Chatturbhuj Patnaik v. Krishna Chandra Patnaik

This is an Appeal on behalf of the Plaintiffs in a suit for declaration of title to a half share of the estate of one Daudhibahan Patnaik who was the father of the first Plaintiff and the grandfather of the other three Plaintiffs. The Defendants include the grandsons and great-grandsons of Daudhibahan, a widow of his deceased son, as also his illegitimate son. The sole question in controversy at this stage, is whether the fifth Defendant, the illegitimate son, is entitled to a share of the estate left by Daudhibahan. The Subordinate Judge negatived his claim, but the District Judge has pronounced in his favour. The District Judge has found that the parties are Sudras, that the mother of the fifth Defendant was brought into the house of Daudhibahan as a maid servant, that she was his permanent and continuous concubine, that she has always lived in the family, and that her son the fifth Defendant has been brought up in the family circle as a member of the joint family. In this view, the District Judge has held that the fifth Defendant is entitled to a half share of what would be allotted to a legitimate son. This view has been controverted on behalf of the Plaintiffs, and it has been argued that the fifth Defendant cannot be deemed a dasi-putra within the meaning of that expression as used in the Mitakshara which admittedly governs this family. The text of Yajnavalkya which is the foundation of the claim of the illegitimate son is in these terms:—“Even a son begotten by a Sudra on a female slave may get a share by the father's choice: but if the father be dead, the legitimate brother should make him partaker of half a share: One who has no legitimate brother, may take the whole in default of heirs down to the sons of daughters” (Yajnavalkya II, 134; Mandalik, p. 220). The word which is translated “a female slave” is in the original “dasi”. Upon this text, Vijnaneswar comments as follows (Mitakshara by Colebrooke, Chap. I, sec. 12): “The son begotten by a Sudra on a female slave obtains a share by the father's choice or at his pleasure. But after the demise of the father, if there be sons of a wedded wife, let these brothers allow the son of the female slave to participate for half a share, that is, let them give him half as much as the amount of one brother's allotment. However, should there be no sons of a wedded wife, the son of the female slave takes the whole estate, provided there be no daughters of wife, nor sons of daughters, but if there be such, the son of the female slave participates for half a share only. From the mention of a Sudra in this place, it follows that the son begotten by a man of a regenerate tribe on a female slave does not obtain a share even by the father's choice, nor the whole estate after his demise, but if he be docile, he receives a simple maintenance”. The commentators on the Mitakshara, namely, the authors of the Subodhini and the Balambhatti do not define the term dasi, but the latter refers to the text of Manu to the following effect (Mitakshara by Setlur, Vol. 1, page 717): “A son who is begotten by a Sudra on a female slave or on the female slave of his slave, may, if permitted by his father, take a share of inheritance: thus the law is settled” (Manu IX, 179). It will be observed that the commentators on the Mitakshara make no attempt to elucidate the term dasi. Apararaka, another commentator on Yajnavalkya, similarly takes the word as not standing in need of any explanation (Anandasaran Edition, p. 740). But when we turn to the commentators on Manu (IX, 179), we find that two of them, Medhatithi and Sarbajna Narayan, do not take the word dasi in the restricted sense of a “female [??? by Mandalic, p. 1206]. But it has been argued before us that the term signifies a “female slave,” and that as slavery has been abolished in British India (Act V of 1843), there can no longer be any dasi-putra in this country entitled to inherit under the rule laid down in the Mitakshara. We are not prepared to accept this contention as well-founded. No doubt slavery has been abolished in this country, but it does not follow that the term dasi should be interpreted in the restricted sense contended by the Appellants. The decisions in Rahi v. Govinda, Sadu v. Baiza, Krishnayyan v. Muttuswami, Har Gobinda v. Dharam, Karuppannan v. Bulokam, Seshgiri v. Girewa, Ramkali v. Jomba, Sarasuti v. Mannu, Inderan v. Ramaswamy, Meenakshi v. Appakutti, Annaayyan v. Chinnan, all undoubtedly support, directly or by implication, a liberal interpretation of the text of the Mitakshara. Wilson in his Sanskrit Dictionary explains the term dasa as signifying a fisherman, a servant, a slave, a Sudra or a man of the fourth tribe. The term dasi is defined by him as applicable to a female servant or slave, the wife of a slave or a Sudra. Monier Williams in his Sanskrit Dictionary explains dasi as a female servant or slave, servant-maid, whore or harlot. To the same effect is the definition given in the Sanskrit Worterbuch by Bohtlingk and Roth, Vol. III, Col. 604, where numerous quotations are given to show that the term dasa has a much wider meaning than a slave, and the same observation applies to the feminine form dasi. Burnell in the Dayabhaga of Madhabya observes that in southern India the term dasi is applied also to a female dancer attached to a temple. In fact, the whole difficulty has been created by the rendering of the word dasi by the expression “female slave.” by the earliest translators; but as Sir Michael Westropp points out in Rahi v. Gavinda, Mr. Colebroke when he translated the term dasiputta as the son begotten on a female slave must have meant issue by a concubine (Strange on Hindu Law, Vol. II, p. 68). That the term dasi-putra is capable of interpretation in a liberal sense is clear from the decision of their Lordships of the Judicial Committee in Jogendra Bhupati v. Nityananda Man Singh, which affirmed the decision of this Court in Jogendta Bhupati v. Nityananda(13). There is nothing to indicate that the claimant in that case was the son of a slave in the technical sense of the term; on the other band, the dates mentioned in the proceedings negative any such presumption. Their Lordships of the Judicial Committee held that, under the Mitakshara, among Sudtas, where a father left a son by a wedded wife and an illegitimate son by a dasi (variously translated as female servant or female slave), the ordinary rule of survivorship incidental to a family co-parcenary applies, so that the illegitimate son, having survived the legitimate, is entitled by survivorship to succeed, on the death of his brother without male issue, to the family estate which was impartible and appertained to a Raj. This decision of the Judicial Committee must be pronounced to be erroneous if the contention of the Appellants is correct. The case before the Judicial Committee, we observe, came from the same District as here, namely, the District of Cuttack, and the parties there, as here, were Sudras governed by the Mitakshara law. We hold, therefore, that if a Sudra governed by the Mitakshara law has a permanent, continuous and exclusive concubine who lives as a member of his family, she is a dasi and his illegitimate son by her who is himself brought up as a member of the family, is a dasi-putra within the meaning of the rule laid down in the Mitakshara. It has been contended, however, that this view is opposed to the decision in Ram Siran v. Tek Chand, which is clearly distinguishable, because the only question which arose there for consideration was, whether an illegitimate son acquires by birth a right to the property of his Sudra putative father. There, are, however, observations in the judgment which are, in our opinion, at variance with the decision of the Judicial Committee in Jogandra Bhupati v. Nityananda, and when the precise question arises again the matter will require reconsideration. Reference has also been made to the case of Narayan Dhara v. Rakhal Gain(15) and Kirpal Narayan v. Sukurmoni(16). These cases were decided under the Dayabhaga law and are consequently not directly in point; but we reserve our opinion upon the question under that law when it arises for consideration.

The result is that the claim of the fifth Defendant has been rightly sustained by the District Judge and this Appeal against his decree must be dismissed with costs.

S.C.M

Appeal dismissed.