HARIDAS MAFATLAL GAGALBHAI Vs. VIJAYALAKSHMI NAVINCHANDRA MAFATLAL GAGALBHAI

JUDGEMENT

(1.) THIS suit was filed on behalf of the plaintiff by his next friend during the minority of the plaintiff on 15-9-1951 for a partition of the estate of Mufatlal Gagalbhai on the ground that the plaintiff was the illegitimate son of the said Mafatlal by defendant 7 Sushilabai. It is alleged that Mafatlal was a Shudra by caste and was a kadwa Patidar and that the mother the plaintiff, defendant 7 is also a Shudra. The deceased Mafatlal died as far back as 19-7-1944. It is said that the deceased was introduced to Sushilabai sometime in 1925 who was at that time a widow, and that from the year 1927 for a continuous period of 17 years Sushilabai was in Mafat-fal's continuous and exclusive keeping as a permanent concubine. Defendant 8 is a daughter of the said Mafatlal by Sushilabai. It is alleged further that the plaintiff was born to Sushilabai in 1931 and the daughter was born in 1939. It is contended that the plaintiff as the illegitimate son of the deceased is entitled to a share out of the estate of the deceased namely half the share which he would have received had he been a legitimate son of the deceased and therefore he is entitled to a partition of the estate on that footing.

(2.) IN para 7 of the plaint it is stated that defendant 7, Sushilabai, made certain claims against the estate of Mafatlal in the year 1944 claiming maintenance as the Avarudha Stree of Mafatlal and also made a claim to a share in the estate on behalf of the plaintiff who was at that time a minor. The plaintiff avers that such claims having been raised through certain attorneys a compromise was arrived at by his mother Sushilabai and the two claims were treated as parts of one transaction and Sushilabai out of anxiety to secure her own maintenance in the form of a lump sum payment sacrificed the interests of the plaintiff by accepting a sum of Rs. 4,10,000/- on behalf of the plaintiff and a sum of Rs. 4,00,000/- as lump sum maintenance for herself. It is alleged that in pursuance of that compromise Sushilabai presented a partition on 31-1-1945 in the High Court and obtained a Judge's order and sanction to the said compromise on 2-2-1945 and thereupon on 23-3-1945 a release was executed by defendant 7 the mother in favour of Navinchandra the son and the other heirs of Mafatlal.

(3.) IT is stated that the sum of Rs. 4,10,000/- paid and accepted by Sushilabai on behalf of the plaintiff was entirely out of proportion to the estate left by Mafatlal which according to the estate left by Mafatlal which according to the information of the plaintiff was worth about thirty crores of rupees. It is alleged that the said petition was made and the said order of the Court was obtained and the release executed as a resultof collusion between defendant 7 Sushilabai and the original first defendant and the other parties interested in the estate, that the petition contained a number of statements which are on the face of them incorrect and that the sanction of the Court on the said partition was obtained on incorrect and misleading statements on material facts.