Holding

The presumption of legitimacy under Section 112 of the Evidence Act is conclusive and cannot be displaced by a DNA test; a direction for DNA testing may be issued only in exceptional cases, so the trial court's order was unsustainable.

Summary

The appellant, Banarsi Dass, objected to the grant of a succession certificate to Mrs. Teeku Dutta, alleging she was not the deceased's daughter. He moved an application under Order 151 CPC for a DNA test to establish paternity, which the trial court allowed. The Delhi High Court set aside that order, holding that the scope of a succession certificate proceeding is limited and DNA testing should not be ordered as a matter of routine. On appeal, the Supreme Court examined Section 112 of the Indian Evidence Act, which creates a conclusive presumption of legitimacy for a child born within a marriage, rebuttable only by strong evidence of non‑access, not merely by DNA results. The Court affirmed that DNA tests cannot override this statutory presumption and may be directed only in exceptional cases, thus upholding the High Court's decision and dismissing the appeal.

Issues considered

The applicability of Section 112 of the Indian Evidence Act to rebut the presumption of legitimacy in a succession certificate proceeding.
Whether a court may order a DNA test as routine evidence to determine paternity in such proceedings.
The extent of proof required to displace the presumption of legitimacy under Section 112.
The proper scope of evidence in granting a succession certificate under the Indian Succession Act, 1925.

Legislation cited

Subjects

DNA testsuccession certificateSection 112presumption of legitimacypaternityburden of proofIndian Evidence ActIndian Succession ActCivil Procedureheirship

Judgment

A
SHRI BANARSI DASS
v.
MRS. TEEKU DUTTA AND ANR.

APRIL 27, 2005
B
[ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]

Indian Evidence Act, 1872-Section 112 :

Direction for DNA test given in a proceeding for issuance of Succession
c
Certificate-Propriety of-Held: The purpose of issuing Succession Certificate
is to facilitate collection of dues and to protect debtors dealing with the
alleged representatives of the deceased persons and not to establish the title
of the grantee-The scope of enquiry is very limited and the parties are
required to prove their respective cases by such evidence produced during D
trial rather than creating evidence by DNA test-Direction for DNA test may
be given only in deserving cases and not as a matter of routine-Indian
Succession Act, 1925-Section 372.

Conclusive presumption under-The child born of a married woman is
deemed to be legitimate and burden of proving illegitimacy is on the person E
alleging it-Law in general presuming against vice and immorality and that
every person is legitimate.

DNA test-Conclusiveness of presumption under Section 112-Held:
Cannot be rebutted by DNA test-Proof of non-access to each other is the F
only way to rebut that presumption.

Maxims-pater est quern nuptiae demonstrant-Meaning of

Respondent no.I filed a petition for grant of Succession Certificate
in respect of properties of the deceased claiming herself to be his daughter.
Appellant filed objection alleging that ·respondent no. I was not the G
daughter of the deceased and moved an application for DNA test to
;.- establish the paternity of respondent no.I. Trial court allowed the
' application. Respondent no.1 preferred revision. High Court held that such
a direction could not be given as the scope of the enquiry was very limited
923 ff
924 SUPREME COURT REPORTS [2005] 3 S.C.R.

A and the trial court being a testamentary court ought to have left the parties
to prove their respective cases by such evidence produced during trial,
rather than creating evidence by directing DNA test. Hence the present
appeal.

Dismissing the appeal, the Court
B
HELD : t. In matters of this kind 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 whole burden of
C proving so on the person who is interested in making out the illegitimacy.
The law presumes both that a marriage ceremony is valid, arid 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
D 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 probabilities. (928-A-CI

Dukhtar Jahan (Smt.) v. Mohammed Farooq, (198711 SCC 624 and
Amatjit Kaur v. Harbhajan Singh and Anr., (2003110 SCC 228, referred to

E 2. Section 112 of the Evidence Act was enacted at a time when the
modern 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
F of Section 112 of the Act e.g. if a husband and wife were living together
during the time of conception ut 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 ~he fatherhood of a child of which he
may be innocent. But even in such a case the law leans in favour of the
G 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.
(928-H; 929-A-CI

·H Kamti Devi (Smt.) and Anr. v. Poshi Ram, (200115SCC311, relied on
SHRI BANARSI DASS v. TEEKU DUTTA [PASA YAT, J.] 925
3. A Succession Certificate is intended to protect the debtors, which A
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.
rn order to succeed in the succession application the applicant has to
adduce cogent and credible evidence in support of the application. The
B
- respondents, if they so choose, 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. DNA test is not to be directed as a matter of routine and
only in deserving cases such a direction can be given. (929-E-F-G) C
Goutam Kundu v. State of West Bengal and Anr., (19931 3 SCC 418,
relied on

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2918 of2005.
D
From the Judgment and Order dated 16.1.2004 of the Delhi High Court
in C.R. No. 656 of 2000.

R.P. Sharma for the.Appellant.

Mrs. Rani Chhabra, Y.P. Ahuja and Ms. Sudha Pal for the Respondents. E
The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Leave granted.

The core question involved in this appeal is whether a direction for F
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').

Challenge 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 G
Judge, Delhi dated 20.12.1999 whereby he had allowed an application under

-
I Section 151 of the Code of Civil Procedure, 1908 (in short the 'CPC') filed
by the appellant seeking DNA test of the respondent no. I Smt. Teeku Dutta
and Sh. Ram Saran Dass Sharma, (who is not a party in this appeal).
Respondent No. I has filed case No.86 of 1944 for grant of succession
certificate under Section 372 of the Act. H
926 SUPREME COURT REPORTS (2005) 3 S.C.R.

A Background facts in a nutshell are as follows :

The respondent No. l 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
B 'Succession Act'). It was indicated in the petition that the deceased had died
intestate leaving behind _five brothers- Sh. Banarsi Dass, Sh. Amar Nath
Shanna, 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
C 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 imp leaded~ 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. Evidence has been led and documentary evidence
was also filed in support of the respective stands. At this stage the application
D under Section 15 l 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
E Saran Dass Sharma is alive, DNA test of Sh. Ram Saran Dass Shanna 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. It was 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
F 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
G "no _objections" filed by _other respondents n~mety· 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
- I

for the DNA test was willing to bear the cost of the said DNA test, there
H would not be any difficulty in directing DNA test.
SHRIBANARSI DASSv. TEEKU DUTTA [PASAYAT, J.) 927

The High Court found that this is not a fit case where such a direction A
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. B

In 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. c
Learned 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.

In Goutam Kundu v. State of West Bangal and Anr., [1993] 3 SCC 418 p
this Court held, inter alia, as follows :

"(I) That courts in India cannot order blood test as a matter of
course;

(2) Wherever applications are made for such prayers in order to E
have roving inquiry, the prayer for blood test cannot be entertained.

(3) 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 Evidence Act.

(4) The court must carefully examine as to what would be the F
consequence of ordering the blood test; whether it will have the effect
of branding a child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis.

It was noted that Section 112 of the Indian Evidence Act, 1872 (in G
short the 'Evidence Act') requires the party disputing the parentage 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
rebuttab\e one. Conclusive proof means proof as laid down under Section 4
of the Evidence Act.
H,
928' SUPREME COURT REPORTS [2005) 3 S.C.R.

A In 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 quern
nuptiae demon::trant (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
B 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
offiliation (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
C 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 probabilities.

In DukhtarJahan (Smt.) v. Mohammed Farooq, [1987] I SCC 624 this
Court held: (SCC p. 629, para 12) :
D
" ... 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
E 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
F
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."

G The view has been reiterated by this Court in many later cases e.g.
Amarjit Kaur v. Harbhajan Singh-and Anr., [2003] IO SCC 228.

We may remember that Sectio.n ll2 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
H contemplation of the legislature. The result of a genuine DNA test is said to
SHRI BANARSI DASS v. TEEKU DUTT A (PASA YAT. J.] 929

be scientifically accurate. But even that is not enough to escape from the A
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 B
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 3ll). c
The 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 co!lection of debts, to regulate the administration of
succession and to protect persons who deal with the alleged representatives D
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 E
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 e!>cablish 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 F
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 G
stands. DNA test is not to be directed as a matter of routine and only in
deserving Cl;lses 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. We, therefore, uphold it. It is
made clear that we have not expressed any opinion on the merits of the case H
930 SUPREME COURT REPORTS [2005] 3 S.C.R.

A relating to succession application.
Above 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.

B Appeal is dismissed with no orders as to costs.

b.G. Appeal dismissed.

.(

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