Back
1966 Supreme(J&K) 18
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Janki Nath Bhat, J.
Shibu - Appellant
Versus
Padu & Ors. - Respondent
Second No. 67/1965
Decided On : 20 May, 1966
Advocate For Appellant: V.S. Malhotra
Advocate For Respondent: Amar Chand Vaid
An illegitimate son of a Shudra is entitled to succeed to his property if he is from a concubine but not the offspring of an adulterous or incestuous intercourse.
Headnote:
SUCCESSION - HINDU LAW - SHUDRA - ILLEGITIMATE SON - ADULTERY - PRESUMPTION OF DEATH - S. 108 OF THE EVIDENCE ACT - INTERPRETATION.
Fact of the Case:
Shibu, the appellant, filed a suit for joint possession of 1/6th share of land, claiming proprietory rights from 27 ks. and 9 ms. and occupancy rights in the rest of the land. He claimed this property both on account of custom and personal law. The defendants denied the paternity of Dibu, Shibu's father. The trial court and the lower appellate court dismissed the suit, finding that Shibu was not the son of Dibu but was born from a keep, Mst. Kastu, while she was living in continuous concubinage with Dibu. The appellant argued that even though he failed to prove himself as the son of Dibu, he was proved to be from Dibu's loins and the womb of Mst. Kastu, and that as a Shudra, he was entitled to succeed to his property if he was from a concubine but not the offspring of an adulterous or incestuous intercourse.
Finding of the Court:
The court found that the appellant, Shibu, was the illegitimate son of Dibu born from Mst. Kastu, while she was living in continuous concubinage with him. The court also found that Kastu was the wife of one Chandu, who had deserted her and about whom nothing was heard for a number of years. The court held that Shibu was not entitled to inherit Dibu's property because he was born of an adulterous intercourse, as Kastu was still married to Chandu when Shibu was conceived or born.
Issues: 1. Whether the appellant, Shibu, is the son of Dibu and entitled to succeed to his property under the custom? 2. Whether the appellant is entitled to succeed to Dibu's property under the personal law, being an illegitimate son of a Shudra born from a concubine but not the offspring of an adulterous or incestuous intercourse?
Ratio Decidendi: 1. The court held that the appellant failed to prove the custom alleged by him, whereby he would be entitled to inherit Dibu's property. 2. The court held that the appellant was not entitled to succeed to Dibu's property under the personal law, as he was born of an adulterous intercourse. The court interpreted the Hindu law on adultery strictly, holding that even though Chandu, Kastu's husband, had connived at his wife's living in adultery with Dibu, this would not make Shibu eligible to succeed Dibu.
Final Decision: The court dismissed the appellant's appeal, holding that he was not entitled to any share from the property of Dibu.
Shibu appellant instituted a suit for joint possession of l/6th share of land measuring 91 ks, and 15 ms. situate in villages Ranjan and Chaksingha Tehsil Jammu. He claimed proprietory rights out of this land in the above proportion from 27 ks. and 9 ms. and occupancy rights in the rest of the land. His case was that he was the son of Dibu whose brother and other sons were defendants in this case. According to him Dibu had five sons other than himself and he was one of his sons. The defendants denied the paternity of Dibu. On the pleadings of the parties a number of issues were framed by the trial court. The case was first decreed by the Sub-Registrar Munsiff but on appeal it was remanded and tried afresh. After a denovo trial the suit has been dismissed by both the courts.
In the original plaint (para 2) the plaintiff claimed this property both on account of custom and personal law. Later on under orders of the court the plaintiff amended his plaint and in the amended plaint (para 2) he relied on custom and stated that under custom he was entitled to inherit the property of Dibu. I need not reproduce the facts of this case and the various matters in controversy between the parties in detail, because before me certain questions of law mostly were debated. All the issues in this case after remand were as under :-
1) Whether plaintiff is the son of Mst. Kastu wife of Dibu deceased ?
2) Whether under the Customary Law the plaintiff is the legitimate son of Dibu and as sush is entitled to succeed ?
3) Whether the plaintiff and his mother were in possession of the property of Dibu and whether they have been forcibly turned out by the defendants ?
4) Whether the suit is within time ?
5) Relief.
Both the courts below have found that the plaintiff is not the son of Dibu but is the son of Mst. Kastu who was a keep of Dibu On the second issue the courts have held that the plaintiff has not been able to prove any custom whereby Shibu, being the illegitimate son of Dibu, is entitled to succeed to his property. The suit, as already remarked, has been dismissed, A new point of law was raised before the lower appellate court. It was argued that even though the plaintiff had failed to prove himself as the son of Dibu, yet he was proved to be from Dibus loins and the womb of Mst. Kastu. It has been found that Mst. Kastu was originally married to one Chandu who had deserted her and about whom nothing was heard for a number of years. The parties were further held to be Shudras. In the lower appellate court an argument was raised that the illegitimate son of a Shudra is entitled to succeed to his property if he is from a concubine but is not the offspring of an adulterous or incestous intercourse. It was therefore argued that though the plaintiff had failed to prove the custom alleged by him, he should be allowed a share in the property of Dibu on account of this doctrine of Hindu law. But this plea was rejected by the lower appellate court. Here before me the learned counsel for the appellant laid very great stress on the fact that no proper issues were framed with regard to the birth and legitimacy of the plaintiff. The question of adultery also was not in issue and therefore the whole case needed a denovo trial. On the other hand the learned counsel for the respondents strenuously argued that the plaintiff had himself given up his claim under personal law. He had entirely based his claim upon custom and having failed to established the custom his suit had been rightly dismissed. I do not think a remand is necessary as there is ample material, mostly admitted on which the case can be disposed of. I will mention the various points that were discussed by either side before me, separately.
The first contention of the learned counsel for the respondents is that the
