PANCHAPAGESA ODAYAR Vs. KANAKA AMMAL

JUDGEMENT

(1.) The 1st appellant, the 1st defendant in the suit is an undivided brother of one Venkataramana Oodayan who died in October 1908 and the 1st respondent, the 1st plaintiff claims to be the permanent concubine of Venkataramana Oodayan and the 2nd respondent (the 2nd plaintiff) is a child by the 1st plaintiff and claims to be the, illegitimate son of Venkataramana Oodayan. The suit was one for maintenance. The Subordinate Judge has given a decree awarding as maintenance Rs. 20 a month to the 1st plaintiff for life and Rs. 20 a month to the 2nd plaintiff till he attains majority. Mr. T. Rangachariar appearing on behalf of the appellants has contended that it is not proved that the 1st plaintiff was the permanent concubine of Venkataramana or that the 2nd plaintiff was his son. [Their Lordships then discuss the evidence.] * * * *

(2.) We therefore agree in the conclusion of the Subordinate Judge that the 1st plaintiff was in the exclusive keeping of Venkataramana until his death and that the 2nd plaintiff is his son. We ought to observe however that in dealing with the evidence of a witness for the defence, the Subordinate Judge has thought fit in his judgment, paragraph 15 to make certain observations regarding the witness, of an entirely personal character which must be characterized as wholly improper. Such remarks fire not fit to be made by any judicial officer and this must be pointed out to the Subordinate Judge.

(3.) On the question of law that arose in the suit, Mr. Rangachariar had to admit that so far as the 2nd plaintiff s right to maintenance is concerned, all the authorities are against him the latest on the point being Subramania Mudali v. Valu (1910) I.L.R. 34 M 68 following a number of earlier decisions on the subject. But he has strenuously argued before us that a concubine is not entitled under the Hindu law to maintenance as against the family property of the person keeping her. But it would seem that all the authorities on this question are opposed to Mr. Rangachariar s contention. We have a series of decisions of the Bombay High Court-- Khemkor v. Umiashanker (1873) 10 Bom. H.C.R. 381, Vrandavandas Ramdas v. Yamuna Bai (1875) 12 Bom. H.C.R. 229 at 231, Yashvantrav v. Kashibai (1887) I.L.R. 12 B. 26, Ningareddi v. Lakshmawa (1901) I.L.R. 26 B. 163--all of which recognise the right of a permanent concubine to maintenance from the estate of her deceased paramour. There is one reported case of this Court also which recognised a similar right, Ramanarasu v. Buchamma (1899) I.L.R. 23 M. 282 : 10 M.L.J. 2. In this last case, the question for decision was whether a concubine who is kept by a Hindu has a right of maintenance against him during his life time. That claim was negatived but it was assumed as indisputable that if till his death, the woman was in his keeping, she would be entitled on his death to maintenance as against his property. The original authorities which are referred to in these judgments support this view. But it is argued on behalf of the appellants that although a concubine with whom the relations were of a permanent, character is entitled on the death of her deceased paramour to maintenance from his estate that right does, not extend as against the family property of which her paramour was a co-parcener. But we do not think that this distinction is sound. At any rate in one Bombay case, Vrandavandas Ramdass v. Yamuna Bai (1875) 12 Bom. H.C.R. 229 at 231, maintenance was allowed as against the undivided nephews of the person who kept the woman. In Yashvantrav v. Kashibai (1887) I.L.R. 12 B. 26, which was a decision of Sir Charles Sargant, C. J., and Nanabhai Haridass, J., it is held that the word "woman" in the text had been interpreted by commentators and judicial authorities to include a concubine . In the text of Mitakshara, Chap. II, Section 1, the relevant placita bearing on the point are 7, 27 and 28. In placitum 7, the right of a widow to maintenance as against her husband s brother who takes the property is established. The word used in that placitum is stri . But in placitum 28 it is expressly stated that in the text of Narada which is quoted in placitum 7, the word stri includes "concubine". Mr. Rangachariar however suggests that as placita 27 and 28 deal with the case of escheat to the Crown in default of heirs to a deceased Hindu, we must read the explanation of Narada s text as given in placitum 28 as being confined to those cases alone. But there seems to be no sufficient reason why we should put that restrictive interpretation. At any rate all the authoritative writers of text books on Hindu Law have understood the text of Mitakshara as interpreted by the Bombay High Court. See Strange s Hindu Law, Vol. 2, 174, I, West and Buhler 92, 93 and Mayne s Hindu Law 620. There seems to be no reason therefore for accepting a view which is contrary to all judicial authorities and the text writers.