NARAYAN PUNDLIK VALANJU Vs. LAKSHMAN DAJI SIRSEKAR

JUDGEMENT

(1.) In this case one Baya Bhavin executed a mortgage dated April 15, 1916, of the property in suit in favour of the defendant Narayan and his deceased brother Lakshman for Rs. 900. On Baya's death in 1921 the plaintiff purchased the equity of redemption from her sister Saguna on May 18, 1922, and brought the present suit for redemption. One of the defences set up by the mortgagee was that as Baya Bhavin acquired the property by prostitution, her sister Saguna was not the heir, and the property must escheat to the Crown, and that the plaintiff as purchaser from Saguna was not entitled to redeem. Both the lower Courts held that Saguna was the heir of Baya and allowed the plaintiff to redeem.

(2.) It is argued by the learned pleader on behalf of the appellant mortgagee that Saguna is not the heir of Baya, who was a prostitute, on the ground that the sister according to the Vyavahara Mayukha could only inherit as a Gotraja Sapinda, and that Saguna was neither a Gotraja nor a Sapinda, that Sapinda relationship depended on marriage and uterine sister was unknown as an heir in Hindu law. Baya belonged to the community of Bhavins who, according to Ratnagiri Gazetteer, p. 126, practised prostitution and were dedicated to the temples like Murlis in the Deccan. The rights of daughters taking before sons in the case of inheritance to a dancing girl attached to pagodas were upheld in Madras. See Tara Munnee V/s. Motee Buneanee (1846) 7 S.D.A. 273; Kamakshi V/s. Nagarathnam (1870) 5 M.H.C.R. 161; Narasanna V/s. Gangu (1889) I.L.R. 13 Mad. 133 and Arunagiri Mudali V/s. Ranganayaki Ammal (1897) I.L.R. 21 Mad. 40 In the present case Baya belonged to a prostitute class and the question whether prostitution entailed degradation from caste and severed the tie which connected her to her kindred by blood does not arise. In this connection reference may be made to recent cases of Meenakshi V/s. Muniandi Panikkan (1914) I.L.R. 38 Mad. 1144; Hiralal Singha V/s. Tripura Charan Ray (1913) I.L.R. 40 Cal. 650, F.B. and Narain Das V/s. Tirlok Tiwari (1906) I.L.R. 29 All. 4.

(3.) In the case of Myna Boyee V/s. Ootaram (1861) 8 M.I.A. 400 where an Englishman Mr. Hughes had two illegitimate children by a Brahmin woman who had deserted her husband, the Privy Council held that the illegitimate children were to be considered as Hindus and their rights were governed by Hindu law. At p. 424 their Lordships observed : "To assume without evidence, on assertion simply, a capacity in the appellant and his uterine brother to inherit to their mother, and assuming that capacity of lineal inheritance to their mother, thence to derive collateral heirship, inter se, to property which never was their mother's would be at variance with legal principles," and feeling difficulty in dealing with the case remitted the question to India for further investigation and consideration On remand the Madras High Court in Mayna Bai V/s. Uttaram (1864) 2 M.H.C.R. 196 held that the children were to be regarded as Sudras or a class still lower and that in the absence of preferable heirs, they inherited the property of their mother and of one another. At p. 208 the learned Judges observed :- Our reasoning, therefore, is that there is no authority against the existence of heritable blood between the woman and her illegitimate offspring Taukuram and his brother are decided to be Hindus. They are the Hindu sons of a woman, who was either a woman of a class lower than the fourth of Manu's classes, and in this case the sons are cognate to her and to one another, as the children of a class not twice-born out of wedlock, and entitled to inherit to their mother, and only not capable of inherting to their father because he is not a Hindu at all. If not BO, she is a mere prostitute, and of the cognation between her and her offsprings there exists no doubt whatever.