9.

With all due respect it is difficult to see why the illegitimate son of a Hindu is not a Hindu
when follows the Hindu customs and manners. It is the Hindu father who is bound to support
his illegitimate son and the mother's religion las nothing to do with his liability to maintain
him. It is unnecessary to question the soundness of this decision in this case. The principle of
the decision is the mother's religion determines the rights pi her children. If the mother is a
Hindu, the children are Hindus, and the Hindu Law therefore is applicable to them. In Mayna
Bai v. Utlaram (1861) 8 M IA 400 the facts briefly are: One Hughes kept two married women
as his concubines. One of them was a Gowda Brahmin. Two sons were born to the Brahmin
woman and he bequeathed his property to the sons. One of the sons died and the other son
claimed to succeed him. The Privy Council held that the illegitimate children of a Brahmin
married woman born to a European father were to be considered as Hindus and their rights
governed by that taw. On the remand the Madras High Court held in Mayna Bai v. Uttaram
(1864) 2 M HCR 196 that the sons of an English man by a Brahmin woman living apart from
her husband were Hindus and their rights were to be determined by the rights of the class of
Hindus to which they belonged ; and they also held that they were to be regarded as Sudras or
a class still lower, and in the absence of preferable heirs the two sons inherit the property of
the mother and of one another. It was not possible to plead any custom in support of the
claim. The learned Judges observed at page 203:

23. I do not think that the placita from various ancient texts really assist this case because
they are not in my opinion dealing with the rights of succession or inheritance in favour
of illegitimate children at all, except in the case of the illegitimate son of a Sudra ; that is, in
these texts 'son' means a legitimate son and 'daughter ' means a legitimate daughter. This
applies even to the passage from Nanda Panditha quoted at P. 207 of Jolly's Hindu Law (1885
Edition). Illegitimate children have no place in Hindu Law when they are legitimate heirs
except in the special case already referred to [see Meenakshi v. Muniandi Panikkan (1914)
ILR 38 M 1144 : 27 MLJ 353. I also find very few of the cases cited before us of any real
help since this is not a contest between an illegitimate offspring and a legitimate, or a case of
a claim by an illegitimate offspring to succeed to his putative father's collaterals. The
question is purely whether two illegitimate sons of the same mother have between them
heritable blood. The rule laid down in Mayna Bat v. Uttaram (1864) 2 M HCR 196 that
the children of a prostitute, when the contest is purely between themselves, succeed to the
property of their mother and to one another, is, I think, the rule to be followed in this case. As
I read that case, the principle did not in the slightest degree depend either on the fact that the
father was known or on the fact that the father of both illegitimate sons was the same person.
It rested not on the common paternity, but on the common maternity of illegitimate sons. [Cf.
also the ratio decidendi of Lingappa Goundan v. Esudasan (1903) ILR 27 M 13] that
principle in this narrow form has never, so far as I can ascertain, been challenged in
succeeding cases, and it is also in my opinion reasonable and equitable and in consonance
with the general spirit of it not prescribed by the letter of the law of the Mitakshara, wherein
heritability follows propinquity of blood and sapinda relationship is determined by the
possession of particles of the same body, whether father's or mother's (see Mitakshara quoted
by Setlur in his Hindu Texts, 1911 Edition, Appendix A, page 543) and the view of Sadasiva
Aiyar, J. in his Letter of Reference in Subramania Aiyar v. Ratnavelu Chetty (1917) ILR 41
M 44 at 50 : 33 MLJ 224 (FB). I do not think that there is any authority in Madras for the
proposition that sapinda relationship cannot exist without a father.

24. The only reported cases which I can find of contest between illegitimate children inter se
are Mayna Bai v. Uttaram (1864) 2 M HCR 196, I already dealt with and Arunagiri Mudali v.
Ranganayaki Ammal (1897) ILR 21 M 40, in which latter case neither side appears to have
raised any general contention that the Hindu Law principle which gives preference to
daughters over sons as heirs of their mother could not be applied because Hindu Law
generally could not be applied to the case.

25. I think the net result of the authorities and the case-law is this, that Hindu Law Texts have
no application to illegitimate children except in the case of the illegitimate son of a known
Sudra father, that so far as the H. Law canon goes illegitimate children have no right of
succession to either -parent, but that the general principles of Hindu Law will be applied to
such a case unless such application would violate equity and good conscience and that,
applying these, the Courts will hold that illegitimate children inter se, when there is no
contest between them and legitimate children, inherit to their mother and to One another.

26. The next step is more difficult if the Court holds that outside Hindu Law there is heritable
blood between any two illegitimate children, will that heritability carry with it all the
adjuncts of heritability under Hindu Law, so that the legitimate male descendants of one
branch can claim as reversioners to oust legitimate widows and legitimate descendants of the
other branch ? That is the point now before us. In essence the case Arunagiri Mudali v.
Ranganayaki Ammal (1897) ILR 21 M 40 has approved of that principle, although the
general question does not appear to have been then argued at all. But it was there taken for
granted that Hindu Law principles would be extended to the illegitimate children of a Hindu
woman. In Mayna Bat v. Uttaram (1864) 2 M HCR 196, as I read it, it was clearly laid down
that the illegitimate children of a Hindu mother are to be considered to be Hindus to whom
Hindu Law, so far as it can be analogically applied, will be applied and it is not open, unless
and until special custom to the contrary is proved, for persons who are in the eye of the law
Hindus to plead that the ordinary adjunct of the principle of Hindu Law, for example, that of
the restricted nature of the estate taken by a widow from the last male owner, do not apply, or
that they are entitled to set up new rights of succession and inheritance not known to Hindu
Law. I cannot see that such an analogical application of Hindu Law to persons living as
Hindus and following Hindu customs and usages can in any way offend the general principles
of equity and good conscience. I hold therefore that the legal principles to be applied are
those set out above.

AboutDisclaimerPrivacy PolicyT