JUDGMENT Bajpai, J.
1. This is an appeal by the defendant Jagarnath Gir arising out of a suit brought by the plaintiff Sher Bahadur tSingh, for possession of zemindari property in two villages, Gopijot known as Shanker-jot 16 annas and Kundaria Ganesh, 5 annas 4 pies. The plaintiff's allegations were that Onkar Bharthi was the absolute owner of the property in suit and that he died leaving behind him his widow Musammat Marat and his mother Musammat Lakhraji, defendant No. 2, that after the death of Onkar Bharthi Musammat Murat entered into possession of the property as a limited owner and on her death Musammat Lakhraji, the mother, became entitled to the property. The plaint then goes on to say that after the death of Musammat Murat there were disputes regarding mutation in the Revenue Court and, although the first Court decided in favour of Masammat Lakhraji, the appellate Revenue Court decided in favour of Jagarnath Gir, who, however, was not the chela of Onkar Bharthi nor was the property a math property and Onkar Bharthi had no right to initiate a disciple. It is then slated that Musammat Lakhraji the second defendant has executed a sale-deed dated February 13, 1923, in favour of the plaintiff transferring the plaint property and all the rights appertaining thereto to the plaintiff.
2. Musammat Lakhraji supported the plaintiff but Jagarnath Gir filed a written statement pleading that the property in suit was not the personal property of Onkar Bharthi but belonged to the nihang gaddi of math Shankerjot and has, according to the custom of the gaddi, been devolving with the office of the mahant upon the chela initiated by the last holder of the gaddi. It was then said that Onkar Bhirthi was like his predecessors a nihang sadhu and that Jagarnath Gir was initiated a chela by Onkar Bharthi, that Onkar Bharthi could not take a wife nor could Musammat Murat, even if she was married, get a right of inheritance. As regards defendant No. 2, Musammat Lakhraji, it was pleaded that she was neither the mother of Onkar Bharthi nor the wife of Oudh Bharthi but was a fictitious person from whom the plaintiff had obtained a fictitious sale deed without paying any consideration. In the alternative it was pleaded that Onkar Bharthi had executed a will in favour of Musammat Murat by virtue of which she had become the absolute owner of the property in suit, and she in her turn executed a will dated June 15, 1923, in favour of Jagarnath Gir and the plaintiff was by no means entitled to get the property in dispute.
3. Upon these pleadings the following issues were framed by the Court of first instance:
(1) Whether the property in dispute was the personal property of Onkar Bharthi or it was the property of math?
(2) Whether the defendant No. 1 is the chela of Onkar Bharthi?
(3) Whether Onkar Bharthi belongs to the class of nihang sadhus? If so, what is its effect on the suit?
(4) Whether there is any special custom in the Shankerjot math about the devolution of the math property? If so, what is its effect?
(5) Whether the defendant No. 2 is the mother of Onkar Bharthi and wife of Oudh Bharthi, and if so can she legally transfer the property in suit?
(6) Whether Onkar Bharthi executed any will in favour of Musammat Murat and whether she had become absolute owner, of the property in suit?
(7) Whether Musammat Murat executed a will, dated June 15, 1923, in favour of the defendant, and if so, what is its effect on the suit?
(8) Whether the plaintiff is entitled to any relief?
4. The Court of first instance has decided all the issues in favour of the plaintiff and has, therefore, decreed the plaintiff's suit. The defendant has filed the present appeal in which he challenges the findings of the Court below.
5. The first point that we have got to decide is whether the property in suit is endowed property dedicated to Shankerjot math or is the personal property of Onkar Bharthi. There is no document on the record to prove that the disputed property is endowed property nor is it so entered in any Revenue Record. In the wajib-ul-arz of 1860 Oudh Bharthi, the predecessor of Onkar Bharthi, described the property as his personal property. In the year 1902 one Mahadeo Bharthi brought a suit against Oudh Bharthi for possession of this very property on the allegation that the property was math property and Oudh Bharthi had lost his right of being a mihant by reason of his misconduct. In that suit it was decided by the trial Court as well as by the District Judge that the property in suit was not endowed property and that Oudh Bharthi, was the full owner of the property. Oudh Bharthi in his written statement filed in the above suit said that there was no property appertaining to any math out of the property in question and the entire property exclusively belonged to the defendant who was the sole owner thereof. Later on there was another litigation in the year 1922 when Mahant Durga Bharthi brought a suit against Musammat Murat in which again a claim was made by the then plaintiff that the property was math property. The High Court discussed the evidence adduced in the case and dealing with the kaifiat mahtavi and kaifiat sherista nizamat, which were produced in that suit, held that those documents clearly proved that the property was the ancestral zemindari property which had been acquired by the predecessors of the defendant in the suit. The learned Judges held that the plaintiff of that suit had failed entirely to prove that the property was -ever dedicated to any math, of Shankerjot and that the suit property was the personal property of Onkar Bharthi. Musammat Murat, the original defendant, died during the pendency of the appeal in the High Court and Jagarnath Gir, the present defendant, along with certain other persons were brought on the record in her place. These two reports have been filed in the present suit as well as we have come to the conclusion that they establish that the property in suit was the personal property of Oudh Bharthi and Onkar Bharthi. A number of plaintiff's witnesses deposed that Onkar Bharthi was the owner of the suit property whereas none of the defendant's witnesses had the courage to say that the disputed property was endowed property. The will by Onkar Bharthi in favour of Musammat Murat and the will by Musammat Murat in favour of Jagarnath Gir produced by the contesting defendant are disputed by the plaintiff, but it is worthy of note that in both these deeds the property is mentioned to be the personal property of the executants. Finally, there is no evidence, oh the record to prove the existence of any math. We are, therefore, in agreement with the Court below that the suit property was the personal property of Onkar Bharthi and not the property of any math.
6. The Court below after a discussion of the evidence and the circumstances in the case came to the conclusion that defendant No. 1, Jagarnath Gir, was not the chela of Onkar Bharthi. This finding was not specifically challenged in the grounds of appeal to this Court, unless it be considered that the challenge was implied in ground No. 4 of the memorandum of appeal which is to the effect that:
It was proved that the property in suit devolved from guru to chela, which was in fact and in law endowed property and was not the personal property of Onkar Bharthi.
7. We are of the opinion that if the appellant wanted to contest this finding he should have said so specifically in the grounds of appeal. Under the circumstances, it is sufficient to say that we are in perfect agreement with the Court below and hold that it has not been proved that Jagarnath Gir is the chela of Onkar Bharthi.
8. The next point that we have got to determine is whether Onkar Bharthi was a. nihang sadhu. The Court below has come to the conclusion that Onkar Bharthi was not a nihang sadhu but a grihast goshain. The only circumstance to which reference has been made by the learned Counsel on behalf of the appellant on this point is that Oudh Bharthi in his will of November,1901, said that he had initiated a disciple named Onkar Bharthi who was then of tender age. There is also some evidence to the effect that Onkar Bharthi was shaved when he was initiated. This shaving ceremony took place when Onkar Bharthi was about 16 months old, as was deposed to by Musammat Lakhraji, when she gave her evidence on March 3, 1903, in the litigation between Mahadeo Bharthi and Oudh Bharthi. We may, therefore, take it that the initiation took place about 1901. Bhaonath Pandey, Bhagwan Datt, Hubba, Guptar and a number of other witnesses produced on behalf of the plaintiff proved that Oudh Bharthi died when Onkar Bharthi was about 7 or 8. This would show that the ceremonies which are necessary for the initiation of a person as a nihang could not have been performed and Onkar Bharthi could not have been made a nihang. In the case of Gossain Ramdhan Puri v. Gossain Dalmir Puri 2 Ind. Cas. 385 : 14 C.W.N. 194 it was held that according to the custom of the dasnami sanyasis to which class the nihang goshain belongs.-
Every aspirant for entrance into the order has to pass through a period of probation which may extend to months or even years, and during which period it is open to the chela to revert to his natural family. It is not till the performance of the final ceremony or the Biraja Home that the aspirant is irrevocably attached to the sect and completely severed from his family. It is, therefore, essential that the Briaja Home should have been duly performed. It is not, usual to whisper the mul mantras into the ears of the novice at the time of the first initiation though some mantras may be recited on such an occasion.
9. The Biraja Home can be performed only:
When the chela has reached the years of discretion so as to be able to realise for himself the full significance of the final act of the renouncing of the world.
10. This case was followed by this Court in the case of Baldeo Prasad v. Arya Priti Nidhi Sabha 124 Ind. Cas. 761 : 52 A. 789 : Ind. Rul. (1930) All. 617 : A.I.R. 1930 All. 643 : (1930) A.L.J. 1378 in which it was held that:
The mere fact that a person declares that he has become a Banyan or that he calls himself or is described by others as such or wears clothes ordinarily worn by sanyasis would not be sufficient to make him a perfect sanyasi. The essential ceremonies in this connection include the performance of prajapathiyesthi homan and the viraja homan.
11. There is a very interesting note by Warden printed as Appendix B at p. 433 in Steel's: "Customs of Hindu caste" giving the origin of the sanyasis and the cremonies that are essential for initiation according to that note also the celebration of the viraja homan is essential. In Crooke's book. "The Tribes and Castes of the North-Western Provinces and Oudh," Volume II, p. 470, there is a quotation from Mr. Sherring who describes the mode of initiation as follows:
The candidate is generally a boy, but may be an adult. At the Sivaratri festival water brought from a tank in which an image has been deposited is applied to the head of the novitiate, which is thereupon shaved.
The guru or spiritual guide whispers to the disciple the sacred text (mantra). In honour of the event, all the goshains in the neighbourhood assemble together, and give their new member their blessing, and a sweetmeat called laddu, made very large, is distributed among them. The novitiate is now regarded as a goshain but he does not become a perfect one until the viiaya homa has been performed at which a goshain famous for religion and learning gives him the original mantra of Siva. The ceremony generally occupies three days at Benares. On the first day, the goshain is again shaved, leaving a tuft on the head (chundi sikha). For that day he is considered a Brahmin and is obliged to beg at a few houses. On the second day he is held to be a Brahmachari and wears coloured garments and also the sacred cord (janeu). On the third day the janeu is taken from him and the headlock cut off. The mantra of Siva is made known to him and also the rudri gayatri (not the usual one daily pronounced by Brahmins). He is nowafull goshain or vanaprasta, is removed from other persons and abandons the secular world. Henceforth he is bound to observe all the tenets of the goshains. The complete goshains who have performed the ceremony of the vijaya home are celebates. It is customary, therefore, for men not to perform it until they are 40 or 50 years of age as it involves the abandonment of their witas and families.
12. At the same page Crooke says that "goshains are both ascetics and family men. The former are generally known as kutichar, ashandhari or mathdhari, and the latter grihast". At p. 471 he has stated that:
Among the trading goshains the mahant of Mirzapur who belongs to the Giri section was for a long time nortorious among the merchants of Northern India. Such goshains have practically abandoned all claim to living a religious life and exercise no priestly functions.
13. There is no evidence on the record of this case to show that any of these ceremonies were performed or that Onkar Bharthi had reached the years of discretion when he could understand the significance of the mul mantras and of the fact that he was irrevocably renouncing the world. Reference has been made to the fact that he was buried but this circumstance alone is not sufficient to show that Onkar Bharthi had become a sanyasi or nihang. Janki Nath a witness on behalf of the defendant Jagarnath Gir stated:
Onkar was married to Musammat Murat. The mahant who is not married is called nihang mahant. Onkar was married to Murat and so I cannot say whether he was grihast or nihang. The Count knows it. I am grihast. I cannot tell what is the difference between me and Onkar on the point of grihast.
14. Every circumstance points in favour of Onkar being a grihast goshain and not a nihang sanyasi. The necessary ceremonies had not been performed in his case; he was married and lived the life of a worldly man and was possessed of property. We, therefore, agree that Onkar Bharthi was a grihast goshain.
15. The finding that the disputed property was the personal property not dedicated to any math and that Onkar Bharthi was not a nihang sanyasi naturally obviates the necessity of finding whether there is any special custom in Shankerjot math about the devolution of the math property, because the ordinary Hindu Law would govern the inheritance. Paragraph 7 of the wajibularz of 1860 subscribed by Oudh Bharthi, runs as follows:
In this village I have been appointed as a lambardar. After me my eldest son, if he be fit, should be appointed as lambardar. If he be unfit then any other son who' may be fit should be appointed as lambardar. If my heirs be minors then some of my relations should be appointed as sarbarahkar to look after and protect the property of my son. The above citation from the wajib-ul-arz also shows that the line of succession is not governed by any special custom, that is; the devolution from guru to chela as is alleged by Jagarnath Gir but by the ordinary Hindu Law.
16. It was also contended in the Courts below that Onkar Bharthi had executed a will dated October 29, 1918, in favour of Musammat Mural making her the absolute owner of the property and that Musammat Murat in her turn had executed a will dated June 15, 192,?, bequeathing the property to the defendant and by virtue of these two deeds the defendant is in rightful possession of Onkar Bharthi's estate. The Court below has held against the genuineness of these wills. A half-hearted argument was advanced before us in this connection but it is not necessary for us to say more than that; we are in perfect agreement with the Court below that the evidence produced by the defendant to prove the will of Onkar Bharthi is entirely worthless, and so far as Musammat Murat's will is concerned, Bhuleshar Lal, the scribe himself says that Musammat Murat died early on the morning of June 15, 1923, and the will was written out four days after her death.
17. The next question that we have got to decide is whether Musammat Lakhraji, who is impleaded as defendant No. 2, is the mother of Onkar Bharthi. The learned Additional Subordinate Judge has recorded a finding that defendant No. 2 is Lakhraji, mother of Onkar Bharthi. It has been strenuously contended on behalf of the defendant-appellant that this finding is wrong. Although the judgment of the Court below is not satisfactory on this point we have also come to the same conclusion independently and without deriving any assistance from the reasons given by the learned Additional Subordinate Judge. Ordinarily speaking where the judgment of the Court below is on a pure question of fact depending on the credibility of witnesses, it is not desirable that an Appellate Court should differ, but in the present case the Additional Subordinate Judge has not discussed the plaintiff's witnesses at any length. Indeed in his judgment he does not mention the witnesses by name but only by numbers' which is not a proper method of mentioning witnesses. He has relied mainly on the evidence of plaintiff's witness No. 3, namely Manorath and plaintiff's witness No. 25, namely, Ram Achal, Manorath calls himself a mukhia; he is, however, not a zamindar but, only a tenant. He has obviously lied in saying that he does not remember whether he had given any evidence in the Revenue Court in 1923 between the parties when it is a fact that he did appear for Musammat Lakhraji, and was examined before the Court below within six years of his examination before the Revenue Court., Ram Achal calls himself a chaukidar in the Nepal State; he, however, admits that he had no belt or coat of the post of chaukidar but was expecting to get it in a short time. He hadto admit that he had got no letter of appointment till then nor had he got permission of the Nepal Government to attend the Court, nor was he in receipt of any pay because the Nepal Government did not pay the chaukidars but only gave them grain and that he came to attend Court unsummoned. The learned Judge has relied on the evidence of tenants of Shankerjot who have been produced as witnesses on behalf of the plaintiff. He has, however, not mentioned the fact that these tenants have not been paying rents to defendant No. 1, although he is a recorded co-sharer for the last four years. These tenants have been either depositing rents in the tahsil or have been sued by Jagarnath Gir in the Revenue Court. Indeed there are a number of decrees on the record of our case from p. 247 onwards which prove that the defendant No. 1 had to sue the majority of the tenants who had come as witnesses on behalf of the plaintiff. The plaintiff led evidence in the Court of first instance on issues as regards which the burden of proof was laid upon him. After the evidence of the parties had been closed the plaintiff wanted to produce rebutting evidence to which objection was taken on behalf of the defendant (p. 61 of our record). The Court gave the plaintiff permission to produce rebutting evidence on which the defendant protested and requested that it should be made clear on which issues rebutting evidence would be produced. The plaintiff's Pleader stated on October 15, 1925, that he would not produce evidence on Issues Nos. 1 and 5 (p. 65 of our record). Now Issue No. 5 related to whether Musammat Lakhraji was the mother of Onkar Bharthi. Nevertheless the plaintiff produced Ram Achal chaukidar and also Musammat Lakhraji as witnesses to rebut the evidence produced by the defendant and questioned them in examination-in-chief as to the parentage of Onkar Bharthi, and the learned Judge has relied on this evidence although apparently it would not be admissible under the Code of Civil Procedure. Musammat Lakhraji was not examined as a witness when the plaintiff's other witnesses were produced. The Court below took down her statement under Order X, Rule 2, Civil Procedure Code, not before the settlement of issues but after the evidence of the parties had been closed on October 18, 1929. The defendant had no opportunity to cross-examine her on that date. She was not produced as a witnesses till the stage for producing rebutting evidence and naturally objection was taken to this (p. 84 of our record). The Court below allowed her to be produced as a witness in rebuttal, nevertheless she was questioned with regard to points arising under other issues as well, and learned Counsel on behalf of the defendant takes objection to this procedure.
18. The Court below then makes a point of the fact that Jagarnath Gir, Who has got residence in the village and actually resides there and professes himself to be the mahant of Shankerjot.
was not able to produce any witnesses from Shankerjot. The learned Judge seems to assume that the defendant No. 1 has got his residence and actually resides there. As a matter of fact, his residence in the plaint is given as Mathol, tappa. Asnar, pargana Bansi East, and he is a minor aged 14 under the guardianship of his father Gajadhar Gir. Plaintiff's witness Manorath admits that Jagarnath Gir does not live in the village Shankerjot. He has only taken possession of the house in which Onkar Bharthi and Oudh Bharthi lived. It was then stated by the Court below that the defendants witnesses Nos. 1, 5, 8 and 9 support the plaintiff's case in one way or the other but it is not stated in what way those witnesses supported the plaintiff's case. As regards defendants witness No. 1 Ganga Ram, the passage on which reliance is placed by learned Counsel on behalf of the respondent is to the effect that the witness stated that defendant No. 2 who was present in Court room was the mother of Onkar Bharthi. It is contended on behalf of the appellant that the witness really stated that defendant No. 2 was net the mother of Onkar Bharthi and the word "not" has been inadvertently omitted and in this connection it is pointed out that if Ganga Ram had made an admission in favour of the plaintiff, the plaintiffs Counsel would not have cross-examined the witness at length on this point, as indeed he did. It is also pointed out that the Court itself did not make any attempt to ask the witness to reconcile his conflicting statement because as the evidence stands, at one place he had admitted that the defendant No. 2 who was present in Court was the mother of Onkar Bharthi and that woman was about 40 or 45 years old, and at a later stage he made an absolutely contrary statement when he said that Musammat Lakhraji the mother of Onkar Bharthi was more than 60 years old when he and Onkar used to read in 1 school long ago. It is contended that the. omission of "not" in the sentence mentioned above was discovered at the time of argument when an affidavit was filed duly sworn, accompained by an application and verified by Ganga Ram witness in which he said that on account-of a clerical mistake the word "nahi" (not) has been omitted in his statement (p. 93 of our record). The learned Additional Subordinate Judge without saying anything about the accuracy of the affidavit simply said that the application "should be placed on the record without any regard". It is also pointed out that in the deposition of Ganga Ram the learned Judge has at p. 34 undoubtedly made a clerical mistake when he wrote down that Oudh Bharthi was not alive at the time of the marriage of Oudh Bbarthi (the latter name is obviously Onkar Bharthi).
19. The contention of the defendant appellant before us is that the mother of Onkar Bharthi died before the Revenue' Court litigation that was started in connection with mutation of names after the death of Musammat Murat, and that the woman who appeared as Musammat Lakhraji before the Revenue Court as well as before the learned Subordinate Judge is an imposter. Now Janki Nath defendant's witness No. 5 in cross-examination admitted that there was litigation between defendant No. 1 the mother of Onkar, Durga Bharthi and Sheoratan Bharthi after the death of Musammat Murat, and if this admission be taken at its face value, it would be clear that Janki Nath was stating that Musammat Lakhraji who appeared in that litigation was the mother of Onkar Bharthi. The submission of learned Counsel on behalf of the appellant is that this admission was obtained by the cross-examining Counsel of the Court below in an unguarded moment in reply to a question formulated in a tricky manner by the Counsel, because the admission obviously runs counter to the entire evidence of Janki Nath. It is further pointed out that in recording the deposition of this witness the learned Judge again made a clerical error because the learned Judge says that the witness said, "I am staying in Basti from September 12, 1929," when the witness must obviously have stated, "I am staying in Basti from August 12, 1929, because the witness who was being examined was examined on August 22, 1929.
20. So far as defendant's witnesses Nos. 8 and 9 are concerned, it has not been shown to us by learned Counsel on behalf of the plaintiff as to how they support the plaintiff's case.
The learned Additional Subordinate Judge has thrown the burden of proof on the defendant by assuming that it was incumbent on him to establish that Musammat Lakhraji died before 1923 and has recorded a finding to the effect that as there was no documentary evidence on the record to prove that Musammat Lakhraji was dead therefore defendant No. 2 was Musammat Lakhraji, mother of Onkar Bharthi. It is argued that the burden is on the plaintiff to show that his vendor was the mother of Onkar Bharthi, no matter whether the real mother of Onkar Bharthi was alive or dead, and that there was no presumption that if she was not dead she was the vendor of the plaintiff. With this criticism we agree to a great extent. The initial burden was undoubtedly on the plaintiff to prove that his vendor was the mother of Onkar Bharthi competent to transfer her rights to the plaintiff, and although the fact that the defendant No. 1 had not established the death of the real mother of Onkar Bharthi might weaken the defendant's case, it would not of itself establish the positive case which the plaintiff had to establish.
21. It is also pointed out that at least in one instance it is clearly shown that the learned Judge h is no proper sense of appreciation of oral evidence. Bhuleshar Lal is a scribe of the will said to be executed by Musammat Murat. This witness had had the audacity to state (p. 77 of our record) that he was asked to scribe the will after the death of Musammat Murat; indeed he went so far as to say that he had seen her being cremated and it was after her death that he agreed to scribe a will purporting to be executed by her as wall as to attest a mortgage deed alleged to have been executed by her. This witness on his own showing was, therefore, a blackguard, but the learned Judge while discussing him at p. 102 of our record said that "there was no earthly reason why this witness should not be believed". It is also pointed out that no relations of Musammat Lakhraji had appeared in the witness-box although it is admitted that she had four brothers and several sisters. Her own statement it is suggested, is worthless because on her own showing she made a false statement in 1903 in the litigation between Mahadeo Bharthi and Oudh Bharthi wherein she had stated that she was the wife of Man Gir and that Onkar Bharthi was the child of Man Gir, while now she says that she made this statement which was false at the instance of Oudh Bharthi and that in reality she was married to Oudh Bharthi and Onkar Bharthi was the son of Oudh Bharthi. It is also urged that defendant No. 2 was not able to point out correctly the graves of Oudh Bharthi and Onkar Bharthi when the learned Additional Subordinate Judge went to the spot, _ but that is a small matter, because the graves were not of any permanent structure and all that the learned Judge says is that the places she pointed out did not show traces of any grave. The absence of the plaintiff from the witness-box has also been commented upon and it is said that although he might have no personal knowledge about the matter yet his evidence might have been of some use in order to show how he found out Musammat Lakhraji. In this connection it is also mentioned that the plaintiff is a mere speculator and that he has in reality not paid anything to Musammat Lakhraji, because according to the attesting witness Bhadain Rs. 20,000 were paid in cash to Musammat Lakhraji outside the Registration Office on the day of registration, and this is said to be a palpable lie because if this money was paid on that day, it would have teen shown before the Sub-Registrar. It is also pointed out that Musammat Lakhraji stated that the money was buried in the house but when the learned Additional Subordinate Judge went to the spot the money could not be discovered. This again is not very important because it is not for us to find, out as to whether any and what consideration was paid to Musammat Lakhraji by the plaintiff, when we know that she was impleaded as a defendant to the suit and she admitted the claim of the plaintiff and supported the sale deed.
22. We have mentioned at some length the criticism that has been levelled by learned Counsel on behalf of the appellant against the finding of the Court below on this point because we, too, have come to the conclusion that the judgment of the Court below on the question of the identity of Musammat Lakhraji is not satisfactory, in the sense that it is perfunctory, and we cannot uphold it on the simple ground that it relates to a pure question of fact, and that we have to arrive at an independent finding of our own, giving the go bye to the Judge's finding, after considering the evidence and 1 he circumstances that have been pointed out to us at the bar. Although, therefore, we agree with the criticism of the appellant's Counsel, we have come to the conclusion that the finding of the Court below that the defendant No. 2 is Musammat Lakhraji, the mother of Onkar Bharthi is correct. Apart from the evidence of Manorath, the mukhia, and Ram Achal, the chaukidar, on which no reliance can be placed, there is the evidence of Bhaonath, the priest of the family of Onkar Bharthi, Bhagwan Dutt, a zamindar of an adjoining village, and a number of tenants of the two villages in dispute who all swear that the defendant No. 2 is the mother of Onkar Bharthi. We feel inclined to believe them in spite of the fact that Jagarnath Gir had to sue them for arrears of rent. They have not wholeheartedly supported the case of the plaintiff because although the allegation of the defendant No. 2 is that she was the wedded wife of Oudh Bharthi, some of the witnesses would make it out that she was only in the keeping of Oudh Bharthi. Moreover, there is no convincing reason as to why they should be favouring Musammat Lakhraji even after the decision of the Revenue Court and paying rent to her unless they were convinced that she was the rightful claimant. It is, however, pointed out that they are the creatures of Sheoratan Bharthi and Mahant Durga Bharthi who laid claim to this property on the ground that they are the mahants of a parent math. The plaintiffs case on the other hand is that Jagarnath Gir has been set up by Ajmerpuri, the father of Musammat Murat after the death of Musammat Murat. Be that as it may, we are not prepared to reject the test-mony of all these tenants simply on this ground.
23. There are, however, certain other circumstances which strengthen us in our conclusion. [His Lordship referred to other circumstances and found that Musammat Lakhraji, defendant No. 2, the vendor of the plaintiff was not an impostor but the mother of Onkar Bharthi.
24. The next question that we have got to decide is whether Musammat Lakhraji and through her, her representative is entitled to succeed to the property in dispute after the death of Musammat Murat, as the mother of Onkar Bharthi who was the last male owner of the property. The plaintiff's case is that Musammat Lakhraji was the wedded wife of Oudh Bharthi and Onkar Bharthi was her legitimate son. An issue was struck by the learned Additional Subordinate Judge on this point, but he has not recorded a finding-on the same because he Was of the opinion that even if Onkar Bharthi was the illegitimate son, Musammat Lakhraji was entitled to succeed. We regret that the learned Judge left this point undecided and if we disagreed with him on the question of law that we shall discuss presently, we might have thought it desirable to remit an issue on the point upon the evidence already on the record. We shall consider the question on the assumption that there was not a legal marriage as understood in the present times between Musammat Lakhraji and Oudh Bharthi and that Onkar Bharthi was an illegitimate son according to the present acceptation of the term. It is not denied that Onkar Bharthi was the son of Musammat Lakhraji and we have held before that the present Musammat Lakhraji is that mother. What is, however, strenuously argued on behalf of the appellant is that the mother is not entitled to succeed to her illegitimate son. It is said that this is the logical result under the Hindu Law as it stood before Manu and even after it underwent some changes in the times of Yajnavalkya and Vijnaneswara and was further modified by Judges in the present times. The contention of the respondent, however, is that upon a correct appreciation of the original texts and after paying due regard to the decided cases, there is no warrant for excluding the mother from inheriting her illegitimate son's property. We shall first mention the line adopted by the appellant in his argument. Reference was made at the very outset to Sarvadhikari's Hindu Law of Inheritance (Tagore Law Lectures, 1880), page, 281, where the learned author says:
If we carefully read the extracts from Manu which we have given in another place we come to the irresistible conclusion that the line of succession after sons, father, brothers, the nearest of kin, the remote kinsmen, the preceptor or the pupil has entirely closed and there is no room for further admission. No, Father Manu cannot silence the qualms of his conscience. For a long time he talks of a great many' other things to divert his attention from the disagreeable subject, but the shadow repeatedly crosses his path, and he can no longer keep silence. He gives a start, stamps his foot upon the ground and the flat goes forth:
Of a son dying childless, the mother shall take the estate, and the mother also being dead, the paternal grandmother shall take the heritage.
As soon as his judgment is pronounced, the great sage turns aside his face, and thinking that the painful duty was at last done, talks volubly of other matters and tries to forget that he has insulted the memory of veteran legislators by declaring women as heirs.
25. It is, therefore, said that Manu could not have intended to allow a mother to succeed to the estate of her illegitimate child when it was only for the first time declared by him that she should be one of the heirs to her son. There can, however, be no doubt that by the time of Yajnavalkya it was fully established that a mother was an heir and that a son was an heir both to his father and his mother and in the Mitakshara also the mother is recognised as an heir and comes even before the father. It is, however, contended that throughout the, Mitakshara wherever a son is mentioned it is a legitimate son who is intended and similarly wherever a father or mother is mentioned one connected by a recognised form of marriage is intended. Coming to the decided cases it was held in the case of Sarsuti v. Mannu 2 A. 134 and in Roshan Singh v. Balwant Singh 22 A. 191 : 27 I.A. 51 : 4 C.W.N. 353 : 7 Sar. 642 : 2 Bom. L.R. 529 that an illegitimate son of the three higher classes is not an heir to the father according to the Hindu Law and this view has also been taken by the Madras High Court in the case of Meenakshi v. Muniandi Panikkan 25 Ind. Cas. 957 : 38 M. 1144 : 1 L.W. 704 : (1914) M.W.N. 672 : 16 M.L.T. 270 : 27 M.L.J. 353, It is said that in the case of Subramania Ayyar v. Rathnavelu Chetty 42 Ind. Cas. 556 : 41 M. 44 : 22 M.L.T. 94 : 6 L.W. 149 : 33 M.L.J. 224 : (1917) M.W.N. 688 (F.B.), the learned Judges of the Madras High Court have extended the principle laid down by their Lordships of the Privy Council by holding that the sudra father of a son from his concubine would, on the principle of reciprocity or justice, equity and good conscience, inherit the estate of her illegitimate son and Sadashiva Aiyer, J., was of the opinion that he might possibly inherit collaterally. Commenting on the case of Jogendra Bhupati Hurrochandra Mahapatra v. Nityanand Man Singh (sic), the learned Counsel for the appellant argues that although when it was laid down that two illegitimate sons might succeed to each other, their Lordships did not intend to extend the scope of what they had laid down previously but simply intended to hold that they would succeed to each other as brothers by survivorship on the ground that they were members of a joint Hindu family, that is to say, on the principle of the formation of a joint Hindu family and not as a matter of inheritance. Citing the original text of Manu to the effect that to the next sapinda the inheritance belongs, it was said on behalf of the appellant that it was laid down by their Lordships of the Privy Council in the case of Ramchandra Martand Waikar v. Vinayak Venkatesh, Kothekar 25 Ind. Cas. 290 : 42 C. 384 : A.I.R. 1911 P.C. 1 : 18 C.W.N. 1154 : 27 M.L.J. 333 : 1 L.W. 831 : 10 N.L.R. 112 : 16 M.L.T. 447 : (1914) M.W.N. 835 : 16 Bom. L.R. 683 : 12 A.L.J. 1281 : 20 C.L.J. 573 : 41 I.A. 290 (P.C.) that sapindaship must be mutual and that the sapindas must be so related to each other that they should W sapindas of each other, and it was contended that an illegitimate son cannot be the sapinda of his mother, conversely the mother cannot be the sapinda of her illegitimate son, and therefore, she cannot be an heir. It is argued that although the mother is not specifically mentioned she is still treated as a sapinda, and it has been made clear in the cases of Shome Shankar Rajendra v. Rajesar Swami Jangam 21 A. 99 : A.W.N. 1898, 170 and Rathinasabapathi Odayar v. Gopala Odayar 121 Ind. Cas. 126 : A.I.R. 1929 Mad. 545 at p. 555 : 29 L.W. 696 : 26 M.L.J. 673 : Ind. Rul. (1930) Mad. 142 that sapinda relationship depends on a lawful marriage. Coming to the time of Yajnavalkya in Chap. II, Section 2, it is stated that both parents (pitarau) will succeed to the estate of their son after certain prior heirs have been exhausted. The Benares school has made it clear that between the two parents the mother takes precedence. It is, however, pointed out that the word pitrau must mean parents who are legally married, and in this connection reliance is placed on the use of the same word in Chap. I, Section 3 of Yajnavalkya, where it is stated that sons divide equally both the effects and debts after their two parents (pitrau), which it is said must mean parents who are legally married. When the texts of Yajnavalkya say that of heirs dividing after the death of the father let the mother also take an equal share and that if he (father) makes the allotments equally, his wives to whom no separate property has been given by the husband or the father-in-law, must be rendered partakers of like portions then it was meant that the lady should be legally married. It is then pointed out that the case of Mayna Boyee v. Ootaram 8 M.I.A. 400 : 2 W.R. 4 : 1 Suth. 452 : 2 M.H.C.R. (sic) proceeded more on general principles of justice, equity and good conscience rather than on Hindu Law and in the case of Mayna Boyee v. Ootaram 8 M.I.A. 400 : 2 W.R. 4 : 1 Suth. 452 : 2 M.H.C.R. (sic) their Lordships of the Privy Council implied 1 hat in the absence of a custom or usage having the force of law an illegitimate child cannot inherit the estate of his mother. Finally it is contended that although there is an exception which allows an illegitimate son of a sudra father to succeed to the estate of his father and although on the principle of reciprocity or justice, equity and good conscience the father might succeed to his illegitimate son, there is no text which allows the illegitimate son to succeed to the estate of his mother, much less is there any test which allows a mother to succeed to the estate of her illegitimate son. So far as Judge-made law is concerned, strength is sought from the case of Jagannath Raghunath v. Narayan Lal Shethi 7 Ind. Cas. 459 : 34 B. 553 : 12 Bom. L.R. (sic) wherein it was held that the stridhan of a female devolves on her death upon her husband in preference to the son born of her by adulterous intercourse.
26. On behalf of the respondent, the line of argument adopted by his learned Counsel is that there is no text which prevents an illegitimate son from succeeding to the estate of his mot her in any caste, nor the mother to succeed to her illegitimate son and there is no justification for holding that the mother should be married according to the present conception of marriage. It is said that the old Hindu Law-givers recognised eight forms of marriages (some of which received the approbation of the law givers and some did not, but all were recognised as legal) and twelve kinds of sons, and therefore, there was very little room for what is now known as an illegitimate son. It was also ordained that a man of a superior caste could marry a woman of an inferior caste and provision was made for the sons from the wives of different castes in different proportions at the time of partition. It was, however, not open for a woman of a higher caste to marry a man of an inferior caste when probably she would become an outcaste. Mr. Shastri, however, at p. 665 of his book stated that a woman living in adultery with a man of equal or superior caste did not become an outcaste. The only restriction, therefore, in marriage apart from questions of consanguinity was that marriage between woman of a superior caste and a man of an inferior caste was not permissible. One of the recognised forms of marriage was the gandharb form of marriage which is described as "the voluntary union of a maiden and her lover which springs from desire and has sexual intercourse for its purpose" and this in modern, times would be called mere concubinage, The son of such a marriage in the olden days would be a legitimate son and indeed would be the principal kind of son, namely the aurasa. There were, as slated before, twelve kinds of sons, the first of whom was called the principal (aurasa); the remaining eleven were secondary and ancient Hindu Law prescribed various devices for obtaining sons, even to the extent of a child being begotten by another person, namely, by a sagotra (this was kshetraja son) or of a child being born to an unmarried damsel while she was in her father's house (this was the kanina son). But it must be understood that in these cases the putative father must be of the same caste. Here again it would appear, therefore, that the only restriction was that the caste of the procreator must not be lower. It is, therefore, difficult to imagine of an illegitimate child provided there was no degeneration on the part of the woman so far as the caste was concerned. The recognition of twelve kinds of sons in the ancient times is due to the fact that great spiritual benefit was expected from the son. He is a putra, the deliverer of the soul of the father, from the torments of hell (put), and there was, therefore, an inordinate desire amongst the Hindus of old that a son should be borne who would be capable of performing this act of deliverance. Manu gives full expression to this longing when he says:
By a son a man obtains victory over all people, by a son's son he enjoys immortality and afterwards by the son of that grandson, he reaches the solar abode.
27. Various kinds of marriages were recognised on principles of morality because it was considered sinful for a man to have carnal connection with a female and not make a decent woman of her, by insisting that under whatever circumstances the connection takes place a marriage must be deemed to have taken place. It is contended that if Onkar Bharthi had been borne in the days of yore, he would have been considered legitimate or principal child (aurasa) of Oudh Bharthi and Musammat Lakhraji would be deemed to have been married according to the gandharb form of marriage. The only exception that was made formerly was in the case of a son begotten on a female slave, that is a dasiputra and there it was declared that a son begotten by a sudra on a female slave may take a share by the father's choice but the son begotten by a man of a regenerate class on a female slave was not held to be entitled to a share even by the father's choice but only to maintenance if he was docile. All forms of marriages, excluding the Brahma where the saptapadi is performed and the asur which in rituals is allied to the Brahma with the exception that the bridegroom pays consideration for the bride, are now obsolete. We, of course, leave here marriages permitted by custom out of consideration. All kinds of sons except the aurasa (ordinarily understood as legitimate) and dattaka (ordinarily understood as adopted) are also obsolete and slavery, too, has been abolished. It, therefore, perhaps follows that an illegitimate child according to Hindu Law as at present understood would be the offspring of concubinage and that is the reason why their Lordships of the Privy Council have said that, an illegitimate child as distinguished from a dasipuira would not succeed to a father of a regenerate class but would only succeed to a sudra father. The contention of the respondent, therefore, is that there is no justification for extending the principle any further. It is said that the rule of English Law regarding illegitimate children does not apply to Hindus. He is a not a filius nullius as regarded in English Law and this was held in the case of Ram Kali v. Jamna 30 A. 508 : A.L.J. 629 : A.W.N. 1908 229. The original text being that a mother succeeds to her son, it would follow that the mother could not obviously mean married only according to the Brahma or the asur form of marriage, and the submission of the respondent's Counsel is that when the original text is being interrupted the conditions prevailing in ancient times should be investigated and modern notions should not be engrafted unless justice, equity or good conscience so demand. We feel inclined to agree with this argument, inasmuch as it is based on the scheme of the Mitakshara and when there is no express text forbidding an illegitimate child from succeeding to the estate of his mother and vice versa and when it finds support from modern writers on Hindu Law of great repute and by certain decided cases. Mr. Jogindra Chandra Ghosh in his principles of Hindu Law, Vol. I, Ed. 3. p. 159, quotes a text of Vrihatparasara which is as follows:
The son begotten by one of equal caste (the illegitimate son) is the offerer of pinda of his mother and is in every respect (a son to her), but he is nothing to the begetter, as he is born of lust.
28. At p. 369 he says, We have already seen that according to the rule of Vrihatparasara illegitimate as well as legitimate children inherit the estate of a woman and if it is stridhan there is no reason to suppose that the ordinary rule of Hindu Law will not apply.
29. At p. 765 he discusses the status of an illegitimate son and at the top of p. 566 says, However that may be, illegitimate sons are heirs of their mothers according to the smritis, and the English Rule that illegitimate children have no rights whatsoever can have no application to Hindus.... Considerations of public policy and morality ought to determine the question of inheritance in these cases irrespective of the old fictions and superstitions. I have shown at p. 369 that the illegitimate sons offer sapindas to their mother and are thus related according to law to her and to one another and have thus also rights of inheritance to the estate of the mother and also of one another.... The law which makes every erring woman and her poor innocent children outcastes and denies them all rights of inheritance even among themselves, cannot be considered as consistent with common humanity and natural, justice.
30. Mr. Ghosh, therefore, would uphold the rights of illegitimate children to the estate of their mother on the original text as well as on grounds of natural justice and common humanity. Mayae in his book on Hindu Law, Ed. 9, p. 808, when speaking of illegitimate sons says, It is also to be remembered that, as the English Rule which prevents bastards tracing to their father has no existence in Hindu Law, so the fact of illegitimacy does not prevent bastard brother claiming to each other...still less is there any absence of heritable blood as between bastards and their mother.
31. Trevelyan in his book on Hindu Law, Ed. 3, at p. 500, says, illegitimacy is not a oar to the succession of children to their mother's property, but in a competition between legitimate and illegitimate children the rights of the former prevail.
32. Sir Hari Singh Gour in his Hindu Code, Ed. 3, p. 1588, says as follows:
Neither unchastity, as distinct from prostitution nor illegitimacy disqualifies an heir to a stridhan; the reason for the one is the absence of any express disqualifying text, while the other is supported by express texts in its favour quoted under the next section.... It will be seen that under the Mitakshara Law of inheritance to males, only the unchaste widow is disqualified from inheriting to her husband, though under the Dayabhag, such disqualification is more general, but so far as regards inheritance of the stridhan this qualification is generally absent whether the heir is subject to the Mitakshara or the Dayabhag Law.
33. Again at p. 1587 he says, Abundant texts (Manu-IX. 35, 38) exist in the early smritis recognising one's natural offspring and there is no authority against the existence of heritable blood between the woman and her offspring.
34. Coming to the decided case, the first case which was relied on by the respondent was the case of Mayna Bdi v. Ootaram 8 M.I.A. 400 : 2 W.R. 4 : 1 Suth. 452 : 2 M.H.C.R. (sic). This was a decision by the High Court of, Madras on the remand of the case by the Privy Council. Certain passages from the judgment in this case support the plaintiff's contention. At p. 201 Page of 2 M.H.C.R.--[Ed.] the learned Judges say as follows:
Certainly there are many passages of the text writers which recognize the relationship of the soil, irregularly begotten, to his mother's family.
35. Yajnavalkya quoted in the Vivada Chintamani, p. 283 Adamsel's child is one borne of an unmarried woman he is considered as the son of his maternal grandsire. This passage, clearly recognizes the mother and her son irregularly begotten, as cognate, and the Mitakshara quoting Manu (Chap. I, Section XI, Clause 7) points out that if the girl is married, the child, although not begotten by the husband, becomes his son. The authorities, already referred to, as to the son of concealed origin, also bear upon this point, and seem to show clearly that the Hindu Law, although for obvious reasons not recognizing as the husband's son one got by a man of unequal class, nevertheless given no ground whatever for supposing, that the circumstance of birth from illicit connection severs the union between the mother and her son, so as not to admit of heritable blood between them.... All the passages to be found in the text tooks have reference to the right of inheritance ex parte paterna. That from the younger Macnaghten, quoted in the Privy Council, is of that character, and it is wholly unnecessary to consider whether his opinion is well or ill-founded. The doctrine of Mr. Justice Strangein Section 363 of his Manual is fully borne out by a dictum in the case quoted Tara Munnee Daesea v. Motee Buneanee 7 Sadr. Dew. Ud. 273. It was a suit by the daughter, both in wedlock of. a mother who afterwards lapsed into prostitution, to recover from the daughters born in prostitution the property of the mother.' The Court held the plaintiff's title not made out, because the conduct of the mother had entirely severed her from her natural family, so that the plaintiff, the daughter born in wedlock, could not succeed to her. There is also the dictum that the prostitute daughters are enisled to succeed, but the plaintiffs case failing this was not actually necessary to the decision. In Madras, too it has never been doubted, that the children of the prostitute succeed to the property of their mother.... Our reasoning, therefore, is that there is no authority against the existence of heritable blood between the woman and her illegitimate offspring.
36. The next case that was cited by the respondent was the case of Maharani v. Thakur Prasad 12 Ind. Cas. 778 : 14 O.C. 234 in which the learned Judicial Commissioners held:
that property acquired by an unchaste widow from the brother of a man with whom she had lived for years as his concubine is not her stridhan in the sense in which the expression is used in the Hindu taw and further "that the property so acquired by the widow goes to her illegitimate child and-not to the members of her husband's family upon whom, the widow had no claims whatever after she began to live with her paramour.
37. The third case cited by the respondent, is the case of Stibramania Ayyar v. Rathnavelu Chetty 42 Ind. Cas. 556 : 41 M. 44 : 22 M.L.T. 94 : 6 L.W. 149 : 33 M.L.J. 224 : (1917) M.W.N. 688 (F.B.) decided by the Fall Bench of that Court in which the learned Judges held that where an illegitimate son who if he had survived his putative father would have inherited his estate either alone or along with others dies leaving no issue, widow, or mother his putative father is entitled to succeed as his heir.
38. Although this case is a direct, authority on the right of the putative father to succeed to the estate of his illegitimate son but there is a very full discussion in the judgment on the question of illegitimate children generally and the view that has been approved of is that of the cognation between the mother and her offspring there exists no doubt whatever. The last case that was cited on behalf of the respondent was the case of Kasturi v. Lote Major 56 Ind. Cas. 952 : 16 N.L.R. 221 in which the Judicial Commissioners of the Nagpur Court after a review of the original texts and the decided cases came to the conclusion that according to the Hindu Law an illegitimate daughter even among the twice born classes inherits the property of her mother in preference to trespassers. It will thus be seen that, although the cases cited by the appellant do not negative the right of Hindu mother to succeed to her illegitimate child, the cases cited by the respondent favour the proposition that there is heritable blood between the mother and her illegitimate offspring, and the Oudh case quoted above is a direct authority for the contention that the illegitimate son succeeds to her to other, and we are of the opinion that on the principle of mutuality the mother should succeed to her illegitimate child; The original text is that the mother (not-the wife of the father) succeeds to her son.
39. In the absence of clear authority it has been held that the principles, of justice, equity, and good conscience can be applied in cases under the Hindu Law. In Myna Bayee v. Ootaram 8 M.I.A. 400 : 2 W.R. 4 : 1 Suth. 452 : 2 M.H.C.R. (sic) already quoted the learned Judges say at page 199 Page of 2 M.H.C.R.--[Ed.], This seems to be the rule of equity and good conscience, which, by our Charter, we are bound, to apply where no positive provision of law exists.
40. In 14 Oudh Gases Maharani v. Thakur Prasad 12 Ind. Cas. 778 : 14 O.C. 234 at page 237 Page of 14 O.C.--[Ed.] the learned Judicial Commissioners say, The present case being one to which no express provision of the Hindu Law can be made applicable, the Court must decide according to the principles of justice, equity and good conscience.
41. In Rada Kishan v. Raj Kuar 13 A. 575 : A.W.N. 1891, 158 the learned Judges say, We cannot find amongst the authorities and texts cited to us any sure principle to guide us in this case. Under these circumstances, we must act on the principles of equity and good conscience.
42. There is abundant authority, therefore, in the decided cases for the contention that in the absence of clear text and authority we can decide a point by applying the principles of justice, equity and good conscience. There may be some obscure texts which preclude an illegitimate son from claiming rights of collateral succession and this may also be justified by equity and good conscience, but an. illegitimate child after the death of his putative father can look up to no one except his mother who brought him into the world, and an erring mother can rely only upon her child after the death of her paramour. The right of one to succeed to the property of another can, therefore, be based on the principles of justice, equity and good conscience, and there is no reason why the property should by escheat go to the Crown.
43. For the reasons given above, I would uphold the decision of the Court below and dismiss this appeal with costs.
Sulaiman, C.J.
44. I agree with my learned brother, and would like to add only a few words on the right of a mother to inherit her illegitimate son's estate under the scheme of inheritance as given in the Mitakshara.
45. If for a moment we confine our attention to the old law, without taking into account the subsequent rulings, the position is perfectly clear. Illegitimacy in the sense in which it is now understood was not at all recognised under the ancient Hindu Law. It could only come in if there was a legal impediment to marriage or the order of the castes was infringed by a woman of a higher caste marrying a man of a lower caste. So as the man and the woman belonged to the same caste and there was no legal impediment to marriage, either on account of blood relationship or on account of the woman being already married, any union between the two was recognised as a valid marriage. Indeed, besides, eight different forms of marriage there were numerous other forms of marriage, rendered valid by custon like karao, sagai etc. To these may now be added marriages recognised by statute. Four of these were approved forms of marriage and the remaining four disapproved forms. But all the same, even the latter were recognised as good marriages. They included, the forcible capture of a woman as also the keeping of a woman raped while asleep or intoxicated: see Kishun Dei v. Paltan 90 Ind. Cas. 358 : 23 A.L.J. 981 : L.R. 6 A. 557 Civ : A.I.R. 1926 All. 1 : 48 A. 126. Six out of the eight recognised forms of marriage are now obsolete, unless they are sanctioned by custom. The recognition of these various forms merely implied that the performance of marriage ceremonies was not absolutely essential, and that even in the absence of such ceremonies sexual union would amount to marriage provided there was no legal impediment on account of relationship or caste. With the progress of time the need for such ceremonies was felt and marriages without such ceremonies ceased to be recognised and so such forms became obsolete.
46. Coming to eons, there were no less than 12 varieties (in reality 13) of sons that were recognised. The reason for the anxiety to recognize all sorts of sons was the spiritual efficacy which the existence of a son conferred on the father.
Because the son delivers his father from the hell called put, therefore, he has been called putra deliverer from put, by the self Existent One Himself" (Manu 9. 138.)
47. The hell consisted of the cutting off of one's line; and inasmuch as the son restored the line, he was the deliverer from hell (Dayabhag).
48. The issue from any of the eight forma of marriage was the awrasa or legitimate son, being born of a legal wife. A woman of equal caste, espoused in lawful wedlock is a legal wife: and a son begotten (by a husband) on her, is a true and legitimate son; and is chief in rank (Mitakshara Chap. I, Section XI, pl. 2). The other varieties of sons were not born from both husband and wife, and included the son of an appointed daughter the son of two fathers, a son begotten by a Sagotra (kinsmen) or by any other (person not of lower caste) and the son of hidden origin, when secretly brought forth in the husband's house, provided that the father, though his identity be not ascertained, must have belonged to the same caste. Pl. 7 of this Section XI is of particular importance.
A damsel's child (kanian) is the offspring of an unmarried woman by a man of equal class (as restricted in the preceding instance): and he is son of his maternal grandfather, provided he be unmarried and abide in her father's house. But, if she be married, the child becomes the son of her husband.
49. It is not necessary to mention the remaining varieties. The rest were the adopted son, the son purchased, the self-given son, the son accepted while yet in the womb and received with the bride and a deserted son forsaken by his parents (pl. 1). It is accordingly clear that if an unmarried girl had connection with a man of equal class and gave birth to a son, he was regarded as the son of the mother's father. Although according to present notions he would be an illegitimate child, yet he was regarded in the Mitakshara as the son of his maternal grandfather and a fortiori the son of his own mother who gave birth to him.
50. It would, therefore, seem that with these numerous varieties of marriages and still more numerous varieties of sons, there was no question of any illegitimacy unless there was a legal impediment to marriage on account of relationship or infringement of the rule of caste. Manu recognised that the first six sons were both heirs and kinsmen, while the last six were only kinsmen and not heirs (Mitakshara Chap. I, Section XI, pl. 30). Pl. 39 recognised the damsel's son, the son of hidden origin, the son received with the bride and the son by a twice-married woman as being of like class through their natural father. Pl. 40 laid down that issue procreated in the direct order of castes were comprehended under legitimate issue. Pl. 41 went even further and recognised the son by a sudra wife as legitmate, though he was entitled to only a tenth part of the estate.
51. Section XII laid down the rights of a son by a female slave (dasi putra) born of a sudra father. He was allowed a share by the father's choice, and if the father be dead, he would get a share by right. But it was made clear that the son begotten by a man of a regenerate class on a female slave did not obtain a share even by the father's choice.
52. Thus the main principle was that the rule of caste should not be broken. It was only in the case of a female slave born of a man of a regenerate class that the child was not entitled to a share in the father's estate.
53. Chapter II, Section III, pl. 1 recognised the right of the two parents (pitarau) to succeed to the property. The mother was ever; given preference. Thus, under the strict Hindu Law, as laid down in the Mitakshara, there could be no manner of doubt whatsoever that the mother of a child born of a person, of her own caste, even though both man and woman were regenerate, was entitled to succeed to her son's estate. Indeed, in such a case the union was one of the recognised forms of marriage and the son was a legitimate son, and in fact came within the category of the aurasa sons, the chief in rank.
54. But the position has been considerably modified in view of the fact that many forms of marriage and varieties of sons are obsolete, in. the sense that, unless allowed by custom, they are not recognised by law. The question of legitimacy has therefore come into prominence and the issue born of an unrecognised connection cannot be regarded as a legitimate son at all. The son of a permanent concubine would, therefore, now be an illegitimate son.
55. Another change that has been brought about by modern conditions is the abolition of slavery. There can no longer be any dasi putra in the strict sense of that word.
56. Now coming to the case-law, their Lordships of the Privy Council have laid down in unmistakeable terms that illegitimate children begotten by a regenerate man are not entitled to inherit the father's estate but are entitled to maintenance only, Chouturya Run Murdun Syn v. Sahub Parhulad Syn 7 M.I.A. 18 at pp. 50, 51 : 4 W.R. 132 : 1 Suther 353 : 1 Sar. 591 (P.C.), and Boshan Singh v. Balwant Singh 22 A. 191 : 27 I.A. 51 : 4 C.W.N. 353 : 7 Sar. 642 : 2 Bom. L.R. 529 (P.C.). It is, therefore, clear that there is now no legal tie and no relationship recognised by law between an illegitimate son and his father. A Full Bench of the Madras High Court in Subramania Ayyar v. Rathnavelu Chetty 42 Ind. Cas. 556 : 41 M. 44 : 22 M.L.T. 94 : 6 L.W. 149 : 33 M.L.J. 224 : (1917) M.W.N. 688 (F.B.), has ruled that where an illegitimate son who, if he had survived his putative father, would have inherited his estate either alone or along with others dies leaving no issue, widow or mother, his putative father is entitled to succeed as his heir. I should like to reserve my opinion on this point which does not arise in the case before us.
57. Their Lordships of the Privy Council have not ruled that there is no relationship between the illegitimate son and his mother. In the case of the father when there is no legal marriage, there is no presumption of paternity. Accordingly there is an amount of uncertainty as to the parentage. But the birth of the child from the womb of her mother can be ascertained with certainty. It would, therefore, seem that even if the illegitimate child does not succeed to the estate of his father, it does not necessarily follow that he should not succeed to the estate of his mother. As a female slave no longer exists and concubinage cannot now be recognised as marriage, their Lordships of the Privy Council have held that the son of a sudra by a kept mistress of the one of the lower castes, in permanent or continuous concubinage, must now come in the category of a son of a sudira born of a female slave, within the provisions of Chap. I, Section 12 of the Mitakshara. Such a person is treated in all respects as if he were born of a female slave; and his mother, a permanent concubine, is treated as such. In other words, a dasi (female slave) is now taken to include avardudha who is, strictly speaking, a mere concubine. Of course, when the concubinage is not permanent or continuous, there would be no analogy between a concubine and a female slave. Even in the case of a female slave it was necessary that she should live in the house with the family. The case of a permanent concubine, though living in a separate house, is not dissimilar.
58. But as the only question before us is whether a mother can succeed to her illegitimate child, I should like to confine myself strictly to this one point. I would answer the question in the affirmative for the following reasons: (1) Chap. XI, Section 3, pl. 1 of the Mitakshara is general in its terms and gives the right of succession to parents, It does not confine inheritance to the mother who has been lawfully married to the father. The regenerate father is now cut off under the Privy Council rulings, but the mother has not been so cut off. The only serious difficulty is that the word pitarau (two parents) used in the section, is also used in the Chapter dealing with partition where a mother also gets a share. In that Chapter the mother must necessarily be a legally wedded wife and not a mere concubine or kept mistress.
(2) There is no express text in the Mitakshara laying down that a mother should not succeed to her illegitimate child. Distinctions were drawn in Chap. I, Sections 11 and 12 between the son born of a sudra wife and the son born of a female slave, so far as the inheritance to the father's estate is concerned; but no such distinction is attempted to be drawn in Chap. XI, Section 3, where the parent's right to succeed is mentioned.
(3) Under the old Mitakshara Law the mother would undoubtedly have succeeded to her son born in the circumstances in which we would now regard him as an illegitimate son. The son referred to in Section 3 would have included issue born out of any of the eight varieties of marriage.
(4) Some forms of marriage, unless recognised by custom, have become obsolete. But the relationship of the legitimate child with his own mother who gave birth to him is not extinct. The law does not recognise any relationship between the regenerate father and his illegitimate son; but the same cannot be said as to the relationship between the mother and her illegitimate son.
(5) Their Lordships Of the Privy Council have not expressly ruled that themother is also disqualified from inheriting the estate of her illegitimate son.
(6) There are some Indian authorities in support of the converse right of the illegitimate child to succeed to his mother's estate, and there is no direct authority negativing the right of the mother to succeed to her illegitimate son.
(7) And lastly, the succession of the mother to her illegitimate son is not only in consonance with the scheme of in heritance under the Mitakshara Law but is also in accordance with the principles of justice, equity and good conscience. The erring mother had after all given birth to the child and bred and brought him up. She was the only person on whom the son, while a minor, was dependent, and she might well in return expect support from him in her old age, and, therefore, also succeed to his estate if she survives him. The English Common Law doctrine of treating an illegitimate son dailies nullius is not applicable to Hindus. On the other hand; the inheritance of a mother to an illegitimate child is not unknown in India. Where such a custom exists a Hindu mother and her illegitimate son would be heirs to each other. Although the point has no bearing on the question, it may not be altogether out of place to mention that under the Sunni Law, although an illegitimate child and his father are not related in law and are therefore, incompetent to inherit from each other, the mother and her illegitimate offspring are competent to do so.
59. I would, therefore, hold that, even if Oudh Bharthi and Musammat Sukhraji, both being goshains, were not sudras, or even if sudras, she was not his permanent concubine, Onkar Bharthi being her illegitimate child by Oudh Bharthi, she is entitled to succeed to the estate of Onkar Bharthi,
60. The order of the Court is that the appeal fails and is dismissed with costs.