RAMRAO RAMCHANDRA MARATHE Vs. JAIRAM KONDAJEE MARATHE

JUDGEMENT

(1.) THIS litigation has had a cnequered his tory after the suit was filed. The appellants are We original plaintiffs. The plaintiffs sued for possession of certain fields and houses from the defendants and cer tain sums from defendants 3 and 1 for damages. The property originally belonged to one Ramchandra Patel or Shelu. He died on 23-3-1937 leaving behind him his married wife Anusuya and mother Bhimabai. Anusuya had no issues and soon after the death of Ramchandra sne remarried. On her remarriage, Bhimabai became the owner ot the property. Bhimabai died sometime in 1950 and a was after her death that the present litigation started in 1951. The original plaintiff No. 1 Ramrao claimed that is was the son of the deceased Ramchandra from one Mama-bal. Ramrao pleaded that his mother Mainabai was marnea to Ramchandra in the Gandharva Form somewhere in fasi and therefore he was a legitimate son of Ramcnanura ana claimed possession of the property under that title. He put up an alternative case that, in any case, he was born of Mainabai from Ramchandra, that Mainabai was in exclusive keeping of Ramchandra and thus he was a Dasiputra of Ramchandra, which status entitled him to claim the property. The parties are Sudras and as a Dasi-putra the appellant Ramrao had a preferential claim to the property as against the respondent, Jairam who claimed to be a reversionary heir of the deceased Ram-chandra. Admittedly, Mainabai was previously married to one Sattu and had also issues from him. The plaintiff No. 1's case was that Mainabai was divorced long prior to his birth and had remarried with Ramchandra or, at any rate, she was in his exclusive keeping. On the other hand, 'the defendants contested the status of Ramrao ana that, in any case, Ramrao was an offspring ot adulterous Inter-course between Ramchandra and Mainabai and could not claim any right to the property left by Ramchandra. The trial Court dismissed the suit. The trial Court field that Ramrao was born on 174-1935 and that he was bom to Mainabai from Ramchandra. But the trial Court held that he was not a lawful son, that Mainabai was only a keep of Ramchandra but that Ramrao could not claim the status of a Dasiputra. It was held that Kamrao was not born of lawful wedlock. On these findings the suit was dismissed.

(2.) THEN the matter was taken to the District Court and the District Court held that It was not proved that Mainabai was divorced by Sattu. it affirmed the finding of the trial Court that plaintiff No. 1 was born to Mama-bai from Ramchandra. It appears the District Court did not give any finding whether Mainabai was In exclusive keeping of Ramchandra. In view of the finding of the District Court that Ramrao had failed to prove that Maina-bai's husband had divorced her, it was held that plaintiff No. 1 must be taken to be born as a result or adulterous intercourse. On these findings, the dismissal of the suit was confirmed.

(3.) THE plaintiffs filed a second appeal in this Court and by an interlocutory judgment of this Court dated 5-7-1961 a specific issue was framed and remitted ior recording a finding by the trial Court. That Issue was as follows: