MANICKCHAND SAO Vs. BHAGWAN DAS

JUDGEMENT

(1.) This appeal is by defendants 1 to 3. The minor plaintiff instituted a suit giving rise to this appeal through his mother Mostt. Jichhia as his guardian for partition of his half share in the properties described in the plaint. According to him, one Balchand Sao had two sons, Nemchand Sao and Lachhman Sao. Nemchand left two sons, namely, Chamari Sao and Hira Lal Sao. Lachhman Sao left no issue and similar was the position with Hira Lal Sao. Chamari Sao left two sons, Ramdhani Sao and Mohan Chand Sao. Mossammat Sahodri was the widow of Ramdhani, Mossammat Kausaliya Devi (Defendant 2) is the widow of Mohan Chand Sao who died on 22-3-1947. Mohanchand had one son Manick Chand Sao (defendant 1) and a daughter Shanti Devi' (defendant No. 3) through his married wife (defendant 2). Mohanchand kept in his house Mostt. Jichhia, the mother of the plaintiff, as concubine and the plaintiff was a 'dasiputra' of Mohanchand. During the life-time of Mohan Chand Sao, Ramdhani Sao and others died one after another and Mohan Chand got all the properties by survivorship and he came in possession of all the properties belonging to this family. Mohan Chand died leaving behind the plaintiff and defendants 1 to 3 and they cams in possession of all the properties. Mohan Chand was a 'teli', that is, 'Sudra', and the plaintiff being the 'dasiputra' had half share in all the properties of Mohanchand. Mohan Chand during his lifa time gave some properties about 10 years ago to Jichhia, the mother of the plaintiff, and the plaintiff, and they came in possession of that property. The plaintiff had sold some of the properties, but the plaintiff and these defendants were jointly in, possession of the remaining properties. The plaintiff felt considerable difficulty in living jointly and hence he requested the defendants several times to divide the properties, but they paid no heed to it. In these circumstances, the plaintiff instituted this suit on 11-1-1958 for partition of his half share in the properties in suit. Defendants 4 to 13 were added subsequently as they happened to be the transferees in respect of some of the properties in suit and this step was taken on the objections raised by the other defendants.

(2.) Defendants 1 to 3 filed a written statement contesting the plaintiff's title and possession. According to them, Mosstt. Jichhia was never a concubine of Mohan Chand Sao and the plaintiff was not the son of Mohan Chand. Mosstt Jichhia was a goalin by caste, previously she was married to Chhotan Gope but she left her husband and lived as concubine of Chamari Gope. Later on, she became a concubine of Nathuni Singh and she was living with him. The plaintiff was the son of Nathuni Singh. Mohan Chand was suffering from tuberculosis five or six years before his death and he was confined to bed for two years before his death. In those circumstances, the plaintiff could not be his son and in fact plaintiff was born after the death of Mohan Chand. Mohan Chand was no doubt the absolute owner of all the properties, but after his death defendant 1 along with his mother came in possession of those properties. Mohan Chand had only two issues, defendants 1 and 3. Neither Mohan Chand kept Mostt. Jichhia, the mother of the plaintiff, as his concubine nor plaintiff was the 'dasiputra' of Mohan Chand. Mohan Chand was no doubt a 'teli' by caste, but he was a Vaisya and not a Sudra. Mohan Chand was neither entitled to give any property nor did he give any to the plaintiff and his mother. Some of the properties had been sold to strangers and the vendees were in possession of those properties. The defendants denied the existence of some of that moveables which were sought to be partitioned. Most. Jichhia was in search of a business and as she had no place to live, these defendants took pity on her and gave a portion of their house to her in the year 1949 on a monthly rent of Rs. 2/-. In a supplementary written statement, they further indicated that defendants 1 and 2 had sold some portion of the house No. 455 to certain persons and the vendees were in possession thereof. Defendants 5 to 7 as well filed a written statement supporting the case of the other defendants and according to them as well, neither Mostt. Jichhia was the concubine of Mohan Chand nor the plaintiff was the son of Mohan Chand. They alleged to have purchased certain properties from defendants 1 and 2 by various sale deeds and they asserted their possession in respect of those properties.

(3.) The two main issues in the suit were as follows: 3. "is plaintiff son of Mohan Chand from the womb of Mosst. Jichhia Plaintiff's mother) ? Was Mosstt. Jichhia concubine of Mohan Chand?