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11. The learned Advocate-General, however, argued that even if the plaintiffs have not been able to satisfactorily establish the factum of marriage, the fact of Gopaldas and Ratan having lived together as husband and wife and having cohabited would raise a presumption of marriage. He relied upon the decision in Chandu Lal v. Khalilar Rahman, ILR (1942) 2 Cal 299 : (AIR 1943 Gal 76), where it has been observed that where parties constantly, openly and continuously lived and cohabited together for several years and had several children and were regarded and recognised as husband and wife by relations and friends, these facts, in the absence of contrary circumstances, afford clear and conclusive evidence of marriage and that presumption would arise under Section 114 of the Indian Evidence Act that a marriage had taken place between such persons living and cohabiting together. It should be remembered that the condition laid down in this decision for such presumption to arise was that the parties should, constantly, openly and continuously, live and cohabit together for a number of years and should be regarded and recognised as husband and wife by relations and friends, Except for the evidence of three witnesses, Prabhashanker, Ratilal and Chimanlal Modi, the plaintiffs did not lead any evidence of the relations and friends of Gopaldas or the plaintiffs to establish that such relations and friends bad recognised Bai Ratan and Gopaldas as husband and wife. Various decisions can be multiplied to show that in given circumstances the Court would be entitled to raise such a presumption grounded as it is on tile general abhorrence of law against immorality and illegitimacy. But even where such presumption can be and is raised, it is always rebuttable as can be seen from Gokalchand v. Pravin Kumari, 1952 SCR 825 : (AIR 1952 SC 231). The plaintiff, a Rajput belonging to the Tehsil of Garshankar in the District of Hoshiarpur (Punjab) instituted a suit against the defendant for the recovery of properties which belonged to a deceased Gurkha woman Rampyari and which she had acquired by way of gift from a stranger. He alleged that he was the lawfully wedded husband of Rampyari and that according to custom which applied to parties with regard to succession, he was entitled to succeed to the proper-tics of Rampyari in preference to the defendant who was his daughter by Rampyari. Though the main question in that decision was whether succession to properties which Rampyari had received as gift from a stranger and which she owned in her own right was governed by the custom governing her husband's family and not her own, their Lordships of the Supreme Court observed that continuous cohabitation for a number of years may raise a presumption of marriage. They also observed that it was clear that the plaintiff and Rampyari lived and were treated as husband and wife for a number of years and that in the absence of evidence pointing to the contrary presumption might be drawn that they were lawfully married. It would appear from the facts of that case that Rampyari and the plaintiff had lived and cohabited together for a period of about 12 years. In spite of that fact, their Lordships held that the presumption as to marriage was rebuttable and there were circumstances in that case which weakened or destroyed the presumption and held that the cumulative effect of those circumstances warranted a conclusion that the plaintiff had failed to prove his marriage with Rampyari. Amongst those circumstances, there was the circumstance that the plaintiff had not examined any of his near relations such as his brother or any of his co-villagers whose presence at the marriage would have been more probable, than the presence of the persons examined by him. There was also the circumstance that the plaintiff had failed to examine any of the witnesses residing in or round about Holta estate though his case was that his marriage was celebrated with great pomp and show. There was also a further circumstance that Rampyari's own mother Ganga had deposed that her daughter was never married to the plaintiff. There was finally the statement of Rampyari herself in her own will which their Lordships considered a very valuable piece of evidence to the effect that she was never married to the plaintiff.
12. Even according to the learned Advocate-General though Ratan has deposed that marriage took place in March 1937 it could not have taken place until March 1938. The evidence shows that a son was born to her in 1939 and immediately thereafter she had gone away from Gopaldas and lived with her father. Cohabitation of Gopaldas with Bai Ratan thus appears to have lasted for less than two years. In the maintenance proceedings under Section 488 of the Code of Criminal Procedure, Gopaldas bad repudiated the allegation of marriage by him with Ratan, the period of living together and their cohabitation with each other thus does not appear to be long as was the case in ILR (1942) 2 Cal 299 : (AIR 1943 Cal 76) or 1952 SCR 825 : (AIR 1952 SC 231). Besides, there are circumstances which would rebut such a presumption even if it be raised. Gopaldas being a potter, it seems to us somewhat improbable that he would agree to marry a girl from a family of Brahmins and hailing from the North. If he married Ratan as alleged because his wife, Narmada had not given birth to a son, it is extremely unlikely that Gopaldas would ill-treat Bai Ratan soon after she gave birth to a son, an event which according to Ratan, he desired most. Then again, if he desired to marry because his wife Narmada had not given birth to a son, it seems to us more probable that he would marry in his own caste especially when there was no legal objection at that time to a second marriage by him. As we have already pointed out neither of the two plaintiffs cared to examine any relations either of Gopaldas or of Ratan to show that after 1937 or 1938 as the case may be, Gopaldas and Ratan were treated or recognised by them as husband and wife. The Commissioner appointed by the Court, witness Shantilal has said that when an inventory of the articles lying in Gopaldas's house was made, he had found photographs of several women in the house of Gopaldas, both singly and with him. These photographs would seem to indicate that Gopaldas had lived an immoral life having been in connection with several Other women. The circumstances above recited would indicate that it was more probable that Gopaldas would live with Ratan as his concubine rather than contract a marriage with her. These circumstances, in our view, rebut the presumption and show that there was greater probability of Gopaldas having lived with Ratan as his mistress and that it was while he was so living, possibly in the house of witness Chimanlal, Bai Ratan conceived and ultimately gave birth to a son, the plaintiff in suit No. 188 of 1953. For the reasons aforesaid, we agree with the learned trial Judge that the plaintiffs have failed to establish the factum of marriage between Gopaldas and Ratan.
13. Since the plaintiff in suit No. 188 of 1953 has failed to establish such a marriage between Gopaldas and Ratan, it follows that he would have no title in the estate left by Gopaldas either as a co-parcener or as an heir of Gopaldas. The only right that he would have would be as an illegitimate son of a mistress but he would have such a right only if it were established that he is a dasiputra. It is a well settled proposition in Hindu law that illegitimate sons in the three higher castes do not take as heirs but are only entitled to maintenance from the estate of the father. The illegitimate son of a Sudra may, however, in certain circumstances inherit either jointly or solely For this proposition reliance has been placed by Mayne in his treatise on 'Hindu Law and Usage Eleventh Edition, at page 633 on certain texts from Manu, Yagnavalkya the Mitakshara and Jimutavahana. As quoted by him the text from Manu states :
'A son begotten by a man of the servile class on his female slave, or on the female slave of his male slave, may take a share of the heritage if permitted (by the other sons).'
The text from Yagnavalkya enlarges the rule as follows :
'Even a son begotten by a Sudra on a female slave (dasiputra) may take a share by the father's choice. But, if the father be dead, the brethren should make him partaker of the moiety of a share; and one who has no brothers may inherit the whole property in default of daughter's sons'
According to the Mitakshara;
'Should there be no sons of the wedded wife the son of the female slave takes the whole estate, provided there be no daughters of a wife, nor sons of daughters. But if there be such, the son of the female slave participates for half a share only.''
Finally, Jimutavahana referring to the text of Mami explains :
'The son of a Sudra by a female slave, of other unmarried Sudra woman, may share, equally with other sons, by consent of the father.'
The question that would arise on these texts is as to the class of woman to whom such illegitimate son must be born. At one time the High Court of Calcutta held that the words 'son of a female slave' must be literally interpreted and, therefore, an illegitimate son, whose mother was not a slave, could not inherit. But the view of the High Courts of Bombay, Madras and Allahabad was that the term 'dasi' was not exclusively applicable to a female slave but included a Sudra woman kept as a concubine. Thus, in Rahi v. Govind, ILR 1 Bom 97, the learned Judges interpreted Section 12 of Chapter I of Mitakshara as meaning that the father it an illegitimate son by a Dasi among Sudras may in his life time allot to such a son a share equal to that of a legitimate son and, if the father died without making such allotment, the illegitimate son by the Dasi was entitled to half the share of a legitimate son, and if there was no legitimate son, and no legitimate daughter or son of such a daughter, the illegitimate son by the Dasi took the whole estate. After examining various texts they came to the conclusion that in the Bombay Presidency the illegitimate offspring of a kept woman, or continuous concubine, amongst Sudras. was on the same level a.s to inheritance as the issue of a female slave by a Sudra. After examining several texts cited before them, they also approved the proposition that an illegitimate son of a Sudra by a dasi, which term included a concubine of Sudra class was a dasiputra. The same question again arose in Sadu v. Baiza and Genu, ILR 4 Bom 37 (FB), where it was again held that an illegitimate son of a Sudra by a continuous concubine has the same right as a dasiputra. They confirmed the view held ' in ILR 1 Bom 97, that a dasi would mean a female slave and included a Sudra. In Ravji Rupa v. Kunjalal Hiralal, ILR 54 Bom 455 , their Lordships of the Privy Council observed that the term dasiputra, no doubt, originally meant a son of a female slave, but in Western India, at all events, it had come to mean son of a kept mistress of one of the lower castes. For this proposition they relied upon the two Bombay cases ILR 1 Bom 97 and ILR 4 Born 37 (FB). This proposition, however, was not disputed on behalf of the respondents in that case and, therefore, apart from relying upon the two Bombay cases, there was no occasion lor their Lordships to examine the texts which were relied upon in the earlier Bombay cases. In Ramchandra Doddappa v. Hanamnaik Dodnaik, 37 Bom LR 920 : (AIR 1936 Bom 1), the question arose whether a son born of a Sudra male by a Brahmin concubine would be a dasiputra or not. Though the question that arose in that decision was not the same as we have before us, certain observations to be found in that decision are of considerable use. Dealing with a contention urged on behalf of the respondents that the term dasi would only apply to the ease of a Sudra and, therefore, meant only a Sudra woman and a dasiputra would mean a son of a Sudm woman. Mr. Justice Divatia observed that a Brahmin woman cannot contract a valid marriage with a Sudra, as it would be a pratiloma connection and that such a woman cannot claim maintenance from a Sudra as his kept mistress, unless the connection is of a continuous character. Examining various texts cited by the trial Court, the learned Judge came to the conclusion that the view of the Shas-tras was that any relationship between a Sudrn male and a Brahmin female where it purports to be a relationship by a so-called marriage or a state of concubinage is not recognised by Hindu law. Such children are regarded as Chandalas and outcastes and, therefore, they cannot claim any right to a share in the property of their father. The learned Judge then observed that at first sight it might seem strange that the son of a Sudra by a Sudra mistress can inherit to him while his son by a Brahmin mistress cannot, but the origin of this anomaly was to be found in the sense of abhorrence towards any sort of connection between a Sudra man and a Brahmin woman leading to degeneration of the race, and that it was in order to discourage such connections that the texts expressly enjoined that such children should be regarded as outcastes and, therefore, not entitled to any share in the property.
14. From these observations, it is clear that only the illegitimate son of a Sudra by a Sudra concubine is entitled to take a share in the property of his putative father. For this purpose it is not necessary that the mother should remain a permanent concubine till the date of his father's death. This proposition was laid down in Uderam v. Thaggu, ILR (1949) Nag 248 : (AIR 1949 Nat; 377), decided by Mr. Justice Mudholkar, where he observed that,
'in a suit by an illegitimate son for possession of property belonging to bis deceased alleged father it is not necessary for the plaintiff to show that his mother was a permanent concubine of his alleged father till his death. All that is necessary to show was that the woman was in the exclusive keeping of the alleged father when the illegitimate son was born.'
15. It is not seriously disputed before us that the plaintiff in suit No. 188 of 1953 is the male offspring of Gopaldas by Bai Ratan. But since we have held that the plaintiff has failed to prove marriage between Gopaldas and Ratan, the plaintiff must be held to be the illegitimate son of Gopaldas by Bai Ratan. The question next is whether Bai Ratan can be said to be a Sudra woman for unless she is a Sudra woman, the plaintiff cannot be held to be a dasiputra as decided in the authorities cited above.
16. It was claimed both before the trial Court as also before us that Ratan was a Sudra woman and, therefore, her offspring by Gopaldas was a dasiputra. This claim was based on two grounds :
(1) that her living with Gopaldas, a Sudra, and partaking food with him rendered Bai Ratan a Sudra though she was by birth a Brahmin woman, and
(2) that she and her first husband as also her father were Kabirpanthi Bavas and that as Kabirpanthis do not' believe in caste and community, she automatically became a Sudra.
17. So far as the first ground is concerned, it has been decided in 37 Bom LR 920 : (AIR 1936 Bom 1), that a Brahmin woman becoming the mistress of a Sudra becomes a Patit woman, that is to say, a degraded or a fallen woman, but she does not, by becoming a concubine of a Sudra, become a Sudra. As regards the second ground it may be that Kabirpanthi Bavas, by which term we presume members of the priestly class amongst the followers of Kabir, may not believe in caste system. It is well known however that in Hindu society a per-son gets attached to one of the four classes by birth. Thus a child born of Brahmin parents is Brahmin and so on. It is possible that a Hindu may not believe in the principles of Varnashram or he may join a religious sect which forbids such belief but that does not mean that a person born in a particular class loses for that reason his or her class or becomes a Sudra. Nothing has been shown to us to justify a conclusion that Kabir panthis regard themselves as Sudras. No such data wag placed before the trial Court except the statement of the priest Prabhashankar but that priest can by no means be regarded as an expert in such a matter or as one competent to express such an opinion. He did not profess to be a Kabirpanthi or as one having any knowledge as to the tenets of the followers of Kabir. His opinion, therefore, cannot be regarded either as relevant or useful. The learned Advocate-General realising this lacuna in the evidence took some time to find out from some recognised work on Kabir and his followers but was frank enough to tell us that he was not able to point out to us any such authoritative pronouncement anywhere. It seems to us a somewhat startling proposition that a person by joining this sect which forbids belief in caste and community would become therefore a Sudra. The nearest case is one of Lingayats who also do not believe in any differentiation of caste and community as is seen from Fakirgauda v. Gangi, ILR 22 Bom 277. But there the question was not that a person becoming a Lingayat automatically becomes a Sudra but that Lingayats being all equal the presumption was that a marriage between persons of different sects of Lingayats was not illegal. This being the position on record before us, we must hold that the plaintiff's mother was and still is a Brahmin and the plaintiff, an illegitimate son of a Sudra by a Brahmin woman, cannot be regarded as a dasi-putra who alone would be 'entitled to a share in the estate left by his father.
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