Balbir Kaur vs Raj Pal Singh and Others Regular

Prem Chand Jain, Acting C.J.—Balbir Kaur has filed this appeal against the judgment and decree of the learned Senior Subordinate Judge, (Exercising the Enhanced Appellate Powers), Bhatinda, dated 23rd August, 1975, by which the judgment and decree of the trial Court, dated 19th September, 1973, were set aside and the Plaintiff''s suit qua the relief of declaration and possession was dismissed.

In order to appreciate the controversy, certain salient features of the case may be noticed:

Tara Singh, deceased, was owner of 1/4th share in the suit land measuring 410 kanals 16 Marias. He married Narain Kaur, Gurnam Kaur and Ranjit Kaur, one after the other. Narain Kaur is alive; whereat Gi-rnam Kaur and Ranjit Kaur pre-deceased him. Rajpal Singh, Satpal Singh, Jagpal Singh are his sons and Jaspal Kaur is his daughter from his two pre-deceased wives.

Balbir Kaur brought a suit in the Civil Court at Phul for declaration that she being the daughter of Tara Singh from the womb of Narain Kaur and being one of his six heirs, is owner to the extent of 1/24th''share in the suit land and that Tara Singh never executed a will bequeathing his properties to his other sons and daughter. The suit was contested by the other heirs of Tara Singh on the plea that Balbir Kaur was not his daughter and that a valid will was executed by the deceased.

On the pleadings of the parties, several issues were framed.

On the evidence led by the parties, the trial Court decided all the issues in favour of the Plaintiff and decreed the suit.

On appeal by the Defendant-respondents, the learned Senior Subordinate Judge upheld the finding of the trial Court on issue No. 2, i.e. that the will was not validly executed and was not genuine. However, on issue No. 1, the finding of the trial Court to the effect that the Plaintiff was the daughter of Tara Singh deceased, was re versed, with the result that the suit of the Plaintiff was dismissed. Hence, the present regular second appeal.

After hearing the Learned Counsel for the parties, I find that the learned Senior Subordinate Judge has taken a wholly untenable view on Issue No. 1. The main factor which weighed with the learned Senior Subordinate Judge in deciding Issue No. 1 against the Plaintiff is that after the granting of maintenance allowance, Smt. Narain Kaur and Tara Singh deceased must have lived separately from each other and that there was no evidence on the record to prove that Smt Narain Kaur had started living with Tara Singh after the grant of maintenance. In my view, the approach of the learned Senior Subordinate Judge is not only erroneous but, in the circumstances of the case, wholly perverse. Smt. Narain Kaur has herself stepped into the witness box and stated that she gave birth to Balbir Kaur from the loins of Tara Singh deceased. It is an admitted fact that Balbir Kaur was born during the continuation of a valid marriage between Smt. Narain Kaur and Tara Singh Merely this fact that she was getting maintenance allowance from Tara Singh under the orders of the Court, would not result in drawing a presumption that the marriage between the two did not continue or that they could not/did not cohabit thereafter and that the Plaintiff was not born to Smt. Narain Kaur from the loins of Tara Singh deceased. The categorical statement of Smt. Narain Kaur without there being any rebuttal by the Defendants, is sufficient to lead to an irresistible conclusion that the Plaintiff was born to her from the loins of Tara Singh deceased.

In the view of the matter I have no other alternative but to set aside the finding of the learned Senior Subordinate Judge on Issue No. 1 and restore that of the trial Court.

No other point was urged on either side by the Learned Counsel for the parties.

For the reasons recorded above, I allow this appeal with costs throughout, set aside the judgment and decree of the lower appellate Court and restore that of the trial Court.