OM PATI Vs. DEVAT RAM

JUDGEMENT

(1.) A decree for maintenance in favour of Smt. Dharmo was passed by the learned Trial Court granting Rs. 100/- per month as maintenance under the Hindu Adoption and Maintenance Act, 1956. The copy of the plaint was stated to be Ex.DH/1. Smt. Dharmo the wife of Jai Singh against whom a decree was passed died on 2.7.1975 and, therefore, the execution proceedings could not be concluded and one Om Pati claimed to be the daughter of said Jai Singh whose name is said to have been mentioned in the said plaint mentioning to be the daughter, came up to continue the execution. This execution petition has been dismissed by the learned Trial Court vide order dated 31.8.1981. It was observed by the learned trial Court/executing Court that Om Pati could not be proved to be the daughter of Smt. Dharmo and that of Jai Singh. Consequently, the decree was passed for the personal benefits of Dharmo widow of Jai Singh. She too now is deceased and Devat Ram father of Jai Singh is contesting the execution.

(2.) The learned counsel for the petitioner has argued that there was sufficient evidence in support of the averment that Om Pati is the daughter of the deceased. The evidence contained in the date of birth entry Ex.DH/3 was issued by the office of the Chief Medical Officer and the name of Om Pati was mentioned in the plaint itself which was instituted in the year 1972. This evidence could not be fabricated and correctness of which was not controverted in the pleadings otherwise.

(3.) The only question for consideration is as to whether Om Pati is legally proved to be daughter of Dharmo. It has been discussed by the learned executing Court that there could not be any satisfactory evidence to show that the name of Om Pati was written in any of the birth entries. Rather there has been no evidence to show as to who got the entries made in the office of the Chief Medical Officer, Jind about her birth. No relation who having special means of knowledge, which could be admissible under Section 50 of the Indian Evidence Act has come forward to say that he had the chance to notice the contact inter se between Om Pati, Dharmo and Jai Singh to conclude that she was being treated as a daughter of the deceased. Om Pati was claimed to be 28 years of age. Even her name has not figured any where in any entry with regard to her admission in school or in any voter list. May be that Om Pati is the daughter of the deceased but before the learned executing Court there was no sufficient evidence to uphold such a contention. Moreover, the decree did not suggest that this was for the benefit of the child so to say that the decree was not passed in the joint name of Dharmo and Om Pati. It is true that no specific amount has been claimed for making the decree executable. So in given circumstances there has been no sufficient material before the learned executing Court to execute a decree which in fact is not surviving. Dismissed.