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Sundaram Minor by His Mother and Next Friend, Saradambal Vs. Meenakshi Achi and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in16Ind.Cas.787
AppellantSundaram Minor by His Mother and Next Friend, Saradambal
RespondentMeenakshi Achi and ors.
Cases ReferredBarindavana v. Radhamani
Excerpt:
hindu law - mitakshara--inheritance--illegitimate son of sudra--temple dasi, son of--continuous concubinege--concubine virgin. - .....was dismissed by the subordinate judge, who found that saradambal, the plaintiff's mother, was a temple dasi and was the concubine of saravana pillay, but that it was not proved that she was kept by him 'exclusively and continuously.' he found that the plaintiff was born during the time his mother was saravana pillay's concubine, but that it has not been proved that he was the son of' saravana pillay. he also found that, even if he was born to saravana pillay, he is not entitled to the properties of sarvana pillay after his death under the hindu law.2. in appeal, these findings have been disputed.3. saravana pillay left a legitimate son by the 1st defendant, one of his widows. that boy having died, the plaintiff claims to recover the entire properties by survivorship. defendants nos. 1.....
Judgment:

Sankaran Nair, J.

1. The suit out of which this appeal arises was brought by the plaintiff to recover possession of certain properties on the ground that ha was the dasi putra of one Sarvana Pillay. The suit was dismissed by the Subordinate Judge, who found that Saradambal, the plaintiff's mother, was a temple dasi and was the concubine of Saravana Pillay, but that it was not proved that she was kept by him 'exclusively and continuously.' He found that the plaintiff was born during the time his mother was Saravana Pillay's concubine, but that it has not been proved that he was the son of' Saravana Pillay. He also found that, even if he was born to Saravana Pillay, he is not entitled to the properties of Sarvana Pillay after his death under the Hindu Law.

2. In appeal, these findings have been disputed.

3. Saravana Pillay left a legitimate son by the 1st defendant, one of his widows. That boy having died, the plaintiff claims to recover the entire properties by survivorship. Defendants Nos. 1 and 2 are the widows of Saravana Pillay.

4. I agree with the Subordinate Judge in his finding that Saradambal was a temple dasi. The temple accounts, Exhibit XI, show that in 1879, Saradambal was dedicated to the temple. She described herself as a dasi in certain counterparts of leases executed by her, along with the other members of the family, promising to pay rent for certain properties occupied by her belonging to the temple (see Exhibits I and XII). In a suit brought against her, she was described as a dasi and it was alleged therein that she had failed to pay rent and perform certain stipulated services in the temple. In her written statement, she admitted that she was always ready and willing to perform such services (see Exhibit II). The evidence leaves no room to doubt that she_ was temple dasi.

5. It is also proved that she was kept by the deceased Saravana Pillay from 1894 to the-date of his death in 1901. It is contended by the defendants that she was a prostitute before she become Saravana Pillay's concubine. In an instrument of gift, Exhibit A, executed by the deceased to Saradambal, he said that she came to him as a virgin and that the usual ceremony was performed on the 20th August 1894, when he took her as a concubine. He acknowledged there that she had been living with him since that date and had borne to him children. There is no evidence to rebut this positive testimony and I am, therefore, of opinion that she came to him as a virgin.

6. The next question is, whether, during this period, 1894 to 1901, 'her connection with Saravana Pillay was of a continuous and exclusive character.' The evidence is quite clear that she was known during this period as Saravana Pillay's concubine. The documentary evidence relied upon by the defendant, Exhibits C5, C6, C7, and the oral evidence of the defence witnesses are vague. They do not show that she was unfaithful to him.

7. The next question is whether the plaintiff is the son of the deceased. It is true that there is no presumption in his favour as pointed out by the Subordinate Judge, but we have the facts that he was born when his mother was kept by Saravana Pillay as his concubine and there is no evidence that she was unfaithful to him, and above all there is the fact that Saravana Pillay acknowledged that the plaintiff was his son (see Exhibit C 10). It may be true, as pointed out by the Pleader for the respondent, that Saravana Pillay was so completely under the influence of Saradambal that he was prepared to accept anything she told him, nevertheless, there is the fact that he acknowledged his paternity and that admission is supported by the other circumstances in the case. I am, therefore, of opinion that it has been proved that the plaintiff is the son of Saravana Pillay.

8. Then, the more important question remains, whether on these facts the plaintiff is entitled to inherit as a dasi putra. In a series of decisions, it has been held by this Court that the illegitimate son of a Sudra is entitled to inherit to him under the Mitakshara law, if his mother was unmarried and a continuous concubine The reason of the rule is stated to be that the dasi is in the position of a substitute for wife though not legally married. It is contended before us that as Saradambal was a temple dasi, she was disqualified from marrying the deceased and, therefore, could never be a substitute for a wife and hence does not come within the reason of the rule. The question whether a dancing girl may not give up her profession and become the mother of illegitimate children within the meaning of the Mitakshara law, was left open in the case of Barindavana v. Radhamani 12 M.K 72 . But in this case, it is unnecessary to decide that question. It is quite clear from the evidence in this case that Saradambal did not give up her profession as a dancing girl. The office of dasi in the temple carries with it, according to custom, certain emoluments and perquisites. In Exhibit III, described as a rental agreement, executed to the Pandarasamathi of Dharmapuram in September 1898, the plaintiff's mother states that she would perform the service of dancing in the temple and receive the daily allowances which a temple dasi is entitled to receive and on the days when she dances, she would receive the other emoluments also as stated in that agreement She undertook to perform the duties of a dasi without any laxity. It is quite clear that being a temple dasi, bound to obey the orders of the Dharmakarta and perform the services of the temple, she could not always live with Saravana Pillay and so could not be a 'substitute for a wife' contemplated by the Madras decisions and her sons, therefore, are not entitled to succeed to his property under the Mitakshara law. On this ground, the appeal is dismissed with costs.

Ayling, J,

9. I agree.


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