IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.125 of 1999 Date of decision : August 2, 2010 Surinder Singh and others …Appellants. Versus Prithi Singh and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellants : Mr. Romesh Verma, Advocate. For the Respondents : Mr. Anand Sharma, Advocate, for respondents No.1,8,9 and 17. Surjit Singh, J (Oral) Present appeal, by contesting defendants, impleaded as defendants No.1 to 5, is directed against the judgment and decree dated 11th March, 1999, of District Judge, whereby reversing the judgment and decree dated 4th March, 1996 of learned trial Court, by which the suit of respondent Prithi Singh, hereinafter called plaintiff, had been dismissed, a decree, declaring that plaintiff Prithi Singh and proforma-defendant Ramesh Kumar were sons of late Chain Singh, has been passed and it has also been declared that plaintiff Prithi Singh and proforma-defendant Ramesh Kumar have inherited the estate of said Chain Singh alongwith the present appellants-defendants No.1 to 5. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Facts relevant for the disposal of the appeal are like this. There was a man by the name of Hoshiaru, who was owner in possession of the suit property. He had two sons, named Chain Singh, the father of defendants- appellants, and Purshotam. Purshotam died during the life time of Hoshiaru. He was survived by his widow Taro Devi, impleaded as defendant No.13, and a son Tilak Raj, impleaded as defendant No.12. Sometime in the year 1969, Hoshiaru died. On his death, his estate was inherited by Chain Singh, two daughters and Taro Devi & Tilak Raj. Chain Singh inherited one share, two daughters inherited one share each and Taro Devi & Tilak Raj together inherited one share. After the death of Purshotam, plaintiff Prithi Singh and proforma defendant Ramesh Kumar were born. Chain Singh died in 1977. On his death, his estate was mutated in favour of the defendants-appellants, they admittedly being his sons and daughters. This mutation was attested on 14th June, 1983. 3. In the year 1993, Prithi Singh filed the suit, out of which this appeal has arisen, claiming that on the death of Purshotam, his mother Taro Devi’s hushand, his mother married Chain Singh and out of the wedlock he and proforma-defendant Ramesh Kumar were born. He, therefore, claimed that alongwith the defendants- appellants, he and his brother proforma-defendant …3… Ramesh Kumar, had also inherited the estate of Chain Singh. 4. Suit was contested by the present defendants- appellants. They denied that Taro Devi married Chain Singh, after the death of her husband Purshotam. They also denied that plaintiff Prithi Singh and proforma- defendant Ramesh Kumar were fathered by their father Chain Singh. 5. Trial Court concluded that evidence on record did not support plaintiff’s plea that his mother had married Chain Singh and he and proforma defendant Ramesh Kumar were born out of that wedlock. Consequently, the suit was dismissed. Appeal was filed by the plaintiff in the Court of District Judge. Accepting that appeal, with the finding that Taro Devi had married Chain Singh, and plaintiff and proforma defendant Ramesh Kumar were born after such marriage, learned District Judge decreed the suit. 6. This appeal was admitted on the following substantial questions of law: “1. Whether in the absence of specific plea of long-co-habitation between late Sh. Chain Singh and defendant No.13, Smt. Taro, findings on this account being beyond scope of pleadings are void? 2. Whether Ld. District Judge below has acted illegally and assumed jurisdiction which was not lawfully vested in him by …4… ignoring pleadings of the parties and developing a new case. 3. Whether the material admissions made by respondent/plaintiff regarding claim of the appellants have been wrongly ignored in as much as that he himself having admitted that he is not in possession of suit land, therefore, suit merits dismissal. 4. Whether the claim of respondent/Plaintiff is barred by limitations according to the framing of suit because mutation of inheritance of late Sh. Chain Singh, was attested on 14.6.83 and challenge to the same has been thrown for the first time on 21.6.93. 5. Whether plaintiff having raised plea of marriage between Chain Singh and Smt. Taro could succeed only by supporting this claim. 6. Whether in view of material contradictions in copies of parivar-register exhibit P-3, and exhibit DA, plaintiff cannot be held to be son of late Shri Chain Singh? 7. Whether proforma defendant No.22, Shri Ramesh having not put up the claim of succession in the estate of Shri Chain Singh and also on account of his failure to file an appeal before Learned District Judge, he is de-barred to get any relief. 8. That since defendant NO.13, Smt. Taro, continues to get pension being widow of Shri Purshotam, cannot be held to be widow of late Shri Chain Singh. 9. Whether in the absence of time place and specific pleadings in support of alleged marriage, and in any case, since Sh. Purshotam died in the year 1965: therefore, Smt. Taro Devi, cannot be held widow of late Shri Chain Singh because Smt. Shubhani, wife of Shri Chain Singh was alive when Shri Chain Singh died. …5… 10. Whether finding by Ld. Distt. Judge are vitiated due to misappreciation and misreading of pleadings and evidence on record.” 7. I have heard the learned counsel for the parties and gone through the record. 8. Admittedly, trial Court returned the finding that there was no marriage between Taro Devi and Chain Singh, after the death of Purshotam. Plea of customary marriage, known as Jhanjrada, was set up during the trial. Trial Court did not accept this plea. Learned first Appellate Court also did not accept this plea, but returned the finding that long co-habitation between Chain Singh and Taro Devi indicated that they were husband and wife and returned the finding that plaintiff and proforma-defendant Ramesh Kumar were the sons of deceased Chain Singh. 9. Plaintiff never raised the plea that there had been a long co-habitation between his mother and Chain Singh. Admittedly, Chain Singh was married to a lady by name of Sumani and he had begotten five children from her womb. They are the defendants-appellants in this case. Sumani died in the year 1981, while Chain Singh died in the year 1977. Chain Singh was in Government service. Marrying second time, during the life time of his wife, would have resulted in loss of his job. Also, after the enactment of Hindu Marriage Act, 1955, second marriage is not legally permissible. It has come in evidence that …6… Purshotam was also in Government service. Initially, he was in the Army and after retirement from Army, he joined Police service. Taro Devi, being his widow, has been getting family pension till date. She is getting the pension, on account of widow of Purshotam. If a widow remarriages, she ceases to be entitled to get pension, by virtue of Rule 54(6) of the CCS (Pension) Rules. The fact that Taro Devi has been getting pension till date, is a circumstance negating the plea of marriage set up by the plaintiff. 10. More important than the abovestated circumstances is the fact that Taro Devi herself did not enter the witness-box to testify that plaintiff and proforma-defendant Ramesh Kumar were born as a result of coitus with deceased Chain Singh, leave alone her testifying that she was married to Chain Singh. Therefore, an adverse inference is required to be drawn against the plaintiff for not examining his mother Taro Devi, in support of his plea that he had been fathered by Chain Singh or Taro Devi had been living with Chain Singh as his wife. 11. Learned first Appellate Court has accepted plaintiff’s plea that Taro Devi is not mentally sound and, therefore, she has not been examined. Now, if Taro Devi is not mentally sound, her guardian ad litem must have been got appointed by the plaintiff. He did not state in the …7… plaint that Taro Devi was mentally unsound and, therefore, her guardian was required to be appointed. 12. Learned counsel representing the plaintiff- respondent submits that Taro Devi was not mentally sick, when the suit was filed, but became so only after the institution of the suit and that is why such a plea is not there in the plaint nor was any guardian appointed for Taro Devi. Submission has been noticed only to be rejected. Plaintiff Prithi Singh, who testified as PW-1, in the year 1994, that is to say only a year after the institution of the suit, that Taro Devi had been mentally sick for the last 5-6 years and was under treatment at Mental Hospital, Amritsar. The testimony belies the submission that Taro Devi became sick after the institution of the suit. 13. Reliance has been placed on an entry in the Pariwar Register, showing the plaintiff and proforma- defendant Ramesh Kumar as sons of Chain Singh. Copy of the entry is Ex. P-3. The witness, who proved this entry, namely PW-5 Bal Krishan, admitted in the cross- examination that in the latest Pariwar Register, prepared during the year 1994, Prithi Singh and Ramesh Kumar have been recorded as sons of Purshotam and not of Chain Singh. Entry in the Births and Deaths Register, on the basis of which entries are made in the Pariwar Register, has not been proved to show as to who is recorded as …8… father of the plaintiff and proforma-defendant Ramesh Kumar. Thus, the primary evidence has been withheld, for which again adverse inference is to be drawn against the plaintiff. 14. Substantial questions of law are answered in accordance with the aforesaid discussion. Consequently, appeal is accepted, judgment and decree of the first Appellate Court are set aside and those of the trial Court restored. Appeal stands disposed of. August 2, 2010(sd) ( Surjit Singh ), J