Bakshish Rai and Others vs Mt. Rajo Kuer

Chatterji, J.—The plaintiffs as the next reversioners of Kuni Rai brought the suit out of which this appeal arises-for a declaration of their title and for confirmation of possession, or in the alternative for recovery of possession of lands measuring 2 bighas 19 cottas 12; dhurs in village Dharampure Jarung. The defendant Mt. Rajo Kuer was the widow of Theonandan Rai, younger brother of Kuni. Plaintiffs alleged that Sheonan dan had predeceased Kuni, and as the itwo brothers were joint the defendant had not succeeded to her husband''s estate.

On Kuni''s death the lands were in the possession of his mother Mt. Dropad Kuer, who, during her lifetime, surrendered possession in favour of the plaintiffs, and in any case on her death in Asar 1332, the plaintiffs had entered Into possession. Rajo, defendant, after the death of her husband went to her father''s place, and while residing there she became corrupt and about a year ago a son was com to her by Ram Rger Rai, She being a woman of bad and loose character was ex-communicated from the family of the plaintiffs and had no interest whatsoever in the property. The suit was decreed by the Munsif, but his decision was reversed on appeal by the District Judge who came to hold that Kuni had died first leaving Sheonandan as his surviving brother, and" that on the death of Sheonandan the defendant had inherited her husband''s property. She lived in the family house along with her mother-in-law and in any case her subsequent unchastity on the death of her husband could not divest her of the estate of her husband which had vested in her.

The plaintiffs have appealed and their learned advocate has pressed only two points: firstly, that the learned Judge has misdirected himself in taking into consideration the two rent receipts Exs. A-1 and A-2 relied on by the defendant which bore clear marks of interpolation and were not genuine receipts; and secondly, that the learned Judge had not considered that in this case unchastity had been followed by conception and the birth of a child and the defendant was excommunicated from the family of the plaintiffs and had lost her caste, and these were" sufficient to justify her disinheritance.

Now as to the first point the learned "District Judge in his judgment refers to certain entries in the rent receipts granted to Kuni, mentioning the widow of Sheonandan as being obvious later additions, so that his attention was directed to the matter, but yet he preferred the oral evidence on behalf of the defendant supported as it was by the production of receipts (Exs. A and B series) dating from the years 1320 to 1333 with some gaps and the landlord bad also deposed in support of her case. He came to his finding after balancing the evidence on each side and the findings arrived at on questions of fact have to be respected and are binding in second appeal. The first contention is accordingly overruled.

Turning now to the second question: the learned District Judge holds that though the learned Munsif was of the view that in any case the defendant should be divested of the property owing to her unchastity, no such plea was put forward in the plaint, and the parties had agreed on appeal that this matter did not; arise. The learned advocate refers to paras. 4 and 9 of the plaint where it was clearly mentioned that the defendant had a son born to her byRamUger Rai and by reason of her bad and loose character she had been excommunicated from the plaintiffs'' family and it is urged that this is an important point of law which does arise in this appeal and has to be decided. The learned advocate lays stress on certain extracts from Golap Chandra Sarkar Sastri''s treatise on Hindu Law, 6th Edn., the particular passages occurring in Chaps. 6 and 10. The learned author observes at p. 470:

There are however different grades of un-chastity, and perhaps on this consideration it has been held that a widow living as a mistress to her husband''s brother does not loss her right to her husband''s property: Nageshwar v. Puran [1910] 11 I.C. 279. It is of the gravest Character when followed by conception and birth of a child. In that case she must be divested of the husband''s estate: the passages of Hindu law on this subject are not translated into English and were not before the Court in the unchastity case Moniram v. Keri [1880] 5 Cal. 776.

Some of these texts are cited in Chap. 10 and these are: (1) of Parasara who is said to ordain the law for this Kali age, declaring--then follows the text which means:

A woman (committing adultery) is purified by catamenia, provided she did not conceive (vii 4). If a woman has committed adultery once and is not desirous to commit that sinful act again, she becomes pure by prajapatya rite and by the flow of the catamenia, (x. 26). If a woman becomes pregnant by her paramour when her husband is dead or is missing, she being a wicked and degraded woman should be carried to the territory of a different king and be abandoned there: Ex. 29.

The author remarks:

Thus it will be seen that there are different grades of unchastity; and the offence is an expiable one in light oases. It should he noticed that a widow becoming pregnant by adultery must become deprived of her husband''s estate by reason of the punishment of banishment inflicted on her. (2) Yajnavalkya also ordains the same rule--then follows the text which means:

A woman guilty of unchastity shall be deprived of her position and possessions, shall wear dirty clothes shall live upon starving maintenance, shall be humiliated and made to sleep on bare ground. The moon has given them purity, the Gandarvas have given them sweet voice, the Firegod has given them permanent sanctity; women are therefore always pure. A woman guilty of adultery is purified by catamenia, but her abandonment is ordained in case of conception by adultery, and in case of causing abortion or killing the husband, as well as in case of committing heinous sins: 1,70,72.

The author remarks:

The above texts were not before the Courts in the un-chastity case. They show that un-chastity alone is a light offence, it becomes very grave if followed by conception, and that then a widow''s right to her husband''s estate must cease.

The author however admits that un-chastity of women is not expressly enumerated in the chapter on exclusion, as a cause of exclusion from inheritance.

The question is how far these texts are binding authority in the decision of this case. The observation of the Privy Council in The Collector of Madura v. Muttu Ramalinga Satthupathy [1867] 12 M.I.A. 397 have always got to be borne in mind. Their Lordships say:

The duty therefore of a European Judge who is under the obligation to administer Hindu law is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities as to ascertain whether it has been received by the particular School which governs the district ''with which he has to deal, and has there been sanctioned by usage. For, under the Hindu system of law dear proof of usage will outweigh the written text of the law.

The parties to the case are governed by the Mitakshara School of Hindu law; they are Babhans by caste. At p. 585 Ch. 10, the learned author says:

According to the Hindu law of moral and religious offences, a man becomes liable to be degraded and excommunicated for sinful acts of heinous character, and an out caste or an excommunicated sinner is deemed civilly dead, so that exequial rites are directed to be performed for him in the same manner as if he were dead. A woman also is degraded for the same sinful offences, and specially for the heinous crimes set forth in the text of Yajnava lkya iii, 298.

which means:

sexual intercourse with a low caste man, causing abortion of a child in her womb, and killing her husband, these are certainly additional causes of woman''s special degradation.

He then cites another text of Vasistha which means:

Four (descriptions of) woman must be abandoned, namely (1) one cohabiting with a pupil of the husband; (2) one cohabiting with guru (or father or father-in-law); (3) one cohabiting with a chandala or with a man of any other very low caste, and (4) specially one-killing her husband.

The author remarks at p. 586:

These and similar texts show that a woman becomes an outcaste for adultery, only when it is committed with a man of a very low caste and according to the Mitakshara, in cases she. refuses to perform the penance prescribed for the same. A woman living in adultery with, a man of equal or superior caste does not become an outcaste.

In the plaint it was alleged that the defendant had misbehaved herself with Ram Uger Rai who was a Babhan and had given birth to a son. Clearly therefore she could not have lost her caste. This again receives support from the observations of Dwarka Nath Mitter, J. who was one of the dissenting; Judges in Keri Kolitani v. Moin, Ram Kolita 19 W.R. 367 . In considering the question how far Act 21 of 1850 would affect the possession of a Hindu widow-losing her caste by reason of her unchastity the learned Judge observed at p. 379 of the report:

Lose of caste might be in some cases the consequence of loss of chastity, but it is not a necessary consequence. The guilty parties might both belong, to the same caste, and in such a case there need not be any loss of caste at all, nor is there anything in the Hindu law which says that an unchaste widow forfeits. her right, because she has lost her caste. She forfeits it because she is not a shaddwi or chaste woman, and there is nothing in Act 21 of 1850 to provide for her case.

I may also in this connexion refer to two earlier cases before the decision in. Keri Kolitani v. Moni Ram Kolita 19 W.R. 367 as to how far unchastity of a widow after her husband''s death divested her of her husband''s estate which she inherited, the point being that in one of these cases the widow had given birth to a child while living in adultery. The earliest decision is Saumoney Dossee v. Neemy Churn Doss 2 Taylor & Bell 300 decided by the Supreme Court where Sir Lawrence Peel held that a widow cannot forfeit her right by living an immoral and unchaste life. This decision was followed in Mutunginee Debi v. Joyhali Debi 14 W.R.O.J. 23. In that case also the defendant Jaykali, a Brahmin lady, after the death of her husband, had a child by a person in her employ. Sir Barnes Peacock followed the decision of Sir Lawrence Peel and remarked at p. 33:

I therefore am of opinion that the principle of this case is not affected by the fact that the respondent had a child by a Sudra. As far as chastity was concerned, it made no difference whether the father of the child was a Sudra or a Brahmin. It is only as regards caste that that circumstance would make any difference

and in event he came to hold that the subsequent unchastity of the defendant did not divest her of her husband''s estate. Then came the well-known case of Keri Kolitani v. Moni Ram Kolita 19 W.R. 367. There also Keri Kolitani, the defendant, had succeeded to the estate of her late husband, one Gendela, who died without issue, and Moni Ram as being Gendela''s cousin and next heir claimed possession, because Keri had forfeited her right by reason of her having a child by some other person on the death of her husband. It was on those facts that the Full Bench of the Calcutta High Court came to hold that under the Hindu law, as administered in the Bengal School, a widow who has once inherited the estate of her deceased husband, is not liable to forfeit that estate by reason of unchastity. This decision was upheld in Moni Ram Kolita v. Keri Kolitani [1880] 5 Cal. 776 by the Privy Council, so ;that the mere fact of the defendant having a son born to her by Ram Uger Rai, a Babhan, would neither entail for feiture nor be a reason of depriving her of her husband''s estate which she had inherited. It was faintly argued that the parties in the above unchastity case were governed by the Dayabhaga School of Hindu law and not by the Mitakshara. The learned advocate for the appellants had however to admit that the decision in Moni Ram�s case had also been given effect to in a case under the Mitakshara law decided by the full Bench of the Allahabad High Court, Nehalo v. Kishen Lal [1878] 2 All. 150. There all of the five Judges constituting the Pull Bench were unanimous in holding that under the Mitakshara law a widow, who has once inherited the estate of her husband, is not liable to forfeit that estate by reason of her subsequent unchastity and their Lordships followed the ruling of the majority of the Full Bench of the Calcutta High Court in Keri Kolitani v. Moni Ram Kolita 19 W.R. 367 .

It was however urged that the decision in this case cannot depend on the Privy Council decision in Moni Ram Kolita v. Keri Kolitani [1880] 5 Cal. 776 inasmuch as there are observations at p. 792 of the report:

The widow has never been degraded or deprived of caste. If she had been, the case might have been different, subject to the question as to the construction of Act 21 of 1850; for upon degradation from caste, before that Act, a Hindu, whether male or female, was considered as dead by the Hindu law, so much so that libations were directed to be offered to his manes as though he were naturally dead. His degradation caused an extinction of all his property, whether acquired by inheritance, succession, or in any other manner. The opinion of Mr. Golebrooka in the Trickinopoly case is founded on the distinction between mere unchastity and degradation. It is unnecessary to-determine what would have been the effect of Act 21 of 1850, if she had been degraded or deprived of her caste in consequence of her unchastity.

It was argued that the point therefore was expressly left open. I have already found that the widow in this case could not have been deprived of her estate by reason of her unchastity as the man with whom she misbehaved was a man of her own caste, namely a Babhan. The only other question which now remains for consideration is how far Act 21 of 1850 affects the rights. The learned advocate again relies on the observations of Sarkar Sastri in Chap. 10 of his treatise (p. 579) where he observes:

If the Act be read and construed by the light of its preamble, there cannot be any doubt that deprivation of caste, owing only to change of religion, is what is intended by the Act to be declared as having no legal effect so as to affect the rights of a person changing his religion (p. 580). The Act does not affect the principles of the Hindu moral law, and is operative only when there is a change of religion. This was the view taken by the Sudder Dewany Adawlut of Bengal, differing from the contrary view taken by Sir Lawrence Peel, (Son Money''s case) though the latter view is supported by the weighty opinion of Sir Barnes Peacock.

In Matunginee Debee v. Joyhali Debee 14 W.R.O.J. 23, his Lordship observed at p. 33:

It appears to me that when the Isgislature intended to prevent a Hindu from taking advantage as against another Hindu of any part of the Hindu law which deprived his opponent of a right of property by reason of his having renounced his religion, or of his having been excommunication from his religion, they intended to deprive a Hindu of his right to take advantage of any rule of the Hindu religion which deprived his opponent of any part of the Hindu religion by reason of his loss of gate, Looking at the case oven as between Hindus it appears to me that the removal of loss of caste cannot be more objectionable than the removal of that part of the religion which deprived a man of his right by reason of renunciation of religion or excommunication there from. I therefore notwithstanding the decision of the Sudder Court in the case decided in 1888, take the same view of Act 21 of 1850 which was taken by Sir Lawrence Peel in the case to Which I have referred.

Sir Lawrence Peel in Sali Money Dossee v. Neemy Churn Doss 2 Taylor & Bell 300 had observed:

That it was provided by Act 21 of 1830, that so much of any law or usage, now in force in India, as inflicted on any person forfeiture of rights of property or might be held in any way to impair or affect any right of inheritance, by reason of his or her being deprived of caste should cease to be enforced as law.

Sir Barnes Peacock, in citing the above observations at p. 31 (of 14 W. B.), observed:

His opinion there fore appears to have been that the Hindu law, so long as it inflicted forfeiture of rights of property or impaired or affected right of inheritance by reason of deprivation or loss of casts, was intended to be abolished by the Act to which he refers.

In passing I may refer to a Full Bench decision of the Calcutta High Court in Hari Lal v. Tripura Charan Boy [1918] 40 Cal. 650 where their Lordships held:

The mere fact that a Hindu woman has adopted the life of a prostitute does not saver the tie which connects her to her kindrad by blood; and consequently the stridhan property of a Hindu woman who has adopted the life of a prostitute passes upon her death, in the absence of nearer heirs, to her brother''s son as an heir under the Bengal School of Hindu law.

It appears that Babu Golap Chandra Sastri was one of the learned vakils who had appeared on behalf of the appellant in the case and he urged his views that a degraded women becomes civilly dead which apparently was not accepted by their Lordships. There cannot remain any doubt that a woman being a prostitute becomes degraded and even then she is not deprived of her rights to property and she does not cease to be a Hindu governed by the provisions of Hindu law. The point again is concluded by authority so far as our High Court is concerned and I would refer to Ram Pergash Singh Vs. Mt. Dahan Bibi, , a decision by Jwala Prasad, J., and by my learned brother. It came to be held that since the Caste Disabilities Removal Act (21 of 1850), a convert or an outcaste from Hindu religion retains his right of inheritance whether the right occurs before or after the conversion to another religion or exclusion from caste, and the case of Khuni Lal v. Gobind Krishna Narain [1911] 33 All. 356 was followed.

It was further held that the original rules of Hinduism debarring a patit or a degraded person from taking any share in the paternal property and excluding in com succession a person addicted to vice has been abrogated by that Act, so that exclusion from caste no longer entails forfeiture of the right of inheritance, and the cases of Jaya Madhav Kalavant v. Manjunath Tai Chandu [1917] 40 I.C. 78 and Kamakshi v. Nagarathnam 5 M.H.C.R. 161 were referred to. Whatever the views of Sarkar Sastri might have been these are not supported by the reported decisions which lay a rule just to the contrary and having regard to the long course of decisions it is now too late in the day to have the matter reagitated in the light of certain texts which at the best are moral objurgations and cannot be given effect to in their literal sense to affect rights in property. The result accordingly is that this appeal must fail and is ordered to be dismissed with costs.

Ross, J.

I agree.