Venkatasubba Rao, J.
1. The High Court granted Probate to the plaintiff of the Will of on(c) Janaki. A caveat has been entered by the defendant who applies for the revocation of the Probate. He denies that the Will produced is that of Janaki or that she was in a sound disposing state of mind when she made that Will. The application has been registered as a suit, the person to whom Probate was issued being the plaintiff and the caveator being the defendant.
2. The second issue raised in the suit is 'has the defendant no interest to support the caveat,' and this is the only issue I have tried.
3. Janaki is said to be a Brahmin female who was living as the kept mistress of !the plaintiff, a Sudra. The defendant neither in his caveat filed in this Court nor in his petition filed in the District Court of South Arcot has alleged that Janaki, the testatrix, was a degraded woman. On the other hand, he appears to have treated her as an ordinary respectable woman and on that footing claimed to be her heir as her maternal uncle. The plaintiff, on the other hand, in his written statement filed in the District Court of South. Arcot gives prominence to the fact that Janaki was living a life of unchastity. At the hearing before me, it suited the parties to take up positions just the very reverse of what they took up previously. The only fact on which both the sides were agreed is, that Janaki was leading an unchaste life; and the defendant on this ground asks that she should be treated as a degraded woman. He contends that as maternal uncle he is her heir and has thus an interest sufficient to enter a caveat. The plaintiff says in answer that there are nearer relations of Janaki in existence, to wit, her husband's brothers. Whether she be a degraded woman or not, they would be, according to him, preferential heirs who would exclude the maternal uncle. As the defendant does not dispute that if Janaki is treated as an ordinary respectable woman, her husband's brothers would be the nearer heirs, he relies upon the fact that she was a degraded woman and that, on that account, he, as maternal uncle, has a preferential claim.
4. In the first place, it seems to me that I cannot treat the testatrix as a degraded woman merely because she lived a life of unchastity. Whether a woman was degrade or not is a question of fact to be found in each case. Unchastity ipso facto does not produce degradation see Vedammal v. Vedanayaga Mudaliar 31 M. 100 : 2 M.L.T. 533 : 18 M.L.J. 70. When special legal consequences follow from the fact of a person being degraded, the Court will not assume that the person has become degraded by the mere fact that that person has lived a life of unchastity. It is obvious that to follow such a course will be attended by grave danger. In my opinion, unless there has been a formal expulsion from caste on account of unchastity, or the circumstances lead to an irresistible inference that the person concerned either treated herself as an out caste or was treated by her community as such, the Court will not be justified in proceeding on the footing that the fallen woman is a degraded woman and must be so regarded for the purposes of the law. In this case there is no evidence that Janaki was a degraded woman and, on this short ground, it may be held that the defendant has no interest to entitle him to enter a caveat.
5. The defendant, however, I may mention, does not admit that Janaki was married and that there are her husband's brothers in existence. But it has been clearly established that Janaki was married and that at present there are two persons alive who are her husband's brothers. One of them is Gopalakrishna Iyer who has been examined on behalf of the plaintiff. That the defendant's case is utterly untrue there can be no doubt, for his present deposition is at complete variance with the previous statements made by him in the petitions filed both in this and in the District Court of South Arcot. It is unnecessary to pursue this matter further and I hold that there are in existence Janaki's husband's brothers who would, under the ordinary Hindu Law, be nearer heirs of hers than the defendant her maternal uncle.
6. I have said that Janaki has not been proved to be a degraded woman and that the defendant would accordingly have no locus standi, but I shall also deal with the case on the footing that she was a degraded woman.
7. Assuming then that Janaki was a degraded Woman, is her maternal uncle a nearer heir to her stridhan property than her husband's brothers. It is conceded that, but for her degradation, under the ordinary rule of Hindu Law her husband's brother Would exclude her maternal uncle. Does the fact that she was degraded make an difference? The view that prevailed at one time was that degradation had the effect of severing the tie of relationship which connected the degraded person with her husband or his kindred. The law may now be taken as settled that degradation does not sever the tie of kinship previously existing, So far as the Madras High Court is concerned, this point was settled by Subbaraya Pillai v. Ramasami Pillai 23 M. 171 : 8 Ind. Dec. 518 In that case the step-son of a deceased Hindu widow sued as her heir for possession of certain property. The defence was that the widow has deserted her husband in his lifetime and lived a life of unchastity and that the plaintiff's right of inheritance was in consequence destroyed. The learned Judges thus stated the law: 'Therefore, the broad proposition that degradation of a woman in consequence of her unchastity entails in the eye of the law cessation of the tie of kindred between her and the members of her natural family and also between her and the members of her husband's family does not appear to be sustainable.' The learned Judges also observed that loss of caste did not sever the relationship with those who remained within the caste, whatever that relationship was, whether it was one of husband and wife or any other.
8. This case has been affirmed and followed in later decisions of this Court see Mandaram Nammaiya Chetty v. Mandaram Tiruvengadthan Chetty 18 Ind. Cas. 601 : 24 M.L.J. 223 : 13 M.L.T. 88 and Meenakshi v. Muniandi Panikkan : (1914)27MLJ353 .
9. Mr. Sivararnakrishna Iyer for the caveator asks me to draw a distinction between the kindred related to the degraded woman by blood and the kindred related to her by marriage. He contends that, whereas the tie connecting the degraded person with her blood relations is not severed, the degradation, however, has the effect of destroying the tie between her and those related to her by marriage. This contention is not supported by authority. In Subbaraya Pillai v. Ramasami Pillai 23 M. 171 : 8 Ind. Dec. 518 already referred to, the person recognised as the heir of the degraded woman was her step-son, i.e., her husband's son. The case, therefore, is a distinct authority for the proposition that degradation does not destroy the kinship with the husband's relations. If the husband's son is an heir, it is difficult to follow why the husband's brother is not. In Narain Das v. Tirlok Tiwari 29 A. 4; A.W.N. (1006) 243 : 3 A.L.J. 537 the right of a husband to succeed to his wife who had become a prostitute was recognised. The learned Judges referring to Subbarya Pillai v. Ramasami Pillai 23 M. 171 : 8 Ind. Dec.518 observed that they were in full accord with the judgment in that case. Again, in Jagannath Raghunath v. Narayan 7 Ind. Cas. 459 : 34 B. 553 : 12 Bom. L.R. 545 it was held that stridhan of a female devolved on her death upon her husband. These cases would show that the distinction sought to be made by the learned Vakil for the caveator does not exist.
10. I do not propose to deal with cases which deal with the rights of a degraded person, because in this case we are not concerned with disabilities, if any, under which a degraded person labours, but the question is entirely different, who are the heirs of a degraded person?
11. I have shown that the tie of kinship is not destroyed whether the kinsmen are blood relations or those related by marriage.
12. Mr. Sivaramakrishna Iyer next contends that granting that the tie of kindred is not dissolved in either case, as between the two undegraded relations--the husband's brother and the maternal uncle--the latter must be preferred being a blood relation. This proposition is not borne out by authority, and on principle, I am not disposed to accept it. Hari Lal Singh v. Tripura Charan Roy 19 Ind. Cas. 129 : 40 C. 650: 17 C.W.N. 679 : 17 CRI.L.J. 438 does not lend support to this contention. In Subbaraya Pillai v. Ramasami Pillai 23 M. 171 : 8 Ind. Dec. 518 the learned Judges observe: It is said that 'where there is no usage regulating the devolution of the property of a degraded person who is within the pale of Hinduism as in the case of dancing girls, the only rules of inheritance that the Courts can with propriety fall back upon are those of the Hindu Law.' The argument in support of this distinction is put thus: under the Hindu Law both in respect of maintenance and inheritance, chastity on the part of a wife is a condition precedent. As an unchaste wife or widow is deprived of certain rights in respect of the property of her husband, the Courts must, on grounds of justice, prevent the husband and his relations similarly from having any rights in her property.
13. It is a special rule of Hindu Law that it is only a chaste wife who can inherit to her husband or obtain maintenance, but there can be|no justification for basing any rule upon the so-called analogy furnished by this doctrine. Moreover, if mutuality is to be the test, even her blood relations would probably have to be excluded; for, but for Act XXI of 1850 the right of a woman expelled from caste to succeed to her kindred--be they - blood relations or these connected by marriage is extremely doubtful. Then it is said that, on grounds of equity and good conscience to which reference is made in Subbaraya Pillai v. Ramasami Pillai 23 M. 171 : 8 Ind. Dec. 518 the maternal uncle must be preferred to the husband's brother. I am unable to follow this argument. Both of them are undegraded relations and neither of them was connected with the degraded woman in her degraded state. On the grounds of equity, as between themselves who both treated her as an outcaste, how can one claim preference over the other? I am, therefore, unable to discover any special rule which, reversing the ordinary rule of Hindu Law, gives preference to a blood relation over a relation connected by marriage.
14. It needs scarcely be pointed out that the question here raised is very different from the question of preference when the competition is between an undegraded and a degraded relation. When the competing claimants are, on the one hand, degraded kinsmen, and, on the other, undegraded kinsmen, there has been a divergence of judicial opinion. In Subbaraya Pillai v. Ramasami Pillai 23 M. 171 : 8 Ind. Dec. 518 the learned Judges seem disposed to take the view, on grounds of equity, that a degraded relation has a preferential right. On the other hand, in Meenakshi v. Muniandi Panikkan : (1914)27MLJ353 where a legitimate son was preferred to an illegitimate daughter, and Jagannath Raghunath v. Narayan 7 Ind. Cas. 459 : 34 B. 553 : 12 Bom. L.R. 545 where a husband was preferred to an illegitimate son, the nearer heir was disregarded in favour of a remoter heir on the ground that the former was a degraded relation. In these cases the degraded relation, far from being preferred, was treated, on account of his very degradation as being under a disability. And yet again, in Mandaram Nammaiya Chetty v. Mandaram Tiruvengadthan Chetty 18 Ind. Cas. 601 : 24 M.L.J. 223 : 13 M.L.T. 88 a daughter's daughter who remained in caste was preferred to a son born after degradation on the ground that the former is a preferential heir under the Hindu Law. According to this case, that relation would take, whether degraded or undegraded, who would be the preferential heir, and the fact that the claimant is degraded or undegraded would make no difference. These cases show that three distinct views have been taken when the competition is between undegraded and degraded relations. I do not feel called on to express nay own opinion on this question as in the present case both the relations are undegraded.
15. I have come to the conclusion that, even assuming that the testatrix at her death was a degraded woman, the caveator (the maternal uncle) is not her heir and is not, therefore, competent to enter a caveat and his objection is, therefore, disallowed and there will be judgment for the plaintiff with costs.
16. I may add that Mr. 8. Doraiswami Iyer, the learned Counsel for the plaintiff, prefers his case being decided on the point of law without adducing evidence in regard to merits stating expressly that, he takes the risk of the Appellate Court taking a different view on the point I have determined.