1. One Shankar had three sons, Kandhai, Sheobux and Birbal. The case of the plaintiffs as set out in the plaint and pleadings is as follows: The 5 annas 4 pies patti to which this suit relates was the joint property of the three brothers. Kandhai died about 45 years ago. After the death of Kandhai mutation was ultimately effected in the name of his widow Mt. Gomti with respect to a 3 annas 6 pies patti. After this Mt. Gomti was the mistress of Birbal. The defendant Kasturi is the illegitimate daughter of Gomti by Birbal. She has got a 3 annas 6 pies patti entered in her name in the revenue records and is claiming profits with regard to that patti. The plaintiffs sue for a declaration that the defendant has no right to any share in the 5 annas 4 pies patti. The learned Munsif held that even if Gomti was in possession of the patti (apparently the 3 annas 6 pies patti), she was in possession as widow of Kandhai and her heirs would be her natural (sic) daughters, and not the defendant. I cannot follow the remainder of the learned Munsif's judgment. The plaintiffs were granted a declaration. The defendant appealed. The learned Additional District Judge held that the possession of Gomti, who was living with Birbal as his wife or mistress, could only be said to be adverse to plaintiffs after the death of Birbal 12 years ago. He also held that the defendant who had received no share in the profits since the death of Gomti eight or nine years ago, could not be said to be in possession. He held that Mt. Gomti had not acquired a title by adverse possession: the defendant, an illegitimate daughter of Mt. Gomti, had no title to succeed to the property of Mt. Gomti's former husband Kandhai. The appeal was dismissed.
2. The main argument urged before me in second appeal is that Mt. Gomti had acquired a title by adverse possession.
3. This title descended to her illegitimate daughtsr. The learned counsel for the respondents contended that an illegitimate daughter could not inherit the property of her mother if she was not a Sudra, The question is not free from difficulty but the balance of authority is strongly in favour of the view that an illegitimate daughter, even among the twice born classes, inherits the property of her mother. The authors of several commentaries on Hindu Law express a clear opinion on the point. In Ghose's Principles of Hindu Law, Vol. 1, Edn. 3, Vrihat-Parasara, Ch. 5, is cited at p. 69:
“The son, begotten by one of equal caste (the illegitimate son), is the offerer of pindas of his mother, and is (in every respect) a son to her; but he is nothing to the begetter, as he is born of lust.”
4. On p. 369 it is stated:
“The decisions against the rights of the children of unchaste females are not based on any rule of the Smritis.”
5. Again on p. 763:
“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 rights of inheritance except to the mother's property;”
and on p. 767:
“I have shown at p. 369 that the illegitimate sons offer pindas to their mother and are thus related according to law to her and to one another and have thus also rights of inheritance to he estate of the mother and also of one another. There are no doubt several decisions denying such relationship and right. But the texts cited in this book were not before the Judges, and it also must be said that there is very great force in the observations of the Oudh Court, in the case mentioned above, that such rights should be allowed on grounds of natural justice.”
6. Trevelyan in his work on Hindu Law, Edn. 2 at p. 462 states:
“Illegitimacy is not a bar to the succession of children to their mother's property, but in a competition between legitimate and illegitimate children the rights of the former prevail. This has no application to the illegitimate child of a married woman.”
7. In Gour's Hindu Code published in 1919 it is stated in para. 2180 that illegitimate daughters are entitled to inherit to their mothers. Dr. Gour is speaking of illegitimate daughters whether of a twice born or of a Sudra. In Mayne's Hindu Law, Edn. 8, S. 552, the passage occurs:
“Still less is there any absence of heritable blood as between bastards and their mother.”
8. With the doubtful exception of the sentence cited from Mayne, it is clear that all the passages cited refer to the twice born classes as well as to Sudras. Trevelyan excludes adulterous issue, but this is immaterial for the decision of the present appeal. The case law on the subject is more obscure. It is complicated by distinctions between Sudras and twice born classes, by reliance on custom in the case of certain classes, and by the distinction drawn between adulterous and non-adulterous issue. In Myna Boyee v. Ootaram [1859-61] 8 M.I.A 400 , 2 W.R 4 , 2 M.H.C.R 196 , 1 Suth. 452 , 1 Sar. 797 , 19 E.R 582 (P.C) the plaintiff was the daughter of a wife living in adultery. Their Lordships stated at p. 423:
“If any general usage in this part of India has ripened into a custom having the force of law, that the illegitimate children of a woman pursuing an unchaste course of life, whether married or unmarried, inherit her property, this custom is not in proof.”
9. It is clear however that their Lordships laid stress on the fact that the plaintiff was adulterous issue. In Arunagiri Mudali v. Ranganayaki Ammal [1898] 21 Mad. 40 the plaintiff's illegitimate daughters sued to recover possession of a house to which they claimed to be entitled in succession to their mother. Although the question whether the daughters had any right of inheritance was not discussed, the daughters obtained a decree. The respondents rely strongly on Meenakshi v. Muniandi Panikkan A.I.R 1915 Mad. 63 , 38 Mad. 1144 , 25 I.C 957 (P.C). In that case the competition was between the illegitimate son of a Sudra woman and her illegitimate daughter born in prostitution. The learned Judges who decided this case do not dissent from previous rulings to the effect that illegitimate daughters succeed in the absence of legitimate heirs. Oldfield, J., states that the reference in a former case to the rights of illegitimate children is not inconsistent with their postponement to all legitimate heirs and later on speaks of the expressly limited recognition of the rights of illegitimate children in Hindu Law. Seshagiri Ayyar, J., endeavours to reconcile the statement that illegitimate sons are entitled to succeed to their mother. In Tripura Charan Banerjee v. Hari Mati Dasi [1911] 38 Cal. 493 , 9 I.C 657 it is stated at p. 500 (of 38 Cal.):
“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.”
10. The Judge then considers that the illegitimate sons or daughters of a prostitute have a right of inheritance. The decision of this case rests on this consideration. In Jagannath Baghunath v. Narayan Lal [1910] 34 Bom. 553 , 7 I.C 459 it was held that the stridhan of a female devolves upon her husband on her death in preference to the son born of her by adulterous intercourse. There is then very considerable authority for the proposition that an illegitimate child, whether of a Sudra or of a twice born, inherits the property of the mother if there are no preferential heirs and if the child is not born of adulterous intercourse. I find no authority to the contrary. I agree with Rao Bahadur, J.C Ghose that common humanity and natural justice appear to require that an innocent child should have some right of inheritance from the erring mother. In the present case, then, the defendant succeeded to the rights of her mother in preference to trespassers. The plaintiffs' case is that Gomti was the widow of a member of a joint family. She had then no right to succeed on the death of her husband: but the plaintiffs admit that mutation was effected in the name of Mt. Gomti some 40 years ago. The learned counsel for the respondents was at first prepared to admit that Mt. Gomti's possession was adverse. He subsequently urged that this possession was in lieu of maintenance. Mutation in favour of Gomti is evidence of her possession and possession is prima facie adverse. Mt. Gomti was entitled to maintenance, but there is nothing to indicate that her possession of the share in question was in lieu of maintenance. I hold then that Mt. Gomti acquired title by adverse possession.
11. On her death her share devolved upon her illegitimate daughter, the defendant. It is admitted that the defendant got the share entered in her name and claimed profits. It is unnecessary to consider the pleadings of the defendant. The plaintiffs' suit must fail if Mt. Gomti obtained rights by adverse possession and these rights descended to her daughter. The appeal therefore succeeds. The suit is dismissed. The plaintiffs must bear costs in all Courts.
P.N/R.K
12. Appeal accepted.