Dass Vs. Mrs. Teeku Dutta and Anr  Insc 285 (27 April 2005)
Pasayat & S.H. Kapadia
out of SLP(C) No.17427 of 2004) ARIJIT PASAYAT, J.
core question involved in this appeal is whether a direction for
Deoxyribonucleic Acid Test (commonly known as DNA test) can be given in a
proceeding for issuance of succession certificate under the Indian Succession
Act, 1925 (in short the 'Act').
in this Appeal is to the order of a learned Single Judge of the Delhi High
Court setting aside the order of learned Administrative Civil Judge, Delhi
dated 20.12.1999 whereby he had allowed an application under Section 151 of the
Code of Civil Procedure, 1908 (in short the 'CPC') filed by the appellant
seeking DNA test of the respondent no.1Smt. Teeku Dutta and Sh. Ram Saran Dass
Sharma, (who is not a party in this appeal). Respondent No.1 has filed case
No.86 of 1944 for grant of succession certificate under Section 372 of the Act.
facts in a nutshell are as follows:
respondent No. 1 filed a petition for grant of Succession Certificate in
respect of the properties of one Iqbal Nath Sharma (hereinafter referred to as
the 'deceased') claiming that she was his daughter and the only surviving Class
I legal heir under the Hindu Succession Act, 1956 (in short the 'Succession
Act'). It was indicated in the petition that the deceased had died intestate
leaving behind five brothers- Sh. Banarsi Dass, Sh. Amar Nath Sharma, Sh. Ram
Saran Dass Sharma, Sh. P.L. Sharma and Sh. K.C. Sharma. Originally Sh. Banarsi Dass
was not impleaded and rest four were impleaded. Out of them Sh. P.L. Sharma and
Sh. K.C. Sharma had expired and only Amar Nath Sharma and Ram Saran Dass Sharma
were alive and were impleaded as respondents to the petition. During the pendency
of the petition Banarsi Dass, was also impleaded. He filed objection to the
grant of Succession Certificate disputing Mrs. Teeku Dutta's claim. It was
stated that she was not the daughter of the deceased.
has been led and documentary evidence was also filed in support of the
respective stands. At this stage the application under Section 151 CPC was
moved by the objector Banarsi Dass alleging that the respondent Mrs. Teeku Dutta
was not the daughter of the deceased, but in fact is the daughter of Ram Saran Dass
Sharma and since the deceased and his wife both were dead it would not be
possible to subject them to a DNA test and compare with the DNA test of Mrs. Teeku
Dutta. Since Ram Saran Dass Sharma is alive, DNA test of Sh. Ram Saran Dass
Sharma and Mrs. Teeku Dutta would conclusively establish the paternity of Mrs. Teeku
Dutta. The application was opposed on the ground that it was malafide and was
made with a view to delay the proceedings.
further stated that the DNA test would not serve any purpose as sufficient
documentary evidence has already been brought on record. The trial court
allowed the application primarily on the ground that Mrs. Teeku Dutta had
initially concealed the fact that the deceased had five brothers and had
deliberately left out Banarsi Dass Sharma from the array of respondents, and
this casts doubt on the bonafides of the applicant's claim of being the
daughter of the deceased. The trial court considered the petition for grant of
succession certificate and the "no objections" filed by other
respondents namely Ram Saran Dass and Amar Nath Sharma to be somewhat
collusive. Another reason which appears to have weighted heavily with learned
trial judge was that the documentary evidence brought on record was not cogent
enough to show that she was the daughter of the deceased. Further the trial
court held that since the applicant for the DNA test was willing to bear the
cost of the said DNA test, there would not be any difficulty in directing DNA
High Court found that this is not a fit case where such a direction could be
given. It was noticed that the scope of the enquiry was very limited and the
trial court being a testamentary court should have left the parties to prove their
respective cases by such evidence produced during trial, rather than creating
evidence by directing DNA test. Accordingly, the Revision Petition filed under
Section 115 of the CPC by Mrs. Teeku Dutta was allowed.
support of the appeal learned counsel for the appellant submitted that the
trial court had kept in view the correct perspectives of the case and instead
of leaving the matter to be decided by oral and documentary evidence, the High
Court should have held that the conclusive DNA test would have provided
necessary material for an effective adjudication.
counsel appearing for the respondents submitted that the order of the High
Court is based on the correct legal position as regards the desirability of DNA
test in such matters.
Kundu v. State of West Bangal and Another (1993 (3) SCC 418) this
Court held, inter alia, as follows:
courts in India cannot order blood test as a matter
applications are made for such prayers in order to have roving inquiry, the
prayer for blood test cannot be entertained.
There must be a strong prima facie case in that the husband must establish
non-access in order to dispel the presumption arising under Section 112 of the
The court must carefully examine as to what would be the consequence of
ordering the blood test;
it will have the effect of branding a child as a bastard and the mother as an
one can be compelled to give sample of blood for analysis.
noted that Section 112 of the Indian Evidence Act, 1872 (in short the 'Evidence
Act') requires the party disputing the patronage to prove non-access in order
to dispel the presumption of the fact under Section 112 of the Evidence Act.
There is a presumption and a very strong one, though rebuttable one. Conclusive
proof means proof as laid down under Section 4 of the Evidence Act.
matters of this kind the court must have regard to Section 112 of the Evidence
Act. This section is based on the well-known maxim pater est quem nuptiae demonstrant
(he is the father whom the marriage indicates). The presumption of legitimacy
is this, that a child born of a married women is deemed to be legitimate, it
throws on the person who is interested in making out the illegitimacy, the
whole burden of proving it. The law presumes both that a marriage ceremony is valid,
and that every person is legitimate. Marriage of filiation (parentage) may be
presumed, the law in general presuming against vice and immorality.
It is rebuttable
presumption of law that a child born during the lawful wedlock is legitimate,
and that access occurred between the parents. This presumption can only be
displaced by a strong preponderance of evidence, and not by a mere balance of
Jahan (Smt.) v. Mohammed Farooq (1987 (1) SCC 624) this Court held:(SCC p. 629,
Section 112 lays down that if a person was born during the continuance of a
valid marriage between his mother and any man or within two hundred and eighty
days after its dissolution and the mother remains unmarried, it shall be taken
as conclusive proof that he is the legitimate son of the man, unless it can be
shown that the parties to the marriage had no access to each other at any time
when he could have been begotten. This rule of law based on the dictates of
justice has always made the courts incline towards upholding the legitimacy of
a child unless the facts are so compulsive and clinching as to necessarily
warrant a finding that the child could not at all have been begotten to the
father and as such a legitimation of the child would result in rank injustice
to the father. Courts have always desisted from lightly or hastily rendering a
verdict and that too, on the basis of slender materials, which will have the
effect of branding a child as a bastard and its mother an unchaste woman."
The view has been reiterated by this Court in many later cases e.g. Amarjit Kaur
v. Harbhajan Singh and Anr. (2003 (10) SCC 228).
remember that Section 112 of the Evidence Act was enacted at a time when the
modem scientific advancements with deoxyribonucleic acid (DNA) as well as
ribonucleic acid (RNA) tests were not even in contemplation of the legislature.
The result of a genuine DNA test is said to be scientifically accurate. But
even that is not enough to escape from the conclusiveness of Section 112 of the
Act e.g. if a husband and wife were living together during the time of
conception but the DNA test revealed that the child was not born to the
husband, the conclusiveness in law would remain irrebuttable. This may look
hard from the point of view of the husband who would be compelled to bear the
fatherhood of a child of which he may be innocent. But even in such a case the
law leans in favour of the innocent child from being bastardised if his mother
and her spouse were living together during the time of conception. Hence the
question regarding the degree of proof of non-access for rebutting the
conclusiveness must be answered in the light of what is meant by access or
non-access as delineated above. (See Kamti Devi (Smt.) and Anr. v. Poshi Ram
(2001 (5) SCC 311).
main object of a Succession Certificate is to facilitate collection of debts on
succession and afford protection to parties paying debts to representatives of
deceased persons. All that the Succession Certificate purports to do is to
facilitate the collection of debts, to regulate the administration of
succession and to protect persons who deal with the alleged representatives of
the deceased persons. Such a certificate does not give any general power of
administration on the estate of the deceased. The grant of a certificate does
not establish title of the grantee as the heir of the deceased. A Succession
Certificate is intended as noted above to protect the debtors, which means that
where a debtor of a deceased person either voluntarily pays his debt to a
person holding a Certificate under the Act, or is compelled by the decree of a
Court to pay it to the person, he is lawfully discharged. The grant of a
certificate does not establish a title of the grantee as the heir of the
deceased, but only furnishes him with authority to collect his debts and allows
the debtors to make payments to him without incurring any risk. In order to
succeed in the succession application the applicant has to adduce cogent and
credible evidence in support of the application. The respondents, if they so
chooses, can also adduce evidence to oppose grant of succession certificate.
The trial court erroneously held that the documents produced by the respondents
were not sufficient or relevant for the purpose of adjudication and DNA test
was conclusive. This is not a correct view. It is for the parties to place
evidence in support of their respective claims and establish their stands. DNA
test is not to be directed as a matter of routine and only in deserving cases
such a direction can be given, as was noted in Goutam Kundu's case (supra).
Present case does not fall to that category. High Court's judgment does not
suffer from any infirmity.
therefore, uphold it. It is made clear that we have not expressed any opinion
on the merits of the case relating to succession application.
being the position, the direction for DNA test as was given by the trial court
is clearly unsustainable and the High Court has rightly set it aside.
is dismissed with no orders as to costs.