Alfred Henry Lionel Leach, C.J.
1. These two appeals raise the same question, namely, whether the words 'child or children' in Section 19 of the Madras Marumakkattayam Act, 1932, refer only to a child or children of a marriage recognised by Section 4 or whether they include the offspring of a union which is not a marriage within the meaning of the section.
2. The father of the appellants, Achuthan Nair, died on the 3rd October, 1935. The mother of the appellants died on the 25th August, 1929. The Union between the father and the mother was not registered under the Malabar Marriage Act, 1896. The father left properties which he had acquired in his own right. The appellants filed two suits in the Court of the District Munsiff of Calicut to recover properties of which their father had died possessed. The defendants (the respondents in the appeal) were the karnavan and the senior members of the father's tarwad. Under the Marumakkattayam law, unamended by statute, the heirs to Achuthan Nair's self-acquired properties would be the members of his own tarwad; but the appellants say that the provisions of Section 19 of the Madras Marumakkattayam Act, 1932, have completely changed the position and that by virtue of it they are their father's heirs, notwithstanding the fact that their parents were not married. The District Munsiff held against the appellants and dismissed the suits. On appeal the Subordinate Judge of Calicut agreed with the District Munsiff. The appellants then appealed to this Court. The second appeals were heard by Horwill, J., who also agreed with the trial Court. The present appeals are from the judgment of Horwill, J., under Clause 15 of the Letters Patent.
3. Before the passing of the Malabar Marriage Act, 1896, a union between a man and a woman subject to the Marumakkattayam law was never regarded as a lawful marriage and the offspring of such a union had no right to inherit their father's property. The hardship of the personal law was eventually realised and the Malabar Marriage Act, 1896, was placed on the statute book. Under it a union between a man and a woman governed by the Marumakkattayam or Aliasanthana law was recognised as a lawful marriage, provided it was registered in accordance with, the provisions of the statute, and the children were given rights of succession. The Madras Marumakkattayam Act, 1932, repealed the Act of 1896, completely in so far as it was applicable to Hindus following the Marumakkattayam law of inheritance. Therefore in deciding whether there has been a lawful marriage between a man and a woman governed by the Marumakkattayam law, the Court must now only have regard to the new Act.
4. Section 4 of the Act of 1932 states what conjugal unions are to be deemed to be legal marriages. A conjugal union of a Marumakkattayi female with a male belonging to the same community or a male belonging to another community shall be deemed for all purposes to be a legal marriage, if the parties to the union are not related to each other in such degree of consanguinity or affinity that conjugal union between them is prohibited by custom or usage, and the union was openly solemnized in accordance with customary ceremonies, if any, before the date on which the Act came into force and was subsisting on that date, or was solemnized in accordance with customary ceremonies on or after the date on which the Act came into force or was registered as a marriage under the Malabar Marriage Act, 1896, and was subsisting on the coming into force of the new Act. The Madras Marumakkattayam Act came into force on the 1st August, 1933.
5. Section 5 of the Act states that during the continuance of a prior marriage which is valid under Section 4, a marriage contracted by either of the parties on or after the 1st August, 1933, shall be void. It also provides that after that date a marriage contracted by a male with a Marumakkattayi female during the continuance of a prior marriage of such male shall be void, notwithstanding that his personal law permits of polygamy.
6. Section 19 falls in Chapter IV which relates entirely to intestate succession. The section reads as follows:
Where the intestate has left surviving him a child or children or a lenial descendant or descendants in the female line through a deceased daughter or daughters or both, and also his mother or a widow or widows or both his mother and a widow or widows, the whole of the property shall belong to them. In the absence of the mother and widow, the whole of the property shall belong to the child or children and such lineal descendant or descendants; and in the absence of the mother, widow and child, the whole of the property shall belong to such lineal descendant or descendants.
The argument of the appellants is that the words ' child or children ' apply to illegitimate as well as legitimate issue, and emphasis has been laid upon the observations of Lord Westbury in Mst. Fanny Barlow v. Sophia Eveline Orde (1870) 13 M.I.A. 277, where he said that according to natural law the children of a man mean the issue begotten by him, and the criteria of this condition are, the being born of a wedded wife or wives, or if born of other woman, the being recognised and acknowledged as children by the father. In interpreting the section the Court cannot merely have regard to the Marumakkattayam law as it stood before amendment by statute. It must have regard to the wording of the section and to the scheme of the Act. One object of the Act was to validate unions between persons governed by the Marumakkattayam law, and by reason of it conjugal unions are regarded as valid marriages provided that the formalities required by the measure are complied with. Therefore Section 19 must be read as applying only to legitimate children unless there is an indication in the section or elsewhere in the Act that it was intended to apply to illegitimate children as well. The section itself does not contain any such indication. As the section provides for the ' widow ' participating in the estate of the deceased father should he die intestate, the indication here is all the other way. A widow is a woman who has survived a man to whom she was lawfully married and who was his wife at the time of his death (Stroud's Judicial Dictionary).
7. We can find no indication to the contrary outside the section. In Krishnan v. Thala : AIR1941Mad605 , a Bench of this Court in considering a case under Section 48 of the Act held that the section would only apply to a marriage valid under the provisions of Section 4(1)(b)(i) of the Act. Section 30 only gives a right of succession to legitimate children. On behalf of the appellants Mr. Krishna Variar has pointed to Section 26 and says that the word ' children ' here must be read as covering illegitimate as well as legitimate children, but this section merely deals with the property of a Marumakkattayi female who dies intestate. Under her personal law her own property would descend to her children however begotten, and Section 26 can only be read as a statutory recognition of a rule of personal law. Section 19 stands on quite a different footing. It makes a provision which is entirely inconsistent with the personal law as it stood before 1896. Therefore it is reasonable to suppose that the Legislature only intended to apply to legitimate issue and as we have already pointed out the section itself gives indication of this in referring to the widow.
8. For these reasons we agree with the Courts below and dismiss the appeals with costs in Letters Patent Appeal No. 26 of 1945.