HIGH COURT OF HIMACHAL PRADESH
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CHOWDHRY, J. -
(1.) THIS is a second appeal by the defendants Thunthi, Tulsia and Dhani Ram against the judgment and decree of the learned District Judge of Mandi, dated 21 9 1.951.
(2.) ONE Zalim died on 14 5 1949, and thereupon his property was mutated in the names of the present parties as his sons. The defendants appellants' mother was Mt. Basanto, and Mt. Begamu is the mother of the plaintiff respondent. The plaintiff filed the present, suit on 13 5 1950 for a declaration that the defendants are not the sons of Zalim but the plaintiff alone is the son and successor to the estate of Zalim, and for possession of the entire property. The plaintiff's case was that the defendants were not the legitimate sons of Zalim, and in fact could not ba his legitimate sons, because their mother Mt. Basanto was not married to him in the jhanjharara form. The defendants traversed this allegation and pleaded that they were entitled to succeed to the property of Zalim as his sons.
The trial Court took a number pf circumstances into consideration, especially that of Zalim and Mt. Basanto having lived as husband and wife for about 30 years, and held that the latter was the legally wedded wife of the former. It also held that Mt. Basanto was the widow of a cousin of Zalim, and that the plaintiff had failed to prove that jhanjharara or any other rites were essential for espousing a cousin's widow. In the result, it dismissed the suit.
(3.) ON the plaintiff's appeal the District Judge accepted as correct the finding of the trial Court that Mt. Basanto & the defts had lived for about 30 years with Zalim & Zalim had performed marriages of his two daughters by Mt. Basanto, but he was of the opinion that these and other circumstances relied upon by the trial Court were not sufficient to justify the view that Mt. Basanto had acquired the status of a legally wedded wife of Zalim. He was further of the opinion that even if a presumption of marriage arose from the aforesaid circumstances, it had been rebutted, by the admitted fact that no jhanjharara of Mt. Basanto was performed with Zalim, his view being that performance of this ceremony was essential to give validity to one's marriage with a cousin's widow. The plaintiff's appeal was allowed by the learned District Judge and his suit was decreed. The defendants have now come up in second appeal, and they are entitled under para 32 of the Himachal Pradesh (Courts) Order, 1948, to treat it to all intents and purposes as a first appeal.;
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