RAOJI Vs. KUNJALAL HIRALAL AGARWALA

JUDGEMENT

(1.) Balmukund Thakurdas, a Vaisya by caste, died in 1904 possessed of property of the value of from 12 to 15 lakhs of rupees. He left surviving him two widows and three sons by a Kolatin concubine named Chunna. The widows inherited his estate, the three illegitimate sons being entitled only to maintenance. After his death there was litigation between the widows, which was eventually settled by a division of the estate between them. It appears to have been part of the arrangement then come to that Champabai, the senior widow, should be responsible for the maintenance of the illegitimate sons, and on 18 March 1906, by a deed of that date, she transferred to them absolutely certain lands of the estate valued at Rs. 5,000, in full discharge of their maintenance rights. Champabai died in 1912, and her co-widow in 1913, and Balmukund's estate then passed to his reversionary heirs now represented by the respondents in this appeal. In 1921 they sued to recover the lands the subject of Champabai's transfer, on the ground that the deed was not binding upon them. By this time the greater part of the lands had been alienated by the sons and the alienees were joined with them as defendants to the suit. The plaintiffs (respondents) settled with the alienees of a portion of the property (defendants 6-8), and the suit proceeded against the sons (appellants 1-3) and the other alienees (appellants 4 and 5).

(2.) In the Courts in India the sons' right to maintenance was disputed on the ground that they were not dasiputras of Balmukund. The term dasiputra no doubt originally meant sons of a female slave, but in Western India, at all events, it has come to mean sons by a kept mistress of one of the lower castes : see Rahi v. Govind, [1875] 1 Bom. 97, Sadu V/s. Baiza, [1879] 4 Bom. 37(FB). This does not appear to have been disputed by the respondents, the only questions raised being whether Chunna was a kept mistress, and in the case of appellant 1 whether Balmukund was his father. These questions, which are matters of pure fact, were decided in favour of the appellants by both Courts. They also held concurrently that as dasiputras the sons were entitled to maintenance during their lives out of Balmukund's estate, and their Lordships have no doubt on the authorities that this is correct. The only difference between the Courts in India was as to the validity of the transfer by Champabai. The Subordinate Judge was of opinion that it was a fair settlement of the maintenance claim, and as such within the competence of the widow, while the Court of appeal thought that it was excessive, and, therefore, not binding on the reversioners. As a result of their respective findings the Subordinate Judge dismissed the respondents' suit, and the High Court decreed it in full.

(3.) On the appeal to His Majesty in Council, the respondents have not appeared, and their Lordships have, therefore, had no assistance from counsel on their behalf.