1. Mr. E is adviced to file a 'partition suit.
2. Mr. A's relatives should be called as Mr. E’s witness.
3. However sicne Mr. A is no more and now if a paternity suit is filed it will prove Mr. E is child of Ms. C (who is still alive as per brief) that is all is my view.
4. Ration card / Voter card are documents proving void marriage of Ms. C with Mr. A and you being illegitimate child of Mr. A.
Reasoning:
Under S. 114 of the Evident Act the Court shall presume the existence of probable facts, having regard to human conduct and the common course of the events and common sense being used as the judicial tool. In Ref.: Sumitra Devi Vs. Bhinkan Chaudhary [(1885) 1 SCC 637] it was held that the fact that the couples were living as husband and wife for decades was relevant in proving factum of their marriage. Again in Ref.: Ranganath Parmeshwar Panditrao Vs. Eknath Gajanan Kulkarni And Ors. [1996 AIR 1153; 1996 SCC (2) 226] it was held that if H and W were living as Husband and Wife, then even in the absence of proof to that effect a rebuttal presumption would arise that the marriage between them was valid.
5. Engagement pic. of yours showing Mr. A and Ms. B will only prove they knew you and to some extent closeness to you was there if vehemently argued before Bench and nothing else like will not lead to paternity claims direction since both of them are now deceased as per your own brief.
6. Mr. E has an equal share in the said property and so is Ms. B's child Mr. D entitled to an equal share in the property in the absence of 'will' being made by Mr. A., Mr. D is free to sell his share just as you (Mr. E) can seek partition of the property and sell your share.
Reasoning:
In a Hindu Family if the Hindu man dies intestate (i.e. without leaving any testamentary document such as a 'Will') then all his widows get one share of the property, each one of them get equal share of the one part, the only condition here is that both marriages in question of the Hindu should be properly solemnized although his second marriage during the first wife living shall be considered Void however the right of the second wife/widow (Ms. C) to share the property of her deceased husband with the first wife (Ms. B) can not be denied by virtue of S. 10 / R 1 of the HSA which reads as:-
“Distribution of property among heirs in class 1 of the Schedule. -
The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:-
Rule 1.- The intestate’s widow, or if there are more widow than one, all the widows together, shall take one share.
Rule 2.- The surviving sons and daughter and the mother of the intestate shall each take one share.
Rule 3.- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
Rule 4.- The distribution of the share referred to in Rule 3-
(i) among the heirs in the branch of the pre-deceased son shall be son made that his widow (or widows together) and the surviving sons and daughters get equal portions, and the branch of his pre-deceased sons gets the same portion.
(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.”
7. Coming back to paternity (LEGITIMACY) question that you asked here, both Mr. D and Mr. E (i.e. you) who are the two children of the deceased Hindu (Mr. A) borne by the first wife (Mrs. B) and by the second wife (Ms. C) respectively shall have equal right in Mr. A's property by virtue of S. 10 / R 1 HSA as well as S. 16 of HMA which gives legitimacy to the children born from marriage declared null and void or annulled by a decree of nullity, read this provision too:-
“Legitimacy of children of void and voidable, marriages-
Where a decree of nullity is granted in respect of any marriage under S. 11 or S. 12 HMA, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity.
Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.”
8. Hence in brief file a partition suit by hiring an advocate found via reference or searching one from vast database of LCI Advocates search box and no DNA or Paternity suit matters are filed in such asked brief is my opinion.
