SUBRAMANIA CHETTI Vs. MAHALAKSHMI AMMAL

JUDGEMENT

(1.) The plaintiff appeals from a decree of the learned District Judge of South Arcot confirming a decree of the Additional Subordinate Judge of Cuddalore dismissing a suit for the recovery from the respondents of three items of property, a house, a shop and a godown the subject-matter of a settlement dated 9 June 1904, by one Muthuswamy Chetty, who died in 1916, in favour of his son by the first wife Somasundara Chetty who died in 1922, whereby the father Muthuswami Chetti settled the said properties on Somasundara Chetti, the son, according to the terms of that deed Ex. B. The appellant is Muthuswami Chetti's son by the second wife. Defendant 1 is a concubine who had been kept by Somasundara Chetti and defendants 4 to 7 are the song of Somasundara by defendant l,and defendants 3 and 8 to 11 are his daughters by the same person. Defendant 2 is the eldest son of defendant 1 who was born in the lifetime of her married husband and defendant 12 is her mother. The appellant's case in the first Court was that by the terms of the settlement Somasundara Chetti took only a life estate in the properties and that though, if Somasundaram had legitimate children they might have been entitled to the properties, defendants 4 to 7 being only illegitimate children do not take under the deed. Various other contentions were raised which it is unnecessary now to notice. The defence on the points mentioned above was: (1) that Somasundara Chetti took under Ex. B a heritable, if not, an absolute estate and not a mere life estate; and (2) that defendants 4 to 7 are within the meaning of santhathi of Somasundara to whom a direct gift is made under the deed.

(2.) The Subordinate Judge delivered a judgment of portentous length covering 28 pages of printed foolscap and 190 paragraphs. He had some grounds because before him frivolous contentions, which were subsequently given up, as to the paternity of the defendants, and into which therefore he had to go, were raised. Making full allowance for this, the judgment of the first Court remains of such length as to cause inconvenience, if not, embarrassment to the appellate Court which had to deal with it. In appeal the learned District Judge dealt with the matter in a much more business like manner. He held that the settlement Ex. B was in favour of not merely Somasundara Chetti but also of his santhathi which the learned Judge construed as meaning descendants or heirs general thereby including illegitimate sons in the case of the present parties whom the learned Judge after an examination of their customs found to be Sudras, although they themselves claimed to be Vaisyas. On this ground he dismissed the appeal merely remarking on the other point that he found that the terms of Ex. B read as a whole make it quite clear that Somasundara got only a life estate under Ex. B.

(3.) In this appeal the learned advocate for the appellant addressed me on the question decided against him by the lower appellate Court whether on a right construction of Ex. B the illegitimate sons are included in the word "santhathi." It is an attractive line of investigation, if it should become necessary to decide it, whether, in view of the recent decisions of the Privy Council, notably Vellaiyappa Chetti V/s. Natarajan , when a Sudra Hindu executes a deed or a will using the word "santhathi," he must be understood as including the illegitimate as well as the legitimate offspring or heirs. Such a question has not hitherto arisen. For the appellant it is argued that whatever the status to which the illegitimate sons have been now elevated by reference to the Mitakshara and the ancient law books, the question is not one of legal status but one of construction of a deed which depends upon the modern meaning of the language of modern men and that when a Hindu, be he a Brahmin or a Sudra, speaks of his santhathi, there is no more reason for imputing to one an intention to include illegitimate children than in the case of the other, no more indeed in the case of either than in the case of an Englishman. The respect for marriage and the social position of legitimate children is no less among Hindu Sudras than among Brahmins and Englishmen. As a mere question of construction, I should hesitate to say that a share of the inheritance being awarded to illegitimate children of Sudras in certain cases is necessarily conclusive of the meaning of a Sudra donor of property or testator as to what he means when he talks of his santhathi. As the matter is however of general importance, and as I am sitting alone, 1 am not inclined to express any deliberate opinion on the matter in this case.