1. The question involved in this appeal relates to the right of succession of an unchaste daughter to the estate of her father under the Dayabhaga Law.
2. The appellant before us is the daughter of one Sasadhar Koch. During her father's lifetime she eloped with a person named Kheda Kooh and they lived together for several years as man and wife. After her father's death, however, she married Khedu, and she now claims the property left by her father as his heiress.
3. It appears too that Sasadhar after the death of the plaintiff's mother took another woman Bishali as his 'mistress or wife without any formal marriage' and had a son by her and two daughters by her. The son is dead, but the daughters are alive and are in possession and they contested the plaintiff's claim. The Court of first in stance decreed the suit. Oft appeal the suit has been dismissed and the plaintiff has appealed.
4. The parties are Koches, aboriginals of Assam. It has been hell by this Court see Deepo Debia v. Govindo Deb 16 W.R. 42 : 11 B.L.R. 131 note that the Dayabhaga School of Hindu Law is the law applicable to Assam and the learned Vakil for the appellant has argued the ease on the view that the Dayabhaga is the law applicable to these parties.
5. Now it has been held that according to the Dayabhaga the daughter is under the same obligation to chastity as a widow, therefore, as the law is now settled, unchastity will prevent her from taking the estate. See Kerry Kolitanee v. Monee Ram Kolita 19 W.R. 367 : 13 B.L.R, 1 (F.B.) per Mitter, J.; Ramnath Tolapattro v. Durga Sundari Debi 4 C. 550; Ramananda v. Raikishori 22 C. 347 and Sundari Letani v. Pitambari Letani 32 C. 871 : 2 C.L.J., 97 : 9 C.W.N. 1003. It is found in the present case that the plaintiff ran away from her father's home, took one Khedu as her paramour and lived with him as his mistress until after her father's death. That being so, she would be excluded by reason of her unchastity from inheritance under the Dayabhaga.
6. It is contended, however, on behalf of the appellant that the disability caused by her unchastity was cured by her subsequent marriage with the same person with whom she lived as a mistress before her father's death.
7. It is argued that as a child procreated before marriage may be legitimized if born after the mother's marriage with the person who procreated it even under the Hindu Law, similarly the bar to inheritance caused by reason of unchastity may be removed by subsequent marriage with the person with whom she was living as mistress. In support of the proposition that in order to render a child legitimate the procreation as well as the birth need not take place after marriage, reliance is placed upon the observations of the Judicial Committee in the case of Pedda Amani v. Zemindar of Marungapuri 1 I.A. 282 at p. 293 : 14 B.L.R. 115 : 21 W.R. 858 : 3 Sar. P.C.J. 318: 'The point of illegitimacy being established by proof that the procreation was before marriage, had never suggested itself to the learned Counsel for the appellant at the time of the trial, nor does it appear from the authorities cited to have been distinctly laid down that according to Hindu Law in order to render a child legitimate the procreation as well as the birth must take place after marriage. That would be a most inconvenient doctrine. If it is the law that law must be administered. Their Lordships, however, do not think that it is the Hindu Law. They are of opinion that the Hindu Law is the same in that respect as the English Law.' With reference to these observations Sir Gurudas Banerji in his Tagore Lectures (Hindu Law of Marriage and Stridhan, 3rd Edition, page 168) remarks: 'This decision, so long as the Privy Council do not think it, fit to reconsider the point, must be received as the law on the subject. But with every respect that is due to the decision of the highest tribunal for India, I may be permitted to say that the doctrine that procreation in lawful wedlock is necessary to constitute legitimacy is not only supported by the language of the texts, but is also in accordance with the general spirit of the Hindu Law by which the nuptial rites are primarily meant only for virgins, while the necessity of marrying girls before puberty reduces the practical inconvenience of the doctrine within the narrowest possible limits.' The decision of the Privy Council so far as it goes is of course binding upon us, but the marriage of the mother and the birth of the child in the case before the Privy Council took place before the succession opened out, and the only question, therefore, was as to the legitimacy of the child. The question raised in this case, viz., whether a daughter is excluded by reason of unchastely ad the time when the succession opened out, did not arise in that case and was not considered by their Lordships.
8. Reference is made by the learned Pleader for the appellant to the text of Yajnavalkya--
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and the translation of it in Golap Chandra Sarkar's Hindu Law, 4th Edition, page 78, 'Let a man who has finished his studentship espouse an auspicious wife who is not defiled by connection with another man, is agreeable, non-Sapinda, younger in age and shorter in stature,' etc., and it is contended that the words '* *' in the text mean 'not defiled by a person other than the person with whom she is to be married.' We think, however, that those words mean a 'virgin,' i.e., one who has not been defiled by any person, because the text does not contemplate any sexual connection between the bride and the bridegroom before marriage. The nuptial rites among Hindus and the nuptial Mantras are meant for virgins, and the view we take is in accord with the practice and sentiments of Hindus. It is unnecessary, however, to discuss this matter further nor the question whether unchastely in a maiden may be expiated by penances be fore marriage, bemuse no marriage took place before the succession opened out in the present case. The only question we have to consider is whether the disability of the plaintiff to inherit by reason of her unchastity, when the succession opened out on her father's death, was removed by her subsequent marriage with her paramour. At the time the succession opened cut she had not married her paramour and there was no -knowing when she would marry him or whether she would marry him at all. Did the estate remain in abeyance until she married, so that her marriage with her paramour might remove the disability caused by her unchastity at the time of her father's death We cannot hold that under Hindu Law there can be such abeyance. The learned Subordinate Judge says: 'It is a matter of common knowledge that many people of lower castes such as Koches, etc., in Assam contract unions with women without any marriage and get married afterwards, sometime in their old age after their children become grown up men, and no stigma attaches to the children from before the formal marriage provided there was a marriage afterwards. But as neither side has raised the plea of local custom, I must decide the case according to the Dayabhaga and its interpretation by the Bengal High Court.' The plaintiff and her paramour, therefore, could have married in their old age possibly half a century after the succession opened out, and if the appellant's contention is correct, we must hold that the estate must remain in abeyance until she marries and the heir upon whom it has vested on the death of her father (and it must have vested in someone) should be divested, may be after half a century, if she chose to marry her paramour at that distance of time. We are unable to uphold such a contention.
9. The last ground urged is that no question of vesting and divesting arises in this case as the defendants are not the heirs of the deceased they being the daughters by Bishalya, a mistress, and that although there was also a son born of Bishalya who survived, his father, he could not succeed because it has been held that under the Dayabhaga illegitimate sons even of Sudras, except a dad putra, cannot succeed. See Narain Dhara v. Rakhal Gain 1 C. 1 : 23 W.R. 334; Kirpal Narain v. Sukurmoni 19 C. 91. There was some discussion before us as to whether the brother of the defendants could be called a dasi putra (in which case he would be an heir) and whether or not a narrow construction had been placed upon the expression by this Court in those cases. We think it, however, unnecessary to consider those questions. So far as the question of vesting of the estate is concerned, it is to be observed that there are brothers and nephews of the deceased so that there were heirs of the deceased; and the defendants are in possession of the property left by the deceased and have been recognised as tenants by the Revenue Authorities, In these circumstances they are entitled to content the claim of the plaintiff if she is not the heiress of the deceased.
10. We would add that according to the learned Subordinate Judge it is common practice among people to which the parties belong in that part of the country to contract unions with woman without any marriage and to get married after wards when the children are grown up men, To apply to such people the strict rules of Hindu Law (and specially those of the Diyabhaga School which are based upon the principle of spiritual benefit), in such matters, may lead to injustice in some cases. We think such questions should be decided with reference to local custom and usage, and it is to be regretted that the parties did not set up such custom or usage, although the existence of the 'practice' as a 'matter of common knowledge' is referred to by the Court below. As it is, we must decide the case according to the Dayabhaga Law, and under that law the plaintiff was excluded from inheritance, and her subsequent marriage with Khedu did not revive the right which was not hers at the time the succession opened out.
11. The appeal must accordingly be dismissed with costs.