1. In this case one Baya Bhavin executed a mortgage dated April 15, 1916, of the property in suit in favour of the defendant Narayan and his deceased brother Lakshman for Rs. 900. On Baya's death in 1921 the plaintiff purchased the equity of redemption from her sister Saguna on May 18, 1922, and brought the present suit for redemption. One of the defences set up by the mortgagee was that as Baya Bhavin acquired the property by prostitution, her sister Saguna was not the heir, and the property must escheat to the Crown, and that the plaintiff as purchaser from Saguna was not entitled to redeem. Both the lower Courts held that Saguna was the heir of Baya and allowed the plaintiff to redeem.
2. It is argued by the learned pleader on behalf of the appellant mortgagee that Saguna is not the heir of Baya, who was a prostitute, on the ground that the sister according to the Vyavahara Mayukha could only inherit as a Gotraja Sapinda, and that Saguna was neither a Gotraja nor a Sapinda, that Sapinda relationship depended on marriage and uterine sister was unknown as an heir in Hindu law. Baya belonged to the community of Bhavins who, according to Ratnagiri Gazetteer, p. 126, practised prostitution and were dedicated to the temples like Murlis in the Deccan. The rights of daughters taking before sons in the case of inheritance to a dancing girl attached to pagodas were upheld in Madras. See Tara Munnee v. Motee Buneanee (1846) 7 S.D.A. 273; Kamakshi v. Nagarathnam (1870) 5 M.H.C.R. 161; Narasanna v. Gangu I.L.R. (1889) 13 Mad. 133 and Arunagiri Mudali v. Ranganayaki Ammal I.L.R. (1897) 21 Mad. 40 In the present case Baya belonged to a prostitute class and the question whether prostitution entailed degradation from caste and severed the tie which connected her to her kindred by blood does not arise. In this connection reference may be made to recent cases of Meenakshi v. Muniandi Panikkan I.L.R. (1914) 38 Mad. 1144; Hiralal Singha v. Tripura Charan Ray I.L.R. (1913) 40 Cal. 650F.B. and Narain Das v. Tirlok Tiwari I.L.R. (1906) 29 All. 4.
3. In the case of Myna Boyee v. Ootaram (1861) 8 M.I.A. 400 where an Englishman Mr. Hughes had two illegitimate children by a Brahmin woman who had deserted her husband, the Privy Council held that the illegitimate children were to be considered as Hindus and their rights were governed by Hindu law. At p. 424 their Lordships observed : 'To assume without evidence, on assertion simply, a capacity in the appellant and his uterine brother to inherit to their mother, and assuming that capacity of lineal inheritance to their mother, thence to derive collateral heirship, inter se, to property which never was their mother's would be at variance with legal principles,' and feeling difficulty in dealing with the case remitted the question to India for further investigation and consideration On remand the Madras High Court in Mayna Bai v. Uttaram (1864) 2 M.H.C.R. 196 held that the children were to be regarded as Sudras or a class still lower and that in the absence of preferable heirs, they inherited the property of their mother and of one another. At p. 208 the learned Judges observed :-
Our reasoning, therefore, is that there is no authority against the existence of heritable blood between the woman and her illegitimate offspring Taukuram and his brother are decided to be Hindus. They are the Hindu sons of a woman, who was either a woman of a class lower than the fourth of Manu's classes, and in this case the sons are cognate to her and to one another, as the children of a class not twice-born out of wedlock, and entitled to inherit to their mother, and only not capable of inherting to their father because he is not a Hindu at all. If not BO, she is a mere prostitute, and of the cognation between her and her offsprings there exists no doubt whatever.
4. In Sivasangu v. Minal I.L.R. (1888) Mad. 277 it was held that the sister succeeded to the estate of a married Maraver woman who deserted her husband and lived in adultery. This decision is directly against the contention of the appellant. In Subramania Ayyar v. Rathnavelu Chetty I.L.R. (1917) 41 Mad. 44 Kumaraswami Sastriyar J. held that the whole law of succession to dancing girls and prostitutes in cases not expressly provided for by rules relating to stridhan has been built up by Courts on analogies furnished by other parts of the Hindu law, and at p 73 referred to the decision in Subbaratna Mudali v. Balakrishnaswami Naidu : (1917)33MLJ207 , where the learned Judge observed (p. 209):-
The rules as so stridhan obviously do not apply to such property and there is no other rule of succession laid down in the Smrithi or by the commentators prescribing the devolution of the property of women of this caste, except it be the general rule 'that to the nearest Sapinda the inheritance next belongs'.
5. The question as to whether the Veshya, i.e. prostitute class, forms a fifth division of Hindus like the four divisions of Brahmins, Kshatriyas, Vaishyas and Sudras, or whether they are included in the Sudra division has been discussed in Ram Pergash Singh v. Mussammat Dahan Bibi I.L.R. (1923) Pat. 152, where it was held that the Veshyas, i.e. prostitute class are governed in matters of succession by the Mitakshara, and following the case of Advyapa v. Rudrava I.L.R. (1879) 4 Bom. 104, it was held that the Mitakshara did not bar the succession of an unchaste or immoral daughter. In Viswanatha Mudali v. Doraiswami Mudali I.L.R. (1925) Mad. 944 it was held that there was heritable blood between the sons of a dancing girl or a prostitute and that the legitimate descendants of two sons of a Hindu dancing woman are under the Hindu law entitled to succeed to each other. The authorities referred to above would support the claim of plaintiff in this case that there is heritable blood between Saguna and Baya and that Saguna as sister is the heir of Baya.
6. Apart from the reported decisions there are no express texts relating to succession of a prostitute. The only reference to Veshya or prostitute class in the Mitakshara appears in the commentary on Yajnavalkya's verse 290, Vyavahara Adhyaya, in the chapter of (sic) There, a reference is made to the Skandapurana, and it is stated: 'There are certain Apsarasas called Panchachuda; their progeny is known as the Veshya, and is regarded as a fifth caste.' The prostitute class may, therefore, be considered as a lower class than the Sudras. See Mitakshara, Gharpure's translation, pp. 409 and 410. The portion of the Skandapurana is translated at p. 409 in a foot note.
7. The order of succession to the estate of a deceased prostitute is not laid down in the texts. The sister is not expressly mentioned in the compact series of heirs in Sapratibandha Daya, i.e. obstructed heritage of a male, but her place in the order of succession is placed by Nilakantha in the Vyavahara Mayukha between the paternal grandmother and the paternal grandfather. See Vyavahara Mayukha, Ch. IV, Section VIII, p. 19; Stokes, p. 89; Gharpure's translation, p. 114 : 'In default of her (i.e. paternal grandmother) comes the sister for says Manu 'To her who is the nearest Sapinda the inheritance shall belong.' Brihaspati says 'Where there are many (claimants), viz., the Jnatis, the Sakulyas and also the Bandhavas, he who is the nearest among these shall take the wealth of the childless'. Being born in the brother's gotra she also is in no respect other than a gotraja. Indeed she has no Sagotrata but that has not been mentioned here as an operating cause for the right of inheritance.' It is argued on behalf of the appellant that a sister of a prostitute cannot be Gotraja Sapinda as there can be no gotra in the prostitute class. But there can be gotra only in the three Varnas. See Mitakshara, Achara Adhyaya, Yajnyavalkya, verse 53. The Brahmins have gotra; but in the case of Kshatriyas and Vaishyas they have not their own gotra, the gotra of their preceptor is to be considered their gotra. Therefore it follows that in the case of Sudras there is no gotra. But a sister would be the heir of a male Sudra and succeed as Gotraja Sapinda. In the case of Sudras the Gotra may be considered as synonymous with Kul, i.e. family. In any view of the case the sister is an heir of the Sapratibandha Daya of a male and would not come in, under the above text of the Vyavahara Mayukha, as heir of a female prostitute. There is also considerable force in the contention that the sister of a prostitute cannot come in as heir under the texts relating to heirs to the stridhan of a woman because in determining the succession of kinsmen in the absence of issue, regard is had to the form of marriage, and in the case of four forms of marriage as the Brahma and others, the succession goes to her husband and in his absence to one nearest to him in his family, and in the other forms of marriage to her father or in his absence to one nearest to her in his family. In the case of a female belonging to a prostitute class there is neither a husband nor a father. Similarly, it is difficult to apply the order of succession relating to the Sulka of a damsel (kanya) to the inheritance of a deceased Veshya or prostitute. In Tara v. Krishna I.L.R. (1907) 31 Bom. 495 9 Bom. L.R. 774 Sir Narayan Chandavarkar held that a Murli who lived by prostitution was entitled to her father's property only in default of either married or unmarried daughters on the ground that a woman, who in her maiden condition becomes a prostitute, Sadharana Stri, is neither a Kanya (unmarried) or Kulastri or Bharya (married woman). The succession therefore to the estate of a prostitute would be governed by analogies derived from Hindu law. The rule of Atidasha whereby principles laid down with reference to one case are applied to analogous cases was recognised by Jaimini in his Mimansa (Bks. 7 and 8 of Jaimini's Mimansa). See Subramania Ayyar v. Rathnavelu Chetty I.L.R. (1917) 41 Mad. 44. In considering, therefore, the right of a sister to succeed to a female prostitute, the texts relating to her right to succeed to the Sapratibandha Daya of a male may be considered as applicable by analogy, viz., the text of Manu, Oh. IX, verse 187: 'To the nearest Sapinda the inheritance shall belong,' and also the text of Brihaspati that 'the nearest Sakulya shall take the wealth of a childless person.' The question, therefore, is whether the sister of a female prostitute is her nearest Sapinda, Sapinda relationship is defined in the Mitakshara on verse 52 of Achara Adhyaya of Yajnavalkya Smriti. Mitakshara says that Sapinda relationship lies in the connection through the particles of the same body. After describing Sapinda relationship with the father and the paternal grandfather, the Mitakshara deals similarly with the sapinda relationship with the mother because of the connection with the particles of the mother's body, and lays down that wherever the term sapinda is found, connection with the particles of the same body directly or indirectly should be understood. See translation-Appendix A of Setlur's Collection of Hindu Law Books of Inheritance. While commenting on Yajnyavalkya's verse 117 (3rd quarter) Vyavahara Adhyaya and dealing with the right of a daughter to succeed to her mother the Mitakshara says that it is proper that the stridhan property goes to the daughter because the portions of the body of the female parent abound in the female children, and the father's estate goes to the sons as portions of the body of the father abound in the male children (Mitakshara, Ch. I. Section 3, pl. 9 and 10, Gharpure's translation, p. 189, Stokes' Hindu Law, p. 383). Again while discussing the right of priority of the mother over the father in the compact series the Mitakshara in commenting on Yajnavalkya's verse 136 gives first the grammatical reason that the word Mata comes first in the compound (sic) (mother and father) and proceeds to lay down that the father is the common parent to the other sons also, but the mother is not so, and since her propinquity, i.e. (sic) is consequently greatest, it is just that she should take the estate in the first instance according to the text 'to him who is the nearest among the sapinda the inheritance shall belong.' (Mitakshara Ch. II, Section 3, pl. 2 to 5, Gharpure's translation, pp. 249 and 250 and Stokes, pp. 441 to 443). If the analogies of Hindu law are applied to a prostitute mother, the daughters are the Sapindas of the mother as the particles of the mother's body abound in them, and they are sapindas of each other because they are connected with each other through one body of the mother. Saguna would, therefore, be the sapinda heir of Baya on the analogy of Hindu law.
8. In this connection reference may also be made to verse 191 of Manu, Chapter IX: 'Of two sons begotten of the same woman by two different men contending for the paternal estate let either of them take the property by his own (natural) father and no other.' It is contended that this text refers to one legitimate son and the other son born of remarriage. But in the commentary of Sarvadna-Narayan the other son is described as Golaka or Punarbhava and Golaka is not the son born of lawful wedlock. This text is discussed in Arunagiri Mudali v. Ranganayaki Ammal I.L.R. (1897) 21 Mad. 40. Reference may also be made to Nanda Pandita's Vaijayanti, commentary on Vishnu Smriti, where the order of precedence among brothers and sisters of the whole blood and of half blood is given as follows (1) brothers of the whole blood, (2) sisters of the whole blood,: (3) sons of the same father, (4) sons of the same mother. The son of the same mother and a different father is considered as an heir. See translation of the passage at foot note on p. 208 of Hindu Law of Partition, Tagore Law Lectures by Jolly, 1885 edition. The original text Is printed in appendix at p. 287 of Jolly's Tagore Law Lectures, It is contended by Mr. Kane that the words (sic) in the test show that the second son is one born in lawful wedlock, but the text affords some basis for the contention that there is heritable blood between sons of the same mother by different fathers. Reference may be made in this connection to the case of Ekoba, v. Kashiram (1921) 24 Bom. L.R. 229. Relying on the above two texts Devadoss J., in Viswanatha Mudali v. Doraiswami Mudali I.L.R. (1925) 48 Mad. 944, remarks (p. 954):-
The existence of heritable blood between sons of the same mother by different fathers cannot therefore bo through the father and is attributable only to their being sons of the same mother. It is not therefore necessary that in order to have heritable blood, inheritance should be traced through the father. It logically follows that the sons of a dancing woman or a prostitute have heritable blood between them.
9. Wallace J., at p. 960, after referring to the theory of sapinda relationship as propounded by the Mitakshara, held that there was no authority for the proposition that sapinda relationship cannot exist without a, father. In Dundappa, v. Bhimawa I.L.R. (1920) 45 Bom. 557 22 Bom. L.R. 1306, it was held by Macleod C.J., relying on Ghosh's Hindu Law, p. 763, that under the Hindu law the illegitimate daughter of a Sudra succeeds to her mother in absence of any nearest heir.
10. Lastly, before the Crown gets the property by escheat it must be shown that Baya died without any relations or any heirs at law: see Gridhari Lall Roy v. The Bengal Government (1868) 12 M.I.A. 448. See Vyavabara Mayukha, Ch. IV, Section 8, pl. 5 and 27; the Mitakshara, Ch. II, Section 7, pl. 6; Stokes' Hindu Law, pp. 85, 450. In Ganpat Rama v. Secretary of State for India I.L.R. (1920) 45 Bom. 1106, 23 Bom. L.R. 462 it was held following Kanakammal v. Ananthamathi Ammal I.L.R. (1912) Mad. 293, that blood relations would at any rate succeed to the exclusion of the Crown, The Madras ruling is based on the opinion of Dr. Banerjee and West and Buhler, p. 544. Saguna would be at least a blood relation of Baya and is entitled to succeed before the property goes to the Crown by escheat.
11. We think, therefore, that the appeal fails and should be dismissed with costs.