SONAM TSERING Vs. KUNZANG SHERAB

JUDGEMENT

(1.) On the allegations that his mother Chungba Bhutiani was the legally wedded wife of the defendant-respondent Kunzang Sherab and that he was born out of this wedlock, Sonam Tsering, appellant filed a suit in the Court of District Judge through his guar?dian claiming maintenance from his father and also a declaration against him claiming a right over the properties of the respondent, as detailed in the Sche?dule attached to the plaint. The Suit having been dismissed by the District Judge by Judgment dated 5-8-1978 the plaintiff has filed an appeal challenging the correctness of the findings given by him.

(2.) The basis of the plaintiff's claim is that his mother had married the re?spondent in 1951 and thereafter they lived together at Gangtok below the Lal Market. In 1955, his maternal grand father fell suddenly ill and his mother went to her father's house in Yangang to look after him. At that time, Chungba Bhutiani was pregnant and while she was still at Yangang she gave birth to the plaintiff at her parental house. Sometime thereafter she returned to Gangtok but the defendant refused to accept her, back and even did not permit her to enter his house. When all efforts to persuade the defendant to take Chungba Bhutiani back into the house failed, she left for her parental home. The parties having separated for good, the defendant remarried in 1956 whereas Chungba Bhu?tiani remarried sometime in 1959. In 1974, the plaintiff filed the present suit through his next friend claiming main?tenance from September, 1967 onwards and a declaration that he was entitled to succeed to the ancestral and self acquir?ed properties of the defendant.

(3.) The defendant, while contesting the Suit, not only denied his obligations to support the plaintiff' but even denied the plaintiff's paternity and his alleg?ed marriage to the plaintiff's mother. Challenge was also posed to the main?tainability of the Suit. On the pleadings of the parties, the following issues were framed: