ADWAITA DAS BAIRAGI Vs. LALIT MOHAN MOHANTI

JUDGEMENT

(1.) This appeal arises out, of a suit for partition after declaration of the plaintiff's title to an eight annas, share in the properties in suit. The properties in dispute belonged to one Raj Kumar Banerji. Defendant 1 is the son of Raj Kumar by his wife, defendant 2. The plaintiff claimed an eight annas share being a son of Raj Kumar by another wife. The defendants resisted the plaintiff's claim on the ground that he was not a legitimate son of Raj Kumar and hence he was not his heir. The first Court held that the plaintiff's mother was not a legally married wife of Raj Kumar and hence the plaintiff was not an heir of Raj Kumar and on these findings lie dismissed the suit. The plaintiff appealed to the District Court and the learned Subordinate Judge, held that the plaintiff was a legitimate son of Raj Kumar, that Raj Kumar and the plaintiff's mother had been legally married according to the rites of the, Bairagi sect and hence he was entitled to an eight annas share of the properties. On these findings he set aside the judgment of the lower Court and made a, preliminary decree for partition. The defendants have appealed to this Court.

(2.) It is somewhat unforunate that in deciding a matter affecting a marriage by custom amongst a sect of the Hindus we have not the assistance of any pleader on behalf of the respondent.

(3.) The appellant has argued that the lower appellate Court is wrong in holding that as Durga was united to Raj Kumar in Patri form it must be presumed that she did become a Bairagi when the marriage was celebrated. It has not, however, been shown that any formal conversion is necessary to validate a marriage in Patri form, Any case law on the question is conspicuous by its absence.