- (1.) This is a second appeal which was remanded for finding on some issues by Mr. Justice Brij Mohan Lall. The facts of the case are that one Channu Koeri was living in Mohalla Piari Kalan in Banaras. He had two wives, Smt. Manki and Smt. Rajwanti. The former was his legally wedded wife, while the latter was a Kathak who had been married to one Bute and after the death of her husband, she started living with Channu as his mistress. Channu had a house in the same Mohalla, and half of it was gifted to Smt. Rajwanti on 10-2-1909. The other portion of this house came into the possession of Smt. Manki after the death of Channu in the year 1922. The portions are numbered as 65/503 and 65/504. Smt. Rajwant died in the year 1931 and, thereafter, Smt. Manki alone remained as the widow of Channu in possession of the whole house. A sale deed was executed by her of the whole house in favour of Babunandan and Raghunandan, the Defendants Respondents in this case, on 5-5-1945. for a sum of Rs. 1500/ -. Smt. Manki died on 23-5-1945.
(2.) This suit was brought by Nand Kishore on 4-9-1945, against Babunandan and Raghunandan for cancellation of the aforesaid deed and for possession over the said house and for recovery of mesne profits on the ground that he was the son of Channu by Smt. Rajwanti and he assailed the sale deed on the ground that she being a widow of Channu had no right to sell the house without any consideration or legal necessity.
(3.) The Defendants contested the suit on the ground that Plaintiff Nand Kishore was not the son of Channu and that Smt. Rajwanti, the mother of the Plaintiff, was not the wedded wife of Channu. They further contended that Smt. Manki had acquired absolute tale to the house after the death of her husband and the suit was barred by Articles 142 and 141 of the Limitation Act. The learned Munsif before whom the suit was first brought, framed nine issues in the case. The learned Munsif came to the conclusion that Nand Kishore was the son of Channu born to him in 1911 from Smt. Rajwanti who was not a wedded wife, but a mistress. A question, therefore, arose whether Nand Kishore even as an illegitimate son did inherit his father. But there was no definite issues framed on that point. This matter was contested before a learned single Judge of this Court. In order to come to any conclusion regarding this question it was necessary to determined whether Koeris were one of the twice-born classes or Sudras. In case they are Sudras, Nand Kishore Plaintiff was entitled to inherit even as an illegitimate son one half of what he would have got, if he had been a legitimate son. On the other hand, if Koeris belong to the upper three classes of the Hindus, an illegitimate son was not entitled to inherit. Whereupon two new issues were framed by the learned single Judge. They were, (I) whether the Koeris belong to a twice born class, and (2) on the assumption that the Appellant belongs to Sudra Class, whether Smt. Manki acquired by adverse possession an absolute estate to his share or only a limited estate, and also called for fresh findings on issues Nos. 3, 4 and 7 as framed by the trial court. These issues were, (3) Was the sale deed in suit validly and duly executed for consideration Was Smt. Manki compete it to execute it (4) Was the sale deed in suit sanctioned by legal necessity If so, with what effect (5) Is the Plaintiff entitled to any mesne profits If so, it what rate ;