1. The facts of this case are that the suit property originally belonged to one Vitha. She had acquired the property while she was in the keeping of one Khandu during the lifetime of her husband whom she had left. While living in this condition she had a son named Ganu born to her and two daughters. One of the daughters is dead, and plaintiff No. 1 in this case is the other daughter. On the death of Vitha, Ganu took possession of her property and continued to be in possession of the same until death. After his death, Chandra, his widow, took possession of the property. While Ganu's widow was in possession of the property, the present plaintiff No. 1 passed a sale-deed of the property to one Vithu Todkar, who filed a suit in 1914 (Suit No. 577 of 1914) against Ganu's widow and some other persons for recovery of possession of the property. Vithu Todkar failed in the litigation. It was held that his vendor Matha was an off spring of adulterous intercourse and could not be said to be the daughter of Vitha in the legal sense of the term. On the death of Chandra, defendant No. 1 came into possession of the property. He based his claim on a will said to have been made by Ganu's widow. The will has been challenged in this litigation. The point as to the execution and genuineness of the will has been left over because the trial Court held that the present suit was not maintainable on other grounds.
2. The present suit has been brought by the plaintiffs for recovery of possession of the property on the ground that plaintiff No. 1 as the sister of Ganu was entitled to succeed to the property as there is no other nearer heir to the estate left by Ganu. Plaintiffs Nos. 2 and 3 are stated to be purchasers of some of the suit properties from plaintiff No. 1. To this suit various objections were raised. Some of the objections have not been gone into. It was held by the trial Court that plaintiff No. 1 could not succeed as heir in her alleged capacity as the sister of Ganu. The Court also held that the suit was barred by res judicata in view of the decision in suit No. 577 of 1914. On appeal the learned Judge of the appellate Court held that plaintiff No. 1 was entitled to succeed to the property of Ganu as she was an offspring born of the same woman as Ganu and that this legal position was not affected by the decision in the previous suit which related to plaintiff No. 1's claim as the surviving daughter of Vitha. Holding in this way, the learned Judge of the appellate Court reversed the decree of the trial Court and remanded the case for decision of other issues left over in the trial Court.
3. In this appeal, the same two points which prevailed in the Court of first instance have been taken. Taking the point of res judicata first, I agree with the view of the appellate Court that the present claim is not barred by reason of the decision in the suit of 1914. As observed by the learned Judge of the appellate Court, the former litigation involved a question of plaintiff No. 1's right on the ground that she as daughter was a preferable heir to the property left by Vitha. I am of opinion that it is still open to plaintiff No. 1 to put forward a claim on the ground of her consanguinity with Ganu. The two claims are widely different and the present claim, or rather the ground for it, could not have been set up in the previous litigation as Ganu's widow was then living. The point is so clear that the legal capacity on the basis of which the claim in the former suit was brought cannot be regarded in any way the same as the one on the basis of which the present claim is sought to be supported. I agree, therefore, with the view taken by the lower appellate Court on the point.
4. The second point in the case is whether there is any heritable connection between plaintiff No. 1 and the deceased Ganu to whose estate, succession is claimed. The contention on behalf of the defendants is that Ganu and plaintiff No. 1 could not be regarded as brother and sister in the proper sense of the term inasmuch as they were offspring of adulterous connection. It is argued that such a relationship arises out of lawful wedlock. In order to ascertain the proper position in respect of this contention, it is desirable to note that though Ganu and plaintiff No. 1 may not be called brother and sister within the meaning of the term as technically understood, it is not denied that they are offspring of the same woman. No doubt, in the various texts of Hindu law in which we have the equivalent of the English words 'son' and 'daughter' what is meant is legitimate son and legitimate daughter, and illegitimate children have no place in any of the texts of Hindu law except in the special case of an illegitimate son technically known as dasiputra. The point, therefore, to be considered is whether, in the case of offspring of illegitimate intercourse, there is any time of kinship which would entitle the one to inherit to the other.
5. The point is to be decided on the assumption that these offspring, viz., Ganu and plaintiff No. 1, can be regarded as Hindus. It is not contended that they should not be regarded as Hindus. A contention to the effect that they are not Hindus will not be sustainable. In the case of Myna Boyee v. Ootaram (1861) 8 M.I.A. 400 an Englishman had five children by two Hindu women, one of whom was of a Brahmin caste and was a married woman, though living apart from her husband. It was held that the illegitimate children should be considered as Hindus and their rights governed by Hindu law. It may be that the Hindu law to be applied in such cases is not directly the law laid down in the precepts of the ancient sages or the texts of the commentators who discussed Hindu law in various available aspects. It cannot, however, be denied that the law to be applied will, at any rate, be one deducible from conclusions drawn out of the leading principles of the Hindu law on the point of succession.
6. The oft-repeated verse of Manu, viz., verse 187 in Chapter IX, is to the following effect that 'to the nearest sapinda the inheritance shall belong.' This text of Manu is the basis of a large body of law of succession. No doubt, this text has not been uniformly construed. Vijnaneshvara, the author of the Mitakehara, construes it in a way somewhat different from the way in which it has been construed by the school of thought in Bengal. So far as the view of the Mitakshara is concerned, according to Vijnaneshvara, sapinda relationship arises from community of blood or, to use the technical expression, from 'community or particles of the same body.' According to Vijnaneshvara, the word 'pinda' signifies body. As observed by Mr. Gharpure in Appendix C of his Hindu Law, Edition of 1931, Vijnaneshvara expounds his meaning by reference to a passage in the Garbhopanishad. According to that passage, the human body is made up of six parts, three being derived from the father and three from the mother-the bones, sinew and the marrow from the father, and the skin, flesh and blood from the mother. A man's body is, therefore, made up of parts to which both the parents contribute. These parts are pindas or components which go to make up the body. Those, therefore, who have in their body any particles which make up the body in common with others are sapindas. This is the meaning of the word 'sapinda' according to Vijnaneshvara. It will thus be clear that the term 'sapinda' connotes various kinds of relationship between individuals who are regarded as sapindas of each other. The Mitakshara deals with sapinda relationship with the father as also the sapinda relationship with the mother-so that it is not necessary in order to have heritable blood that inheritance should necessarily be traceable through the father: vide the observations of Devadoss J. and Wallace J. in Viswanatha Mudali v. Doraiswami Mudali I.L.R. (1925) Mad. 944 and of Patkar J. in Narayan Pundlik v. Laxman Daji I.L.R. (1927) Bom. 784 29 Bom. L.R. 930 Applying the principles of the above texts to the facts of the present case, plaintiff No. 1, as an offspring of Vitha, is a sapinda of Ganu who was also an offspring of Vitha, and in as much as the particles of the mother's body abounded in the body of Ganu and also abound in the body of plaintiff No. 1, both of them will be sapindas of each other, and in the absence of a nearer heir, plaintiff No. 1 will be entitled to succeed to the property left by Ganu. Going to the case-law, in the case mentioned above-Myna Boyee v. Ootaram, after it was remanded to the High Court of Madras, it was held by that Court that the illegitimate children of the Brahmin woman kept by the Englishman, as stated above, were to be regarded as Sudras, or a class still lower, and that in the absence of nearer heirs, they inherited the property of their mother and of one another. The observations at page 203 in the said case, Myna Bai v. Uttaram (1864) 2 M.H.C.R. 196 are to the following effect:-
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 inheriting to their father because he is not a Hindu at all. If not so, she is a mere prostitute, and of the cognation between her and her offspring there exists no doubt whatever.
7. In Sivasangu v. Minal I.L.R. (1889) Mad. 277 it was held that the sister succeeded to the estate of a married Maraver woman deserted by her husband. In Viswnatha 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. These authorities support the claim of plaintiff No. 1 in this case on the ground that there is heritable blood between her and her brother, and though plaintiff No. 1 may not be the sister in the strict sense of the term, she is the offspring of the same woman who gave birth to Ganu. She is, therefore, entitled to succeed on the ground of sapinda relationship or consanguinity.
8. The decisions on the law as to succession to property left by dancing girls are based on deductions from principles of Hindu law and afford material for determining the relationship between persons who are offspring of a woman leading an adulterous life. The case of Guddati Reddi Obula v. Ganapati Kandanna : (1912)23MLJ493 affords room for the view that a married woman taken to bad ways does not become a dancing girl. But whether she becomes a dancing girl or not is not the point that is to be decided in this case. What is to be decided is whether there exists heritable blood between the offspring of a woman, born of adulterous intercourse, The decision of the Madras High Court cited above on the point of succession to the property of a dancing girl reflects very useful light on the point to be decided in a case of this kind. In our Court, there is a decision in Narayan Pundlik v. Laxman Daji, where it was held that a sister of a prostitute was entitled to succeed to the prostitute's property as a sapinda to the exclusion of the Crown. In that case Patkar J., in a very illuminating and exhaustive judgment, observed as follows (p. 792) :-
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.
These observations apply with equal appropriateness to the facts of this case. In his judgment, Patkar J. refers to a text of Nanda Pandita in the following terms (p. 793) :-
Reference may also be made to Nand 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.
This very text is referred to by Mr. Justice Devadoss in the above mentioned case in Viswanatha Mudali v. Doraiswami Mudali(1), and after citing the text the learned Judge observes (p. 954):-
The existence of haritable blood between sons of the same mother by different fathers cannot therefore be 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.
9. It is thus clear that plaintiff No. 1 is entitled to succeed to the property left by Ganu. I agree with the view taken by the lower appellate Court and confirm the order passed by that Court, The appeal is, therefore, dismissed with costs.