Norman Macleod, C J - (1.)The plaintiff sued for an account under the Dekkhan Agriculturists Relief Act of a mortgage executed by her mother Somawa? In their written statement the defendants said that the plaintiff s mother Somawa was kept by Somanaik, therefore the plaintiff had no right to sue. The seventh issue was: Does the plaintiff prove that her mother Somawa was the lawful wife of Somanaik. The plaintiff s pleader notified to the Court that he did not wish to lead any evidence on issue No. 7, and it was, therefore, presumed that the plaintiff could not prove that Somawa was married to Somanaik. The Judge seemed to consider that that was conclusive and that the plaintiff being the illegitimate daughter of Somawa was unable to sue for an account.
(2.)In appeal this question does not seem to have been dealt with. But the- appellant relied on the fourth ground of the appeal that it was not open to the defendant-respondents to question the status of the plaintiff-appellant s mother Somawa as wife of Somanaik. Ground No. 6 was that the lower Court failed to see that appellant-plaintiff was entitled to to sue as heir of her mother Sumawa if not as heir of Sumanaik. The judgment of the learned appellate Judge is not very clear, but it appears from what he says that both pleaders agreed that the case had to go back. Therefore we have not got it the findings of the learned Judge on the various grounds of appeal beyond this that he thought that the defendants could not deny the title of their mortgagor Sumawa. That, no doubt, is perfectly correct, but it did not follow from that hut the plaintiff was entitled to sue in the place of the decease Somawa The decree of the lower Court was reversed and the suit was remanded for trial and decision of the other issues. All evidence having been led, neither side was to be at liberty to adduce further evidence.
(3.)Now the question whether the plaintiff can sue on the mortgage executed by her mot her depends on the question whether as an illegitimate daughter she can succeed as heir of her mother s estate. There can be very little doubt that amongst Shudras at. any rate the illegitimate daughters succeed as heirs to their mother in default of any nearer heirs. Mr. Ghose at p 763 of his work on Hindu Law (Third Edition) says; "According to Hindu Law, an illegitimate child is not the child of the father but only of the mother, and can thus have no relations or rights of inheritance except to the mother s property." The dispute has always been whether illegitimate children can succeed as heirs of their fathers. It has never been disputed that they are heirs to their mother s property. The result must be that as Somawa is the mortgagor, the defendants, as the learned appellate Judge points out, cannot dispute the fact that Somawa Was entitled to mortgage the property. Then as the plaintiff is the nearest heir to Somawa, she is entitled to sue for an account of that mortgage. The judgment of the learned Judge in the Court below reversing the decree of the trial Court is therefore correct. The case must be dealt with by the trial Court in the light of our remarks and findings recorded on issues 1 to 6. The appeal is dismissed. The respondent is entitled to her costs of the Appeal.