Raj Kuar vs Radha Kishen and Others

Sir John Edge, Kt., C.J. and Knox, J.—This was a suit to recover possession of certain zamindari property, some houses and bonds and other property from the surviving sons of one Khuman, the mother of those sons and the widow of a deceased son. The other defendants are brothers of Khuman, who sold to the plaintiff. The facts of the case are peculiar. Khuman was a Brahmin, and, having taken a Bania widow to live with him, was out-casted. He left his village, removed to another village, and there lived with the Bania widow. In course of time she bore children to him, the eldest of whom is now thirty-five years old. She and her sons and the widow of one of the sons are the first lot of defendants to whom we have referred, Khuman and his sons, as we infer from the judgment of the lower appellate Court, carried on cultivation together, and Khuman, according to the finding of the lower Court, acquired the property in dispute in this suit. It has been found by the first Court that the plaintiff paid no consideration whatever for the sale to him. That finding is not dissented from in the judgment upon which the decree under appeal was founded. The Judge below gave the plaintiff a decree for possession. Against that decree this appeal has been brought. We have been referred to texts from Manu, to passages from West and Buhler and to several authorities, and none of them seem to us precisely to govern this case. We have here a case of the illegitimate offspring of parents who belonged to the twice-born classes of Hindus, the father being a Brahmin, the mother a Bania. We have also to deal with a case in which the property in dispute, which is in the possession of the offspring of those parents was, according to the finding of the lower appellate Court, which we must accept, the self-acquired property of Khuman, after he had been outcasted, after he had left his family and his village and had started in another village to make a livelihood for himself, the woman who lived with him and their children. If we were trying this case as a Court of first instance, or as a Court of first appeal, we should come to the conclusion that Khuman, having lost his caste, had started a separate family altogether; separate, that is, in the sense of total and absolute separation from the family of his birth and his caste-fellows, "We cannot find amongst the authorities and texts cited to us any sure principle to guide us in this case. Under these circumstances we must act on the principles of equity and good conscience, and decline to oust from the possession of the property acquired by Khuman his sons and their mother and the widow of the deceased son for the benefit of the vendee of brothers who were no parties to the acquisition of any portion of this property, and which was not acquired by any ancestor of theirs. This is a very peculiar case and the view we take of it might be absolutely inapplicable in other cases; but, holding the opinion which we do as to what good conscience dictates, in the present case we allow the appeal with costs, and dismiss the suit with costs.