PARMESHWAR SAHU Vs. TEJU SAHU

JUDGEMENT

(1.) This is a defendants appeal, and it raises the question as to whether an illegitimate son of a Bania born of a woman, Ghasi by caste, the latter being an aboriginal, is to be treated as of a Bania or as of aboriginal Ghasi class. Both the Courts have held that an offspring of such a union is not an aboriginal Ghasi but be belongs to a separate class higher than Ghasi and lower than Bania, relying on the case of Brindavana V/s. Radhamani 12 Mad. 72 in which their Lordships of the Madras High Court observed that the illegitimate son of a Kshatriya by a Sudra woman is not a Sudra but of a higher caste than that of the mother but lower than that of the father.

(2.) The subject-matter of the suit is lands held by one Paltu Sahu as his occupancy holding. It appears that his son Janki Sahu kept a Ghasi woman and had three children, namely, Ramhit, Kati and Moti. Janki predeceased his father. Paltu Sahu made a gift of the lands in suit to the illegitimate children, Ramhit, Kati and Moti, of his son Janki. The donees sold the lands to the plaintiff. The defendants who are agnates of Paltu Sahu managed anyhow to get into possession of the lands in suit. The plaintiff, therefore, brought this suit for a declaration of title and recovery of possession, relying on the sale deed in their favour executed by the illegitimate children of Janki Sahu, namely, Ramhit, Kati and Moti. The suit was resisted on the ground that the sale deed in favour of the plaintiff was invalid, because it was executed by aboriginal Ghasi, a scheduled caste, to the plaintiff who was neither an aboriginal nor of scheduled caste and as such was ineffective under the provisions of Section 46, Chota Nagpur Tenancy Act. Section 46, Chota Nagpur Tenancy Act provides that an occupancy raiyat who is an aboriginal or a member of the scheduled caste may transfer his right to another aboriginal or another person who is a member of the scheduled caste and not otherwise. If Ramhit, Kati and Moti were not aboriginals, or of scheduled caste such as Ghasi, as they were born of Janki Sahu, who was Bania and admittedly not an aboriginal, then certainly the transfer in favour of the plaintiff is a good transfer and the plaintiff acquired a valid title to these lands. Both the Courts, as already stated, have concurrently held that the illegitimate children of Janki Sahu were not aboriginals and they were not within the mischief of Section 46, Chota Nagpur Tenancy Act. Mr. Sarjoo Prasad, appearing for the appellants, contends that in the case of illegitimate children it must be the caste, religion or race of the mother which should prevail. He has not been able to cite any authority in support of his contention, but he has referred us to Secs.6 and 7, Succession Act, which provide that in the case of legitimate children the domicile which they take is that of the father, while in the case of illegitimate children their domicile is that of the mother. Relying upon this, his argument by analogy is that Ramhit, Kati and Moti should be held as belonging to Ghasi caste, because they were not born of a proper wedlock, and they could not, therefore, trace their origin validly to their father. The contention is not sound. Argument by analogy is dangerous. Domicile is an altogether different matter. It seems that the principle on which this question can be decided is that, as Stated in the case Brindavana V/s. Radhamani 12 Mad. 72, an offspring of a union of a higher and a lower class does not belong to any of those classes, but to a separate class higher than that of the mother but lower than that of the father. In this view of the matter, the persons who made the transfer in favour of the plaintiff, cannot be said to be aboriginals belonging to Ghasi caste. They can be described as being of a class higher in status than that of the mother and lower than that of the father. Their status has been, as held by the learned Munsif, very aptly described in the deed of gift by Paltu Sahu as Surtiwala Bania, that is to say, illegitimate or bastard Bania. In other words, they have the caste of the father which was Bania, but, being Surtiwala, of lower status than that of the father. It is clear, therefore, that the persons concerned in the case being accepted as Surtiwala Banias, the transfer made by them was a valid transfer. The Courts below took the correct view of the situation.

(3.) In view of these considerations, the appeal is dismissed but without costs. Manohar Lall J. I agree.