Panchapakesa Odayar v. Kanaka Ammal

JUDGMENT

The 1st appellant, the 1st defendant in the suit, is an undivided brother of one Venkataramana Odayan who died in October 1908 and the 1st respondent, the 1st plaintiff claims to be the permanent concubine of Venkatramana Odayan and the 2nd respondent (the 2nd plaintiff) is a child by the 1st plaintiff and claims to be the illegitimate son of Venkatramana Odayan. The suit was one for maintenance. The Subordinate Judge has given a decree awarding as maintenance Rs. 20 a month to the 1st plaintiff for life and Rs. 20 a month to the 2nd plaintiff till he attains majority. Mr. T. Rangachariar appearing on behalf of the appellants has contended that it is not proved that the 1st plaintiff was the permanent concubine of Venkatramana or that the 2nd plaintiff was his son. The 1st plaintiff is a daughter of a dancing girl who was also in the keeping of a member of the appellants' family—a man called Sivaswami Odayan and her case was that she was brought up in the family and after she attained majority, her nuptial marriage as it is called, was performed by the deceased Venkatramana, and that ever since, she lived with him as his concubine and had nothing to do with anybody else. There were five children, two sons and three daughters born to her between 1897 and 1907. The 2nd plaintiff is the second son, the first son having died when he was only one month old. Of the daughters, two of them are living though they are not parties to the suit. It is not alleged on behalf of the appellants that Venkatramana bad no intimacy with the 1st plaintiff. What is denied is that she was in his exclusive keeping. It is suggested that she was kept at sometime or other by two other men. But it cannot be said that the evidence on that point is either very clear or such that one must accept it. In fact Mr. Rangachariar did not think it worth his while to refer to any positive evidence in this connection beyond the suggestion made to the plaintiff herself in cross-examination. She denied that she had anything to do with either of these men. The evidence is quite clear on the other hand that Venkataramana met the expenses of the birth of all the five children that were born to the 1st plaintiff. The doctor who attended upon her during confinement on all these occasions has been examined and he says he was called in at the request of Venkatramana who paid his charges. There is no reason whatever for throwing any doubt on the testimony of this gentleman. The evidence also shows that Venkatramana had a house at Kumbakonam and there he lived with the 1st plaintiff whenever he happened to come to the town on business. This is borne out by the evidence of the doctor and all the other witnesses, some of whom were in the service of the appellants and there is really no evidence to the contrary which would lead as to think that the 1st plaintiff lived with her mother and not with Venkatramana. She also used to go to the native village of Venkatramana and live there in a separate house, but during the time she stayed there, she was on visiting terms with the females of the houses. The evidence seems to be conclusive that this woman was in the exclusive keeping of Venkatramana and that during the time when she was in such keeping all the children including the 2nd plaintiff were born. Much stress has been laid on the facts that in the birth register, the father's name, that is Venkatramana is not mentioned and that on one occasion at least, the 1st plaintiff described herself as a dasi. It is hardly likely having regard to the position in life that Venkatramana occupied that his n me should have been recorded in the register as being the father of the 1st plaintiff's children, and the fact that the 1st plaintiff is described as a dasi is in no way inconsistent with her being the exclusive mistress of Venkatramana. Our attention was also drawn to the fact that all the children of the 1st plaintiff were born in her mother's house. That is only natural because at the time of confinement, her mother would be the proper person to look after the 1st plaintiff. Comment has also been made by Mr. Rangachariar on the fact that the 1st plaintiff's sisters followed the profession of dancing girls. We do not think that is of any sufficient significance in the face of the evidence in support of the plaintiffs' case. We therefore agree in the conclusion of the Subordinate Judge that the 1st plaintiff was in the exclusive keeping of Venkatramana until his death and that the 2nd plaintiff is his son. We ought to observe however that in dealing with the evidence of a witness for the defence, the Subordinate Judge has thought fit in his judgment, paragraph 15, to make certain observations regarding the witness of an entirely personal character which must be characterized as wholly improper. Such remarks are not fit to be made by any judicial officer and this must be pointed to the Subordinate Judge. On the question of law that arose in the suit, Mr. Rangachariar had to admit that so far as the 2nd plaintiff's right to maintenance is concerned, all the authorities are against him, the latest on the point being Subramania Mudaly v. Valu, following a number of earlier decisions on the subject. But he has strenuously argued before us that a concubine is not entitled under the Hindu Law to maintenance as against the family property of the person keeping her. But it would seem that all the authorities on this question are opposed to Mr. Rangachariar's contention. We have a series of decisions of the Bombay High Court, Khemkor v. Umia-shankar, Vrandavandas Ramdas v. Yamunabai, Yashvantrav v. Kashibai, Ningareddi v. Lakshmawa—all of which recognise the right of a permanent concubine to maintenance from the estate of her deceased paramour. There is one reported case of this Court also which recognises a similar right, Ramanarasu v. Buchamma. In this last case, the question for decision was whether a concubine who is kept by a Hindu has a right of maintenance against him during his lifetime. That claim was negatived but it was assumed as indisputable that if till his death, the woman was in his keeping, she would be entitled on his death to maintenance as against his property. The original authorities which are referred to in these judgments support this view. But it is argued on behalf of the appellants that although a concubine with whom the relations were of a permanent character is entitled on the death of her deceased paramour to maintenance from his estate, that right does not extend as against the family property of which her paramour was a coparcener. But we do not think that this distinction is sound. At any rate in one Bombay case, 12 B.H.C R., 229, maintenance was allowed as against the undivided nephews of the person who kept the woman. In 12 Bom., which was a decision of Sir Charles Sargeant, C.J, and Nana Bhai Haridas, J., it is held that the word “woman” in the text had been interpreted by commentators and judicial authorities as including a ‘concubine.’ In the text of Mitakshara, Chap II, Sect. 1, the relevant placita, bearing on the point are placita. 7, 27 and 28. In placitum 7, the right of a widow to maintenance as against her husband's brother who takes the property is established. The word used in that placitum is ‘Stri.’ But in placitum 28 it is expressly stated that in the text of Narada which is quoted in placitum, 7, the word Stri includes “concubine.” Mr. Rangachariar however suggests that as placita 27 and 28 deal with the case of escheat to the Crown in default of heirs to a deceased Hindu, we must read the explanation of Narada's text as given in placitum 28 as being confined to those cases alone. But there seems to be no sufficient reason why we should put that restrictive interpretation. At any rate all the authoritative writers of text books on Hindu Law have understood the text of the Mitakshara as interpreted by the Bombay High Court. See Strange's Hindu Law, Vol. 2,174, 1 West and Buhler 92, 93 and Mayne's Hindu Law, 620. There seems to be no reason therefore for accepting a view which is contrary to all judicial authorities and the text writers.

The appeal must therefore be dismissed with costs.

The Memorandum of Objections raises a question as to the amount of maintenance. The property belonging to the family is very large and valuable yielding an income of about Rs. 40,000 a year. Venkatramana left two widows and the other co-parcener is the 1st appellant. The Subordinate Judge has allowed Rs. 20 a month to the son for maintenance till he attains majority. He will attain majority in about a year's time. But the first plaintiff has to maintain not only herself but two young daughters aged about seven and nine years and it seems to us that Rs. 20 is hardly adequate provision for her. Having regard to the value of the family property we think we will be justified in increasing the allowance in her case to Rs. 40 a month. We may mention that the daughters are not parties to the suit and we do not decide any question as to their right of maintenance if they have any against the estate in the hands of the 1st defendant. The respondents are entitled to proportionate costs of the Memorandum of Objections both here and in the Lower Court. The 1st plaintiff is entitled to recover arrears of maintenance at Rs. 40 a month.

S. S.Appeal dismissed.