Legitimacy established through lack of contest and presumption of death under the Indian Evidence Act, affirming trial court's decree on evidence.

JUDGMENT

T. Amarnath Goud, J. - This is an appeal filed under Section 100 of the Code of Civil Procedure, 1908, against the impugned Judgment and Decree dated 26.02.2018 passed by the learned District Judge, North Tripura, Dharmanagar, in Title Appeal No. 39 of 2016, whereby the learned District Judge, North Tripura, Dharmanagar dismissed the appeal and substantially affirmed the judgment and decree dated 08.07.2016 & 19.07.2016 respectively, passed by the learned Civil Judge, Senior Division Dharmanagar, North Tripura, in Title Suit 06 of 2013.

2. The facts in brief as stated in the plaint are that the marriage between the defendant-appellant No. 1, Sri Nagendra Dutta, and the pro forma defendant-respondent, Smt. Shayama Rani Dey (Dutta) was solemnized on 04.03.1981 and they started to live together as husband and wife at North Panisagar. It is further contended that out of their wedlock, Mangala Dutta, plaintiff-respondent herein was born on 04.06.1982. After 2/3 years of the marriage, Nagendra Dutta, defendant-appellant No. 1 herein had been suffering from serious mental insanity and during that period of his insanity, he filed one divorce case vide No. T.S. (Divorce) 03 of 1988 against the pro forma defendant-respondent herein before the learned District Judge, North Tripura, Kailashahar, on the ground of suppressing the fact of the birth of the plaintiff-respondent herein. After registration, the said case was transferred to the Court of learned Addl. District & Sessions Judge, Dharmanagar, North Tripura for disposal. Thereafter, summon was issued, and on receipt of the summon, the pro forma defendant-respondent engaged a lawyer to contest her case. But ultimately, for her ignorance, the case was decided ex-parte beyond her knowledge, vide judgment dated 12.04.1988, whereby divorce was allowed as pro forma defendant-respondent did not contest the suit on the pretext of her thought that the divorce case would be automatically dismissed due to insanity of Nagendra Dutta, defendant-appellant No. 1 herein. She, also contended that after getting the information about the granting of divorce, the pro forma defendant-respondent filed a petition under Section 151 of CPC before the learned Court of District Judge, the then North Tripura, Kailashahar, for setting aside the judgment and decree dated 12.04.1988 passed in T.S. (Divorce) 03 of 1988, which was registered as Civil Misc. No. 04 of 1995. In that Misc. Case Nagendra Ch. Dutta was represented by his elder cousin brother Amarendra Dutta as guardian. After hearing the parties, vide order dated 22.11.1995, the petition filed under Section 151 CPC was rejected. The plaintiff-respondent, in her plaint also contended that her mother i.e. the pro forma defendant-respondent, by filing an appeal before the Hon'ble Gauhati High Court, challenged the judgment and decree dated 12.04.1988 passed in T.S. (Div) 03 of 1988. The Hon'ble High Court vide judgment and decree dated 25.03.2001 dismissed the appeal.

3. The story of the plaintiff-respondent herein is that her mother, Pro-forma defendant-respondent did not take proper steps, and hence, she lost the case. She further pleaded that she stayed at Panisagar, Dharmanagar for some time in the rental house with her mother, and sometimes they were in the house of the maternal uncle. Since her childhood, the plaintiff-respondent could not see her father as he was moving here and there due to his insanity. Her mother consoled her narrating this or that about her father and in this way, long days passed and the