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Thursday, June 28, 2012

Proof of paternity- Sections 226 and 227 of the Muslim Law by THABJI (4th Edition at page 208) with reference to proof of paternity and presumption of acknowledgement of parentage respectively in support of his further argument that the documents ante litum mortem referred to above would establish the paternity of the plaintiff as well as the presumption of acknowledgement arising therefrom. 20. The above principles of law under Sections 226 and 227 read as follows:- "226. Proof of paternity: Statements by a member of the family touching the sonship or heirship of a person are good evidence of the family report concerning him. 227. Adoption not known to Muslim law: If a man has openly treated another as his child, it may be presumed that the former has acknowledged the parentage of the latter." 21. In view of the above provisions of law in the light of the documentary evidence under Exs.A-4, A-15 and A-16, the paternity of the plaintiff that he was born to Mohamed Sultan through his second wife Raguman Bibi has been amply established. Similarly, the acknowledgement of both Mohamed Sultan and his first wife Jamina Bibi as per Exs.A-4, A-15 and A-16 also lend support to the proof of paternity. As has been rightly argued by the learned senior counsel for the respondents, in view of the ratio laid down in the decision HOHAMMAD SADIQ v. MOHAMMAD HASSAN (AIR (30) 1943 LAHORE 225), the acknowledgement of Mohamed Sultan that the plaintiff is his son born through the second wife has to be held as proved until the contrary is established by the defendant adducing rebuttal evidence and the ratio laid down therein reads as follows: "The same subject has been dealt with in para 85 of Wilson's Ango Mahomedan Law where it is laid down that if a man has acknowledged another as his legitimate child, the presumption of paternity arising therefrom can only be rebutted by (a) disclaimer on the part of the person acknowledged; (b) such proximity of age, or seniority of the acknowledgee, as would render the alleged relationship physically impossible; (c) proof that the acknowledgee could not possibly have been the lawful wife of the acknowledger at any time when the acknowledgee could have been begotten. None of these four impediments has either been alleged or established in the present case."


IN THE HIGH COURT OF JUDICATURE AT MADRAS          

Dated: 20/06/2005

Coram

The Honourable Mr. Justice T.V. MASILAMANI  

S.A. No.1410 of 1993

Pathamuthu Joharan                                             .. Appellant

-Vs-

1. Syed Ibrahim (died)
2. Habuta Nachiar
3. Mahaboola Nisa
4. Kamarunnisa
5. Bokaruddin
6. Akber Ali                                                 .. Respondents


        Second Appeal against the judgment and decree dated 10.2.1993 made  in
A.S.No.213  of 1991 on the file of the District Judge, Nagapattinam confirming
the judgment and decree dated 9.5.1991 in O.S.No.56 of 198 8 on  the  file  of
the Subordinate Judge, Nagapattinam.

!For Appellant :  Mrs.G.  Devi

^For Respondents :  Mr.K.Chandramouli, S.C.
                For Mr.A.Muthukumar.


:JUDGMENT  


        The defendant before the court below is the appellant.

        2.   The  respondent  filed the suit for recovery of possession of the
suit property from the appellant and for future mesne profits.  The  appellant
resisted the  suit  by  filing  written  statement.    The  trial court having
analysed the evidence both oral and documentary adduced  on  either  side  and
upon  hearing  the  arguments of both sides decreed the suit as prayed for and
directed a separate enquiry regarding future mesne profits under Order 20 Rule
12 C.P.C.

        3.  Aggrieved by the judgment and decree passed by  the  trial  court,
the  appellant preferred the appeal before the District Judge, Nagapattinam in
A.S.No.213 of 1991.  The learned District Judge after considering the recorded
evidence and the arguments of both sides confirmed  the  judgment  and  decree
passed by  the  trial court and dismissed the appeal.  Hence, the above Second
Appeal.

        4.  The averments in the plaint filed by the respondent/plaintiff  may
be briefly stated as follows:-

                (a)  The common ancestor of the plaintiff and the defendant is
Sikkandar Rowthar.  The plaintiff is the grand son of the  Sikkandar  Rowthar.
The  defendant is the grand daughter of the said Sikkandar Rowthar through his
another son Mohamed Hussain.  Sikkandar Rowther  executed  a  settlement  deed
dated  8.6.1935  in respect of all his properties in favour of his sons and he
retained the right of enjoyment over the properties settled thereunder  during
his life time.  'A' schedule property in the settlement deed had been given to
Mohamed  Sultan  to  be  taken  and enjoyed by him absolutely and 'B' schedule


property had been given to Mohamed Hussain absolutely.  'C' and  'D'  schedule
properties  in the settlement deed had been given to his 3rd son Mohamed Kasim
and his wife Fathima Bibi.

                (b) The suit property is a  portion  of  the  house  given  to
Mohamed Sultan under the said settlement deed and the remaining portion of the
house was given to Mohammed Hussain.  After the death of Sikkandar Rowthar his
sons,  namely,  Mohamed  Sultan  and  Mohamed Hussain became entitled to their
respective portions in the house as per the settlement deed.  The property tax
was paid by both of them in respect of the house property.

                (c) After the death of  Mohamed  Sultan,  all  his  properties
including  the  suit  property  had devolved upon his 2 wives and 3 sons and a
daughter by his second wife in accordance with the  Muslim  law.    After  the
death  of  one of the widows, Raguman Bibi, her share also devolved upon her 3
sons and a daughter.  The plaintiff obtained the release deed dated  23.3.1983
from  his  two brothers, Mohamed Arif and Mohamed Ismail and sister Noorjahan.
Under sale deed dated 31.1.1984 having purchased the undivided  share  of  his
step  mother  Jamina Bibi also, the plaintiff has become the absolute owner of
the suit property.

        (d) The defendant obtained release deed from her  mother  Ajitha  Bibi
and  sisters  Urunnisa  and  Noorjahan  by  means  of  a registered deed dated
29.12.1983.  The defendant who is the grand daughter of Sikkandar Rowthar  has
no manner  of  right  or title to any portion in the suit property.  Her claim
that her father Mohamed Hussain has prescribed title by adverse possession has
no legal basis and therefore the plaintiff is entitled to  recover  possession
of the suit property and to receive future mesne profits.

        5.   The  averments  in  the written statement filed by the appellant/
defendant are briefly as follows:-

                The plaintiff is not the son of Mohamed Sultan who had married
only one wife and therefore it is false to contend that Mohamed Sultan married
the mother of the plaintiff also.    Sikkandar  Rowthar  had  3  sons  Mohamed
Sulthan, Mohamed  Hussain and Mohamed Kasim.  The plaintiff has suppressed the  
existence of the son Mohamed Kasim.  Similarly, Syed Ebrahim and Mohamed  Arif  
and  Mohamed Ismail and Noorjahan are not sons and daughter of Mohamed Sultan.  
Therefore the plaintiff is not the grand son of Sikkandar Rowthar as  alleged.
On  the  date  of  the  settlement  deed executed by Sikkandar Rowthar (i.e.,)
8.6.1935, Mohamed Sultan was living in Rangoon and therefore he did not accept
the settlement and obtained possession of the properties thereunder.   Mohamed
Sultan had never enjoyed any of the properties covered by the settlement deed.
In fact, the defendant, daughter of Mohamed Hussain has been in possession and
enjoyment of  the  suit property.  Further she has also perfected title to the
suit property by adverse possession.  The suit is not valued properly for  the
purpose of court-fee.

        6.   On  the  above pleadings, the following issues were framed by the
trial court for trial:-

        (1) Whether the plaintiff is entitled to the  relief  of  recovery  of
possession of the suit property?
        (2) To what relief, the plaintiff is entitled to?

        7.   In  the  appeal,  the  learned District Judge had also framed the
following issues for consideration:-

        (1) Whether Mohamed Sultan had married two wives  as  claimed  in  the
plaint?
        (2)  If so, whether the plaintiff is the son of Mohamed Sultan through
his second wife?
        (3) Whether the defendant has perfected title to the suit property  by
adverse possession?


        8.   Having perused the recorded evidence and upon hearing both sides,
the  courts  below  have  rendered  concurrent  judgments  holding  that   the
respondent  is  entitled  to  the suit property, that he is the son of Mohamed
Sultan born through his second wife, that  the  appellant  has  not  perfected
title  to  the  suit  property  by  adverse  possession and that therefore the
respondent is entitled to the reliefs as prayed for.

        9.  Heard Mrs.G.Devi, learned counsel  for  the  appellant  and  Mr.K.
Chandramouli, learned senior counsel for the respondents.

        10.   The  learned counsel for the appellant/defendant has argued that
the courts below failed to consider the  document  under  Ex.A-2  whereby  the
house  was  divided into two portions, one settled in favour of Mohamed Sultan
and another in favour of Mohamed Kasim and Mohamed Sultan had not accepted the  
settlement and taken possession of the property.  Therefore the settlement  in
favour  of  Mohamed  Sultan  was not acted upon and hence became invalid under
law.  The courts below failed to see that Mohamed Sultan  had  only  one  wife
Jamina Bibi  and he did not marry Raguman Bibi as his second wife.  Therefore,
the courts below ought to have held that the marriage of the  second  wife  to
Mohamed Sultan  has not been proved in accordance with law.  Similarly, courts
below failed to appreciate the evidence to prove the defendant's title to  the
suit property by adverse possession.

        11.   In  the above circumstances, the following substantial questions
of law were formulated by this court on 3.11.1993 for consideration:-

        (1) Whether the courts below have correctly and  properly  interpreted
Exs.A-3, A-4 and A-5?
        (2)  Whether  the  courts below are justified in rejecting the plea of
adverse possession by the defendant and her predecessors-in-title?
        (3) Whether the  courts  below  are  justified  in  finding  that  the
settlement deed Ex.A-2 executed by the grand father of the defendant is valid?

        12.   The  parties to this appeal may be referred to hereunder as they
were arrayed before the trial court.  Since rendering a finding with reference
to one question is likely to  overlap  the  other  one,  all  the  substantial
questions are discussed together.

        13.  The facts which are not in controversy may be set out as under so
as  to analyse the recorded evidence and the arguments advanced on either side
in this appeal.  The suit property is a building which originally belonged  to
Sikkandar Rowthar.  He executed the registered Hiba deed dated 8.6.1935 Ex.A-2
in favour of his wife Fathima Bibi and 3 sons, Mohamed Sultan, Mohamed Hussain
and  Mohamed  Kasim  and  the  portion described in 'A' schedule in Ex.A-2 was
given to Mohamed Sultan, the portion 'B'  schedule  to  Mohamed  Hussain,  the
portion  'C'  schedule  to  Mohamed  Kasim  and the portion in 'D' schedule to
Fathima Bibi.  After the death of Sikkandar Rowthar and  Fathima  Bibi,  their
heirs became  entitled  to the said properties.  Mohamed Sultan married Jamina
Bibi and they had no issues.  Mohamed Hussain married Ajitha Bibi and they had
begotten 3 daughters, namely Pathamuthu Joharan, Urunnisa and Noorjahan.   The
appellant/defendant is the said Pathamuthu Joharan.

        14.   The  learned  counsel for the appellant has argued at the outset
that the Hiba deed under Ex.A-2 executed by Sikkandar Rowthar was not accepted
by Mohamed Sultan, who was residing in Rangoon at that  time  and  that  since
Mohamed  Hussain,  father  of the defendant alone was in India residing in the
suit property, the plain tiff claiming under Mohamed Sultan could not have had
any title to the suit property.  Similarly, she  would  contend  that  Mohamed
Sultan  never  got  into  the possession of the suit property either under the
settlement deed Ex.A-2 or by any other process known to law.

        15.  In answer to such  contention,  Mr.Chandramouli,  learned  senior
counsel  appearing  for  the  respondents  2 to 7, legal heirs of the deceased
first respondent/sole plaintiff would draw the  attention  of  this  court  to
Exs.B-16  to  B-44  documents  to show that the gift under Ex.A-2 was not only
accepted by Mohamed Sultan, but he was also in possession and enjoyment of his
portion in the suit property pursuant to  the  gift  deed  under  Ex.A-2.    A
careful  scrutiny of Ex.B-16 to B-44 would indicate clearly that the house tax
was paid by Mohamed Sultan for himself and on behalf  of  other  donees  under
Ex.A-2.   Therefore  this Court is of the considered view that since the house
tax was assessed in the name of Mohamed Sulthan (vide) Ex.B-16  to  B-44  from
1963  to 198 3, it is too late in a day to contend that Mohamed Sultan had not
accepted the gift in his favour as per Ex.A-2.   In  this  context,  both  the
courts  below have analysed the evidence on this aspect of the matter and came
to the right conclusion that all the 3 sons of the deceased Sikkandar  Rowthar
accepted  the  gift  and  acted upon the settlement deed under Ex.A-2 and that
they were in possession and enjoyment of the respective  shares  in  the  suit
property as  per  the  gift  deed.   Hence, this court is unable to accept the
first contention put forth by the learned counsel for the appellant.

        16.  The next contention urged in the argument of the learned  counsel
for  the  appellant  is  that  the  plaintiff (since deceased) was not born to
Mohamed Sultan through his second wife as alleged and that therefore he  would
not  have  succeeded  to  any  portion  in  the suit property as a heir of the
deceased Mohamed Sultan.  According to the plaintiff, Mohamed  Sultan  married
Jamina Bibi as his first wife and since they had no issues, he married Raguman
Bibi  as  his  second  wife  and  out of their wedlock, the plaintiff, 3 other
children namely Mohamed Arif, Mohamed Ismail and Noorjahan were born to  them.
In  support  of  such  contention Exs.A-2 to A-4, A-5, A-8, A-15 and A-16 have
been pressed into service in the evidence of P.W.1, the plaintiff.

        17.  Ex.A-4 is the registered sale deed dated  31.1.1984  executed  by
Jamila  Bibi,  first  wife  of  Mohamed  Sultan  in favour of the plaintiff in
respect of  her  undivided  1/16th  share  in  the  suit  property  and  other
properties  and the relevant recitals relied on by the learned counsel for the
plaintiff in the said document are as follows:-

",jdoapy; fz;l tpgug;goa[s;s brhj;J fhyk; brd;w vdJ  fztUk;  vdJ  je;  ija[khd
A.S.Kfk;kJ  Ry;j;jhd;  mtu;fSf;F  mtuJ  je;ijahu; rpf;fe;ju; uht[j;juhy; brd;w
8.6.1935 njjpapy; vGjpitf;fg;gl;Ls;s brl;oy;bkz;Lg;goa[k; A.S.Kfk;kJ Ry;j;jhd;
mtu;fshy; brd;w 20.8.1956  njjp  mg;Jy;  cwkPJ  uht[jjuplkpUe;J  thq;fpa  fpua
rhrdg;goa[k;  fpilj;J  vd;DlDk;  mtu;  ,uz;lhk;  jhu kidtp ucwpkhd; gptpa[lDk;
ru;tRje;jpu ghj;jpaq;fSld; Mz;L mDgtpj;Jte;J \  A.S.Kfk;kJ  Ry;j;jhd;  24.1.78
njjpapy; fhykhfptpl;lhu;."

        18.  The above recitals in the sale deed executed by the first wife of
Mohamed  Sultan  have  proved  categorically  that  Mohamed Sultan married two
wives, namely, Jamina Bibi and Raguman Bibi and that the plaintiff is the  son
of Mohamed  Sultan  born through his second wife.  Similarly, Ex.A-16 marriage
invitation dated 14.2.1956 discloses that Mohamed Sultan being the  father  of
the  plaintiff celebrated the plaintiff's marriage and therefore it is evident
that the acknowledgement of both Mohamed Sultan and his wife Jamina Bibi  that
the  plaintiff  is  the  son  of  the  former  through  his  second wife would
vouch-safe the paternity of the plaintiff now under question.

        19.  In this context, learned senior counsel appearing for respondents
2 to 6 has drawn the attention of this court to the provisions  of  law  under
Sections  226  and  227  of the Muslim Law by THABJI (4th Edition at page 208)
with reference to proof of paternity and  presumption  of  acknowledgement  of
parentage  respectively  in support of his further argument that the documents
ante litum mortem referred to above  would  establish  the  paternity  of  the
plaintiff as well as the presumption of acknowledgement arising therefrom.

        20.   The  above  principles of law under Sections 226 and 227 read as
follows:-

        "226.  Proof of paternity:  Statements  by  a  member  of  the  family
touching  the  sonship or heirship of a person are good evidence of the family
report concerning him.
        227.  Adoption not known to Muslim law:  If a man has  openly  treated
another  as his child, it may be presumed that the former has acknowledged the
parentage of the latter."


        21.  In view of the above provisions  of  law  in  the  light  of  the
documentary  evidence  under  Exs.A-4,  A-15  and  A-16,  the paternity of the
plaintiff that he was born to Mohamed Sultan through his second  wife  Raguman
Bibi has  been  amply  established.    Similarly,  the acknowledgement of both
Mohamed Sultan and his first wife Jamina Bibi as per Exs.A-4,  A-15  and  A-16
also lend  support  to  the proof of paternity.  As has been rightly argued by
the learned senior counsel for the respondents, in view of the ratio laid down
in the decision HOHAMMAD SADIQ v.  MOHAMMAD HASSAN (AIR (30) 1943 LAHORE 225),            
the acknowledgement of Mohamed Sultan that  the  plaintiff  is  his  son  born
through  the  second  wife  has  to  be  held  as proved until the contrary is
established by the defendant adducing rebuttal evidence  and  the  ratio  laid
down therein reads as follows:

        "The  same  subject  has  been  dealt with in para 85 of Wilson's Ango
Mahomedan Law where it is laid down that if a man has acknowledged another  as
his  legitimate child, the presumption of paternity arising therefrom can only
be rebutted by (a) disclaimer on the part of the person acknowledged; (b) such
proximity of age, or seniority  of  the  acknowledgee,  as  would  render  the
alleged  relationship  physically  impossible; (c) proof that the acknowledgee
could not possibly have been the lawful wife of the acknowledger at  any  time
when the   acknowledgee  could  have  been  begotten.    None  of  these  four
impediments has either been alleged or established in the present case."

        22.  In this case also, as per the ratio referred supra, the defendant
has not alleged or established any of the impediments  narrated  by  the  said
decision.   Therefore this Court is of the considered view that the contention
put forth on the side of the appellant in this respect has to be  rejected  as
not sustainable.   It follows necessarily that the finding of fact rendered by
both the courts below on this aspect of the matter has to be affirmed.

        23.  The last contention of the learned counsel for the  appellant  is
that  by adverse possession, the defendant has perfected her title to the suit
property.  In this regard, as has been rightly argued by  the  learned  senior
counsel  for  the  plaintiff,  on  her  own  showing  as per Exs.B-16 to B-44,
receipts for payment of house tax issued  in  favour  of  Mohamed  Sultan  and
others from 1963 to 1983, such contention of the defendant cannot stand even a
moment's  scrutiny for the simple reason that Mohamed Sultan was in possession
of the property within 12 years prior to suit  and  that  the  suit  was  laid
within 5 years from the date of last receipt under Ex.B-44 issued on 30.8.1983
in favour of him.

        24.   Hence,  the  learned  senior  counsel  for  the plaintiff placed
reliance on the decision rendered by this Court NAGARAJAN v.    RAJAMANI  IYER  
(1999 (I)  C.T.C.   428) wherein the statement of law on this subject has been
reiterated as under.  The learned Single Judge  having  considered  catena  of
decisions  rendered  by  this  Court, other High Courts and the Apex Court and
quoted the principle of adverse possession as laid down by the Apex  Court  in
DR.MAHESH CHAND SHARMA  v.   RAJKUMARI SHARMA (AIR 1996 S.C.  569) which reads            
as follows:-
"A person pleading adverse possession has no equities in his favour.  Since he
is trying to defeat the rights of the true owner, it is  for  him  to  clearly
plead  and  establish  all  the  facts  necessary  to  establish  his  adverse
possession."

        25.  If the evidence let in by the defendant is analysed in the  light
of  the  above  principle  of  law cited above, there is no doubt that she has
neither pleaded specifically  in  her  written  statement  all  the  necessary
averments to constitute the plea of adverse possession nor let in any evidence
worth mentioning to establish such plea.

        26.   But,  on the contrary, the documentary evidence Exs.B-16 to B-44
as referred to above are not only against the defendant  on  this  aspect  but
would also establish that the plaintiff's predecessor-intitle was in effective
possession  and  enjoyment  of his share in the suit property for more than 13
years till his death.  Similarly, the other evidence let in by  the  plaintiff
has  categorically  established  his  possession  and  enjoyment  of  the suit
property along with other heirs till he acquired absolute right and  title  to
the  same  by virtue of registered documents under Exs.A-3 and A-4, registered
release deed dated  23.3.1983  and  sale  deed  dated  31.1.1984  respectively
executed by the other heirs of Sikkandar Rowthar in respect of their undivided
share in the suit property.

        27.   For the aforesaid reasons, this Court finds no illegality in the
judgments and decrees rendered by both the  courts  below  and  therefore  the
Second Appeal  deserves no merit and is accordingly dismissed.  However, there
shall be no order as to costs.


Index:  Yes
Website:  Yes
dpp



To

1.  The District Judge, Nagapattinam.
2.  The Subordinate Judge, Nagapattinam.
3.  The Section Officer, V.R.Section, High Court, Madras.




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