Law: Specific Relief Act (I of 1877)

Section: 39, 42

Specific Relief Act (I of 1877) Ss.39 & 42---Inheritance claim---Suspicious parentage---Claimant non-suited without framing of a specific issue viz. parentage---Legality---Non-parentage/adoption, plea of---Burden of proof---Party asserting a fact must discharge the burden of proving same---Scope---Briefly, a suit was instituted for declaration, cancellation, partition and administration of the estate of deceased; the litigation was contested by the children of the second wife, and, among other matters, the entitlement of plaintiff No.4/appellant to inherit from the deceased came under consideration; while deciding Issue No.4, the Single Judge treated the parentage of plaintiff No.4/appellant as suspicious and denied him any share in the estate; in appeal, it was found that no specific issue regarding his parentage/pedigree had been framed, nor had he been given proper notice and opportunity to meet such case---Legal question for consideration before the High Court/Appellate Court was whether the claimant to inheritance could be denied his share in the estate on the basis of doubtful parentage when no specific issue on pedigree was framed, no proper opportunity was afforded to rebut such plea, and the matter was decided without full evidence on that point? ---Held: In absence of specific issue, sufficient notice to the affectee, and evidence by the party resulted in miscarriage of justice---Unless a relevant issue was framed and evidence was adduced the opinion adopted by Single Judge could not be formed---DNA test for determining the parentage of plaintiff was an additional source of resolving the controversy between the parties apart from evidence which both parties were required to lead to resolve the issue---Matter was remanded for framing of a specific issue to allow both parties to lead evidence---Appeal was disposed of, in circumstances.                                                                                       …