Alfred Henry Lionel Leach, C.J.
1. The appellant filed a suit in the Court of the Additional District Munsif of Salem for a declaration that an alienation made on the 4th February, 1918, by the fourth respondent, the mother of one Shanmugam, in favour of the father of the first, second and third respondents was not binding on the reversion. Shanmugam died in 1916 and the appellant claimed to be the nearest reversioner. The common ancestor was a Sudra woman, named Valliammal, who was a prostitute. She had two sons, Muthu Mudaliar and Palaniyandi Mudaliar, but it is not known whether they were born of the same father. There is no evidence at all with regard to their paternity. The connection between the appellant and Shanmugam will be gathered from the following geneological tree:
Muthu Mudaliar Palaniyandi Mudaliar
Krishna Mudaliar Kunjan
| | |
Daughter Daughter Palaniyandi=
| Panchakshari Ammal
| (4th respondent)
Four sons. |
(died in 1916).
It has been accepted for the purposes of this appeal that all the descendants of Muthu and Palaniyandi are legitimate. The appeal turns on the answer to the question whether Muthu, the father of the appellant, is to be regarded under the Hindu Law as an agnate of Palaniyandi, the great grandfather of Shanmugam. If he is to be so regarded, it is accepted that he will be the nearest reversioner. The alienee respondents deny that in law there was agnatic relationship between Muthu and Palaniyandi and say that the nearest reversioners are the four sons of the elder daughter of Kunjan, the son of Palaniyandi, they being the direct descendants of Palaniyandi. The District Munsif dismissed the suit. He rejected the appellant's claim to be the nearest reversioner, but as pointed out in the judgment now under appeal it is not clear whether he thought that the appellant was not an heir at all or whether he thought that the appellant must in any event be postponed to Kunjan's daughter's sons. He also held that there was no consideration for the alienation. On appeal to the District judge of Salem it was held that the appellant was the nearest reversioner. The District Judge placed reliance on the decision in Viswanatha Mudali v. Doraiswami Mudali : AIR1926Mad289 . He interpreted that decision as meaning that the legitimate descendants of Muthu and Palaniyandi could claim the same rights as if the two brothers had been born of a lawful marriage. On this interpretation of the law and being of the opinion that no necessity had been proved for the alienation the District Judge decreed the suit.
2. The alienee respondents appealed to this Court. The appeal was heard by Varadachariar, J., who allowed it and restored the decree of the trial Court. The learned Judge did not accept the decision in Viswanatha Mudali v. Doraiswami Mudali : AIR1926Mad289 , as laying down the proposition that the sons of a prostitute are to be deemed to be in agnatic relationship, but merely declared that there was a heritable relationship between the two. He pointed out that to constitute sagotra sapindaship, there must be descent in an unbroken male line from a common male ancestor. In the case of the sons of a prostitute, where the father is unknown, it was impossible to trace the descent from a common male ancestor. Varadachariar, J., regarded Muthu and Palaniyandi as being cognates and consequently the four sons of the elder daughter of Kunjan were nearer in kin to Shanmugam than the appellant.
3. In Viswanatha Mudali v. Doraiswami Mudali : AIR1926Mad289 , it was held that the legitimate descendants of two sons of a Hindu dancing woman were under the Hindu Law entitled to succeed to each other. I agree with Varadachariar, J., that when the judgment is read in the light of the record it is clear, in spite of the general terms used, that all the Court decided was that there was heritable blood between the two sons. It is true that in their written statement the defendants in the case pleaded that there was a nearer reversioner, but this plea was not persisted in, and the Court had merely to decide whether one son could under Hindu Law succeed to the property of the other. The finding that there was heritable blood was sufficient to decide the case. There also the paternity was unknown.
4. The decision in Viswanatha Mudali v. Doraiswami Mudali : AIR1926Mad289 , was based on the judgment of this Court in Mayna Bai v. Uttaram (1864) 2 M.H.C.R. 196 : 8 M.I.A. 400, following a remand by the Privy Council. In Mayna Bai's case (1864) 2 M.H.C.R. 196 : 8 M.I.A. 400, the Court had to decide what rules of inheritance should be applied to the illegitimate sons of an Englishman by two Hindu women. One of the women was a Brahmin who had married but had separated from her husband. By her he had two sons and by the other woman he had three sons. The five sons were brought up as Hindus and lived together as a joint family. By his will the father devised his estate to them in equal shares. A suit was instituted by one of the sons of the Brahmin woman against his step-brothers for partition of the estate and for recovery of the share of his full brother who had died. It was necessary in the first instance to decide whether the brothers were to be deemed to be Hindus, and when the case was under trial the following question was submitted to the Pandit of the Court of Sudder Adawlut:
You are requested to state whether, upon the death of one of two illegitimate sons of a Hindu woman, the estate of the deceased by law devolves upon the surviving brother?
5. The answer given was:
If the illegitimate sons referred to in the question were undivided, the estate of one of them would, after his death, devolve upon his surviving brother. If divided, it would go to him only on failure of the deceased's widow, daughter, or her son, or of the deceased's mother.
6. The Privy Council considered that question had not been properly framed as it did not embrace all the important facts proved or admitted in the suit which might affect the conclusion. The result of the appeal before the Privy Council was that the brothers were deemed to be Hindus, but the Board left the question of their rights to be solved by the determination of the class of Hindus to which they belonged and the rules of inheritance which existed in that class.
7. When the case came before this Court on remand it was held that the sons were to be regarded as Sudras, or as a class still lower, and that in the absence of preferable heirs they inherited the property of their mother and of one another. The Court recognised relationship merely through the mother as the following passage from page 201 of the judgment shows:
Certainly there are many passages of the text-writers which recognise the relationship of the son, irregularly begotten, to his mother's family. Yagnavalkya quoted in the Vivada Chintamani (page 823) : 'A damsel's child is one born of an unmarried woman; he is considered as the son of his maternal grandsire'. This passage clearly recognises the mother and her son, irregularly begotten, as cognate; and the Mitakshara, quoting Manu (Chap. I, Section 11, Clause 7), points out that, if the girl is married, the child, although not begotten by the husband, becomes his son. The authorities already referred to, as to the son of concealed origin, also bear upon this point, and seem to show clearly that the Hindu law, although for obvious reasons not recognising as the husband's son one got by a man of unequal class, nevertheless gives no ground whatever for supposing that the circumstances of birth from illicit connection severs the union between the mother and her son, so as not to admit of heritable blood between them.
8. This opinion is emphasised in the following passage to be found at page 203 of the report:
Our reasoning, therefore, is that there is no authority against the existence of heritable blood between the woman and her illegitimate offspring. Taukaram and his brother (the sons of the Brahmin mistress) 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 the 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.
9. The decision was that the sons of a Hindu prostitute by a non-Hindu father are cognate to the mother and to one another and therefore possess heritable blood. In the case of Viswanatha Mudali v. Doraiswami Mudali : AIR1926Mad289 , the father was unknown and the decision did not go beyond the question whether there was heritable blood.
10. In the present case, the Court is not concerned with the question whether the illegitimate sons of a Sudra father are to be regarded as agnates, and the decision must be confined to the case where a Hindu prostitute has sons but their paternity is not known. Valliammal was not a permanent concubine, but a prostitute, and there can be no presumption in such circumstances that the same man was the father of her two sons. As a person cannot be regarded as a sagotra sapinda unless he can trace his descent in an unbroken male line from a common male ancestor it is impossible to regard the appellant as a sagotra sapinda of Shanmugam. As the result of the decisions in Mayna Bai v. Uttaram (1864) 2 M.H.C.R. 196 : 8 M.I.A. 400 and Viswanatha Mudali v. Doraiswami Mudali : AIR1926Mad289 , the appellant can claim to be a cognate of Shanmugam, but this does not help him. Not being an agnate he would only be able to maintain the suit if he were the nearest male relation of Shanmugam possessing heritable blood. He is clearly not in that position. The grandsons of Kunjan stand between him and Shanmugam.
11. It has been contended on behalf of the appellant that it would be in accordance with justice, equity and good conscience to regard him as an agnate. This argument completely ignores essential factors. There is here the fundamental principle that a person cannot be regarded as a sagotra sapinda unless he can trace his descent in an unbroken male line from a common male ancestor, which the appellant cannot do. All that he can establish is relationship through a female and there are nearer relations than the appellant. To prefer him to the nearer relations would be to ignore justice, equity and good conscience.
12. The appellant has asked us to hold that he should in any event be allowed to maintain the suit for the benefit of the reversion. He could only be allowed to do so on the footing that there was collusion between Kunjan's grandsons and the alienor or that the grandsons had precluded themselves from interfering. Rani Anund Koer v. The Court of Wards (1880) L.R. 8 IndAp : I.L.R. 6 Cal. 764 . This was not the appellant's case and he cannot be allowed at this stage to alter the character of the suit.
13. It follows that I consider that the case was rightly decided by Varadachariar, J., and that the appeal should be dismissed with costs in favour of the contesting respondents.
Patanjali Sastri, J.
14. This appeal raises a somewhat novel and interesting question of Hindu law, namely, whether the son of one of two brothers born to an unmarried prostitute can claim to be the nearest presumptive reversioner of the other's great grandson in preference to the latter's paternal aun't sons who are atmabandhus according to Mitakshara. The appellant's learned Advocate contends that sapinda relationship and a consequent right to collateral succession between the sons of a Hindu prostitute and their descendants having been recognised by the Courts on the analogy of descent from a common male ancestor, the appellant must be regarded as a gotraja of the propositus and therefore a. nearer presumptive reversioner than his paternal aunt's son.
15. In applying the general rule of succession that the nearest sapinda takes the heritage to, cases not covered by any texts, the Courts have no doubt extended the concept of sapindaship to relations outside marriage and legitimate descent relying upon the definition of a sapinda in the Mitakshara as one connected by particles of the same body. See Mayna Bai v. Uttaram (1864) 2 M.H.C.R. 196 : 8 M.I.A. 400, Narayan Pundlik v. Laxman Daji I.L.R.(1927) 51 Bom. 784 , Viswanatha Mudali v. Doraswami Mudali : AIR1926Mad289 and Dattatraya Tatya v. Matha Bala (1933) I.L.R. 58 Bom. 119. But there are also other cases which have now-established that even among Sudras illegitimate sons or their descendants have no right of collateral succession to the legitimate sons or descendants of the putative father, asnosapinda relationship as contemplated by the Hindu law texts can exist in such cases. See Krishnayyan v. Muttuswami I.L.R.(1883) 7 Mad. 407, Ranoji v. Kandoji I.L.R.(1885) 8 Bom. 119, Parvathi v. Thirumalai I.L.R.(1887) 10 Mad. 334, Shome Shankar Rajendra Varere v. Rajesar Swami Jangam I.L.R. (1898) 21 All. 99, Dharma Lakshman v. Sakharam Ramji Rao I.L.R. (1919) 44 Bom. 185 and Zipru v. Bomtya I.L.R.(1921) 46 bom. 424. It. would seem somewhat illogical that while the illegitimate son of a Sudraby a permanently kept concubine is denied sapinda relationship to the legitimate descendants of the putative father, two illegitimate sons of a prostitute or their descendants should be recognised as having such relationship between them. The texts of Hindu law laying down the rules as to inheritance undoubtedly refer only to relationships based upon marriage and legitimate descent and the recognition of the right of inheritance of the illegitimate son of a Sudra to his putative father is based upon special texts relating to that class of sons and do not necessarily imply the existence of sapinda relationship between them. Indeed, even within the sphere of marriage and legitimate descent the Mitak-shara has limited sapinda relationship to specified degrees from the common ancestor, prohibiting its indefinite extension on mere etymological grounds which its definition of a sapinda might all too readily suggest. See Ramchandra Martanda Waikar v. Vinayak Venkatesh Kothekar (1914) 27 M.L.J. 333 : L.R. 41 IndAp 290 : I.L.R. 42 Cal. 384 . It is however unnecessary in this case to examine how far these two lines of cases are reconcilable, for assuming that sapinda relationship can be postulated outside marriage, the question remains whether the appellant is also a gotraja within the meaning of the well-known text of Yagnavalkya providing for succession to a sonless Hindu, for, it is conceded that unless the appellant can bring himself within that category he cannot claim precedence over bandhus who are mentioned as the next category in the text.
16. Their Lordships of the Privy Council had to consider the import of 'gotraja sapinda' in Jadunath Kuar v. Bisheshar Bakhsh Singh (1932) 63 M.L.J. 287 : L.R. 59 IndAp 173 ,where after referring to an exposition of the term in Bhyah Ram Singh v. Bhyah Ugur Singh (1870) 13 M.I.A. 373, they observed as follows:
From this it is clear that in order to qualify as a male agnate, or gotraja sapinda of the propositus the plaintiff must satisfy two conditions, namely, (a) that he is of the same gotra, or, as it may be expressed, of a common patriarchal stock and (b) that he is a sapinda of the deceased, that is, connected by blood through a common ancestor, the connection being traced through males.
17. Again, in their judgment in the same case at a later stage reported in Lai Harihar Pratap Bakhsh Singh v. Thakur Bajrang Bahadur Singh (1937) 2 M.L.J. 711 , their Lordships observed:
Blood relations or sapindas may be related either through males or through females. Prima facie sapindas who are related through an unbroken line of male descent are gotraja sapindas, for by virtue of such unbroken relationship they must be of the same gotra. It will thus be seen that the two conditions which as stated in the previous judgment of the Board in Jadunath Kuar v. Bisheshar Bakhsh Singh (1932) 63 M.L.J. 287 : L.R. 59 IndAp 173 , must be satisfied by a person claiming to be a gotraja sapinda of the propositus, are not really independent but inter-related, for the first condition will ordinarily be included in the second.
18. It is thus quite clear that unless the appellant can show that himself and Shanmugam the last male owner are descendants of a common male ancestor, he cannot claim to succeed in preference to Shanmugam's paternal aunt's sons who as his atmabandhus will exclude any other class of bandhus.
19. The appellant's learned Advocate placed reliance upon the decision in Mayna Bai v. Uttaram (1864) 2 M.H.C.R. 196 : M.I.A. 400 in support of his contention. In that case it was held by this Court after a remand by the Privy Council that one of two sons born to a married woman living in adultery with an Englishman was entitled to succeed to the separate property of the other son on the ground that there was heritable blood between them. This decision however does not assist the appellant, for assuming that it is in consonance with the text and principles of Hindu law, it did not hold that there was gotraja sapindaship between the brothers in that case. The learned Judges observed at page 203:
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 the sons are cognates to her and to one another as to the children of a class not twice born out of wedlock and entitled to inherit to their motherland 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.
20. This clearly shows the decision was based upon the existence of only cognate relationship between the two sons of the prostitute. The appellant's learned Advocate further relied upon the decision in Viswanatha Mudali v. Doraiswami Mudali : AIR1926Mad289 . But this decision too does not in my opinion lend any support to his contention. It merely extended the principle of Mayna Bai's case (1864) 2 M.H.C.R. 196 : 8 M.I.A. 400 to the legitimate descendants also of the illegitimate sons of a prostitute. In support of this extension the learned Judges invoked the principle of representation as laid down in Ramalinga Muppan v. Pavadai Goundan : (1901)11MLJ399 and reasoned thus at page 957:
If it is once granted that Muthusami's son represents him and Muni-appa's 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.
21. It will thus be seen that the only question decided there was whether the plaintiffs were heirs at all under the Hindu law to the last male owner. No doubt, as pointed out in the judgment under appeal, it appears on a reference to the printed records of that case that the defendants, besides denying that the plaintiffs were heirs at all to the last male owner, pleaded also the existence of a nearer bandhu who would be entitled to succeed in the absence of gotraja sapindas. But the suit was dismissed by the trial Court apparently on the preliminary ground that the plaintiffs were no heirs at all under the Hindu law. On appeal, however, the appellate Court took the view that the plaintiffs were in the line of heirs and remanded the case to the trial Court for disposal on the other points raised. There was an appeal to this Court against this order of remand and this was the subject-matter of the decision in Viswanatha Mudali v. Doraiswami Mudali : AIR1926Mad289 . It is thus clear that the question whether the plaintiffs could succeed as gotraja sapindas of the propositus in preference to persons who were his bandhus did not arise at that staged f the case and was not considered by this Court.
22. The appellant's learned Advocate finally placed strong reliance upon the observations in Mayne's Hindu Law (10th Edition), page 691, where the decision under appeal which is reported in Ratna Mudaliar v. Krishna Mudaliar : (1937)1MLJ390 , is noticed and criticised as follows:
The ground of decision was that he (plaintiff) could not be regarded as a sagotra sapinda of the last male owner as to be preferred to an atmabandhu. But, when once it is admitted that two illegitimate brothers have heritable blood as between them and are entitled to inherit as brothers, their legitimate descendants will be governed by the ordinary rules of succession either on the grounds of analogy or on principles of justice and equity. The two illegitimate brothers cannot be said to be cognates of one another. They are therefore to be regarded as if they are agnate sapindas for the purpose of Hindu Law as between themselves, their legitimate male descendants being, of course, their gotraja sapindas.
23. This opinion is, no doubt, entitled to great weight as proceeding from so eminent a lawyer, but, with all due respect, I find it difficult to follow the reasoning. Almost the earliest case which decided that two illegitimate sons of a prostitute have heritable blood as between them and are entitled to inherit as brothers, that is, Mayna Bai's case (1864) 2 M.H.C.R. 196 : 8 M.I.A. 400, was expressly based, as pointed out above, upon the cognate relationship existing between them. Neither this nor any later decision based upon it, is therefore authority for the proposition that two illegitimate brothers cannot be said to be cognate of one another and that they are therefore to be regarded as if they are agnate sapindas as between themselves. As for the suggestion that grounds of analogy or the principles of justice and equity may be invoked to support the proposition, I can see no warrant for the application of the analogy of gotraja sapindaship to a case of this kind. Courts have no doubt applied analogies in deducing rules of succession in some cases, but their application can, in my opinion, be justified only where no provision is made either in the Smrithis, or their recognised commentaries. It is a familiar rule of interpretation in Mimamsa that when a particular object is named as an eligible substitute for another which is not available, you cannot, on grounds of analogy, use other objects which might even better fulfil the purpose in view, for the use of the named substitute is deemed to be specifically enjoined. Here, the text of Yagnavalkya declares that in the absence of gotrajas the next class of persons to take the heritage shall be bandhus of the propositus. After enumerating the several classes of heirs, it prescribes:
Of these, on failure of the preceding the next following shall take the estate of one who dies sonless. This is the rule for all classes. (Yagn. II, 136.)
24. The specific provisions of this text cannot, in my opinion, be outweighed by analogical reasoning. In the present case, there are in existence the paternal aunt's sons of the last male owner who as atmabandhus would take the estate according to the text, there being admittedly no gotrajas in the strict sense of the term. No use of analogy can therefore be permitted so as to affect this result. Nor am I able to see how it is in consonance with the principles of justice and equity to displace an atmabandhu from his prescribed rank in the scheme of inheritance, in favour of one like the appellant who, except by a fanciful extension of the term, cannot be described as a gotraja sapinda of the propositus.
25. I agree with my Lord that this appeal fails and should be dismissed with costs.