Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 4068 (MAD)

Minor Siva Kumar, S/o. Rajendran, Rep by next frient and mother, Guardian Meenakumari v. Chandrasekaran

2014-10-30

P.R.SHIVAKUMAR

body2014
ORDER 1. This revision has been filed against the order of the learned District Munsif, Pollachi dated 11.04.2011 made in I.A.No.619/2011 in O.S.No.422/2005 on the file of the said court. 2. The above said petition was filed by the respondent herein, who figures as the second defendant in the original suit praying for an order to subject the minor petitioner and his guardian/mother Meenakumari for DNA Test to ascertain the maternity of the child, based on his contention that the guardian of the revision petitioner who was, according to the respondent herein, aged about 52 years, could not have given birth to a child at such an age. The said application was opposed by the revision petitioner. 3. The learned District Munsif, Pollachi, after hearing, by the impugned order dated 11.04.2011 allowed the said petition and directed the revision petitioner and his guardian Meenakumari to undergo DNA test to confirm the maternity of the revision petitioner. Aggrieved by and challenging the said order, the present revision has been filed by the revision petitioner under Article 227 of the Constitution of India. 4. The arguments advanced by Mr. S. Ramesh Kumar, learned counsel for the petitioner and by Mr. C. Veeraraghavan, learned counsel for the respondent/second defendant are heard. The impugned order, copies of other documents produced in the form of typed set of papers, the correctness of which has not been disputed by the parties, are also taken into consideration. 5. The admitted facts leading to the filing of the revision petition are as follows: i) The father of the first and second defendants (Rajendran and Chandrasekaran) by name Ramachandran Chettiar executed a registered will dated 21.10.1983 bequeathing the suit properties and other properties in favour of the children of his sons Rajendran (first son) and Chandrasekaran (Respondent in the revision/second defendant) subject to a life interest created in favour of Subbammal @ Subbu Lakshmi, wife of the testator and after her life, subject to a life interest created on behalf of the sons, namely defendants 1 and 2. Admittedly Ramachandran Chettiar died on 16.09.1984 and his wife Subbammal @ Subbu Lakshmi also died on 28.04.2005. Rajendran and Chandrasekaran are in possession of their respective shares of the suit properties to be enjoyed by them till their life time without any power of alienation. Admittedly Ramachandran Chettiar died on 16.09.1984 and his wife Subbammal @ Subbu Lakshmi also died on 28.04.2005. Rajendran and Chandrasekaran are in possession of their respective shares of the suit properties to be enjoyed by them till their life time without any power of alienation. ii) Contending that the sons of Ramachandran Chettiar, namely Rajendran and Chandrasekaran (D1 and D2) were making attempts to create encumbrance over the suit properties by creating mortgages and creating lease in favour of third parties with the sole intention of depriving the rights of the revision petitioner/plaintiff, who was born to Rajendran through Meenakumari, the revision petitioner represented by his mother cum guardian Meenakumari, filed the above said suit for a declaration regarding his right to half share over the suit property and for a permanent injunction restraining the defendants 1 and 2 from in any way encumbering the suit property by way of mortgage or lease to third parties and for partition of the suit properties into two equal shares by metes and bounds and for symbolical allotment of one such share to the plaintiff by appointing a Commissioner or otherwise. 6. The suit is being contested by the defendants 1 and 2 based on their contention that the revision petitioner minor Sivakumar is not the son of Rajenderan (first defendant); that he is not even the son of Meenakumari, the guardian of the revision petitioner; that the Rajendran and Meenakumari, having not been gifted with any child, have colluded together and set up the revision petitioner to seek such a claim, as if he is the son of Rajendran born through Meenakumari; that even as per the averments made in the plaint, Meenakumari was aged about 52 years as on the date on which the revision petitioner was born and that therefore it is quite improbable for Meenakumari to have given birth to the revision petitioner. In order to establish that the revision petitioner/plaintiff is not the son of Rajendran, the respondent herein/second defendant, who is also the guardian of the third defendant, chose to file the above said petition, namely I.A.No.619 of 2011 for a direction to the revision petitioner and his guardian Meenakumari to subject themselves for a medical examination (DNA Test) to ascertain whether the revision petitioner is the son of Meenakumari. 7. 7. The said petition was opposed on the ground that the petition was a belated one and also on the ground that the test sought to be conducted would even bastardise the revision petitioner and also affect the fidelity of the guardian of minor. 8. The learned District Munsif, Pollachi, after hearing, allowed the said petition and directed the revision petitioner and his mother to subject themselves to the above said test. 9. The contention of the petitioner is that by a catena of decisions, it has been held that DNA test can be conducted to establish the paternity of the child only if it shall be for the benefit of the child and it shall not be resorted to when it would have the drastic effect of bastardising the child. The said contention is countered by the learned counsel for the respondent that here the question of bastardising the revision petitioner does not arise and the direction to the revision petitioner and his guardian/mother to undergo DNA Test shall not, in any way, affect the fidelity of the mother, as the test sought to be conducted is only for the ascertainment of the maternity of the revision petitioner. The contention of the respondent is that the guardian of the minor, even as per the averment found in the plaint was aged about 52 years and probably she might have crossed the stage of menopause and hence it was quite improbable for her to have conceived and given birth to a child as on the date on which the petitioner was allegedly born. Under such circumstances alone, the respondent had chosen to file the said petition for subjecting the revision petitioner and his mother to undergo the DNA Test for the limited purpose of finding out whether Meenakumari is the mother of the revision petitioner. In addition, the respondent for himself and on behalf of his daughter had made a clear averment in the written statement itself that the first defendant Rajendran, who is childless has connived with his wife, namely Meenakumari and projected the revision petitioner to be their son born out of their wedlock. In order to falsify such a claim, the respondent has filed the petition for a direction to the revision petitioner and his mother to undergo the above said medical test. 10. In order to falsify such a claim, the respondent has filed the petition for a direction to the revision petitioner and his mother to undergo the above said medical test. 10. The learned trial judge, after analysing the pros and cons, came to a conclusion that by issuing a direction as prayed for by the respondent, no harm would be done to the revision petitioner or his mother, since even if the DNA Test goes against the revision petitioner, it would neither bastardise the revision petitioner nor affect the fidelity of the guardian of the revision petitioner. The said finding of the learned trial judge, cannot be said to be either erroneous or defective, much less perverse. From the very fact that the first defendant is not contesting the suit, may probablise the contention of the respondent herein that the suit came to be filed pursuant to a collusion between the guardian of the revision petitioner and the first respondent. At this stage, we need not go deep into the question as to whether it shall be possible for a women at the age of 52 to have given a birth to a child. If any detailed discussion regarding the said aspect is made, it will amount to an act of embarking on a discussion regarding the merits of the case, which has got to be avoided. 11. For all the reasons stated above, this court comes to the conclusion that the challenge made to the impugned order of the learned District Munsif dated 11.04.2011 made in I.A.No.619 of 2011 in O.S.No.422 of 2005 cannot be countenanced and the revision deserves to be dismissed. In the result, the civil revision petition is dismissed. However, there shall be no order as to cost. Consequently, the connected miscellaneous petition is also closed. Petition dismissed.