GOPAL SAIN Vs. BAHADUR CHAND AND ANOTHER

JUDGEMENT

(1.) The defendant is the appellant, who after having lost before both the learned Courts below, have filed the instant regular second appeal. The parties shall be referred to as the plaintiffs and defendant.

(2.) Briefly stated the facts of the case are that late Shri Gauri Sukh was having six sons and all of them constituted a joint family in the life time as well as after the death of Sh. Gauri Sukh. All sons of Sh. Gauri Sukh namely Sh. Jangchuk Giachho, Sh. Tulsi Ram, Sh.Vidya Jeet, Sh.Padam Chand, Sh. Ram Chander and Sh.Bhadur Chand, were having a common wife namely Smt. Sanam Patti as per custom of Kinnaur District to which the parties belong. From this marriage, one son named Dandup Giachho, plaintiff No.3 and two daughters were born and all of them are alive. It was averred that as per custom of Kinnaur District the sons and daughters born from the common wife are considered to be the sons and daughters of last surviving brothers and in the same way the property is also considered to be the property of last surviving brother. Out of the aforesaid six brothers, four have died and only plaintiffs No.1 and 2 namely Sh. Padam Chand and Sh. Bhadur Chand are surviving. So, now plaintiff No.3 and two daughters will be considered as son and daughters of plaintiffs No.1 and 2 and after the death of plaintiffs No.1 and 2 the entire property in their hands would be inherited by plaintiff No.3 because as per custom the daughters are only entitled for life estate. It was further averred that now the entire property so left by late Shri Gauri Sukh and thereafter by his elder son is at present in the possession of the plaintiffs. Late Shri Jangchuk Giachho was the eldest son of late Shri Gauri Sukh, who during his life time had illicit relations with a lady named Smt. Naure of the same village and out of this relation an illegitimate son named Sh. Gopal Sain i.e. defendant was born who was brought up by his mother. In District Kinnaur, a son born out of illicit relations of a man and woman is called 'JATTU' and such son does not have any right in the estate of his so called father and after the death of father, such illegitimate son does not have any right or claim over the property left by such father. Shri Jangchuk Giachho had died about 28 years back and after his death, his estate was inherited by his surviving brothers and since then plaintiffs No.1 and 2 have been holding the entire landed and house property knowing fully well that late Sh. Jangchuk Giachho had an illegitimate son i.e. the defendant. Despite the repeated demand from the side of defendant, the plaintiffs did not give any land to the defendant in lieu of maintenance out of the share of late Sh. Jangchuk Giachho. Therefore, such denial on the part of the plaintiffs and his brother dis-entitled the defendant to take any share out of the share of Sh. Jangchuk Giachho because the plaintiffs are also claiming themselves to be the absolute owners even by way of adverse possession qua the interest of defendant, if any, in the share of late Sh. Jangchuk Giachho. It was further averred by the plaintiffs that the defendant had purchased the landed property in village Labrang out of his own earnings and he is having such property exclusively. He is also having his own family, but after the purchase of land, the defendant managed to enter his name as the son of late Sh. Jangchuk Giachho in the pedigree table prepared by the revenue authorities. The plaintiffs came to know about this entry in the month of Jan., 2004 and thereafter they asked the defendant that why he had entered himself to be the son of late Sh. Jangchuk Giachho and he openly proclaimed that he would claim half share in the entire property so left by late Sh. Gauri Sukh which presently is in the possession of plaintiffs. Such threat issued by the defendant is totally against the custom prevalent in Kinnaur District and if this entry remains unchallenged, then the defendant would create trouble to the plaintiffs on the basis of such wrong entry. So, the plaintiffs had filed the suit for declaration that the defendant is the JATTU (illegitimate son) of late Sh. Jangchuk Giachho and the entry in the pedigree table or where ever showing the defendant to be the son of late Sh. Jangchuk Giachho is illegal and liable to be changed.

(3.) The suit was contested and opposed by the defendant on the grounds of estoppel, limitation, maintainability, cause of action and locus-standi etc. On merits, it was averred by the defendant that six sons of late Sh. Guari Sukh were not having only one common wife namely Sanam Patti, but Sh. Jangchuk Giachho was having one another wife namely Smt. Norjang Butith, mother of defendant. In the beginning, Smt. Norjang Butith served as a maid servant for about two years and in the meantime Sh. Jangchuk Giachho had fallen in love with her and this love affair ended up in marriage and out of this wedlock a male child namely Sh. Gopal Sain, defendant, was born, who was brought up in the same house and remained there for more than 30 years after his birth and he was treated and accepted as second son, the first being plaintiff No.3 Sh. Dandup Giachho. Not only this, the defendant Shri Gopal Sain and plaintiff No.3 Sh. Dandup Giachho shared one wife namely Smt. Sushila Devi for at least two years, but later on, differences arose between the defendant and plaintiff No.3 because of which the defendant had to quit the house and started living separately. It was further averred that as per custom prevalent in the area when a girl is married to a number of brothers, a special marriage ceremony is observed, according to which, each brother is required to put on a turban called 'Pag Likshimu' in order to get the status of a husband and the defendant took part in that special ceremony along with his step brother Sh. Dandup Giachho. The defendant has not denied the custom prevalent in the area regarding inheritance of property as well as that the sons and daughters are considered to be the sons and daughters of the last surviving brothers. However, the defendant averred that as per custom in the area in case of more than one wife of several brothers, a child born from such wives are entitled to inherit the property in equal share along with his brothers and, therefore, after the death of Sh. Jangchuk Giachho, the defendant would ultimately be considered to be the son of last surviving brothers i.e. plaintiffs No.1 and 2 and after their death, he would be entitled to inherit them in equal share with plaintiff No.3 Sh. Dandup Giachho. The defendant denied that he is the JATTU or illegitimate son of late Sh. Jangchuk Giachho. According to the defendant, the plaintiffs have challenged his legitimacy after a long period of 28 years and they kept silent for about 30 years after the death of Jangchuk Giachho. It was also averred by the defendant that since he is the son of Sh. Jangchuk Giachho, therefore, the entry has been made to this effect in the 'Parvivar' register of Gram Panchayat, Labrang and electoral roll for the year 2002 which documents are unchallenged uptill now. The defendant has denied that he had demanded any property in lieu of maintenance out of his share of his father Sh. Jangchuk Giachho and further denied that the plaintiffs had dis-entitled him to take any share out of the share of Sh. Jangchuk Giachho alleging that there was no necessity for him to claim any maintenance etc. because he was actively participating in the household affairs. The defendant has also denied that he managed to enter himself to be the son of late Sh. Jangchuk Giachho in the pedigree table prepared by the revenue authorities. According to defendant, the revenue authorities had made entry after making proper inquiry and now the plaintiffs cannot agitate this matter because they never raised any objection at the earliest possible opportunity. In a nutshell, the defendant has claimed that he is not the illegitimate son of Sh. Jangchuk Giachho and, therefore, the plaintiffs are not entitled to the relief claimed. Lastly, the defendant prayed that in case he is not declared to be the legitimate son of Shri Jangchuk Giachho, in that event, he may be granted some portion of landed property in lieu of maintenance.