Alfred Henry Lionel Leach, C.J.
1. The question raised in this appeal is whether the illegitimate daughters of a Hindu woman are entitled to succeed to the stridhanamoi their mother's mother, the family being governed by the ordinary Hindu Law and not by rules based on custom as in the case of dancing girls. The appellants are the illegitimate 'daughters of one Dharmu Ammal, who died on the 27th April, 1921. Dharmu Ammal was the legitimate daughter of one Murugayi Ammal, who left stri-dhanam property. The appellants' claim that under Hindu Law they are the nearest heirs of Murugayi, who was also survived by Venkatachalam Chetti, the grandson of her sister. It is common ground that if the appellants are not heirs of Murugayi the person entitled to the property is Venkatachalam.
2. The suit out of which this appeal arises was filed by the appellants in the Court of the District Munsif of Tiruvadi with the object of setting aside an alienation of immovable property forming part of Murugayi's stridhanam. The alienation was in favour of the respondent's predecessors-in-title and was made by Venkatachalam on the 20th July, 1910. The District Munsif accepted the appellants' contention that they were the heirs of Murugayi and decreed the' suit, but his decision was reversed on appeal by the District Judge of West Tanjore. The appellants then appealed to this Court and their appeal was heard by Varadachariar, J., who confirmed the decree of the District Judge. Varadachariar, J., pointed out that the general principle of the Hindu Law was undoubtedly to limit heirship to legitimate issue, but in the case of illegitimate sons amongst Sudras a special exception had been made by the texts. The exception did hot, however, extend beyond the illegitimate sons of Sudras. The fact that Courts had recognised as between a mother and her illegitimate daughter the right of inheritance was no warrant for the extension of sapindaship to other relations.
3. It has been argued on behalf of the appellant that the following paragraphs from the Mitakshara, Chapter II, Section 11, should be read as including both the legitimate and illegitimate daughters:
(15) On failure of all the daughters' the daughters' daughters take, under this text, 'It will go to the daughters if she leaves firogeny, etc,'
(16) If there be a multitude of these (and if they be) children of different mothers, and unequal in number, shares should be allotted to them through their mothers, as directed by Gautama : 'Or, according to the mothers, let the special shares (be adjusted) in each case.'
(17) If there be daughters as well as daughters' daughters simultaneously, a tuifle only should be given to the daughters' daughters. As has been directed by Manu: 'Such of the daughters of those (daughters) as may exist even to those, something should be given, as may be fit, from the property of the grandmother, on the score of affection.
4. This argument is expressly negatived by the decision of this Court (Oldfield and Seshagiri Aiyar, JJ.) in Minakshi v. Muniandi Panikkar : (1914)27MLJ353 . Oldfield, J., observed:
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 (1909) I.L.R. 33 Bom. 452). 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 provisions in her favour, such as is available in the case of illegitimate sons?
5. Seshagiri Aiyar, J., after referring to the text conferring a right of heirship on the illegitimate son of a Sudra, observed that illegitimate children have no place in Hindu Law when there are legitimate heirs at least under the Mitakshara system, except in the special case of the illegitimate son of a Sudra.
6. Before the ordinary rules of succession can be departed from in favour of illegitimate offspring there must be express authority to be found in the ancient texts or some statutory provision. It is conceded that the texts do not go beyond making provision in respect of an illegitimate son of a Sudra and the appellants are not able to rely on any statutory provision. With one exception, the cases which have been quoted to the Court have all had reference to the rights of the daughter, not the grand-daughter, to succeed. It is not disputed by the learned Advocate for the respondent that so far as the daughter is concerned she is entitled under the Hindu Law to succeed to her mother's property notwithstanding she is illegitimate. Of course, if there were also a legitimate daughter the illegitimate daughter would be postponed to the legitimate issue.
7. The case which provides the exception is Angammal v. Venkata Reddy I.L.R.(1902) 26 Mad. 509, where the question was whether the degradation of a daughter on account of her adultery put an end to her : right to inherit the stndhanam property of her mother. It was held that because the daughter had been living in adultery she did not lose her right to inherit her mother's stndhanam property. On this finding it was held that the daughter's two illegitimate daughters were held to be entitled to their grandmother's stndhanam in preference to their mother's brothers. The question whether the illegitimate daughters were entitled to inherit their grandmother's property was never raised. It was merely assumed that the illegitimate daughters took their mother's place. Therefore the judgment in that case cannot be read as deciding the question now before us or accepted as any authority in favour of the appellants' contention.
8. The learned Advocate for the appellants has drawn the Court's attention to a statement in Sir Hari Singh' Gour's Hindu Code, Fourth Edition, page 1149,. where it is stated that unchastity and illegitimacy are no bars to succession to stridhanam. This broad statement is based on the decisions of the Bombay High Court in Advyapa v. Rudrava I.L.R. (1879) 4 Bom. 104 and Tara v. Krishna I.L.R.(1907) 31 Bom. 495. An examination of the judgments in these cases however, fails to lend support to the statement that illegitimacy is no bar to succession to the stridhanam if by this is meant succession to the stridhanam of a person other than the mother-In the former of these two cases the question was whether under the Hindu Law prevailing in the Bombay Presidency a daughter was barred by incontinence from succession to the estate of her father, and it was held that she was not. In the latter case a daughter who had lived by prostitution claimed her father's property as heir to the exclusion of her sisters who were married. The question was whether the rule that an unmarried daughter inherits to her father before his married daughter applied in such a case.
9. It is clear that there is no authority which extends the right of an illegitimate daughter to succeed beyond the right to succeed to her mother's stndhanam. I consider that the decision of Varadachariar, J., is correct and that the appellants are not entitled to have the alienation set aside. They are not heirs of Murugayi and the person who is entitled to her property-is Venkatachalam who was responsible for the alienation to the respondent's predecessor-in-title. The appeal will be dismissed with costs.
Krishnaswami Aiyangar, J.
10. I am of the same opinion. I can find no warrant for holding that as a general rule the system of succession under the Mitakshara Law is based on a relationship other than a relationship through valid marriage and legitimate descent. A qualified right in favour of the illegitimate son amongst Sudras, by choice of the father as it has been described, has been recognised but this is in the nature of an exception and must accordingly be kept within the limits of the exception itself. It is true that an illegitimate daughter has been held to be entitled to inherit to the stridhanam property of her mother. This right will however be found on examination to be based not upon any ancient texts or rule of law but upon custom and analogy. (See Myna Bai v. Uttaram (1864) 2 M.H.C.R. 196 at 201.), Reference was made by learned Counsel for the appellant to a passage from Yagnavalkya cited in the case mentioned. That passage is:
A damsel's child is one born of an unmarried woman; he is considered the son of his maternal grand-sire.
11. This text has reference to the kanina son, one of the twelve sons recognised in the ancient law of whom all except one halve long since become obsolete. The passage throws no light on the right of a daughter's daughter to inherit to her grandmother's estate. Even if the text should be held to have validity at the present day it would only mean that a kanina son would be entitled to inherit directly as a son to the maternal grandfather's estate. The text however has really no bearing on the question which falls to be decided in this case.