BRIJBASUA Vs. VISHNUDEV SINGH

JUDGEMENT

(1.) THIS is plaintiffs' second appeal under Section 100, Civil Procedure Code. The following substantial questions of law were formulated by order dated 30.11.1989 at the time of admission of this appeal :-

(2.) THE facts relevant for the decision of the questions referred above are that defendant, Vishnu Deo Singh and Gopal Singh were brothers. They were jointly holding 18.52 acres of land of Khasra Nos. 19, 20, 22, 30, 31, 32, 33, 34, 50/2, 51, 59/2, 236, 403, 404, 405, 406 and 407 (17 Nos.) in village Karodia, Tehsil Gopadbanas, District Sidhi. Gopal Singh had half share in these lands. Plaintiff Brijbasua claimed that she is legally wedded wife of Gopal Singh and the plaintiffs Nos. 2 to 6 are his children through her. Gopal Singh had died in 1980. The plaintiffs claim that they are his heirs and are entitled to his half share in these lands. They have asked for partition and separate possession of the half share. The defendant has pleaded that plaintiff No. 1 Brijbasua is Kol by caste and there was no marriage between her and Gopal Singh. The plaintiffs Nos. 2 to 6 are not his off-springs. By an amendment it has been pleaded that the plaintiff No. 1 became ready to live with Gopal Singh on condition that she would marry him in future and she would serve and look after him as her husband. On this condition Gopal Singh executed the Will dated 16.12.1977 (Ex. D.3) in her favour but she did not stay with him and took another man as husband. Therefore, Gopal Singh cancelled that Will by the document dated 28.4.1979 (Ex. D-2) and executed his last Will dated 21.12.1979 (Ex. D-1) in favour of the defendant's son Mangleshwar.

(3.) THE first Appellate Court reversing the finding of the trial Court has held that Brijbasua is not the wife of Gopal Singh but she was his 'keep' and, therefore, the plaintiffs Nos. 2 to 6 are his illegitimate children. They do not acquire any rights in the share of Gopal Singh in the lands in dispute in view of the Will dated 21.12.1979 (Ex. D-1). Even the first of Appellate Court could not discard the finding that plaintiff No. 1 Brijbasua lived with Gopal Singh as his wife for more than 20 years and the plaintiffs Nos. 2 to 6 are his children through him. The inference drawn by the first Appellate Court is that she was the keep or concubine of Gopal Singh and the children are illegitimate.