1. We see no reason to interfere with the tending of the Judge that the properties which form the subject-matter, of the appeal before us belonged to Lakshmamma.
2. The next question for decision is who is her heir. The second plaintiff is the daughter of Kanakamma the legitimate daughter of Lakshmamma who survived her daughter. The 1st and 2nd defendants are the illegitimate sons of Lakshmanma born to her after she deserted her husband, the father of Kanakamma and while she was living with the 1st plaintiff. She lived with him till her death as his concubine. She was an outcaste. If all her children were legitimate it is conceded that the 2nd plaintift as the daughter's daughter would exclude the sons. But it is contended that as Lakshmamma was put out of caste, the legal relation of a respectable daughter ceased, and Kanakamma lost all her rights to succeed to her mother. It is also contended that even if the legal relation did not cease, as the defendants were living with her in her degraded state and Kanakamma was not an outcaste they are entitled to take the property, to her exclusion, and reliance is placed on the decisions reported in Sivasangu v. Minal I.L.R. (1888) M. 277 and Subbaraya Pillai v. Ramasami Pillai I.L.R. (1899) M. 171 . The Judge finds that Lakshmamma when she deserted her husband took her daughter Kanakamma with her, that the latter lived with her mother, and was married to one Raghavulu. Whether Raghavulu is afn outcaste is one of the questions in dispute. The Judge finds that Kanakamma was not an outcaste, and though the finding is attacked ih appeal, we proceed to decide the case on the footing that she was not an outcaste.
3. Tara Munnee Dasse v. Moti Bunyanee 7 S.D.A. 273 was a case of corn-petition between a married daughter who remained in caste and a prostitute daughter who lived with her prostitute mother both out of caste. It was held by the Sudder Court following the opinion of the Pandits that the prostitute daughter excluded the other; the ratio decidendi being that a legal relation between the daughter in caste and her mother ceased when the latter became an outcaste.
4. Following this decision it was held in Sivasangu v. Minal I.L.R. (1888) M. 277 that the legal relation between a prostitute sister and her brothers, all children of a prostitute mother ceased when the brothers married and resumed their caste usage electing to treat their sister as a degraded woman.
5. Narasanna v. Gangu I.L.R. (1889) M. 133 was really a case of succession to the property of a dancing girl though it follows Sivasangu v. Minal I.L.R. (1888) M. 277. In so far as these cases decide that prostitution and expulsion from caste severs the legal relation which existed between the outcaste and those who remained in caste they have been dissented from in Subbaraya Pillai v. Ramsami Pillai I.L.R. (1899) M. 171 though it was conceded that degradation from caste may deprive a person according to Hindu Law of the privileges to which he might be entitled as a member of the caste. We follow this ruling and hold that Kanakamma did not cease to be the daughter of her mother according to Hindu Law, on account of the latter's expulsion from her caste. The Judge nevertheless holds that the defendants, and not the plaintiffs are entitled to succeed, because in Subbaraya Pillai v. Ramasami Pillai I.L.R. (1899) M. 171 while expressing their dissent from the law as laid down in Sivasangu v. Minal I.L.R. (1888) M. 277, Narasanna v. Gangu I.L.R. (1889) M. 133 and In the Goods of Kaminee Money Bewah I.L.R. (1893) C. 697 the learned J udges say that the conclusions in those cases in favour of the succession of the degraded person may be supported on equitable principles.
6. There is no doubt that the Judge is right in holding that the defendants are entitled to succeed to the properties of their mother, though born to her while leading a life of prostitution. The only question is whether the 2nd plaintiff is a nearer heir.
7. If the defendants were legitimate sons they would be excluded by the 2nd plaintiff. There is no reason for holding that the illegitimate son's rights are higher.
8. If the 2nd plaintiff were illegitimate like the defendants, she would exclude them if we follow the rule of the Hindu Law of succession to Stridhanam or according to the contention of the pleader for the respondent she will take a share in the property with defendants 1 and 2. We do not see any reason for holding that legitimacy places her in a worse position. Illegitimacy or degradation cannot be treated as a ground of preference. Where there are two claimants to the property of a deceased person, and if one of them recognised his relationship to the deceased and performed the duties incident thereto in his life time and afterwards, he may possibly exclude the other claimant according to the decisions. But in the case, before us it is found that Kanakamma was living with her mother as her daughter after the latter was put out of caste. The equitable principle referred to in Subbaraya Pillai v. Ramasami Pillai I.L.R. (1899) M. 171 does not therefore apply. In Mussamat Maharana v. Thakur Pershad (1911) 12 Ind. Cas. 778 the competition was between the sons of a prostitute woman and her husband's relations. It does not apply to this case. The case in Tripuracharan Banerji v. Sremutty Harrimutty Dassee (1911) 15 C.W.N. 807 was not a case of competition. We hold accordingly that the 2nd plaintiff is entitled to succeed to the properties left by Lakshmamma. The result is that the appeal of the 2nd plaintiff is allowed and there will be a decree in her favour for possession of the properties in appeal. She is entitled to her costs throughout. The appeal so far as the 1st plaintiff is concerned is dismissed with costs. The memorandum of objections is also dismissed with costs.