SHIVAJIRAO LAGAD Vs. BAPURAO LAGAD

JUDGEMENT

(1.) THE facts leading to this revision are that the plaintiffs brought a suit against the defendants for the partition of ancestral property and the plaint filed in the suit contained a pedigree. Of these defendants only one, namely Shivajirao while admitting the pedigree, alleged that Shripatrao, grandfather of Kashirao plaintiff was a Dasiputra (illegitimate son ). The other defendants did not raise this plea.

(2.) THE trial Court framed an issue about the illegitimacy and in the beginning placed the burden on the plaintiff Kesho Rao. Later on, the plaintiff submitted to the trial Court that the burden of proof should be thrown on defendant Shivajirao, who has admitted the paternity but merely challenged his legitimacy. The trial court considered the objection, and placed the burden of the Issue (Issue No. 1)on the defendant Shivajirao. Aggrieved by this order, defendant Shivajirao has filed this revision.

(3.) THE learned counsel for the applicant Mr. Patankar, contends that there is no presumption that a son born to a person ig a legitimate one. He has referred to section 112 of the Evidence Act, and contends that the presumption of legitimacy can be raised only if the marriage is proved to have been contracted validly. He has referred to Kanhaiya Bux Singh v. Ram Dei Kuer, AIR 1944 Oudh 162 (A), but it is unnecessary to consider the Oudh ruling because the facts of that case and the present one are poles asunder. In the Oudh case, recovery of the property was claimed by the plaintiff as a son of the lawfully married wife of a person, The defendant denied that the alleged wife ever gave birth to the child and further stated that the plaintiff was a son of a woman other than lawfully married wife. Their Lordships of the Supreme Court in gurcharan Singh v. The State of Punjab, (S) AIR 1956 SC 460 (B), have observed that reference to a reported case can only be by way of an illustration and that each case has its own peculiar facts and it is, therefore, always risky to appeal to precedents on questions of fact.