Minakshi and Others vs Muniandi Panikkar and Others

Oldfield, J.—I have had the advantage of reading the judgment which my learned brother is about to deliver, and concur in it. I shall

therefore merely state shortly the negative reasons, for which I think that the appellant''s legal argument must be rejected.

The case, it seems to me, must be decided on the broad ground that it is for the appellants to show that the illegitimate daughter of a woman,

who lived in adultery, inherits her stridhanam, over which she had full power, in preference to her legitimate son : and that they have neither

produced any direct precedent for such succession nor established any principle justifying it. As it is not alleged that direct precedent is available, I

turn at once to the principles put forward.

Firstly, the appellants contend for the application of the law of succession applicable to dancing girls to the offspring of a prostitute, such as they

allege the 1st appellant''s mother to have been. It is not necessary to decide whether she was one, as the appellants, contend; with reference to

Annoyyar v. Chinnan ILR (1907) M. 366 and the fact that her immoral life began after her marriage, or was a permanent concubine as the facts

suggest. For the argument must fail, even as put forward. On the assumption that she was a prostitute, there is no authority in Madras for applying

to her estate the law, which has been recognised as applicable to dancing girls solely in virtue of the established custom of their caste. Vide Venku

v. Mahalinga ILR (1888) M. 393 and Muthu kannu v. Paramasami ILR (1889) M. 214. And I observe here, as in connection with the appellant''s

other contentions, that there is no reason for a liberal construction, the effect of which would be to disappoint expectations founded on legitimacy.

It was then contended that references to daughters in the Mitakshara should be read as including all daughters, both legitimate and illegitimate, and

that all alike should be preferred to the legitimate son, as heirs to their mother. But, firstly, that is not the primary sense of those references and is

unauthorised by the rules of interpretation recognised by both English and Hindu Law. Vide Bhimacharya v. Ramacharya ILR (1889) M. 214.

And next it has not been shown how such a substitution can be carried out or logically limited. Should it, for instance, be extended to the law

relating to the daughter''s right to inherit from the father in spite of the absence of any special provision in her favor,. such as is available in the case

of illegitimate sons ?

Next, there is the argument based on the alleged severance of the 1st appellant''s mother from her legitimate family owing to her unchastity and

consequent degradation. VII Sud. Diw. Ad. 273 It is based first; on an opinion of the Pandits in Tara Munne Dosse v. Motqe Burnanee and Anr.

VII Sud. Diw. Ad. 273, that the heirs of an unchaste and, outcaste woman are her daughters, born (as the report in the next case cited shews) in

prostitution, who lived with her as prostitutes; not the sons of her daughter who had married, and lived respectably. The principle of severance is

statedly relied on and no doubt justified the decision against the legitimate family, but it may, be pointed out that it involved nothing affirmative in

favour of the prostitute daughters, defendants and that it was not necessary that it should do so, when the disqualification of. their opponents was

sufficient for the decision of the case. Mayna Bai v. Uttaram (1864) 2 M.H.C.R. 196 dealt with competition between illegitimate children only, but

contains an obiter dictum that in Madras it has never been doubted that the children of the prostitutes succeed to the property of their mother."" The

law, however, as it now stands in this Presidency must be taken to have been stated finally in the much more recent case of Subbaya Pillai v.

Ramasami Pillai ILR (1899) M 171. It no doubt does not appear that there was competition there between legitimate and illegitimate issue, for the

report affords no description of the defendants. But the decision is against any severance of the degraded wife from her undegraded relatives and

includes an expression of dissent from Siva Sengu v. Minal ILR (1888) M. 277 in which Taramonee''s case 8 Sud. Diw. Ad. 273 was relied on.

The actual decision in Narumayya Ghetti v. Thiruvengadathan Ghetti (1912) 24 M.L.J. 223 is in accordance with this view, there being nothing in

its reference to thfe rights of illegitimate children inconsistent with their postponement to all legitimate heirs.

Lastly evidence has been placed on the observation in Subbaraya Pillai v. Ramasami Pillai ILR (1899) M 171 that in applying so much of the

Hindu Law as can without incongruity be applied either with reference to those connected with the degraded person after his degradation or in

their absence, to those remaining undegraded, the Courts would, at all events be administering those rules as rules of equity and good conscience,

which are the guides in cases not otherwise provided for."" This seems to have been entirely obiter. For, as stated, it does not appear that any party

to the case was connected with the degraded person after her degradation. And I therefore feel at liberty to express my respectful dissent from it.

For, firstly in the absence of any but an expressly limited recognition of the rights of illegitimate children in Hindu Law, it is not, I conceive possible

to apply its rules generally in their interest without incongruity; and next I cannot understand how the Court would be following any rule of equity or

good conscience in doing so or would be promoting any other result than the mitigation of the disabilities, which at present in some degree at least

deter people from the formation of illicit relations.

The appeaf is dimissed with costs.

Seshaghiri Aiyar, J.

The suit relates to the property of one Mukkayi. First plaintiff is her daughter, by 2nd plaintiff; 2nd plaintiff is her paramour. 1st defendant is her

son by her deceased husband Vairava Panikkhan. A feeble attempt was made to contest the finding that she was not the married wife of the 2nd

plaintiff. It was argued that the Courts below have not given sufficient weight to the presumption arising from continuous cohabitation for a long

time. This contention is untenable. The Courts have come to a distinct finding upon the evidence on record. The finding that Mukkayi was only a

concubine of the 2nd plaintiff and that 1st plaintiff was her illegitimate daughter is correct.

It has not been disputed that the property in question represents the savings of Mukkayi after she began to live with the 2nd plaintiff. The point

for decision is whether 1st plaintiff, the illegitimate daughter or 1st defendant, or the legitimate son, should succeed to this property. Mr. P.R.

Ganapathi Aiyar, who argued the case for the legitimate son very ably contended that the ancient lawgivers did not contemplate rights of

succession or inheritance in favor of illegitimate children excepting in a special instance to which J shall refer subsequently. I agree with him. It is

true that in Brihat Parasara, chapter V, the sage says: ""The son, begotten by one of equal caste (the illegitimate son) is the offerer of Pinda of his

mother and is (in every respect) a son to her; but he is nothing to the begetter, as he is born of lust.

The son by a slave of a Sudra is fulfiller of desire and offers the Pinda. Twelve sons are mentioned by the Rishis. They are offerers of the Pinda,

one after another in the order mentioned."" From this Mr. Ghose draws the inference ""that according to the rule of Brihat Parasara, chapter V,

illegitimate as well as legitimate children inherit the estate of a woman, and if it is stridhana there is no reason to suppose that the ordinary rules of

Hindu Law will not apply."" (J.C. Ghose''s ""Principles of Hindu Law"", p. 343). I do not think that this conclusion follows from the citation. It is well

established that under the Mitakshara system of inheritance the offering of spiritual benefits is no index to rights of property or to preference. It is

different under the Dayabagha. This may account for some of the decisions passed by the Calcutta High Court to which I shall refer later on. I am

therefore of opinion that this text of Brihat Parasara is not indicative of the sage''s view that illegitimate children inherit the property of their mother.

The learned vakil for the appellant drew our attention to a text from Narada Smriti in which a Kanina''s son was mentioned as entitled to

succession. The passage in question enumerates the twelve classes of sons to which reference is made by every smriti writer. After the dictum of

the Privy Council in Thakoor Jhbnath Singh v. The Court of Wards (1875) 2 I.A. 163, which says that these texts are no longer regarded as

binding authorities except in the case of adopted sons, it would be fruitless to discuss the matter further. I entirely agree with what Mr. Ghose says

in his book on the subject."" It appears that at the time of the Rig Veda, probably even before that (twelve kinds) of sons were recognised, but the

Rig Veda says that they ""cannot be accepted."" ""It is at least fully three thousand years when all theseanamolous sons were prohibited and the

extreme purity of Hindu family life established."" The one apparent exception to this position is the rule regulating the rights of illegitimate children

among Sudras. This deviation from the ordinary rule is traceable more to the theory of marriage among Sudras entertained by the Rishis than to a

desire to introduce a special law regarding illegitimate children. According to Manu it was permissible for the twice born classes to take Sudra

wives. The ""Nishada"" as the offspring of this union was called, had certain rights of inheritance. Brihaspathi''s text says that such children were only

entitled to maintenance. Finally at the time of most of the Smrithis now recognised as giving the law, they were not recognised as possessing any

legal status. But in the case of Sudras, an exception was made. J am of opinion that this treatment was due to the idea that marriage among them

was not so strictly formal and ceremonial as in the case of the higher classes. Continuous concubinage was regarded as equivalent to marriage

although the children of this irregular union did not rank equally with those with whose mother there was a formal marriage. The use of the term

Dasiputra even in the case of Sudras is explicable on the ground that it is a relic of the days when the twice-born classes were allowed to take to

them Sudra women as wives. This I conceive, is the origin of the rule regarding the shares of illegitimate children among Sudras. It is open to

question whether having regard to the advancement of the class known as Sudras the law which owes its conception to these ideas should still, be

allowed to prevail. The point has never been raised whether they are not obsolete and the texts have been commented upon by the highest Judicial

tribunal as still in force. Whatever may have been the basis of the rule, it cannot apply to the present case, I have referred to this part of the case in

some detail in order to show that illegitimate children of the class to which 1st plaintiff belongs are not within the pale of Hindu Law.

The main contentions of the appellant were two-fold: (a) That the Hindu Law did hot cease to govern Mukkayi''s property notwithstanding her

unchastity and (b) that the special rules relating to the devolution of stridhanam applied to the property in dispute, and consequently the daughter

ought to be performed to the son. The first ground is not contested by Mr. Ganapathi Aiyar. He argued that the unchastity of Mukkayi did not

sever her relation with her legitimate child. He relied upon the analogy of the case in Bagwan Koer v. J.C. Bose ILR (1901) C. 11 where the

Judicial Committee of the Privy Council held in the case of a Sikh that strict conformity to rules of orthodoxy regarding diet and the ceremonials

also is not a pie-requisite for a person being regarded a Hindu. The same'' principle has been enunciated regarding Brahmos; Vide Kusum Kumari

Roy v. Satya Ranjan Das ILR (1903) C. 999. Apart from analogy we have a recent pronouncement of the Calcutta High Court in Hiralal Singh v.

Tripura Charan Boy ILR (1918) C. 650 that a woman who adopts the life of a prostitute does not sever the tie which connects her with her

kindred by blood. See also Swarna Moyee Bewa v. Secretary of State for India in Council ILR (1897) C. 254 and Narumayya Ghetti v.

Thiruvengadathan Chetty (1912) 24 M.L.J. 223. This is the natural result of the earlier cases in this Presidency which have laid down that a fallen

mother is entitled to inherit her son''s property. (See Kojiyady, v. Lakshmi ILR (1882) M. 149, Angammal v. Venkata Reddi ILR (1882) M. 149

and Vedammal v. Vedanayaga Moodelliar ILR (1882) M. 149. It must therefore be taken as established that Mukkayee''s property will devolve

according to the rules of Hindu Law.

The second proposition that the 1st plaintiff being the daughter should be preferred to the 1st defendant the son, cannot be supported. In the

Mitakshara, Chap. I, sections I and II dealing with inheritance, the words, son, grandson, and great grandson are used in their natural sense. In

section XI of the same chapter, Placitum 2, the definition of a legitimate son is given. Then comes the special Section 12 dealing with the rights of

illegitimate sons of Sudras. Placitum 2 speaks of the sons by the wedded wife and of the son of a female slave. It is thus cleair that the author

everywhere uses the term son in its natural and ordinary sense of legitimate son. The word daughters must be similarly understood. It is in chapter

II, Section 11 that Vignaneswara treats of the separate property of a woman."" In this section, the words son and daughter must have the same

meaning as they have in the earlier sections. That would be the ru*e of interpretation according to English Law (see per Lord Den-man in the

Queen v. The poor Law Commissioners for England and Wales in the matter of Holborn Union ILR (1908) C. 661 and In re Kriskull Brewery

Company Limited and Reduced (1877) 5 Ch. D. 535. There is no difference in this respect between the English Law and the Hindu Law. The rule

of interpretation is thus stated in adhikarana Kaumudi para 50 (Mirnamsa rules of Interpretation p. 276) ""Multiplicity of sense to the same word

must not be attributed."" (sic) if the words son and daughter are used in chapter II, Section XI, placita 8, 9 and 19 in their ordinary and natural

sense, it is clear that there is no foundation for the suggestion that an illegitimate daughter is within those rules. Illegitimate children have no place in

Hindu Law at least under the Mitakshara system except in the special case already referred to.

Another contention of the appellant was that a prostitute is a dancing girl as that term is understood in Southern India and that as daughters

among this class inherit their mother''s property, 1st plaintiff is entitled to the same rights. It has been laid down in a series of decisions by the late

Justice Sir T. Muthu-sami Aiyar that rights of inheritance among those women are not governed by the precepts of the sages but by the custom

which has grown among them. See Venku v. Mahalinga ILR (1888) M. 393 and Muthukannu v. Paramasami ILR (1889) M. 214.

It has been held in a recent case Guddati Reddi Obala Vs. Ganapati Kandanna, that a married woman taking to bad ways does not become a

dancing girl. I do not desire it to be understood that I am in agreement with all the observations of one of the learned Judges who took part in that

decision. There is a fundamental difference between rulings which lead to the encouragement of prostitution and those which tend to preserve civil

rights to those who are the unfortunate offspring of immoral sexual connection. A custom is not immoral because it regulates rights of property

among dancing girls. I need not pursue this topic any further. I am in agreement with the view taken in that case that the unchastity of a married

woman will not bring her within the class of dancing girls so as to enable her to exercise all the rights which by custom and precedent have been

allowed to them. This contention also fails.

A further argument was based upon an obiter dictum in Subbraya Pillai v. Bamaswami Pillai ILR (1899) M. 171 which says: "" No doubt in

Sivasangu v. Minal ILR (1889) M. 277, Narasanna v. Gangu ILR (1889) M. 133 and in the goods of Kaminee Money Bewah ILR (1894) C.

697 which is more to the point it was said that prostitution severed the legal relation. But we are unable to agree in this statement, though we think

that the decision itself, that when there is a competition between a degraded person and an undegraded person to the property of a degraded

person, the degraded person has the preferential right, may be supported on equitable principles, referred to above."" As regards the proposition

that on equitable principles, the illegitimate offspring should be preferred to the legitimate, I must with great deference differ from the conclusion. I

do not see that any consideration of equity can arise in favour of the illegitimate offspring as against the legitimate. If one were entitled to resort to

other systems of Jurisprudence regarding the rights of bastards, it would be clear that they have no legal claim upon the estate of their parents. ""The

Hindu Law contains no exception to this principle : and I fail to see how a right which is discountenanced by every civilized community can be

regarded as being in consonance with Equity, Justice and Good conscience. I have come to the conclusion that the claims of the appellant to be

preferred to the 1st Respondent is not sustainable on any of the grounds stated by her vakil. I shall now, very briefly refer to the cases, cited before

us. In many of those cases there was no argument whether illegitimate children are heirs under the Hindu Law. This is notably so with regard to

S.A. No. 181 of 1911 to which I was a party. There the conflict was between two illegitimate children _a son and a daughter and we held that the

daughter was to be preferred as the dispute related to Stridhanam property: The question whether illegitimate children can come in to intercept the

escheat to the Crown is a point of some difficulty which it is not necessary to go into at present.

The earliest case to which our attention has been drawn is that reported in Tara Munnee Dossee v. Motee Buneanee and Anr. 7 Sud Diw. Ad.

Rep. 273. In that case the opinion of the Pandits was that prostitution severed the tie of kinship; acting upon this Vyavasta, the Sudder Court held

that the daughters who were born after the mother''s fallen state and ""who lived with the out-caste mother and had all things in common with her

should be preferred to the legitimate daughter. This opinion of the Pandits is no longer law and a decision based upon such an opinion cannot be

regarded as an authority. In the case reported in Myna Bai v. Uttaram (1864) 2 M.H.C.R. 19, there was no competition Between legitimate and

illegitimate children. Both the contending parties were illegitimate. The learned Judges accepted the dictum of the pandits in Taramanee''s case Sud.

Diw. Ad. Ref. 273, as good law and decided that in the absence of preferential heirs they inherited the mother''s property and to one another. This

decision does not affect the present case. It may, however, be pointed out that the opinion of the Judicial Committee in this very case Myna Bai v.

Uttaram (1861) 8 M. I.A. 400, is more qualified regarding rights of succession to the mother''s property than the conclusion of the learned Judges

of the High Court. Subbaraya Pilla v. Ramasami Pillai ILR (1899) M. 171 expressly laid down that prostitution did not sever the pre-existing legal

relation, and dissenting from the dicta contained in the earlier cases decided that a stepson was entitled to succeed. In Annayyan v. Ghinnan ILR

(1909) M. 366 the learned Judges held that an illegitimate son by a Sudra widow whose remarriage is forbidden had no right of inheritance. This is

a distinct pronouncement in favour of the position that Hindu law does not recognise the rights of illegitimate offspring to succeed to their parents''

property. Much reliance was placed on the recent case in Narumayya Chetti v. Tiruvengadathan Chetti (1912) 21 M.L.J. 223 on behalf of the

appellnat. The actual decision in that case was that the daughter of the daughter of a prostitute born to her in wedlock is to be preferred to the sons

she begot after she became a prostitute. That opinion is in entire accordance with the conclusion at which I have arrived in this case. The statement

that the illegitimate sons are entitled to succeed to their mother may be reconcilable on the ground that in the absence of preferential heirs and if the

Crown does not intervene, they would succeed as blood relations. As I said before, the actual decision supports my view. In Bhikya v. Babu ILR

(1908) B. 528 it was held that in regard to ordinary property the divided brother''s son excluded the illegitimate daughter. I fully agree with the

opinion of Chandravarkar J. in Jagannath Raghu Nath v. Narayan ILR (1910) B. 553 "" that there is no authority whatever in the Hindu Law for the

proposition, which is contended for by Mr. Pradhan that, when the competition is between the husband and a son born of the woman by

adulterous intercourse, that the son supersedes the husband as heir to the stridhanam."" A full Bench of the Calcutta High Court reviewed all the

earlier authorities on the subject in Hiralal Singha v. Tripuracharan Bay ILR (1918) C. 650 and arrived at the conclusion that prostitution did not

sever the tie of blood previously existing. It is true there are cases in the High Court which seem to lay down that illegitimate children have rights of

inheritance. This view may be traced to the prevailing theory in Bengal that the offering of oblations has to be taken into account in determining

heirship. This principle does not affect those governed by Mitakshara, and consequently these rules are not binding on us.

Upon a review of the texts bearing on the question and of the decisions based on them my conclusion is that illegitimate children of a prostitute

have no rights of inheritance under the Hindu Law as obtains in this Presidency, that the 1st Defendant is entitled to the property of Mukkayi and

that 1st plaintiff''s claim must fail.

I would dismiss the second appeal with costs.