Judgement

Appeal (No. 156 of 1924) in forma pauperis by special leave, from a decree of the High Court in its appellate jurisdiction (August 11, 1922) reversing a decree of the Court in its original jurisdiction (November 25, 1921).

The appellant claimed that as a concubine of a deceased Hindu she was entitled after his death to maintenance out of his estate.

The facts are stated in the judgment of the Judicial Committee.

The trial judge (Kanga J.) made a decree for maintenance, and directed a reference to ascertain its amount.

On appeal the decree was set aside. The learned judges (Shah A.C.J. and Crump J.) were of opinion that the appellant was not an " avarrudha stri" of the deceased, so as to be entitled to maintenance. Their view appears from the present judgment, and fully from a report of the appeal at I. L. R. 47 B. 401.

1926. March 18, 19, 22. E. B. Raikes for the appellant.

De Gruyther K.C., Sir George Lowndes K.C. and Parikh for respondents Nos. 1, 4, 5 and 6.

[Reference was made to Khemkor v. Umiashankar (( 1873) 10 Bom. H. C. (A. C. J.) 381.); Vrandavandas v. Yamunabai (( 1875) 12 Bom. H. C. 229.); Yashvantrav v. Kashibai (( 1887) I. L. R. 12 B. 26.); Nigareddi v. Lakshmawa (( 1901) I. L. R. 26 B. 163.); Mitakshara, c. 2, s. 1, w. 7, 27, 28 (Stokes, pp. 429, 435); Mayuka, c. 4, s. 7, w. 14-19; c. 8, s. 4 (Mandlik, pp. 70, 78); West & Buhler, 1884 ed., pp. 461, 582; Maynes Hindu Law, para. 450; Trevelyans Hindu Law, p. 81; Sarvadhikaris Hindu Law, p. 941 ; also, as to the rights of children by a concubine, to Muttusamy Jagavira Yettappa

v. Vencataswara Yettappa (( 1868) 12 Moo. I. A. 203.); and Roshan Singh v. Balwant Singh (( 1908

L. R. 27 I. A. 51.)]

April 29. The judgment of their Lordships was delivered by

LORD DARLING. This is an appeal in forma pauperis by special leave from a decree of the High Court dated August 11, 1922, which reversed a decree of that Court in its original jurisdiction dated November 25, 1921.

The question in the appeal is whether the appellant is entitled to maintenance from the estate of one Vasanji Madhavji, deceased.

The appellant is a member of the Gurav caste of Hindus, and at the age of twelve years was given into the keeping of a Shethia, or rich Hindu, named Gopal Mulji, and lived with him for twelve years and bore him two children, and during that time made the acquaintance of the deceased, who was a friend of his and used to accompany him occasionally when he visited her.

The deceased was a very wealthy Hindu of the Lohana caste, who was married, but on bad terms with his wife (with whom he did not cohabit) and her two sons, whom by his will he afterwards practically disinherited. He was from Guzerath and lived in Bombay, and was therefore governed by the Mayukha.

The appellant, when of the age of about twenty-six, had to leave Gopal Mulji because of ill-treatment by him. The deceased then took her under his protection, and she lived with him on terms of affection on either side for at least five years before his death, bore him a daughter, was faithful to him during his life, and has been faithful to his memory since his death. Such was the esteem of the deceased for the appellant that he would have married her had not their difference of caste made it impossible.

After his death she applied to his executors for maintenance and to his widow and issue to admit her claim thereto, and on their failure to comply with her request she instituted the present suit, claiming maintenance as a Hindu concubine of the deceased in his sole keeping till his death. The respondents put in written statements, in which they alleged that the appellant was a prostitute and was not faithful to the deceased during his life and had not led a chaste life since his death, but they did not deny that the facts alleged by her, if proved, would entitle her to maintenance.

The following were the issues framed with the findings of each Court thereon —

(1.) Whether the plaintiff (appellant) was in the sole ke