DADDO ATMARAM PATIL Vs. RAGHUNATH ATMARAM PATIL SAVANT

JUDGEMENT

(1.) An interesting question of Hindu law airses for determination in this appeal viz.: Is a Shudra illegitimate son (dasiputra) or daughter entitled to succeed to the estate of his or her putative father by way of intestate succession opening after the coming into force of the Hindu Succession Act, 1956?

(2.) The facts are few and also simple. One Atmaram Patil died on September 8, 1960, leaving behind him, his widow Tanubai, defendant No. 3, his two sons Dadoo and Yashwant, defendants Nos. 1 and 2 respectively and his daughter Hirabai, defendant No. 4, Plaintiff No. 3 Krishnabai claimed herself to be also the lawfully wedded wife of the said Atmaram and plaintiffs Nos. 1 and 2 Raghunath and Shivaji respectively claimed to be the legitimate sons of Atmaram, being born of the aforesaid Krishnabai, plaintiff No. 3, and plaintiff No. 4 claimed to be the granddaughter of Atmaram being the daughter of the predeceased legitimate daughter of Atmaram through Krishnabai, plaintiff No.

(3.) On the ground that they were entitled to a half share in the suit properties, the plaintiffs filed the present suit mainly against defendants Nos. 1 to 4 for partition and possession of their said share. Defendants Nos. 5, 6 and 7 were made parties to this suit on the ground that they were co-sharers in the suit agricultural lands. The suit claim was admitted by these co-sharers, defendants Nos. 5 to 7. The main contesting defendants were defendants Nos. 1 to 4 who contended inter alia that Atmaram had only one wife, viz., Tanubai, defendant No. 3, that plaintiff No. 3 Krishnabai was not the lawfully wedded wife but the keep of Atmaram, that plaintiffs Nos. 1 and 2 were the illegitimate children of Atmaram by his said keep Krishnabai and plaintiff No. 4, the grand-daughter of Atmaram, was the child of his predeceased illegitimate daughter born of Krishnabai. Such being their status, the plaintiffs were, according to these defendants, not entitled to any share in the suit properties and their suit was consequently liable to be dismissed. 3. On the material issue whether Krishnabai was the legally wedded wife of Atmaram, the trial Court negatived her claim. In consequence, plaintiffs Nos. 1 and 2 born of Krishnabai were held not to be the legitimate sons of Atmaram and his predeceased daughter was held not to be his legitimate daughter. It was, therefore, held that the plaintiffs, in these circumstances, were not entitled to any share in the suit properties. Their suit was consequently dismissed. This dismissal was challenged by the plaintiffs by an appeal to the District Court. The learned Assistant Judge hearing the said appeal concurred with the trial Court that Krishnabai was not the legally married wife of Atmaram and consequently, children born of her were not legitimate. On this finding, the appeal was liable-to be dismissed. However, the learned Assistant Judge observed in paragraph 13 of his judgment as follows :-