Daughter Whose Paternity Was Denied Wins Half-Share Decree in Father’s Land as J&K High Court Restores Trial Court Ruling

Themu sued for a declaration that she was the daughter of late Sonu and entitled to a half share in his land, challenging a 1966 mutation attested in favour of Shib Devi and seeking possession.

The defendants denied her paternity and pleaded, among other things, limitation.

The trial court decreed the suits, but the First Appellate Court reversed the decree and dismissed them, principally for limitation and failure to prove paternity.

The High Court admitted the second appeal on two substantial questions concerning accrual of the right to sue and the burden of proving limitation.

Section 6 of the Limitation Act provides protection against the running of limitation while a person is a minor; Section 3 requires the court to examine limitation, but the court considered that requirement alongside the burden assigned on the limitation issue in this case.

Under Mst. Rukhmabai v. Lala Laxminarayan, AIR 1960 SC 335, a right to sue under the residuary article accrues upon a clear and unequivocal threat to the right, not every ineffective or incomplete denial.

Section 50 of the Evidence Act makes relevant relationship opinions from persons with special means of knowledge; such knowledge need not come from a blood relative.

The Court also referred to Order XLI Rules 25 and 27 and Rule 31 of the Code of Civil Procedure, concerning further issues or evidence and the appellate court’s duty to address the case properly.

The Court held that the First Appellate Court had failed to assess the appellant’s pleaded recent refusals, her minority when Sonu died and when the mutation was attested, and the supporting evidence.

It had instead inferred her age and the accrual of the cause of action without evidence from the defendants establishing when an unequivocal denial first occurred.

The Court also found the paternity question intertwined with limitation: oral testimony, revenue entries, and admissions supported the trial court’s finding that Themu was Sonu’s daughter, while the absence of testimony from her mother was not fatal.

Because the limitation issue had been framed with the onus on the defendants and they led no evidence to discharge it, the First Appellate Court erred in deciding the issue against Themu and reversing the decree without following the prescribed appellate procedure.

It set aside the First Appellate Court’s judgment and decree dated 7 November 2012 and restored the trial court’s decree dated 9 March 2004 in the two clubbed suits.

The second appeal was allowed, with the parties bearing their own costs.