1. I have had the advantage of reading the judgment which my learned brother is about to deliver, and concur in it. I shall therefore merely state shortly the negative reasons, for which I think that the appellant's legal argument must be rejected.
2. The case, it seems to me, must be decided on the broad ground that it is for the appellants to show that the illegitimate daughter of a woman, who lived in adultery, inherits her stridhanam, over which she had full power, in preference to her legitimate son : and that they have neither produced any direct precedent for such succession nor established any principle justifying it. As it is not alleged that direct precedent is available, I turn at once to the principles put forward.
3. Firstly, the appellants contend for the application of the law of succession applicable to dancing girls to the offspring of a prostitute, such as they allege the 1st appellant's mother to have been. It is not necessary to decide whether she was one, as the appellants, contend; with reference to Annoyyar v. Chinnan I.L.R. (1907) M. 366 and the fact that her immoral life began after her marriage, or was a permanent concubine as the facts suggest. For the argument must fail, even as put forward. On the assumption that she was a prostitute, there is no authority in Madras for applying to her estate the law, which has been recognised as applicable to dancing girls solely in virtue of the established custom of their caste. Vide Venku v. Mahalinga I.L.R. (1888) M. 393 and Muthu kannu v. Paramasami I.L.R. (1889) M. 214. And I observe here, as in connection with the appellant's other contentions, that there is no reason for a liberal construction, the effect of which would be to disappoint expectations founded on legitimacy. It was then contended that references to daughters in the Mitakshara should be read as including all daughters, both legitimate and illegitimate, and that all alike should be preferred to the legitimate son, as heirs to their mother. But, firstly, that is not the primary sense of those references and is unauthorised by the rules of interpretation recognised by both English and Hindu Law. Vide Bhimacharya v. Ramacharya I.L.R. (1889) M. 214. And next it has not been shown how such a substitution can be carried out or logically limited. Should it, for instance, be extended to the law relating to the daughter's right to inherit from the father in spite of the absence of any special provision in her favor,. such as is available in the case of illegitimate sons ?
4. Next, there is the argument based on the alleged severance of the 1st appellant's mother from her legitimate family owing to her unchastity and consequent degradation. VII Sud. Diw. Ad. 273 It is based first; on an opinion of the Pandits in Tara Munne Dosse v. Motqe Burnanee and Anr. VII Sud. Diw. Ad. 273, that the heirs of an unchaste and, outcaste woman are her daughters, born (as the report in the next case cited shews) in prostitution, who lived with her as prostitutes; not the sons of her daughter who had married, and lived respectably. The principle of severance is statedly relied on and no doubt justified the decision against the legitimate family, but it may, be pointed out that it involved nothing affirmative in favour of the prostitute daughters, defendants and that it was not necessary that it should do so, when the disqualification of. their opponents was sufficient for the decision of the case. Mayna Bai v. Uttaram (1864) 2 M.H.C.R. 196 dealt with competition between illegitimate children only, but contains an obiter dictum that in Madras it has never been doubted that the children of the prostitutes succeed to the property of their mother.' The law, however, as it now stands in this Presidency must be taken to have been stated finally in the much more recent case of Subbaya Pillai v. Ramasami Pillai I.L.R. (1899) M 171. It no doubt does not appear that there was competition there between legitimate and illegitimate issue, for the report affords no description of the defendants. But the decision is against any severance of the degraded wife from her undegraded relatives and includes an expression of dissent from Siva Sengu v. Minal I.L.R. (1888) M. 277 in which Taramonee's case 8 Sud. Diw. Ad. 273 was relied on. The actual decision in Narumayya Ghetti v. Thiruvengadathan Ghetti (1912) 24 M.L.J. 223 is in accordance with this view, there being nothing in its reference to thfe rights of illegitimate children inconsistent with their postponement to all legitimate heirs.
5. Lastly evidence has been placed on the observation in Subbaraya Pillai v. Ramasami Pillai I.L.R. (1899) M 171 that in applying so much of the Hindu Law as can without incongruity be applied either with reference to those connected with the degraded person after his degradation or in their absence, to those remaining undegraded, the Courts would, at all events be administering those rules as rules of equity and good conscience, which are the guides in cases not otherwise provided for.' This seems to have been entirely obiter. For, as stated, it does not appear that any party to the case was connected with the degraded person after her degradation. And I therefore feel at liberty to express my respectful dissent from it. For, firstly in the absence of any but an expressly limited recognition of the rights of illegitimate children in Hindu Law, it is not, I conceive possible to apply its rules generally in their interest without incongruity; and next I cannot understand how the Court would be following any rule of equity or good conscience in doing so or would be promoting any other result than the mitigation of the disabilities, which at present in some degree at least deter people from the formation of illicit relations.
6. The appeaf is dimissed with costs.
Seshaghiri Aiyar, J.
7. The suit relates to the property of one Mukkayi. First plaintiff is her daughter, by 2nd plaintiff; 2nd plaintiff is her paramour. 1st defendant is her son by her deceased husband Vairava Panikkhan. A feeble attempt was made to contest the finding that she was not the married wife of the 2nd plaintiff. It was argued that the Courts below have not given sufficient weight to the presumption arising from continuous cohabitation for a long time. This contention is untenable. The Courts have come to a distinct finding upon the evidence on record. The finding that Mukkayi was only a concubine of the 2nd plaintiff and that 1st plaintiff was her illegitimate daughter is correct.
8. It has not been disputed that the property in question represents the savings of Mukkayi after she began to live with the 2nd plaintiff. The point for decision is whether 1st plaintiff, the illegitimate daughter or 1st defendant, or the legitimate son, should succeed to this property. Mr. P.R. Ganapathi Aiyar, who argued the case for the legitimate son very ably contended that the ancient lawgivers did not contemplate rights of succession or inheritance in favor of illegitimate children excepting in a special instance to which J shall refer subsequently. I agree with him. It is true that in Brihat Parasara, chapter V, the sage says: 'The son, begotten by one of equal caste (the illegitimate son) is the offerer of Pinda of his mother and is (in every respect) a son to her; but he is nothing to the begetter, as he is born of lust.
9. The son by a slave of a Sudra is fulfiller of desire and offers the Pinda. Twelve sons are mentioned by the Rishis. They are offerers of the Pinda, one after another in the order mentioned.' From this Mr. Ghose draws the inference 'that according to the rule of Brihat Parasara, chapter V, illegitimate as well as legitimate children inherit the estate of a woman, and if it is stridhana there is no reason to suppose that the ordinary rules of Hindu Law will not apply.' (J.C. Ghose's 'Principles of Hindu Law', p. 343). I do not think that this conclusion follows from the citation. It is well established that under the Mitakshara system of inheritance the offering of spiritual benefits is no index to rights of property or to preference. It is different under the Dayabagha. This may account for some of the decisions passed by the Calcutta High Court to which I shall refer later on. I am therefore of opinion that this text of Brihat Parasara is not indicative of the sage's view that illegitimate children inherit the property of their mother. The learned vakil for the appellant drew our attention to a text from Narada Smriti in which a Kanina's son was mentioned as entitled to succession. The passage in question enumerates the twelve classes of sons to which reference is made by every smriti writer. After the dictum of the Privy Council in Thakoor Jhbnath Singh v. The Court of Wards (1875) 2 I.A. 163, which says that these texts are no longer regarded as binding authorities except in the case of adopted sons, it would be fruitless to discuss the matter further. I entirely agree with what Mr. Ghose says in his book on the subject.' It appears that at the time of the Rig Veda, probably even before that (twelve kinds) of sons were recognised, but the Rig Veda says that they 'cannot be accepted.' 'It is at least fully three thousand years when all theseanamolous sons were prohibited and the extreme purity of Hindu family life established.' The one apparent exception to this position is the rule regulating the rights of illegitimate children among Sudras. This deviation from the ordinary rule is traceable more to the theory of marriage among Sudras entertained by the Rishis than to a desire to introduce a special law regarding illegitimate children. According to Manu it was permissible for the twice born classes to take Sudra wives. The 'Nishada' as the offspring of this union was called, had certain rights of inheritance. Brihaspathi's text says that such children were only entitled to maintenance. Finally at the time of most of the Smrithis now recognised as giving the law, they were not recognised as possessing any legal status. But in the case of Sudras, an exception was made. J am of opinion that this treatment was due to the idea that marriage among them was not so strictly formal and ceremonial as in the case of the higher classes. Continuous concubinage was regarded as equivalent to marriage although the children of this irregular union did not rank equally with those with whose mother there was a formal marriage. The use of the term Dasiputra even in the case of Sudras is explicable on the ground that it is a relic of the days when the twice-born classes were allowed to take to them Sudra women as wives. This I conceive, is the origin of the rule regarding the shares of illegitimate children among Sudras. It is open to question whether having regard to the advancement of the class known as Sudras the law which owes its conception to these ideas should still, be allowed to prevail. The point has never been raised whether they are not obsolete and the texts have been commented upon by the highest Judicial tribunal as still in force. Whatever may have been the basis of the rule, it cannot apply to the present case, I have referred to this part of the case in some detail in order to show that illegitimate children of the class to which 1st plaintiff belongs are not within the pale of Hindu Law.
10. The main contentions of the appellant were two-fold: (a) That the Hindu Law did hot cease to govern Mukkayi's property notwithstanding her unchastity and (b) that the special rules relating to the devolution of stridhanam applied to the property in dispute, and consequently the daughter ought to be performed to the son. The first ground is not contested by Mr. Ganapathi Aiyar. He argued that the unchastity of Mukkayi did not sever her relation with her legitimate child. He relied upon the analogy of the case in Bagwan Koer v. J.C. Bose I.L.R. (1901) C. 11 where the Judicial Committee of the Privy Council held in the case of a Sikh that strict conformity to rules of orthodoxy regarding diet and the ceremonials also is not a pie-requisite for a person being regarded a Hindu. The same' principle has been enunciated regarding Brahmos; Vide Kusum Kumari Roy v. Satya Ranjan Das I.L.R. (1903) C. 999. Apart from analogy we have a recent pronouncement of the Calcutta High Court in Hiralal Singh v. Tripura Charan Boy I.L.R. (1918) C. 650 that a woman who adopts the life of a prostitute does not sever the tie which connects her with her kindred by blood. See also Swarna Moyee Bewa v. Secretary of State for India in Council I.L.R. (1897) C. 254 and Narumayya Ghetti v. Thiruvengadathan Chetty (1912) 24 M.L.J. 223. This is the natural result of the earlier cases in this Presidency which have laid down that a fallen mother is entitled to inherit her son's property. (See Kojiyady, v. Lakshmi I.L.R. (1882) M. 149, Angammal v. Venkata Reddi I.L.R. (1882) M. 149 and Vedammal v. Vedanayaga Moodelliar I.L.R. (1882) M. 149. It must therefore be taken as established that Mukkayee's property will devolve according to the rules of Hindu Law.
11. The second proposition that the 1st plaintiff being the daughter should be preferred to the 1st defendant the son, cannot be supported. In the Mitakshara, Chap. I, sections I and II dealing with inheritance, the words, son, grandson, and great grandson are used in their natural sense. In section XI of the same chapter, Placitum 2, the definition of a legitimate son is given. Then comes the special Section 12 dealing with the rights of illegitimate sons of Sudras. Placitum 2 speaks of the sons by the wedded wife and of the son of a female slave. It is thus cleair that the author everywhere uses the term son in its natural and ordinary sense of legitimate son. The word daughters must be similarly understood. It is in chapter II, Section 11 that Vignaneswara treats of the separate property of a woman.' In this section, the words son and daughter must have the same meaning as they have in the earlier sections. That would be the ru*e of interpretation according to English Law (see per Lord Den-man in the Queen v. The poor Law Commissioners for England and Wales in the matter of Holborn Union I.L.R. (1908) C. 661 and In re Kriskull Brewery Company Limited and Reduced (1877) 5 Ch. D. 535. There is no difference in this respect between the English Law and the Hindu Law. The rule of interpretation is thus stated in adhikarana Kaumudi para 50 (Mirnamsa rules of Interpretation p. 276) 'Multiplicity of sense to the same word must not be attributed.' (sic) if the words son and daughter are used in chapter II, Section XI, placita 8, 9 and 19 in their ordinary and natural sense, it is clear that there is no foundation for the suggestion that an illegitimate daughter is within those rules. Illegitimate children have no place in Hindu Law at least under the Mitakshara system except in the special case already referred to.
12. Another contention of the appellant was that a prostitute is a dancing girl as that term is understood in Southern India and that as daughters among this class inherit their mother's property, 1st plaintiff is entitled to the same rights. It has been laid down in a series of decisions by the late Justice Sir T. Muthu-sami Aiyar that rights of inheritance among those women are not governed by the precepts of the sages but by the custom which has grown among them. See Venku v. Mahalinga I.L.R. (1888) M. 393 and Muthukannu v. Paramasami I.L.R. (1889) M. 214.
13. It has been held in a recent case Guddati Reddi Obala v. Ganapathi Kondana : (1912)23MLJ493 that a married woman taking to bad ways does not become a dancing girl. I do not desire it to be understood that I am in agreement with all the observations of one of the learned Judges who took part in that decision. There is a fundamental difference between rulings which lead to the encouragement of prostitution and those which tend to preserve civil rights to those who are the unfortunate offspring of immoral sexual connection. A custom is not immoral because it regulates rights of property among dancing girls. I need not pursue this topic any further. I am in agreement with the view taken in that case that the unchastity of a married woman will not bring her within the class of dancing girls so as to enable her to exercise all the rights which by custom and precedent have been allowed to them. This contention also fails.
14. A further argument was based upon an obiter dictum in Subbraya Pillai v. Bamaswami Pillai I.L.R. (1899) M. 171 which says: ' No doubt in Sivasangu v. Minal I.L.R. (1889) M. 277, Narasanna v. Gangu I.L.R. (1889) M. 133 and in the goods of Kaminee Money Bewah I.L.R. (1894) C. 697 which is more to the point it was said that prostitution severed the legal relation. But we are unable to agree in this statement, though we think that the decision itself, that when there is a competition between a degraded person and an undegraded person to the property of a degraded person, the degraded person has the preferential right, may be supported on equitable principles, referred to above.' As regards the proposition that on equitable principles, the illegitimate offspring should be preferred to the legitimate, I must with great deference differ from the conclusion. I do not see that any consideration of equity can arise in favour of the illegitimate offspring as against the legitimate. If one were entitled to resort to other systems of Jurisprudence regarding the rights of bastards, it would be clear that they have no legal claim upon the estate of their parents. 'The Hindu Law contains no exception to this principle : and I fail to see how a right which is discountenanced by every civilized community can be regarded as being in consonance with Equity, Justice and Good conscience. I have come to the conclusion that the claims of the appellant to be preferred to the 1st Respondent is not sustainable on any of the grounds stated by her vakil. I shall now, very briefly refer to the cases, cited before us. In many of those cases there was no argument whether illegitimate children are heirs under the Hindu Law. This is notably so with regard to S.A. No. 181 of 1911 to which I was a party. There the conflict was between two illegitimate children _a son and a daughter and we held that the daughter was to be preferred as the dispute related to Stridhanam property: The question whether illegitimate children can come in to intercept the escheat to the Crown is a point of some difficulty which it is not necessary to go into at present.
15. The earliest case to which our attention has been drawn is that reported in Tara Munnee Dossee v. Motee Buneanee and Anr. 7 Sud Diw. Ad. Rep. 273. In that case the opinion of the Pandits was that prostitution severed the tie of kinship; acting upon this Vyavasta, the Sudder Court held that the daughters who were born after the mother's fallen state and 'who lived with the out-caste mother and had all things in common with her' should be preferred to the legitimate daughter. This opinion of the Pandits is no longer law and a decision based upon such an opinion cannot be regarded as an authority. In the case reported in Myna Bai v. Uttaram (1864) 2 M.H.C.R. 19, there was no competition Between legitimate and illegitimate children. Both the contending parties were illegitimate. The learned Judges accepted the dictum of the pandits in Taramanee's case Sud. Diw. Ad. Ref. 273, as good law and decided that in the absence of preferential heirs they inherited the mother's property and to one another. This decision does not affect the present case. It may, however, be pointed out that the opinion of the Judicial Committee in this very case Myna Bai v. Uttaram (1861) 8 M. I.A. 400, is more qualified regarding rights of succession to the mother's property than the conclusion of the learned Judges of the High Court. Subbaraya Pilla v. Ramasami Pillai I.L.R. (1899) M. 171 expressly laid down that prostitution did not sever the pre-existing legal relation, and dissenting from the dicta contained in the earlier cases decided that a stepson was entitled to succeed. In Annayyan v. Ghinnan I.L.R. (1909) M. 366 the learned Judges held that an illegitimate son by a Sudra widow whose remarriage is forbidden had no right of inheritance. This is a distinct pronouncement in favour of the position that Hindu law does not recognise the rights of illegitimate offspring to succeed to their parents' property. Much reliance was placed on the recent case in Narumayya Chetti v. Tiruvengadathan Chetti (1912) 21 M.L.J. 223 on behalf of the appellnat. The actual decision in that case was that the daughter of the daughter of a prostitute born to her in wedlock is to be preferred to the sons she begot after she became a prostitute. That opinion is in entire accordance with the conclusion at which I have arrived in this case. The statement that the illegitimate sons are entitled to succeed to their mother may be reconcilable on the ground that in the absence of preferential heirs and if the Crown does not intervene, they would succeed as blood relations. As I said before, the actual decision supports my view. In Bhikya v. Babu I.L.R. (1908) B. 528 it was held that in regard to ordinary property the divided brother's son excluded the illegitimate daughter. I fully agree with the opinion of Chandravarkar J. in Jagannath Raghu Nath v. Narayan I.L.R. (1910) B. 553 ' that there is no authority whatever in the Hindu Law for the proposition, which is contended for by Mr. Pradhan that, when the competition is between the husband and a son born of the woman by adulterous intercourse, that the son supersedes the husband as heir to the stridhanam.' A full Bench of the Calcutta High Court reviewed all the earlier authorities on the subject in Hiralal Singha v. Tripuracharan Bay I.L.R. (1918) C. 650 and arrived at the conclusion that prostitution did not sever the tie of blood previously existing. It is true there are cases in the High Court which seem to lay down that illegitimate children have rights of inheritance. This view may be traced to the prevailing theory in Bengal that the offering of oblations has to be taken into account in determining heirship. This principle does not affect those governed by Mitakshara, and consequently these rules are notbinding on us.
16. Upon a review of the texts bearing on the question and of the decisions based on them my conclusion is that illegitimate children of a prostitute have no rights of inheritance under the Hindu Law as obtains in this Presidency, that the 1st Defendant is entitled to the property of Mukkayi and that 1st plaintiff's claim must fail.
17. I would dismiss the second appeal with costs.