of action is immaterial. Therefore, the learned Trial Court had rightly held that the suit was barred by limitation. Hence, these substantial question of law are answered accordingly.
Substantial question of law No.3 in RSA No.412 of 2019 and No.5 in RSA No.356 of 2019:
65. Both these questions relate to the DNA profiling of the children and are being taken up together for convenience.
66. The report of the DNA analysis reads that Ram Gopal is not the biological father of Raksha. The DNA profiles of Ram Gopal, and Surinder are not inconsistent with those of biological ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 55 father and offspring. Ram Gopal is not the biological father of Lokesh. The report clearly shows that defendants No.2 to 4 are not .
the biological children of the plaintiff. It was submitted that there is a presumption regarding the paternity of the children born during the subsistence of the marriage. This presumption can be rebutted only by the proof of non-access. This submission is not of acceptable. It was laid down by the Hon'ble Supreme Court in Nandlal Wasudeo Badwaik vs Lata Nandlal Badwaik&Anr. 2014 (2) rt SCC 576 that the presumption under Section 112 of the Indian Evidence Act was created when modern scientific advancements like DNA analysis were not available and this presumption has yielded to modern scientific tests which can be conducted to determine the paternity. It was observed:
"17. We may remember that Section 112 of the Evidence Act was enacted at a time when modern scientific advancement and DNA tests were not even in contemplation of the Legislature. The result of the DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, 1 Page 17 in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. The interest of justice is best served by ascertaining the truth and the court should be furnished with the best ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 56 available science and may not be left to bank upon presumptions unless science has no answer to the facts in issue. In our opinion, when there is a conflict between conclusive proof envisaged under law and proof based on .
scientific advancement accepted by the world community to be correct, the latter must prevail over the former.
18.We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes the existence of a fact which may not really exist. However,the presumption of a fact depends on the satisfaction of certain circumstances. Those circumstances of logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption."
67. rt In the present case also, the scientific evidence has established that the plaintiff is not the biological father of defendants No.2 to 4, and the recourse cannot be had to the presumption under Section 112 of the Indian Evidence Act to deny this fact. Hence, the learned First Appellate Court and learned Trial Court had rightly relied upon the report of the DNA profiling and these substantial questions of law are answered accordingly.
Substantial question of law No.4 in RSA No.419 of 2019 and No.6 in RSA No.356 of 2019:
68. Both these questions relate to the question of paternity of defendants No.2 to 4 and are being taken up together.
69. Both the learned Courts below had rightly relied upon the scientific evidence instead of the presumption contained in ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 57 Section 112 of the Indian Evidence Act and there is no infirmity in the approach conducted by the learned Courts below. Hence, these .
substantial questions of law are answered accordingly.
CrMMO No.109 of 202270. The present Cr.MMO has been filed on the basis that since defendant No.1 is not held to be the wife of the plaintiff by of the learned First Appellate Court; therefore, the order passed by learned CJM declining to modify the order of maintenance is bad.
rt It has been found out above that the judgment passed by the learned First Appellate Court holding that defendant No.1 is not the wife of the plaintiff is not sustainable; therefore, this Cr.MMO also does not survive.
Final order:
71. In view of the above, the appeal filed by Vidya Devi is allowed and the judgment and decree passed by the learned First Appellate Court accepting the appeal of the original plaintiff and declaring that Vidya Devi is not the wife of Ram Gopal is set aside and the judgment and decree of the learned Trial Court is restored.
Consequently, the appeal filed by the defendant no. 2 to 4 stands ::: Downloaded on - 11/01/2024 20:34:24 :::CIS 58 dismissed. The order passed by learned CJM dated 08.05.2020 is upheld and Cr.MMO No. 109/2022 is dismissed.
.
(Rakesh Kainthla) Judge 11th January, 2024 (Saurav Pathania) of rt ::: Downloaded on - 11/01/2024 20:34:24 :::CIS