1. This appeal arises out of a suit instituted by one Ram Saran Garain for declaration of his title to, and partition of certain immoveable property described in the plaint as the property of a joint Hindu family governed by the Mitakshara School of Law. The family according to the plaint consists of the plaintiff and his five brothers, being the sons of the defendant No. 1, Tek Chand Garain, by Mussamut Marno the defendant No. 4; of Dharam Singh, also a son of Tek Chand Garain by another wife Mussamut Dhano; and of Tek Chand Garain himself.
2. The position of the plaintiff Ram Saran Garain as the son of Tek Chand Garain is denied, the case of the principal defendant Dharam Singh being that Ram Saran was the son of a man by the name of Budhoo Danook to whom Mussamut Marno had been many years ago married, but that she subsequently deserted him and lived under the protection of his father, the defendant No. 1.
3. The first question that was raised in this case was whether Ram Saran Garain was the legitimate son of Tek Chand Garain, and as such entitled to claim partition of Tek Chand Garain's property.
4. In the course of the suit, however, rather at a late stage of it the plaintiff put forward an alternative case, that case being that, even supposing there was no marriage between his mother, Mussamut Marno, and Tek Chand Garain, yet he was the illegitimate son of that person, and as such entitled to claim partition, the family being a Sudra family. Thereupon, the issue that was originally framed by the Subordinate Judge was amended so as to allow the further question that was raised by the plaintiff to be discussed.
5. The Subordinate Judge, upon a consideration of the evidence that was adduced before him, held that there was no marriage as was alleged by the plaintiff between his mother, Mussamut Marno, and Tek Chand Garain, and, therefore, he (the plaintiff) was not the legitimate son of that individual. He was further of opinion, as it seems to us from his judgment, that Mussamut Marno was the wife of Budhoo Danook; that the plaintiff was not a son begotten by Tek Chand Garain; and that Mussamut Marno lived under the protection of Tek Chand Garain after the plaintiff was born. Then, upon an examination of the Mitakshara Law on the subject, the Subordinate Judge was of opinion that the plaintiff, in any view of the matter, was not entitled to succeed, because he was not a 'dasiputra' of Tek Chand Garain as defined by the Mitakshara. The result was that he dismissed the suit of the plaintiff.
6. Against this judgment the plaintiff has appealed to this Court.
7. We may here mention that after the appeal had been preferred Tek Chand Garain died, and his son Dharam Singh was subsituted in his place as his legal representative. It further appears that Dharam Singh also is dead, and in his place have been substituted his sons as his legal representatives.
8. The first question that has been discussed before us is whether the plaintiff is the legitimate son of Tek Chand Garain. The solution of this question necessarily depends upon a consideration of another question, namely whether there was a marriage between his mother Mussamut Marno and Tek Chand Garain. We have considered the evidence on this part of the case, and we may say we are at one with the Subordinate Judge when he finds that there was no marriage between those two parties. It appears to us, having regard to the fact that they belonged to very different sects of the Kurmi caste, between whom it is not customary, as the evidence distinctly shows, to intermarry, may not even to take food cooked by each other, that it is extremely improbable hat there should have been such a marriage as the plaintiff alleges. We do not propose to discuss the evidence, but we may say that upon the whole of the facts appearing upon this record, we are clearly of opinion that there was no marriage; and it follows from this that the plaintiff cannot succeed as the lawfully begotten son of Tek Chand Garain.
9. The next question for consideration is whether, supposing there was no marriage between Mussamut Marno and Tek Chand Garain, the plaintiff is the illegitimate son of Tek Chand Garain and entitled to succeed in this suit for partition. The Subordinate Judge, as we have already noticed, seems to have held, upon the evidence adduced on behalf of the defendant, that the plaintiff was begotten by one Budhoo Danook, to whom Mussamut Marno had been married before she came to live. under the protection of Tek Chand Garain. Upon an examination, however, of the whole of the evidence that has been adduced in this case, we are not quite prepared to take the same view as the Subordinate Judge has taken in this matter. We are rather inclined to think that Mussamut Marno came to live under the protection of Tek Chand Garain at a very young age, and that in all likelihood the plaintiff was born of his loins.
10. But, then, the question arises whether supposing the plaintiff to be an illegitimate son of Tek Chand, he is entitled to succeed in this action. Ch. 1, Section 12, of the Mitakshara, deals with a son begotten by a Sudra on a female slave. Verse 1 of that section quotes the text of Yajuyawalkya upon the subject, which is as follows: 'Even a son begotten by a Sudra on a female slave (dasiputra) may take a share by the father's choice. But if the father be dead, the brethren should make him partaker of the moiety of a share; and one who has no brothers may inherit the whole property in default of daughter's sons.' Verse 2 runs as follows: 'The son begotten by a Sudra on a female slave obtains share by the father's choice, or at his pleasure. But after (the demise of) the father, if there be sons of a wedded wife, let these brothers allow the son of the female slave to participate for half a share; that is, let them give him half (as much as is the amount of one brother's) allottment. However, should there be no sons of a wedded wife, the son of the female slave takes the whole estate, provided there be no daughters of a wife nor sons of daughters. But if there be such, the son of the female slave participates for half a share only.
11. The text of Yajuyawalkya quoted by the Mitakshara allows a son begotten by a Sudra on a female slave to take a share by the fathers's choice; and the question here arises whether the plaintiff is a son begotten by Tek Chand Garain on a female slave within the meaning of the said text. The reason why in the days when... Yajuyawalkya, Manu, and other sages gave their laws, the son of a Sudra by a female slave was declared entitled to participate in the property of the father, was explained by a Division Bench of this Court (Tottenham and Ghose, JJ.) in the case of Kirpal Narain Tewari v. Sukurmoni (1891) I.L.R. 19 Cal. 91 and it was this: '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 Krishna Kamal Bhuttacharjee, and the Slokas from Manu quoted therein at pages 3--5). 'But,' as also observed in the same case, 'the like reason would not exist in the ease of a concubine who is not a slave-girl, her position is wholly different indeed.' 'There were,' as stated in that case, 'in ancient times fifteen descriptions of slaves. We mean fifteen different ways in which a person might become a slave to another (see Shama Charan's Vyavastha Darpana, third edition, 1883, page 27, and Macnaghten's Hindu Law, Vol. 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.' and we might here observe that the plaintiff in this case has not shown that he was born of a female slave of one or other of those descriptions.
12. The learned Vakil for the plaintiff-appellant has, however contended that the texts in the Mitakshara should not be taken to be restricted to the son of a female slave, properly so-called; but that they include the offspring of a kept woman or continuous concubine, and he has relied upon certain texts of the Dayabhaga on the same subject as translated by Colebrooke, as also on certain decisions which we shall presently notice.
13. As regards the texts of the Dayabhaga (Ch. IX, verses 29, 30 and 31, the translation as given by Colebrooke to verses 29 and 31, if taken to be altogether correct, would no doubt, to some extent at least, support the contention of the appellant; but the translation of those verses was examined by this Court in two different cases, viz., the case of Narain Dhara v. Rakhal Gain (1875) I.L.R. 1 Cal. 1 and the case of Kirpal Narain Tewari v. Sukurmoni (1891) I.L.R. 19 Cal. 91 to which we have already referred, and we are unable to say that the translations of verses 29 and 31 as were accepted by this Court in those cases are incorrect. The said verses, if correctly rendered, do not support the contention of the appellant.
14. Then as to the cases quoted by the learned Vakil for the appellant in support of his contention: of these the cases principally relied upon are that of Inderun Valungypuly Taver v. Ramasawmy Pandia Taver (1869) 13 Moore's I.A. 141; 3 B.L.R.P.C. 1; Rahi v. Govinda valad Teja (1875) I.L.R. 1 Bom. 97; and Sadu v. Baiza (1878) I.L.R. 4 Bom. 37. The case Inderun Valungypuly Taver v. Ramasawmy Pandia Taver was fully discussed by this Court in the case of Narain Dhara v. Rakhal Gain (1875) I.L.R. 1 Cal. 1, as also in the case of Kirpal Narain Tewari v. Sukurmoni (1891) I.L.R. 19 Cal. 91; and we may say that we do not understand the Privy Council to have intended to lay it down that an illegitimate son of a Sudra is in all cases entitled to inherit, as regards the Bombay cases, they were also discussed in the case of Kirpal Narain Tewari v. Sukurmoni (1891) I.L.R. 19 Cal. 91 and it will be observed that in the Bombay Presidency, amongst Sudras, the legitimate offspring of a kept woman or continuous concubine is regarded as 'on the same level as to inheritance as the dasiputra or son of a female slave by a Sudra;' and it was on this basis, as we understand, that the Bombay cases were decided but we are not aware that in this Presidency the illegitimate offspring of a continuous concubine is regarded as occupying the same position as to inheritance as the son of a slave-girl by a Sudra. The learned Vakil for the appellant, however, called our attention to a case in Bengal, and that is the case of Jogendro Bhupati Hurrochundra v. Nityanand Man Singh (1890) I.L.R. 18 Cal. 151; L.R. 17 I.A. 128. But in that case, which was from Cuttack, the question now raised between the parties was not raised or discussed; and the only question that was then discussed was whether, in the case of a legitimate son and an illegitimate son of a Sudra, being members of a joint family, the ordinary rule of survivorship incidental to family co-parcenary applied; and it was held that it did apply. In this view of the matter, that case does not help the appellant.
15. Certain cases in the Allahabad and Madras Series of the Indian Law Reports were also quoted before us. So far as the Madras cases are concerned, it will be observed that the Court proceeded upon the interpretation of the word 'dasi' as occurring in verse 1, Ch. 12, of the Mistakshara; and, they understood the word to include a woman kept as a continuous concubine. This is not exactly the view that has been taken by the Bombay High Court, for that Court proceeds upon the theory that the offspring of a kept woman or continuous concubine should be regarded as on the same level as a dasiputra or the son of a female slave. However that may be, for the reasons this Court gave in the case of Kirpal Narain Tewari v. Sukurmoni (1891) I.L.R. 19 Cal. 91 we are unable to follow the Bombay and Madras cases as also the cases in Allahabad, which seem to have followed those cases, in determining the question which has been raised in this case.
16. We are of opinion that the plaintiff has not made out that he falls within the description of a son begotten by a Sudra on a female slave, within the meaning of the Mitakshara.
17. But apart from this consideration, there is another difficulty in the way of the plaintiff's succeeding in this case. It will be observed upon the texts of the Mitakshara that in the lifetime of the father, it is only by his (the father's) choice that a son begotten by a Sudra on a female slave may take a share of the family property. On a reference to the record of this case it will be found that the father had, in the year 1891, by an ekrarnamah executed by him on the 30th October of that year parted with his entire property in favour of Dharam Singh, his legitimate son; and it appears that in accordance with this ekrarnamah, Dharam Singh's name was registered in the Collectorate under the Land Registration Act, and to all intents and purposes he seems to have obtained possession of the said property. So that on the date when the suit was brought, namely, on the 29th April 1896, the father had parted with his interest in the said property, and it is obvious that he was not in a position to exercise his choice as to giving any share to the plaintiff.
18. We desire here to observe that an illegitimate son of a Sudra begotten on a female slave does not occupy the same position as a son lawfully begotten. He does not, at bis birth, acquire a joint interest with his father in the ancestral family property. It is only after the father's death that, according to verse 2, he may claim a share in the family property and during his father's lifetime he may take a share by the father's choice (see in this connection the case of Jogendro Bhupati Hurrochundra v. Nithyanand Man Sing (1890) I.L.R. 18 Cal. 151 (155) at p. 155 of the report). The father, then, having already parted with his interest in favour of Dharam Singh, the plaintiff is not entitled to claim any partition in this case. If we have to decide the case with reference to the rights of the parties at the time of the institution of the suit, it seems to be obvious that the plaintiff cannot insist upon a partition in this case.
19. But then it has been said by the learned Vakil for the appellant, that the father being now dead, and the estate being in the hands of Dharam Singh or his heirs, the plaintiff, as an illegitimate son, is entitled to claim a moiety of the estate, though he might nob have been. entitled to do so during the father's lifetime. To this the answer is simple. The father had already parted with his interest in the property in favour of his legitimate son, as he was free to do the plaintiff or his brothers having acquired no interest in the property by birth, and as such being not entitled to restrain the father from alienating it. The estate having then passed away from the father during his lifetime, the plaintiff is not now in a position, notwithstanding his death, to claim any share from the hands of Dharam Singh or his heirs. The plaintiff, it will be observed, while claiming a partition, did not seek to impeach the authenticity or the validity of the ekrarnamah by the father under which the property passed to Dharam Singh, and it seems to us that unless the ekrarnamah is put out of the way, the plaintiff is not entitled to any relief.
20. On all these grounds, we think that this appeal must be dismissed with costs.