AMIREDDI RAJA GOPALA RAO Vs. AMIREDDI SITHARAMAMMA

JUDGEMENT

(1.) The first respondent, Seetharamamma, is a Brahmin woman. She was married to one Ramakrishnaya. During the lifetime of her husband she became the concubine of one Lingayya, a Sudra by caste. From 1938 until the death of Lingayya in February, 1948, she was the permanently kept concubine of Lingayya, and lived with him. During this period and thereafter, she preserved sexual fidelity to Lingayya. The second, third and fourth respondents are the sons of the first respondent by Lingayya. The husband of the first respondent is still alive. The appellants are the brothers and brother's sons of Lingayya. Lingayya was separate in estate from his brothers and brothers' sons. The parties are residents of Choragudi, Baptala, now in Andhra Pradesh and governed by the Mitakshara school of Hindu law. In the plaint, as originally filed, the respondents claimed that they were exclusively entitled to the estate left by Lingayya the subordinate Judge and the High Court found that as the first respondent was and continued to be a married woman while she lived with Lingayya and bore him children, she was not the lawfully wedded wife of Lingayya and the children born of the union were not his legitimate sons, nor were they Dasiputras and as such entitled to his properties. The suit was originally dismissed by the Subordinate Judge, but on appeal, the High Court gave the respondents leave to amend the plaint by making suitable averments for the award of maintenance, and remanded the suit for trial on the question of maintenance. At the subsequent trial on the amended plaint, the Subordinate Judge decreed the respondents' claim for maintenance and consequential reliefs and awarded to them maintenance during their lifetime out of the estate of Lingayya. The Subordinate Judge passed his decree on September 20, 1954. During the pendency of the appeal preferred by the appellants before the High Court, the Hindu Adoptions and Maintenance Act of 1956 (hereinafter referred to as the Act) came into force. The main controversies in the appeal before the High Court were (1) whether the provisions of the Act are retrospective; and (2) whether a married woman who left her husband and lived with another as his permanently kept mistress could be regarded as an Avaruddha Stree. In view of the importance of these questions, the appeal was referred to a Full Bench of the High Court. On the first question, the High Court held that the relevant provisions of the Act applied only to the estates of Hindus dying after the commencement of the Act, and that the right of the respondents to maintenance during their lifetime under the Hindu law in force at the time of the death of Lingayya was not affected by the Act. On the second question, the High Court held that the first respondent was an Avaruddha Stree of Lingayya, and was entitled to maintenance from his estate, though her husband was alive and the connection with Lingayya was adulterous. The High Court agreed with the Subordinate Judge with regard to the quantum of maintenance.

(2.) On behalf of the appellants, it is contended that the respondents are not entitled to claim any maintenance from the estate of Lingayya under the Hindu law as it stood prior to the commencement of the Act, because (a) the first respondent is not a Dasi and the second, third and fourth respondents are not Dasiputras of Lingayya, and this point is concluded by the previous judgment of the High Court, which has now become final between the parties; (b) the husband of the first respondent was and is still alive, and the connection of the first respondent with Lingayya was adulterous during the period of her intimacy with Lingayya and while she bore him children; (c) the first respondent being a Brahmin adulteress and Lingayya being a Sudra, the connection was pratiloma and illegal.

(3.) Now, under the Hindu law as it stood before the commencement of the Act, the claim of a Dasiputra or the son of a Dasi, that is a Hindu concubine in the continuous and exclusive keeping of the father rested on the express texts of the Mitakshara, Ch. 1, S. 12, V. 1, 2 and 3. In the case of Sudras, the Dasiputra was entitled to a share of the inheritance, and this share was given to him not merely in lieu of maintenance but in recognition of his status as a son, see Gur Narain Das vs. Gur Tahal Das, (1952) SCR 869 at page No. 875. But the illegitimate son of a Sudra by his concubine was not entitled to a share of the inheritance if he were the offspring of an incestuous connection, see Datti Parisi Nayudu vs. Datti Bangaru Nayadu, 4 Mad HCR 204, or if at the time of his conception, the connection was adulterous, see Rahi vs. Govinda, ILR 1 Bom 97, Narayan Bharthi vs. Laving Bharthi, ILR 2 Bom 140, Tukaram vs. Dinkar, 33 Bom LR 289. Such an illegitimate son could not claim the status of a member of his father's family and could not get a share of the inheritance as a Dasiputra under the express texts of the Mitakshara. For this reason, the previous judgment of the High Court rightly held that the second, third and fourth respondents were not Dasiputras of Lingayya, and could not claim the inheritance. But the point whether they are entitled to maintenance out of the estate of Lingayya it not concluded by the previous judgment. It is well recognised that independently of the express texts of the Mitakshara, Ch. 1, S. 12, V. 3. the illegitimate son of a Sudra was entitled to maintenance out of his father's estate, though his mother was not a Dasi in the strict sense and though he was the result of a casual or adulterous intercourse. It was not essential to his title to maintenance that he should have been born in the house of his father or of a concubine possessing the peculiar status therein, see Muthusawmy Jagavera Yettappa vs. Vencataswara, 12 Moo Ind App 203 at page No. 220 (PC). The illegitimate son of a Sudra was entitled to maintenance out of his father's estate, though at the time of his conception his mother was a married woman, her husband was alive and her connection with the putative father was adulterous, see ILR I Bom 97, Viraramuthu Udayan vs. Singaravelu, ILR 1 Mad 306, Subramanya Mudali vs. Velu, ILR 34 Mad 68. According to the Mitakshara school of law, the illegitimate son of a Sudra was entitled to maintenance from his father's estate during his lifetime. Under the Hindu law, as it stood prior to the commencement of the Act, the first, second and third respondents were, therefore, entitled to maintenance during their lifetime, out of the estate of Lingayya.