IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 348 of 1996. Date of decision March 17, 2009. Dasoda Devi and another …Appellants. Versus Meena Devi and others ….Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellants Mr. Bhuvnesh Sharma, Advocate. For the respondents M/S K.S.Kanwar and Bimal Gupta, Advocates Dev Darshan Sud, J. (Oral) The defendant has appealed against the judgment and decree of the two Courts below decreeing the suit of the plaintiff- respondent Smt. Meena Devi granting a decree declaring her to be the legitimate daughter of deceased Jagdish and Rukmani and holding that the appellant herein Dasoda Devi to be leman (mistress) of the deceased Jagdish and not entitled to inherit property of the deceased Jagdish. The suit was contested by the appellant herein on a number of grounds and as many as 16 issues were settled. The basic issue which was crucial to the entire controversy was as to whether Meena Devi was the legitimate daughter of deceased Jagdish. The learned Court on consideration of 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - the evidence decided in favour of the plaintiff Meena Devi. The learned Court while determining this issue also relied upon the statement made by the defendant Dasoda wherein she had admitted vide Ex.PW-1/B (which is a copy of statement made by her before the Sub Divisional Magistrate, Arki in proceedings under Section 107/150 of the Code of Criminal Procedure) wherein she had admitted that deceased Jagdish was married to Rukmani and they had one daughter from this marriage, namely Meena Devi. The Court did not rely upon two documents Exts.DW-2/A and DW-2/B which were affidavits attested by the executive magistrate purportedly proving the marriage of Jagdish with the appellant Dasoda and his divorce from Rukmani. The Court held that there was no proof of divorce, the essential ceremonies under the Hindu law required for valid solemnization of marriage had not been proved on record of the case, no custom of valid marriage was either pleaded or proved and there was no determination of the time when such marriage/ divorce had been performed. The learned appellate Court has affirmed these findings. On the other issue raised before the learned Court as to whether Hans Raj minor who was also an appellant before this court would succeed to the estate of Jagdish, even if he illegitimate son of Jagdish, the Court held that there was no evidence on record to show that he was born from Jagdish and not from the previous husband of Dasoda viz Shri Gobind Ram. - 3 - In appeal, three questions have been raised for determination of this Court, namely: 1. Whether the courts below have failed to appreciate the evidence on the record and the exhibits DW3/B has been misconstrued and the official documents maintained in due course have been ignored on relied upon? 2. Whether the evidence adduced by the Panch witness pertaining to the facts can be denied reliance when there is nothing contrary to give a reliance to it? 3. Whether the courts below have erred in passing impugned judgments and decrees in the facts and circumstances of the case? Learned counsel appearing for the appellant has laid emphasis on Ex.DW-3/B being an affidavit sworn by late Jagdish before the Executive Magistrate which purportedly proves his marriage to the appellant herein. I have scrutinized both Exts. DW-3/A and DW-3/B and am in complete agreement with the findings as given by the learned trial Court and affirmed by the learned appellate Court that both these documents cannot be used for purposes of proving divorce between Jagdish and Rukmani or a valid marriage between Dasoda and deceased Jagdish. The learned trial Court was right in holding that the essentials of valid marriage have neither been pleaded or proved nor the divorce had been proved at all, leave alone with certainty. It was the bounden duty of the appellant to have led clear and cogent evidence to establish valid marriage either under - 4 - the Hindu law or by custom which require clear proof of facts. I cannot persuade myself to take a different view than what has been taken by both the Courts below. On the other aspect that even if the marriage is not validly proved, the record clearly establish that minor Hans Raj was born from the marriage of Dasoda with Jagdish, the learned appellate Court has rightly held that even this fact is not proved, although it was admitted by the appellant herein that she was married to one Gobind. There is nothing to show whether this child was born from Gobind or from Jagdish. This finding of fact cannot be disturbed as it is based on the correct appreciation of law and facts. Learned counsel appearing for the appellant placed reliance on Rameshwari Devi v. State of Bihar and others, AIR 2000 SC 735; Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and others, v. K. Devi and others AIR 1996 SC 1963; Gurnam Kaur (Smt.) and another v. Puran Singh and others (1996) 2 SCC 567, Jinia Keotin and others v. Kumar Sitaram Manjhi and others, (2003) 1 SCC 730; Bhogadi Kannababu and others v. Vuggina Pydamma and others, (2006) 5 SCC 532; and Neelamma and others v. Sarojamma and others , (2006) 9 SCC 612, holding that an illegitimate child is entitled to inherit from his father. There is no dispute regarding this proposition, but all that I can say in this case is that litigation has been conducted in a cavalier manner, little realizing that findings of illegitimacy have been - 5 - invited only for the purpose of inheritance to the estate of deceased without in any manner realizing other implications and even that status has not been granted to the minor who is since dead. All the three questions are decided against the appellant. This appeal is dismissed. There shall be no order as to costs. All pending applications shall stand dismissed. March 17, 2009 (PC). (Dev Darshan Sud), J.