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Sukurmoni (Widow of Bhupal) and anr. Vs. Kirpal NaraIn Tewari - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Judge
Reported in(1892)ILR19Cal91
AppellantSukurmoni (Widow of Bhupal) and anr.
RespondentKirpal NaraIn Tewari
Cases ReferredNarain Dhara v. Rakhal Gain
Excerpt:
hindu law - dayabagha--inheritance--sudra caste--illegitimate son--bengal act ii of 1869, section 26. - .....wife, viz., nund lal sahu (now dead) and bhupal sahu, the plaintiff no. 1, and a third son, doma sahu, the defendant no. 1, who, it is alleged, was born of a concubine. he owned a certain mocurruree property, mouzah jhari, and it was a dispute which took place between the parties in 1887 as regards the possession of the said property that led to the institution of this suit.2. the main question which was discussed between the parties in the courts below was whether doma sahu was a legitimate son of sheodyal, the plaintiff's contending that he was not, while the defendant asserted that he was. there was no contention raised in either of the lower courts that, supposing doma sahu was illegitimate, he was entitled to a share of the estate left by sheodyal. that contention, however,.....
Judgment:

Tottenham and Ghose, JJ.

1. One Sheodyal Sahu died many years ago, leaving two sons by a lawfully married wife, viz., Nund Lal Sahu (now dead) and Bhupal Sahu, the plaintiff No. 1, and a third son, Doma Sahu, the defendant No. 1, who, it is alleged, was born of a concubine. He owned a certain mocurruree property, mouzah Jhari, and it was a dispute which took place between the parties in 1887 as regards the possession of the said property that led to the institution of this suit.

2. The main question which was discussed between the parties in the Courts below was whether Doma Sahu was a legitimate son of Sheodyal, the plaintiff's contending that he was not, while the defendant asserted that he was. There was no contention raised in either of the Lower Courts that, supposing Doma Sahu was illegitimate, he was entitled to a share of the estate left by Sheodyal. That contention, however, has been raised before us and argued at some length.

3. Both the Courts below have found as a fact that Doma Sahu was not the legitimate son of Sheodyal, and that Nund Lal and Bhupal were in possession of the mocurruree, property for many years since the death of Sheodyal, and that Doma held the position of a karpardaz in the funnily. They have accordingly decreed the suit.

4. It has been contended before us by the learned vakeel for the appellant that in holding that Doma was not the legitimate son of Sheodyal, the Court below threw the onus of proof upon the defendant rather than upon the plaintiff, and that the evidence on the part of the plaintiff relied upon by the Judicial Commissioner does not amount to any legal proof of the illegitimacy of Doma.

5. We are, however, of opinion that the decision of the Lower Appellate Court is based upon the whole evidence in the case, and that no question of onus of proof arises in this appeal. And as regards the evidence as to illegitimacy, we think that the facts mentioned in the judgments of the Courts below do raise a prima facie case for the plaintiff that Doma Sahu could not have been the legitimate son of Sheodyal Sahu; and this prima facie case the defendant was bound to rebut by proving that there was a marriage between his mother and Sheodyal, or, at least, that she was treated during Sheodyal's lifetime as a lawfully married wife. The Lower Appellate Court has found as a fact, as has already been mentioned, upon the whole evidence that Doma was not a legitimate son of Sheodyal, and we see no reason to hold that in this it has committed any error in law.

6. The vakeel for the appellant referred us in the course of his argument to an office copy of the bhuinhari register of the year 1874, prepared by the revenue authorities under Bengal Act II of 1869; and it was contended that the entry in that register was conclusive evidence of the title of Doma Sahu as a co-sharer in the mocurruree. This register is headed 'Register of mouzah Jhari. Names of the proprietors, mocurrureedars, Doma Sahu and Bhupal Sahu.' And in the body of the register a certain quantity of land is recorded as 'majhahas' land in the possession of Doma Sahu and Bhupal Sahu. On referring to the preamble of the Act and the definitions, we find that 'majhahas' are lands reserved for the use of the proprietors and at their absolute disposal, and include tenures known as 'bhetkheta,' which are ordinarily assigned as remuneration to villagers who work for the proprietor or his assigns on the majhahas land. The preamble further shows that the object of the Act was to record the tenures mentioned therein, viz., bhuinhari (tenures held by persons claiming to be descendants of the original founders of the villages in which such lands are situate), bhetkheta and majhahas and other tenures, consisting of lands set apart as remuneration for services to be performed by the holders thereof, as also to prepare a register of the rights and liabilities of the holders of such tenures. And Section 26 of the Act provides that every register prepared under the Act after publication of the confirmation thereof in the Calcutta Gazette 'shall be conclusive evidence of all matters recorded in such register in pursuance of this Act; and from and after such publication of the confirmation of the register relating to any village, no evidence shall be received that any lands in such village not mentioned in such register are of bhuinhari or of majhahas tenure.' It seems to us that so far as the register records that certain lands are 'majhahas' and that Bhupal and Doma were then in possession of the lands, it is conclusive. But the register is not conclusive evidence of the title of Doma as a mocurrureedar of the village in which those lands are situate. It may no doubt be regarded as evidence, and indeed it has been considered by the Courts below as such.

7. We next turn to the contention raised before us that, supposing Doma Sahu to be an illegitimate son of Sheodyal, he is entitled under the law of inheritance to a share in the property in dispute; his father (Sheodyal) having belonged to the Sudra class and his mother having been, according to the plaintiff's own case, a concubine in the keeping of Sheodyal. The parties are governed by the Dayabagha school of law; and the learned vakeel for the appellant has referred us, principally, to Dayabagha, Ch. IX, verses 29 to 31 (as translated by Mr. Colebrooke), the decision of the Privy Council in the case of Inderun Valungypooly Taver v. Ramasawmy Talaver 13 Moo. I.A. 141; as also to certain cases decided by the Bombay, Madras, and Allahabad High Courts as to the rights of an illegitimate son of a sudra under the Hindu law of inheritance.

8. In Colebrooke's 'Dayabagha,' verse 29 (Ch. IX) has been translated thus:

But the son of a Sudra, by a female slave or other unmarried Sudra woman, may share equally with other sons, by consent of the father. Thus Manu says: 'A son begotten by a man of the servile class on his female slave, or on the female slave of his slave, may take a share of the heritage, if permitted: thus is the law established.

9. Verse 30 runs as follows: 'Without such consent, he shall take half a share: as Yajnyawalcya directs:' Even a son begotten by a Sudra on a female slave may take a share by the choice of the father: but if the father be dead, the brethren should make him partake of half a share.'

10. And verse 31 has been rendered by Mr. Colebrooke as follows:

Begotten on an unmarried woman, and having no brother, he may take the whole property, provided there be not a daughter's son. So Yajnyawalcya ordains: 'One who has no brothers may inherit the whole property for want of daughter's sons. But if there be a daughter's son, he shall share equally with him: for no special provision occurs: and it is fit that the allotment should be equal, since the one though born of an unmarried woman is son of the owner; and the other though sprung from a married woman, is only his daughter's son.

11. If the two verses 29 and 31 have been correctly rendered by Mr. Colebrooke, the appellant's contention would seem to be correct. But the correctness of the translation was questioned before a Division Bench of this Court (Markby and Mitter, JJ.) in the case of Narain Dhara v. Rhakhal Gain I.L.R. 1 Cal 1: and Mitter, J. after referring to the original text, was of opinion that there was a slight inaccuracy in Colebrooke, and that the verses in question should be rendered as follows:Verse 29.--' But the son of a Sudra by an unmarried female slave, etc., may share equally with other sons by consent of the father,' and so on. Verse 31.--'Having no other brothers begotten on a married woman, (he) may take the whole property, provided there be no daughter's son,' and so on. And the learned Judges in that case held that it was only a certain description of illegitimate sons of a Sudra by an unmarried woman that is entitled to succeed, viz., the illegitimate sons by a female slave or a female slave of his slave.

12. The learned vakeel for the appellant has contended before us that the rendering by Mitter, J., of the two verses is not correct.

13. We observe that the translation as given by Mitter, J., of verse 29 was accepted as correct by Dr. (now Mr. Justice) Bannerjee in the Tagore Lectures on 'Hindu Law of Marriage and Stridhan' (p. 167); and after conferring with him as to the rendering of both the verses 29 and 31, we are unable to differ from Mitter J.; in what he held to be the correct meaning of those verses. Verse 29, if literally rendered, may perhaps be translated in a slightly different way; but it would not make any difference in the real meaning.

14. The said verse is a commentary upon a text of Manu, which is that 'a son begotten by a man of the servile class on his female slave or on the female slave of his slave, may take a share, etc.' And it is difficult to believe that the author of the Dayabagha, while commenting upon that text, should have intended to go much beyond it, and to include the son of a Sudra by any unmarried woman, whether a female slave or not, as entitled to take a share. We observe that the author of the Mitakshara speaks only of the son of a Sudra by a female slave as entitled to inherit (Part II, Chapter I, Section XII), and Kulluker Bhutta, while commenting upon the said text of Manu, observes as follows: 'The son of a Sudra by a female made a captive or slave under a standard or the like, or by a female slave belonging to his male slave, if permitted by his father, shares equally with the sons by his wedded wife, that is, he obtains a share equal (to that of one of those sons): that is the settled rule of the Shastra' (see Shama Churn's Vyavastha-Darpana, new edition, p. 24). And it is noteworthy that the text of Yajnyawalcya recited in verse 30 of the Dayabagha mentions only the case of a son begotten of a female slave.

15. There may be, we think, a special reason why Manu and other sages in ancient times declared that sons of a Sudra by female slaves should take a share in the paternal estate: that reason being that in those days, when slavery existed in India, a slave occupied the position of a member of the family: he, like the wife and son, was incapable of owning any property; and whatever he earned belonged to the master {see Tagore Law Lectures by Babu Krishna Komal Bhuttacharjee, and the slokas from Manu, quoted therein, pp. 3--5). But the like reason would not exist in the case of a concubine, who is not a slave-girl: her position is wholly different indeed. There were, we may here observe, in ancient times 15 descriptions of slaves. We mean 15 different ways in which a person might become a slave to another (see Shama Churn's Vyavastha-Darpana, new edition, p. 27, and Macnaughten's Hindu Law, Volume II, p 273); and it would be necessary to show, when a right of succession is claimed by an illegitimate son, that he was born of a female slave of one or other of those descriptions.

16. We do not think it necessary to pursue the matter any further, it having been fully discussed in the case of Narain Dhara v. Rakhal Gain I.L.R. 1 Cal. 1. And as regards the decision of the Judicial Committee in the case of Inderun Valungypooly Taver v. Ramasawmy Talaver 13 Moo. I.A. 141 which was a case from Madras, we need only say that we agree generally in the observations of Mitter, J., in Narain Dhara's case in holding that the Privy Council did not intend to lay it down broadly that an illegitimate son of a Sudra is in all cases entitled to inherit.

17. As to the cases decided by the High Courts of the other Presidencies, the two leading cases are Rahi v. Govind Valad Teja I.L.R. 1 Bom. 97 and Sadu v. Baiza and Genu I.L.R. 4 Bom. 37. These two cases at the first blush may appear to support the view of the appellant; but on examination it will be found that it is not so. In the first-mentioned case it was laid down, as observed by Westropp, C.J., in the case of Sadu v. Baiza and Genu I.L.R. 4 Bom. 37 that in that Presidency 'among Sudras the illegitimate offspring of a kept woman or continuous concubine are on the same level as to inheritance as the dasiputra or son of a female slave by a Sudra.' In the latter case it would appear that there was no question whatever, rather it was admitted (see p. 47) that the illegitimate son Sadu would take a share in the inheritance upon the father's death. And Mr. Justice HARIDAS observed in one portion of his judgment that 'among Sudras, contrary to the rule obtaining among the regenerate classes, a son begotten of a female slave (dasiputra) inherits his father's property; and in this Presidency a Sudra's son by a concubine is treated as a dasiputra:' and in the paragraph immediately preceding that in which this passage occurs, it is stated that when the father (Manji) died, his family consisted of his two widows, a daughter, a legitimate son, and the illegitimate son, the plaintiff in the cause. The only real question, therefore, that the Court had then to consider was whether the legitimate and illegitimate sons having jointly succeeded to the estate of the father, the latter, upon the death of the former was entitled to take the whole estate by survivorship. And it was held that he was so entitled. This case, and so far as the decision upon the said question was concerned, we may here observe, was quoted with approval by a Division Bench of this Court, and by the Privy Council in the case of Jogendro Bhuputi v. Nittyanund Man Singh I.L.R. 11 Cal p. 702; on appeal I.L.R. 18 Cal. p. 151 where the question raised was also one of survivorship, and where the illegitimate son who claimed the property was born of a female slave.

18. The case of Pandaiya Telaver v. Puly Telaver 1 Mad. H.C. 478 cited before us, from the Madras High Court Reports is, we believe, the same case which went up afterwards to the Privy Council (13 Moo. I.A.) and which has already been noticed; and the cases of Datti Parisi Nayudu v. Datti Bangararu Nayudu 4 Mad. H.C. 204 and Krishnayyan v. Muttusami I.L.R. 7 Mad. 407 proceed upon the interpretation which the learned Judges put upon the word 'dasi,' which they understood to include a woman kept as a continuous concubine. As regards the cases decided by the Allahabad High Court, Sarasuti v. Mannu I.L.R. 2 All. 134 and Hargobind Kuari v. Dharam Singh I.L.R. 6 All. 329 they follow the Bombay and Madras cases, and proceed upon the theory that 'the illegitimate offspring of a kept woman or continuous concubine amongst Sudras are on the same level as to inheritance as the issue of a female slave by a Sudra.'

19. We do not, however, feel so pressed by the decisions in the other Presidencies as to differ from what was laid down for Bengal by this Court in the case of Narain Dhara v. Rakhal Gain; and following that case, we hold that the defendant Doma Sahu acquired no title in the estate of Sheodyal.

20. The result is that this appeal must be dismissed with costs.


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