1. The question of Hindu law arising in this appeal is whether a concubine who was never married but was living as a permanently kept mistress of another can inherit the property of her sonless father either to the exclusion of or along with his married daughter. The main facts are not now in dispute. The property in dispute belonged to one Vithling Jangarni who died in 1896 leaving a widow Sakhu and two daughters Bayo and Kushi. On the death of Vithling his widow Sakhu succeeded to his property. She mortgaged it with possession to one Rangu. On Rangu's death his son Shivram assigned the mortgage to one Mahadev in 1911. The defendants are the sons of the said Mahadev. Sakhu died in 1932 and her married daughter Bayo-sold the equity of redemption in the mortgaged property to defendant No. 1 Bhiku in 1935. Sakhu's younger daughter Kushi was not married, but was living with one Vishnu Bapuji Pingle as his permanently kept mistress. She had a son by him by name Balkrishna. After her death Balkrishna sold her half share in the equity of redemption in the property in suit to the plaintiff Govind on December 18, 1936. Go-vind filed this suit against the defendants for a declaration that the sale-deed passed by Bayo to defendant No. 1 in 1935 was not binding on her sister's half share and for redemption and possession of that share after taking accounts under the provisions of the Dekkhan Agriculturists' Relief Act, 1879. He claimed that Bayo and Kushi had inherited their father's property after the death of their mother, that Balkrishna had succeeded to Sakhu's half share in the equity of redemption and that as he had transferred his right, title and interest to him, he was entitled to redeem the mortgage. Defendant No. 1 contended that Kushi was not the daughter of Sakhu, that she was a prostitute, that Balkrishna was her illegitimate son and that neither Kushi nor Balkrishna had any right to share in Vithling's property. He also urged that Govind was not an agriculturist and that, therefore, the suit in the present form was not maintainable. The trial Court held that Kushi was not proved to be the daughter of Vithling and Sakhu and that Balkrishna was not, proved to be her legitimate son. The suit was, therefore, dismissed with costs. In appeal the learned District Judge held that Kushi was the daughter of Vithling and Sakhu, but as she was not married and had been a concubine in the keeping of Vishnu Bapuji Pingle, she was not eligible to inherit her father's property either in preference to or along with her married sister Bayo. He also held that the plaintiff was not an agriculturist, and on both these grounds he dismissed the appeal.
2. To a Hindu dying without a son, his widow is his first heir and next to her are his daughters. According to the Mitakshara school of Hindu law, as between' daughters, the inheritance goes, first, to unmarried daughters, next, to daughters who are married and 'unprovided for,' that is indigent, and lastly, to daughters who are married and are ' enriched,' that is possessed of means. It has been held by this Court in Advapa v. Rudrava I.L.R. (1879) 4 Bom. 104 that incontinence is no bar to a daughter's inheritance to her father, and in Tara v. Krishna I.L.R. (1907) 31 Bom. 495 that where there is an unmarried daughter who is a prostitute and a married daughter who is chaste, the latter succeeds in preference to the former. Thus so far four classes of daughters have been recognised, and they succeed in the following order : (1) unmarried daughter, (2) indigent married daughter, (3) well-to-do married daughter, and (4) an unmarried daughter who bas become a prostitute. The first three classes are recognised by the Mitakshara and other ancient texts, and the fourth by judicial decisions. It is not now disputed that Kushi was a daughter of Vithling, and the question to be decided is to which of these classes she belonged.
3. The plaintiff claims only a moiety of Vithling's property ; and in the sale-deed passed to him by Balkrishna, it is stated that Kushi had inherited half of her father's property on the death of her mother Sakhu. It was thus assumed that she and her married sister Bayo were equal heirs to their father's property, indicating thereby that she did not claim the status of an unmarried daughter entitled to preference over her married sister. Mr. Desai, however, says that Kushi was never married, and was really entitled to inherit the whole of her father's property in preference to her married sister. Admittedly Kushi was a concubine or permanently kept mistress of Vishnu Bapuji Pingle, and gave birth to a son by him. But Mr. Desai points out that the Mitakshara divides daughters only into two classes married ( are and unmarried (sic ), and if Kushi did not belong to the first class, she must be deemed to have belonged to the second class. The rule that a married daughter is postponed to an unmarried daughter for succession to their father's property is given also by Parasara and Devala, and for 'unmarried' the former uses the word ' kumari' and the latter uses the word ' kanya. ' ' Kumari' means; a virgin, and ' kanya ' also is used in the same sense. Medhatithi, commenting on Manusmriti, Chapter IX, verse 132, says (sic)
(One who is enjoyed by a man is called ' akanya.;' contrarily, one who is not so enjoyed is a ' kanya ') : Mandlik's Manava Dharma Shastra, p. 1182.
4. In Tara v. Krishna Chandavarkar J. has pointed out that in the Mitakshara also the word ' anudha ' is used in the same sense as ' kanya. ' After referring to various texts, he says that the legal status of a woman may be (1) kanyavastha (condition of maidenhood) or (2) bhaiyatwa or kulastritwa (married state), or (3) vesyatujfl or sadharanastritwa (the status of a prostitute). He also1 points out that eligibility for marriage and dependence oni the father are the two principal conditions of what the Hindu law-givers designate kanyavastha (maidenhood). After an erudite examination and discussion of the Hindu law texts, he concludes (p. 509) :-
A woman, who, having never married, becomes a prostitute, is not an unmarried daughter of her father entitled as heir to the whole of his property to the exclusion of his married daughters.
5. That reasoning applies equally to a concubine. According to Medhatithi cited above, having been enjoyed by a man she is an 'akanya,' and not a ' kmtya.' In the words of Chandavarkaii J. in Tara v. Krishna (at p. 506), if according to Hindu lawgivers, one essential test of kanyavastha (maidenhood)1 is eligibility for marriage which gives the maiden the right to her father's estate in preference to a married daughter, that test obviously does not exist in the case of a concubine, because according to Shastras she is no longer fit to be given in marriage in conformity with prescribed rites. Nor is she any longer dependent on her father, as she has cast herself away from her parental control and guardianship. Kushi was not, therefore, entitled to be treated as an ' anudha ' or unmarried daughter for the purpose of succession to her father's estate.
6. Nor can it, be said that Kushi was a married woman, since a legal marriage is a pre-requisite of the status of married woman (bharya or kulastri). But Mr. Desai urges that she was an avaruddha stri (restricted to one man) and on a par with a married woman, and refers to the statement of her paramour Vishnu in his deed of gift (exhibit 56) that from the day he kept her as his mistress, her conduct towards him was ' just like that of a faithful wife in all respects.' Mr. Desai relies upon Vijnaneshwara's commentary in the Mitakshara on Yajnavalkya's verse 290 in Book II, Chapter XXIV, which prescribes a fine for sexual intercourse with protected (ava-ruddha) slaves of another and with kept mistresses (bhujishya). There he points out that an avaruddha or protected slave is one who is ' prohibited by the master from intercourse with other men with an injunction to stay at home with the object of avoiding any lapse of service, ' while a bhujishya (kept mistress) is one who ' is restricted in the matter of sexual intercourse to certain persons ' (Gharpure's Collections of Hindu Law Texts No. 2, p. 406). Thus a bhujishya may or may not be ' avaruddha. ' Vijnaneshwara says that although intercourse with them is permissible, one having connection with them will be fined fifty panas, since they are as good as others' wives as they have been patronised by' another. (sic)
7. Narada also says the same thing in Chapter XII, verse 79. The passage appears in Chapter XXIV of Yajnavalkya Smriti which deals with (sic) or adultery, and does not affect the rules of succession. It may be that the Shastras prohibit intercourse with an avaruddha or bhujishya woman (concubine) as she is in the exclusive keeping of another, but it would be preposterous to confer upon her the status of a kulastri or bharya (married woman) for the purpose of succession. Though kept by her paramour for a number of years continuously, he may discard her at any time and she cannot compel him to keep her or claim maintenance from him : Ramanarasu v. Buchamma I.L.R. (1899) Mad. 282. Nor has he any right to compel her to continue in his keeping if she wants to leave him. It is only if she remains, in his exclusive keeping till his death, that his estate, in the hands of those who take it, is liable after his death for her' maintenance, but she cannot claim any other right over his estate. This shows that for the purpose of succession her status is not that of a wife.
8. For the purpose of succession to the father's property, Vijnaneshwara has considered only two classes of daughters married ( 3S ) and unmarried(3S), and in Tara v. Krishna Chandavarkar J. has held that a prostitute does not belong to either of these two classes, but belongs to a third class (sadharana stri) not enumerated by Vijnaneshwara. As it is now held that she is not disqualified from inheritance, he held that she must be placed after the two enumerated classes in the order of succession. The same reasoning applies equally to a concubine (avarudhha or bhujishya). She has ceased to be a kanya (maiden) and cannot be classed as unmarried (anudha). She cannot be regarded as a married woman, as she is not legally married to any one. Her status may be superior to that of a prostitute (sadhafana sin), but she does not belong to one of the two classes enumerated by Vijnaneshwara. Mitra Misra says in Viramitrodaya (Chapter III, Part II, Section 6):-
The plural number in the term ' daughters ' (sic in Yajnavalkya's text) i' used for the purpose of showing that the shares of the daughters of the same class are equal, but the shares of the daughters of different classes are distinct agreeably to the order of their classes.' (Golapchandra Sarkar's edition, p. 183.)
Concubines and prostitutes who belong to distinct classes were not mentioned by the Hindu law-givers as they, being sinful (patit), were disqualified for succession. But since they are now recognised as heirs, they must be held to be ' intruders ' upon the list of heirs enumerated by the texts, and the maxim (sic) applies to them. When certain persons are specially invited, they are allotted definite places, and if some others come uninvited, they must be assigned places at the end, that is, after those that were specially invited, (M. M. Kane's Vyavahar-Mayukha, Notes, p. 248). Nilkantha employed this maxim in placing the paternal grandmother after the heirs mentioned in the compact series, in the order of succession. In Tara v. Krishna, though the question whether a married daughter excludes a daughter who is a prostitute did not directly arise, Chandavarkar J. expressed his opinion definitely in the following words (p. 510) :- '
An incontinent daughter, who has not married, being thus brought in among qualified heirs, can succeed to her father's property only in default of unmarried or married daughters of his, if, according to Hindu law, she does not come within the description of either of the latter two.
9. With respect I agree with, this view. An avaruddha stri (concubine) may have a higher status than a sadharana stiri (prostitute), but it is not necessary to express any opinion as to whether the former takes precedence over the latter in the order of succession, to their father. There is, however, no doubt that she comes in only after the married (kulastri) and the unmarried (kanya) daughters. Bayo was, therefore, the sole heir to her father's property to the exclusion of Kushi, and the plaintiff acquired no interest in the property in suit by purchasing it from Kushi's son.
10. In view of this finding it is not necessary to consider whether the suit in the present form is maintainable, since both the Courts have found that the plaintiff is not an agriculturist.
11. The appeal is dismissed, with costs.