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Namburi Subbayya and anr. Vs. Ghaganti Chandrayya (Deceased) and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1941Mad811; (1941)2MLJ442
AppellantNamburi Subbayya and anr.
RespondentGhaganti Chandrayya (Deceased) and ors.
Cases ReferredMeenakshi v. Muniandi Panikkan
Excerpt:
- - but not having done so, they could not be either permitted to advance new positions at the time of arguments before the trial court or to ask for their written statements to be amended before the lower appellate court so as to enable them to plead that although the 7th defendant was not entitled to deal with his mother's property, yet there was somebody else in the legitimate line who would take precedence over both the plaintiff and the 7th defendant and the plaintiff's suit must for that reason fail......by me before, came to court with the allegation that the 7th defendant was the heir to his mother's stridhanam properties and not the plaintiff. it might have been possible for them to raise an inconsistent or an alternative case when they filed their written statements in the beginning; but not having done so, they could not be either permitted to advance new positions at the time of arguments before the trial court or to ask for their written statements to be amended before the lower appellate court so as to enable them to plead that although the 7th defendant was not entitled to deal with his mother's property, yet there was somebody else in the legitimate line who would take precedence over both the plaintiff and the 7th defendant and the plaintiff's suit must for that reason.....
Judgment:

Abdur Rahman, J.

1. Kotamma, a Brahmin girl, became a widow while she was very young. When she grew older, she fell into evil ways and had two illegitimate children one of whom Namburi Subbamma is the present plaintiff and the other Sundararamayya is the seventh defendant in the present litigation. Kotamma, died on the 12th October, 1919 and left some stridhanam property at the time of her death which forms the subject matter of the present suit.

2. The property left by Kotamma, was sold by her son Sundararamayya to six defendants (defendants 1 to 6) under several sale deeds. Namburi Subbamma brought a suit out of which the present appeals arise for the recovery of their possession. If the children were not illegitimate, Kotamma's stridhanam property would, under the ordinary rule of Hindu law devolve on her daughter Namburi Subbamma in preference to her son. But it was contended that as Kotamma was an outcaste and lived in a degraded condition, the plaintiff would be no heir to her mother and the seventh defendant would succeed to her property (paragraph 5 of the written statement). This plea did not prevail and the suit was decreed by the District Munsif of Kanigiri. Defendants 4 to 6 did not appeal against the decree and the decree as regards the properties purchased by them has become final. Two appeals were preferred against that decree to the Court of the Subordinate Judge at Nellore one by the first defendant and the other by the second and third defendants (A.S. Nos. 209 and 210 of 1934). With these appeals, the defendants filed two petitions for permission to amend their written statements by including an allegation that there were other heirs of Kotamma in the legitimate line who would take precedence over her illegitimate daughter in respect of succession to Kotamma's stridhanam properties. These were accepted by the learned Subordinate Judge on the ground that it was for the plaintiff to establish her title to the property and that it would not be enough for her to show merely that she bad a better title than that of the defendants. But he overlooked the important fact that the plea that was being attempted to be advanced by these applications in his Court was not only a new one but inconsistent with the allegations contained in the written statements. Mere delay would not have been a ground for refusing an amendment; but when the amendment was being proposed with the object of introducing an entirely new and inconsistent case, it could not have been possibly allowed. It is indisputable that leave to amend a pleading is more or less a discretionary matter and the power to grant leave ought to be liberally exercised. Nor can it be disputed that once a discretion has been exercised by a Court in favour of a party, the appellate Court would not lightly interfere with that discretion; but when the Court disregards the first principles and does something which is wholly unjustifiable, it is equally the duty of an appellate Court to interfere and set the wrong right. The defendants, in their written statements, as observed by me before, came to Court with the allegation that the 7th defendant was the heir to his mother's stridhanam properties and not the plaintiff. It might have been possible for them to raise an inconsistent or an alternative case when they filed their written statements in the beginning; but not having done so, they could not be either permitted to advance new positions at the time of arguments before the trial Court or to ask for their written statements to be amended before the lower appellate Court so as to enable them to plead that although the 7th defendant was not entitled to deal with his mother's property, yet there was somebody else in the legitimate line who would take precedence over both the plaintiff and the 7th defendant and the plaintiff's suit must for that reason fail. There is no reference in the whole of the written statements to the existence of any person in the legitimate line and this plea was undoubtedly inconsistent with the one raised by these defendants that the 7th defendant was the sole owner of his mother's stridhanam property. Moreover, the person who was alleged to be in existence in the legitimate line was not impleaded as a party to the suit but the defendants were authorised by the Court to show that such a person did exist in fact and would take precedence in law over the plaintiff. This was not quite the right thing to do and is bound to raise further complications and increase multiplicity of proceedings. Since the order passed by the lower appellate Court permitting the defendants to set up a new and inconsistent case in appeal cannot be sustained, it must be quashed.

3. The next question to decide is whether the plaintiff was entitled to succeed to her mother's stridhanam properties in spite of her illegitimacy in preference to the 7th defendant who Subbayya was also, as stated before, an illegitimate son. There is no chandrayya competition in this case between an illegitimate daughter and an illegitimate son in regard to the stridhanam property of the mother. The decision by a Division Bench of this Court in Arunagiri Mudali v. Ranganayaki Ammal I.L.R.(1897) Mad. 40 is a clear authority for the proposition that the illegitimate daughters were entitled to succeed to their mother's property in preference to an illegitimate son of their mother. The only distinguishing feature of that case was that the putative father of the illegitimate son was different from that of the illegitimate daughters but the fact that the illegitimate daughters and the illegitimate son were the offspring of two different persons is, in my opinion, immaterial. It was contended that an illegitimate daughter was entitled to succeed to her mother's stridhanam property amongst Sudras alone and that no decision has gone to the extent of making the same rule applicable to the illegitimate daughters of a Brahmin degraded woman as Kotamma was. But I see nothing in principle to draw any distinction between the status of degraded women whether they belonged to one caste or the other--at least so far as the capacity of their illegitimate daughters to inherit their stridhanam is concerned. It may be that the illegitimate sons in the higher classes do not inherit their father's estate as heirs and that the illegitimate son of a Sudra may, in certain circumstances, do so; but this is surely no ground for holding that an illegitimate daughter in the three higher classes may be deprived of her mother's stridhanam and that an illegitimate son may be entitled to succeed to that property in preference to his unfortunate sisters. The reason which existed for permitting the legitimate daughters to take their mother's stridhanam property in preference to her legitimate sons applies with equal, if not greater, force to illegitimate daughters when they are competing with illegitimate sons. I am drawing support in this conclusion from the decision of a Bench of this Court in Nammaiya Chetty v. Thiruvengadathan Chetty (1912) 24 M.L.J. 223 where the degraded woman was a Vysia by caste. It is true that the observations in Dundappa v. Bhitnawa I.L.R.(1920) 45 Bom. 557 were in respect of Sudras and were guarded; but there is nothing in that decision to suggest that a different rule of law would have been applicable if the woman was not a Sudra by caste. The observations in Meenakshi Ammal v. Ramaswami Josier : AIR1937Mad640 , and Meenakshi v. Murugayya : AIR1940Mad463 , are general and do not confine the right of illegitimate daughters to succeed to their mothers' stridhanam properties amongst Sudras alone. There are certain obiter dicta in Meenakshi v. Muniandi Panikkan : (1914)27MLJ353 , but since the competition in this case is between illegitimate children inter se, the observations in that decision do not call for any comment. Had it been necessary for me to consider the case attempted to be put forward on behalf of the defendants before the lower appellate Court in their applications for leave to amend their written statements, the statement of law in Meenakshi v. Muniandi Panikkan : (1914)27MLJ353 , would have to be closely examined. But in view of the order granting the amendment having been set aside, the question does not arise for decision.

4. For the above reasons, the appeal must be accepted and the decision of the first Court restored. The plaintiff will be entitled to her costs throughout, half from each set of respondents in each case. The court-fee to be paid on the appeals will be realised from the respondent in each appeal in regard to the items in each appeal--the valuation in the memorandum in appeal being incorrect.


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