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Roshan Singh Vs. Balwant Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Judge
Reported in(1896)ILR18All253
AppellantRoshan Singh
RespondentBalwant Singh
Excerpt:
.....by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - the subordinate judge was clearly in error in holding that the plaintiff was entitled to the malikana allowance which bhoj singh is said to have enjoyed. as the plaintiff brought his suit in forma pauperis, and the suit has failed, the amount of court-fee payable by him should be paid to government by him......singh had a son, kuar sanwant singh, whose son was kuar indarjit singh. the plaintiff's father bhoj singh, it is alleged, was the illegitimate son of indarjit singh, although the plaintiff does not admit the fact of illegitimacy. after the death of raja narain singh the estate was in the possession of his widows. the last of the widows having died, the plaintiff brought the present suit on the ground that he was entitled to the estate. another ground of his claim, as alleged in his plaint, was that, even if his father bhoj singh was illegitimate, he, bhoj singh, had a right of maintenance for which the estate of raja mittar singh was liable, and the plaintiff being the son of bhoj singh had a similar right which entitled him to redeem the mortgage. the plaintiff's right of redemption.....
Judgment:

Banerji and Aikman, JJ.

1. The plaintiff brought the suit in which this appeal has arisen to redeem a mortgage. The facts, so far as it is necessary to state them, are briefly these: The Husain estate, which originally belonged to Baja Mittar Singh, descended to his grandson Raja Narain Singh, and was mortgaged by Raja Narain Singh to the predecessor in title of the defendant. Raja Mittar Singh had a son, Kuar Sanwant Singh, whose son was Kuar Indarjit Singh. The plaintiff's father Bhoj Singh, it is alleged, was the illegitimate son of Indarjit Singh, although the plaintiff does not admit the fact of illegitimacy. After the death of Raja Narain Singh the estate was in the possession of his widows. The last of the widows having died, the plaintiff brought the present suit on the ground that he was entitled to the estate. Another ground of his claim, as alleged in his plaint, was that, even if his father Bhoj Singh was illegitimate, he, Bhoj Singh, had a right of maintenance for which the estate of Raja Mittar Singh was liable, and the plaintiff being the son of Bhoj Singh had a similar right which entitled him to redeem the mortgage. The plaintiff's right of redemption was denied by the defendant. The Court below has held that the question of the illegitimacy of Bhoj Singh, the plaintiff's father, is res judicata, it having been decided in 1868, in a suit brought by Bhoj Singh against the predecessors in title of the defendant, that Bhoj Singh was illegitimate. This conclusion of the Subordinate Judge has not been challenged by the respondent in this appeal. The Subordinate Judge has held, by a process of reasoning which we are unable to follow, that the plaintiff has a right to redeem the mortgage in question although his father was illegitimate. What we understand the Subordinate Judge he hold is this: That the plaintiff's father Bhoj Singh was entitled to maintenance from the Husain estate; that he had a charge on that estate for maintenance, but in lieu of that charge he was entitled to a malikana allowance; that the plaintiff as the legitimate son of his illegitimate father is entitled to the same malikana allowance, and consequently he is a person who has an interest in or charge upon the mortgaged property and hence is entitled to redeem the mortgage. Now assuming that the plaintiff is entitled to maintenance from the Husain estate, that right to obtain maintenance cannot, in the absence of a contract or of a decree of Court making the maintenance a lien on the estate, be regarded as a charge on the estate within the meaning of Sections 91 and 100 of Act No. IV of 1882, as was held in Kuar Shiam Singh v. Raja Balwant Singh and Ors. F.A. No. 295 of 1893, decided by this Court on the 11th of June 1895. It is urged before us that, although the plaintiff may not have a charge on the property in question, he has an interest in it, inasmuch as his father Bhoj Singh was entitled to a malikana allowance in lieu of his maintenance. There is nothing before us to show that, if Bhoj Singh was entitled to maintenance, or to a malikana allowance in lieu of maintenance, that allowance was one which was not limited to the term of his life, but was heritable by his son. According to Hindu Law an illegitimate son of a person belonging to one of the three regenerate classes is entitled, if docile, to obtain maintenance from his father. No authority has been shown to us for holding that this is anything but a personal right. Therefore, even if it be assumed that Bhoj Singh was granted a malikana allowance in lieu of his maintenance, it would not follow that that allowance would pass to his son. The Subordinate Judge was clearly in error in holding that the plaintiff was entitled to the malikana allowance which Bhoj Singh is said to have enjoyed. Consequently the plaintiff has no right to redeem the mortgage in question. This is sufficient to dispose of this suit. The plaintiff having no right of redemption his suit should have been dismissed. We allow the appeal and dismiss the plaintiff's suit with costs here and in the Court below. As the plaintiff brought his Suit in forma pauperis, and the suit has failed, the amount of Court-fee payable by him should be paid to Government by him. In the decree of this Court the amount of the Court-fee which would have been paid by the plaintiff if he had not been permitted to sue as a pauper, and which has been wrongly stated in the decree of the Court below, will be correctly specified.


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