1. This reference raises .an interesting question of Hindu Law--Whether the widows of a legitimate son are entitled to succeed to his mother's stridhana property in preference to her illegitimate daughter?
2. Thulasi was the mother who died in 1047, leaving her legitimate son who died in 1949 and an illegitimate daughter by name Manickam. The two widows of the son survived. During her lifetime. Thulasi made over portions of certain properties which she had purchased earlier, to Manickam. The defendant's father purchased a small extent of property from the daughter which was not covered by the conveyance of Thulasi in her favour. The suit was brought by the two widows for title and recovery of possession. The first court decreed the suit. But it was reversed by the lower appellate court on the view that Manickam. though an illegitimate daughter, was entitled to succeed to Thulasi as her stridhana heir. The second appeal arising out of the first appellate Court's decree has been referred to a Bench of three Judges because there was a conflict of opinions betweenMeenakshi v. Muniandi Panikkan, 1 Mad LW 704 = (AIR 1915 Mad 63) and Venkanna v. Narayanamma, .
3. There is no text directly governing the matter. Chapter I, Section XI of Mitakshara dealing with the separate property of women only lays down that, if a woman dies without issue, that is to say, without a daughter, or a granddaughter, or daughter's son, or son or son's son, her property shall be taken by her kinsmen, namely, her husband and certain others mentioned in the text. We also find it stated in the text that in all forms of marriage, if the woman leaves a progeny, that is, if she has an issue her property devolves on her daughters, which term would also include granddaughters. Gautama points out that a woman's property goes to her daughters unmarried or unprovided or provided as is implied by the conjecture particle in the text. On failure of daughters, the grand daughters in the female line take the succession under the text. At the Bar too, it was not suggested that there was any other text of Hindu Law, which dealt with the rights of an illegitimate daughter.
4. Meenakshi v. Muniandi Panikkan, 1 Mad LW 704 = (AIR 1915 Mad 63) held that except in the case of illegitimate sons of Sudras, illegitimate children have no right of succession under the Mitakshara law. That was a case of a woman leaving a legitimate son and an illegitimate daughter. Seshagiri Ayyar, J. if we may say so with respect, took an extreme view that illegitimate children had no place in Hindu law, at least under the Mitakshara system, except in the special cases he referred to. He thought that Section XI, which we referred to earlier, should be interpreted in the normal sense, that is to say, reference to a daughter there means only a legitimate daughter. The learned Judge observed-
"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."
He pointed out that if by a son in the text, only a legitimate son is understood, the word 'daughter' must be similarly understood. Oldfield J. substantially agreed with Seshagiri Aiyar J. and said-
"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 these references and is unauthorised by the rules of interpretation recognised by both English and Hindu law."
There were other approaches to the succession there, one of which was the un-chastity of the woman to whose estate the succession was in dispute. We are not concerned with that question. 1 Mad LW 704 = (AIR 1915 Mad 63) has thus clearly ruled that an illegitimate daughter should give way to a legitimate son in the mat- ter of succession to the stridhana property of their mother and this result was arrived at by what the learned Judges described as interpretation by the primary sense of the word 'daughter' as indicative of only a legitimate daughter.
5. Venkanna v. Narayanamma, was a case of a contest to a woman's stridhana property between her husband's brother and her illegitimate daughter. Mack and Krishnaswami Nayudu, JJ. held that an illegitimate daughter was entitled to succeed. The learned Judges in their judgment referred to 1 Mad LW 704 = (AIR 1915 Mad 63), and though the decision was not overruled, as they could not possibly, they definitely differed from it in effect. Both Mack and Krishnaswami Nayudu, JJ. examined the texts and the decided cases as well as leading text books on Hindu law and opined that the property which the daughter succeeded to being stridhana, there could not be any nearer heir than the daughter and the illegitimate daughter being held entitled to succeed, any condition as to there being no nearer heirs could not have any force and the daughter's right to succession to their mother was not based on any other basis except that she was an issue born to the mother and, therefore, heir to her stridhana. Krishnaswami Nayudu J. after referring to textual and decided cases and leading publications on Hindu law, summed up-
"Neither the language of the Mitakshsra text nor the application of any reasonable rule of interpretation would justify the exclusion of the illegitimate children of a Hindu married woman from succeeding to their mother's estate."
In fact they have felt that a legitimate daughter and an illegitimate daughter, should be placed equally in the matter of succession to their mother's stridhana property. Mack J. in this connection, stated 'if a woman has a legitimate daughter and an illegitimate daughter, they will both, in conformity with the ancient Hindu texts, take equally'. This means that the learned Judges were not prepared to apply that 1 Mad LW 704 = (AIR 1915 Mad 63) which regarded that in the primary sense of the word daughter it had reference only to a legitimate daughter.
6. Meenakshi Ammal v. Murugayya Moopanar, 51 Mad LW 336 = (AIR 1940 Mad 463) notices that an illegitimate daughter is an heir to her mother's stridhana property, though it held that she could not succeed to stridhana property of her maternal grandmother. But the process of reasoning by which they arrived at that conclusion, we are not concerned with in the present case as it is confined to the conflict between a legitimate son and an illegitimate daughter of a married woman with reference to her stridhana property,
7. Mulla on Hindu Law, 14th Edition, points out that the illegitimate children of a Hindu woman are not excluded from inheritance to their mother's stridhana. But he would add on the authority ofMeenakshi v. Munandi Panikkan, 1 Mad LW 704 = (AIR 1915 Mad 63) that when a woman dies leaving both legitimate and illegitimate children, the legitimate children are preferred to the illegitimate. The textual Hindu law as well as decided cases have clearly laid down that succession to stridhana property is quite different and distinct from succession to the property of a male Hindu and the difference in the lines of succession is based on different theories or concepts. Succession to stridhana property is based on the blood relationship of the mother to her stridhana heirs. There is no legitimate reason why, when the blood relationship is the basis for stridhana succession, we should interpret, the word daughter in the original text above referred to as confined only to a legitimate daughter. As Trevelyan in his book on Hindu Law, Edition 3, at page 500, observed, "illegitimacy is not a bar to the succession of children to their mother's property". It is true that he also stated that in a competition between legitimate and illegitimate children, the rights of the former prevail. Perhaps that would be so and we doubt its correctness; when the competition is between a legitimate and an illegitimate daughter. But this point we do not decide in this case as it does not arise. When once an illegitimate daughter is recognised, as an heir both by interpreting the word in the original text as including an illegitimate child and also on the basis of decided cases, there is no reason why the stridhana line of succession should be entirely departed from, with a view to favour the son exclusively. It is only when the stridhana line of succession is unavailing that it is permissible to go to the other line of succession.
8. On the question which we are called upon to answer, where there is no inhibition expressly or impliedly to be found in the original text, Courts cannot lose sight of the progressively changing views of social outlook and insist upon only applying the old notions. We are with great respect, unable to concur with Seshagiri Aiyar, J., that an illegitimate daughter has no place at all under the Hindu Law except in limited cases which he pointed out. The change in the social outlook in respect of succession is reflected in the recent legislations, particularly the Hindu Succession Act, 1956, which has done away with the distinction between legitimacy and illegitimacy within certain limits in the matter of succession either to property of a male or a female, dying intestate. We also note that Section 3(j) which defines the word 'related' has a proviso according to which illegitimate children shall be deemed to be related to their mother and to one another. In fact it goes further and says that their legitimate descendants shall be deemed to be related to them and to one another and any word expressing relationship or denoting a relative shall be construed accordingly. It seems to us that having regard to this trend of legislation reflecting the changing social approach to succession, we will be justified in interpreting the word daughter in the original text as including - an illegitimate daughter as well. We are also of opinion that once an illegitimate daughter is an heir, as we hold she is, to succeed to her mother's stridhana property, so long as she is available, the son, who is not in the nearer line of stridhana heirs, cannot have preference and exclude an illegitimate daughter. On that view, we are of opinion that 1 Mad LW 704 - (AIR 1915 Mad 63) should be overruled.
9. The second appeal is dismissed with costs throughout.