Indian Kanoon - Search engine for Indian Law

1. The plaintiff in this suit, as the illegitimate son by a dancing woman of the late Ramasawmi Chettiar, a Nattukottai Chetty, seeks to recover a one-third share of the joint family properties, as against the legitimate son, the 1st defendant, who would otherwise take the whole by survivorship. The Subordinate Judge found that the paternity of the plaintiff was not proved and dismissed the suit. We are unable to agree with this conclusion.

2. The deceased, as found by the Subordinate Judge, appears to have become acquainted with the plaintiff's mother in 1900, when she had for some years been carrying on the profession of a dancing girl and a prostitute. He set her up in a house at Srirangam, near Trichinopoly, where he carried on business, and lived with her there for some years. Shortly before the plaintiff's birth, early in 1903, he was imprisoned for fraud, and the correspondence shows that he regarded the child about to be born as his and that subsequently he recognised it as such. The correspondence also shows that his legitimate son, the 1st defendant, used to live in the house with his approval. In 1905, when the plaintiff was a little over two years old, the deceased refused any longer to maintain him and his mother, who petitioned the Assistant 1st Class Magistrate on his behalf for maintenance in Exhibit III. The order of the Assistant 1st Class Magistrate, which was rejected by the Subordinate Judge, but admitted by us as evidence of the conduct of the deceased with reference to this claim, shows he made no serious attempt to contest the petition, or show grounds for doubting his paternity, and in these circumstances very little weight attaches to the fresh evidence as to the conduct of the plaintiff's mother prior to his birth, which has now been put forward for the first time. Further, that evidence in itself is of a very worthless kind, and is more than counterbalanced by the letters of the deceased, which show that he was at one time much attached to the plaintiff and recognised him as his son. The question then arises whether the plaintiff, as the son of the deceased by a woman of the position and antecedents of his mother, is entitled to claim a share of the joint family property as the illegitimate son of the deceased. It must now be taken as settled that the illegitimate children of the higher castes are not entitled to inherit Bhaiya Sher Bahadur v. Bhaiya Ganga Bakhsh Singh 22 Ind. Cas. 293 : 41 I.A. 1 : 18 C.W.N. 401 : 12 A.L.J. 188 : 36 A. 101 : 16 Bom. L.R. 306 : 17 O.C. 68 : (1914) M.W.N. 184 : 15 M.L.T. 169 : 26 M.L.J. 291 : 19 C.L.J. 277 : 1 O.L.J. 109 but it is otherwise with Sudras. All the Courts recognise that the son of a Sudra by a dasi is entitled to inherit. Manu (IX, 179) and Yajnavalkya (II, 133) mention not only a dasi but also the wife of a dasa or slave, and the Dayabhaga adds "or other unmarried woman" which, as pointed out in Padala Krishna Rao v. Padala Kumarajamma 15 Ind. Cas. 340 may merely mean "not married to the father of the child." As pointed out in Krishnayyan v. Muttusami 7 M. 407 at pp. 411. 412 the words "or other unmarried woman" do not occur in the Mitakshara or other commentators of the South. The Mitakshara merely speaks of a son begotten by a Sudra on a dasi. In a recent case in Chatturbhuj Patnaik v. Krishna Chandra Patnaik 17 Ind. Cas. 276 : 17 C.W.N. 442 : 16 C.L.J. 335 Mookerjee and Beachcroft, JJ., have given good reasons for doubting the correctness of the Calcutta decision that under the Dayabhaga this must be read as meaning a woman in the position of a slave," and have refused to follow these decisions in a case arising under the Mitakshara, agreeing in this with our own and the other High Courts. In this Court it is also well settled that the son must be born of a continuous concubine, and also that he must not be the issue of a connection that is incestuous or adulterous Krishtamma v. Papa 4 M.H.C.R. 234 though the latter condition is said to be disregarded in Bombay Rahi v. Govinda valad Teja 1 B. 97. The question then is, are there any further restrictions? In Krishnayyan v. Muttusami 7 M. 407 at pp. 411, 412 it is said that the reason of the rule is that the dasi's son succeeded not as a slave, but as the son of one who was in the position of a substitute for a wife though not legally married. It is not clear that this meant more than that she must have been a continuous concubine, but it is now suggested, very largely on the authority of this passage, that she must have been qualified to marry the father. I do not think the learned Judges who decided Krishnayyan v. Muttusami 7 M. 407 at pp. 411, 412 intended to lay down any such rule, as one of them, Muthusawmi Aiyar, J., in a subsequent case, Brindavana v. Radhamani 12 M. 72 at p. 86., expressly reserved the question whether a dancing girl could not give up her profession and be the mother of illegitimate children within the meaning of the Mitakshara Law. In Karuppannan Chetti v. Bulokam Chetti 23 M. 16, to which Subrahmania Aiyar, J., was a party, it was held that the sons of a woman continuously kept by the father as a concubine whose connection was neither adulterous nor incestuous were in this Presidency entitled to inherit, but in Annayyan v. Chinnan 5 Ind. Cas. 84 : 33 M. 366 : 7 M.L.T. 140 : 20 M.L.J. 355, White, C.J., and Benson, J., held that the son of a child widow, who had lived with the father as his concubine, could not inherit. This ruling appears to have been based on the finding that re-marriage of widows was forbidden among Sudras of the class to which the father belonged, and that the father and mother had been out-casted by their community in consequence of their living together. In these circumstances the connection was treated as one in violation of or forbidden by the father's customary law. In Sundaram v. Meenakshi Achi 16 Ind. Cas. 787 it was held by Sankaran Nair and Ayling, JJ., that the son of a dancing girl who had formed her first connection with the father and lived with him ever since, was not entitled to inherit apparently on the ground that she had not severed her connection with the temple and so could not fulfil the duties of a wife, relying on the passage in Krishnayyan v. Muttusami 7 M. 407 at pp. 411, 412, which I have already mentioned. In Meenakshi v. Muniandi Panikkan 25 Ind. Cas. 957 : 1 L.W. 704 : 27 M.L.J. 353 at p. 360 : (1914) M.W.N. 672 : 16 M.L.T. 270 : 38 M. 1144 where, however, the point did not arise for decision, my learned brother expressed the view that illegitimate children of Sudras were allowed to inherit because among them continuous concubinage was equivalent to marriage and in the judgment in the present case which I have had the advantage of reading, he has come to the conclusion that the plaintiff is not entitled to succeed because his mother in his opinion was not qualified to marry the plaintiff's father. The question is one of considerable importance and, as the authorities are not uniform, I think it would be better before deciding it to refer to a Full Bench the question whether in the circumstances set out above the plaintiff is entitled to share in the joint family property.

5. Before dealing with the question of law which arises in the case, I should like to point out that I see no reason to disbelieve the evidence which has been adduced to the effect that when this woman became the concubine of Ramasawmi, she was not a virgin. She was then, according to one account, 23 years of age, and according to another, 27 years. It was admitted that she was a native of Ariyalur and that she was dedicated as a dasi in a temple there. Women of this class soon fall into evil ways. Mr. Aiya Aiyar did not seriously argue that she had not known others before she became Ramasawmi's concubine. The evidence and the probabilities are against it. My conclusion is that she had been in the keeping of others before she came to Ramasawmi Chetty.

6. The point for decision is whether to a child born to a woman of the class and of the antecedents I have mentioned, the text of Yanjavalkya contained in the Mitakshara, Chapter 1, Section 12, applies. The sage says: "Even a son begotten by a Sudra on a female slave may take a share by the father's choice." (Stokes' Hindu Law Books, page 426.) Manu states the law in a slightly different way (Chapter IX, Section 179). The view of the Calcutta High Court in Narain Dhara v. Rakhal Gain 1 C.J. 23 W.R. 334 that the term dasi in Yajnavalkya's text means only a female slave has not been accepted in Madras. See Krishnayyan v. Muttusami 7 M. 407 at pp. 411, 412 and Brindavana v. Radhamani 12 M. 72 at p. 86. On the other hand, the interpretation of the text by Jimutavahana that the concubine should be unmarried has been regarded as correctly expressing the meaning of the sage. A further limitation that the kept woman must have been a continuous concubine has been insisted upon. Datti Parisi Nayudu v. Datti Bangaru Nayudu 4 M.H.C.H. 204; Kuppa v. Singaravelu 8 M. 325; Karuppannan Chetti v. Bulokam Chetti 23 M. 16; Rahi v. Govinda valad Teja. 1 B. 97 and Dalip v. Ganpat 8 A. 387 : A.W.N. (1886) 136. The object of these restrictions has been to confine the special rule of inheritance within strict limits, in order that no encouragement beyond what is absolutely within the letter of the law may be afforded. Therefore, to enable an illegitimate son to lay claim to a share in his father's property, his mother must be a Sudra, must have been unmarried and must have been kept by the putative father as a continuous concubine. The question is, whether the plaintiff's next friend satisfies all these requirements. I have come to the conclusion that in two essential particulars she is outside this rule of law.

10. The second point which is equally fatal to the claim of the plaintiff for a share of the inheritance is that his mother was not an unmarried woman. It is true that she has not gone through a form of marriage with any particular individual. But as pointed out by Mr. Justice Sankaran Nair in Appeal No. 56 of 1908, the fact of her having been dedicated to service in a temple renders her unfit for married state. Whether we accept the theory that a woman dedicated in a temple is married to the deity or not, there can be no question that the object of the farce that is gone through is to ensure that her services shall be at the disposal of the temple authorities whenever required. As Sir T. Muthuswami Aiyar points out in Krishnayyan v. Muttusami 7 M. 407 at pp. 411, 412, in order that the illegitimate offspring may claim a share, she must be "a substitute for a wife." Mr. Justice Sankaran Nair expresses the same opinion in the case I have already referred to. In a recent case in which I had to consider the rights of illegitimate children to inherit their mother's stridhanam, I expressed an opinion that the provision in the Mitakshara for illegitimate offspring contemplates that the continuous cohabitation must be equivalent to marriage. See Meenakshi v. Muniandi Panikkan 25 Ind. Cas. 957 : 1 L.W. 704 : 27 M.L.J. 353 at p. 360 : (1914) M.W.N. 672 : 16 M.L.T. 270 : 38 M. 1144. I was not then aware of the pronouncement to the same effect by Sir T. Muthuswamy Aiyar and Sir C. Sankaran Nair. Mr. Justice Chandavarkar in Tara v. Krishna 31 B. 495 at p. 407 : 9 Bom. L.R. 774 had to consider whether a prostitute who leads a life of promiscuous intercourse can be said to be an unmarried woman. The learned Judge came to the conclusion that ouch a woman was neither a (kanya) (maiden), nor a (kulastri) (married woman). I entirely agree with this conclusion. In Mitakshara, Chapter I, Section 12, placitum 3, the author says that the illegitimate son of the three higher castes are not entitled to inheritance. See also Chuoturya Run Murdun Syn v. Sahub Purhulad Syn 7 M.I.A. 18 : 4 W.R. 132 (P.C.) : 1 Suth. P.C.J. 313 : 1 Sar. P.C.J. 591 : 10 E.R. 217 and Roshan Singh v. Balwant Singh 27 I.A. 51 : 22 A. 191 : 4 C.W.N. 353 : 2 Bom. L.R. 529 : 7 Sar. P.C.J. 642. It has further been held that even in the case of Sudras, if the connection is adulterous or incestuous, the son of such a union cannot claim a share in the father's property Muttusamy Jagavira Yeltapa Naikar v. Venkatasubha Yettia 2 M.H.C.R. 293; Krishtamma v. Papa 4 M.H.C.R. 234 and The Vencatachella Chetty v. Parvatham 8 M.H.C.R. 134. The reason of these exclusions is that the woman with whom such intercourse is maintained cannot be a "substitute for a wife." Therefore, unless the woman who is kept as a concubine could have been legally married by the paramour, the son will not be entitled to a share, and a dancing girl, being outside the varnas, is not eligible for marriage to persons within the varnas. I. am aware that it is open to persons belonging to the dancing girls' caste to become married women. It is of constant occurrence in Southern India; but that is only among their own people. If she is once dedicated to a temple, she cannot be married even among her castemen. As Mr. Justice Sankaran Nair points out in Appeal No. 58 of 1908, a woman thus dedicated puts herself under the power of the temple authorities and is no longer a free agent; and she becomes a * * (sadharanastri) in the language of Vijnaneswara. Moreover, it would be preposterous to speak of such a woman as a kanya or an unmarried woman. In the present case, as I pointed out already, this woman had known other men before she became the concubine of Ramasawmi. She was not a kanya at the time. I am clearly of opinion that the term "unmarried" cannot apply to a woman of such antecedents. It is necessary that the exceptional rule stated in the Mitakshara should be applied with great care and caution. The rule, tinder no circumstances, should be extended beyond what the letter of the text warrants. The interests of public morality and the changes which time has brought about have to be taken into account in applying the texts of Hindu Law. It is on that account that certain texts have been regarded as obsolete. Fortunately in this case the law as explained by Vijnaneswara and the conditions of the times both favour the non-applicability of Yajnavalkya's text to the class of women known as dancing girls. I have assumed throughout that Ramasawmi was a Sudra, as it was not contended before as that a Nattukottai' Chetty did not belong to that caste.