JUDGMENT : Tarlok Singh Chauhan J. This Regular Second Appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 16.7.2005, passed by learned District Judge, Shimla H.P. in Civil Appeal No. 109/S/13 of 2002, whereby the judgment and decree dated 12.9.2002, passed by learned Sub Judge, Court No. 4, Shimla in Civil Suit No. 413/1 of 1996/94 was affirmed. 2. The brief facts leading to filing of the present appeal are that the plaintiffs (herein after referred to as the respondents) filed a suit for declaration against the defendants (herein after referred to as the appellants) to the effect that they are owners of the properties left behind by late Sh. Hira Lal alias Har Lal, son of Sh. Dharam Dass, Residents of Village Okhru in equal shares, being his son and widow, respectively. It was averred that at the time of death deceased had share in Khata Khatuni No. 2/3, 3/3, 4/4, 5 of village Okhru and Khata Khatuni No. 3/4, 4/5 to 6, 7/9, 8/10 of village Jania, as per jamabandi for the year 1984-85. In the alternative it was submitted that if respondent No. 2 is not found entitled to the share left behind by deceased (Hira Lal), then respondent No. 1 was the exclusive owner of the property left behind by deceased Hira Lal, who died in the year 1987. At the time of death, respondent No. 1 was alleged to be minor. It was averred that the respondents all the time remained under the impression that the property left by deceased was safe in the hands of the appellants. However, in the month of January, 1994, the respondents came to know that the appellants have got the mutation of immoveable property of the deceased attested in their favour, concealing the fact that respondents are the legal heirs of the deceased. 3. The suit was contested by appellants by filing written statement, wherein number of preliminary objections were raised viz maintainability, locus standi, limitation, estoppal, valuation for the purpose of court fee and jurisdiction, jurisdiction of the court to try and determine the suit, bad for failure to join all the necessary parties, as well as, not maintainable in view of the decision in H.M.A. Case No. 69- S/3 of 1976, dated 14.6.1976, titled as Hari Lal Vs. Maina Devi, decided by learned District Judge, Shimla. Maina Devi, decided by learned District Judge, Shimla. It was alleged that the parties are bound by the decision dated 14.6.1976. The main ground for opposing the claim of the respondents was that the deceased made a specific statement that respondent No. 1 was not his son and he had no claim over him. This statement was made in the Court in the above case and was admitted to be correct by respondent No. 2. The entirety of the pleadings reveals that the property had not been succeeded by the appellants by any testamatory document, but as per succession, excluding the respondents. 4. Respondents/plaintiffs filed replication, wherein it was specifically alleged that the order passed in H.M.A. Case does not bind the parties. A stand was taken that no divorce was possible except by a decree of divorce passed by the competent Court under the Hindu Marriage Act. It was alleged that there was no custom applicable to the parties, whereby any divorce was permissible outside the Court. It was further alleged that the right of respondent No. 1 could not have been taken away by the statement of respondent No. 2. Respondent No. 2 was alleged to be an illiterate woman. An attempt was made in the replication to show that the said signatures on this statement were obtained by coercive means. 5. On 16.10.2000, learned trial Court framed the following issues:- “1. Whether the plaintiffs are entitled to the declaration that they are the only legal heirs of Hira Lal and entitled to the suit property, as prayed for? OPP 2. If the issue No. 1 is answered in affirmative, whether the mutation attested in favour of the defendants is illegal and void, as prayed for? OPP 3. Whether the plaintiffs in alternative are entitled for the relief of joint possession, as prayed for? OPP 4. Whether the present suit is not maintainable, as alleged? OPD 5. Whether the plaintiffs have no locus standi to file the present suit, as alleged? OPD 6. Whether the plaintiffs are estopped to file the present suit, as alleged? OPD 7. Whether the present suit is not properly valued for the purpose of court fee and jurisdiction, as alleged? OPD 8. Whether the plaintiffs’ suit was barred by limitation, as alleged? OPD 9. Relief.” 6. The learned trial Court after recording the evidence and evaluating the same decreed the suit. OPD 7. Whether the present suit is not properly valued for the purpose of court fee and jurisdiction, as alleged? OPD 8. Whether the plaintiffs’ suit was barred by limitation, as alleged? OPD 9. Relief.” 6. The learned trial Court after recording the evidence and evaluating the same decreed the suit. However, the appeal preferred against the same was dismissed. Aggrieved by the judgment and decree passed by the learned first appellate Court, the defendants have filed the instant appeal, which came to be admitted on the following substantial questions of law:- “1. Whether the learned first Appellate Court erred in law and fact in holding that respondent No. 1 Vidya Sagar is the son of the deceased Hari Lal? 2. Whether the suit of the respondents-plaintiffs was beyond the period of limitation? Question No. 1 7. At the outset, it may be observed that the question as framed is erroneous, as it was not the appellate Court alone but even the learned trial Court who concurrently held that respondent No. 1, Vidya Sagar to be the son of deceased Hari Lal. Be that as it may. Evidently, one of the parties to the marriage, i.e. Hari Lal is no more and the dispute has arisen only after his death. There is no dispute that Hari Lal was married to respondent No. 2, Maina Devi, but he disputed respondent No. 1 to be his son and this is clearly evident from the order passed by the then District Judge in matrimonial proceedings on 4.3.1977, which reads thus:- “Parties with their counsel are present. This petition has been preferred u/s 13/10 of H.M.A. Act on various grounds. Statements of petitioner and respondent recorded. The petitioner has stated that he has divorced the respondent outside the court according to the custom, that there is custom of divorce in his family and Illaqua, that son born to the respondent named Vidya Sagar is not from his loins and he has no claim over him and the respondent can bring up the said child and he has no objection and he will have no claim over the said child. The respondent has stated that she has heard the statement of the petitioner, which was explained to her in Hindustani and that it was correct and that they have divorced each other outside the court. The respondent has stated that she has heard the statement of the petitioner, which was explained to her in Hindustani and that it was correct and that they have divorced each other outside the court. In view of the statements of the parties, this petition under Section 13/10 of Hindu Marriage Act has become infructuous, and is hereby dismissed. There is no order as to costs. The file after completion, according to procedure be considered to record room. Order announced in the open court.” 8. Section 112 of the Evidence Act reads thus:- “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.” 9. It is evidently clear from the aforesaid Section that law presumes strongly in favour of the legitimacy of the offspring. A child born during the continuance of valid marriage is legitimate, unless non access is proved by the husband. The proof of non access must be strong, distinct, clear, satisfactory and conclusive and unless such absence of access is established, presumption of legitimacy cannot be displaced. Once there is no dispute that respondent No. 2 was legally wedded wife of deceased Hari Lal, then the legal presumption of paternity raised by Section 112 is fully applicable to the child of a married couple. No doubt, in this case, even respondent No. 2 had in her statement before the Court in the proceedings (supra) admitted the statement of late Sh. Hari Lal to be correct when he stated that respondent No. 1 was not born from his loins and he had no claim over him, but the said statement of either Hira Lal or respondent No. 2 cannot have any binding effect on respondent No. 1, who as stated above, was born during the continuance of a valid marriage between respondent No. 2 and deceased Hari Lal. Moreover, respondent No. 2’s solemn admission of respondent No. 1’s legitimacy (if any) will not overcome the presumption provided for in the aforesaid Section. 10. Moreover, respondent No. 2’s solemn admission of respondent No. 1’s legitimacy (if any) will not overcome the presumption provided for in the aforesaid Section. 10. The Courts in Ireland have consistently held that a strong presumption of legitimacy arises where a child is born during the marriage. In Yool Vs. Ewing (1904 1 L.R. 434) Sir Andrew Porter M.R. stated: “Now, the presumption of legitimacy in the case of a child born during wedlock is not own juris et de jurie …. The question is one of fact. But the presumption is of enormous strength, and will not be rebutted in an ordinary case, where husband and wife live together, by mere evidence, or even proof, that a person or persons other than the husband had improper relations with the wife. In such a case the law, on the clearest grounds of public policy and decency, will not allow any enquiry as to who is the father. But it might be otherwise (where) ….the husband and wife were not living under the same roof, though…there was clearly possibility of access.” The Court further held that even the wife’s solemn admission of the child legitimacy will not overcome the presumption envisaged and contemplated under Section 112 of the Act. 11. The House of Lords in Russell Vs. Russell (1924) AC 687 held that neither a husband nor a wife is permitted to give evidence of non-intercourse after marriage to basterdize the child born from the wedlock. The question of law is accordingly answered against the appellants. 12. Apart from the above, it would be noticed that even the judgment passed in matrimonial proceedings will not have binding effect nor operate as resjudicata qua respondent No. 1. Admittedly, respondent No. 1 was not a party to the proceedings and secondly, the decree so passed was contrary to the existing law. There can be no dispute that on the date of passing of the decree i.e. 4.3.1977, the provisions of Hindu Marriage Act had come into force, which as per provision contained in Section 29 did protect the customary divorce, but then it was incumbent upon the party setting up such customs to plead and prove such custom. 13. There can be no dispute that on the date of passing of the decree i.e. 4.3.1977, the provisions of Hindu Marriage Act had come into force, which as per provision contained in Section 29 did protect the customary divorce, but then it was incumbent upon the party setting up such customs to plead and prove such custom. 13. It is well established by a long chain of decision that prevailing of customary divorce in a community to which the parties belonging contrary to general law of divorce must be specifically pleaded and established by the person performing such custom. Here it is apt to refer to the judgment of Hon’ble Supreme Court in Yamanaji H. Jadhav Vs. Nirmala (2002) 2 SCC 637 , wherein it was held as under:- “7. In the view that we are inclined to take in this appeal, we do not think it is necessary for us to go into the contentions advanced by the learned counsel for the parties in this case, because we find that the courts below have erroneously proceeded on the basis that the divorce deed relied upon by the parties in question was a document which is acceptable in law. It is to be noted that the deed in question is purported to be a document which is claimed to be in conformity with the customs applicable for divorce in the community to which the parties to this litigation belong to. As per the Hindu Law administered by courts in India divorce was not recognised as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognized by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. Therefore, there was an obligation on the trial court to have framed an issue whether there was proper pleadings by the party contending the existence of a customary divorce in the community to which the parties belonged and whether such customary divorce and compliance with the manner or formalities attendant thereto was in fact established in the case on hand to the satisfaction of the court. In the instant case, we have perused the pleadings of the parties before the trial court and we do not find any material to show that prevalence of any such customary divorce in the community, based on which the document of divorce was brought into existence was ever pleaded by the defendant as required by law or any evidence was led in this case to substantiate the same. It is true in the courts below that the parties did not specifically join issue in regard to this question and the lawyers appearing for the parties did orally agree that the document in question was in fact in accordance with the customary divorce prevailing in the community to which the parties belonged but this consensus on the part of the counsel or lack of sufficient pleading in the plaint or in the written statement would not, in our opinion, permit the court to countenance the plea of customary divorce unless and until such customary divorce is properly established in a court of law. In our opinion, even though the plaintiff might not have questioned the validity of the customary divorce, the court ought to have appreciated the consequences of their not being a customary divorce based on which the document of divorce has come into existence bearing in mind that a divorce by consent is also not recognisable by a court unless specifically permitted by law. Therefore, we are of the opinion to do complete justice in this case. Therefore, we are of the opinion to do complete justice in this case. It is necessary that the trial court be directed to frame a specific issue in regard to customary divorce based on which the divorce deed dated 26th of June, 1982 has come into existence and which is the subject matter of the suit in question. In this regard, we permit the parties to amend the pleadings, if they so desire and also to lead evidence to the limited extent of proving the existence of a provision for customary divorce (otherwise through the process of or outside court) in their community and then test the validity of the divorce deed dated 26.6.1982 based on the finding arrived at in deciding the new issue.” 14. Evidently, the pleadings in the earlier suit have not been placed on record. A bare perusal of the order passed by the learned Court below would reveal that a decree of divorce has been passed only on the basis of statement of parties that they had divorced each other outside the Court. To say the least, this statement in itself was not sufficient to pass a decree, as observed by the Hon’ble Supreme Court in Yamanaji case (supra), the Hindu Law did not recognize divorce as a means to put an end the marriage, which was eventually considered sacrament, with only exception where it is recognized by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. 15. That apart, once it is concluded that the decree was erroneous on the point of law, the same would not operate as resjudicate, as held by the Hon’ble three Judges Bench of Hon’ble Supreme Court in Shakuntla Devi Vs. 15. That apart, once it is concluded that the decree was erroneous on the point of law, the same would not operate as resjudicate, as held by the Hon’ble three Judges Bench of Hon’ble Supreme Court in Shakuntla Devi Vs. Kamla and others (2005) 5 SCC 390 , wherein it was categorically held that where the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land. The question of law is accordingly answered against the appellants. Question No. 2. 16. It is vehemently contended by learned counsel for the appellants that the suit was hopelessly time barred and therefore, deserves to be dismissed. According to him, as per the admitted case Hari Lal died in the year 1987 and the suit was instituted only on 26.4.1994, after 6 years of death of Hari Lal. He would further contend that as per the admitted case of the parties, respondent No. 1 was born on 22.11.1972 and at the time of death of his father in the year 1987 was minor and attained majority in February, 1990 and therefore, the suit for declaration at best could have been brought within three years of attaining majority as per the provisions of Section 6 of the Limitation Act, 1963. 17. On the other hand, learned counsel for the respondents would contend that as the suit property was joint between the parties and therefore, all co-owners including the respondents were deemed to be in possession of every inch of the property. He would further argue that no cause of action had arisen to the respondents prior to year 1994, when they came to know about the non sanction of mutation of landed property of late Sh.Hari Lal in their favour. 18. While answering substantial question No. 1, this Court has already held respondent No. 1 to be the son of late Sh.Hari Lal and once it is so, then obviously he was co-owner of the property. 19. 18. While answering substantial question No. 1, this Court has already held respondent No. 1 to be the son of late Sh.Hari Lal and once it is so, then obviously he was co-owner of the property. 19. Now the further question is as to whether the respondents in fact acquired knowledge regarding the sanction of mutation in the year 1994, as alleged by him. For answering this question one will have to fall back to the statement of PW-5, Vidya Sagar, plaintiff No. 1, who in his examination-in-chief has categorically stated that he for the first time in the year 1994 came to know regarding the sanction of mutation of inheritance of his father, whereby he and his mother had been excluded and earlier to that he was under the impression that their share is intact. This version on behalf of respondent No. 1 was accepted to be correct by the appellants, as they did not elect to challenge the same by subjecting respondent No. 1 to cross-examination and would, therefore, be considered to have been admitted by them. 20. In addition to the aforesaid, even when PW-3 Maina Devi (plaintiff No. 2) appeared in the witness box, she too had stated that she had acquired knowledge regarding the wrong revenue entries qua the property of late Hari Lal only in January, 1994 and prior to it she was not aware about the entries and was under the impression that their share is intact. Though in her cross-examination she has stated that she had visited the office of Patwari in the year 1987, but by that time mutation was not attested, which admittedly was attested later on 22.1.1988. 21 Therefore, it stands established that it was in the year 1994 when the respondents came to know about the wrong revenue entries qua the suit land, which furnished them cause of action to file the suit, which admittedly was filed on 26.4.1994 and is therefore, within limitation after accrual of cause of action in their favour. The question if answered accordingly. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their costs.