Full Judgment Text
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PETITIONER:
S. AJARMA BI & S. HAJARAM BIHI AND ANOTHER
Vs.
RESPONDENT:
S.KHURSHID BEGUM & OTHERS
DATE OF JUDGMENT: 13/02/1996
BENCH:
HANSARIA B.L. (J)
BENCH:
HANSARIA B.L. (J)
RAY, G.N. (J)
CITATION:
1996 AIR 1663 JT 1996 (6) 155
1996 SCALE (2)205
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
HANSARAI, J.
Leave granted.
2. The dispute at hand relates to property bearing door
Nos.297 to 306 which once belonged to one M.Abdul Sattar and
his vounder brother M.Sattar. Respondent Nos.1 and 2 herein
are the daughters of M.Sattar through his first wife, the
third respondent. The two appellants claimed themselves to
be the offspring of M.Sattar through his second wife. They
challenged a deed of settlement by the aforesaid Sattars
relating to the property in favour of respondent Nos.1 and 2
on the ground that the same had been obtained by
misrepresentation, fraud and coercion. After the death of
both the Sattars, the appellants filed a suit in the file of
Court of Subordinate Judge, Coimbatore, claiming that they
were entitled to 53 and 1/2 out of 72 shares and mesne
profits. Respondents’ case was that the appellants are
illegitimate children of M.Sattar, and so, not entitled to
any share; and the settlement deed was valid. The trial
court decreed the suit, but on appeal the High Court
dismissed the same holding that the appellants were not
legitimate children of M.Sattar and the settlement deed was
valid.
3. Shri Mohan, learned counsel for the appellants, has
strenuously urged that the finding of the High Court
relating to legitimacy is untenable inasmuch as the Court
gave undue importance to Exhibit A.9, which is a copy of
marriage register containing recital of marriage of M.Sattar
and his second wife stating "I affirm that this date I have
married".(Emphasis supplied). Shri Mohan contends that apart
from this exhibit, which is dated 26.8.1967, there are many
documents to show that M.Sattar had acknowledged paternity
prior to that date. It is submitted that these
acknowledgements were not viewed in proper perspective by
the High Court.
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4. We have felt inclined to accept the aforesaid
submission of Shri Mohan keeping in view the principle
underlying section 112 of the Evidence Act and what has been
stated in section 114. These two sections give rise to
presumption against concubinage and permit raising of
presumption of legitimacy of the children born during the
period of continuous cohabitation. Shri Nariman, appearing
for the respondents, has no objection to our holding that
the appellants are legitimate offspring of M.Sattar,
provided interest of his clients is adequately protected qua
other properties of the two Sattars. We, therefore, state
that the appellants would be accepted, taken and treated as
legitimate children of M.Sattar.
5. On the question relating to validity or otherwise of
the settlement deed, we find no reason to disagree with the
High Court, as, whether the deed was obtained by
misrepresentation, fraud and coercion is a question of fact
which has been thoroughly gone into by the High Court with
reference to the materials on record. We, therefore, uphold
the finding of the High Court qua the validity of the
settlement deed.
6. It appears to us that to do complete justice between
the parties it would be apposite to state that as we have
decided the question of legitimacy on the basis of
presumption, it should be made clear that the appellants
would not lay any claim in respect of any property left by
M.Sattar and/or Abdul Sattar on the basis of what has been
held by us relating to the legitimacy of the two appellants;
and we say so.
7. The appeal is allowed accordingly with no order as to
costs.