Deceased's Statements Acknowledging Blood Relationships Are Relevant Under Evidence Act If Made Before Dispute Arose: Kerala High Court

A Division Bench comprising Justice Sathish Ninan and Justice P. Krishna Kumar were considering a preliminary decree in a partition suit that had excluded one daughter from succession of the scheduled properties which originally belonged to one Krishnan, who died intestate on the ground that she was born within four months after the marriage of her parents.

The plaintiffs contended that even though the second plaintiff-daughter was born within four months of marriage, she was the biological child of Krishnan since the first plaintiff-wife and Krishnan were in a relationship even prior to their marriage.

The defendants disputed any premarital relationship of the intestate and first plaintiff.

The Trial Court has held that the plaintiffs had failed to establish the paternity of the second plaintiff and directed the partition of the plaint schedule properties only among plaintiffs no. 1, 3, and 4 (wife and minor sons).

The Court examined whether the evidence on record was sufficient to sustain the claim advanced by the plaintiffs.

The Court considered statements made by the intestate acknowledging paternity, and his conduct treating the child as his own. The Court noted that the deposition of the wife that from the birth of the second plaintiff, Krishnan (intestate) consistently acknowledged and treated her as his daughter can be seen from several official records, including the passport. Pension payment order, and Employees' Provident Fund passbook.

The Court thus held that the statement made by the intestate of the special means of knowledge of his relationship by blood with the child at the time when the child was conceived, which was much prior to the commencement of the dispute, is a relevant fact under Section 32(5) of the Evidence Act.

“Statements relating to the existence of any relationship by blood, marriage, or adoption between persons are relevant, provided that the person making such a statement had special means of knowledge of the relationship and that the statement was made before the dispute was raised.” Court noted.

It further observed that the conduct of a person acknowledging and treating a child as his own constitutes a relevant opinion under Section 50 of the Evidence Act and may be proved by witnesses who directly observed such conduct.

The Court has also noted that Section 50 of the Evidence Act speaks not merely about the opinion of a person having special knowledge on the disputed relationship. It refers to a judgment or belief, or a conviction, resulting from what one thinks on a particular relationship between two persons, which is manifested through conduct or behaviour indicating the existence of such a belief or opinion.

Referring to Dolgobinda Paricha v Nimai Charan Misra (AIR 1959 SC 914), the Court observed that the conduct of the person holding an opinion under Section 60 can be proved either by the testimony of the person himself or by the testimony of another person who personally witnessed such conduct within the meaning of Section 60 of the Evidence Act.

“The opinion of Krishnan, as expressed through his conduct and spoken to by PW1, is clearly relevant and carries significant probative value. This evidence enables the Court to form a reasoned opinion that the second plaintiff is indeed the daughter of late Krishnan.” Court held

The Bench reiterated that Section 112 of the Evidence Act raises a conclusive presumption of legitimacy for a child born during the continuance of a valid marriage, unless non-access between the spouses at the relevant time is proved. The Court emphasised that the statute does not require conception to occur after marriage; what is material is whether the husband had access to the wife at the time when the child could have been begotten.

Relying on the Supreme Court decision in Kamti Devi v. Poshi Ram [AIR 2001 SC 2226], the Court noted that even a child born immediately after marriage would fall within the protective sweep of Section 112, unless non-access to the wife is proved.

The Court observed that the trial court had erred in rejecting the claims of the plaintiffs holding that Section 112 of the Evidence Act could not be invoked merely because the child was conceived prior to the marriage.

The Court thus held plaintiff no. 2 to be the legitimate daughter of the intestate along with the other Class I heirs and allowed the appeal.

Case Title: Sujatha Krishnan and Ors v Radha Mohandas and Ors

Case No: RFA 290/ 2019

Citation: 2025 LiveLaw (Ker) 850

Counsel for Petitioners: R Sreehari, Sachin Vyas, P B Krishnan (Sr.)

Counsel for Respondents: M P Ashok Kumar, Bindhu Sreedhar, Asif N