Judgment : N.R.L. Nageswara Rao, J. The defendants in O.S. No.95 of 1980 on the file of the Subordinate Judge, Markapur are the appellants herein. 2. The suit O.S. No.95 of 1980 was filed by the plaintiff claiming that his father Peda Govinda Reddy and the 1st defendant are the brothers and the 2nd defendant is the undivided son of the 1st defendant. The family of plaintiff’s father Peda Govinda Reddy and the defendants was joint. The father of the plaintiff died in 1978 leaving the plaintiff as his sole legal heir. The mother of the plaintiff was one Mallamma, who died in 1951, and the plaintiff was born in August, 1949. When a claim was made by the plaintiff for partition of the properties during the life time of the father, a false reply was given by him and the 1st defendant. Consequent on the death of the father of the plaintiff, the plaintiff is entitled for division of the suit schedule properties into two equal shares and allotment of one such share with profits. 3. The1st defendant filed a written statement and subsequently, he died and the legal representatives 3 to 6 were brought on record as per the order in I.A. No.95 of 1982. The 1st defendant filed a written statement mainly contending that the plaintiff is not the son of Peda Govinda Reddy. The relationship between the 1st defendant and the Peda Govinda Reddy is admitted. The fact that the plaintiff was born to Mallamma was also disputed. Peda Govinda Reddy himself gave a reply when a claim for partition was made by the plaintiff. The substance of the contention of the 1st defendant is that Peda Govinda Reddy though married Mallamma, the eldest daughter of one K. Venkata Rami Reddy of Yellupally Village, before she attained puberty, she did not join her husband and live with Peda Govinda Reddy, and she continued to live at her father’s house. Later, she left her father’s house and was leading an unchaste life. On enquiry, the 1st defendant came to know that the plaintiff is the child of one Chaluvadi Venkataiah and his wife Subbamma, who were Balija by caste and doing vegetable business at Markapur. Thereafter, they shifted to Ponnur. Later, she left her father’s house and was leading an unchaste life. On enquiry, the 1st defendant came to know that the plaintiff is the child of one Chaluvadi Venkataiah and his wife Subbamma, who were Balija by caste and doing vegetable business at Markapur. Thereafter, they shifted to Ponnur. Further Mallama’s father Kankara Peda Venkata Rami Reddy has got four daughters through his 1st wife Achamma viz., Rosamma, Laxmamma, Salamma and Parvathamma and two other daughters through his 2nd wife Venkatarangamma, he gave all his properties to the other daughters except Mallamma, for the reason she was leading unchaste life. There have been disputes between the defendants and Roshamma, the sister of Mallamma. The plaintiff has been set up by her. The schedules shown in the plaint are not correct. It was further pleaded that during his life time Peda Govinda Reddy has taken the 3rd son of the 2nd defendant, who is subsequently added as a 7th defendant, in adoption on 15.08.1974 and also executed a Will on 01.11.1978 in a sound and disposing state of mind bequeathing his properties to him. The plaintiff is therefore not entitled to the rights in the property. The other defendants subsequently came on record as purchasers of the properties and filed separate written statements. The 10th defendant claimed to have purchased item No.6 of the plaint A-schedule for valuable consideration under registered sale deed dated 16.05.1983 from defendants Nos.2 and 7. The 11th defendant claimed to have purchased item No.2 of plaint A-schedule for a valuation consideration under a registered sale deed dated 04.06.1984 from defendants Nos.2 and 7. The 12th defendant claimed that he was unnecessarily added as a party to the proceedings. The 13th defendant claimed that his wife has purchased item No.10 of the plaint A-schedule property to an extent of 98 cents and the remaining 98 cents was purchased by the son of the 16th defendant. Defendant No.14 claims to have purchased item No.9 from defendants Nos.2 and 7 in 1983. Defendant No.16 claims to have purchased item No.30 of the plaint A-schedule in 1979. Defendant No.17 claims to have purchased item No.29 of the A-schedule. Defendant No.18 claimed to purchase of item No.9 of B-schedule, and 19th defendant claimed to purchase of item No.26 of plaint A-schedule. Defendant Nos.2 to 6 adopted the written statement of 1st defendant. Defendant No.16 claims to have purchased item No.30 of the plaint A-schedule in 1979. Defendant No.17 claims to have purchased item No.29 of the A-schedule. Defendant No.18 claimed to purchase of item No.9 of B-schedule, and 19th defendant claimed to purchase of item No.26 of plaint A-schedule. Defendant Nos.2 to 6 adopted the written statement of 1st defendant. Defendant No.9 has adopted the written statement of 18th defendant. 4. On the basis of the above pleadings several relevant issues have been framed by the lower Court as follows: 1) Whether Rajasekhara Reddy 7th defendant get the properties of Gonvidareddy either under the Will dated 01.11.1978 or by virtue of adoption by late Govinda Reddy? 2) Whether the Court fee paid is not correct? 3) Whether the plaint A schedule items 9, 21 and 23 to 30 and also items 2 to 4 and 6 and 10 of B schedule are the self acquired properties of the 2nd defendant? 4) Whether items 29 and 30 of plaint A schedule are not in possession of the 2nd defendant and is in possession of the vendees? 5) Whether the plaintiff is born to Mallamma? If so, whether he is legitimate son of late Govinda Reddy? 6) Whether the properties to which late Govinda Reddy is entitled to? 7) Whether the defendants are entitled to the compensatory costs prayed for under Sec.35-A C.P.C.? 8) Whether the suit is in time? 9) Whether the defendants 10, 11, 14, 13, 15, 16, 17 and 19 are bonafide purchasers with consideration without notice of items 6, 8, 9, 10, 30, 29 and 26 of plaint A schedule properties respectively? 10) Whether the 12th defendant is necessary and proper party to the suit? 11) To what relief? Subsequently, an additional issue was framed as follows: 1) Whether the 18th defendant is a bonafide purchaser with consideration without notice from Y. Vijaya Kumar Reddy and Y. Ravikumar Reddy, for valuable consideration of item No.9 of the plaint B schedule? If so, whether he made and improvement and to what equities he is entitled to? 5. On behalf of the plaintiff, PWs.1 to 8 were examined and marked Exs.A-1 to A-13. On behalf of the defendants, DWs.1 to 24 were examined and marked Exs.B.1 and B.45, and also Ex.X.1. 6. If so, whether he made and improvement and to what equities he is entitled to? 5. On behalf of the plaintiff, PWs.1 to 8 were examined and marked Exs.A-1 to A-13. On behalf of the defendants, DWs.1 to 24 were examined and marked Exs.B.1 and B.45, and also Ex.X.1. 6. After considering the material available on record, ultimately the lower Court held that the plaintiff is the son of Peda Govinda Reddy born through his wife Mallamma and the adoption set up by the 1st defendant is not valid. It was also held that the Will relied on by the defendants is not proved and accepting some of the alienations and excluding some of the properties, a decree for partition was passed by the lower Court for partition of the plaint A and B schedule properties except item Nos. 23, 9, 21 and 28 of plaint A-schedule and 2, 4 and 6 of B-schedule. It was also further held that so far as item Nos.9 and 10 of the B-schedule, which was said to have been purchased by defendant No.18 proportionate value of Rs.12,500/-shall be paid by defendant No.2 and his sons from date of their share by working out equities. 7. As against the above judgment, the defendants preferred an appeal vide A.S. No.1044 of 1985 and the learned Single Judge of this Court by the judgment dated 05.06.2000 has dismissed the appeal upholding the findings of the lower Court and also rejecting the theory of adoption and the Will. The learned Single Judge also held that the evidence on record only leads to the conclusion that the plaintiff is the son of Peda Govinda Reddy through Mallamma. As against that judgment, the present Letters Patent Appeal is filed. 8. Pending disposal of the appeal, LPAMP No.91 of 2007 was filed with the affidavit of 8th defendant for submitting the plaintiff to undergo DNA Test and Y chromosome test by sending blood samples to centre of DNA fingerprint and diagnosis at Nacharam to determine his parentage. 9. Counter was filed denying that there is no justification to allow the application. There is ample oral and documentary evidence considered by the Courts and after long lapse of 26 years such an exercise is not permissible apart from the fact that the credibility of the test is not conclusive. 10. 9. Counter was filed denying that there is no justification to allow the application. There is ample oral and documentary evidence considered by the Courts and after long lapse of 26 years such an exercise is not permissible apart from the fact that the credibility of the test is not conclusive. 10. While the matter stood thus, in pursuance of the permission given by this Court to proceed with the determination of the profits, I.A. No.1543 of 2004 was filed before the lower Court. After conducting an enquiry and on the basis of the evidence and the report of the commissioner, the trial Court has granted mesne profits to a tune of Rs.7,53,490/- towards the share as mesne profits for A and B schedule properties and the interest was given on the sum of Rs.1,90,800/- at 9% per annum from 14.02.1979 which is the amount awarded for B-schedule and interest was given at 9% and Rs.5,62,690/- from 14.02.1987 which was the amount that was awarded under A-schedule. Aggrieved by the said judgment, A.S. No.94 of 2010 was filed. 11. The points that arise for consideration are: 1) Whether the plaintiff is the son of Peda Govinda Reddy born to Mallamma? 2) Whether the Will dated 01.11.1978 said to have been executed by Peda Govinda Reddy is true and binding on the plaintiff? 3) Whether there are any grounds to direct the plaintiff to DNA or Y chromosome test as sought in L.P.A.M.P. No.91 of 2007? 4) Whether the mesne profits as fixed by the learned Senior Civil Judge and the interest granted thereon are correct? 12. The learned senior counsel for the appellants Sri T. Bal Reddy contends that the trial Court and also appellate Court have not properly considered the issues and the evidence on record was not properly taken into consideration. His contention is that there is no proof that Peda Govinda Reddy and Mallamma lived together and that the marriage was consummated. The factum of adoption is proved by the registered document Ex.B.30 and Peda Govinda Reddy himself has denied parentage in the reply notice Ex.B.36. The plaintiff was in fact born to Chaluvadi Venkataiah and Subbamma and consequently the right of partition is not available. The factum of adoption is proved by the registered document Ex.B.30 and Peda Govinda Reddy himself has denied parentage in the reply notice Ex.B.36. The plaintiff was in fact born to Chaluvadi Venkataiah and Subbamma and consequently the right of partition is not available. As both the Courts have not properly appreciated the evidence and as the only scientific examination will prove the truth, he pleads that the application LPAMP No.91 of 2007 may be allowed. He relied on certain material about the effectiveness of ‘Y’ chromosome test sought for in this case. According to him, the determination of the mesne profits arrived at by the lower Court is also excessive and interest granted is excessive and the final decree passed for mesne profits is without jurisdiction as the stay was pending before the Court and consequently it is not executable. 13. On the other hand, Sri V.L.N.G.K. Murthy representing the respondent/plaintiff contends that there is material to show that the plaintiff was born to Mallamma and close relatives have established that fact and therefore, when the plaintiff was born in lawful wedlock to Mallamma the presumption under Section 112 of Indian Evidence Act squarely applies and it is neither in the interest of justice nor permissible to subject the plaintiff for the scientific test. Further-more, if really the 7th defendant was adopted son, there is no reason as to why the Will should be executed by Peda Govinda Reddy. His contention is, merely because Mallamma was suspected to be unchaste, the rights of the plaintiff cannot be denied and entertaining the suspicion only, it was the 1st defendant taking advantage of the fact that Peda Govinda Reddy was with them, created the theory of adoption and the Will, and both of them are false. He made a strong point to the effect that the 7th defendant, who is said to have been taken in adoption, even after the death of the 1st defendant, did not file any separate written statement nor he gone into box to prove the factum of adoption and further even the affidavit in LPAMP No.91 of 2007 was not given by the 7th defendant but by the 8th defendant, which clearly goes to show that the litigation is done by defendant No.2 and others. Further-more, the authenticity of the reply notice Ex.B.36, which is said to have been given by Peda Govinda Reddy is highly doubtful and it is the plan of the 1st defendant. So far as mesne profits are concerned, the learned counsel contends that the assessment of the mesne profits by the learned Senior Civil Judge is legal and based on evidence. Further, according to him, the conclusions arrived by the trial Judge and the learned Single Judge are based on evidence and no other view is possible and therefore, there are no grounds to interfere with the judgment. 14. POINTS: The decision in the suit mainly depends upon main fact as to whether the plaintiff is the son of Peda Govinda Reddy. In matters of relationship which is in dispute, the evidence of the family members is relevant. Before considering as to whether the plaintiff was born to Mallamma and Peda Govinda Reddy, the first fact to be decided is whether he is Reddy by caste. 15. It is the specific case of the defendants that the plaintiff was born to one Venkataiah and Subbamma and is Balija by caste. There is no ambiguity in the plea taken by the defendants. But, however, the record clearly goes to show that PW.6, who is also a resident of Yellupally Village and Reddy by caste, clearly deposed that his daughter was given in marriage to the plaintiff in the year, 1970. It was also further in his evidence that the 2nd defendant is his mother’s elder sister’s daughter’s son. Therefore he being a Reddy, which is not in dispute and the distantly related to defendant No.2 clearly deposes that the plaintiff is his son-in-law. In fact, no effort was made in the cross-examination or even a suggestion was made to him to show that the plaintiff is a Balija by caste and for reasons known to him only he has given his daughter in marriage to him. In fact, it was suggested to him that with a view to knock away the property he has set up the plaintiff. It is not even also elicited that he has other children and therefore, he has sacrificed one of his daughters for unlawful gain in the property. In fact, it was suggested to him that with a view to knock away the property he has set up the plaintiff. It is not even also elicited that he has other children and therefore, he has sacrificed one of his daughters for unlawful gain in the property. In fact, DW.1, who is the 2nd defendant, in his evidence in chief examination itself deposed that PW.6 Kaipu Venkata Subba Reddy being father-in-law is interested in his son-in-law. Therefore, the above fact clearly goes to show that the same community people from the same village have given the daughter in marriage to the plaintiff. It is very difficult to presume that if really the plaintiff is a Balija by caste, such a marriage would have occurred. Even in the cross-examination of PW.1 also there is not of much effort to show that he is not a Reddy and that his marriage was otherwise arranged. Therefore, the 1st attack of the defendants to defeat the rights of the plaintiff by the defendants is lost. 16. The question now to be considered is whether the plaintiff was born to Mallamma and if this fact is established, the question as to parentage of the plaintiff comes for consideration. So far as this aspect is concerned, Rosamma, who is admittedly the sister of Mallamma, specifically stated that the plaintiff was born at Markapur to Mallamma and PWs.3 and 4 are also have taken care of it. There are general questions as to how the plaintiff was brought up and as to whether the delivery has taken place and as to her disputes with the 2nd defendant. A plea was also raised that the plaintiff was set up by this witness. But, in the cross-examination of PW.2 there is no material to establish the above fact. It cannot be forgotten that the father of defendants Nos.1 and 2 is the maternal uncle of Mallamma and her sisters thereby close relationship between Mallamma and the family of the defendants even prior to the marriage is established. PW.3, who is the husband of PW.4, PW.4 another sister of Mallamma, both of them have also deposed that the plaintiff was born to Mallamma at Markapur. PW.3 was an employee in revenue department and retired as Revenue Divisional Officer and one of his sons is also said to be an I.A.S. Officer. PW.3, who is the husband of PW.4, PW.4 another sister of Mallamma, both of them have also deposed that the plaintiff was born to Mallamma at Markapur. PW.3 was an employee in revenue department and retired as Revenue Divisional Officer and one of his sons is also said to be an I.A.S. Officer. There is absolutely no reason for these three material witnesses to speak falsehood in favour of the plaintiff and to go to the extent of introducing a different caste man in the family for the purpose of unlawful gain and getting the property. In fact, if any one of them has got interest in the property they themselves could have set up theory of adoption of their children or the rights in the property. The positive evidence of PWs.2 to 4, who are the admittedly nearest family members, clearly shows that the plaintiff was born to Mallamma at Markapur. In fact, the evidence of PW.5, who is a resident of Markapur and who has said to be midwife, clearly goes to show that near the house of PW.3 she attended the delivery of the plaintiff and he was born at Markapur in the house of PWs.3 and 4. The fact that she was a midwife is not in dispute. It is natural for her to say that she could not give the exact relationship between the mother of plaintiff and PW.4 and also the date or year of delivery. But, only corroborates the factum of delivery of plaintiff at Markapur. 17. Added to that PW.7, who is aged about 90 years and the father-in-law of PW.2, clearly stated that the plaintiff is the son of Mallamma and was born at Markapur. The contention that he is speaking falsehood as he is interested in PW.2 cannot be accepted since none of them gets any property by the plaintiff being the son of Peda Govinda Reddy. Therefore, if the evidence of the nearest relative is taken into consideration, it is proved beyond doubt that the plaintiff was born to Mallamma at Markapur. In fact, we have no hesitation in saying that the cross-examination of the witnesses on this aspect does not discredit them on the important aspect of birth of the plaintiff to Mallamma at Markapur. Therefore, if the evidence of the nearest relative is taken into consideration, it is proved beyond doubt that the plaintiff was born to Mallamma at Markapur. In fact, we have no hesitation in saying that the cross-examination of the witnesses on this aspect does not discredit them on the important aspect of birth of the plaintiff to Mallamma at Markapur. The birth of the plaintiff is said to be in the year, 1949 and in those days the registration of the births was not done regularly and mere failure to register the birth does not deny the motherhood of Mallamma to the plaintiff. In fact, Exs.A.9 and A.10, which are the counters and documents filed by the defendants in pauper application shows that there was some indication that the plaintiff was treated as the son of Mallamma. As against the oral evidence of the nearest relatives of the plaintiff, there is only the evidence of DW.21, who speaks that she was resident of Kanigiri and migrated to Ponnur and they were staying in Bavanarayana Swamy temple, shows that she knows the plaintiff and his mother was Chaluvadi Subbamma and father was Venkataiah. According to her, she saw the plaintiff for the first time when he was 15 years old. Her further explanation is, since he was calling Subbamma and Venkataiah as father and mother she thought that he is their son. Therefore, her evidence does not in any way show that he was born to them. Evidently, from the evidence available on record, after some time, PW.2 brought up the plaintiff, he left her place and he had no education and also lived for some time at Ponnur. Even according to her, merely because the plaintiff stayed at Ponnur and respected the above persons as parents even if her evidence is to be taken as true, it does not mean that he was born to Subbamma and Venkataiah. In fact, to further establish their case, the defendants have not examined any family members of Chaluvadi Venkataiah and Subbamma to positively establish that the plaintiff was born to them. Therefore, the evidence on record conclusively establishes that the plaintiff was born to Mallamma and the findings recorded by the trial Court cannot be said to be incorrect and we have no hesitation in holding that no other view is possible. Therefore, the evidence on record conclusively establishes that the plaintiff was born to Mallamma and the findings recorded by the trial Court cannot be said to be incorrect and we have no hesitation in holding that no other view is possible. The mere fact that the father of Mallamma did not give her any properties is not a ground to hold that he excluded her due to unchastity. On the other hand, it is quite possible as she was married to Peda Govinda Reddy, who has got substantial properties, she was not given property by her father. This however does not in any way advance the case of the defendants with regard to the birth of the plaintiff. On the other hand, Mallamma herself has no grievance and the other sisters looked after her. 18. Further-more, the beneficiary of the denial is the 7th defendant and he did not go into box. Even the evidence of DW.1 does not throw much light about the relationship of plaintiff having been born to Subbamma and Venkataiah. 19. The finding that the plaintiff was the son of Mallamma will not by itself establish the parentage. We cannot loose sight of the fact that there was serious accusation against Mallamma about her character and way of living. Unfortunately, we do not have any material on record to show as to when exactly the marriage of Mallamma and Peda Govinda Reddy has taken place and as to how long after the marriage Mallamma died. The only evidence is that before Mallamma attained puberty her marriage was performed and that she was leading an unchaste life, thereby showing that after the attainment of puberty has lived for longer time. We feel that the whole attempt, as rightly contended by the counsel for the respondents appears to be to doubt the paternity of the plaintiff, as even during the life time of Peda Govinda Reddy, he suspected her and the same was repeated by defendants Nos.1 and 2. 20. The learned counsel for the respondents strongly contends that under Section 112 of the Indian Evidence Act, when a child was born in a lawful wedlock and when the marriage is subsisting, the presumption is that child was born to the parents unless it is rebutted by the other side by showing that there was no access between the wife and the husband during that period. Evidently, to get over this problem only and finding deficiency of the evidence, the appellants have come forward with the application L.P.A.M.P. No.91 of 2007 to subject the plaintiff for D.N.A. test and ‘Y’ chromosome blood examination. 21. It will be useful to refer to Section 112 of Indian Evidence Act. “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 he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten”. 22. The case law on this aspect is beyond controversy. The first case touching on this aspect is the decision reported in Goutam Kundu Vs. State of West Bengal and another ((1993) 3 Supreme Court Cases 418), the Court has laid down the following after a detailed discussion of the provisions of Section 112 of Indian Evidence Act in para 26 as follows: “26. From the above discussion it emerges- (1) that courts in India cannot order blood test as a matter of course; (2) wherever applications are made for such prayers in order to 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 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) Noone can be compelled to give sample of blood for analysis”. 25. In fact, this decision has been followed in a later decision reported in Kamti Devi (Smt) and another vs. Poshi Ram ((2001) 5 Supreme Court Cases 311), wherein it was held that the conclusiveness of the presumption under Section 112 of the Act cannot be rebutted by a DNA Test and proof of non-access to each other is only way to rebut that presumption. It is useful to refer para No.11 at page 316, which is as follows: “11. It is useful to refer para No.11 at page 316, which is as follows: “11. Whether the burden on the husband is as hard as the prosecution to prove the guilt of the accused in a trial deserves consideration in the above background. The standard of proof of prosecution to prove the guilt beyond any reasonable doubt belongs to criminal jurisprudence whereas the test of preponderance of probabilities belongs to civil cases. The reason for insisting on proof beyond reasonable doubt in criminal cases is to god against the innocent being convicted and sent to jail if not to extreme penalty of death. It would be too hard if that standard is imported in a civil case for a husband to prove non-access as the very concept of non-access is negative in nature. But at the same time the test of preponderance of probability is too light as that might expose many children to the peril of being illegitimatized. If a court declares that the husband is not the father of his wife’s child, without tracing out its real father the fallout on the child is ruinous apart from all the ignominy visiting his mother. The bastardized child, when grows up would be socially ostracized and can easily fall into wayward life. Hence, by way of abundant caution and as a matter of public policy, law cannot afford to allow such consequence befalling an innocent child on the strength of a mere tilting of probability. Its corollary is that the burden of the plaintiff husband should be higher than the standard of preponderance of probabilities. The standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the plaintiff husband”. 24. Reliance is also placed by the counsel for the respondents on the decision reported in Banarsi Dass vs. Teeku Dutta (Mrs) and another ((2005) 4 Supreme Court Cases 449), wherein the scope of presumption and the justification of the scientific test were considered. The court held as follows: “13. We may remember that 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 court held as follows: “13. We may remember that 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 of Section 112 of the Evidence 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 maybe innocent. But even in such a case the law leans in favour of the innocent child from being bastardized 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”. 25. In the above decision relied on by the counsel for the respondents, the earlier decisions have been considered and it was further held when once the validity of the marriage is proved and the parents have access to each other, adultery of wife on very strong evidence is by itself, held, not sufficient to rebut the presumption of children born from such wedlock and it is undesirable to make an enquiry into the paternity of a child. 26. With the above legal position, in the background, we have to see whether there is evidence of any non-access between the deceased Peda Govinda Reddy and Mallamma. In fact, the contention of the appellants is that Mallamma and Peda Govinda Reddy never lived together and there was no consummation of the marriage. Evidently for which there is no acceptable evidence from the side of the appellants. In fact, we have to only look into some of the documents filed by the appellants themselves to come to a conclusion whether Peda Govinda Reddy at any point of time denied access to Mallamma. Evidently for which there is no acceptable evidence from the side of the appellants. In fact, we have to only look into some of the documents filed by the appellants themselves to come to a conclusion whether Peda Govinda Reddy at any point of time denied access to Mallamma. Ex.B.30 is the adoption deed whereunder defendant No.7 is said to have been taken in adoption on 22.01.1975 and the contents therein clearly goes to show that after the marriage having differences with her husband, Mallamma died without issues and Peda Govinda Reddy remained unmarried. This document does not show that the marriage was never consummated and that they never lived together. It is to be mentioned that if really there was no cohabitation between the Mallamma and Peda Govinda Reddy, there was no reason to mention in Ex.B.30 that Mallamma died without any issues. Therefore, Ex.B.30 does not in any way advance the case of the appellants that Mallamma and Peda Govinda Reddy never lived together. Even in Ex.B.31, which is the alleged Will said to have been executed by Peda Govinda Reddy, it was mentioned some time after the marriage there was difference between him and his wife and Mallamma left him. Therefore, it clearly goes to show that both of them lived together and it was Mallamma due to differences who left him. In fact, the above documents Exs.B.30 and B.31 does not show that the marriage was not consummated and that she did not join her husband as sought to be developed in Ex.B.36 reply notice given to the plaintiff claiming rights in the property. In fact, the legal notice Ex.B.36 is dated 10.06.1975 long after the alleged adoption dated 22.01.1975. Therefore, it is difficult to believe that the marriage was not consummated. Further-more, it is in evidence that Mallamma also lived for some time at Yellupally village, where her husband lived there. In fact, when the close relatives PWs.2 to 5 were examined, they were not even questioned about the consummation of the marriage and also about the disputed fact that Mallamma and Peda Govinda Reddy had no access at any point of time. In fact, when the close relatives PWs.2 to 5 were examined, they were not even questioned about the consummation of the marriage and also about the disputed fact that Mallamma and Peda Govinda Reddy had no access at any point of time. The evidence of DW.1, who is the 2nd defendant, on this aspect about the conduct of Mallamma is only based on hearsay and by the time of giving evidence in 1984 he was said to be aged 50 years and by 1949 he can only be a minor boy at tender years and can never be competent to speaking about the family relationship of Mallamma and Peda Govinda Reddy. The evidence sought to be advanced on the side of the appellants is only to show that Mallamma is a woman of suspected character, but there is no positive evidence of not living with her husband at any point of time or prior to the birth of the plaintiff in 1949. When Peda Govinda Reddy himself never stated that he never lived with Mallamma and that he never had access with her any attempt now sought to be made by the defendants long time after the death of Mallamma it cannot be taken into consideration, particularly so, when their plea that the plaintiff is a Balija by caste is not acceptable and when his birth to Mallamma is established beyond any controversy. 27. Therefore, keeping in view of the above evidence on record, we feel that leaving apart the evidentiary value of the scientific test, at this state it is not at all permissible to direct the DNA test or ‘Y’ chromosome blood of the test of plaintiff and we have no hesitation in holding that there are no legal and justifiable grounds warranting for directing the plaintiff to the DNA test or ‘Y’ chromosome test. We have no hesitation in holding that the presumption in favour of the plaintiff is not rebutted and the material evidence on record only supports the conclusion that the plaintiff was born to Mallamma during the lawful wedlock with Peda Govinda Reddy, and that he is their son. 28. The defendants have set up a theory of adoption and relied upon Ex.B.30 the deed of adoption. 28. The defendants have set up a theory of adoption and relied upon Ex.B.30 the deed of adoption. The learned counsel for the plaintiff contends that the adoption is not proved and when once the finding is that the plaintiff is the son of Peda Govinda Reddy the law does not permit an adoption and it is against the statutory provisions. Added to that, it was further contended that the adoption deed is silent about the date of adoption and the time of adoption and it was conveniently brought into existence. Further-more, the existence of the adoption deed and the adoptions were not mentioned even in the reply notice Ex.B.36. As rightly contended by the counsel for the plaintiff, the 7th defendant is the person, who has to say that he was adopted and was treated as son of Peda Govinda Reddy and served him, but for the reasons best known to the defendants, the 7th defendant did not go into the box. 29. Section 11(i) of the Hindu Adoptions and Maintenance Act, is as follows: “(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption”. Therefore, there being no valid adoption as plaintiff is proved to be natural son, the adoption was therefore, rightly disbelieved by the lower Court and the mere declaration statement under Land Ceiling Act said to have been filed by Peda Govinda Reddy cannot be given any credence as evidently there seems to be an attempt to defeat the natural succession of the plaintiff under the influence of defendants Nos.1 and 2. 30. The learned counsel for the appellants strongly contends that even if the adoption is not believed, the Will Ex.B.31 was proved by one of the attesting witnesses and therefore, even at least to the extent of share of Peda Govinda Reddy, the 7th defendant will be entitled. The lower court found that the Will Ex.B.31 describes that the benefit is for the 7th defendant as an adopted son and when once the factum of adoption is not there, the benefit of the Will not be available. 31. The lower court found that the Will Ex.B.31 describes that the benefit is for the 7th defendant as an adopted son and when once the factum of adoption is not there, the benefit of the Will not be available. 31. Further-more, the learned counsel for the plaintiff pleads that there is no proof of execution of the Will Ex.B.31 and there are several suspicious circumstances. According to him, when a registered adoption deed was said to have been executed on 22.01.1975 there was no necessity to execute a Will on 01.11.1978 about three days prior to the death of Govinda Reddy. Evidently, for this circumstance there is no explanation coming forward. Added to that, the learned counsel contends that non-registration of the Will is also a circumstance and in fact, one Pakeera Reddy, who was a judicial officer, was associated with this document and as per the evidence on record, he advised that the Will need not be registered. We are not concerned about the professional problems of the said person, but, however, it is difficult to believe that a person, who has worked as a judicial officer, would have advised that there is no need for registration of the Will and the reasons said to have been given is that he himself was attesting the Will, it need not be registered. If that is so, there is no reason as to why the defendants have not chosen to examine him as a witness before the Court. 32. PW.11 is said to be the attester of the Will and PW.12 is said to be the scribe of the Will and both of them says that Pakeera Reddy advised that there is no need for registration of Will. Evidently, PW.11 does not say that the Will was drafted to the dictation and information of Peda Govinda Reddy. On the other hand, his evidence is having understood the contents he affixed his impression. Therefore, if the evidence of PW.11 is to be taken into consideration, the preparation of the Will is not to the dictates of Peda Govinda Reddy. Even in cross-examination also the evidence of PW.11 is only that the deceased was suffering from Asthma. In fact that is one of the contentions raised by the defendants that the deceased was being old and there was a shake of the hands and could not sign. Even in cross-examination also the evidence of PW.11 is only that the deceased was suffering from Asthma. In fact that is one of the contentions raised by the defendants that the deceased was being old and there was a shake of the hands and could not sign. In order to prove the particulars of the ill-health there is absolutely no record. Added to that even though the written statement of the 2nd defendant was filed in the year, 1980 and the Will was pleaded, it has seen the light of the day after long time when it was filed only on 05.07.1982 without any explanation. Added to that after the alleged execution of the Will on 01.11.1978, there is nothing on record to show that it was filed before any competent authorities to establish the rights of the 7th defendant. From the totality of the circumstances available on record, explanation given by the appellants for the execution of the Will does not appear to be plausible and there is also no effort made in the lower Court to get the thumb impression on the Will compared to admitted thumb impression of Peda Govinda Reddy available on the alleged adoption deed to prove the genuineness of the Will. The evidence of PWs.11 and 12 has no value and even the evidence of DW.1, who is the 2nd defendant, is very vague. His evidence even in the chief examination does not disclose as to what was the reason Peda Govinda Reddy intended to execute a Will after having executed the adoption deed. Therefore, we have no hesitation in holding that Ex.B.31 Will is not a genuine document and it was not proved and it was rightly rejected by the Courts below and there is no different view possible after appreciation of the evidence. We have also got a clear doubt about the legal notice Ex.B.36 might not have emanated on the instructions of Peda Govinda Reddy. 33. The defendants apparently seem to be interested in taking advantage of the alleged suspicion about the unchastity of Mallamma and to deny the legal right of the plaintiff. The pleas taken by the defendants are false and the defendants cannot claim any benefit under the Will. 34. The appeal A.S. No.94 of 2010 is against the order in I.A. No.1543 of 2004 fixing the mesne profits for the ‘A’ & ‘B’ schedule properties. The pleas taken by the defendants are false and the defendants cannot claim any benefit under the Will. 34. The appeal A.S. No.94 of 2010 is against the order in I.A. No.1543 of 2004 fixing the mesne profits for the ‘A’ & ‘B’ schedule properties. The contention of the learned counsel for the appellants is that the decree itself is not valid since there was a stay of the High Court and only an enquiry is to be conducted but the lower Court passed the decree. The order in C.M.P. No.3562 of 2004 does not clearly support the claim of the plaintiff. It is an admitted fact that even earlier also in I.A. No.249 of 1989 a Commissioner was appointed, mesne profits were determined on A-schedule properties from 14.02.1979 to 14.02.1987 and paid. Clarifying the position of 07.07.2010 this Court has specifically stated that there was no stay for operation of the decree of mesne profits as pleaded in A.S. No.94 of 2010 and also further held that for all purposes, it has to be assumed that the decree is still in force and consequently directed the appellants to deposit the money. Therefore, in view of the above circumstances, we do not find any substance in the contention to hold that the lower Court lacked jurisdiction to pass the decree for mesne profits. 35. The learned counsel for the appellants contends that the ascertainment of the mesne profits by the Commissioner and accepted by lower Court are not based on proper appreciation of the evidence and ignored the notification of drought issued by the Government from time to time. In fact, a detailed enquiry was conducted by the Commissioner and evidence was let in before him. On behalf of the appellants except defendant No.8 no other evidence was adduced. His evidence clearly goes to show that the lands are cultivable lands. One crop is said to be raised in all the plaint schedule lands. He claims that about Rs.7,000/- is being incurred as expenditure per acre for Benga Ground Crop. Though he claims that the village was declared by the Government as drought prone, there is nothing to show that there was no cultivation. Evidently, he was working as Development Officer at Nandyal and he was not personally cultivating the same. No neighbour or any person, who cultivated the land, was examined on his side. Though he claims that the village was declared by the Government as drought prone, there is nothing to show that there was no cultivation. Evidently, he was working as Development Officer at Nandyal and he was not personally cultivating the same. No neighbour or any person, who cultivated the land, was examined on his side. Apart from it, he claims to have sold away some of the properties, which were in item Nos.6, 8, 10, 26, 29 and 30. The persons in occupation of those lands were not examined by the appellants. The learned Commissioner has visited the disputed lands and found the potentialities and arrived at the possible mesne profits per year. In fact, when compared to the determination of the profits for the earlier years in I.A. No.249 of 1989 from 1979 to 1987 the profits determined by the Commissioner for the subsequent years do not appear to be abnormal or unrealistic. The appellants have not chosen to examine the Village Officers or the neighbours. On the other hand, the plaintiff has examined some of the neighbours about the potentiality and the income. If really the lands are not yielding nobody would invest in fertilizers or appointing watchman etc. the Gazette notification does not specify that these particular survey numbers are affected by drought. Being affected by drought is quire different from being in a drought prone area. Evidently, the lands are black cotton soils and cash crops were raised and as such the work done by the learned Commissioner in determining the mesne profits, which were accepted by the lower Court cannot be faulted. 36. But, however, the learned counsel for the appellants contends that so far as the sum of Rs.1,80,000/- mesne profits determined for item No.10 of B-schedule is concerned, the appellants are not liable to pay the same. In fact, as per clause 2 of the decree only sum of Rs.12,500/-is payable and consequently the said item has to be excluded. The learned counsel for the plaintiff contends that item No.9 is said to have been purchased by 18th defendant and it was never the claim of the 18th defendant that item No.10 was purchased. But, however, it was only an error in the decree and an application was filed for rectification of the said error before the lower Court and it is pending. But, however, it was only an error in the decree and an application was filed for rectification of the said error before the lower Court and it is pending. But, it cannot be taken as a clerical error since the judgment clearly says that for item Nos.9 and 10 a sum of Rs.12,500/- is payable. Therefore, as matter stands one cannot go beyond the decree and grant the relief to the plaintiff. Therefore, we have no hesitation in accepting the contention of the appellants that this item has to be excluded from determination of the mesne profits. 37. Nextly, the learned counsel for the appellants contended that the decree of the lower Court shows that interest was granted even for the subsequent years also from 14.02.1987, which is not valid and the interest if at all payable can only be for that year only. In fact, the learned counsel for the plaintiff did not dispute the above proposition and accepts that the interest shall be paid only for the particular year for which mesne profits are determined and that there cannot be any interest to be granted with retrospective effect. 38. The learned counsel for the appellants contends that the grant of the interest at 9% per annum is on a higher and taking into consideration the responsibilities taken for putting the land under cultivation and also the transaction being essentially of an agricultural nature, interest at 6% per annum would meet the ends of justice. Though the counsel for the plaintiff says that the plea is not tenable, however taking into consideration, the totality of the circumstance, we feel that the ends of justice would meet if the interest is granted at 6%. Accordingly, the decree of the lower Court has to be modified. The learned counsel for the appellants have filed a calculation memo with regard to the difference of interest on yearly basis for all the items and it shall be forwarded to the lower Court. 39. Accordingly, we hold that the plaintiff will be entitled for mesne profits for a sum of Rs.5,62,690/-on the A-schedule properties with interest at 6% per annum on yearly basis of the income derived from the above properties till the date of realisation. 39. Accordingly, we hold that the plaintiff will be entitled for mesne profits for a sum of Rs.5,62,690/-on the A-schedule properties with interest at 6% per annum on yearly basis of the income derived from the above properties till the date of realisation. So far as B-schedule property is concerned the claim of the plaintiff for item No.10 has to be excluded as it was not covered by decree and the plaintiff will be entitled for a sum of Rs.10,800/- with interest on yearly basis at 6% only. 40. For the foregoing reasons, we answer the points as follows: POINTS 1 to 3: It is held that the plaintiff has succeeded in proving that he was born to Mallamma through Peda Govinda Reddy and the findings of the Courts below is correct. In view of the finding that there was no proof of non-access between the wife and husband and the settled principles of law and the presumption available in favour of the plaintiff, it is not a case for directing the plaintiff to DNA test or ‘Y’ chromosome test and I.A. No.91 of 2007 is to be dismissed and accordingly dismissed. The Will is found to be not valid and not true and not binding on the plaintiff. Accordingly LPA is dismissed. No costs. POINT No.4: A.S. No. 94 of 2010 is partly allowed while upholding the quantum of the mesne profits granted by the lower Court on plaint A-schedule property the interest is reduced from 9% to 6% and it shall be only on the yearly basis of the mesne profits of that particular year and not with retrospective effect of interest for subsequent years. The claim for mesne profits for item No.10 of the B-schedule as awarded by the lower Court is set aside as it is not in accordance with the decree and it shall be only as granted in the decree. 41. Accordingly Letters Patent Appeal 93 of 2001 is dismissed. Appeal Suit 94 of 2010 is partly allowed. Each party shall bear their own costs in both cases.