VITHABAI JANU KHARAT Vs. PANDU JANU KHARAT

JUDGEMENT

(1.) The plaintiff sued for a declaration that the property in suit belonged to him and defendant jointly, and to have possession of a half of it by partition.

(2.) The plaintiff was the son of one Janu by a concubine Ganga. Ganga admittedly lived with Janu as his mistress ever since she was fifteen years of age until his death, and had three children by him. But, unfortunately for the plaintiff Ganga had a husband Mahadu. The defendant complained that the connexion between Janu and Ganga was adulterous and unless it can be proved that Mahadu had divorced Ganga, the plaintiff cannot succeed. The trial Judge was of opinion that the consent on the part of a husband to his wife living with another man would be sufficient to remove the bar of adultery. He says: Mahadu did not dispute the connexion between Ganga and Janu, though they all lived in the same village, and Ganga was living with Janu for about twenty years since about five years before plaintiff's birth. Suoh an intercourse imports consent on the part of Mahadu. Defendant relies on 2 Bom. 140 and 1 Bom. 97 to show that a son by adulterous or unlawful intercourse cannot inherit, and on 2 B.H.C.R. 117 to show adulterous connexion. In the last-mentioned case, there was no consent on the part of the first husband. It will, thus, be seen that the plaintiff is entitled to be held as a dasiputra of Janu Kharat.

(3.) In appeal, the Judge, dealing with the evidence of Tanubai, sister of Janu said: I accept this story, and conolude that Mahadu gave his active consent to Ganga staying, with Janu permanently. Quite possibly there was an informal divorce as well, but about this there is no direct proof. On the fact found I agree with the learned Subordinate Judge that the plaintiff is Jana's dasiputra.