EMMA AGNES SMITH Vs. THOMAS MASSEY

JUDGEMENT

(1.) This originating summons was taken out for the determination of certain questions arising upon the will of one Mary Anne Houghland, a Eurasian. The facts are admitted to be as stated in the plaint, and the relation between the parties is shown in the subjoined tree :

(2.) The only questions argued are those numbered (1), (2) and (3); and they all turn upon the question whether Thomas Massey is the nephew of the testatrix, Mary Anne, within the meaning of the Indian Succession Act, which admittedly is the law applicable to the parties. The will was made only a day before the testatrix's death, so that, under Section 105 of the Act, Thomas Massey, if he is the nephew of Mary Anne, would bar bequests to religious and charitable uses. That is the claim which Thomas now prefers, but the difficulty in his way is that his mother Georgiana and Mary Anne were illegitimate daughters of Captain Dallas by a native woman, of whom nothing further is known beyond that she was a Mahomedan or else a Kamati. At first sight it would appear that Georgiana and Mary Anne being in the eye of the law filice nullius, they were not sisters, and Thomas's claim to be regarded as Mary Anne's nephew must consequently be rejected. That was the view which seemed to me quite clear during the argument, but, since apparently simple cases frequently conceal real difficulties, I adjourned the judgment till today in order to see whether Mr. Bahadurji's argument for Thomas might not prove to be more substantial than it seemed. But, in the result, I remain of the same opinion. Mr. Bahadurji has cited Secs.20 and 22 of the Act, pointing out that there are no words limiting the relations contemplated to relations by legitimacy. But it appears tome that this consideration is really decisive against Thomas's claim. The Act is an English Act, and, as Mr. Lowndes has observed, must be read as part of a system of law which has refused to follow even the Civil law in its relative tenderness towards illegitimate children. Since the Act speaks of certain relations, without mare, I infer that the Only relations contemplated are those which the law recognizes. There can be no doubt that in an English Act of Parliament the word " child " always applies exclusively to a legitimate child: see per Pollock G. B. in Dickinson V/s. N. E. Railway (1863) 12 W.R 52; per Cotton L.J. in Guardians of North-wich Union V/s. Guardians St. Pancras Union (1888) 22 Q.B. D. 164. No doubt the Act is applicable to others than persons, of exclusively English descent, but these sections are not extended to Hindus, and for my own part I cannot conceive that such an Act as this, which defines certain relations simpliciter, intendedany other relations than those flowing from lawful wedlock. If the argument were conceded, a bastard would share equally with a son-i.e. a legitimate son, he being the only son known to our law- and this result appears to me wholly repugnant and impossible. I observe also that though the Act has been in operation for forty years, it is not suggested that the present contention receives any countenance in the reports.

(3.) Then it was said that the absence of distinction between legitimate and illegitimate relations in the Act makes in Thomas's favour because in the Oudh Estates Act I of 1869 there is a special provision directing that words expressing relationship denote only legitimate relationship, but it is impossible to construe the Succession Act by another Act passed many years later and possibly diverso intuititu.