Om Parkash, J.C.
1. This appeal is directed against an appellate decree of the learned District Judge, Mahasu, affirming a decree of the learned Senior Subordinate Judge, Mahasu. The suit, out of which the appeal has arisen, was instituted by the appellant, his sister Smt. Sunehru, respondent No. 5 and his mother Smt. Dwarku, since dead, for the possession of the estate of Sita Ram, who had died on the 21st August, 1957. The suit, instituted in the Court of the Senior Subordinate Judge, Mahasu, was founded on the following allegations:--
2. Smt. Dwarku was married to Sita Ram about 40 years ago and the appellant and Smt. Sunehru respondent No. 5 were born during the continuance of that marriage. Sita Ram constituted a joint Hindu family with his brothers, Dayal Das respondent No. 1, Thakur Dass respondent No. 2 and Dhani Ram deceased. The property, in suit, was the property of the joint Hindu family. After the death of Dhani Ram his one-fourth share, in the property, in suit, was mutated in the name of his son, Bhagwan Dass respondent No. 4. On the death of Sita Ram, his one-fourth share in the property, in suit, should have been mutated in the names of the appellant, his sister Smt. Sunehru and his mother Smt. Dwarku, who were his heirs, but respondents Nos. 1 and 2 wrongfully got that share mutated in their names and had taken ' wrongful possession of the estate of Sita Ram.
3. The suit was contested fey respondents Nos. 1 and 2. They admitted that Sita Ram was their brother but denied that they constituted a joint Hindu family with him. The respondents pleaded that they were agriculturists and were governed by custom, and not by Hindu Law. The respondents, further, pleaded that the ancestral property had been partitioned, before the death of Sita Ram and that the property, in suit, had fallen to their share and was, thus, their exclusive property. The respondents denied that Smt. Dwarku was married to Sita Ram or that the appellant and Smt. Sunehrurespondent No. 5 were his legitimate off-spring. The respondents pleaded that even if it be proved that Smt. Dwarku was married to Sita Ram, even then the appellant and Smt. Sunehru could not be regarded as his legitimate issue, as he had divorced her long before their birth. The respondents had taken up other pleas also, but they are not relevant for the decision of the present appeal.
4. Smt. Kanku respondent No. 3,in the written statement, filed on herown behalf and as guardian of Bhagwan Das respondent No. 4, admitted the claim, made in thesuit.
5. The findings of the learned Senior Sub-ordinate Judge were that Smt. Dwarku was the lawfully wedded wife of Sita Ram and was never divorced by him, that Smt. Sunehru respondent No. 5 was born during the continuance of the marriage and was the legitimate daughter of Sita ram, that the appellant was not the legitimte son of Sita Ram, as he was born long after Smt. Dwarku had left Sita Ram for good and the latter had no access to her at any time when the appellant could have been begotten, and that the property, in suit, was the joint property of Sita Ram, Dayal Das, Thakur Dass and Bhagwan Das and had not been partitioned. On the above findings, the learned Senior Subordinate Judge dismissed the suit qua the appellant but granted Smt. Dwarku and Smt. Sunehru respondent No. 5, a decree for joint possession of the property. In suit, subject to the condition, that Smt. Sunehru would not be entitled to get joint possession of tenancy rightsas she was not an heir of Sita Ram, with respect to those rights, under the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act.
6. Against the decision of the learned Senior Subordinate Judge, dismissing his suit, the appellant filed an appeal in the Court of the District Judge. Respondents Nos. 1 and 2, also, lodged an appeal against the decree granted to Smt. Dwarku and Smt. Sunehru. They challenged the findings of the learned Senior Subordinate Judge that Smt. Dwarku was the lawfully wedded wife of Sita Ram and Smt. Sunehru was his legitimate daughter and that the property, in suit, had not been partitioned and was still joint.
7. During the course of arguments, before the learned District Judge, in the appeals, it was conceded, on behalf of the respondents, that Smt. Dwarku was the lawfully married wife of Sita Ram and Smt. Sunehru was his legitimate daughter. The respondents confined their appeal against the finding that the property, in suit, was joint in which Sita Ram had a share and was not the exclusive property of respondents Nos. 1 and 2.
8. The learned District Judge dismissed both the appeals--those of the appellant and respondents Nos. 1 and 2--and affirmed the findings of the learned Senior Subordinate Judge.
9. Smt. Dwarku died, after the decision, inthe appeals.
10. Aggrieved by the order of the learned District Judge, the appellant has come up in appeal to this Court.
11. The only material question, which requires decision in this appeal, is whether the appellant is the legitimate son of Sita Ram. As already stated, respondents Nos. 1 and 2 had conceded, before the learned District Judge, that Smt. Dwarku was the lawfully wedded wife of Sita Ram and that she had not been divorced. This position has been admitted in this Court, also. Further, it has not been disputed that the appellant was born of the womb of Smt. Dwarku. It is clear that the appellant was born during the continuance of a valid marriage, between Sita Ram and Smt. Dwarku, The presumption of legitimacy arose in his favour, under section 112, Evidence Act. The presumption, under that section, is a conclusive presumption of law which can be displaced only by proof of the particular fact, mentioned in the section, namely, non-access between the parties to the marriage, at a time, when according to the ordinary course of nature, the husband could have been the father of the child, vide, Venkateswarlu v. Venkatanara-yana, AIR 1954 S. C. 176.
It has also been observed, in this authority, that access and non-access connote existence and non-existence of opportunities for marital intercourse and that non-access can be established not merely by positive or direct evidence but can also be proved, like any other physical fact, by circumstantial evidence, though as the presumption of legitimacy is highly favoured by law, it is necessary that proof of non-access must be clear and satisfactory. The plea, on behalf of respondents Nos. 1 and 2, was that the presumption, in favour of the legitimacy of the appellant, stood rebutted, as they had established that Sita Ram had no access to Smt. Dwarku, at any time, when the appellant could have been begotten. Their contention was that the appellant was born two years after Smt. Dwarku had left Sita Ram for good and that during that period, Sita Ram had no access to her, as was admitted by Smt. Dwarku, herself.
12. The contention, raised on behalf of respondents Nos. 1 and 2, appears to be well founded. In para two of the plaint, It was stated that the appellant was born in November, 1923. During the course of arguments, in this Court, the learned counsel for the appellant raised a plea that the date of birth, given in the plaint, was not correct. His contention was that the date, as given in the plaint, was taken from the entries In the service book of the appellant and that people entering service, give their age less than the actual age. This contention was never put forward in the Courts below. No application for amending the plaint has been made. No affidavit has been filed in support of the contention that the date, given, in the plaint, is incorrect. The appellant did not state, in his evidence, that the date of birth given in the plaint was Incorrect. In the circumstances, the contention of the learned counsel for the appellant, that the date, given in the plaint, was not the correctdate of With, which is against the pleadings, must be rejected.
Moreover, the evidence of appellant's own witnesses goes to show that the appellant was born near about the year 1923.
(The judgment then discussed the evidence (rest of this para and Paras 13-16) and found that Smt. Dwarku had left Sltaram for good before or in the year 1921 and that Sltaram had no access to her after she had left him for good, and proceeded:)
The conclusion is that Sita Ram had no access So Smt. Dwarku, at any time, during the period from 1921 to 1923, when the appellant could have been begotten. It would be fantastic to suggest that the appellant, who was born In November, 1923, could have been begotten as a result of a sexual Intercourse which Sita Ram might have with Smt. Dwarku, before she had left him for good, in 1921. That was not possible In the ordinary course of nature. The maximum period of gestation cannot be more than 360 days, vide cases given at pages 2160-61 of Woodroffe and Ameer All's Law of Evidence, 11th (1963) Edition and at pages 313-14 of Modi's Medical Jurisprudence and Toxicology, 13th Edition. In Uttamrao v. Sitaram, AIR 1963 Bom 165, relied upon, by the learned counsel for the appellant, the son was born 308 days after the death of the father. The period of 308 days, unlike the period of nearabout two years, In the present case, was a possible period of gestation.
17. For the reasons, stated above, I agreewith the finding of the learned District Judge thatrespondents Nos. 1 and 2 had established that Sitaram had no access to Smt. Dwarku at any timewhen the appellant could have been begotten andthat the presumption of legitimacy, raised infavour of the appellant, under Section 112, EvidenceAct, stood rebutted.
18. The finding that Sita Ram had no access to Smt. Dwarku at any time when the appellant could have been begotten is sufficient to discredit the oral evidence, adduced by the appellant, that fie was the legitimate son of Sita Ram. The oral evidence is otherwise too Inadmissible. Tulsi Ram P. W-l, Narottam Das P. W-2, Puran Das P. W.-3, Khazan Das P W 4, Kanhiya P. W. 5, Mansa Ham P W 7, Raghu Dat P. W. 11 and Bala Ram V. W. 12 expressed their opinion that the appellant was the son of Sita Ram. The opinion of the witmesses was not 'based on any conduct of theirs and was, therefore, inadmissible. In this connection, reference may be made to Dolgobinda Paricha v. Nimal Charan Misra, AIR 1959 SC 914 wherein It was observed:
'under Section 50, (Evidence Act), when the Court has to form an opinion as to relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship Is a relevant fact. The essential requirements of the section are: (1) there must be a case where the Court has to forman opinion as to the relationship of one person to another; (2) in such a case, opinion expressed by conduct as to the existence of such relationship Is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down In the latter part of the section. If the person fulfills that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means Judgment or belief, that is, a belief or a conviction resulting from what one thinks upon a particular question. The 'belief or conviction may manifest Itself In conduct, or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held Is relevant and may, therefore, be proved.'
19. No such outward behaviour or conduct, on the part of any of the witnesses of the appellant, was proved to make the opinion expressed by them admissible. The evidence of the witnesses of the appellant that he was the son of Sita Ram was based on hearsay and not on any belief or conviction, manifesting Itself in any conduct or outward behaviour, and was Inadmissible.
20. Mansa Ram, P W 7, Prem Das P. W. 9 and Gurdas P. W. 10 stated that the appellant had made an application to the Panchayat, that Ms father, Sita Ram, was alienating and wasting the ancestral property and that he may be restrained from doing so. The witnesses, further, stated that Sita Ram was summoned in the Panchayat and that he had acknowledged the appellant to be his son. These witnesses admitted that the proceedings of the Panchayat were reduced to writing by Amar Das D W 7, son of Thakur Dass respondent No. 2. Amar Das D W 7 had produced the documents Ex. D. W, 7/3A, EX. D. W. 7/3B and Ex. D. W, 7/3C, which according to him, contained the proceedings of the Panchayat. The proceedings are in the form of questions and answers. The documents show that a question was put to Sita Ram whether the appellant was his son and that Sita Ram had replied Sn the negative. He had, further, stated that the mother of the appellant had left him two years before the birth of the appellant.
The questions and answers which follow reveal that the Panchayat had prevailed upon Sita Ram to accept the appellant as a Sewadar. The questions and answers, set forth, above, as contained in the documents Ex. DW 7/3A to Ex. DW 7/3C give a direct lie to the evidence of Mansa Ram PW 7, Prem Das PW 9 and Gurdas PW 10, that Sita Ram had acknowledged the appellant as his son. The learned counsel for the appellant vehemently contended that the documents Ex. DW 7/3A to Ex. DW 7/3C were a forgery. He pointed out that the appellant had made efforts to get copies of the proceedings of the Panchayat but Amar Das had persistently refused to supply the copies, or tohand over the original record, and that the documents were forged and produced by Amar Das, who was obviously highly interested in the respondents, after the appellant had closed his evidence. There is evidence, on record, that the appellant had applied for obtaining copies of the proceedings of the Panchayat and that Amar Das DW 7 had refused to give copies or to hand over the original record of the proceedings, vide the statements of Mathra Das P W 6, Mansa Ram P W 7 and Niram Singh, P W 8.
But the refusal of Amar Das D W 7, to supply the copies, howsoever improper, and the production of documents at a late stage of the trial, do not Justify the inference that the documents Ex. D W 7/3A to Ex. D W 7/3C were forged. It is common ground that the proceedings of the Panchayat were reduced to writing. The documents Ex. D W 7/3A to Ex. D W 7/3C purport to bear the signatures of many persons, including Amar Das D W 7 and Laiq Ram D W 9. Laiq Ram stated that the documents contained a correct account of the proceedings of the Panchayat. There does not appear to be any valid reason to disbelieve the evidence of Laiq Ram.
There is another aspect of the matter. The evidence of Mansa Ram P W 7, Prem Das P W 9 and Gurdas P W 10, that Sita Ram had acknowledged the appellant as his son and the statement, contained in Ex. D W 7/3A to Ex. D W 7/3C, that Sita Ram had said that the appellant was not his son, could be admissible, if at all, under Section 32(5) of Evidence Act. But the statements, attributed, to Sita ram, were made, after the dispute about the existence of relationship, between Sita Ram and the appellant, had arisen. The statements, could not, therefore, be admissible under Section 32(5), Evidence Act, as one of the essential conditions that the statements should have been made before the question in dispute had arisen was not fulfilled, in the case.
21. The learned counsel for the appellant had contended that the admission, made by Smt. Kanku respondent No. 3, on her own behalf, and on behalf of respondent No. 4, that the appellant was the son of Sita Kam was binding on respondents Nos. 1 and 2, and that they could not question the legitimacy of the appellant. This contention of the learned counsel is without any substance. An admission, made by one defendant, is not binding against co-defendants, unless the interest of the defendants, in the suit, be joint. It was laid down in Harihar v. Nabakishore, AIR 1963 Orissa 45:
'The general rule is that an admission can only be given in evidence against the party making it and not against any other party. In general, the statements of defence made by one defendant cannot be read in evidence either for or against his co-defendants, the reason being as there is no issue between the defendants, no opportunity for cross-examination is afforded. But this rule has no application to cases where the co-defendants have joint interest. It is not by virtue of a person's relationship to the litigation thatthe admission of one can be used against the other. It must be because of some privity of title or of obligation.'
22. In the present case, the interest of respondents Nos. 3 and 4, on the one hand and that of respondents Nos. 1 and 2, oft the other, was not joint. There was no privity of title between them. The admission, made by Smt. Kanku, could not, therefore, be binding on respondents Nos. 1 and 2, and could not be used as evidence against them.
23. At this stage, the two applications, filed by the appellant, under Order 41, Rule 27 C. P. C., for production of additional evidence, in this Court, may be dealt with. The first application was put in on the 12th September, 1962. It was alleged, in that application, that the appellant had 'gone to Haridwar, in connection with the death ceremonies of his mother, who had died after the decision in the case by the learned District Judge, and that at Haridwar he had found an entry in the Bahi of the Panda, made at the instance of respondent No. 1, indicating that Sita Ram had a son. It was, further, alleged that the appellant could not produce the entry in the trial Court as he was not aware of it, before his visit to Haridwar. It was prayed that the entry may be permitted to be produced In this Court as it had got a very material bearing on the legitimacy of the appellant.
24. The second application, under Order 41 Rule 27 C. P. C., was made for permission to produce two horoscopes--one of the appellant and the other of Hira Das son of Puran Das P W 3.
24a. Order 41, Rule 27 (1) C. P. C. reads as follows:
'The parties to an appeal shall not be entitled to produce additional evidence whether, oral or documentary, in the Appellate Court. But if (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (Jb) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined.'
25. Obviously, Clause (a) of the aforesaid sub-rule is not applicable to the present case. Clause (b) conies into play when the Court itself requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The legitimate occasion, for the admission of additional evidence, was stated to be, by their .Lordships of the Supreme Court, in Arjan Singh v. Kartar Singh, AIR 1951 SC 193, as follows:-
'The legitimate occasion for the application of O. 41 R. 27 is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Court, of fresh evidence and the application is made to import it. The true test, therefore, is whether the appellate Court is able to pronounceJudgment on the materials before it without taking into consideration the additional evidence sought to be adduced.'
26. The learned counsel for the appellant cited K. Venkataramiah v. A. Seetharama Reddy, AIR 1963 SC 1526. This authority does not lay down any different principles. It was said by their Lordships:
'Under Rule 27(1), the appellate Court has the power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment' but also for 'any other substantial cause'. There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of record as it is, and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under Rule 27 (1) (b) of the Code.
Such requirement of the Court is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. It may well be that the defect may be pointed out by a party or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon Its appreciation of the evidence as it stands.'
27. The examination and appreciation of evidence, in the present case, does not disclose any inherent lacuna or defect for the removal of which this Court may require the entry in the Panda's Bahi or the horoscopes. The Court is able to pronounce judgment on the record as it stands, without allowing the additional evidence, sought to be produced. The additional evidence is not required for any other substantial cause. There is no obscurity in the evidence which may be clarified by the entry in the Panda's Bahi or the horoscopes. Panda's Bahis and horoscopes are not public documents. The entries, in them, cannot be regarded to be so conclusive or decisive, as to turn the scales, in favour of one party or the other. The appellant did not produce his horoscope in the trial Court.
The explanation for non-production was that the horoscope had been given to the father-in-law of the appellant, with whom his relations had become strained and who had refused to return it. This explanation was not accepted by the trial Court and by the learned District Judge. Both the courts below drew adverse inference against the appellant for the non-production of the horoscope. The appellant cannot be permitted to fill in gaps, In his evidence, by the production of additional evidence, In this Court, vide State of U. P. v. Manbodhan Lal Srivastava, (S) AIR 1957 SC 912.IIt will not be a sound and judicial exercise of discretion, under Order 41, Rule 27(1) (b) C.P.C., if the appellant Is permitted to produce tne Panda'sBahi and the horoscopes, as additional evidence, In this Court. Both the applications, for the production of additional evidence, are rejected. Thehoroscopes be returned to the appellant.
28. The conclusion, from the above discussion, is that the finding of the Courts below that the appellant had failed to prove that he was the legitimate son of Sita Ram is correct and is to be upheld.
29. The learned counsel for respondents Nos. 1 and 2 did not seriously challenge the finding of the Courts below that the property, in suit, was joint of Sita Ram and his brothers and nad not been partitioned. It is, therefore, not necessary to discuss the evidence, on which the finding is based, in any detail. Suffice it to say, that in the Jama-bandi, the property, in suit, was recorded as joint of Sita Kam and his brothers. The entries in the Jamabandi are presumed to be correct. The oral evidence, adduced by respondents Nos. 1 and 2, to rebut the entries in the Jamabandi, and to prove that the property had been partitioned was vague, indefinite and contradictory and was rightly disbelieved by both the lower Courts. The witnesses failed to give the particulars of lands which had fallen to the share of each brother. It was admitted that a partition-deed was drawn up at the time of partition but no such document was produced.
30. As the appellant had failed to prove thathe was the legitimate son of Sita Ram, his suit wasrightly dismissed, by the trial Court and Ms appeal by the learned District Judge. The presentappeal fails and is dismissed with costs of respondents Nos. 1 and 2.