RAM NATH (SINCE DECEASED) Vs. CHANDER NATH

JUDGEMENT

(1.) The defendants No.1 to 3 are the appellants, who aggrieved by the judgment and decree passed by learned first Appellate Court whereby it reversed the judgment and decree of the learned trial Court and decreed the suit of the plaintiff, have filed the instant appeal.

(2.) The plaintiff filed a suit for declaration to the effect that he is the son of defendant No.1 having been born to Smt. Apsra Devi, who was the first wife of defendant No.1. After the birth of the plaintiff, defendant No.1 had performed another marriage with defendant No.4 and out of the wedlock, defendants No.2 and 3 were born. In the books of the Collector, defendant No.1 had been recorded owner in possession of the land described in Khata Khatauni No. 136/237, Khasra No. 690, measuring 0-00-89 hectares, Khata Khatauni No. 108/195, Khasra No. 885, measuring 0-43-11 hectares, situated in Mauza Ribba, Up-Mohal Holdang, Tehsil Moorang, District Kinnaur, H.P. The suit land was stated to be ancestral with defendant No.1 qua the plaintiff as the same had been acquired by him through inheritance from his father Sh. Ram Singh. The parties were governed by custom in the matter of alienation and succession. According to the custom applicable to the parties, defendant No. 1 could not alienate the suit land without the consent of the plaintiff. It had been stated that defendant No. 1 on 30.8.1988 had executed gift deed Nos. 30/88 and 31/88 of the suit land in favour of defendants No.2 to 4 and the mutation to this effect was attested in their favour on 27.01.1989. The plaintiff alleged that this alienation of the suit land by defendant No.1 in favour of defendants No.2 to 4 was wrong, illegal and void and therefore not binding on him. In the earlier proceedings under Section 125 Cr.P.C., defendant No.1 had admitted the plaintiff to be his son. As such, defendant No.1 could not be permitted to challenge the paternity of the plaintiff and was estopped from denying his relationship with the plaintiff. However, on these allegations, the suit was instituted before the trial Court on 28.4.1990.

(3.) The defendants No.1 to 4 contested the suit by filing written statement wherein they denied the relationship of the plaintiff with defendant No.1. It was averred that Smt. Apsra Devi had not given birth to the plaintiff from defendant No.1 and defendant No.1 could not be estopped from challenging the paternity of the plaintiff. It was averred that Smt. Apsra Devi was the joint wife of defendant No.1 and his elder brother Sh. Vidya Krishan (PW-3). Defendant No.1 admitted having performed another marriage with defendant No.4 and claimed himself to be the owner in possession of the suit land and denied the ancestral character of the same. It was averred that defendant No.1 had not inherited the suit land from his father Sh. Ram Singh and further denied that the parties were governed by any custom relating to alienation and succession as set up by the plaintiff. It was averred that as per local custom applicable to the parties, alienation of ancestral property was permitted and, therefore, the gift deeds in question were legal, valid and were binding on the plaintiff. It was averred that under local custom, the alienation of a portion of ancestral property by way of gift to the wife was recognized. The objections regarding the suit land having not been properly valued for the purpose of court fee and jurisdiction and further that the plaintiff had no locus standi to institute the suit, were also taken.