Doman Sahu vs Buka and Others

Mahomed Noor, J.—This is a Letters Patent appeal from the judgment of Adami, J., reversing a decree of the Subordinate Judge of Ranchi which in its turn reversed the decree of the Munsif of Khunti. The case relates to the succession to the property of one Magan Kurmi who admittedly was a Kurmi of Chota Nagpur and it is common ground that he was a Sudra. He had a wife and a concubine named Mangri. On his death his properties came into the possession of his wife named Suna and on her death disputes seem to have arisen as to who was entitled to succeed to the property. The plaintiff is a mortgagee from the sons of Ujra Kurmi who as nephews of Magan claim that they are entitled to succeed to the property left by Magan. The defendants are the sons and grandsons of Magan from Mangri who was admittedly a Mundari woman. The plaintiff''s case was that he had obtained a mortgage of the lands of Magan from the nephews and was dispossessed by the defendants. The defendants denied the right of the nephews of Magan to succeed and claimed that Magan being a Sudra they as sons and grandsons of Magan from the Mundari woman were entitled to succeed to his property as dasiputras.

The Munsif dismissed the suit and held that the defendants were entitled to succeed as the sons and gran sons of Magan from the Mundari concubine.

The learned Subordinate Judge of Ranchi reversed that finding and decreed the plaintiff''s, suit. In second appeal the learned Judge of this Court set aside the decree of the Subordinate Judge and restored that of the Munsif.

Mr. A.K. Roy on behalf of the appeal lants has raised the following points for our consideration. His first contention was that in order that a person should succeed as a dasiputra it must be proved that his mother was in exclusive, permanent and continuous concubinage of the claimant''s father and he contended that there is a clear finding of fact by the learned Subordinate Judge that in this case these facts were not proved. The learned Judge of this Court in dealing with this matter observed as follows:

The Subordinate Judge says that there is no evidence. The question was not raised by the parties and no issue was framed in regard to it; but the fact that there were two sons born from the same woman would go to show that at any rate the connexion lasted for some time.

As the finding of the learned Subordinate Judge was based on his observation that there was no evidence of exclusive, permanent and continuous concubinage we think that the learned Judge of this Court was perfectly entitled to examine the evidence to find out whether in fact there was any evidence. From the evidence in this case the learned Judge was perfectly right in coming to the conclusion that in the circumstances of this case it must be taken as having been established that the relationship between Magan and Mangri was of such a nature as to entitle her children to claim the property as dasiputras. At the instance of the learned advocate we have gone into the evidence ourselves. We find that defendant 1, the son of Mangri, is aged 35 years. We also find in the evidence of the plaintiffs'' witnesses themselves that the woman is still living. Then the son claims that he was living in the family, was treated as a Hindu and he goes to the length of saying that he performed the funeral ceremonies of Magan. These facts, if unrebutted, would go to show that the relationship between Mangri and the deceased Magan was of a permanent, exclusive and continuous nature and in this respect we hold that the finding of the learned Judge was perfectly right.

The second contention on behalf of the appellant was that assuming that the relationship was of such a nature, Mangri being a Mundari woman cannot be considered to be a Hindu and in order that a dasiputra be entitled to succeed to his putative father''s property the dasi, that is the mother of the claimant, must be a Hindu.

The question whether a Mundari woman is or is not a Hindu is not very easy to decide. But the authorities are to the effect that the term "Hindu" can safely be applied to all those who claim to be Hindus and are regarded by the society surrounding them to be Hindus. Reference may be made to Gour''s Hindu Code, second edition, Article 322 where the learned author observes as follows:

Besides the Hindus, properly so called, and those who are commonly so called, there remain a number of people belonging to the aboriginal tribes, such as Gonds, Bhils, Kurds, Santals, Kochees of Assam. Aroras of the Punjab, Khatiks, Kumbars and the like, who have become absorbed into the Hindu society and who consequently consider themselves Hindus, and as such bound by Hindu law. The test in their case is the same. How do they regard themselves and how are they regarded by the rest of the Hindu community?

This observation is based upon the numerous cases which it is unnecessary for us to refer to. In the present case suffice it to say that in the case of many aboriginal tribes there have bean judicial pronouncements to the effect that they are Hindus. The learned author further proceeds and says:

The test applicable is not the Shastric test which has ceased to be applicable to the most orthodox Hindu. The fact is that the Shastras never contemplated the absorption of non-Aryan plebian people into the Hindu hierarchy. But no Shastras could stem the tide of human progress, and the non-Aryan races were not slow to take advantage of the Hindu civilization to which they became attached, and in course of time assimilated.

It is a question of common knowledge of which we can safely take judicial notice that in custom, worship, religious observation and other rites the Mundas who are aborigines are akin to other aboriginal races which inhabit this province and if in the case of some of them it has been held by the Courts that they are Hindus we see no reason to hold that a Mundari woman is on a different footing. In a case like the present one of the safest courses is to look not so much to the Shastric injunction but to the treatment of the society towards the person who claims to be a Hindu. It is in evidence that the defendants, the issues of Mangri, were treated as Hindus and this could not have been the case if Mangri was treated as a non-Hindu. There is no doubt that at present the tendency is to treat the Mundas as Hindus and they also regard themselves as such. It is sufficient if I only refer to one case of Myna Boyee v. Ootaram [1861] 8 M.I.A. 400 where the sons of an Englishman from a Brahmin woman who lived a Hindu life and bore Hindu names were treated as Hindus. This was long ago. The Hindu society is now widening its fold. Therefore in the circumstances of this case we think that this woman Mangri for the purpose of being treated as a dasi should be held to be a Hindu. The two facts that Mangri was a Hindu and that her relations with Magan were of an exclusive, permanent and continuous nature establish the right of the defendants as dasiputras to the property left by Magan.

Before I conclude I wish to mention that a last point was raised by Mr. A.K. Ray which was not raised in any of the Courts below. It was that even if the defendants were entitled to succeed to the property of Magan their share could not amount to more than a half of the property left by him. His contention was that under the Hindu law on the death of Magan half of his property went to the widow and the other half to the defendants as dasiputras and on the death of the widow Mt. Suna her half went to the nephews, the mortgagors of the plaintiff. He asked us to consider this aspect of the case and to give him a decree for half, if we cannot give him a decree for the whole. The learned advocate for the respondents, Mr. Rai Guru Saran Prasad, has strenuously objected to our considering this question at this stage of the case. His contention is that this point involves further consideration of facts. If the plaintiff had based his title on the ground that half the property of Magan on the death of his widow went to the plaintiff''s mortgagors, the defendants could have shewn that according to the custom prevailing in that part of the country or according to the family custom this was not the case and even that half would under some circumstances devolve upon the dasiputras. We think that we will not be justified in allowing the appellant to raise this question at this stage of the case.

The result is that this appeal must be dismissed with costs.

Courtney-Terrell, C.J.

I entirely agree. I would only add one short observation upon the remark by the learned Subordinate Judge that there was no evidence of permanent and exclusive concubinage between Magan and Mangri. It is true that the authorities do lay down in no uncertain terms that the relationship between a Sudra and his dasi in order to give rights of succession to their offspring must be of a permanent and exclusive character. The object of this regulation is not of a nature peculiar to Hindu law, but exists in many other branches of law, namely, to make certain that the offspring are in fact the offspring of the father so nearly as the circumstances of life will allow such a hypothesis to be accepted. But provided that the relationship was such as to establish that inference I do not think that the requirement for permanence as laid down in the authorities means that the relationship must necessarily be throughout the life of the woman, who is the mother of the offspring, and in the course of the argument we put to the learned advocate the hypothesis that the relationship might have been permanent for say a period of twenty years and long after the birth of the children the relationship might have been ruptured. He could not assert the proposition that in such a case the presumption as to the paternity of the offspring would be prejudiced and I think he was right in refraining from this assertion. Provided that the relationship was permanent and intended to be permanent during the period covering the conception and birth of the children the relationship is permanent and exclusive for the purpose for which such permanence and exclusiveness is required, that is to say to prove the paternity of the children. In this particular case the evidence is, as was found by Adami, J., that the woman gave birth to two children, that she is still alive, that the children were treated by Magan as his children and that they have so continued in that capacity in the household of their father up to the present time. That to my mind is sufficient to establish the permanence of relationship to such an extent as to throw the onus of proof upon those who would assert that the relationship was not in fact permanent but merely casual in its nature. For the reasons given by my brother Noor I agree that this appeal should be dismissed with costs.