GOVIND BHAUSHET Vs. BHIKU MAHADEOSHET

JUDGEMENT

(1.) THE question of Hindu law arising in this appeal is whether a concubine who was never married but was living as a permanently kept mistress of another can inherit the property of her sonless father either to the exclusion of or along with his married daughter. THE main facts are not now in dispute. THE property in dispute belonged to one Vithling Jangarni who died in 1896 leaving a widow Sakhu and two daughters Bayo and Kushi. On the death of Vithling his widow Sakhu succeeded to his property. She mortgaged it with possession to one Rangu. On Rangu's death his son Shivram assigned the mortgage to one Mahadev in 1911. THE defendants are the sons of the said Mahadev. Sakhu died in 1932 and her married daughter Bayo-sold the equity of redemption in the mortgaged property to defendant No. 1 Bhiku in 1935. Sakhu's younger daughter Kushi was not married, but was living with one Vishnu Bapuji Pingle as his permanently kept mistress. She had a son by him by name Balkrishna. After her death Balkrishna sold her half share in the equity of redemption in the property in suit to the plaintiff Govind on December 18, 1936. Go-vind filed this suit against the defendants for a declaration that the sale-deed passed by Bayo to defendant No. 1 in 1935 was not binding on her sister's half share and for redemption and possession of that share after taking accounts under the provisions of the Dekkhan Agriculturists' Relief Act, 1879. He claimed that Bayo and Kushi had inherited their father's property after the death of their mother, that Balkrishna had succeeded to Sakhu's half share in the equity of redemption and that as he had transferred his right, title and interest to him, he was entitled to redeem the mortgage. Defendant No. 1 contended that Kushi was not the daughter of Sakhu, that she was a prostitute, that Balkrishna was her illegitimate son and that neither Kushi nor Balkrishna had any right to share in Vithling's property. He also urged that Govind was not an agriculturist and that, therefore, the suit in the present form was not maintainable. THE trial Court held that Kushi was not proved to be the daughter of Vithling and Sakhu and that Balkrishna was not, proved to be her legitimate son. THE suit was, therefore, dismissed with costs. In appeal the learned District Judge held that Kushi was the daughter of Vithling and Sakhu, but as she was not married and had been a concubine in the keeping of Vishnu Bapuji Pingle, she was not eligible to inherit her father's property either in preference to or along with her married sister Bayo. He also held that the plaintiff was not an agriculturist, and on both these grounds he dismissed the appeal.

(2.) TO a Hindu dying without a son, his widow is his first heir and next to her are his daughters. According to the Mitakshara school of Hindu law, as between' daughters, the inheritance goes, first, to unmarried daughters, next, to daughters who are married and "unprovided for," that is indigent, and lastly, to daughters who are married and are " enriched," that is possessed of means. It has been held by this Court in Advapa v. Rudrava (1879) I. L. R. 4 Bom. 104 that incontinence is no bar to a daughter's inheritance to her father, and in Tara v. Krishna (1907) I. L. R. 31 Bom. 495 : s. c. 9 Bom. L. R. 774 that where there is an unmarried daughter who is a prostitute and a married daughter who is chaste, the latter succeeds in preference to the former. Thus so far four classes of daughters have been recognised, and they succeed in the following order : (1) unmarried daughter, (2) indigent married daughter, (3) well-to-do married daughter, and (4) an unmarried daughter who bas become a prostitute. The first three classes are recognised by the Mitakshara and other ancient texts, and the fourth by judicial decisions. It is not now disputed that Kushi was a daughter of Vithling, and the question to be decided is to which of these classes she belonged.

(3.) THAT reasoning applies equally to a concubine. According to Medhatithi cited above, having been enjoyed by a man she is an "akanya," and not a " kmtya. " In the words of Chandavarkaii J. in Tara v. Krishna (at p. 506), if according to Hindu lawgivers, one essential test of kanyavastha (maidenhood)1 is eligibility for marriage which gives the maiden the right to her father's estate in preference to a married daughter, that test obviously does not exist in the case of a concubine, because according to Shastras she is no longer fit to be given in marriage in conformity with prescribed rites. Nor is she any longer dependent on her father, as she has cast herself away from her parental control and guardianship. Kushi was not, therefore, entitled to be treated as an " anudha " or unmarried daughter for the purpose of succession to her father's estate.