TRIPURA CHARAN BANERJEE Vs. HARI MATI DASI

JUDGEMENT

(1.) The plaintiff in this case sues for a declaration that he is entitled to a one sixth share of certain immoveable property in Calcutta and for partition of the property. He claims as purchaser from one Nogendra Nath, the son and one of the six children of Sowdamini Dasi. The defendants are the other children of Sowdamini, one, a married woman being adult and the remaining four being infants. The guardian ad litem of the infants leaves the matter in the hands of the Court. The adult defendant pleads that the plaint does not disclose any cause of action; that Sowdamini was a public woman of the town; that Nogendra was born while she was living as a prostitute and was not entitled to inherit any thing from her. She also pleads that Sowdamini held the property in question as her benamidar, but this point has been given up.

(2.) The facts in the case are very simple, and there is really no dispute as to them, though I cannot say that admissions have been made as to any of them. There can be no doubt that Sowdamini was a prostitute and the daughter of a prostitute; that she acquired the property in question by purchase, and that she died in possession of it. There is nothing to show that either she or her mother was ever married, or how she acquired the money by which the property was bought. There is evidence that some of her daughters are prostitutes. Under these circumstances the case made by the plaintiff is that the property is to be regarded as having been Sowdamini s stridhan, neither yautuka nor given by the father, and, therefore of the third class referred to in Banerjee s Law of Hindu Marriage at p. 398. Consequently, it descended to the sons and unmarried daughters of Sowdamini according to the rule expressed on page 399 of the same work, and Nogendra obtained the sixth share which he sold to the plaintiff. To this the defendants answer that the plaintiff has failed to discharge the onus that lies on him of proving the property to have been stridhan, and that if it is stridhan it will pass to Nogendra s sisters in the first place to the exclusion of himself and his brother.

(3.) As to the first point I am of opinion that the plaintiff is correct in his contention that the property must pass in this case at least as though it were stridhan. The facts seem to me to point strongly to the conclusion that the property in question represented the earnings of a prostitute, but it is not necessary that I should hold more than that it was the absolute property of a prostitute at the time of her death. If this is so, the view I have expressed seems to me consistent with the rules laid down in the Dayabhaga, Chapter IV, Section 1, as to what is the separate property of a woman. Paragraphs 1 to 4 describe six modes in which a woman may acquire separate property, none of which seems to apply to acquisition by a prostitute as it would be doing violence to the text to suppose that the wages of prostitution could be described as what has been conferred on the woman through affection." But these modes of acquisition do not exclude others as is shown by the very plain language of paragraph 18 which concludes "that alone is stridhan which she has power to give, sell or use independently of her husband s control." But the defendant argues that all the rules presuppose that a woman has a husband; that stridhan is not limited to some kinds of property, but is limited by the status of the woman, and that the status must be that of a married woman. To this, I think, the answer is to be found in a passage of Sir Guru Das Banerjee s work already referred to at page 389, where he points out that the succession to dancing girls is not a subject with which Hindu Law cared to concern itself, but that the modern codes of the country cannot act in the same way, which seems to me to show that though property held absolutely by a prostitute may not be stridhan in the exact contemplation of the Dayabhaga the operation of which is confined to married women, modern Courts must treat it as though it were stridhan for purposes of succession.