Decided on December 19,1952



Mack, J. - (1.) I have had the advantage of perusing my learned brother's judgment with which I am in agreement. I wish to make some further observations without repeating the texts through which we have been so ably taken by Mr. Venkatasubra-mania Aiyar. In the course of his learned argument he showed a thorough study of the texts and, if I may say so, a correct appreciation of the real principles in ancient Hindu law underlying the devolution of the stridhana property of a woman who dies intestate. The position that Mr. Somasundaram has put forward, while conceding the right of illegitimate children to inherit their mother's stridhana property, that they can do so only in the absence of other legitimate heirs, i. e., husband and all his reversioners, has no support whatever in the ancient texts. On the contrary other kinsmen can take only if the woman dies intestate leaving no issue. The texts nowhere differentiate between legitimate and illegitimate issue of a woman in this connection, or between children born in lawful or unlawful wedlock. The complete silence in the texts as to the rights of illegitimate daughters of a woman as against their mother is both eloquent and significant in view of the specific provision made for illegitimate sons to succeed to their father's property in ease they are sudras and if they are not to rights of maintenance. In --'Mayna Bai v. Uttaram', 2 Mad H: C. R. 195 at p. 203 (A) so long ago as 1864, a judgment referred to by my learned brother Hollaway 3. made the following observations: "All the analogies of Hindu law, as we have already shown, are against the view of a bastard taken by the law of England. There is an element in that law, the doctrine of Christianity,-which would render any argument drawn from its provisions merely deluding. There is and can be no analogy." Hollaway J. turning to Roman law gave a quotation from Gaius which I need not reproduce and made the following observations with which other respect I am in complete agreement. "This great master considers, that, in not denying the natural relationship between the erring mother and her sons and of the sons with one another, and admitting heritable blood between them, the praetor was moved by natural equity. Whether this doctrine or that of the law of England is more strongly marked by the spirit of the great author of Christianity seems to us not very doubtful."
(2.) Paternity is a matter governed by 'jus civile' and maternity by 'jus naturale' -- Mr. Venkatasubramaniam has put the matter in another way when be argued that every child has a legal mother but it may or may not have a legal father. Whatever doubt may attach to paternity at the birth of the child, there can be none as regards its-maternity. The creative forces of nature itself has bound the mother to her issue, whether born in lawful or unlawful wedlock in a manner wholly of utterly different from the bond between the father and his sons. This natural relationship and these inescapable facts are reflected in ancient Hindu law governing succession to the stridhana property of a woman.
(3.) There have been some decisions referred to by my learned brother with which we are unable with great respect to agree which have shown the greatest reluctance to allow illegitimate children and bastards within the pale of Hindu law of succession at all, even to their own mother. In --'Jagannath Raghunath v. Narayan', 34 Bom 553: (B) it was held that the stridhan of a female devolves on her death upon her husband in preference to her son born of adulterous intercourse. Chandavarkar J. held that Hindu law gave noplace to an illegitimate son in the succession to a woman's stridhana property during the lifetime of her husband and, it would appear, and follow of all other "legitimate" heirs. In -' Meenakshi v. Muniandi Panikkan', AIR 1915 Mad 63 at p. 67 (C), at 1152 Oldfield and Seshagiri Aiyar JJ. in 1914 held that a legitimate son of a Sudra woman succeeded to the property acquired by his mother by prostitution and that her illegitimate daughter was not a heir. In this decision, Seshagiri Aiyar J. made the following observations in variance with the opinion of Hollaway J. in --'2 Mad H. C. R. 196 at p. 203 (A), "As regards the proposition that on equitable principles, the illegitimate offspring should be preferred to the legitimate, I must with great deference, differ from the conclusion. I do not see that any consideration of equity can arise in favour of the illegitimate offspring as against the legitimate. If one were entitled to resort to other systems of Jurisprudence regarding the rights of bastards, it would be clear that they have no legal claim upon the estate of their parents. The Hindu law contains no exception to this principle; and I fail to see how a right which is discountenanced by every civilized community can be regarded as being in consonance with equity, justice and good conscience." It is only necessary by way of a commentary on this view to refer to the English Legitimacy Act of 1926 S. 9 of which lays down the right of an illegitimate child and the mother of an illegitimate child to succeed on intestacy of the other.;

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