1. The plaintiff in this case sues for a declaration that he is entitled to a one sixth share of certain immoveable property in Calcutta and for partition of the property. He claims as purchaser from one Nogendra Nath, the son and one of the six children of Sowdamini Dasi. The defendants are the other children of Sowdamini, one, a married woman being adult and the remaining four being infants. The guardian ad litem of the infants leaves the matter in the hands of the Court. The adult defendant pleads that the plaint does not disclose any cause of action; that Sowdamini was a public woman of the town; that Nogendra was born while she was living as a prostitute and was not entitled to inherit any thing from her. She also pleads that Sowdamini held the property in question as her benamidar, but this point has been given up.
2. The facts in the case are very simple, and there is really no dispute as to them, though I cannot say that admissions have been made as to any of them. There can be no doubt that Sowdamini was a prostitute and the daughter of a prostitute; that she acquired the property in question by purchase, and that she died in possession of it. There is nothing to show that either she or her mother was ever married, or how she acquired the money by which the property was bought. There is evidence that some of her daughters are prostitutes. Under these circumstances the case made by the plaintiff is that the property is to be regarded as having been Sowdamini's stridhan, neither yautuka nor given by the father, and, therefore of the third class referred to in Banerjee's Law of Hindu Marriage at p. 398. Consequently, it descended to the sons and unmarried daughters of Sowdamini according to the rule expressed on page 399 of the same work, and Nogendra obtained the sixth share which he sold to the plaintiff. To this the defendants answer that the plaintiff has failed to discharge the onus that lies on him of proving the property to have been stridhan, and that if it is stridhan it will pass to Nogendra's sisters in the first place to the exclusion of himself and his brother.
3. As to the first point I am of opinion that the plaintiff is correct in his contention that the property must pass in this case at least as though it were stridhan. The facts seem to me to point strongly to the conclusion that the property in question represented the earnings of a prostitute, but it is not necessary that I should hold more than that it was the absolute property of a prostitute at the time of her death. If this is so, the view I have expressed seems to me consistent with the rules laid down in the Dayabhaga, Chapter IV, Section 1, as to what is the separate property of a woman. Paragraphs 1 to 4 describe six modes in which a woman may acquire separate property, none of which seems to apply to acquisition by a prostitute as it would be doing violence to the text to suppose that the wages of prostitution could be described as what has been conferred on the woman through affection.' But these modes of acquisition do not exclude others as is shown by the very plain language of paragraph 18 which concludes 'that alone is stridhan which she has power to give, sell or use independently of her husband's control.' But the defendant argues that all the rules presuppose that a woman has a husband; that stridhan is not limited to some kinds of property, but is limited by the status of the woman, and that the status must be that of a married woman. To this, I think, the answer is to be found in a passage of Sir Guru Das Banerjee's work already referred to at page 389, where he points out that the succession to dancing girls is not a subject with which Hindu Law cared to concern itself, but that the modern codes of the country cannot act in the same way, which seems to me to show that though property held absolutely by a prostitute may not be stridhan in the exact contemplation of the Dayabhaga the operation of which is confined to married women, modern Courts must treat it as though it were stridhan for purposes of succession.
4. This leads us to the second question, namely, supposing this to be stridhan, how is it to descend? Is there any law that confines its descent to degraded daughters in preference to sons?
5. The first matter to be considered in answering these questions is the effect to be given to an alleged rule that unchastity, or I may say prostitution, degrades a woman and severs the connection between her and the undegraded members of her family. This was acted on by this Court in Tara Monnee Dassee v. Motee Buneanee 7 Sel. R. 273 where, on a question of inheritance, two prostitute daughters of a prostitute were preferred to two grandsons of an undegraded daughter. It was acted on again in Kaminey Money Bewa v. Secretary of State 21 C. 697, where the son of a sister of the husband of a prostitute was held not qualified to apply for revocation of probate of the prostitute's Will. The decision was approved of in Sarno Moyee Bewa v. Secretary of State 25 C. 254 : 2 C.W.N. 97 where a prostitute sister applied for Letters of Administration to a prostitute. These cases were followed in Bhut Nath Mondol v. Secretary of State 10 C.W.N. 1085, where Letters of Administration were refused to the sons of the brother of the deceased husband of a prostitute, though Woodroffe, J., doubted the soundness of the rule. This doubt made itself felt again in Sundari Dossee v. Nemye Charan Daw 6 C.L.J. 372. ((6) 12 M. 277, where letters were refused to the prostitute daughter of a sister of a prostitute. This case was covered by Sarno Moyee Bewah v. Secretary of State 25 C. 254 : 2 C.W.N. 97 but the Court disapproved of the decision in Kaminey Money Bewa v. Secretary of State 21 C. 697 as being inconsistent with the decision in Sarno Moyee Bewa v. Secretary of State 25 C. 254 : 2 C.W.N. 97 for reasons which are not stated in the report, and which I do not apprehend.
6. The rule has been followed in Sivasangu v. Minal (6), where among four children of a prostitute of whom two daughters were also prostitutes, one of such daughters was preferred as heir to the other in preference to the sons of one of the brothers, who were born in wedlock. This decision seems to have been based in part on Tara Munnee Dassee v. Motee Buneanee 7 Sel. R. 273 and it was followed in Narasanna v. Gangu 13 M. 133. But it with others to the same effect was considered in Sarno Moyee Bewa v. The Secretary of State 25 C. 254 : 2 C.W.N. 97, 'as based more or less on local custom or usage' On the other hand, in Subbaraya Pillai v. Ramasami Pillai 23 M. 171, where an undegraded relation claimed to inherit from a woman, it was held that her adultery did not sever the bond between her natural relations and herself so far as to disentitle them to inherit from her; and the same principle was followed in Narain Das v. Tirlok Tewari 29 A. 4 : 3 A.L.J. 537 A.W.N. (1906) 243, where the question was whether a natural relation could execute a decree obtained by a deceased degraded woman against a stranger. On these authorities 1 find myself unable to hold that the rule laid down in Kaminey Monee Bewa's case 21 C. 697 is wrong; it has been recognised in a series of decisions in this Court, and has never been actually de parted from. I do not consider the Madras cases as a strong authority on the other side: Woodroffe, J.'s doubts as to its soundness were not strong enough to prevent him acting on it and the opinion expressed in Sundari Dasi v. Nemye Charan Law 6 C.L.J. 372. ((6) 12 M. 277 was in fact obiter. The decisions in Subbaraya Pillai v. Ramasami Pillai 23 M. 171 and Narain Dass v. Tirlok Tewari 29 A. 4 : 3 A.L.J. 537 A.W.N. (1906) 243 certainly raise considerable doubt; but not enough to make it right for me to depart from what seems to have been the constant course of decisions in this Court. I, therefore, hold that Sowdamini's prostitution severed her as far as inheritance is concerned from her natural relation.
7. But taking this to be so, there remains the question of how far the rule applies, and who are relations from whom the degraded, woman is severed. On a question of principle if we admit that degradation causes separation, one might suppose that the effect of degradation would separate the woman from all her relations at the moment she became degraded, and, of course, from all persons claiming through them, and that this was the limit of its effect. The rule enforcing separation is an exception to the general rule and it must not, therefore, be extended beyond limits for which there is authority. Sarno Moyee Bewa's case 25 C. 254 : 2 C.W.N. 97 is an authority for the proposition that though a Hindu woman is degraded by prostitution she does not, therefore, cease to be a Hindu, Is there then any authority for saying that the separation of a degraded woman extends beyond the limits I have mentioned? The two cases which I think may be considered from this point of view are Tara Money Dassee v. Motee Buneanee 7 Sel. R. 273 and Sivasangu v. Minal (6). Neither of these, however, can be considered a satisfactory authority in the present case. In the former case, it is taken for granted in Kaminey Monee's case 21 C. 697, that the mother of the grandsons of the prostitute whose claims were defeated by the prostitute's daughters, was born in wedlock, that is before her mother's degradation. This view of the case is also taken in Sir Gum Das Banerjee's Law of Marriage and Stridhan at page 390. I do not myself find that this is borne out by the reported facts; but it is from this point of view that the case has been followed. In the latter case the father of the boys to whom the prostitute daughter of a prostitute mother was preferred, was born after the degradation of the mother, and the case therefore, covers the present if I am bound by it. But in view of the opinion of this Court already referred to that it was based in part on local custom I do not consider it binding on me for present purposes.
8. Under these circumstances, I am of opinion that the rule as to separation by degradation is as I have suggested above, and that such separation does not operate to sever a prostitute from her sons or her chaste daughters born after her degradation, so as to disable them from inheriting from her.
9. The texts of Hindu Law admittedly do not provide for the case of the issue of degraded women, and the omission is filled up as far as may be by decisions of Anglo Indian Courts. Giving the best consideration that I can to these, I am relieved to find that the conclusion at which I have arrived, is justified by what I consider to be considerations of equity and good conscience.
10. In this case, I hold that Nogendra inherited one-sixth of his mother's property and the conveyance to the plaintiff not being denied he is entitled to a decree in his favour on the first three prayers of the plaint. He is also entitled to his costs on scale No 2.