CHANDRASANG HIMATSANG Vs. MOHANSANG HAMIRSANG

JUDGEMENT

(1.) This is an appeal from a Judgment and Decree of the High Court of Bombay, dated the 7 March 1899, which reversed a Decree of the Assistant Judge of Broach of the 10 November 1897. The question raised is one of fact, whether the appellant Chandrasang, the principal defendant in the suit, is entitled to the name he bears, and to the estates which prior to the suit he had long enjoyed, as the son and heir of Himatsang, or whether, as maintained by the plaintiff in the suit, now the respondent, the real Ohandrasang died in infancy and the appellant was fraudulently substituted in his place. The First Court held the appellant to be the genuine Chandrasang, the High Court thought otherwise.

(2.) Himatsang, who died on the 20 January 1882, was the Thakor of Matar, and as such was possessed of estates in the district of Broach and in Baroda territory, which by custom descended to a single male heir in accordance with the rule of primogeniture. He left surviving him four widows, of whom the first three were childless, while the fourth, Jitba, had an infant son, Chandrasang, born on the 31st October 1881, a few months before his father's death. And there is no question that this son was his father's lawful heir. Himatsang also left surviving him collateral agnates in two lines. The elder line was represented by Parbhatsang, who would have been the nearest heir of Himatsang if the infant had been out of the way. He died in July 1883, and his rights, if any, passed to his grandson Chhatrasang, who in turn died in 1885; and with him the elder line of collaterals became extinct, and its rights, if any, passed to the second line. The second collateral line was represented at first by Hamirsang, and after his death in 1894 by his son Mohansang, the plaintiff in this suit and respondent in the present appeal.

(3.) Upon the death of Him.atsang the title of his infant son Chandrasang was at first not disputed; the conflict was as to the administration of his estate. But as soon as that controversy was settled, Parbhatsang claimed the estates as his own, on the allegation that Himatsang had really died childless, and that Chandrasang was a child, of other parentage, fraudulently put forward as the child of Jitba and as the heir of her husband.