Judgement GUJRAL, C.J. :- On the allegations that his mother Chungba Bhutiani was the legally wedded wife of the defendant-respondent Kunzang Sherab and that he was born out of this wedlock, Sonam Tsering, appellant filed a suit in the Court of District Judge through his guar­dian claiming maintenance from his father and also a declaration against him claiming a right over the properties of the respondent, as detailed in the Sche­dule attached to the plaint. The Suit having been dismissed by the District Judge by Judgment dated 5-8-1978 the plaintiff has filed an appeal challenging the correctness of the findings given by him. 2. The basis of the plaintiff's claim is that his mother had married the re­spondent in 1951 and thereafter they lived together at Gangtok below the Lal Market. In 1955, his maternal grand father fell suddenly ill and his mother went to her father's house in Yangang to look after him. At that time, Chungba Bhutiani was pregnant and while she was still at Yangang she gave birth to the plaintiff at her parental house. Sometime thereafter she returned to Gangtok but the defendant refused to accept her, back and even did not permit her to enter his house. When all efforts to persuade the defendant to take Chungba Bhutiani back into the house failed, she left for her parental home. The parties having separated for good, the defendant remarried in 1956 whereas Chungba Bhu­tiani remarried sometime in 1959. In 1974, the plaintiff filed the present suit through his next friend claiming main­tenance from September, 1967 onwards and a declaration that he was entitled to succeed to the ancestral and self acquir­ed properties of the defendant. 3. The defendant, while contesting the Suit, not only denied his obligations to support the plaintiff' but even denied the plaintiff's paternity and his alleg­ed marriage to the plaintiff's mother. Challenge was also posed to the main­tainability of the Suit. On the pleadings of the parties, the following issues were framed: 1. Whether Chungba Bhutiani was married to the defendant as alleged in the plaint? 2. Whether Sonam Tsering was born to Chungba Bhutiani from the loins of defendant? 3. If issues 1 and 2 are proved, is the plaintiff' entitled to claim any mainten­ance from the defendant? If so, what amount? 4. Whether the plaintiff is also en­titled to arrears of maintenance as alleged? 5. 2. Whether Sonam Tsering was born to Chungba Bhutiani from the loins of defendant? 3. If issues 1 and 2 are proved, is the plaintiff' entitled to claim any mainten­ance from the defendant? If so, what amount? 4. Whether the plaintiff is also en­titled to arrears of maintenance as alleged? 5. Whether the plaintiff can claim in­heritance from the defendant? If so, what is his share? 6. Whether the suit is maintainable as alleged? 7. Whether the suits suffers from mis-joinder of causes of action? If so, its effect. 8. Whether the suit or any part of it is time-barred? 9. Relief. 4. Though issue Nos.6, 7 and 8 were decided against the defendant but as issue Nos.1 to 5, which were the mater­ial issues in this case, were found against the plaintiff, his Suit was dismissed. Be­ing aggrieved, the plaintiff has filed the present appeal and has challenged the findings on all issues found against him. We proceed to deal with the issues separately. Issue No.1 5. To prove the marriage of the de­fendant with Chungba Bhutiani, the plaintiff examined the latter as his own witness. According to her, she was mar­ried to the defendant in 1951 at Yangang. She was 13 years of age at that time. The marriage was performed according to Buddhist rites and a number of Lamas including Changey Gyatso had participat­ed m the ceremony. She further added that after the marriage, she was brought to Gangtok and she and her husband lived together in the house of the defen­dant in Lal Bazar. Her evidence further shows that a few years later, she conceiv­ed from the defendant and gave birth to the plaintiff, who was their son Chungba Bhutiani also explained the circum­stances under which she was forced to go to her parent's house, after a few years of her marriage and deposed about the refusal of the defendant to allow her to enter the house when she returned from her father's village. 6. The learned trial Court has not accepted the testimony of this witness but no coherent reasons have been put forth for this conclusion. Emphasis was mainly laid on the fact that all the cere­monies, which were necessary for the marriage, had not been performed ac­cording to Chungba Bhutiani and the marriage was, therefore, not considered valid. 6. The learned trial Court has not accepted the testimony of this witness but no coherent reasons have been put forth for this conclusion. Emphasis was mainly laid on the fact that all the cere­monies, which were necessary for the marriage, had not been performed ac­cording to Chungba Bhutiani and the marriage was, therefore, not considered valid. No doubt, this witness named some of the ceremonies, which were necessary for a valid marriage and she also stated that all the ceremonies had not been performed but while assessing the evidentiary value of her testimony, it would have to be kept in mind that she is wholly illiterate person and at the time of the marriage she was only 13 years of age. Moreover, it has not been explained through the evidence or has not been otherwise established that in all the ceremonies, which have been men­tioned in the statement of P.W.2, the bride takes an active part and would thus be fully aware whether those cere­monies had been appropriately perform­ed or not. To judge whether the marriage had been validly conducted and whether all the ceremonies, which were neces­sary, had been performed or not, we would have to rely on the testimony of Changey Gyatso, P.W.2, who was one of the lamas who had performed the marriage. This witness has categorically stated that he had solemnised the marri­age of Chungba Bhutiani and Kunzang Sherab. This witness was cross-examin­ed regarding the ceremonies which were necessary for a marrriage according to Buddhist rites, but it was not even in­directly suggested to him that the essen­tial ceremonies had not been performed in this case. We, therefore, find no reason to hold that the marriage performed by Changey Gyatso lama and other lamas had not been validly performed. In fact the statement of this witness that he and other lamas had performed the marriage between Kunzang Sherab and Chungba Bhutiani would imply that a valid mar­riage according to Buddhist rites with all essential ceremonies had been perform­ed. It would be futile lo suspect that so many lamas having gathered for per­forming a marriage would not take all the necessary steps in that direction. While assessing the testimony of this witness, it will be pertinent to observe that no reason has been brought out in the cross-examination of this witness to doubt his veracity or impartiality. It would be futile lo suspect that so many lamas having gathered for per­forming a marriage would not take all the necessary steps in that direction. While assessing the testimony of this witness, it will be pertinent to observe that no reason has been brought out in the cross-examination of this witness to doubt his veracity or impartiality. We are, therefore, inclined to accept the testimony of this witness and hold that a valid marriage was performed between Chungba Bhutiani and Kunzang Sherab in 1951-52. The learned District Judge has also observed that "being a Lama, the deposition of this witness in this regard could be taken as authoritative regarding the validity of a customary marriage." Having accepted this, there was no justification for not relying on his further statement that in this case, a valid marriage had been performed as deposed to by him. 7. P.W.3, Nimdup Lepcha, has also asserted that he was present at the time of the wedding. He not only seems to be a reliable witness but being a resi­dent of Yangang his presence at the marriage appears to be natural. The only suggestion made to him in order to cast a doubt on his veracity was that he had made a petition to the respondent regarding some Khazana but the respon­dent did not accept his application. This admission on his part, by itself, high­lights that he is a truthful witness. P.W.4 Chandra Bahadur Basnet, P.W.5 Tseten Bhutia and P.W.6 Dorji Tsering have also deposed about the marriage. The testimony of Chandra Bahadur Bas­net was discarded by the learned trial Court for the reason that the Khata, in which cash gifts given by the relations were recorded, had not been produced. The relevant Khata must have been in the possession of the father of Chungba Bhutiani who had died long ago and its non-production could have no effect so far as the testimony of Shri Basnet is concerned. In tact, we find no reason to view his evidence with suspicion. Tseten Bhutia, P.W.5, has stated that the cere­monies of Khachang and Nangchang were performed when the marriage cere­mony was fixed. The learned Sessions Judge has found his evidence not reli­able for the reason that Chungba Bhutiani had deposed that these ceremonies had not been performed. As observed earlier, it is not clear whether the pre­sence of the girl during these ceremonies was necessary. The learned Sessions Judge has found his evidence not reli­able for the reason that Chungba Bhutiani had deposed that these ceremonies had not been performed. As observed earlier, it is not clear whether the pre­sence of the girl during these ceremonies was necessary. It would be that Chungba Bhutiani's statement about non-per­formance of the ceremonies may be due to lack of perception, as she was hardly 13 years old at that lime or due to failure of memory. We find no reason for him to testify falsely merely to support the plaintiff. Fault was also found in the testimony of this witness for the reason that he was a close relative of the plain­tiff's mother and had been brought up by the plaintiff’s grand-father. Being a close relation of the plaintiff's mother, he was bound to have joined in the wed­ding and his evidence would, therefore, be relevant. It appears highly unlikely that Chungba Bhutiani and her close re­lations would falsely set up the marri­age between Chungba Bhutiani and Kunzang Sherab merely in order to boulster the claim of the plaintiff for the property. 8. The last witness, whose evidence needs consideration, is Shri Lorji Tser­ing, who, at one time, was the Minister in the Government of Sikkim. He is a close relation of Chungba Bhutiani, as he is married to her eldest sister. He has testified about the marriage of Chungba Bhutiani with Kunzang Sherab and, ac­cording to him the marriage had taken place in 1952-53. This statement of the witness has been disbelieved for the re­ason that there is a discrepancy between his statement and that of the plaintiff's mother, inasmuch as her case is that the marriage had taken place in 1951. We are of the view that as he was giving evidence after almost 24 years and the in­consistency could be the result of lapse of memory and would cause no reflec­tion on his credibility. 9.On behalf of the appellant much stress has been laid on the documentary evidence, which consists of certain letters alleged to have been written by Kunzang Sherab either to his father-in-law or to Dorji Tsering, P.W.6. Kunzang Sherab, defendant had totally denied having written these letters. 9.On behalf of the appellant much stress has been laid on the documentary evidence, which consists of certain letters alleged to have been written by Kunzang Sherab either to his father-in-law or to Dorji Tsering, P.W.6. Kunzang Sherab, defendant had totally denied having written these letters. The plain­tiff then produced Assistant Government Examiner of Questioned Documents, P.W.7, who, after comparing the hand-writing and signatures of the respon­dent's admitted writings, has opined that the questioned documents are all in the handwriting of the defendant. The learn­ed District Judge has accepted this evi­dence and has concluded that all the letters were in the handwriting of the defendant. This finding was not challeng­ed before us. Even otherwise, we are satisfied about the correctness of this conclusion. 10. The questioned letters are Exhibits 7, 8, 12, 14 and 15 and all these have been examined by the handwriting expert. 11. To establish that all these letters were addressed to Dorji Tsering or to the defendant's father-in-law, the plain­tiff has examined Dorji Tsering, who has not only deposed that all these letters were in the handwriting of the defendant but has also explained to whom these letters were addressed and what was in­tended to be conveyed in some of these letters. This witness was cross-examined at some length in regard to these docu­ments but no material has been brought out, which would cast even the slightest doubt on the Truth of his statement re­garding the explanation furnished by him about what was intended to be con­veyed through these writings. 12. It would be appropriate at this stage to have a close examination of these documents in order to ascertain as to that extent support was available to the plaintiff's case that Chungba Bhutiani was married to the defendant. The earliest letter in Exhibit P-12, the translation of which is Exhibit P-13, and is dated 5th of November, 1951. This was written from a hostel room at Darjeeling, where he was studying at that time, and is addressed as "My dear Yapla and Chumla". It has been explain­ed by Mr. Tsering that in Sikkimese "Yapla and Chumla" are addressed by persons of good breeding to their father and mother-in-law. This was written from a hostel room at Darjeeling, where he was studying at that time, and is addressed as "My dear Yapla and Chumla". It has been explain­ed by Mr. Tsering that in Sikkimese "Yapla and Chumla" are addressed by persons of good breeding to their father and mother-in-law. Though the contents of the letter are not material but the fact that it was addressed to Chungba Bhutiani’s father and mother, who were described as father and mother, is con­siderably significant and thus helps in establishing the plaintiff's case in so far as it relates to Chungba Bhutiani's mar­riage to Kunzang Sherab. The next letter in point of time is Exhibit 1-15 and is dated 3rd Sept., 1963. This letter was written from Darjeeling to Dorji Tsering, who was described as "brother D". Though mainly, this letter talks about trivial matters but there is also some reference to the family at Yangan. En­quiries have also been made about the he health of Dad. It is in the evidence of P.W.6, Dorji Tsering, that this refer­ence is to the defendant's father-in-law, who was lying ill at that time. We have no reason to doubt this statement. 13. In point of time, the next letter is Exhibit 8, which is in Nepali and its translation is Exhibit 9. This is dated 23rd October, 1953 and is written to "Yapla and Chumla". In this document lot of concern is shown for the health of the father-in-law and he has been requested not to worry too much. There is another letter, Exhibit 10, which is also addressed as "My dear Yapla and Chumla". It only shows that a constant touch is being maintained between Kunzang Sherab and the person who is addressed as "Yapla". Though it is dated 12th of September but the year is not mentioned. Exhibit 16 is a Post Card addressed to Dorji Tsering on 12th October, 54 and is addressed as "Dear brother". The only matter mentioned in this letter is regarding intended purchase of a horse by Dorji Tsering and the negotia­tion, which Kunzang Sherab was mak­ing on his behalf. From the letter, it ap­pears that they were close to each other and it would support the contention that they could be related as is the plaintiff's case. The only matter mentioned in this letter is regarding intended purchase of a horse by Dorji Tsering and the negotia­tion, which Kunzang Sherab was mak­ing on his behalf. From the letter, it ap­pears that they were close to each other and it would support the contention that they could be related as is the plaintiff's case. Before we discuss Exhibit 7, which is the most important letter, reference way be made to Exhibit 14, which is, written on 28th October, 1954 and is ad­dressed to Dorjee Tsering, who is de scribed as "dear brother". Again in this letter, there is mention of the health of Dad and the fact that Kunzang Sherab had received no reply though he had written many letters to him. It is also mentioned in this letter that all the members of Kunzang were intending to boycott him and that he was ruined man. It is further indicated in this letter, that Kunzang Sherab was completely neglected and there was no one to look after him. An enquiry was also made about "Kaily", who, according to Dorji Tsering, was no other person than Chungba, Bhutiani and was residing with her parents those days. 14. The most important letter and which needs consideration at some length, is Exhibit P-7. According to Dorji Tsering, the opening words "My dear brother" referred to him. There is no serious challenge to this part of the state­ment in the cross-examination and there is no reason for is to doubt its veracity. A number of family matters are discus­sed in this letter at length and a clear impression is gained that the writer of this letter was a part of the family. The following lines culled nut of this letter further support the plaintiff’s conten­tion :- "I did not claim the ring or any ox from F. in-law. If he offers i.e. up to him and if and I am satisfied. As I being merely a son-in-law of Karung I cannot stand as a claimant as you thought of me.. …But I do not think that we have the right to discuss over the properties of……We are not the sons of them but sons-in-law……I married her not to get oneself involved in the solution of pro­blem of properties but I married her firstly as my parents wished so, secondly I liked her and love her and thirdly she loves me. …But I do not think that we have the right to discuss over the properties of……We are not the sons of them but sons-in-law……I married her not to get oneself involved in the solution of pro­blem of properties but I married her firstly as my parents wished so, secondly I liked her and love her and thirdly she loves me. Please do not drag me back to the pro­blem from which I want to keep aloof. The above letter is rather a lengthy one and as observed earlier, a careful perusal of this leaves no manner of doubt that Kunzang Sherab was connected with the addressee of this letter by marriage. If it is accepted that this letter was addressed to Dorji Tsering, which we have no rea­son to doubt the only conclusion pos­sible is that Kunzang Sherab was married to Chungba Bhutiani, as it is established that Dorji Tsering was married to the sister of Chungba Bhutiani. The learned Sessions Judge has drawn an in­ference against the." plaintiff from the fact that reference in this letter is to "Kaily", which nomenclature is generally used for the second daughter and not for the third daughter. Dorji Tsering has offered explanation for this that as the second daughter had died Chungba Bhutian; could be addressed as "Kaily". In any case, it is wholly inconceivable that if Kunzang Sherab was married to another sister of Chungba Bhutiani, an entirely false case could have been set up with a view to show that he was in fact married to the plaintiffs mother. This circumstances would have to be taken into account in the light of Kunzang Sherab's statement totally denying to have written these letters or having any relationship with Chungba bhutiani's family. 15. For the reasons indicated above, we have no doubt that Kunzang Sherab was married to Chungba Bhutiani in about 1951-52 and to this extent the plaintiff's case is established by pre­ponderance of probabilities. The findings of the trial Court on this issue are, there­fore, set aside and this issue is found in favour of the plaintiff. Issue No.2 16. 15. For the reasons indicated above, we have no doubt that Kunzang Sherab was married to Chungba Bhutiani in about 1951-52 and to this extent the plaintiff's case is established by pre­ponderance of probabilities. The findings of the trial Court on this issue are, there­fore, set aside and this issue is found in favour of the plaintiff. Issue No.2 16. In order to establish that the plaintiff was the son of the defendant, it would have to be proved that the plain­tiff was born in 1955, as it is the plain­tiff's own case that his mother Chungba Bhutiani and Kunzang Sherab had no access to each other after 1955 and that Kunzang Sherab even remarried in 1956. From merely establishing that Chungba Bhutiani had given birth to the plaintiff before she remarried, it would not neces­sarily follow that he was the son of Kunzang Sherab. No doubt, the plaintiff is entitled to presumption that he was the son of the defendant, as we have found that the marriage between Kun­zang Shebra and Chungba Bhutiani has been established but this presumption would stand rebutted if it emerges that his birth had taken place after 1955. We now proceed to examine the oral evi­dence regarding the plaintiff's birth as there was no documentary evidence which could form a firm basis of a find­ing about the date of his birth. 17. The oral evidence regarding the birth of the plaintiff consists of the state­ments of those very witnesses who had deposed about the marriage and though their evidence in that regard was accept­ed, their testimony regarding the paternity of the plaintiff is open to seri­ous challenge for the reasons hereinafter discussed. 18. The most important piece of evi­dence in this regard is the statement of the plaintiff's mother Chungba Bhutiani and even her statement is damaging to the plaintiff's case. According to Chungba Bhutiani, she was married at the age of 13 and soon thereafter she came to Gangtok to the house of the defendant, which was located near Lal Bazar. Her statement further is that she lived in de­fendant's house till she was 20 years of age, when she conceived from the loins of the defendant. In the opening part of her statement, she had categorically stated that she was married in 1951 and the other evidence shows that the mar­riage had taken place around that time. Her statement further is that she lived in de­fendant's house till she was 20 years of age, when she conceived from the loins of the defendant. In the opening part of her statement, she had categorically stated that she was married in 1951 and the other evidence shows that the mar­riage had taken place around that time. Viewed in the light of this evidence, it would emerge that the plaintiff was born somewhere in 1958-59 long after the defendant has ceased to have access to Chungba Bhutiani. This part of her evidence was sought to be explained on the ground that she may have made a mistake about the period between the marriage and the birth of the son, as she was an illiterate person. Though this witness may have had very little school­ing but her memory appears to be fairly good. When she made a statement in 1976, she deposed that she married for the second time seventeen years earlier and this tallies with the plaintiff's case that his mother had remarried in 1959. Con­sequently, her statement that she con­ceived after seven years of marriage may not be inaccurate or based on misconception. 19. While examining the evidence of Chungba Bhutiani, it may also be notified that her version that for some years they lived together near Lal Bazar in Gangtok appears highly doubtful. Her own state­ment is that during this time the respon­dent was studying at Darjeeling and even the documentary evidence shows that till at least 1954 the defendant was a student and was living in the hostel at Darjeeling. Chungba Bhutiani's state­ment that after marriage they lived together at Lal Bazar does not seem to represent the truth. It may also be mentioned that lot of evidence has been produced from Yangang but no witness from Gangtok has been examined to establish the fact that they ever lived together in the town. If for a number of years they had resided in Lal Bazar, there would have been no dearth of wit­nesses to establish this fact. 20. Another part of Chungba Bhu­tiani's statement also needs mention at this stage. Her assertion is that a few months before the birth of her son she received the news of her father's illness and after getting permission from her husband she went to look after her father. 20. Another part of Chungba Bhu­tiani's statement also needs mention at this stage. Her assertion is that a few months before the birth of her son she received the news of her father's illness and after getting permission from her husband she went to look after her father. While she was still at her father's house, she gave birth to the plaintiff. Shortly thereafter, she returned to Gangtok along with the plaintiff but the defendant refused to let her in the house. No reason whatsoever has been advanced for this extremely unnatural conduct of the defendant. If her visit to her father's house was with the husband's permission and was for the purpose of looking after her ailing father, there could possibly be no reason for the defendant to refuse to welcome her in the house, especially when a son had been born to him. The truth of this part of Chungba Bhutiani's statement is highly doubtful as her ver­sion is extremely unnatural and highly improbable. On the basis of her evi­dence, it cannot be held that the plaintiff was born in 1955. In fact, it could be inferred from her evidence that the plaintiff was born somewhere in 1958-59, and in this connection another relevant factor may be noticed. According to Chungba Bhutiani, in 1976, the plaintiff was studying in 11th class in T.N. Higher Secondary School, Gangtok. If he was born in 1955, he would be 21 years of age at that time. It seems somewhat unlikely that the plaintiff would be study­ing in 11th class at such an advanced age. On the other hand, it may seem more probable that he was much younger at that time. 21. Besides the statement of the plaintiff's mother, there is also the evi­dence of Nimdup Lepcha, PW 2, Chandra Bahadur, PW 4, Tseten Bhutia PW 5 and Dorji Tsering, PW 6 regarding the plain­tiff's birth. So far as Nimdup Lepcha is concerned, all that he has stated is that Sonam Tsering was the son of the de­fendant torn to Chungba Bhutiani after 1½ years of their marriage. So far as Nimdup Lepcha is concerned, all that he has stated is that Sonam Tsering was the son of the de­fendant torn to Chungba Bhutiani after 1½ years of their marriage. Firstly, he has not stated where the birth had taken place and in any case, his statement that Sonam Tsering was the son of the defendant was not admissible as under Section 50 of the Evidence Act "when the court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person who as a member of the family or otherwise, has special means of know­ledge on the subject, is a relevant fact". So when a Court is to judge the relation­ship of a person to another, it is only permitted to take into consideration the belief of a person provided it is ex­pressed by conduct in case the witness has special means of knowledge. Sec­tion 50 of the Evidence Act requires that opinion expressed by conduct alone or in other words, conduct based on opinion is admissible in evidence. In the present case, the mere statement of Nimdup Leocha that sonam Tsering was the son of the defendant is not based on any con­duct as conduct alone can be given in evidence. So far the remaining part of the statement that Sonam was born one and a half years after the marriage, it is too vague to find the basis of any find­ing as it has not been mentioned as to where the birth had taken place and how the witness was able to know about it. The statement of Chandra Bahadur that Sonam Tsering is the son of Kunzang Sherab also suffers from the same blem­ish as that of Nimduo Lepcha on that it falls outside the scope of Section 50 of the Evidence Act. 22. In regard to the birth of the plain­tiff, Tselen Bhutia has made the follow­ing statement :- "Chungba came back to Yangang as a pregnant woman and Sonam Tsering present in Court was born in our vil­lage. At the time of return of Chungba, Def, had come with her. After 2-3 months of the birth of the child, Def, came to our village and took back Chungba and his son with him to Gangtok." 23. At the time of return of Chungba, Def, had come with her. After 2-3 months of the birth of the child, Def, came to our village and took back Chungba and his son with him to Gangtok." 23. A bare perusal of the above would show that it is a completely different version than given by the other wit­nesses and especially Chungba Bhutiani because of this obvious and material contradiction no trust can be placed on his statement regarding the plaintiff's birth. It was nobody's case that the defendant had come along with Chungba Bhutiani when he came to her parental house or he came again after the birth of the son. 24. Lastly we examine the evidence of Dorji Tsering. In this regard he has stated that "Sonam Tsering is the son of the defendant born from Chungba present in Court. He was born after about 2 years of their marriage". His statement regarding the paternity of Sonam Tsering is again not admissible as the opinion is not based on conduct and the remaining part of his statement that the birth took place two years after the marriage is inconsistent with the statement of Chungba Bhutiani herself and in any case is not of much use to determine the period of birth with any exactitude. 25. If the evidence led by the plain­tiff regarding the period of his birth could have been found sufficient to come to a conclusion that he was born during 1955, it could have been established that he was the son of the defendant in view of the presumption available under Sec­tion 112 of the Evidence Act but as the evidence stands, the statement of the plaintiff's mother is clearly against this conclusion while that of the other wit­nesses is too vague, contradictory and based on hearsay, to form a reasonable basis for such a view. 26. At this stage, it would be appro­priate to consider the evidence of Shri M.C. Mathur, Principal of the T.N. Higher Secondary School. He produced the Admission Register for the year 1968-69 in the Court and deposed that at first the date of birth of Sonam Tsering entered in the register was 4-12-1955. This was consequently corrected to 1-2-59 on the basis of an affidavit of one T.D. Tsering produced by Sonam Tsering, plaintiff himself. He produced the Admission Register for the year 1968-69 in the Court and deposed that at first the date of birth of Sonam Tsering entered in the register was 4-12-1955. This was consequently corrected to 1-2-59 on the basis of an affidavit of one T.D. Tsering produced by Sonam Tsering, plaintiff himself. He stated that the affidavit was directly received by him from Sonam Tsering and was passed on to his office to make necessary corrections in the School Register and con­sequently, the correction was made in the register showing the entry as it stands now. No doubt, the School Admission Register is a public record maintained by a public servant in the discharge of his official duties and would have fur­nished a piece of evidence to establish the date of birth of the plaintiff, but in view of the subsequent correction, much evidentiary value cannot be attached to this piece of evidence. It is not known as to on what basis the earlier informa­tion was made but as regards the cor­rection, the information was derived from an affidavit which the plaintiff himself had supplied. As the person who has sworn the affidavit has not been examined, it may not be possible to act on the present entry but even the earlier entry is of no probative value, as that entry no longer stands in the re­gister. 27. For the reasons indicated above, we hold that, as the evidence stands, it is not possible to come to a conclusion that the plaintiff was born in 1955. On the other hand, considering the evidence on record the preponderance of probability is that he was born sometime in 1959. As it is the evidence of the plaintiff's own mother that there were separation be­tween her and the defendant after 1955 and he even remarried soon thereafter, it would of necessity follow that pre­sumption under Sec.112 of the Evi­dence Act is not available to the plain­tiff as the parties to the marriage had no access to each other at any time when the plaintiff could have been begotten. In this view of the matter, we find the issue against the plaintiff and uphold the findings of the learned trial Court. Issue Nos.3, 4 & 5. 28. In this view of the matter, we find the issue against the plaintiff and uphold the findings of the learned trial Court. Issue Nos.3, 4 & 5. 28. Though in view of the findings on Issue Nos.1 and 2, it is not necessary to decide these issues, but certain salient features may be noticed which would go to show that even with regard to these issues the plaintiff's claim has no basis. On behalf of the plaintiff, no satisfactory evidence has been led to establish as to by what personal law the parties were governed with regard to maintenance and inheritance. PW 6, Shri Dorji Tsering, is the only witness of the plaintiff who has deposed about this matter and his statement in this regard is wholly unsatisfactory. In examina­tion-in-chief, he stated that they were governed by Hindu Mitakshara Law, but when cross-examined he had to admit that they were governed by their "custo­mary law of inheritance by birth". The matter was not taken any further, and no other evidence was produced to show as to what was the custom in regard to these matters. The evidence led by the defendant, on the other hand, shows that they were governed by customary law and not by Hindu law. The statement of DW 2, Shri Namgay Bhutia, in this re­gard is that in the matters of succession, inheritance and marriage they were gov­erned by their own customs and not by Hindu law. The parties are admittedly Buddhists of Titetan origin and no Bud­dhist text or case law has been placed before us regarding the position of law with regard to inheritance or the obligations of the father to maintain his son. 29. It may also be added that so far as the self acquired property is concern­ed, the plaintiff possibly can have no right during the lifetime of his father. As regards the claim for maintenance, the suit was filed when the plaintiff was almost about to retain majority and all these years according to evidence on record, his mother had been incurring expenses for his upkeep and education. In this situation, it can be plausibly urg­ed that the plaintiff could not claim arrears of maintenance. It may be noticed that the suit has not been filed by his mother against her alleged hus­band claiming for reimbursement of the expenses incurred by her on bringing up the child. In this situation, it can be plausibly urg­ed that the plaintiff could not claim arrears of maintenance. It may be noticed that the suit has not been filed by his mother against her alleged hus­band claiming for reimbursement of the expenses incurred by her on bringing up the child. I am consequently of the view that the plaintiff has failed to establish Issues Nos.3 to 5 and as the evidence stands all these issues will have to be found against the appellant. 30. For the reasons indicated above, I find there is to merit in this appeal and the same is hereby dismissed. The parties are, however, left to bear their own costs. 31. BHATTACHARJEE, J. :- I agree that the appeal should be dismissed and accordingly agree with my Lord the Chief Justice in the order pro­posed. But I have, however, arrived at my conclusion on entirely different grounds and would, therefore, proceed to state them with my reasons, 32. The plaintiff, alleging himself to be son of the defendant born our of lawful wedlock between his mother and the defendant has filed this suit mainly for two reliefs as claimed in the plaint :- (1) "a decree in favour of the plaintiff allowing him maintenance allowance as claimed in Schedule 'A' of the plaint". (2) "a decree declaring the right of the plaintiff to inherit the half of the share of the ancestral and self-acquired pro­perties of the defendant as given in Schedule 'B' to this plaint". 33. My Lord has held the marriage between the mother of the plaintiff and the defendant to have been legal and duly proved. But even then My Lord has held that "it is not possible to come to a conclusion that the plaintiff was born in 1955" and "the preponder­ance of probability is that he was born sometime in 1959" when "the parties to the marriage had no access to each other" and has accordingly decided in the negative the Issue as to whether the plaintiff is the son of the defendant. 34. As the law abhors illegitimacy, the law-Courts must not also bastardise a person unless they cannot but. And, therefore, if a case can be effectively disposed of without declaring the birth or marriage of a person to be illegal or illegitimate, it must be disposed of accordingly. 34. As the law abhors illegitimacy, the law-Courts must not also bastardise a person unless they cannot but. And, therefore, if a case can be effectively disposed of without declaring the birth or marriage of a person to be illegal or illegitimate, it must be disposed of accordingly. I will, therefore, not go into the question of the legitimacy of the birth of the plaintiff or the marriage of his mother, as, in my view, the appeal and the suit giving rise to it, can be effectively disposed of on other grounds, even assuming, though not deciding, that the plaintiff is the legitimate son and his mother wag the lawful wife of the de­fendant. 35. The claim for maintenance, as will appear from Schedule "A" to the plaint, is really a claim for past main­tenance for the period from September, 1967, up to August, 1973, that is, up to the period of the institution of the suit and the relevant period of limitation under the Sikkim Law being 6 years, the claim, if otherwise maintainable, is not barred by time. 36. The case of the plaintiff, as made out through his mother, figuring as one of his witnesses, is that the amount claimed is what the mother had to and did spend for maintaining the plaintiff. It is not a suit by the mother claiming reimbursement of the amount spent by her for her son from her husband, the alleged father of the son, who refused or neglected to maintain the son. But it is a suit by the son claiming from the father the amount that his mother had spent for him towards his maintenance. I have my doubts as to whether such a claim by the son can at all be actionable at his instance. Undisputedly the son has been properly maintained, brought up and educated by his mother. Ac­cording to the plaintiff son and also his mother deposing as his witness, the mother was deserted by the father im­mediately before the birth of the son in 1955 and began to stay with her parents until she remarried in 1959. Undisputedly the son has been properly maintained, brought up and educated by his mother. Ac­cording to the plaintiff son and also his mother deposing as his witness, the mother was deserted by the father im­mediately before the birth of the son in 1955 and began to stay with her parents until she remarried in 1959. The long silence on the part of the plaintiff and his mother during this very long period of 18 years by itself would indicate that no difficulty was experienced in re­spect of the maintenance of the plaintiff, whether he was maintained by her mother or by the maternal grand-parents or by the step-father. Even assuming that the mother, as stated by her in her deposition, spent the amount, one can very easily understand a cause of action in her favour for getting reimbursement of the amount from the father of the son. But it is, to my mind at least, diffi­cult to understand how any cause of ac­tion can accrue in favour of the son for a decree for the amount which her mother had spent for her maintenance. 37. Under Section 20 of the Hindu Adoptions and Maintenance Act, 1956, a mother is no less under a legal obligation to maintain her minor son than the father as sub-section (1) thereof provides that "a Hindu is bound, during his or her lifetime, to maintain his or her legiti­mate or illegitimate children" and sub-section (2) thereof provides that "a legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is minor". It may, therefore, be doubtful as to whether a mother, who has discharged her legal obligation under the Act to maintain her son, can claim from the father a refund of the amount spent by her. It may, however, be argued that because of the expression "father or mother" in sub-section (2) and the expression "mother" occurring after the expression "father" in the alternative, the obliga­tion is firstly on the "father" and then on the mother only in the absence of the father. It may, however, be argued that because of the expression "father or mother" in sub-section (2) and the expression "mother" occurring after the expression "father" in the alternative, the obliga­tion is firstly on the "father" and then on the mother only in the absence of the father. But assuming, that the father alone, so long he is alive, is obliged to maintain the son, the mother, who had to maintain the son on her own, can claim reimbursement of the sum spent by her towards such maintenance, or that, the father being also equally obliged to maintain the son, the mother, in such a case, can claim contribution from her co-obligee; but the son obviously cannot make any such claim for reimbursement or contribution. Under the Hindu Law, as it stood before the Act, there was no such legal obligation cast on the mother to maintain her legitimate son, and that was in perfect consonance with the spirit of that law with its high-pitched patriarchal bias and prescription of perpetual tutelage for women and was also probably justified because of the abject economic dependence of the Hindu women of those day. 38.Be that as it may, the Hindu Adoption and Maintenance Act, 1956, has not been extended to Sikkim as yet and cannot, therefore, apply here. Even if that Act was extended to Sikkim, the same would not have applied to the par­ties before us who are Sikkimese Bhutias and have been declared as "Scheduled Tribes" under Art.342 read with Art.366(25) of the Constitution as S.2(2) of the Act provides that "nothing contained in this Act shall apply to the members of any Scheduled Tribe…… unless the Cen­tral Government, by notification in the Official Gazette, otherwise directs". 39. The plaintiff, however, has assert­ed thorough his witness P.W.6 that they are Buddhist and are "governed by Hindu Mitakshara Law". I have my doubts as to whether Sikkimese Bhutas, who are Buddhist by religion, were and are and should be so governed and I would try to explain some of the reasons for my doubt hereinafter. 39. The plaintiff, however, has assert­ed thorough his witness P.W.6 that they are Buddhist and are "governed by Hindu Mitakshara Law". I have my doubts as to whether Sikkimese Bhutas, who are Buddhist by religion, were and are and should be so governed and I would try to explain some of the reasons for my doubt hereinafter. But even as­suming, as I have been invited to do by the plaintiff, that they are governed by the Hindu Law, meaning thereby the Hindu Law as it stood before the codi­fications in 1955-56, or the Hindu Law sans all legislations, British or Indian, and thus assuming that the father was under a legal obligation to maintain his son, I do not think that the son can main­tain an against the father for the re­fund of the amount which his mother had spent for his maintenance and for which she advances no claim. 40. Another aspect of the matter may also be noted. The mother of the plain­tiff deposing as P.W.1 has categorically stated that when her son the plaintiff "was about 8-9-months old, the defend­ant sent his maternal uncle Khari Bhutia Mandal to ask for the restoration of the child" and that he also told her "that the defendant would give some money out of his salary for the maintenance of the son", but that she "did not agree and so he went back". In Mallikarjuna Nayudu v. Durga Prasad Nayudu ((1901) ILR 24 Mad 147), it was urged before the Privy Council that the suit for arrears of maintenance could not be maintained without proof of demand and refusal of maintenance. It was held by the Privy Council (at p.156) that in order to re­cover arrears of maintenance, it was not necessary to prove a demand for each year's maintenance and that non-pay­ment of maintenance to a person entitled thereto is prima facie proof of wrong­ful withholding. It is, therefore, true that in order to recover arrears of main­tenance the plaintiff was not to prove demand on his behalf and refusal there­of by the defendant. But if the mother, who was maintaining her son refused to receive any amount from the father towards maintenance, it might be diffi­cult for her thereafter to recover arrears of maintenance through legal process with effect from an anterior date. But if the mother, who was maintaining her son refused to receive any amount from the father towards maintenance, it might be diffi­cult for her thereafter to recover arrears of maintenance through legal process with effect from an anterior date. Any way, I need not pursue this aspect any further as I have already pointed out that here in this case, the mother who had spent towards the maintenance of her son the plaintiff, is making no claim and I have already held that such a claim by the son at his own instance cannot be actionable. 41. This brings me to the considera­tion of the other relief claimed by the plaintiff, namely, "a decree declaring the right of the plaintiff to inherit the half of the share of the ancestral and self-acquired properties" of his father the defendant. I know of no law where-under a son can acquire any right in the self-acquired properties of the father during the lifetime of the latter. A "right to inherit" can only arise when succession to the properties would open on the death of the father dying in­testate and until then it is a mere spes successions which can furnish no cause of action. This part of the claim of the plaintiff, therefore, must and can not but be negatived. 42. If the plaintiff is a person govern­ed by the "Hindu Mitakshara Law", as asserted by his witness P.W.6, he can be said to have acquired by birth a co­parcenary right in the ancestral pro­perties in the hands of his father. But can it be said the parties here, being Sikkimise Bhutia domiciled in Sikkim, which was not a part of India before 1975, were and are governed by Hindu Law prevailing in India? From the evi­dence on record no such conclusion can be reached because the bald assertion of P.W.6 in examination-in-chief that "we are governed by Hindu Mitakshara Law" is followed by his own statement in cross-examination that "they are governed by their own customary law of inheritance by birth", while the defend­ant as D.W.1 has asserted both in ex­amination-in-Chief and cross-examina­tion, that "in the matters of succession and inheritance and marriage, we are governed by customary law of ours and not by Hindu Law" and that "it is incorrect that in matters of succession, inheritance and marriage we are govern­ed by Hindu Law". The evidence of D.W.2, a Sikkimese Bhutia Buddhist and a Mandal of three villages for 15/16 years, is that "in matters of succession, inheritance and marriages, we are not governed by Hindu Law, but by our own customs". He has also very cate­gorically negatived the right by birth of a son in the ancestral properties in the hands of his father by stating that "grandfather's property devolves upon the father and after his death upon his grandson". The evidence on record, therefore, would rather indicate that the parties are governed by their own custom in matters relating to marriage, suc­cession and the like. In Ghimery Lepcha v. Karma Wangyal (1978-2 Sikkim LJ 16) it has been observed (at p.20) as hereunder :- "In India, of which Sikkim has be­come a part in 1975, there is no law ex­cept Hindu Law applicable to the Bud­dhist and the Buddhists in India have all along been governed by the Hindu Law. But in Sikkim also an impression has grown that the Buddhists in Sikkim also follow principles relating to ancestral property and joint family as are followed by the persons governed by the Mitakshara School of Hindu Law. Whether this was a result of any indigenous deve­lopment among the Buddhists in Sikkim or was a result of the moulding influence of the Mitakshara School of Hindu Law prevailing in the neighboring India or was the result of the projection by the Indian Judges presiding over Sikkim Courts of their Indian legal training and conception as to the Buddhists being governed by the Hindu Law, is a differ­ent matter, but the impression is very much there". It has, however, been pointed out there­in that it was not necessary in that case to decide as to "whether the impression was well-founded or not" because it was found that the plaintiff-petitioner was to fail, whether or not he was governed by the principles of Hindu Law. 43. Great authorities on Hindu Law like Mayne (Hindu Law and Usage-Eleventh Edition - page 83), Sarkar-Sastri (Hindu Law - Seventh Edition- page 61), Mulla (Hindu Law-Fourteenth Edition-page 74) are unanimous that Indian Buddhists are governed by Hindu Law. It may, however, be noted that while Sarkar Sastri has not referred to any case. Laws in support of this view, the case-laws referred to by both Mayne and Mulla do not relate to Buddhists at all. It may, however, be noted that while Sarkar Sastri has not referred to any case. Laws in support of this view, the case-laws referred to by both Mayne and Mulla do not relate to Buddhists at all. It is, however, not at all difficult to understand as to how and why the Indian Buddhists were and are governed by Hindu Law. The Buddhists in India were within the fold of Hinduism before their adoption of or conversion to the Buddhist religion; Buddhism renounced the Hindu Scriptures, denounced the Hindu religion and renounced their own religion, philosophy and ethics; but at no point of time they evolved or estab­lished or developed any sets of civil laws different from those by which they used to regulate their secular activities before and the Hindu Law, therefore, continued to govern them as before in all secular matters. 44. It is now an accepted fact of his­tory that Buddhism migrated to Tibet from India and then made a backward journey to Sikkim along with the Tibetans, who came to be known as Bhulias because of their hailing from "Bhot the Sanskrit name for Tibet. The Tibetans who started coming to Sikkim in or about the Thirteenth Century (vide, New Encyclopedia Britanica - 15th Edition - Volume 16) and brought Buddhism to Sikkim and could not ob­viously bring Hindu Law with them, as they never accepted nor were governed by Hindu Law at any point of time. Therefore, what happened in India in the case of the Indian Buddhists, name­ly rejection of Hindu religion, but retention of Hindu Law, could and did never happen in the case of the Sikkimese or Tibetan Buddhists in Sikkim, for they having never adopted Hinduism, no question of their rejecting the religi­ous portion of it and retaining the secular or legal portion thereof, like the Indian Buddhists, could or did arise. The Tibetan or the Sikkimese Buddhists, therefore, received the Buddhist religion from India but not the Indian Hindu Laws and therefore, the reasons for the Indian Buddhists being governed or continued to be governed by the Indian Hindu Laws can have no application to the Sikkimese Buddhists. In secular matters, therefore, there is every reason to think that, they were and would be governed by their own laws and the evidence on record, as already noted, also makes such indication. In secular matters, therefore, there is every reason to think that, they were and would be governed by their own laws and the evidence on record, as already noted, also makes such indication. In fact, the "Marriage Customs of the Sikkimese" as described in the Gazetteer of Sikkim (H.N. Risley 1973 Reprint Page 55) would leave no manner of doubt that the Sikkimese Bhutias had their own laws and customs relating to marriage, which were polyandrous in nature and could not, therefore, be the law derived from the Hindu Dharmashastras according to which a Hindu woman could never have plural­ity of husbands and even re-marriage of widows had to be sanctioned by express legislation during the British regime. 45. In the light of the foregoing dis­cussion, therefor, and on the evidence on record in this case, I would be inclined to hold that the Buddhist Bhutias of Sikkim are not governed by the Hindu Law, Mitakshara or Dayabhaga, but are governed by their own customary laws as asserted by the de­fendant and his witness and as admitted by the plaintiff's own witness also. And in that case, there being nothing on record to show that the concepts of Apratibandha Day a or Unobstructed Heritage and of the right by birth in ancestral properties, so peculiar to Mitakshara School of Hindu Law, were also accepted tenets of the customary law governing the parties and there being on the other hand, clear evidence of D.W.2 to the effect that a son would acquire right even in the ancestral pro­perties only on the death of the father, the claim made by the plaintiff is liable to be negatived. 46. But as I would presently show, even without deciding this ques­tion and even accepting the bald as­sertion made on the side of the plaintiff that they are governed by "Hindu Mitakshara Law", the plaintiff would not be entitled to the relief claimed. 47. Let me, therefore, assume that the plaintiff is a person governed by the Mitakshara School of Hindu Law and as such has acquired a coparcenary right by birth in the ancestral properties. But even then can he obtain the relief claim­ed by him, namely, "a decree declaring the right of the plaintiff to inherit half of the share of the ancestral properties of the defendant"? But even then can he obtain the relief claim­ed by him, namely, "a decree declaring the right of the plaintiff to inherit half of the share of the ancestral properties of the defendant"? The expression "right to inherit" is obviously an inappropriate expression in respect of a coparcener or coparcenary properties for a coparcener never inherits any coparcenary properly or any interest therein. As pointed out by the Privy Council as early as in 1863 in Katama Natchiar v. Rajah Moottoo Vijaya Raganadha otherwise known as Raja of Shivagunga's case (9, Moo Ind App 539 at p.611)" according to the principle of Hindu Law, there is a co-parcenaryship between the different members of a united family, and sur­vivorship following upon it. There is community of interest and unity of possession between all the members of the family and upon the death of any one of them the others may well take by survorship that in which they had during deceased’s life-like a common interest and common possession." Coparcener, therefore, even if he is the son, cannot claim any right to inherit", the undivided share or interest of any other coparcener, even if he is the father. A coparcener in a given case may sue to establish his right, if denied, to take by survivorship along with other copar­ceners, the undivided interest of any de­ceased coparcener on his death. So, though a coparcener acquires by birth an interest in the coparcenary properties, he cannot, until there is a partition, claim any particular share in any parti­cular property and his right to take by survivorship along with other coparcen­ers the undivided interest of any parti­cular coparcener would only arise on the death of the latter. As the Privy Council pointed out as early as in 1866, in Approver v. Rama Sabha Aiyan ((1866) 11, Moo Ind App 75 at p.89), "according to the true notion of an undivided family in Hindu Law, no individual member of that family, whilst it remain undivid­ed can predicate of the joint undivided property, that he, that particular mem­ber, has a certain definite share". About hundred years thereafter, this legal posi­tion as to coparceners and coparcenary properties has again been reiterated by the Supreme Court in State Bank of India v. Ghamandi Ram (AIR 1969 SC 1330), where it has been observed (at pp 1333-1334) that as a result of the col­lective and conjoint ownership of all the coparceners in a quasi-corporate capa­city, they are until a partition takes effect, entitled to common possession and enjoyment of all the coparcenary properties and can also work out their rights at any time by claiming partition. A coparcener, therefore, while the family remains united, cannot claim a declaration that he is entitled to any particular share in any property. He can­not also claim that he be declared to he entitled to any particular share in the undivided share or interest of another living coparcener, even if the latter be his father, as has been claimed by the plaintiff in this case. 48. For these reasons, I would agree with my Lord the Chief Justice that this appeal be dismissed.