JUDGMENT R.L. Khurana, J: The appellants, who were the defendants No. 1 to 3 and 6 before the learned trial Court, have preferred the present second appeal against the judgment and decree dated 11:9.1997 of the learned District Judge, Solan, passed in C.A. No. 23-S/13 of 1996 modifying the judgment and decree dated 27.8.1996 passed by the learned Senior Sub Judge, Solan, in Civil Suit No. 207/1 of 1991. 2. Respondent No. 1 before this court was the plaintiff while respondents 2 and 3 were the defendants No. 4 and 5 respectively before the learned trial Court. The parties are hereinafter being referred to accordingly. 3. Briefly, the facts of the case may be thus stated. One Balak Ram son of Mohar Singh owned property in village Jabal Jamrot, Pargana Haripur, Tehsil and District Solan. He died on 31.10.1987. After his death his estate came to be mutated in favour of defendants No. 1 and 2, his grand sons, on the basis of a will dated 4.12.1978 alleged to have been executed in their favour by the deceased Balak Ram, on 20.2.1988 vide mutation No. 1313. 4. The plaintiff by claiming himself to be a son of the deceased Balak Ram, filed a suit for declaration to the effect that mutation No. 1313 dated 20.2.1988 in favour of defendants No. 1 and 2 is wrong, illegal, null and void and that the plaintiff and defendants 3 and 4 being the sons, and defendants No. 5 and 6 being the daughters of the deceased Balak Ram are the joint owners and in possession of the estate of the deceased Balak Ram in equal shares and that the alleged will dated 4.12.1978 (wrongly described in the plaint as dated 23.12.1987) as null and void, in operative and beyond the competency of the deceased Balak Ram, and even otherwise being the result of fraud, misrepresentation etc., and the same has no effect whatsoever on the rights, title and interest of the plaintiff. 5. Accordingly to the plaintiff the estate was inherited by the deceased Balak Ram from his father Shri Mohar Singh and as such the same was ancestral in his hands. The deceased Balak Ram a Hindu and having joint a Hindu Family consisting of himself, the plaintiff and the defendants. 5. Accordingly to the plaintiff the estate was inherited by the deceased Balak Ram from his father Shri Mohar Singh and as such the same was ancestral in his hands. The deceased Balak Ram a Hindu and having joint a Hindu Family consisting of himself, the plaintiff and the defendants. He was governed by Hindu Law and custom in the matters of alienation and succession whereby he could not bequeathed the ancestral property by way of will. It was further pleaded that no will was executed by the deceased Balak Ram during his life time. The will, if any, is forged and fabricated and consequently the mutation of inheritance sanctioned on 20.2.1988 is illegal, null and void. 6. The defendants while resisting the suit admitted that the deceased had inherited the property from his father Mohar Singh, They, however, denied that such property was ancestral joint Hindu Family property in the hands of the deceased. They also denied that the deceased was governed by custom in the matters of alienation and succession. They pleaded that the deceased Balak Ram during his life time in a sound disposing mind on 4.12.1978 had executed a valid will in favour of defendants NO. 1 and 2 which came to be registered in the office of the Sub Registrar on 23,12.1987 after the death of the deceased Balak Ram. It was further pleaded that Smt. Durgi wife of the deceased Balak Ram had deserted her husband during his life time while he was in service at Chandigarh. She developed illicit relations with one Mehar Singh plaintiff and defendant No. 4 were born to Smt. Durgi from the lions of the said Mehar Singh. The defendant, therefore, denied the plaintiff and defendant No. 4 to the sons of deceased Balak Ram. 7. On the pleadings of the parties, following issues were framed by the learned trial Court:- 1. Whether the mutation No. 1313 dated 20.2.88 is illegal, null and void and not operative against the plaintiff as alleged? OPP 2. Whether the plaintiff and defendants No. 3 and 6 are joint owners in possession of the suit land as alleged ? OPP 3. Whether there is a validly executed will in favour of defendants No. 1 and 2 as alleged ? 4. Whether the plaintiff has no cause of action to file the present suit ? OPD 5. OPP 2. Whether the plaintiff and defendants No. 3 and 6 are joint owners in possession of the suit land as alleged ? OPP 3. Whether there is a validly executed will in favour of defendants No. 1 and 2 as alleged ? 4. Whether the plaintiff has no cause of action to file the present suit ? OPD 5. Whether the suit is not maintainable as alleged ? OPD 6. Whether the suit is not properly valued for purpose of court fee and jurisdiction ? OPD 7. Whether the plaintiff is estopped from filing the present suit is alleged ?OPD 8. Whether the suit is within time ? OPP 9. Whether the suit is bad for want of better particulars, as alleged ? OPD 10. Whether the alleged will in favour of defendants 1 and 2 is the result of fraud etc. as alleged ? OPP 11. Relief. 8. The learned trial Court decided issues No, 1, 2 and 10 against the plaintiff and issues No. 3 to 5 and 8 in favour of the defendants. Issues No. 6, 7 and 9 were fond against the defendants. Consequent upon such findings, the suit of the plaintiff was dismissed by the learned trial Court on 27.8.1996. 9. The plaintiff went up in appeal before the learned District Judge, Solan, who allowed such appeal partly on 11.9.1997. The plaintiff and defendant No. 4 were held to be the sons of deceased Balak Ram. The property in the hands of deceased Balak Ram was held to be ancestral. It was also held that the deceased constituted a Joint Hindu family. Will Ex. DW I/A by the deceased Balak Ram was held to be valid to the extent of his share in the coparcenary property. 10. Feeling aggrieved, the defendants 1 to 3 and 6 are before the Court by way of the present second appeal, which has been admitted for hearing on the following substantial questions of law :- 1. Whether the relationship, particularly regarding parentage, is required to be proved strictly in consonance with the provisions of Section 50 and 600 of the Indian Evidence Act ? Can the evidence of persons who having no special means of knowledge of such relationship be held to be admissible and are not the findings of the lower appellant court unsustainable which are based on such inadmissible evidence ? 2. Can the evidence of persons who having no special means of knowledge of such relationship be held to be admissible and are not the findings of the lower appellant court unsustainable which are based on such inadmissible evidence ? 2. When it was duly established that Smt. Durgi had illicit relationship with Mehar Singh in whose company she had begotten the plaintiff and defendant No. 4, could the learned lower appellate court raise the presumption as envisaged under Section 112 of India Evidence Act relating parentage of Shri Balak Ram deceased from whom she severed all the relationship, merely on the ground that there was no legal divorce between Smt. Durgi Devi and Shri Balak Ram ? 3. Whether Ext. P-2 was inadmissible in evidence having not been proved in accordance with law and findings based on the same are illegal and unsustainable? 4. When the learned lower Appellate Court has held the custom to have been abrogated on account of the provisions of Section 4 and 30 of the Hindu Succession Act, was not the will executed by Shri Balak Ram in favour of defendants No. 1 and 2 valid for the entire property when its due executing and validity has been upheld? 5. Whether the findings of the learned lower appellate Court are incorrect to hold the property firstly to the Joint Hindu Family property, secondly ancestral property and thereby restricting the validity of the will executed by shri Balak Ram qua his coparcener interest in the property without holding that there existed a coparcener amongst the parties to the suit and ascertaining the interest of Shri Balak Ram therein? 11. I have heard the learned counsel for the parties and have also gone through the record of the case. My findings on the above questions are as under:- Questions No. 1 and 2: Both these questions are inter-linked and inter connected and, as such, are being taken up together. 12. The learned District Judge in coming to the conclusions that the plaintiff and defendant No. 4 are the sons of the deceased Balak Ram, has relied upon the presumption under Section 112, Evidence Act, 1872, which reads :- "112. 12. The learned District Judge in coming to the conclusions that the plaintiff and defendant No. 4 are the sons of the deceased Balak Ram, has relied upon the presumption under Section 112, Evidence Act, 1872, which reads :- "112. Birth during marriage, conclusive proof of legitimacy The Fact that any 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, the mother remaining unmarried, shall be conclusive proof that the is the shown that the parties to the marriage had no access to each other at any time when he could have been begotten". 13. The rule, contained in the above Section, that continuance of a valid marriage will prevent an inference being drawn to the affect that the children born to a woman during the continuance of the valid marriage were born to another person as a result of adulterous intercourse is only a rule of evidence. The presumption which Section 112, Evidence Act, 1872, contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the Section, namely, non-access between the parties to the marriage at a time when according to the ordinary course of nature, the husband could have been the father of the child. 14. The Supreme Court in Chilukuri Venkateswarlu vs. Chilukuri Venkatanarayana, AIR 1954 SC 176, while dealing with the question of presumption under Section 112, Evidence Act, 1872, has held :- "It may be stated at the outset that the presumption, which section 112 of the Indian Evidence Act contemplates, is a conclusive presumption if law which can be displaced only by proof of the particular fact mentioned in the section, namely, non-access between the parties to the marriage at a time when accordingly to the ordinary course of nature the husband could have been the father of the child. Access and non-access again connote, as has been held by the Privy Council: Vide Karapaya vs. Mayandi, AIR 1934 PC 49(A), existence and non-existence of opportunities for marital intercourse. It is conceded by Mr. Access and non-access again connote, as has been held by the Privy Council: Vide Karapaya vs. Mayandi, AIR 1934 PC 49(A), existence and non-existence of opportunities for marital intercourse. It is conceded by Mr. Somayya, who appeared on behalf of the plaintiff appellant, that non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favored by law it is necessary that proof of non-access must be clear and satisfactory......" 15. Dealing with a similar question, it has been held by a learned single Judge of the Kerala High Court in Sivadasan vs. Govittdan, 1985 Cri. L.J. 1553, as under: "What Section 112 of the- Evidence Act lays down is a rule of prudence which is in accordance with the rule o natural justice. Subsistence of valid marriage involves mutual rights and obligations. Husband is entitled to the company of the wife and the wife is entitled to keep aloof only when she is justified in doing so. Husband is having conjugal rights against the wife and he can legally enforce the same. In a cultured society, chasity is the rule and lapses from virtue is the exception. Presumption of law could always be only in favour of the rule and not the exception. Exception is something to be proved in each case depending upon the facts and circumstances. Morality and innocence are legal presumption which could be accepted as a matter of course and the converse are matters to be proved by positive evidence. This is the basis of the presumption of paternity which is available only to an offspring of a legally wedded couple. Lapses from virtue and non-access are matters for proof and not for presumption. The presumption which is the basis of the section is that he is the father whom the marriage indicates. That presumption arises from the conception in favour of marriage and against concubine in a civilised society. The presumption is in favour of legitimacy and against bastardy. Public policy demands such a presumption. Law in general presumes against vice and immorality. The presumption which is the basis of the section is that he is the father whom the marriage indicates. That presumption arises from the conception in favour of marriage and against concubine in a civilised society. The presumption is in favour of legitimacy and against bastardy. Public policy demands such a presumption. Law in general presumes against vice and immorality. The legal presumption that he is the father whom the nuptials show to be so is the foundation of every ones birth and status. These are the basic features on which the presumption embodied in Section 112 of the Evidence Act rests. 16. But that presumption could definitely to be rebutted by adducing evidence. When either by admission or evidence non-access during the relevant period is proved and access of the paramour is established, the presumption is rebutted. It is not necessary in every case that the marriage should be dissolved before a paramour could be held to be father of the child. When a married woman has admitted or proved to have lived for years with a man other than her husband and when it is further of the child or children born during that time, the presumption of legitimacy must be taken as rebutted. Lapses from virtue and non-access of the husband, though they are exceptions to the normal rule are matters capable of proof in individual cases. Incarceration in jail, physical ouster by a paramour or non-access by distant residence are possible instances". 17. In Chandramathi vs. Pazhetti Balan, AIR 1982 Kerala 68, the wife and become pregnant after husband had undergone vasectomy operation. In a petition for divorce by the husband, rt was averred that the wife became pregnant by illicit intercourse. It was held that though the husband had undergone vasectomy operation, in the absence of any reliable material to show that such vasectomy operation was successful, in view of the presumption available under Section 112, Evidence Act, it could be said that the child born to his wife during wedlock was not born to him. Dealing with the word "access", appearing in section 112, Evidence Act, it was held :- ".......Section 112 provides for conclusive proof of legitimacy of a child born during the continuance of a valid marriage. Dealing with the word "access", appearing in section 112, Evidence Act, it was held :- ".......Section 112 provides for conclusive proof of legitimacy of a child born during the continuance of a valid marriage. The only exception contemplated by the section is proof that the parties to the marriage had no access to each other at any time when the child could have been begotten. That the husband had undergone a successful vasectomy operation is a circumstance which will negative the presumption of the paternity of the child that could have been begotten only after such operation was evidently not envisaged at the time the section was enacted. The answer perhaps is that the terms access has to be understood as opportunity to procreate and not merely opportunity for sexual intercourse...." The above ratio was reiterated in Chirutitakutty vs. Subrarnaruan, AIR 1987 Kerala 5. 18 Again in Perumal Nadar (dead) by Legal Representative vs. Ponnmwatni Nadar (minor), AIR 197 3 SC 2352, where the parties, that is, husband and wife were living separately Song before the birth of the child, it was that unless the husband is able to establish absence of access, presumption raised under Section 112, Evidence Act will not be displaced. The proof of non access must be clear and satisfactory. 19. In the present case, admittedly the plaintiff and defendant No. 4 were born to Smt. Durgi during the continuance of her marriage with the deceased Balak Ram. Therefore, in the absence of cogent and reliable evidence as to non-access on the part of the deceased Balak Ram, presumption under Section 112, Evidence Act would be available and it will have to be held that plaintiff and defendant No. 4 are the sons of deceased Balak Ram. 20. Since the onus to rebut the presumption was on the defendants, it was for them to prove that plaintiff and defendant No. 4 are not be sons of the deceased. Section 50 and 60 Evidence Act cannot be pressed into service by the defendants and to contend that the plaintiff has failed to prove his relationship with the deceased Balak Ram. Question No. 3 21. One of the document relied upon by the learned District Judge in coming to the conclusion that the plaintiff is the son of the deceased Balak Ram is Ex. P2 the school leaving certificate. Question No. 3 21. One of the document relied upon by the learned District Judge in coming to the conclusion that the plaintiff is the son of the deceased Balak Ram is Ex. P2 the school leaving certificate. The learned District Judge, while dealing with this document has observed: "On the other hand, there is a public document in the shape of school leaving certificate Ex. P2 issued by Head Master, Government Primary School, Jabal Jamrot recording Kuldip Chand alias Sham Lai to be the son of Shri Balak Ram. In the said public document as such Kuldip Chand alias Sham Lai was recorded son of Shri Balak Ram". 22. The findings of the learned District Judge holding Ex. P2 to be a public document and admitting the same without formal proof cannot be questioned by the defendants in the present appeal since no objection was raised by them when such document was tendered and received in evidence. It has been held in Dasondha Singh & Ors. vs. Zalam Singh & Ors., 1997 (1) P.L.R.735, that an objection as to the admissibility and mode of proof of a document must be taken at the trial before it is received in evidence and marked as an exhibit. Even otherwise such a document falls within the ambit of section 74, Evidence Act, and is admissible per se without formal proof. 23. Even if such document is excluded from consideration, the defendants, as held under questions No. 1 and 2 above, have not been able to rebut the presumption available under Section 112, Evidence Act. Question No. 5 24. The learned District Judge has held the property in the hand of the deceased Balak Ram to the coparcenary property. Be it stated that such findings cannot be sustained. The plaintiff has nowhere pleaded that the property in the hands of his father the deceased Balak Ram was a coparcenary property. His pure and simple case, as set out in the plaint, is that the property in the hands of the deceased was ancestral and under the custom governing the parties such ancestral property could not be bequeathed by way of a Will. By holding the property in the hands of the deceased Balak Ram to be coparcenary property, the learned District Judge has in fact made out a new case for the plaintiff. By holding the property in the hands of the deceased Balak Ram to be coparcenary property, the learned District Judge has in fact made out a new case for the plaintiff. On this short ground alone, the findings of the learned District Judge deserve to be set aside. Question No. 4 25. The two courts below have concurrently held the Will Ex. DW I/A to have been validly executed by the deceased Balak Ram in favour of defendants No. 1 and 2. Such concurrent findings being purely on a question of fact, that is, with regard to execution of the will, cannot be interfered with in the present Second Appeal. 26. There is no denying that the property in the hand of the deceased Balak Ram was ancestral since admittedly he had inherited the same from his father. 27. In so far as the question whether under the custom governing the parties, a Will could be executed in respect of ancestral property is concerned, the same is no more resintegra. A learned Single Judge of this court in Kartari Devi & Ors. vs. Tola Ram, 1992 (1) Sim L.C. 402, has held that in view of section 30 read with section 4 of the Hindu Succession Act, 1956, a male Hindu governed by Mitakshara system is not debarred from making a Will in respect of coparcenary/ancestral property. 28. The above view of the learned single Judge was upheld and approved by a Division Bench of this Court in Tek Chand & Anr. vs. Moot Raj & Ors., 1997 (2) Hindu L.R. 306. 29. In view of the above ratio, the learned District Judge has erred in upholding the validity of the Will Ex.DW I/A only to the extent of the interest of the deceased in the property. Such findings are wrong and liable to be set aside. 30. There is yet another significant aspect of the case. The present suit has been filed by the plaintiff for a declaration that the mutation of inheritance bearing No. 1313 sanctioned on 20.2.1988 is wrong, illegal, null and void and not binding on his rights and that the land - property in dispute is jointly owned and possessed by him and defendants No. 3 to 6 in equal shares. The present suit has been filed by the plaintiff for a declaration that the mutation of inheritance bearing No. 1313 sanctioned on 20.2.1988 is wrong, illegal, null and void and not binding on his rights and that the land - property in dispute is jointly owned and possessed by him and defendants No. 3 to 6 in equal shares. Further that the Will dated 4.12.1978 is null and void, and inoperative beyond the competency of the deceased and also being the result of fraud, misrepresentation etc. Such suit was filed on 21.5.1991. 31. Undisputedly, the period of limitation prescribed under the law for such a suit is three years from the date the cause of action accrued to the plaintiff. It has been averred by the plaintiff in para 9 of his plaint, as to cause of action, as under:- "That the cause of action has arisen on 31.10.87 from death on 20.2.88 from mutation and on various other dates from the knowledge of the illegalities and wrongful actions of village Jabal Jamot Paragana Haripur Teh. and Distt. Solan within the jurisdiction of this court, hence this court has jurisdiction in the matter". 32. The learned trial Court, while recording the findings under issue No. 8 has held the suit to be not within time. No findings have been recorded by the learned District Judge on the question of limitation. Considering the pleadings as a whole as set out in the plaint, the suit of the plaintiff as laid, on the face of it, is not within time. There are neither pleadings nor evidence as to the date on which the plaintiff had derived the knowledge about the mutation and/or the Will. 33. Resultantly, the present appeal is allowed. The judgment and decree dated 11.9.1997 of the learned District Judge are set aside and that of the learned trial Court dismissing the suit of the plaintiff are restored. No order as to costs. Appeal allowed