JUDGMENT 1. Feeling aggrieved by the judgment and decree passed by learned Additional District Judge, Rajgarh, Camp at Biaora, in Civil Appeal No.5A/94 dated 12.10.1996 dismissing the suit, the plaintiff has come up in this second appeal. 2. In brief, the case of plaintiff is that defendant No.2 Ramnarayan is his real brother and defendant No.1 Saligram is his father as well as of defendant No.2. The agricultural land, description whereof has been given in para 2 of the plaint, is the disputed property in the present case. According to the plaintiff, the suit land is his ancestral land. Defendant No. I Saligram, who is father of plaintiff and defendant No.2, were four brothers. The common ancestor was one deceased Bhonji and after his death, partition took place between defendant No. 1 and his brothers and the suit land fell in the share of defendant No. 1. At the time of partition defendants 1 and 2 were residing jointly. The suit property is of Joint Hindu Family property of plaintiff and defendants 1 and 2. It is the further case of plaintiff that defendant No. 1 is having two sons and three daughters. Since defendant No.1 is the Karta of the Joint Hindu Family, hence his name was mutated in the revenue record and is continuing as such. According to plaintiff, he is having 1/3rd share in the suit property. The further case of plaintiff is that when he was minor and was having age in between 1-1/2 - 2 years, his mother Jankibai was maltreated by his father (defendant No 1) and she was asked to go away from the house. The plaintiff has been brought up by his mother. Defendant No.1 who is his father, did not discharge his duty as father and did not marry him. The plaintiff got married through his own earnings. 3. The plaintiff has been brought up by his mother. Defendant No.1 who is his father, did not discharge his duty as father and did not marry him. The plaintiff got married through his own earnings. 3. It has also been pleaded by the plaintiff that when he made demand of his share from the suit property, his father defendant No. 1 refused to give any share and stated that he will give the entire suit property to defendant No.2, as a result of which, on 14.2.1988 plaintiff called the Panchayat and made demand to provide his share, but defendants 1 and 2 did not agree to give any land as such he has filed the present suit praying therein that a declaratory decree be granted in his favour holding him to be 1/3rd share in the suit property. It has also been prayed that the suit land be partitioned and possession of his respective 1/3rd share be delivered to him. 4. During pendency of suit, plaintiff also brought Badamibai, Dhapubai and Ayodhyabai who are the daughters of defendant No.l Saligram and his sisters as parties, by way of amendment, as defendants 4, 5 and 6. These defendants did not file any written statement, however, defendants 1 and 2 namely Saligram and Ramnarayan filed a joint written statement. 5. In their written statement, defendants 1 and 2 have pleaded that plaintiff is not having any right, title and interest in the suit property which is exclusive of defendant No. 1 . Though in para 3 of their written statement, it has been admitted by them that the suit property was entered in the name of deceased Bhonji who was the father of defendant No. 1 and after his death, the suit property fell in the share of defendant No. 1. Further it has been pleaded in the written statement that plaintiff is not the son of defendant No. 1 nor he was born in his house. In para 6 of the written statement it has been pleaded that the averment of plaintiff that defendant No.1 after maltreating the mother of plaintiff namely Jankibai directed her to go from his house, has been emphatically denied. According to defendants 1 and 2 plaintiff is not the son of defendant No.1 and has not been born from the conception of defendant No.1 and Jankibai. According to defendants 1 and 2 plaintiff is not the son of defendant No.1 and has not been born from the conception of defendant No.1 and Jankibai. In special pleas, it has been pleaded by defendants that from the wedlock of defendant No.1 and Jankibai, four children were born, they are Ramnarayan (defendant No.2), Badambai (defendant No.4), Dhapubai (defendant No.5) and Ayodhyabai (defendant No.6). According to the defendants, Jankibai was having illicit relations with some person and it was seen by defendant No.1 and some other persons, as a result of which the dispute arose between defendant No.1 and Jankibai and ultimately in Samvat 2013(corresponding year 1956), she left the house of defendant No.1 and thereafter she did not come back to the house of defendant No.1 nor defendant No.1 ever met to her. According to defendants, plaintiff was born 4-5 years after the abandonment of Jankibai from the house of defendant No.1. It has also been pleaded that after Jankibai left the company of defendant No.1 the relationship of husband and wife were never established between them and there was no conception with defendant No.1. On these premised pleadings, it has been prayed that the suit be dismissed. 6. Learned trial Court framed necessary issues and after recording the evidence of the parties, decreed the suit of plaintiff. The appeal which was filed by defendants, has been allowed by impugned judgment and decree by learned first appellate Court and the suit of plaintiff has been dismissed. 7. In this manner, present second appeal has been filed by plaintiff assailing the impugned judgment and decree passed by learned first appellate Court. 8. This second appeal was admitted on 2.4.1998 on the following substantial question of law : "Whether the first appellate Court has committed an error of law in dislodging and demolishing the judgment and decree passed by the trial Court contrary to the principles of law laid down in AIR 1974 SC 405 [Baburao Bagaji Karemore and others v. Govind and others]?" 9. The contention of Shri Garg, learned senior counsel for the appellant is that the findings of trial Court ought not to have been interfered by learned first appellate Court unless and until it is unsound, perverse or based on grounds which are unsatisfactory by reason of material inconsistencies or inaccuracies and the first appellate Court should not interfere with the judgment of trial Court merely because it takes a different view from the evidence placed on record. The contention of learned senior counsel is that indeed the decision of Supreme Court Baburao Bagaji Karemore (supra), is on the same footing. It has also been put forth that while re-appreciating the evidence on the point of paternity, the learned first appellate Court has not held that the evidence led by the plaintiff's either unsound, perverse or is based on grounds which are not satisfactory by reason of material inconsistencies or inaccuracies and, therefore, the view taken by learned trial Court holding that plaintiff is the son of defendant No.1 and thereby decreeing the suit should not lightly be brushed aside. It has also been contended by learned senior counsel that since plaintiff is the son of defendant No.1, therefore, he is entitled to 1/3rd share in the suit property. On the point of paternity, it has been argued that cogent reasons have been assigned by learned trial Court holding the plaintiff to be the son of defendant No.1 and, therefore, in view of section 112 of the Evidene Act, it should be held that plaintiff is the legitimate son of defendant No.1. In this context, learned senior counsel has placed reliance on Bhagwan Baksh Singh and another v. Mahesh Baksh Singh and others [AIR 1935 Privy Council 199]. Learned senior counsel has also placed reliance on the decision of Supreme Court Banarasi Dass v. Teeku Datta (Mrs.) and another [ (2005)4 SCC 449 ]. 10. On the other hand, Shri Kutumble, learned senior counsel for respondents, has submitted that the finding of learned first appellant Court is that plaintiff is not the son of defendant No.1 but is the son of Jankibai from third person and, therefore, he is not having any right, title and interest in the property which is owned by defendant No.1 in partition. Learned senior counsel for respondents has further argued that learned first appellate Court came to the conclusion that the suit of plaintiff is barred by prescribed period of limitation because the same has not been brought by plaintiff within three years from the date of attaining his majority. In this context, learned senior counsel for respondents has invited my attention to the plaint which was tiled on 16.3.1988 mentioning the age of plaintiff to be 27 years on that date which would mean that he was born some where in the year 1961 and he attained the age of majority in the year 1979 and. therefore, he ought to have filed the suit within three years from the date of his majority which would mean the suit should have been filed at the most in the year 1982 and because the suit has been tiled on 16.3.1988, the same is ex facie time barred. In support of his contention, learned senior counsel has placed heavy reliance on the decision of the Supreme Court Darshan Singh and others v. Gurdev Singh [ (1994)6 SCC 585 ], and has submitted that this appeal be dismissed. Regarding substantial question of law : 11. So far as limitation part as to whether the suit is within limitation or not, is concerned, there is no pleading of defendants in their written statement in this regard. No issue has been framed and it appears that the point of limitation that the suit is barred by time, was not raised by defendants in the trial Court. True, according to section 3 of the Indian Limitation Act, subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although, limitation has not been set up as a defence and, therefore, if the suit is barred by limitation, the same has to be dismissed irrespective of fact whether the plea of limitation has been set up in defence or not. In this context, I may profitably place reliance on the decision of Privy Council Maqbul Ahmad and others v. Onkar Pratap Narain Singh and others [AIR 1935 Privy Council 85], as well as Division Bench decision of this Court in Altaf Khan and another v. Kurhankhan and others [AIR 1948 Nagpur 41], which has also been placed reliance by this Court in Mahesh Singh and others v. Sewaram and others [ 2000(1) JLJ 373 ]. 12. If this Court comes to the conclusion that the plaintiff is the son of defendant No.1 as held by learned trial Court, the plea of limitation would not come in his way because a co-parcener at any point of time may ask for partition from the co-parcener. 13. According to the plaintiff, the suit property fell in the share of defendant No.1 Saligram in partition and Saligram is his father. In the written statement para 3 it has been pleaded by defendants that the suit land was in the name of deceased Bhonji and after the death of Bhonji, there was a partition between the brothers and suit property fell in the share of defendant No.1. According to defendants 1 and 2, at the time of partition, plaintiff was not there nor he is the son of defendant No.1. On going through the revenue record EX.P-1 and P-2 which are of the year 1987-88 and 1986-87 to 1988-89, the suit property has been mentioned in the name of defendant No.1 Saligram. The factum of partition after the death of Bhonji has been admitted by defendants 1 and 2 and it is also admitted by them that after partition, the suit property fell in the share of defendant No.1, therefore, according to me, the share allotted to a co-parcener after partition, that share of his would be the joint Hindu family property between him and his male issue. In this regard para 221(4) of Hindu Law of Mulla, Twentieth Edition Volume I page 375 may be seen. According to this provision, a share allotted on partition to a co-parcener shall be ancestral property as regards his male issue and they take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. According to this provision, a share allotted on partition to a co-parcener shall be ancestral property as regards his male issue and they take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate, and if the co-parcener dies without leaving a male issue, it passes to his heirs by succession. Thus, for all practical purposes, it is hereby held that after partition the suit property which fell in the share of defendant No.1, would be the joint Hindu family property of defendant No.1 and his male issue. 14. The question which would now arise is to whether the plaintiff is the son of defendant No.1 and whether the findings arrived at by learned first appellate Court from para 15 onwards holding him not to be the son of defendant No.1 is vitiated becuase it was not in its domain to interfere in the judgment of trial Court unless the finding is unsound, perverse or based on grounds which are unsatisfactory by reason of material inconsistencies or inaccuracies, as held by the Supreme Court in the decision of Baburao Bagaji Karemore (supra). Learned first appellate Court in para 15 of its judgment has referred the arguments of the defendants who were appellants before it. In para 16, learned first appellate Court considered the arguments and held that this point is not required to be decided because it had already held the suit to be barred by time but for the interest of justice, since it has been raised, the same is required to be decided. In para 17 of its judgment, learned first appellate Court has discussed the evidence of the parties on the point of paternity and ultimately in para 18 came to hold that after marshalling the evidence of both the parties, since the evidence of the plaintiff was not found to be convincing that he is the son of defendant No.1 because Jankibai who is the mother of the plaintiff has not stated the specific date when she abandoned the company of defendant No.1, therefore, the plaintiff is not the son of defendant No.1. According to me, though the appellate Court is entitled to examine and appreciate the evidence in order to ascertain whether the findings of the trial Court is correct, but it will not interfere with it unless it is unsound, perverse or based on grounds which are unsatisfactory by reason of material inconsistencies or inaccuracies. The findings rendered by learned trial Court should not ordinarily be interfered merely because the appellate Court takes a different view of the evidence. 15. The Supreme Court in Nizamuddin Ahmed v. Narmada Prasad and others [1976 JLJ 6], in para 12 has held that where two views are possible on the statements of witnesses, and if one of them is accepted by the trial Judge, who had the advantage of seeing the witnesses while they are giving evidence and a good opportunity of deciding for himself whether the witnesses were stating the truth, his view is certainly entitled to great weight, and it should not be disturbed unless there are strong reasons to differ. There is no finding of learned first appellate Court that the findings arrived at by trial Court is perverse or is based on inadmissible evidence or the evidence is unsatisfactory by the reason of material inconsistencies or inaccuracies. 16. The factum that Jankibai was the wife of defendant No.1, has been admitted by defendants 1 and 2 in their written statement. It has also been admitted by them that from Jankibai, defendant No.1 is having four children they are defendants No.2, 4, 5 and 6. The specific averments of plaintiff in para 6 is that when his age was between 1-1/2-2 years, his father (defendant No.1 after maltreating his mother asked her to go away and her mother abandoned the company of her husband and carried plaintiff with her. Since the factum of marriage between Jankibai and defendant No.1 has not been denied in the written statement, I am of the view that in absence of cogent evidence of defendant No.1 that Jankibai conceived from third person, it will be presumed that the plaintiff who born during the continuance of the valid marriage between defendant No.1 and Jankibai is the son of defendant No.1. The evidence of Jankibai is that her all five childrens were born when she was residing along with defendant No.1 Saligram. The evidence of Jankibai is that her all five childrens were born when she was residing along with defendant No.1 Saligram. Defendant No.1 Saligram has stated that in Samvat 2013 (corresponding year 1956) Jankibai left his company but except Samvat 2013, he did not remember any other date like his date of marriage, the date of birth of his children, etc. The Privy Council in Bhagwan Baksha Singh (supra), has categorically held that where a person is admittedly born after his mother's marriage to a certain person the onus of establishing non-access and physical incapacity to procreate on the part of the husband lies heavily on those who allege such person to be an illegitimate son. The Privy Council has further held that the word 'access' in section 112 means 'effective access' and physical incapacity to procreate, if established, amounts to non-access within the meaning of section 112. The Supreme Court in Banarasi Dass (supra), in para 10 has held that section 112 of 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. The Supreme Court further in para 10, while analyzing the maxim pater is est quem nuptiae demonstrant (he is the father whom the marriage indicates), held that in the matters of this kind the Court must have regard to section 112 of the Evidence Act. The Supreme Court further laid down that the law of land that presumption of legitimacy is this, that a child born of a married woman 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 or filiation (parentage) may be presumed the law in general presuming against vice and immorality. This presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities. To me, the decision of Banarsi Dass (supra), is squarely applicable in the present case. Defendant No.1 even did not name the person with whom, according to him, his wife Jankibai was having illicit relations. He has simply stated that he has seen Jankibai having illicit relation with some person. To me, the decision of Banarsi Dass (supra), is squarely applicable in the present case. Defendant No.1 even did not name the person with whom, according to him, his wife Jankibai was having illicit relations. He has simply stated that he has seen Jankibai having illicit relation with some person. Thus, according to me, no cogent evidence has been led by defendant No.1 that plaintiff is not his son, rebutting the strong presumption available to plaintiff under section 112 of the Evidence Act, though factum of marriage of Jankibai who is mother of plaintiff, with him, has not been denied by him and it has also not been denied by him that defendants 2, 4, 5 and 6 are not the sons and daughters of defendant No.1 from Jankibai. I may also place reliance on another decision of Supreme Court Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana [ AIR 1954 SC 176 , para 10]. 17. Since I have held herein above that plaintiff is the son of defendant No.1 and is co-parcener of HF of defendant No.1, therefore, at any moment of time, he can ask for partition and, therefore, the question of limitation would not arise and it cannot be said that the suit is barred by limitation. The decision of Supreme Court Darshan Singh (supra), placed reliance by learned senior counsel for the respondents is tangentially off the point because the said case is not of partition. On going through the said decision, it is revealed that the said case was for possession of immovable property and it was not filed within three years by the plaintiff of that case from the date he became major and, therefore, the suit of that case was held to be barred by time in view of section 8 because this section is a proviso to sections 6 and 7 of the Limitation Act. For the reasons stated herein above, to me, the present suit cannot be said to be time barred. The substantial question of law is, thus, answered accordingly. 18. However, before holding that what kind of relief plaintiff is entitled, I am bound to take notice of the amended provision of Hindu Succession Act, 1956 which has been amended by Amendment Act of 2005. The substantial question of law is, thus, answered accordingly. 18. However, before holding that what kind of relief plaintiff is entitled, I am bound to take notice of the amended provision of Hindu Succession Act, 1956 which has been amended by Amendment Act of 2005. Since during the pendency of this second appeal, section 6 of Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005, came into force and, therefore, the daughters of defendant No.1 and Jankibai who are defendants 4, 5 and 6, are also co-parceners and since partition has been claimed by plaintiff, therefore, plaintiff is entitled to 1/7th share in the suit property. The suit of plaintiff is, accordingly, decreed and it is hereby held that he is entitled for 1/7th share in the suit property and is entitled for a decree of partition and separate possession upto that extent. 19. This second appeal is, accordingly, allowed to the extent indicated herein above with no order as to costs.