RAMRAO RAMCHANDRA MARATHE Vs. JAIRAM KONDAJEE MARATHE
LAWS(BOM)-1962-3-4
HIGH COURT OF BOMBAY
Decided on March 19,1962

RAMRAO RAMCHANDRA MARATHE Appellant
VERSUS
JAIRAM KONDAJEE MARATHE Respondents

JUDGEMENT

- (1.)THIS litigation has had a cnequered his tory after the suit was filed. The appellants are We original plaintiffs. The plaintiffs sued for possession of certain fields and houses from the defendants and cer tain sums from defendants 3 and 1 for damages. The property originally belonged to one Ramchandra Patel or Shelu. He died on 23-3-1937 leaving behind him his married wife Anusuya and mother Bhimabai. Anusuya had no issues and soon after the death of Ramchandra sne remarried. On her remarriage, Bhimabai became the owner ot the property. Bhimabai died sometime in 1950 and a was after her death that the present litigation started in 1951. The original plaintiff No. 1 Ramrao claimed that is was the son of the deceased Ramchandra from one Mama-bal. Ramrao pleaded that his mother Mainabai was marnea to Ramchandra in the Gandharva Form somewhere in fasi and therefore he was a legitimate son of Ramcnanura ana claimed possession of the property under that title. He put up an alternative case that, in any case, he was born of Mainabai from Ramchandra, that Mainabai was in exclusive keeping of Ramchandra and thus he was a Dasiputra of Ramchandra, which status entitled him to claim the property. The parties are Sudras and as a Dasi-putra the appellant Ramrao had a preferential claim to the property as against the respondent, Jairam who claimed to be a reversionary heir of the deceased Ram-chandra. Admittedly, Mainabai was previously married to one Sattu and had also issues from him. The plaintiff No. 1's case was that Mainabai was divorced long prior to his birth and had remarried with Ramchandra or, at any rate, she was in his exclusive keeping. On the other hand, 'the defendants contested the status of Ramrao ana that, in any case, Ramrao was an offspring ot adulterous Inter-course between Ramchandra and Mainabai and could not claim any right to the property left by Ramchandra. The trial Court dismissed the suit. The trial Court field that Ramrao was born on 174-1935 and that he was bom to Mainabai from Ramchandra. But the trial Court held that he was not a lawful son, that Mainabai was only a keep of Ramchandra but that Ramrao could not claim the status of a Dasiputra. It was held that Kamrao was not born of lawful wedlock. On these findings the suit was dismissed.
(2.)THEN the matter was taken to the District Court and the District Court held that It was not proved that Mainabai was divorced by Sattu. it affirmed the finding of the trial Court that plaintiff No. 1 was born to Mama-bai from Ramchandra. It appears the District Court did not give any finding whether Mainabai was In exclusive keeping of Ramchandra. In view of the finding of the District Court that Ramrao had failed to prove that Maina-bai's husband had divorced her, it was held that plaintiff No. 1 must be taken to be born as a result or adulterous intercourse. On these findings, the dismissal of the suit was confirmed.
(3.)THE plaintiffs filed a second appeal in this Court and by an interlocutory judgment of this Court dated 5-7-1961 a specific issue was framed and remitted ior recording a finding by the trial Court. That Issue was as follows:
"whether Mainabai was divorced by Sattu and was no more in his wedlock at the time of the plaintiff No. I's birth and as such the plaintiff No. 1 was not the true ot adulterous or incestuous intercourse?"
The parties were allowed to amend their pleadings ana lead documentary and. oral evidence in support of tneir respective contentions. The trial Court gave such opportunities and recorded a finding on 30-9-1961 against the contentions of the plaintiffs. The trial Court held that is was not proved that Mainabai was divorced from Sattu. This finding was directly remitted by the trial Court to this Court and the second appeal was posted for hearing before this Court before Mr. Justice Desaj. When the case camo up for hearing on 12-12-1961, the Court gave a direction that the finding recorded by the trial Court had not been certified by the District Court as required by the Rules and therefore, this Courtl director that the papers should be sent to the District court to enable it to certify the finding recorded by the trial Court and send the papers back to this Court with its certificate. This order was passed on 12-12-1961. Atter the matter was so sent for certification to the District Court, the District Court heard arguments of both the parties and has sent its report dated 22-2-1962. By this report the District Court did not agree with the finding of the trial Court in respect of the issue remitted to it. The learned District Court found that the plaintiffs had sufficiently established that there was divorce given by Sattu to Mainabai long before the birth of plaintiff No. 1 from Ramchandra to Mainabai. It has therefore held that the plaintiff No. 1 was not an off-spring of adulterous. Intercourse. With this finding submitted to this Court, the finding recorded by the original Court has been certified by tho District Court.


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