UTTAMRAO RAJARAM Vs. SITARAM RAJARAM

JUDGEMENT

(1.) This is a Letters Patent appeal IN against the decision of Badkas, J., whereby he decreed the plaintiffs' suit. The short facts are that one- Rajaram of village Andhrud died on 20th February, 1929. At his death, he left defendant No. 1 Uttamrao as the only child. Plaintiff No. 1 Sitaram alleged that he was a posthumous son of Rajaram through his wife Saijai having been born on 23rd December, 1929, i.e., 308 days after Rajaram's death. Plaintiff No. 2 is an alienee of some property. Uttamrao, the son of Rajaram, is defendant No. 1 and Atari and Madhaorao, defendants Nos. 2 and 3, are his sons. Defendant No. 4 Saijai is the mother of plaintiff No. 1 and defendant No. 5 Salubai is the mother-in-law of Uttamrao. Since the death of Rajaram, all the properties stood in the names of Uttamrao and the plaintiff Sitaram. The suit out of which the appeal arises was filed in 1950 for partition and possession. The contesting defendants raised a number of pleas. They pleaded that Saijai was not the lawfully wedded wife of the deceased Rajaram. According to their case, the was the wife of one Bapurao and was kept by Rajaram as a concubine in a separate residence after the death of his second wife. As Rajaram was harassed before his death by her first husband, he sent Saijai to her village Gaikhed, and since about a year and a half before the death of Rajaram, she was living at Gaikhed away from Rajaram. She came to Andhrad after Raja-Tarn's death to attend on the 13th day of the death and on that day she was not pregnant. She conceived subsequently and came to Andhrud to avert infamy'. They also contended that Raja-ram was in a decrepit state, old and therefore incapable of procreation. In short, they challenged the legitimacy of the plaintiff No. 1

(2.) The trial Judge found that the plaintiff No. 1' s mother was the lawfully married wife of the deceased Rajaram and negatived the defendant's contention that she was living separate from Rajaram at his death. He found that Rajaram died of some disease, call it eczema or anything. We says:

(3.) The District Court confirmed the first finding of marriage, held that Rajaram was capable of procreation till his death, calculated 366 days of gestation and relying upon post-unchastity, confirmed the finding of illegitimacy against the plaintiff No. 1.