(1.) This was a suit brought by the plaintiffs Shankar and Dinkar for possession of certain property on the ground that they were the dasiputras of one Mahadu Daryaji Patil who died in February 1924, Defendant No. 1 the brother of Mahadu contended that the plaintiffs were not the dasiputras of the deceased Mahadu, and that Mahadu and defendant No, 1 were kshatriyas and not shudras.
(2.) Both the lower Courts came to the conclusion that Mahadu and defendant No. 1 were shudras, that Shankar was born in November 1918, that Radha's husband died on August 6, 1918, and that therefore Shankar was not the illegitimate son of Mahadu, but Dinkar, who was born on March 10, 1922, was the illegitimate son of Mahadu and was entitled to succeed to the property of Mahadu.
(3.) In second appeal it is urged that the finding of both the Courts that Mahadu and defendant No. 1 were shudras should not be accepted on the ground that the decision in Maharaja of Kolhapur V/s. Sundaram Ayyar (1924) I. L. R. 48 Mad. 1 was not followed by this Court in Subrao Hambirrao V/s. Radha Hambirrao (1929) I. L. R. 52 Bom. 497, s.c. 30 Bom. L. R. 692, and that both the Courts have not applied the test of the consciousness of the community in order to determine the varna of Mahadu. The learned Subordinate Judge applied the principle of the consciousness of the community as the test of varna, and having regard to the defendant's admission before the revenue officers that he was a shudra and to the fact that Mahadu's family was not one of the ninety-six families, came to the conclusion that they were not kshatriyas but were shudras. That finding was accepted by the lower appellate Court. The finding, therefore, on this point is based on the evidence in the case, and is on a question of fact with which it is difficult to interfere in second appeal.