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Women adultery will not suffice for proving the illegitimacy of the child

Kerala High Court

Santha W/O Sahadevan vs Vasu S/O Chami, Muthalamada And Ors. Etc. on 20/7/1995

JUDGMENT : Thomas, J.
Brief : : Even proof that the mother committed adultery with any number of men will not of itself suffice for proving the illegitimacy of the child

1. A question of law has been mooted in this appeal, whether Section
41(b) of the Specific Relief Act, 1963 (for short the Act’) would
prevent a Court from granting injunction in respect of proceedings
pending in the same Court. Learned counsel lor the appellant canvassed
that the decision in Raghavan v. Sankaran (1992 (2) Ker LT 959)
rendered by a Teamed single Judge of this Court is not correct law.

2. Appellant is the third defendant in a suit for partition instituted
by her two brothers-in-law. The impugned order is a temporary
injunction which restrains the appellant from proceeding with an
earlier suit filed by her (O.S. No. 104/86) in the same Court. More
facts are these :

3. Suit properties belonged to the father-in-law of the appellant
(Chami by name) who died in 1978. Chami was survived by his widow and
four children. Appellant is the widow of Sahadevan, one of the sons of
Chami. (Sahadevan died in 1984). Appellant filed O.S. No. 104/86 in the
Sub-Court, Palakkad against her mother-in-law for partition of the
present suit property. In the said suit present plaintiffs were not
parties, as the appellant then contended that there was an oral
partition in the family in 1969 in which the suit property was allotted
to the share of two sons of Chami (Chandran and Sahadevan) and that the
said Chandran (who is second defendant in the present suit) had sold
his half right in favour of Sahadevan in 1972. A preliminary decree has
been passed by the Court in the said suit declaring the right claimed
by the appellant.

4. Plaintiffs contended in the present suit filed in the same Sub-Court
that appellant is entitled only to 1/10th share in the suit property
and that the plaintiffs put together are entitled to 4/10th snares,
When appellant admitted that the property belonged to Chami who died
only in 1978, how could the appellant possibly resist the plaintiffs’
stand that the oral partition of 1969 has no legal force. If no
registered document has been created, the right of Chami could not have
been transferred to Chandran or Sahadevan. So prima facie the
plaintiffs are entitled to the share in the suit property. The next
question, therefore, is whether the injunction order prayed for could
have been granted in law.

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5. Learned counsel for the appellant contended that Section 41(b) of
the Act contains an embargo against grant of injunction restraining a
person from prosecuting any legal proceeding in a Court of law and that
embargo would cover the earlier suit (O.S. No. 104/86). Section 41(b)
of the Act reads thus:

“Injunction when refused.– An injunction cannot be granted-

(b) to restrain any person from instituting or prosecuting any
proceeding in a Court not subordinate to that from which the
injunction is sought.”

There would have been no difficulty if the earlier suit was pending in
a Court which is subordinate to the Court which passed the impugned
order because the interdict provided in Section 41(b) would not then be
applicable at all. Equally so, there would have been no difficulty if
the earlier suit was pending in a superior Court since the embargo in
the section would apply to such a case. In a third alternative, even if
the earlier suit was pending in another Court of equal status the
position would not have been different in view of the principle of law
laid down by the Supreme Court in Cotton Corporation of India Ltd. v.
United Industrial Bank (AIR 1983 SC 1272). This is on the premise that
such a Court is co-ordinate with the Court before which the application
for injunction is made.

6. But the position in this case is that the earlier suit is pending in
the same Court. Hence the question is whether the embargo envisaged in
Section 41(b) would prevent that Court from granting the injunction in
respect of a proceeding pending in that Court. The Supreme Court in
Cotton Corporation of India’s case (AIR 1983 SC 1272) (cited supra) has
covered a wide region pertaining to Section 41(b) of the Act. But the
Supreme Court, has left this point unresolved with the observation (at
the end of para-9) that “there is an unresolved controversy whether a
Court can grant an injunction against a person from instituting or
prosecuting a proceeding before itself but that is not relevant in the
present circumstances and we do not propose to enlarge the area of
controversy.” Thus, we have to take a decision on that point unaided by
the Apex Court decision.

7. In order to understand the scope of the embargo contained in Section
41(b) of the Act it would be useful to refer to the corresponding
provision in the Specific Relief Act, 1887 (for short ‘the Repealed
Act’). Its precursor was Section 24(5) of the English Judicature Act of
1873 which prevented the Common Law Courts and Chancery Division from
granting injunction against any proceeding pending before the High
Court of Justice or the Court of Appeal. That principle was adopted in
India through Section 56 of the Repealed Act. Relevant portion of
Section 56 read thus :

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“Injunction cannot be granted:–

(b) to stay proceeding in a Court not subordinate to that from which
the injunction is sought.”

8. There was an earlier thinking that the injunction envisaged in the
said section is only the perpetual injunction granted by the Court and
not temporary injunction since there is a particular provision in the
Code of Criminal Procedure for regulating such temporary injunctions.
That line of thinking was given a quietus by the Supreme Court in
Cotton Corporation of India’s case (AIR 1983 SC 1272) (cited supra) by
holding that the interdict contained in Section 41 would apply to all
kinds of injunctions, whether temporary or permanent. Courts have often
adopted the interpretation that since the embargo contained in Section
56 of the Repealed Act is meant only as against a Court, it did not
denude the Court of its powers to injunct a party from prosecuting the
proceedings in any Court, whether subordinate or superior. However, the
change made in the phraseology resulting in the present shape of
Section 41(b) of the Act would keep the above interpretation at bay
since the injunction now envisaged in Section 41 of the Act is against
the person who institutes or prosecutes other legal proceedings.

9. Section 41(b) of the Act contains a combination of two negatives
such as “cannot” in the introductory portion and “not” in the operative
portion. The theory that double negatives would amount to a positive
does not help us in this context because the Legislature could easily
have framed the section in a positive form if its intention was like
that. The object is not to permit the Court to issue injunction to
restrain any person from instituting or prosecuting any proceeding in a
Court subordinate to it, but to curtail the powers of the Court in
interfering with the proceedings pending in other Courts.

10. Proceedings pending in superior Courts and Courts of equal grade
(co-ordinate Courts) cannot be regulated or controlled by other Courts
as a matter of public policy. This is the clear message which can be
discerned from the section. But should a Court be prevented from
regulating its own proceedings? If the Court becomes helpless in
controlling its own proceedings the consequence would sometimes be very
hard. The interdict contained in Section 41(b) must not, therefore, be
stretched to the extent of rendering a Court helpless in preventing
abuses of its own proceedings.

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11. In Raghavan v. Sankaran (1992 (2) Ker LT 959) one of the reasons
highlighted by the learned single Judge is thus:

“Suppose a Court makes an order or decree which is subsequently
discovered to be the result of fraud or abuse and the party affected
adversely seeks an injunction to restrain the opposite party from
taking advantage of the order obtained by fraud or abuse of the
Court’s process. If Section 41(b) were applied to such cases the
results would be disastrous.”

Learned Judge has rightly observed in the decision that Shamsuddin, J.
has not considered this aspect in Devasia Chacko v. Venkita Krishna
Iyer (1992 (1) Ker LT 850) since that point was neither urged nor
raised in that case.

12. Learned counsel for the appellant referred to the decisions in
Sethurayar v. Shanmugam Pillai (ILR 21 Mad 353) and Ehsan Beg v. Rahmat
Ali (152 IC 798) in support of his contention that the interdict
contained in Section 56 of the Repealed Act was interpreted as
applicable to the same Court. In the Madras decision no reasoning was
given for taking such view. In Ehsan Beg’s case (ILR 21 Mad 353) (cited
supra) it is not clear whether the injunction was sought to be issued
against proceedings pending in the same Court.

13. In Ram Sadan Biswas v. Mathura Mohan (AIR 1925 Cal 233) a learned
single Judge of the Calcutta High Court has dissented from the Madras
decision (cited supra) and observed that “it is difficult to conceive
on what principle a Court can be said to be not empowered to do in
respect of proceedings before itself what it thinks proper in respect
of proceedings before another Court subordinate to it”. A Division
Bench of the Patna High Court had quoted the above decision of Calcutta
High Court with approval in Radha Madhab v. Rajendra (AIR 1933 Patna

14. We reiterate our conclusion in the light of the above discussion
that the interdict contained in Section 41(b) is not applicable when
injunction is to be issued in respect of the proceedings pending in the
same Court. The principle of law has been correctly stated by Guttal,
J. in Raghavan v. Sankaran (1992 (2) Ker LT 959).

For all the above reasons, we dismiss this appeal, but without any order as to costs.

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