KRISHNA MUDALIAR Vs. MARIMUTHU MUDALIAR

JUDGEMENT

(1.) The appellant filed a suit in the Court of the Additional District Munsif of Salem for a declaration that an alienation made on the 4 February, 1918, by the fourth respondent, the mother of one Shanmugam, in favour of the father of the first, second and third respondents was not binding on the reversion. Shanmugam died in 1916 and the appellant claimed to be the nearest reversioner. The common ancestor was a Sudra woman, named Valliammal, who was a prostitute. She had two sons, Muthu Mudaliar and Palaniyandi Mudaliar, but it is not known whether they were born of the same father. There is no evidence at all with regard to their paternity. The connection between the appellant and Shanmugam will be gathered from the following geneological tree: It has been accepted for the purposes of this appeal that all the descendants of Muthu and Palaniyandi are legitimate. The appeal turns on the answer to the question whether Muthu, the father of the appellant, is to be regarded under the Hindu Law as an agnate of Palaniyandi, the great grandfather of Shanmugam. If he is to be so regarded, it is accepted that he will be the nearest reversioner. The alienee respondents deny that in law there was agnatic relationship between Muthu and Palaniyandi and say that the nearest reversioners are the four sons of the elder daughter of Kunjan, the son of Palaniyandi, they being the direct descendants of Palaniyandi. The District Munsif dismissed the suit. He rejected the appellant's claim to be the nearest reversioner, but as pointed out in the judgment now under appeal it is not clear whether he thought that the appellant was not an heir at all or whether he thought that the appellant must in any event be postponed to Kunjan's daughter's sons. He also held that there was no consideration for the alienation. On appeal to the District judge of Salem it was held that the appellant was the nearest reversioner. The District Judge placed reliance on the decision in Viswanatha Mudali V/s. Doraiswami Mudali . He interpreted that decision as meaning that the legitimate descendants of Muthu and Palaniyandi could claim the same rights as if the two brothers had been born of a lawful marriage. On this interpretation of the law and being of the opinion that no necessity had been proved for the alienation the District Judge decreed the suit.

(2.) The alienee respondents appealed to this Court. The appeal was heard by Varadachariar, J., who allowed it and restored the decree of the trial Court. The learned Judge did not accept the decision in Viswanatha Mudali V/s. Doraiswami Mudali , as laying down the proposition that the sons of a prostitute are to be deemed to be in agnatic relationship, but merely declared that there was a heritable relationship between the two. He pointed out that to constitute sagotra sapindaship, there must be descent in an unbroken male line from a common male ancestor. In the case of the sons of a prostitute, where the father is unknown, it was impossible to trace the descent from a common male ancestor. Varadachariar, J., regarded Muthu and Palaniyandi as being cognates and consequently the four sons of the elder daughter of Kunjan were nearer in kin to Shanmugam than the appellant.

(3.) In Viswanatha Mudali V/s. Doraiswami Mudali , it was held that the legitimate descendants of two sons of a Hindu dancing woman were under the Hindu Law entitled to succeed to each other. I agree with Varadachariar, J., that when the judgment is read in the light of the record it is clear, in spite of the general terms used, that all the Court decided was that there was heritable blood between the two sons. It is true that in their written statement the defendants in the case pleaded that there was a nearer reversioner, but this plea was not persisted in, and the Court had merely to decide whether one son could under Hindu Law succeed to the property of the other. The finding that there was heritable blood was sufficient to decide the case. There also the paternity was unknown.