VISWANATHA MUDALI Vs. DORAISWAMI MUDALI

JUDGEMENT

(1.) The plaintiffs sue for a declaration that the sale of the plaint property in favour of defendants 1 and 2 is not binding on them as they are the reversioners of one Murugesa Mudali. They claim to he the grandsons of Muthusami Mudali, the divided brother of Kachi Muniappa Mudali, whose great-grandson was the deceased Murugesa Mudali. The District Munsif held that Muthusami Mudali and Kachi Muniappa Mudali being the sons of a prostitute there was no heritable blood between them and the plaintiffs had no reversionary right to the estate of Murugesa Mudali and dismissed the suit. The Subordinate Judge has reversed the decree of the District Munsif holding that the plaintiffs are reversionary heirs to Murugesa Mudali and has remanded the suit for disposal on the merits. Defendants 1 and 2 have preferred this appeal.

(2.) Muthuswami Mudali and Kachi Muniappa Mudali were the? sons of a dancing woman called Thanji Ammal. It is admitted that the plaintiffs are the legitimate grandsons of Muthuswami Mudali and that Murugesa Mudali was the legitimate great grandson of Kachi Muniappa Mudali. The question for decision is, does the rule of collateral succession obtain among the legitimate descendants of the two sons of a dancing woman whose paternity is unknown. There is no authority on the point in the Hindu Law books. We have not been referred to any decision in which the question was raised or decided. The principle applicable to the present case has to be deduced from the texts of the Hindu Law books and some of the decided cases.

(3.) A good deal of the argument in this case was with reference to the rights and disabilities of the illegitimate sons of Sudras. It is well settled that the illegitimate son of a man belonging to the twice-born class cannot inherit to his putative father ; he has only a right to maintenance, but in the case of Sudras, the illegitimate son inherits to his father, his share being half of that of the legitimate son, and he takes the whole in certain circumstances. West & Buhler, 82, 194, 3rd Edition. Courts have gone to the length of holding that a man's legitimate grandson by an illegitimate son succeeds to him in preference to a divided brother on the theory of representation [Ramalinga Muppan V/s. Pavadai, Goundan (1901) ILR 25 M 519 : 11 MLJ 399. It is unnecessary to consider in detail all the decisions that have been quoted at the bar with regard to the rights of illegitimate sons. It is a misnomer to call the son of a dancing woman whose paternity is unknown an illegitimate son. The illegitimate son is one born out of wedlock, i.e., no marriage was solemnized between the father and the mother. In the case of sons of prostitutes or dancing women the paternity is unknown and it is only an euphemism to call them illegitimate sons. In Roman Law they are called Nullius- Filius. Dancing women have their peculiar customs. Their status is recognised in Hindu society. Their customs have received he sanction of judicial decisions and the adoption of girls by them is recognised by law, and the daughters of dancing women inherit in preference to their sons.