1. The question in this appeal relates to the validity of the will made in 1917, by the plaintiff-appellant's father Raoji under which he purported to dispose of four properties-two properties B and D to his son the plaintiff-appellants, and two properties A and C to defendant No. 6, Dhondu, the sister of his deceased mistress, through whom the other defendants-respondents claim.
2. All the four properties in the will along with fifth belonged originally to Jagoji. In 1878 Jagoji passed a registered document (Exh. 100) in favour of his two illegitimate sons Raoji and Sakharam. The plaintiff'-appellant contended that Raoji obtained these properties of Jagoji by survivorship and could not dispose of them by will. The respondents contended that they were in law the self-acquired properties of Jagoji with power in him to dispose of them by will, The parties, it is conceded, are Sudras.
3. It is a curious defect in the cam that the pleadings and the evidence are silent as to the question of Sakharam's interest in the properties and the dates of Sakharam's death and of the plaintiff's birth. Both the lower Courts have found that there was no partition in Raoji's life-time between Raoji and the plaintitf-appellant.
4. The argument for the appellant is three-fold. First, that Jagoji and hia two illegitimate sons Raoji and Sakharam constituted a joint Hindu family such that Raoji had a coparcenary interest from his birth in the properties. Secondly, if not, that Jagoji had the power to admit an illegitimate son such as Raoji as a coparcener and is proved to have exercised his power. Thirdly, that whether Raoji obtained the properties after Jagoji's death by survivorship or by inheritance, it became in Raoji's hands ancestral property, which could not be disposed of by will. For the respondents it is contended that the document (Exh. 100), is either a will or a deed of gift and caused the properties to be self-acquired when they came into the possession of Raoji whether during the lifetime of Jagoji or after his death, no presumption of jointness can be made in the case, and the properties must, therefore, be inferred to have been self acquired at the date of the will in 1917. It is also argued that the propositions of Hindu law set up for the appellant are untenable and not supported by either the test or cases and in fact are opposed to the fundamental notion of a Hindu coparcenary which can only come into being by birth with sapinda relationship as a test.
5. It is preferable clearly to decide the facts to which the law has to be applied. The document (Exh. 100) of 1878, before Raoji was born and any dispute arose, was registered. The accuracy and truth of its contents are not questioned. The document runs as follows :-
We have no legitimate son Or daughter. We have kept your mother as a mistress since she was twelve or thirteen years old and you have been born to her and you are to us like our legitimate sons with right of heirship to our properties moveable and immoveable. But we have separated relatives who have no claim whatever to our estate and perhaps after our death they might obstruct you and we therefore make this deed.
6. After enumerating and describing the properties the document proceeds:-
Of all these properties above, you and I have been till now managing jointly and should so manage hereafter; and after my death both of you should manage it in the same manner from generation to generation and from son to grandson.
7. This document is, in our opinion, clearly neither a will nor a deed of gift. It is a declaration of certain facts in regard to the properties and certain rights both during the life-time of Jagoji and after. It is in fact a declaration that Jagoji's other relatives have no claim on the properties, that Raoji and Sakharam are his illegitimate sons by the mistress, whom he had kept for a long time, and have been treated by him exactly like his legitimate sons living in a joint family, and that after his death these two alone are entitled to the properties.
8. Accordingly, the question arises as to what happened to the properties on his death. It is observable that there is no mention in the evidence that the properties were ever actually divided by Raoji and Sakharam or that Sakharam ever lived separately from Raoji. On the contrary, although there is no evidence as to what happened to the fifth property, it appears that Raoji had boon and was, until his death in 1917, in possession of four out of the five propertiea. Coupling these facts with the facts recited in the deed, it appears to us a reasonable inference that Sakharam and Raoji in fact lived together jointly after Jagoji's death as they had been living before, and that they enjoyed the properties in exactly the same manner that their father wished them to do.
9. As to the dates of Sakharam's death and of the plaintiff's birth there is no evidence. In fairness to the respondents and to take the most favourable case from their point of view, it may be assumed that the plaintiff was born after Sakharam died. The question arises as to the nature of the properties, particularly, the properties A and C now in question, on the death of Jagoji.
10. In support of the proposition of the law for the appellant that a natural father and illegitimate sons could form and were a coparcenary, there is neither text nor case. The learned pleader for the appellant relies on certain observations of Nanabhai Haridas J. in Sadu v. Baiza and Genu I.L.R (1875) Bom. 37, f.b., and argues that the proposition for which he contends is a logical inference from the proposition laid down in that case. It has been frequently observed that no law is logical, least of all the Hindu law of succession and inheritance. The actual decision of the Full Bench was merely that a legitimate and illegitimate sons who were joint and undivided in estate could succeed as coparceners to their Sudra father's property, the illegitimate son taking a half share of the legitimate son. On the other hand, the observations of their Lordships of the Privy Council in Jogendro Bhupati Hurro Chundra Mahapatra v. Mityanand Man Sing I.L.R (1890) Cal. 151, p.c, approving of the Bombay case above, are opposed to the argument for the appellant. After quoting the verses of the Mitakshara, Ch. I, Section 12, their Lordships observe as follows (p. 155) :-
Now it is observable that the first verso shows that during the life-time of the father, the law leaves the son to take a share by his father's choice, and it cannot be said that at his birth he acquires any right to share in tho estate in the same way as a legitimate son would do.
11. If it is the essence of a coparcenary that the right comes into existence with, from and because of birth, these observations are fatal to the argument for the appellant. In the Full Bench decision, Iashwar Dadu v. Gajabai I.L.R (1925) 50 Bom. 468, s.c. 28 Bom. L.R. 782, f.b. I have pointed out the distinctions between, firstly, the principle of law, secondly, the ratio decidendi, and thirdly, the observations in the judgment, which last are not binding, In any case, speaking for ourselves, we are not prepared to take the further step in law we are invited for the appellant to take in this appeal, and to hold that, because an illegitimate brother succeeds to the property in preference to the widow of the deceased legitimate brother and in this sense forms a coparcenary with the latter, therefore, a father and his illegitimate sons living with him such as Jagoji with Raoji and Sakharam in the manner recited in Exh. 100, are members of a joint Hindu family in the only legal sense in which the term is used with all its legal implications and consequence; or that Jagoji had such a power in law which he could exerciso. But on the death of Jagoji the position was, in our opinion, altered. Assuming that Raoji and Sakharam each took one-half, it is not proved that they separated or lived otherwise than they had lived before in Jagoji's life-time. The two brothers after Jagoji's death formed, in our opinion, a joint Hindu family in regard to the properties in the deed which they inherited from Jagoji, if so, whatever the date of the appellant's birth, even if it was after the death of Sakharam, the properties in suit were joint family properties in the life-time of Sakharam, and they remained so after Sakharam's death; and even if the plaintiff was born afterwards, Raoji had no power to dispose of them by will.
12. In this view the decree of the trial Court was, in our opinion, right. The appeal is allowed, the decree of the lower appellate Court set aside, and tha decree of the trial Court restored with costs throughout against the defendants-respondents.