1. The pltf. claims to be the illegitimate daughter of Sri Krupamaya Anauga Bhima Deo, the late Zamindar of Bodokhemidi estate which is an impartible estate under the Madras Impartible Estates Act, 1904. The principal deft. (deft. 1) is the present Zimindar of Bodokhemidi estate & is the legitimate son of Sri Krupamaya Ananga Bhima Deo. The other defts. are said to be tenants established on the suit lands by deft. 1. The pltf's case was that her father gave her certain landed property described in Schedule 'a' of the plaint situated in village Kattubati & known as 'Kheta Dholia' lands for her maintenance & that deft, l wrongfully resumed these lands & settled them with the other defts. She, therefore, prayed for being put in possession of the suit lands or eke for a decree directing deft, l to pay her either the value of the lands or else the annual Rajabhagam (rent) due from these lands. There was also an alternative prayer for a decree for maintenance at the rate of Rs. 30 per month till her marriage & for making the maintenance a charge on the properties of deft. I described in Schedule 'B'.
2. Sri Krupamaya Ananga Bhima Deo died in September, 1922 & his estate was managed by the Ct. of Wards for Borne years during the minority of deft. 1. The estate was released on 2-12-30. The gift of the 'a' schedule lands in favour of the pltf. was made by Sri Krupamaya Ananga Bhima Deo by a document (ex. 9) dated 25-2-1922. The pltf. was born sometime in 1920 or 1921 & though her paternity was strenuously contested in the lower Ct. the finding was that Sri Krupamaya Ananga Bhima Deo was her father & this finding was not seriously challenged before us. Some time in 1924 the Ct. of Wards resumed the said lands & in lieu thereof settled a maintenance allowance of Rs. 71 per month for the pltf. & her mother Sri Kumuda Angalagi (P. W. 1). This maintenance allowance was paid regularly during the time of the Court of Wards. But when deft. 1 took up the management of the estate in 19S0 he stopped it altogether. Sri Kumuda Angalagi then instituted a suit for maintenance alleging that she was a concubine under the exclusive keeping of Sri Krupamaya Ananga Bhima Deo & as such entitled to maintenance from the impartible estate. Thai litigation was fought up to the H. C. & in the end (vide Ex. 4 [b]) she was granted a decree for maintenance at the rate of Rs. 50 per month.
3. The lower Court found in favour of the pltf. on the question of her paternity but dismissed the suit chiefly because the pltf. failed to show that either under the Hindu law or by virtue of any special family custom she was entitled to maintenance from the estate of her putative father after his demise. The Ct. further held that the grant of 'a' schedule lands in village Kattubati by Sri Krupamaya Ananga Bhima Deo ceased to be operative after his death by virtue of the provisions of the Madras Impartible Estates Act, 1904 & that she acquired no right over the said lands either by virtue of the grant or by adverse possession as claimed by her.
4. The main points canvassed by Mr. H. Mohapatra on behalf of the applt-pltf are these: (i) the 'a' schedule lands do not form part of the impartible estate of Bodokhemidi & that any alienation of the same made by the previous Zamindar would, therefore, be valid even after his death & would not be hit by the Madras Impartible Estates Act, 1904; (ii) in any case, the pltf. has perfected her title to those lands by adverse possession; (iii) in the family of Bodokhemidi Zamindars there was a special family custom by which illegitimate daughters were also entitled to maintenance out of the estate; and (iv) under the ordinary Hindu law also an illegitimate daughter was entitled to maintenance from the estate of her putative father which has descended to his lawful heirs.
5. Point No. 1- Mr. Mohapatra's contention on this point is that for about 150 years the suit lands in Kattubati village had been alienated by successive Zamindars to various persons & that consequently those lands never formed part of the Bodokhemidi zamindari. In support of this argument, he has relied mainly on the evidence of one Ujal Das Nahar Bisoi (P. W. 4) who stated that those lands were first given as service Inams to one of his ancestors nearly 100 years ago & that the lands remained in the possession of the family for about 50 years. Subsequently they were resumed by the Zamindar & granted successively to two illegitimate descendants, namely, Gopinath Deo & Naba Lal Deo who enjoyed the same for some years. Subsequently they were again resumed & grantad to the pltf. by Sri Erupamaya Ananga Bhima Deo. This witness' evidence even if believed would merely show that for about 100 years the lands were successively alienated as Inams but frequently resumed & re-granted to other persons. But his evidence is quite insufficient to show that the lands do not form part of Bodokchemidi zamindari. But if the pltf. could establish that the lands were pro-settlement lnams, that is to say, grants made by the Zamindars long before the coming into force of Permanent Settlement Regulation there may be some scope for Mr. Mohapatra's argument. But the ptf's own witnesses (p. ws. 4 and 5) admitted that the lands were Dharmilla, Inam grants. It is beyond question that a 'Dharmilla Inam' is a post-settlement Inam & that it is included in the aseets of the zamindari. Moreover, the very fact that the Zamkidars never made the grants irresumable but on the contrary resumed them on successive occasions & re-granted the same to other persons indicates unmistakably that the lands ware treated as coming within the ambit of Bodokhemidi zamindari.
6. Point No, 2- The plea of adverse possession is also equally futile. The pltf s posession of the property dates only from the date of the grant, namely, 25-2 1922. She was in possession for hardly two years when the Court of Wards dispossessed her & settled a monthly cash allowance as maintenance. The learned lower Ct. rightly rejected the applt's contention that as the cash allowance was settled by the Ct. of Wards in lieu of maintenance she must be deemed to have been in continued possession of the lands through the Court of Wards till the stoppage of that allowance by deft. 1 in 1930. In Ex. 1 (a) which is a letter issued by the Manager of the Court of Wards to the plnf's mother on 29-9-23 it was clearly stated that the pltf. had no claim to the lands after the Ct. resumed the same & settled a cash allowance in her favour. Therefore the pltf's possession was hardly for two years & no claim by adverse possession can in any case arise.
7. Mr. Mohapatra, however, tried to show that the possession of the previous Inamdars, namely, Naba Lal Deo, Gopinath Deo & the ancestors of P. W. 4 was also adverse to the Zamindar & the period during which they were in possession must be added to the period of possession of pltf. I in determining the question of adverse possession. This argument, however, cannot stand. Neither Naba Lal Deo nor Gopinath Deo nor the ancestors of P. W. 4. can be said to be the predecessor-in-interest of the pltf. and consequently their possession cannot be tacked on to the possession of the pltf. Moreover their possession was not continuous bat was interrupted frequently by resumption & resettlement.
8. It cannot also be seriously contended that at any time there was adverse possession of the lands by any of the alienees. From the very beginning the grant was merely the grant of Melawaiam right, P. W. 4 admitted that when his ancestors were in possession of the lands more than 50 years ago there were already tenants on the lands who used to execute muehilikas in favour of his ancestors. Doubtless in Ma cross examination he tried to show that his ancestors themselves reclaimed the lands & made them fit for cultivation.. But P. w. 3 admitted that there were tenants on the lands daring the time of Sri Gopinath Deo & Nahar Bisoi (referring to an ancestor of P. W. 4). Similarly, P. W. 2 also admitted that there must have been tenants on the lands when they were gifted to the illegitimate off springs of the previous Zamindars. Therefore there seems to be no doubt that the lands ware all along tenanted lands & the grants made to Nahar Bisoi (ancestor of P. W. 4) & the illegitimate off springs of the previous Zamindars were only grants of melawaram right. None of these grantees can claim to have acquired any permanent right either in the nature of occupancy right or any right by adverse possession because their possession was at no time adverse to the Zamindar.
9. Point No. 3- Now I take up the plea of special family custom which is the main strength of the pltf's case. But the evidence led by her so show that there was a special family custom by which illegitimate daughters of Zamindars of Bodokhemidi were entitled to maintenance out of the estate is quite meagre & unreliable. There is no documentary evidence to prove this custom & the pltf. has relied mainly on the oral evidence of her mother Sri Kumuda Angalagi (P. W. l) & two other witnesses, namely, Appalanarasingham (P. W. 2) & Binayak Patra (P. W. 5). The pltf's mother (P. W. 1) has obviously no personal knowledge of the grant of maintenance to illegitimate daughters of the previous Zamindars. In her cross-examination aha had to admit:
'Former daughters, like my daughter, of Bodokhemidi Zamindars, were given lands, but I cannot give their names. I cannot give any particulars of any such grants. I cannot give any particulars of such, cases in other Zamindaris.'
Thus her evidence does not help the pltf. in any way. P. W, 2 had worked as Manager of Bodokhsmidi estate from 1924 to 1930. His evidence shows that illegitimate dependants of the Zamindars were paid touzis (cash allowances) from the estate during the time that he was Manager. He gave the names of several dependants but those names all relate to males. The only instance in which an illegitimate daughter was given maintenance allowance as proved by him is that of one Godabari Jemma who is also another illegitimate daughter of Sri Krupamaya Ananga Bhima Deo. The pltf. was also receiving cash allowance from the estate during the time of the Court of Wards. Therefore, even if the evidence of P. w. 2 be believed, it only shows that from 1924 to 1930 the illegitimate daughters of Sri Krupamaya Ananga Bhima Deo were given cash allowances. His evidence is quite inadequate to prove a special family custom. He has obviously no knowledge of the custom, if any, which prevailed in the family prior to 1924. Similarly, the evidence of P. W. 5 does not materially help the pltf. The only special instance which this witness proves is the grant of maintenance to one Muktamala, an illegitimate sister of Lakshminarayan Deo about 100 to 150 years ago. His knowledge about that grant is based on hearsay. Even if it be taken as true, a Single instance of the grant of such allowance to an illegitimate daugher is quite insufficient to prove a special family custom. No papers of the estate showing grant of any allowance to Muktamala or to any other illegitimate daughter of the Zamindar have been proved. No Ct. can from such meagre evidence infer that there was any special family custom in Bodokhamidi estate as pleaded by the pltf.
10. Point No. 4- Lastly I take up the rights of the pltf. under the ordinary Hindu law. In Malta's Hindu Law, 10th Edn., Article 522 at P. 609, it is clearly stated that there is no provision in the Hindu law for the maintenance of illegitimate daughters. To a similar effect is the observation at P. 823 of Maine's Hindu Law, 10th Bin. In the lower Ct. it appears to have been conceded that under the ordinary Hindu law the pltf. is not entitled to any maintenance. Mr. Mohapatra has, however, relied on certain passages at p. 228 of Raghava. chariar's Hindu Law, 3rd Edn. where the learned author seems to be of the view that as a member of the family an illegitimate daughter also must be held to be entitled to a maintenance allowance in the same way as an illegitimate son. But the authorities, however, cited by him do not lend support to such a broad proposition. Doubtless in an old Bombay decision reported in Parvati v. Ganapatrao, 18 Bom. 177 there are some observations which may land support to the view that an illegitimate daughter wag also entitled to maintenance out of the family property. In Natarajan v. Muthiah Chatty, A. I. R. (13) 1926 Mad. 261 at P. 266: (95 I. C. 972), a single Judge (Kamaraswami Sastri) reviewed the previous decisions on the subject & held that an illegitimate daughter was entitled to maintenance until she married or attained majority. But his decision was reversed by a Division Bench of the same H. C. in Vellaiyappa v. Natarajan, 50 Mad. 340: A. I. R. (14) 1927 Mad. 386) where there is a full discussion of the law regarding the rights of maintenance of an illegitimate daughter. In that decision, the arguments that an illegitimate daughter was entitled to maintenance as a member of her father's family was advanced & repelled. That litigation was taken up to the Privy Council on other grounds; (see Vellaiyappa Chetty v. Natarajan, 58 I. A. 402: (A. I. R. (18) 1931 P. C. 294)), but no appeal was taken up against the decision of the Division Bench disallowing maintenance to illegitimate daughters. It is conceded that there is no written text in the scriptures recognising the right of an illegitimate daughter to maintenance. In the absence of any written text & in view of the case law as mentioned above, I do not think I will be justified in recognising such right merely on the ground that an illegitimate daughter may also form part of her putative father's family. The case seems to be rather hard; but the law seems to be definitely against the pltf. Moreover, in view of the fact that the pltf. was more than 21 years at the time of the institution of the suit even Natarajan v. Muthia Chetty, A. I. R. (13) 1926 Mad. 261: (95 I. C. 972) will not materially help her because in that case the right of maintenance of an illegitimate daughter was limited to her 18th year.
11. I would, therefore, affirm the judgment & decree of the lower Ct. & dismiss the appeal. Both parties will bear their own costs. As rightly pointed out by the lower Ct., the conduct of deft. 1 in challenging even the paternity of the pltf. & in making wild and irrelevant allegations against her chastity disentitles him from claiming cost either in the lower Ct, or in the appellate Ct. Applt. should pay the Ct. fee which would have been payable if she had not been permitted to appeal in forma pauperis.
12. I agree.