SRINAGAR: The High Court of Jammu Kashmir and Ladakh has restored a trial court decree recognising a woman as the daughter of a deceased landowner and upholding her claim to a share in his property, ruling that the appellate court wrongly dismissed her suits on grounds of limitation and failure to establish paternity.
Justice Shahzad Azeem, while allowing Civil Second Appeal No. 30/2013, set aside the District Judge Kishtwar’s judgment dated November 7, 2012, and restored the Sub Judge Kishtwar’s decree dated March 9, 2004, in favour of Mst. Themu. The High Court held that the appellate court had misappreciated oral and documentary evidence, overlooked the appellant’s minority and wrongly decided the limitation issue despite the defendants failing to lead evidence to discharge the burden placed upon them.
The judgment was pronounced on October 23, 2026.
Themu had approached the court seeking recognition as the only daughter of her late father, Sonu, son of Deep Ram Thakur, and entitlement to a half share in 58 kanals and 11 marlas of land recorded under Khewat No. 01 in Machail village of Padder, Kishtwar.
She had also challenged Mutation No. 43, attested on October 15, 1966, exclusively in favour of Shib Devi, claiming that it was illegal to the extent that it deprived her of her share in the property. The suit sought consequential relief, including possession of the land.
The first suit was filed on September 14, 1982, followed by another on August 27, 1991, after Shib Devi’s death. The two suits were clubbed together. The defendants disputed Themu’s paternity and raised objections, including that the suits were barred by limitation.
The trial court decreed both suits in her favour in 2004. However, the District Judge Kishtwar reversed that decision in 2012, primarily holding that Themu had failed to establish her paternity and that the suits had been filed beyond the prescribed limitation period.
Challenging the appellate court’s decision, Themu approached the High Court, which admitted the second appeal in March 2023 to examine two substantial questions of law concerning the accrual of the right to sue and the burden of proof in deciding limitation.
Minority crucial to limitation issue
The High Court observed that Sonu died around 1963, when Themu was approximately six or seven years old. She was therefore a minor when Mutation No. 43 was attested in 1966 and when her claim to the property was disputed.
Justice Azeem held that the appellate court had failed to properly consider the effect of her minority while determining when the cause of action arose.
Referring to Section 6 of the Limitation Act, the court observed that the law provides protection to minors in the computation of limitation. A denial recorded during mutation proceedings against a minor does not, by itself, necessarily amount to a clear and unequivocal threat to her rights that automatically starts the limitation period.
The court relied on the Supreme Court’s judgment in Mst. Rukhmabai v. Lala Laxminarayan and Others, reported in AIR 1960 SC 335, which held that the right to sue accrues when there is a clear and unequivocal threat to the right claimed, rather than upon every incomplete or ineffective denial.
The High Court noted that Themu had specifically pleaded in her plaint that the defendants refused to recognise her rights and hand over possession shortly before the suit was filed. It held that the appellate court could not disregard these pleadings and the evidence supporting them in the absence of contrary material produced by the defendants.
The judgment also noted that subsequent refusals by the respondents after Shib Devi’s death, as pleaded by the appellant, could give rise to a fresh cause of action.
Oral and revenue evidence supported paternity
The High Court also found that the appellate court had wrongly rejected Themu’s claim of being Sonu’s daughter by overlooking material oral and documentary evidence.
The trial court had relied on the testimony of several witnesses, including Ram Saran, who had worked as domestic help in Sonu’s household for five to six years; Sukh Dayal and Jyoti Ram, who testified about seeing Themu with Sonu during her childhood; and Themu herself, who stated that she had been turned out of the house by Shib Devi after her father’s death.
The court also considered revenue records, including Mutation No. 43 and Mutation No. 67, produced through Patwari Romal Chand, which supported the appellant’s claimed relationship with Sonu and Channa Devi.
Some defence witnesses, including Lal Chand and Sujan Singh, had acknowledged that Channa Devi lived with Sonu. Another Patwari, Saroop Chand, confirmed the pedigree entries showing Themu as the daughter of Sonu and Channa Devi, although the mutation had not ultimately been attested in her favour.
Justice Azeem held that the evidence, considered collectively, supported the trial court’s finding on paternity.
The court further observed that the absence of testimony from Themu’s mother was a relevant circumstance but could not, by itself, invalidate the claim when other credible evidence was available.
Court clarifies evidence of family relationships
The High Court held that the appellate court had misapplied Section 50 of the Evidence Act, which makes opinions about relationships relevant when expressed by persons with special means of knowledge.
It observed that such knowledge is not confined to blood relatives. A person who has lived in a household, or has had long-standing familiarity with the family, may also provide relevant evidence about relationships.
In support of this principle, the court referred to the Supreme Court’s judgment in Chowdamma (D) by LR and Another v. Venkatappa (D) by LRs and Another (2025 SCC OnLine SC 1814). The judgment recognised that testimony based on personal knowledge and long-standing familiarity can establish a relationship, particularly when corroborated by genealogical records and sustained under cross-examination.
The High Court concluded that the appellate court had erred in treating the non-examination of the mother or a close blood relative as a decisive ground for rejecting Themu’s claim, despite the other evidence on record.
Defendants failed to discharge burden on limitation
A key finding in the judgment concerned the burden of proof on the question of limitation.
The trial court had framed the issue of whether the suits were time-barred with the burden placed on the defendants. However, the appellate court decided the issue against Themu without the respondents producing evidence to establish when her right had first been unequivocally denied.
The High Court noted that the defendants had led no evidence establishing the precise date of the alleged denial or Themu’s exact date of birth. Despite acknowledging the absence of exact evidence regarding her birth, the appellate court had estimated that she was born in 1953–54 and used that estimate to conclude that the suits were barred by limitation.
Justice Azeem held that the appellate court could not determine a mixed question of fact and law against the appellant while disregarding the burden of proof assigned to the defendants.
The court clarified that Section 3 of the Limitation Act requires courts to examine whether proceedings have been instituted within the prescribed period. However, this obligation does not justify reversing the burden of proof or reaching a conclusion unsupported by the evidence, particularly where the issue depends on disputed facts.
It added that, if the appellate court believed the burden had been wrongly assigned, it should have recast or amended the issue and, where necessary, exercised its powers under Order XLI Rules 25 or 27 of the Code of Civil Procedure after giving the parties an opportunity to present their case.
The High Court also found that the appellate court had failed to properly address the trial court’s reasoning and comply with the requirements of Order XLI Rule 31 of the Code.
Trial court decree restored
Answering both substantial questions of law in Themu’s favour, the High Court held that the appellate court’s findings suffered from perversity and were based on an incorrect application of law to the evidence.
It ruled that once Themu’s paternity was established, her consequential claim to inherit her father’s property and seek possession had to be considered in that light. The appellate court’s errors concerning paternity, minority and limitation went to the root of the case.
Accordingly, the High Court set aside the District Judge Kishtwar’s judgment and decree dated November 7, 2012, and restored the trial court’s judgment and decree dated March 9, 2004, in the two clubbed suits.
The civil second appeal was allowed, with the parties directed to bear their own costs.
