Macleod, C.J:— The plaintiff sued for an account under the Dekkhan Agriculturists' Relief Act of a mortgage executed by her mother Somawa. In their written statement the defendants said that the plaintiff's mother Somawa was kept by Somanaik, therefore the plaintiff had no right to sue. The seventh issue was Does the plaintiff prove that her mother Somawa was the lawful wife of Somanaik? The plaintiff's pleader notified to the Court that he did not wish to lead any evidence on issue No. 7, and it was, therefore, presumed that the plaintiff could not prove that Somawa was married to Somanaik. The Judge seemed to consider that was conclusive, and that the plaintiff being the illegitimate daughter of Somawa was unable to sue for an account.
2. In appeal this question does not seem to have been dealt with. But the appellant relied on the fourth ground of the appeal that it was not open to the defendant-respondents to question the status of the plaintiff-appellant's mother Somawa as wife of Somanaik. Ground No. 6 was that the lower Court failed to see that appellant-plaintiff was entitled to sue as heir of her mother Somawa, if not as heir of Somanaik. The judgment of the learned appellate Judge is not very clear, bub it appears from what he says that both pleaders agreed that the case had be go back. Therefore we have not got the findings of the learned Judge on the various grounds of appeal beyond this that he thought that the defendants could not deny the title of their mortgagor Somawa. Thah, no doubt, is perfectly correct, but it did not follow from that the plaintiff was entitled to sue in the place of the deceased Somawa. The decree of the lower Court was reversed and the suit was remanded for trial and decision of the other issues. All evidence having been led, neither side was to be ab liberty be adduce further evidence.
3. Now the question whether the plaintiff can sue on the mortgage executed by her mother depends on the question whether as an illegitimate daughter she can succeed as heir to her mother's estate. There can be very little doubt that amongst Shudras ab any rate the illegitimate daughters succeed as heirs to their mother in default of any nearer heirs.
4. Mr. Ghose at p. ??? of his work on Hindu Law, Third Edition says:
“According to Hindu law, an illegitimate child is not the child of the father but only of the mother and can thus have no relations or lights of inherit anas except to the mother's property.”
5. The dispute has always been whether illegitimate children can succeed as heir of their fathers. It has never been disputed that they are heirs to there mother's property. The result must bi that as Somawa is the mortgagor, the defendants, as the learned appellate Judge points out, cannot dispute the fact the Somawa was entitled to mortgage the property. Then as the plaintiff is the nearest heir to Somawa, she is entitled ??? sue for an account of that mortgage. The judgment of the learned Judge in the Court below reversing the decree of the trial Court is therefore correct. The case must be dealt with by the trial Court ??? the light of our remarks and finding recorded on issues Nos. 1 to 6. Th appeal is dismissed. The respondent entitled to her costs of the appeal.
6. Appeal dismissed.