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Viswanatha Mudali and anr. Vs. Doraiswami Mudali and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1926Mad289; (1925)49MLJ684
AppellantViswanatha Mudali and anr.
RespondentDoraiswami Mudali and anr.
Cases ReferredIn Mayna Bat v. Uttaram
Excerpt:
- - 3. a good deal of the argument in this case was with reference to the rights and disabilities of the illegitimate sons of sudras. it is well settled that the illegitimate son of a man belonging to the twice-born class cannot inherit to his putative father ;he has only a right to maintenance, but in the case of sudras, the illegitimate son inherits to his father, his share being half of that of the legitimate son, and he takes the whole in certain circumstances. 6. the plaintiffs and the defendants in this case are hindus, hindus by religion, as well as by their customs and manners. the laws relating to family relations and succession and inheritance laid down by manu and the commentators like yajnavalkya and vignaneswara were never accepted as binding by all the people. in course.....devadoss, j.1. the plaintiffs sue for a declaration that the sale of the plaint property in favour of defendants 1 and 2 is not binding on them as they are the reversioners of one murugesa mudali. they claim to he the grandsons of muthusami mudali, the divided brother of kachi muniappa mudali, whose great-grandson was the deceased murugesa mudali. the district munsif held that muthusami mudali and kachi muniappa mudali being the sons of a prostitute there was no heritable blood between them and the plaintiffs had no reversionary right to the estate of murugesa mudali and dismissed the suit. the subordinate judge has reversed the decree of the district munsif holding that the plaintiffs are reversionary heirs to murugesa mudali and has remanded the suit for disposal on the merits......
Judgment:

Devadoss, J.

1. The plaintiffs sue for a declaration that the sale of the plaint property in favour of defendants 1 and 2 is not binding on them as they are the reversioners of one Murugesa Mudali. They claim to he the grandsons of Muthusami Mudali, the divided brother of Kachi Muniappa Mudali, whose great-grandson was the deceased Murugesa Mudali. The District Munsif held that Muthusami Mudali and Kachi Muniappa Mudali being the sons of a prostitute there was no heritable blood between them and the plaintiffs had no reversionary right to the estate of Murugesa Mudali and dismissed the suit. The Subordinate Judge has reversed the decree of the District Munsif holding that the plaintiffs are reversionary heirs to Murugesa Mudali and has remanded the suit for disposal on the merits. Defendants 1 and 2 have preferred this appeal.

2. Muthuswami Mudali and Kachi Muniappa Mudali were the? sons of a dancing woman called Thanji Ammal. It is admitted that the plaintiffs are the legitimate grandsons of Muthuswami Mudali and that Murugesa Mudali was the legitimate great grandson of Kachi Muniappa Mudali. The question for decision is, does the rule of collateral succession obtain among the legitimate descendants of the two sons of a dancing woman whose paternity is unknown. There is no authority on the point in the Hindu Law books. We have not been referred to any decision in which the question was raised or decided. The principle applicable to the present case has to be deduced from the texts of the Hindu Law books and some of the decided cases.

3. A good deal of the argument in this case was with reference to the rights and disabilities of the illegitimate sons of Sudras. It is well settled that the illegitimate son of a man belonging to the twice-born class cannot inherit to his putative father ; he has only a right to maintenance, but in the case of Sudras, the illegitimate son inherits to his father, his share being half of that of the legitimate son, and he takes the whole in certain circumstances. West & Buhler, 82, 194, 3rd Edition. Courts have gone to the length of holding that a man's legitimate grandson by an illegitimate son succeeds to him in preference to a divided brother on the theory of representation [Ramalinga Muppan v. Pavadai, Goundan ILR (1901) M 519. It is unnecessary to consider in detail all the decisions that have been quoted at the bar with regard to the rights of illegitimate sons. It is a misnomer to call the son of a dancing woman whose paternity is unknown an illegitimate son. The illegitimate son is one born out of wedlock, i.e., no marriage was solemnized between the father and the mother. In the case of sons of prostitutes or dancing women the paternity is unknown and it is only an euphemism to call them illegitimate sons. In Roman Law they are called Nullius-Filius. Dancing women have their peculiar customs. Their status is recognised in Hindu society. Their customs have received he sanction of judicial decisions and the adoption of girls by them is recognised by law, and the daughters of dancing women inherit in preference to their sons.

4. The question in this case is what is the law which is applicable to the descendants of the sons of a dancing woman assuming that the parentage of the sons is unknown and that they are not the sons of one individual. In Subbaratna Mudali v. Balakrishnaswami Naidu : (1917)33MLJ207 a Bench of this Court held that the male members of the dancing girl caste are Hindus and are usually governed by the Hindu Law and usage. At p. 20S the learned Judges observe:

All the women appear to have followed the profession of a prostitute. That members of this caste are Hindus is certain, though the ancient writers and their modern exponents find some difficulty in fixing them in one of the four castes ; but whether they belong to the Sudra or fourth caste or to a separate fifth caste is immaterial. That male members of this caste are usually governed by the Hindu Law and usage does not seem to have been questioned so also when female members marry and have children, as they sometimes do, their family relation is governed by the Hindu Law and presumably the ordinary Hindu Law of Inheritance will govern succession to their properties. At the same time their female children may remain unmarried and become professional dasis without any degradation or stigma attaching to them so long as they observe the caste customs.

5. This decision is consonant with reason.

6. The plaintiffs and the defendants in this case are Hindus, Hindus by religion, as well as by their customs and manners. If the Hindu Law is not applicable to them, what other law is applicable? Though the Srutis and Smrithis are applicable only to the Aryans, yet the text-writers have extended the law to all the residents of India, and the Courts have applied the Hindu Law to,all the races inhabiting this vast country in the absence of proof of any special or local custom. The Dravidians of Southern India who are of Turanian origin had settled in India long before the Aryans entered it. They had their own laws and customs which are prevalent even to-day. The Aryans when they settled in this part of India attempted to introduce their customs and laws but they were never completely successful. The laws relating to family relations and succession and inheritance laid down by Manu and the commentators like Yajnavalkya and Vignaneswara were never accepted as binding by all the people. It was the East India Company's Courts that held for the first time that the laws contained in the ancient Srutis and Smrithis were applicable to all Hindus in Southern India in the absence of any custom or customary law governing any class of people. Manu in order to extend the influence of the Aryans compendiously uses the term 'Sudras' to the people of this country who are not Aryans in the same way as the Europeans use the word 'native' to all those who are not of European descent, and postulates that they are all Sudras who have fallen away from the high place once occupied by them in the Aryan polity as the following verses show : Chapter X, verse 43 : ' The following races of Kshatriyas by their omission of holy rites and by seeing no Brahmins have gradually sunk among men to the lowest of the four classes.' Verse 44 : ' Paundrakas, Oodras, Dravidas, Kambojas, Yavanas and Sakas; Paradas, Pahlavas, Chinas, Kiratas Deradas and Chasas. ' Verse 45 : ' All those tribes of men who sprang from the mouth, the arm, the thigh and the foot of Brahma but who became outcastes by having neglect-ed their duties are called Dasyus or plunderers, whether they speak the language of the Mlechchas or that of Aryans. ' This attempt on the part of the law-giver Manu to extend the influence of the Aryans among the races who inhabited this land was always pushed in the direction of influencing their religion and the rules of succession. When the East India Company's Courts were established, the Judges took the law from the Pandits who naturally relied upon the texts of the ancient law-givers and commentators as authority for their opinion. In course of time the Courts have come to regard Manu and the commentators as authoritative exponents of the law applicable to all the inhabitants of this country who don't profess any distinctive faith like Muhammadanismor Christianity. The customary law was considered as an exception to thatcontained in the Srutis and Smrithis. Unite' the loose term ' Hindu ' all classes of people are brought within the pale of ' Hindu Law ' as expounded in the texts of the various Srutis and Smrithis and their commentators. It therefore follows that people who have been born in India and who are of the Hindu faith and whose customs and manners are those of Hindus are governed by the Hindu Law.

7. In the case of a dancing woman or a Hindu prostitute, her religion is Hindu and her customs, manners and observances are Hindu, and her sons are Hindus and the Hindu Law therefore is applicable to them.

8. The caste and persuasion of the mother determine the rights of her son, if illegitimate. In Lingappa Goundan v. Esudasan ILR (1903) M 13 it was held that the illegitimate son of a Hindu by a Christian woman was not entitled to maintenance from the estate of his Hindu father. Benson and Bhashyam Aiyangar, JJ. observe at page 14:

The Hindu Law lays down certain rules for determining the caste of offspring of unions between parents belonging to different castes (amongst the four recognised main castes) and gives separate names to the mixed castes to which such offspring will belong. In all these cases the Dharma or religious rites applicable to the offspring are those prescribed for the mother's caste [Brindavana v. Radhamani ILR (1888) M 73. The plaintiff, therefore, cannot be regarded as a Hindu by birth, and he is therefore beyond the pale of, and not governed by, the Hindu Law. There is no text of Hindu Law under which an illegitimate son of a Hindu by a woman who is not a Hindu can claim maintenance, and in none of the reported cases has maintenance been ever awarded to an illegitimate son who was not a Hindu by birth.

9. With all due respect it is difficult to see why the illegitimate son of a Hindu is not a Hindu when follows the Hindu customs and manners. It is the Hindu father who is bound to support his illegitimate son and the mother's religion las nothing to do with his liability to maintain him. It is unnecessary to question the soundness of this decision in this case. The principle of the decision is the mother's religion determines the rights pi her children. If the mother is a Hindu, the children are Hindus, and the Hindu Law therefore is applicable to them. In Mayna Bai v. Utlaram (1861) 8 M IA 400 the facts briefly are: One Hughes kept two married women as his concubines. One of them was a Gowda Brahmin. Two sons were born to the Brahmin woman and he bequeathed his property to the sons. One of the sons died and the other son claimed to succeed him. The Privy Council held that the illegitimate children of a Brahmin married woman born to a European father were to be considered as Hindus and their rights governed by that taw. On the remand the Madras High Court held in Mayna Bai v. Uttaram (1864) 2 M HCR 196 that the sons of an English man by a Brahmin woman living apart from her husband were Hindus and their rights were to be determined by the rights of the class of Hindus to which they belonged ; and they also held that they were to be regarded as Sudras or a class still lower, and in the absence of preferable heirs the two sons inherit the property of the mother and of one another. It was not possible to plead any custom in support of the claim. The learned Judges observed at page 203:

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 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.

10. They relied upon the Roman Law which recognised the relationship between an erring mother and her sons and of the sons towards one another. It was the influence of Christianity in the West that stood in the way of the claim of an illegitimite son on his putative father. The principle deducible from these decisions is that if the mother is a Hindu and the children follow the Hindu religion and adopt Hindu manners and customs, the law applicable to them is the Hindu Law and it does not matter whether the father is a Christian or Muharrmadan, European or an Indian. It necessarily follows that persons whose paternity is unknown and who are the descendant; of Hindu mothers are governed by the Hindu Law.

11. In a recent case the Patna High Court held that the sons of the daughters of Hindus of the Naick caste who were converted to Muhammadanism but who lived with their Hindu grand parents and were brought up as Hindus are governed by the Hindu Law even though they have adopted the profession of dancing and have become prostitutes. Jwala Prasad, J., after an exhaustive consideration of the texts contained in the Srutis and Smrithis relating to the point and the decided cases bearing on the point has come to the conclusion that the sons of the prostitutes converted to Muhammadanism who were brought up by the Hindu grand parents as Hindus are governed by the Hindu Law. It follows from this decision that the Hindu Law is the proper law which governs the relations and the inheritance of persons who are Hindus in faith and customs and manners. Though it is stated that a Hindu is born and not made yet when the question is what is the law applicable to persons who are Hindus in fact, the only answer is that the ordinary Hindu Law is applicable and if the ordinary Hindu Law is applicable, unless there is some prohibition, statutory or otherwise, the whole of that law is applicable. In this case supposing Muniappa Mudali had died without issue and the widow alienated his property improperly would not Muthusami Mudali, if he survived Muniappa, be entitled to bring a suit that the alienation was not binding on him as revor-sioner? If Muthusami Mudali could bring such a suit, could not his son bring such a suit And if he could, his legitimate descendants can certainly bring such a suit. It is consonant with reason and principle that, when a particular system of law is made applicable to a set of persons, the whole of that system should be applied and not portions of it, unless any custom valid and binding is proved to the contrary, or else, the application of that system is modified either by statute or by anything contained in the rules of that system.

12. From the decisions in Mayna Bai v. Uttaram (1861) 8 M IA 400 it is clear that Muthuswami Mudali and Kachi Muniappa Mudali had heritable blood between them. This is not seriously disputed by the appellant. The question is whether their descendants can inherit to one fenother ; in other words, whether the principle of collateral succession applies to the descendants of these two persons. The contention of Mr. Govindaraghava Aiyar for the appellant is that collateral relationship is traceable only through the father; in other words, it is only in the case of agnatic relations the principle of collateral succession is applicable, that an illegitimate son cannot inherit to his father's collateral relations and that in the case of Muniappa Mudali and Muthusami Mudali, the father being unknown, agnatic relationship does not exist arid therefore there can be no collateral succession among their descendants. Reliance is placed on the following cases jn support of the appellants' contention. Amongst the Sudras governed by Mitakshara an illegitimate son cannot inherit collaterally in preference to legitimate heirs. Ravji valid Mahadu v. Sakuji valad Kaloji ILR (1909) B 321. Amongst Sudras governed by Mitakshara an illegitimate son does not inherit collaterally to the legitimate son by the same father. Shome Shankar Rajendra Varere v. Rajesar Swamt Jangam ILR (1898) A 99. The illegitimate son is under Hindu Law excluded from all collateral succession [Dharma Lakshman v. Sakharam Ramjirao ILR (1919) B 185. The son of the legitimate son of a Sudra could not inherit to his illegitimate son [Zipru v. Bomtya ILR (1921) B 424. It is well settled that an illegitimate son cannot claim to inherit to his father's collaterals. He cannot claim to succeed to the legitimate son of his father but can succeed only to his father and the father can succeed to him. The relationship is therefore only between an illegitimate son and his father. In Subramania Aiyar v. Ratnauelu Chetty ILR (1917) M 44 it was held that the father was entitled to succeed to his illegitimate son who left no issue, widow or mother. In all the cases where the illegitimate son was denied the right to succeed to his father's collateral relations the following text of Manu was relied upon: ' The son of a young woman unmarried, the son of a pregnant bride, a son bought, a son by a twice-married woman, a son self-given, and a son by a Sudra are the six kinsmen but no heirs to collaterals. ' Manu, Chapter IX, verse 160.

13. But for this text, the illegitimate son would have the right to succeed to his father's collaterals. The question of succession to the putative father's collaterals does not arise here and the cases noticed above have therefore no application to the present case.

14. In the time of Manu a woman was allowed to marry more than once as is clear from Manu, Chapter IX, verse 191. The sons of a mother though by different fathers were considered to have heritable blood between them, for Nanda Panditha gives the order of precedence among brothers and sisters of whole-blood and half-blood thus : (1) Brothers of the whole-blood ; (2) sisters of the whole-blood ; (3) sons of the same father by different mothers ; and (4) sons of the same mother by different fathers. The existence of heritable 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. It logically follows that the sons of a dancing woman or a prostitute have heritable blood between them.

15. If A can succeed to B in the absence of preferable heirs, why should not A's legitimate son succeed to B if A predeceases B, in the absence of law or custom to the contrary If two men are sons of the same mother, they have heritable blood between them ; and if they have heritable blood between them, their descendants also have heritable blood between them unless such a principle is opposed to any distinct text either in Manu or in the Mitakshara or in any one of the various commentaries. There is no text of Manu or any of his commentators against the descendants of the sons of a prostitute having heritable blood between them. Both Muthuswami Mudali and Kachi Muniappa Mudali were brothers and their descendants are all legitimate, i.e., the plaintiffs are the legitimate sons of the legitimate son of Muthusami Mudali, similarly Murugesa Mudali was legitimate in descent from Kachi Muniappa Mudali. There was no bar sinister so far as he, or his father, or his grandfather was concerned. Seeing that there was heritable blood between Muthusami Mudali and Muniappa Mudali, did the tie cease to exist between Muthusami's son and Muniappa's son? If there was heritable blood between the fathers, it is difficult to understand why that should not continue in the case of the sons. If Muthusami Mudali could succeed to Kachi Muniappa it is difficult to see why the legitimate son of Muthusami should not succeed to Kachi Muniappa. The principle of representation as enunciated in Ramalinga Muppan v. Pavadai Goundan ILR (1901) M 519 is against the appellants' contention. In that case it was held that the legitimate son was entitled to succeed to a man in preference to his divided brother.

16. Bhashyam Aiyangar, J., who delivered the judgment in the case, observed with regard to Krishnayyan v. Muttusami ILR (1883) M 407, Ranoji v. Karidoji ILR (1885) M 557 and Parvathi v. Thirumalai ILR (1887) M 334: 'The effect of these decisions is that it is only when the father dies a separated householder that an illegitimate son is entitled to inherit to his separate estate, but that when the father dies an ' avibhakta ' (undivided from his brothers or other collaterals) he is entitled only to maintenance.' The principle of these decisions is explained as follows in Thangam Pillai v. Suppa Pillai ILR (1888) M 401: 'But these decisions proceeded on the view that he had no claim by survivorship against his father's co-parceners by jus representations, and that he was neither a co-heir with his father nor a sapinda in relatton to his father's co-parceners.' The learned Judge goes on to observe at page 523 : ' Assuming, as explained in Thangam Filial v. Suppa Pillai ILR (1888) M 401, that by reason of his illegitimacy an illegitimate son cannot claim his father's share as against his father's co-parcener by jus representations, that principle will not be applicable to a legitimate son representing his father though the father was the illegitimate son of the grandfather. If a Sudra dies leaving a legitimate son and a grandson or great-grandson by a predeceased illegitimate son, can it be contended that the legitimate son is not bound to allow half a share to the son or grandson of his deceased illegitimate brother just as he would be if the illegitimate son did not predecease the father If the grandson as representing his father though not claiming under him would be entitled as against his uncle to claim his father's share, it can hardly be maintained though his father predeceased the grandfather, that he cannot claim the grandfather's estate as against the grandfather's divided brother. An illegitimate son's right of inheritance to his father's property, or at least to a part of it, is not contingent but absolute, as in the case of a legitimate son, since if he has legitimate half-brothers or other heirs of his father down to a daughter's son he gets a half share and in the absence of such heir, the whole estate. The Sudra's illegitimate son is therefore in a position more analogous to that of a legitimate son than to that of other relations whose right of inheritance is liable to obstruction. The principles, therefore, applicable to the succession of sons and grandsons of legitimate sons may by analogy be applied to the sons and grandsons of an illegitimate son, viz., that they should be considered capable of representing the illegitimate son and in case he dies before his father, of taking the share which would have fallen to him if he had not so died.' The learned Judge relies for his opinion upon West and Buhler, 3rd Edition, pp. 72, 82, 83, 390 and Mr. Jolly's work on Hindu Law, pp. 185,186. I respectfully adopt the reasoning of that very learned Judge, and I am of opinion that the legitimate descendants of Muthusami Mudali represent Muthusami Mudali and the legitimate descendants of Muniappa Mudali represent Muniappa Mudali.

17. If Muniappa Mudali's son had died without issue would not Muthusami Mudali, if he was alive, have succeeded to the property of that son? and if it is once granted that Muthusami's son represents him and Muniappa's son represents him, then it is difficult to understand how their sons could not represent Muthusami and Muniappa respectively. If that is so, then there is heritable blood between them and one line can succeed to the other line according to the principle of collateral succession. It is immaterial to consider whether Thanji was a dancing woman or only a prostitute. Whether the mother be a dancing woman or an ordinary prostitute, the legitimate descendants of her sons have heritable blood between them and this decision does not turn upon any custom or law peculiar to dancing women.

18. On a careful consideration of the cases quoted at the bar and the various passages in the Hindu Law books touching on this point I have come to the conclusion that the plaintiffs are the reversionary heirs to Murugesa Mudali.

19. The appeal is dismissed with costs.

Wallace, J.

20. I am of the same opinion. It appears to me that on the plaintiffs' own case the mother of the two brothers was of the dancing girl caste. Both P.Ws. 1 and 3 state that this woman was a dancing girl and had no fixed husband. She was not therefore a married woman who had fallen from lawful wedlock. The law first of all to be applied is the law founded on usage which governs inheritance to women of the dancing girl caste, the paternity of' whose children is unknown and is not a fact for consideration at all.

21. So far as appears further from the evidence these two brothers lived in caste, married wives according to the Hindu caste customs and had legitimate offspring.

22. Authority regarding the law of succession of natural offspring of a dancing girl there is, so far as I can find, none. Though a recent case in Guddati Reddi Obala v. Ganapati Kandanna : (1912)23MLJ493 lays down that the degraded married woman is not for purposes of the law of succession in the position of a dancing girl,. I do not think it is incorrect to say that, if the natural sons of such women take their place in Hindu society as respectable members of such and live as caste Hindus following the laws and customs of such, they must be taken as having adopted the usages and customs of the Hindu people with whom they associate. It does not appear to have been pleaded in this case that the law of succession on male offspring of a dancing girl differed in essence from the law of succession of the male offspring of a degraded married woman and in fact both sides proceeded on the footing that the law was much the same, I may take it then, without wasting time by further remand of the case, that the usage and customs of succession to their mother and inter se of male offspring of a dancing girl are those of such succession of the male illegitimate offspring of a degraded married woman. It may also be taken as not in question that such male offspring will not belong to any of the three higher castes, whatever their paternity may have been, and that if they are in caste at all, they must be in the Sudra caste.

23. I do not think that the placita from various ancient texts really assist this case because they are not in my opinion dealing with the rights of succession or inheritance in favour of illegitimate children at all, except in the case of the illegitimate son of a Sudra ; that is, in these texts 'son' means a legitimate son and 'daughter ' means a legitimate daughter. This applies even to the passage from Nanda Panditha quoted at P. 207 of Jolly's Hindu Law (1885 Edition). Illegitimate children have no place in Hindu Law when they are legitimate heirs except in the special case already referred to [see Meenakshi v. Muniandi Panikkan ILR (1914) M 1144. I also find very few of the cases cited before us of any real help since this is not a contest between an illegitimate offspring and a legitimate, or a case of a claim by an illegitimate offspring to succeed to his putative father's collaterals. The question is purely whether two illegitimate sons of the same mother have between them heritable blood. The rule laid down in Mayna Bat v. Uttaram (1864) 2 M HCR 196 that the children of a prostitute, when the contest is purely between themselves, succeed to the property of their mother and to one another, is, I think, the rule to be followed in this case. As I read that case, the principle did not in the slightest degree depend either on the fact that the father was known or on the fact that the father of both illegitimate sons was the same person. It rested not on the common paternity, but on the common maternity of illegitimate sons. [Cf. also the ratio decidendi of Lingappa Goundan v. Esudasan ILR 27 (1903) M 13 that principle in this narrow form has never, so far as I can ascertain, been challenged in succeeding cases, and it is also in my opinion reasonable and equitable and in consonance with the general spirit of it not prescribed by the letter of the law of the Mitakshara, wherein heritability follows propinquity of blood and sapinda relationship is determined by the possession of particles of the same body, whether father's or mother's (see Mitakshara quoted by Setlur in his Hindu Texts, 1911 Edition, Appendix A, page 543) and the view of Sadasiva Aiyar, J. in his Letter of Reference in Subramania Aiyar v. Ratnavelu Chetty ILR (1917) M 44 I do not think that there is any authority in Madras for the proposition that sapinda relationship cannot exist without a father.

24. The only reported cases which I can find of contest between illegitimate children inter se are Mayna Bai v. Uttaram (1864) 2 M HCR 196, I already dealt with and Arunagiri Mudali v. Ranganayaki Ammal ILR (1897) M 40, in which latter case neither side appears to have raised any general contention that the Hindu Law principle which gives preference to daughters over sons as heirs of their mother could not be applied because Hindu Law generally could not be applied to the case.

25. I think the net result of the authorities and the case-law is this, that Hindu Law Texts have no application to illegitimate children except in the case of the illegitimate son of a known Sudra father, that so far as the H. Law canon goes illegitimate children have no right of succession to either -parent, but that the general principles of Hindu Law will be applied to such a case unless such application would violate equity and good conscience and that, applying these, the Courts will hold that illegitimate children inter se, when there is no contest between them and legitimate children, inherit to their mother and to One another.

26. The next step is more difficult if the Court holds that outside Hindu Law there is heritable blood between any two illegitimate children, will that heritability carry with it all the adjuncts of heritability under Hindu Law, so that the legitimate male descendants of one branch can claim as reversioners to oust legitimate widows and legitimate descendants of the other branch That is the point now before us. In essence the case Arunagiri Mudali v. Ranganayaki Ammal ILR (1897) M 40 has approved of that principle, although the general question does not appear to have been then argued at all. But it was there taken for granted that Hindu Law principles would be extended to the illegitimate children of a Hindu woman. In Mayna Bat v. Uttaram (1864) 2 M HCR 196, as I read it, it was clearly laid down that the illegitimate children of a Hindu mother are to be considered to be Hindus to whom Hindu Law, so far as it can be analogically applied, will be applied and it is not open, unless and until special custom to the contrary is proved, for persons who are in the eye of the law Hindus to plead that the ordinary adjunct of the principle of Hindu Law, for example, that of the restricted nature of the estate taken by a widow from the last male owner, do not apply, or that they are entitled to set up new rights of succession and inheritance not known to Hindu Law. I cannot see that such an analogical application of Hindu Law to persons living as Hindus and following Hindu customs and usages can in any way offend the general principles of equity and good conscience. I hold therefore that the legal principles to be applied are those set out above.

27. It is not denied before us that these parties are, so far as they can, conforming to the Hindu Law governing their neighbours, that, for example, their wives were legitimately married to them according to the forms of Hindu Law, and that their wives derive their status as lawful wives and their children their status as lawful children from the fact that their families are conforming to the general usages and customs of Hindus.. No special custom derogating from the applicability of Hindu Law principles to the descendants of these two illegitimate brothers has been pleaded or proved in the case. It follows in my view that the ordinary principles of Hindu Law should be applied to them. That the Lower Court has done. My opinion therefore is that the decision of the Lower Court is correct and I agree that this appeal be dismissed with costs.


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