AKKU PRAHLAD KULKARNI Vs. GANESH PRAHLAD KULKARNI

JUDGEMENT

(1.) This second appeal raises an important question of Hindu law regarding the status of a permanently kept concubine whose husband is living, and her right to be maintained out of her paramour's estate after his death. The facts of the case, as found by the Courts below are not disputed here. The plaintiff's father Pralhad died in 1933, having made a gift of some of his ancestral joint family property to defendant 1, who was in his exclusive and continuous keeping as his mistress for seventeen years till his death, although her husband is still living and has not divorced her. The plaintiff filed this suit to recover possession of the said property from her on the ground that the gift was invalid and not binding on him. Both the Courts below have held that the property being ancestral joint property, its gift by the plaintiff's father is invalid and the plaintiff is entitled to recover its possession from defendant 1. The trial Court, however, held that as defendant 1 was the permanently kept mistress of the plaintiff's father and had remained faithful to him, she was entitled to be maintained out of his estate. The plaintiff was, therefore, given a decree for possession of the property in suit, subject to the obligation of making provision for her maintenance, the quantum of the maintenance and the manner of securing it being left to be determined in execution proceedings. In appeal the learned District Judge held that defendant 1's intercourse with the plaintiff's father being adulterous, she was not his avarudha stree and was not entitled to be maintained out of his estate after his death. He, therefore, allowed the appeal and gave the plaintiff an unconditional decree for possession. The simple question in this appeal is whether defendant 1 can claim maintenance out of her deceased paramour's estate in the hands of his son. As I shall presently show, there is a conflict of decisions of this High Court regarding this question, and so it is necessary to review the whole law on the point, with special reference to the ancient texts. Defendant 1 left her husband many years ago and lived faithfully with the plaintiff's father as his exclusively kept mistress for a period of nearly seventeen years till his death. She was thus his "permanent concubine," and, to use the words of Lord Darling in Bai Nagubai V/s. Bai Monghibai ( 26) 13 A.I.R. 1926 P.C. 73 she possessed a recognised status below that of wife and above that of harlot, almost a wife, according to ancient authorities, the distinction of the concubine from harlots being due to a modified chastity, in that she was affected to one man only, although in anirregularunion merely. Harlots solicited to immorality; concubines were reserved by one man. There is no express Smriti text specially providing maintenance to a concubine. The basis of the recognition of the status of a concubine and her right to be maintained out of her deceased paramour's estate is the texts of Katyayana and Narada cited and explained by Vijnaneshwara in Mitakshara, c. II, Section 1, pl. 7, 27 and 28. In pl. 7 a wife's right of inheritance to the property of her deceased husband is mentioned and in pl. 27 Vijnaneshwara says: Heirless property goes to the king, deducting, however, a subsistence for the females as well as the funeral charges... That is excluding or setting apart a sufficiency for the food and raiment of the women, and as much as may be requisite for the funeral repasts and other obsequies in honour of the late owner, the residue goes to the king.

(2.) Farther explaining this Vijnaneshwara says in pl. 28: This relates to women kept in concubinage: for the term employed is female (yoshit). The text of Narada likewise relates to concubines; since the word there used is women (stree):" vide Colebrooke's treatise on the Hindu Law of Inheritance, 335.

(3.) The word used for "women kept in concubinage" and "concubines" in the original is avaruddha stree. Similarly in pl. 7 Vijnaneshwara quoting Narada says: Among brothers, if any one dies without issue, or enter a religious order, let the rest of the brethren divide his wealth, except the wife's separate property. Let them allow a maintenance to his women for life, provided these preserve unsullied the bed of their lord. But, if they behave otherwise the brethren may resume that allowance.