Maclean, C.J. and Banerjee, J.
1. This appeal arises out of an application for letters of administration to the estate of Sahachari Bewa by the appellant, who claims to be her sister and only heir. The application was opposed by the Secretary of State for India, who alleged that the deceased Sahachari Bewa was a woman of the town, that the petitioner was not her heir, and that the estate of the deceased had escheated to the Crown.
2. The Court below has disallowed the application, holding that the sister was no heir to the property of a woman under the Bengal School of Hindu law, and that the evidence was not sufficient to prove that the petitioner was the sister of Sahachari.
3. The petitioner has preferred this appeal against that decision, and it is contended on her behalf, first, that the learned Judge below is wrong in holding that the sister is no heir to a woman's property; and secondly, that the learned Judge below is wrong in holding that the evidence is insufficient to prove the relationship set up.
4. It is conceded, as it must be, that if the Hindu law governs this case, it must be the Hindu law of the Bengal School, and that according to the law of that School the sister is no heir. But the learned Vakil for the appellant seeks to make out the right of his client upon two alternative grounds.
5. In the first place, he argues that as the deceased Sahachari was a woman of the town, and the petitioner also belongs to the same class, the ordinary Hindu law does not apply to this case, and that it is governed by those principles of natural justice not inconsistent with the Hindu law, according to which the sister, as a near consanguineal relation, should be held to be in the line of heirs; and in support of this argument he relies upon the definition of 'heritage' in the Dayabhaga, Ch. I, para. 5, according to which the right of, inheritance depends upon relationship with the former owner, and also upon the cases of Myna Boyee v. Ootaram, (1861) 8 Moo. I.A. 400; s.c. in High Court after remand (1864) 2 Mad. H. C., 196; Sivasangu v. Minal (1889) I.L.R. 12 Mad. 277: Narasanna v. Gangu (1890) I.L.R. 13 Mad. 133; and Tara Naikin v. Nana Lakshman (1890) I.L.R. 14 Bom. 90. And in the second place he contends that Sahachari Bewa should be considered as a person who was not a Hindu within the meaning of Section 331 of the Indian Succession Act, that succession to her property should be held to be governed by that Act, and that her sister should therefore be held to be her heir.
6. The first branch of this argument is ingenious, but not sound. The passage of the Dayabhaga (Ch. I, 5) relied upon only shows at the most that every right to inherit is created by relationship with the former owner; but it does not establish the converse proposition that every relationship with the former owner creates the right to inherit. Moreover, it would be a strange anomaly, that though the sister is no heir to a female proprietor under the Bengal School of Hindu law, if they remain undegraded, yet if they both lapse into prostitution, the one becomes an heir of the other, quite apart from custom. The rule that of the ordinary heirs to a woman, those who remain undegraded are not competent to inherit her property, if she becomes degraded by leading the life of a prostitute, which has been laid down in several cases of which I may mention one, namely, In the goods of Kaminey Money Bewah, (1894) I.L.R. 21 Cal. 697, is based upon the principle that by her degradation the tie between her and her undegraded relations becomes severed; and this principle is unaffected by Act XXI of 1850, which only removes the disqualification by degradation of the person claiming the right to inherit. But that rule cannot help the petitioner in this case; for here there is no question of competition between a degraded and an undegraded relation; the question being whether the petitioner is an heir of the deceased at all. Nor is there any question here as to whether the petitioner is by custom an heir to the deceased, no custom being pleaded or proved. Of the cases cited, Myna Moyee v. Ootaram (1861) 8 Moo. I. A. 400; s.c in High Court after remand (1864) 2 Mad. H.C. 196, has only a remote bearing upon the present case. In that case certain persons being the illegitimate sons of a Christian father by Hindu mothers, were brought up as Hindus, and lived as members of a joint Hindu family, and one of the questions raised was whether any one of them could claim as heir the property of his uterine brother. The Courts in this country having answered the question as a point of Hindu law in the affirmative, their decision was reversed by the Privy Council, and the case was sent back for further inquiry, especially with reference to local custom or usage. After the remand, the Madras High Court re-affirmed the original answer, the learned Judges 'feeling satisfied' as they said 'that all the analogies of Hindu law and the plain rules of equity and justice are in favour of the evidence of heritable blood between the illegitimate sons.' Whether this view is correct or not it is unnecessary for us now to consider. It will be sufficient to say that accepting it to be correct, it does not help the appellant before us, because in the case cited the party claiming to be the heir, the uterine brother of the deceased, was certainly his heir under the ordinary Hindu law, but for the stain of illegitimacy on the relationship between the parties, and all that the Madras High Court decided was that that stain did not affect the heritable right of the plaintiff; whereas in the present case the appellant is no heir to the deceased under the ordinary Hindu law of the province, and what she has to make out is that the stain of degradation creates a new heritable right in her.
7. As for the other three cases relied upon, Sivasangu v. Minal, (1889) I.L.R. 12 Mad. 277 Narasanna v. Gangu (1890) I.L.R. 13 Mad. 133, and Tara Naikin v. Nana Lakshman (1890) I.L.R. 14 Bom. 90 they and other similar cases, of which there are several in our reports, are based more or less upon local custom and usage. It was ingeniously argued upon the authority of a text of the Skanda Purana cited in the Mitakshara in its Commentary on Yajnavalkya, Ch. II, v. 290 see Sanskrit, Mitakshara Bombay Edition p. 265 Grish Chunder Tarkalankar's Translation p. 231 which treats prostitutes as forming a fifth class or caste, that prostitutes belong to one caste or community all over India, and that if a degraded sister of a prostitute is her heir in Madras as has been held in Sivasangu v. Minal (1889) I.L.R. 12 Mad. 277 the same rule should be held to be true for Bengal. One simple answer to this argument is that in the case just mentioned, the deceased and her degraded sister lived jointly, and this circumstance is relied upon in the judgment, whereas in the case before us the appellant and her deceased sister lived in widely distant places, and did not since their degradation meet each other more than twice or thrice in the course of nearly a quarter of a century. And we need hardly add that a custom obtaining amongst any caste in Madras or Bombay cannot, in the absence of evidence, be assumed to govern the same class in Bengal.
8. The second branch of the argument advanced by the learned Vakil for the appellant is clearly untenable. The deceased Sahachari was clearly a Hindu by birth, and it is neither shown nor even suggested that she ever abjured Hinduism. By lapsing into prostitution she became an outcaste, but did not cease to be a Hindu. The passage of the Mitakshara referred to above fully supports this view. The Indian Succession Act cannot therefore apply to this case.
9. In the view we take that assuming the appellant to be the sister of the deceased, still she is no heir to her, it becomes unnecessary to consider the question whether the relationship set up has been proved.
10. The result then in our opinion is that the appeal fails, and must be dismissed with costs.