SADASHIV SHANKAR WANI Vs. BALA NISBAT BABAJI WANI

JUDGEMENT

(1.) THIS appeal raises the question whether an illegitimate son (dasiputra) of a Hindu Shudra can claim against a legitimate son of his father partition of property which was ancestral in his father's hands.

(2.) THE facts in so far as they are material for this appeal are as under One Babaji Wani, a Shudra, died in 1915 leaving him surviving his widow Tara, a son Shankar by her, and two illegitimate sons and a daughter by his mistress Savu, namely Bala the plaintiff Satappa defendant No. 1 and Kondibai, Babaji also left lands and other immovable properties which were ancestral in his hands. After Babaji's death the plaintiff along with Shankar and other members of the family formed a joint Hindu family and Shankar as the Karta thereof managed the joint family property. Shankar died leaving three sons, viz. , Dadu, Sadashiv - defendant No. 2, and Madhav - defendant No. 3, Dadu managed the joint family property till 1949 when he died leaving his widow Hirabai and a minor son Ananda -defendant No. 4. Since then defendant No. 2 was in management of the joint family property. The plaintiff demanded partition and separate possession of his share in the said property but as defendant No. 1 and others refused to do so he filed on April 11, 1961 the present suit against the defendants for partition and possession of his one-sixth share in the joint family property. Defendants contested the suit, inter alia, on the ground that the plaintiff as the illegitimate son (Dasiputra) could not claim partition or any interest in the suit property which was ancestral in the hands of Babaji. The trial Court upheld defendants' above contention and dismissed the suit. On appeal by the plaintiff the learned Assistant Judge considered the ratio of the Nagpur case in Shamrao Fakirro Hatkar v. Mt. Munnabai Fakirrao, AIR 1949 Nag 43; as binding on him and held that the plaintiff was entitled to partition of the ancestral property and decreed partition and possession of plaintiff's share in the said property. Defendants Nos. 2 to 5 have preferred this appeal against the said decision.

(3.) MR. Hombalkar, the learned Advocate for the appellants contends that the right of an illegitimate son of a Shudra to claim a share in his father's property extends only to his self - acquired or separate property and not to property which was ancestral in his hands. He submits that there is no text of smriti or Mitakshara or any direct authority of this Court or of the Supreme Court applicable to the case and that the decisions of other High Courts taking a contrary view. apart from being not binding on this Court, should not be followed as they are contrary to the view of the relevant text taken by this Court in Hiralal v. Meghraj, 40 Bom LR 937 = (AIR 1938 Bom 433 ). On the other hand Mr. Abhyankar for the respondent disputes the correctness of the above contentions and supports the decisions of the lower appellate Court.