Lallubhai Shah Acting C.J.
1. This is an appeal from a judgment of Mr. Justice Kanga. It arises out of a suit filed by Bai Nagubai Manglorkar against the executors of the deceased Vasanji Madhavji Thakar, who died on November 21, 1919, possessed of moveable and immoveable property of very large value. The deceased left surviving him a widow and two minor sons. They were also joined as defendants to the suit. It appears that subsequently the sixth defendant who was appointed an administrator pendente lite of the estate of the deceased Vasanji in the testameatary proceedings relating to his will was added as a party. The suit was filed on the basis that the plaintiff was in the exclusive keeping of the deceased Vasanji since the year 1913; and that she had a daughter born to her by him. She alleged that the deceased had left his usual residence at Vadgadi and had come to reside with the plaintiff in her house at Girgaum and that he continued to reside there until the day prior to his death. She claimed maintenance as a Hindu concubine of the deceased who was in his exclusive keeping until his death. She alleged that she used to receive about Rs. 400 per month from the deceased. It was also alleged that a sum of Rs. 25,000 was specially promised by the deceased for the benefit of the daughter, but she reserved the claim to that sum to be made in a different suit. Apparently after the death of the deceased the claim for maintenance out of the estate of the deceased was put forward but as no reply was received from the defendants the suit was filed early in 1920 to claim maintenance of Rs. 500 per month or such other sum as the Court may deem just by way of maintenance out of the estate of the deceased. She also claimed Rs. 800 as arrears of maintenance and also certain allowance during the pendency of the suit.
2. The executors filed a written statement contesting the claim of the plaintiff to maintenance, and alleging that even if she was otherwise entitled to maintenance her claim could not be allowed on account of her not being chaste.
3. The widow on behalf of herself and her minor sons also filed a written statement, pleading that as a matter of fact the deceased did not reside with the plaintiff, and that he had a separate place of residence. They denied that the plaintiff's relation with the said deceased was such as would entitle her to any maintenance under the Hindu law :-
At the hearing the following issues were raised :-
1. Whether the plaintiff was in the sole keeping of Vasanji Madhavji before his death ?
2. Whether the said Vasanji Madhavji paid the plaintiff a fixed monthly allowance of Rs. 400 per month prior to his death ?
3. Whether the plaintiff has continued to he chaste after the death of the said Vasanji Madhavji ?
4. Whether the plaintiff is entitled to any, and, if so, what maintenance ?
4. The learned Judge who tried the suit came to the conclusion that the plaintiff was in the sole keeping of Vasanji before his death, and that she had continued to be chaste after the death of the said Vasanji Madhavji. Issue No. 2 was considered to be unnecessary, but the learned Judge expressed the opinion that there was no reason to doubt the statement of the plaintiff that on an average Rs. 400 were paid to her by the deceased per month. The learned Judge held that the plaintiff was entitled to maintenance as the permanent concubine of the deceased from the estate of the deceased. As the parties were not agreed as to the amount of maintenance, there was a reference to the Commissioner to determine what would be suitable maintenance for the plaintiff.
5. From this decree defendants Nos. 3, 4 and 5, i.e., the widow on behalf of herself and as the guardian of her minor sons, have appealed to this Court, joining the plaintiff and the other defendants as respondents. The respondents Nos. 2 and 3 who are executors under the will support the appeal. Really the contesting respondent is the plaintiff. It is urged on behalf of the appellants that the lower Court has not correctly appreciated the rule of Hindu law under which a concubine is entitled to be maintained out of the estate of her deceased paramour. It is urged, first, that the rule applies to those cases only where the estate is inherited by heirs other than sons, secondly, that the rule applies not to every kept woman, but to a woman who is in the position of a 'dasi' as known to Hindu law, and, thirdly, that the woman should really have been kept as an 'avaruddha stree' (sic) Reliance is placed upon certain passages from the Mitakshara and the Vyavahara Mayukha to which I shall refer later, Several cases bearing on this question have been referred to in the argument on behalf of the appellants to show that in all those cases the kept woman was more or less in the position of an 'avaruddha' woman and that there has been no decision of this Court which has carried this rule so far as to apply it to any kept woman, who cannot be said to satisfy the description of an 'avaruddha stree'. Further it is urged that the evidence in the case, taking it at its best in favour of the plaintiff, does not establish that the plaintiff stood in the relation of an 'avaruddha' woman to the deceased Vasanji, that the lower Court has misappreciated the evidence, and that the evidence if properly appreciated does not establish the plaintiff's claim even taking the rule as to the right of a kept woman to maintenance in the broader sense in which the lower Court has understood it.
6. On behalf of the respondents it is contended that the rule of Hindu law is not by any means so narrow as suggested by the other side; that maintenance can be allowed against the heirs of the person who kept the woman during his life-time as his mistress and that there is no reason why any exception should be made to the general rule when the estate devolves on the sons instead of on the other heirs. Further it is contended that the word 'dasi', which means 'a female slave,' cannot be understood in its literal sense in these days, and has not been so understood in any of the reported cases on the point. It is also contended that there is practically no difference between an 'avaruddha' woman and a woman kept as a mistress, exclusively by a man. On the evidence it is contended that the lower Court has appreciated the evidence correctly, that the plaintiff was in the exclusive keeping of the deceased Vasanji, and that she was entitled to an adequate maintenance from the estate of the deceased.
7. The will of the deceased, which formed the subject-matter of dispute between the executors on the one hand and the widow and the sons of the deceased on the other in the testamentary proceedings, has not been put in.
8. I think that the first contention that when the property devolves on the sons, the rule as to maintenance does not apply must be rejected. There is nothing in the Hindu law to support it; and the decided cases, to which I shall refer later, show that decrees have been passed against the sons without any such objection having been raised.
9. As regards the contention as to 'avaruddha stree', I think, it is desirable to refer to the texts at the outset, '
10. The text which relates to the right to maintenance is to be found in paragraphs 27 and 28 of the Mitakshara, Ch. II, Section 1 :-
27. It is said by Katyayana: 'Heirless property goes to the king, deducting however a subsistence for the females as well as the funeral charges....' [The expression]'deducting however a subsistence for the females as well as the funeral charges,'is [explained as] excluding or setting apart a sufficiency for the food and raiment of the women, and as much as may be requisite for the funeral repasts and other obsequies in honour of the late owner, the residue goes to the king....
28, This relates to women kept in concubinage : for the term employed is 'females' (yoshid). The text of Narada likewise relates to concubines; since the word there used is 'woman'(stri)... But a king, who is attentive to the obligations of duty, should give a maintenance to the women of such persons. (1).
11. The words used for 'women kept in -concubinage' and 'concubines' in the original are 'avaruddha stree'. Vijnanesvara there clearly explains the meaning of the word 'stree' in Narada's text, and the word 'yoshid' used in Katyayana's text as including 'avaruddha stree'. The text of Narada in para 7 of the same section of the Mitakshara runs as follows:-
Thus Narada has stated the succession of brothers, though a wife be living; and has directed the assignment of a maintenance only to widows. 'Among brothers, if any one die without issue, or eater a religious order, let the rest of the brethren divide his wealth, except the wife's separate property. Let them allow a maintenance to his women for life, provided these preserve unsullied the bed of their lord.'(2)
12. It may also be mentioned that in Chapter I, Section 4, relating to 'Effects not liable to Partition' in the Mitakshara, para 22 runs as follows :-
The women or female slaves, being unequal [in number, to the shares,] must not be divided by the value, but should be employed in labour [for the co-heirs] alternately. But women (adulteresses or others) kept in concubinage by the father, must not be shared by the sons, though equal in number : for the text of Gautama forbids it. (3)
13. Here also referring to 'women kept in concubinage by the father' Vijnanesvara has used the word 'avaruddha.' The meaning of the word 'avaruddha' is explained by Vijnanesvara in his commentary on Yajnavalkya's verse No. 290 in the Vyavahara Adhyaya. At page 406 of Gharpure's translation of the Vyavahara Adhyaya of the Mitakshara the expression 'avaruddha dasi' used in the verse has been rendered into English as 'women who are protected slaves of another' and in the commentary the word 'avaruddha' is thus explained :
These very women are 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, these are known as 'Avaruddha' or protected slaves.
14. The Vyavahara Mayukha on this point is in agreement with the Mitakshara. For instance, in dealing with 'impartible things' Nilkantha refers to 'avaruddha stree.' In Mandlik's Hindu Law, at page 70, the passage is translated as follows :
Striyah are female slaves. (When) uneven in number, they are to be made to work by turns as may be found workable; when even in number, they are to be divided. The kept mistresses of the father, however, though even in number, should not be divided, as directed by (the following text of) Gautama:-'There is no division of women appointed (by the father) for enjoyment.'
15. The expression which has been rendered into English as 'kept mistress' in Mandlik's translation has been rendered in Borrodaile's translation as 'set apart by the father.'
16. In Chapter VIII, Section 4, the same texts of Katyayana and Narada, to which Vijnanesvara has referred in the Mitakshara, are referred to and explained by Nilkantha as having reference to concubines because the term used is not 'patni'. For the word 'concubine' the word used in the original is 'avaruddha' (See Mandlik's Hindu Law, p. 78).
17. In dealing with the meaning of the word 'avaruddha' in Chapter XIX, which relates to 'adultery' (Stree Sangrahana) after referring to the text of Yajnavalkya, to which I have already referred, the word 'avaruddha' is rendered as meaning 'female slaves forbidden by their master to have intercourse with other men.' It is quite true that Nilkantha does not give the same amplified rendering of the word 'avaruddha' as has been adopted by Vijnanesvara, but it seems to me that Nilkantha in effect means the same thing as Vijnanesvara. I may refer also to the explanation of the word 'avaruddha' given in the Vyavahara Adhyaya of Virmitrodaya (Calcutta Edition of the year 1875 at page 510). Mitramisra entirely accepts Vijnanesvara's explanation of the word 'avaruddha.' In fact the very words used by Vijnanesvara are quoted by him to explain the meaning of the word.
18. I have referred to these texts at some length to show that the obligation of the heirs to maintain women extends to the case of a woman who is in the position of an 'avaruddha stree' and not beyond, and also with a view to explain the meaning of the word 'avaruddha' as understood in this connection by Vijnanesvara, Nilkantha and Mitramisra. It is quite true that these texts of Katyayana and Narada are quoted in the portion of the Mitakshara where the right of the widow to inherit the property of her husband is discussed and dealt with. They are referred to really to establish the one point which Vijnanesvara was concerned to establish, namely, that 'patni', i. e., the wife, was outside the scope of the texts which merely provided for the maintenance of women and that she was competent to inherit. But that fact by itself has not deterred the Courts so far from enforcing the rule as regards the women of the family including 'avaruddha stree' in the sense understood by the commentators; and I do not think it is open now to the appellants to raise any such contentions. I think, however, that the appellants are right in their contention that the obligation to maintain extends only to such women as could properly be described as 'avaruddha stree.' So far as the texts are concerned there cannot be any doubt on that point.
19. I think that the decided cases which have been referred to in the argument are not only consistent with that view, but tend to support that view. The decisions which Mr. Munshi referred to are Khemkor v. Umiashankar (1873) 10 Bom. H.C.R. 381; Vrandavandas v. Yamunabai (1876) 12 Bom. H.C.R. 229 Yashvantrav v. Kashibai I.L.R. (1887) 12 Bom. 26 and Ningareddi v. Lakshmawa I.L.R. (1901) 26 Bom. 163; 3 Bom. L.R. 647; and I may also refer to an old decision in Salu v. Hari (1877) P.J. p. 34. All these cases were from the mofussil, and the facts in each case show that there was no dispute then that the relation in which the woman concerned stood to the person keeping her was that of an 'avaruddha stree.'
20. In the case of Khemkor v. Umiashankar (1873) 10 B.H.C.R. 381, the woman concerned had contracted a marriage with the man, and though that marriage was not valid, the connection was evidently of an open character where the woman lived with the man, and in that case the claim was allowed as against the son of the man after the death of the so-called husband.
21. In the case of Vrandavandas v. Yamunabai (1875) 12 Bom. H.C.R. 229 the facts make it quite clear that there the concubine Yamunabai lived with Gokaldas at Khed; and one of the nephews of Gokaldas also lived with him, and after the death of Gokaldas that nephew had conveyed the whole of the moveable and immoveable property to Yamunabai because she had been his uncle's concubine for a very long time and the right to this property was contested by another nephew of Gokaldas. Sir Michael Westropp C.J. there has dealt with the question of the right of a concubine to maintenance and has referred to some of the texts to which I have already referred. But what I feel concerned to point out is that in that case there could be no doubt that the woman lived with the man openly and practically as a member of the family.
22. The judgment of Mr. Justice Nanabhai Haridas in Yashvantrav v. Kashibai I.L.R. (1887) 12 Bom. 26 where the question as to whether a concubine entitled to maintenance was under an obligation to lead a chaste life after the death of the man had to be decided, is instructive; and in the foot-note Yajnavalkya's verse No. 290 in the Vyavahara Adhyaya has been referred to. It was held there that she was under the same obligation to lead a chaste life as a wife or any other widow of the family would be. It appears that the question arose there in execution, because Kashibai, the woman concerned, was alleged to have left the family house and lived as a prostitute. Though the facts on which the decree was passed in her favour are not to be found in that report it would appear from the allegation as to her having left the family house, which is referred to at page 29 of the report, that until then she must have been living in the family house and practically as a member of the family. At any rate the report is silent as to the nature of the connection between the woman and her paramour, and does not in any sense conflict with the view as to the scope of the rule relating to the maintenance of concubines.
23. In the case of Ningareddi v. Lakshmawa I.L.R. (1901) 26 Bom. 163; 3 Bom. L.R. 647it appears from the statement of facts that Govindreddi, the plaintiff's father in that case, had a wife Venkawa who had left owing to ill-health and had gone to reside with her parents. Govindreddi then took the defendant Lakshmawa to his house and she lived with him as hie mistress for several years. He executed a deed of gift in her favour in respect of certain lands for her life by way of maintenance. This state of things had continued for nearly thirteen years when Venkawa returned to her husband's house and thereafter Govindreddi continued to visit Laxmava.
24. So also in Salu v. Hari (1877) P.J. p. 34 it appears from the judgment that Salu was either the 'pat' wife or continuous concubine of Jaysingrao the father of Hari by 'Lagna' wife, and Salu had two sons by Jaysingrao and two daughters; on a reference to the judgment of the lower Court in that case, it is clear that Salu lived with Jaysingrao practically as his wife.
25. These cases to my mind clearly show that the woman concerned in each case had practically led the life of an 'avaruddha' stree. I do not lay any emphasis upon the use of the word 'dasi' in Yajnavalkya's text No. 290. The words 'stree' and 'yoshid' used in the texts bearing on this point may not necessarily mean a 'dasi'; and apart from that the word 'dasi' under the Hindu law as administered now is not understood literally as meaning a 'female slave' but a woman who lives as a dependant in the family. But the life which the woman in each of these cases led with her so-called husband or paramour was the life of an 'avaruddha stree,' as she practically lived as a wife and as a member of the family in the house of the man. I think, therefore, that there is nothing in the cases which need deter us from considering the scope of this rule which has been somewhat loosely stated as applicable to a 'kept mistress.' The learned Judge has referred to the passage in Mr. (now Mr. Justice) Mulla's Hindu Law at p. 430, and so far as it goes it represents the effect of the decisions to which I have referred. But there was no occasion in any of those cases to consider whether any woman with whom the man had connection for a long time up to the time of his death would be within the scope of the rule or whether the rule was so restricted as to exclude some of these women from the benefit of the rule. The very fact that she is by law under an obligation to lead a chaste life, as a widow is, shows to my mind that the rule was really restricted to the case of a woman, with whom the connection was perfectly open and recognised, and who was kept practically as a member of the family, though no marriage with her could be, or was in fact, effected.
26. I may refer to Mayne's Hindu Law and Usage at page 620 (8th Edn.), where the rule is stated thus:-'But this liability only exists where the connection was of a permanent nature, analogous to that of the female slaves who in former times were recognised members of a man's family.' In Golap Chandra Sarkar Sastri's Hindu Law (4th Edn.) at page 195 I find the following observation on the point:-'But although there cannot, at the present day be a female slave in law, there are instances of such in fact, called concubines and living as members of the family of the men keeping them.' I have referred to these opinions only as showing that the rule as understood by them is not different in substance from what I have stated to be the effect of the texts.
27. I think, therefore, that the evidence in this case must be considered with a view to see how far the plaintiff satisfied the requirements of this rule. From that point of view the first issue as framed does not appear to me to adequately represent the requirements of law. Taking the case at its best in favour of the plaintiff, the evidence in the present case establishes that the plaintiff used to live in a house near the Kennedy Bridge at Girgaon where the deceased Vasanji used to visit her regularly during the last four or five years prior to his death and used to pay her some monthly allowance, the exact amount of which is not material. I am willing to accept the further facts deposed to by the plaintiff in her favour that his connection with her was of a very close character; that he passed a good deal of his time with her; that she occasionally moved out with him at Nasik and other places; and that he provided her with all the comforts that he might have provided for a kept mistress. But I do not think that even taking the most favourable view of the evidence for the plaintiff in this case, it could be said that the woman was practically openly kept by Vasanji in his own family and as a member of the family. I think the evidence falls far short of that requirement. It is not suggested in the present case, for instance, that the plaintiff ever went to the family house which was occupied by the wife and the sons of the deceased Vasanji at Vadgadi. All that, is stated by the plaintiff is that she went occasionally to the house where the deceased resided on the third or fourth floor near Lakdipool at Musjid Bunder. When she was recalled she said as follows:-'I used to go there occasionally when deceased was not well. Deceased's wife or sons were not residing there.' Though it is said in this case that the plaintiff's son who was born when she had connection with another man used to go occasionally to the deceased's residence or to the family house of the deceased, and that the sons of the deceased occasionally used to visit her house, speaking for myself, I very much doubt whether the sons of the deceased ever visited the plaintiff's house. But assuming in favour of the plaintiff that occasionally the sons, who were minors, visited this house, and that Bhalchandra her son who has been examined in this case occasionally visited the house of the deceased which was used for residential purposes or his family house, I do not think that that really can advance the case of the plaintiff. Without knowing the nature of these visits, which may have been of quite a casual character, it is impossible to treat the connection which Vasanji had with this woman as anything more than the connection which a man may have with a woman who is his kept mistress living outside and at least apparently unknown to the family.
28. In the present case we have the fact that though Vasanji used to pay, according to the plaintiff, substantial sums of money from time to time for her mintenance, there is not a single entry in the accounts of the deceased Vasanji. This is an admitted fact. The inference which it suggests to my mind is that Vasanji never intended that his connection with this woman should be known generally to the persons immediately surrounding him, including the members of his family. If she was really in the position of an 'avaruddha stree' probably the plaintiff would have been kept by the deceased in his own house and the expenses incurred in connection with her would have been treated as regular items of expenditure and duly entered in the accounts.
29. It is common ground now that no provision has been made for the plaintiff by him in his will. That also suggests to my mind that the deceased did not wish his connection with this woman to be publicly known as a provision for her in his last will was likely to do. I am not concerned here with the question as to whether the omission on his part to make any provision in the will has any effect as a matter of law upon the right of maintenance, assuming it to exist otherwise. In connection with this point certain observations in Ramanarasu v. Buchamma I.L.R. (1899) Mad. 282 are relevant: It is pointed out at page 290 of the report as follows :-
On the authority of certain texts of Hindu law, the Courts have no doubt allowed this claim in the case of concubines continuously kept by the deceased up to the time of his death. Whether the foundation of this rule was the notion that the man was under a moral obligation to take care that his concubine should not be left destitute after his death and therefore saddled the succession to his property with the liability to maintain her, or whether it was with reference to his probable wishes and intention with regard to her, it is not necessary to determine.
30. So far as the omission in the will to provide for her can afford any indication of his probable wishes and intentions with regard to her it would be against the plaintiff. I do not, however, quote these observations as indicating that that is really the basis of the rule. It may be open to doubt whether the original texts of Katyayana and Narada. which have been interpreted as referring to 'avaruddha stree' by commentators like Vijnanesvara and Nilkantha, were originally intended to cover the case of an 'avaruddha stree.' But, as observed by Mr. Justice Nanabhai Haridas in Yashvantrav v. Kashibai, as the commentators whose opinion is part of Hindu law which the Courts have to administer have accepted that view there is no going behind it; and if an attempt is to be made to discover the reason of this rule, it seems to me to rest on the consideration that if the woman lives practically as a dependant member of the family and accepts all the limitations though unmarried, of a married life openly and avowedly, she gets the benefit of the rule which makes it obligatory upon the heirs of a Hindu house-holder to maintain the women of the family. In the present case, the plaintiff was in the sole keeping of the deceased Vasanji as she says, in the sense that she did not receive any other visitors. But that in my opinion is not sufficient. It must be indicated by the very mode of living adopted by both the parties that she was his dependant and known as such to all concerned and that she had accepted practically the obligations of a family life.
31. This being my view of the case generally, I do not consider it necessary to examine at length the evidence which has been examined in great detail by the trial Court. As my outlook on the case, however, is somewhat different I desire to state briefly the conclusions to which I have come on the evidence in the case. The plaintiff admits that she has three sisters who are all in the keeping of different Sheths; and she also says that her sister Sunderabai is a singing girl (a naikin). I think that gives a sufficient indication of the class to which the plaintiff, apart from the kind of connection which she had during the last few years of the deceased's life, belongs.
32. It is also an admitted fact that from her twelth or thirteenth year she had been in the keeping of one Gopalji, and she says that she was in his keeping for fourteen or fifteen years. When the differences between her and Gopalji arose, apparently according to her account, she took to the deceased Vasanji.
33. I accept on the evidence the conclusion that she had connection with the deceased Vasanji for the last four or five years previous to his death which took place in November 1919. I am not prepared on the evidence to take the connection to have commenced earlier than that. My reasons for that are that her son Bhalchandra deposes that he had known the deceased for three years prior to his death. The plaintiff in her evidence takes the connection so far back as 1913 or earlier. It may or may not be so. But in view of the fact that her son came to know the deceased three years prior to his death, I do not think that it would be fair to take the connection as having commenced much earlier. I base this inference also upon the fact that among the letters which have been produced in this case by the plaintiff as having been written by and received from the deceased Vasanji the earliest one is of July 1915.
34. I do not desire to express, and should not be understood as expressing, any opinion with regard to the right of the daughter to be maintained out of the estate of the deceased. That matter is not before us. I have stated my conclusion as to the length of the period of the plaintiff's connection with Vasanji so far as it relates to the present claim.
35. As regards the manner in which the plaintiff says that Vasanji came to know her and practically took her under his protection after Gopalji had deserted her is a matter upon which I feel doubtful. The plaintiff has given an account of it in detail that she was prevented from going to Nasik, and that she was kept by Vasanji at different places and was ultimately accommodated in the house near the Kennedy Bridge where she has been living for some years now. I cannot forget the fact that the plaintiff is after all an interested witness, and there is no independent evidence on this point. After the death of Vasanji it is extremely difficult to test this part of the story, and if the evidence as to the time that her connection with Vasanji commenced, to which I have already referred, is to have its due weight, it seems to me that when he commenced his connection with her probably she was already living in the house near the Kennedy Bridge. It appears from the evidence of Mr. Wamanrao that for many years she has been a tenant in that house which originally belonged to his mother and which his mother sold in the year 1916; and the plaintiff herself says that she has been there for the last seven years, i. e. taking it back from the date when the evidence was given, it would be somewhere in the year 1914.
36. As regards the nature of the residence of Vasanji with her in this house, I am satisfied, as is stated by the plaintiff, that he used to visit her regularly. I also accept the fact that Vasanji occasionally received his visitors at this house, but I cannot ignore the fact that after all the house was tenanted by her, i. e., the tenancy was in her name; and there is nothing to show, apart from the statement of the plaintiff and the payments which the deceased Vasanji may have made to her, that he had anything to do with the arranging of this tenancy or with the running of the plaintiff's house-hold. It is likely that Vasanji may have expressed a desire to her to buy the house for her as she says, but the fact remains that he never put himself in communication with the landlord for that purpose, and that he never in fact bought it for her. The evidence of Mr. Wamanrao on this point shows that a broker once asked him as to whether his mother would sell the house for a particular sum, and as his mother asked for a larger sum, it was not sold; but apparently in 1916 his mother sold the house to somebody else. The statement that the broker told him that he was sent by Vasanji is not, in my opinion, sufficient to establish the fact that Vasanji ever went beyond expressing his own desire to the plaintiff in this matter, which may have been with a view to keep her pleased or with a view to carry it out in future. In any case, if Wamanrao's evidence be accepted, the inquiry by the broker must have been before 1916, as the house was sold by Wamanrao's mother in that year: and there is nothing to show that the deceased did anything thereafter in the way of purchasing this or any other house for her.
37. On the evidence taken as a whole, I am satisfied that the deceased Vasanji had left his family house at Vadgadi in the occupation of his wife and his sons and taken up his residence at a house near the Lakdipool at Musjid Bunder on account of his differences with his wife. He had his 'pedhi,' i.e. firm, on one floor of that house and he had occupied another floor of that house for his residence. While living there, as I have said, he used to visit the plaintiff at her house near the Kennedy Bridge, but I do not think that his ostensible residence and ostensible messing arrangements at the house near the Lakdipool were ever given up. In fact it appears that when during his last illness he was removed a day previous to his death, he was removed to this residence of his. Further it is not suggested that any of the effects of the deceased, except his clothes which remained there when he got his last illness, were in this house. If his real residence was with the plaintiff, and his residence at the Lakdipool house was merely nominal that would not have been the case. I am, therefore, unable to accept the allegation that the deceased had made the house of the plaintiff as practically his residence. I accept that some of his acquaintances may have known the fact that he passed his time and even occasionally resided at the house of the plaintiff. I accept the fact that along with the other comforts which he provided for the plaintiff', he allowed her the use of his motor car, and it is possible that he may have kept it there, though there is no evidence as to there being a motor garage attached to the house or as to one having been rented in that locality. I do not attach much importance to the fact that the driver's license which was in the name of the deceased has been produced by the plaintiff', because as he got ill in this house near the Kennedy Bridge and admittedly passed a few days of his illness in this house his clothes and along with his clothes the license would be left there. I accept the evidence as to a governess having been engaged by him for the plaintiff for some time; and on the whole I am satisfied that both of them were devoted to each other.
38. As regards the letters which have been produced in the case, it seems to me to be a matter of no moment as to whether these letters were written by him or got written by him. From the subject matter of these letters it would appear that they were either written by him or by somebody else at his instance. Letters written during the years 1915-16-17 are few. There are some more letters in 1918 but the letters written in the year 1919 were the largest in number. I do not attach much importance to the effusive language used by passionate persons to each other, but I am willing to accept the inference which these letters suggest that his connection with her was growing from year to year and that he had developed a regard and love for her. I also accept the fact that the plaintiff on her part responded equally and was probably equally devoted to him. Undoubtedly when he got ill before his death he was treated and nursed in this house by her. All this is true, but that in my opinion is not sufficient to establish anything more than this that the plaintiff was a kept mistress of the deceased.
39. Taking the connection between the deceased and the plaintiff at its highest, I am unable to treat that connection as anything more than the connection of a kept mistress with her paramour which is distinct from the connection of an 'avaruddha stree'. The deceased was a Lohana by caste, and though he was prepared to associate with this woman, apparently he was not prepared, and ordinarily he would not be prepared, to have such an open connection as would invite the odium and other difficulties arising out of such a connection being known to his people generally. He had, therefore, it seems to me deliberately refrained from keeping her in the manner in which an 'avaruddha stree' would be kept. He resorted to a method of carrying on connection with her, which is neither rare nor difficult in a large city like Bombay, by visiting her at her residence, which was separate and far apart from his immediate surroundings, according to his convenience.
40. Taking a broad view of the case, as I have stated already, I am satisfied that the plaintiff was in the exclusive keeping of the deceased Vasanji during the last four or five years prior to his death, in the sense that she consorted with him alone during that time. But that connection is not, in my opinion, sufficient to bring the case within the scope of the rule which entitles a continuously kept concubine to maintenance. I may mention that the English expression 'continuously kept concubine' is the nearest approach to the meaning of 'avaruddha stree'. It connotes an open residence and avowed connection with the man, both of which I think can be fairly said to be absent in the present case.
41. I do not desire to lay down any hard and fast rule as to what mode of life and character of the connection between the kept woman and her paramour would be sufficient to constitute her an 'avaruddha stree'; that must depend upon the facts and circumstances of each case and must be decided as a question of fact on the evidence. It may be difficult to draw the dividing line in some cases. But in the present case I think that the facts are quite clear to take it out of the scope of the rule. I should have been glad to see my way to allow the plaintiff's claim: but it cannot be done without unduly enlarging the scope of the rule of Hindu law, which we have no right to do.
42. I would, therefore, allow this appeal, set aside the decree of the trial Court and dismiss the suit.
43. We have heard the parties as to costs in this case. Having regard to the peculiar circumstances of the case we think that the plaintiff should not be made to pay the costs of this litigation. At the same time we cannot allow her to recover her costs from the estate of the deceased Vasanji. We direct, therefore, that the plaintiff-respondent will bear her own costs throughout. The plaintiff to refund any payments received by her in pursuance of the decree of the trial Court which is now discharged. The appellants, i.e. the widow for herself and for her minor sons and other defendants, also to get their costs throughout from the estate of the deceased as between attorney and client. As regards the costs of any proceedings reserved, we make the same order.
44. There is only one question of fact in this case and that is 'what were the relations between plaintiff and the deceased Vasanji up to the date of the latter's death ?' This question forms the subject of issue No. 1 but it is better to state it in somewhat more general terms than is done in that issue, for it is doubtful whether an affirmative finding on the issue as framed necessarily leads to the conclusion that plaintiff is entitled to maintenance from the estate of the deceased. That seems to have been assumed in the trial Court without any examination of the question of law.
45. So far as the facts go, I find no reason to differ substantially from the learned trial Judge. I see no reason for refusing to believe the evidence of the plaintiff in view of the statement in the judgment. 'The plaintiff in my opinion gave her evidence in a very straightforward manner and I believe her evidence.' That evidence derives substantial support from the evidence of Wamanrao Babaji, Sawlaram Ramchandra and Dr Parulekar. These witnesses have been believed and the arguments advanced before us fail to convince me that the trial Judge was wrong. I am also satisfied that the letters produced by plaintiff are genuine letters, and that they were written by the deceased or by his directions. As compared with this positive testimony the evidence for the defendants is inconclusive ; it is also poor in quality.
46. What is that is established That the deceased for some years before his death kept the plaintiff as his mistress in a separate house. Necessarily he visited her constantly and probably spent much time in that house. So far as the evidence goes she was exclusively in his keeping up to the time of his death. The facts present no difficulty but does it follow that the connection was such as tc entitle her to maintenance from his estate under Hindu law
47. This question has been dealt with somewhat summarily by the trial Judge, probably because the matter was not argued before him as fully as before us. His reasons are contained in the following paragraph :
According to the authorities a Hindu is not bound to maintain his kept mistrees-in his lifetime. He can discard her at any moment and she cannot compel him to continue her in his keeping or to provide for her future maintenance. But where a Hindu woman has been kept by a Hindu until his death his estate is liable for her maintenance in the hands of those who take it even though the connection with her was an adulterous one. Her right to maintenance is conditional upon her continued chastity.
48. As a general statement of the law no exception can be taken to this provided it is remembered that the connection denoted by the words 'kept mistress' must, be of the nature which the Hindu law demands. The rights of a concubine-I use the word concubine as I think it conveys the notion more correctly-depend upon the following passage in the Mitakshara:
Even as to what has been said by Katyayana 'Heirlesa property goes to the king, deducting however a subsistence for the females as well as for the funeral charges;'...i.e., Heirless property or wealth which is without an heir to succeed to 'goes to the king', that is 'becomes the property of the sovereign deducting, however, a subsistence for the females as well as for the funeral charges'. It means that after excluding or setting apart a sufficiency for the food and raiment of the women, and as much as may be requisite for the funeral charges such as the funeral repasts and other obsequies in honour of the (deceased) owner, the residue goes to the king. Such is the construction of the text. An exception is added : 'but the goods belonging to a 'venerable priest,' deducting, however, a subsistence for the females as well as the charges of obsequies, ' let him bestow on a venerable priest'. But even this relates to women kept in concubinage, for the term employed is ' females'. The text of Narada likewise relates to women of the harem, since the word used is women. (4)
49. For the purposes of the present question the important words are 'women kept in concubinage.' In what sense are they used by Vijnaneshvara The Sanskrit words are 'Avaruddha stree.' The word 'Avaruddha' means 'subject to control or restraint.' There are other passages in Vijnaneshvara's commentary which further explain the meaning.
50. In the commentary on Yajnavalkya, verses 118, 119, as to things liable to partition we find the following:-
Women, that is, female slaves being uneven, must not be divided by (regard to) the value, but should be made to work by turns. But women kept in concubinage [Avaruddha stree] (by the father), such as adulteresses and others, although even in number, must not be shared by the sons. (5)
51. This passage certainly suggests that these women are completely under the dominion of the family. It would otherwise be impossible to regard them as being in any sense liable to partition.
52. Another and more significant passage is found in Vijnaneshvara's commentary on Yajnavalkya verse 290. (Gharpure's translation, p. 407; the passage is not in that portion translated by Colebrooke). The chapter deals with criminal offences in connection with women, and the penalties thereof, and verse 290 runs as follows :-
In (the case of) women who are protected slaves of another, and likewise (of) kept mistresses, even though intercourse with them is permissible, a man shall be compelled to pay a fine of fifty panas.
53. Upon this the commentator says :-
The women of the varnas already described are (considered as) slaves; these very women are 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, these are known as Avaruddha or protected slaves. Women restricted in the matter of sexual intercourse to certain persons are known as Bhujishyah or kept mistresses. When female slaves are Avaruddha Bhujishya then in their case-likewise by use of the particle cha 'and,' harlots, wanton women, common women and Bhujishya are also included, in their case also- although intercourse with them is permissible, (gamyaswapi) as they are equally available to all males, one having connexion with them shall be fined fifty panas since they are as good as other's wives, as they have been patronised by another. (6)
54. Now as I understand this passage a clear distinction is made between a mistress (Bhujishyah) and a concubine (Avaruddha Bhujishya). The word 'Avaruddha' appears to mean a woman kept under a man's immediate control as a member of his family. An examination of the reported cases shows that where a claim for maintenance has been allowed on the ground of concubinage the connexion has been of the nature suggested by the word 'avaruddha' as explained above.
55. In Khemkor v. Umiashankar (1873) 10 B.H.C.R. 381 the claim was on behalf of a woman who had lived with a man as his wife. The marriage proved to be invalid, and it was held that she was entitled to maintenance as a concubine. This appears to be the earliest case in Bombay. In Madras the matter appears to have been first discussed in Sikki v. Vencatasamy (1875) 8 M.H.C.R. 144. The District Judge in setting out the facts of that case remarks that the Hindu law texts appear to have in mind women having recognised positions in the house as concubines or female slaves and that a concubine in this sense is something more than a kept woman. The actual decision was on another point but it is interesting to note that the distinction was recognized so long ago. The next case in Bombay was Vrandavandas v. Yamunabai (1875) 12 B.H.C.R. 229. There the woman had lived with the deceased as his wife for forty years In a later case, Ningareddi v. Lakshmawa I.L.R. (1901) 26 Bom 163 the woman had lived in the man's house as his concubine for a long period. It is not, I think, necessary to deal at any length with these or other reported cases, for it must be conceded that the precise point now before us has not been decided. They are only instructive as showing the nature of the connection which has hitherto been held a sufficient ground for allowing maintenance from the estate of a deceased man. In all those cases the woman was living openly with the man as his concubine under his immediate protection and control. As I have already said the texts appear to indicate a connection of that nature where the term 'avaruddha stree' is used.
56. Now what are the facts here? The deceased Vasanji had a wife and two sons. He was on bad terms with them and they lived in a house at Mandvi while deceased himself lived in another house at Masjid Bunder. He appears to have formed this connection with plaintiff about 1915 which is the date of the earliest letter. According to her story she lived at several different places in the city and the deceased maintained and visited her. But there is no evidence that they ever openly lived together. She appears to have had her own establishment, and to have paid her own rent. He fell ill in her house, and was there for a short time until just before his death, but that is an accidental circumstance. It is true that plaintiff says he lived there continuously for three years, but she also says that he lived in his own house at Masjid Bunder. The case seems to be a common one enough a rich man on bad terms with his family who has a kept mistress whom he visits from time to time. The connection was not precisely secret, but on the evidence it cannot be said that she lived with him openly as a member of his family. In the words of Vijnaneshvara plaintiff is a 'Bhujishyah' but not (in my opinion; 'avaruddha'. Therefore she is not, I think, entitled to claim maintenance from the estate of the deceased.
(1) Stokes' Hindu Law Books, p. 435.
(2) Stokes' Hindu Law Books, p, 429.
(3) Stokes' Hindu Law-Books, p. 389,
(4) Gharpure's ' Hindu Law Texts, Mitakshara, p. 239.
(5) Gharpure, p. 195; Colebrooke I, iv, 22.
(6) Gharpure, p. 406.