Authored By : Francis Maclean, Banerjee

Francis Maclean, C.J. and Banerjee, J.

1. This appeal arises out of an application for letters ofadministration to the estate of Sahachari Bewa by the appellant, who claims tobe her sister and only heir. The application was opposed by the Secretary ofState for India, who alleged that the deceased Sahachari Bewa was a woman ofthe town, that the petitioner was not her heir, and that the estate of thedeceased had escheated to the Crown.

2. The Court below has disallowed the application, holdingthat the sister was no heir to the property of a woman under the Bengal Schoolof Hindu law, and that the evidence was not sufficient to prove that thepetitioner was the sister of Sahachari.

3. The petitioner has preferred this appeal against thatdecision, and it is contended on her behalf, first, that the learned Judgebelow is wrong in holding that the sister is no heir to a womans property; andsecondly, that the learned Judge below is wrong in holding that the evidence isinsufficient to prove the relationship set up.

4. It is conceded, as it must be, that if the Hindu lawgoverns this case, it must be the Hindu law of the Bengal School, and thataccording to the law of that School the sister is no heir. But the learnedVakil for the appellant seeks to make out the right of his client upon two alternativegrounds.

5. In the first place, he argues that as the deceasedSahachari was a woman of the town, and the petitioner also belongs to the sameclass, the ordinary Hindu law does not apply to this case, and that it isgoverned by those principles of natural justice not inconsistent with the Hindulaw, according to which the sister, as a near consanguineal relation, should beheld to be in the line of heirs; and in support of this argument he relies uponthe definition of "heritage" in the Dayabhaga, Ch. I, para. 5,according to which the right of, inheritance depends upon relationship with theformer owner, and also upon the cases of Myna Boyee v. Ootaram (1861) 8 Moo.I.A. 400; s.c. in High Court after remand (1864) 2 Mad. H. C., 196; Sivasanguv. Minal (1889) I.L.R. 12 Mad. 277: Narasanna v. Gangu (1890) I.L.R. 13 Mad.133; and Tara Naikin v. Nana Lakshman (1890) I.L.R. 14 Bom. 90. And in thesecond place he contends that Sahachari Bewa should be considered as a personwho was not a Hindu within the meaning of Section 331 of the Indian SuccessionAct, that succession to her property should be held to be governed by that Act,and that her sister should therefore be held to be her heir.

6. The first branch of this argument is ingenious, but notsound. The passage of the Dayabhaga (Ch. I, 5) relied upon only shows at themost that every right to inherit is created by relationship with the formerowner; but it does not establish the converse proposition that everyrelationship with the former owner creates the right to inherit. Moreover, itwould be a strange anomaly, that though the sister is no heir to a femaleproprietor under the Bengal School of Hindu law, if they remain undegraded, yetif they both lapse into prostitution, the one becomes an heir of the other,quite apart from custom. The rule that of the ordinary heirs to a woman, thosewho remain undegraded are not competent to inherit her property, if she becomesdegraded by leading the life of a prostitute, which has been laid down inseveral cases of which I may mention one, namely, In the goods of Kaminey MoneyBewah (1894) I.L.R. 21 Cal. 697, is based upon the principle that by herdegradation the tie between her and her undegraded relations becomes severed;and this principle is unaffected by Act XXI of 1850, which only removes thedisqualification by degradation of the person claiming the right to inherit.But that rule cannot help the petitioner in this case; for here there is noquestion of competition between a degraded and an undegraded relation; thequestion being whether the petitioner is an heir of the deceased at all. Nor isthere any question here as to whether the petitioner is by custom an heir tothe deceased, no custom being pleaded or proved. Of the cases cited, Myna Moyeev. Ootaram (1861) 8 M. I. A. 400; s.c in High Court after remand (1864) 2 Mad.H.C. 196, has only a remote bearing upon the present case. In that case certainpersons being the illegitimate sons of a Christian father by Hindu mothers,were brought up as Hindus, and lived as members of a joint Hindu family, andone of the questions raised was whether any one of them could claim as heir theproperty of his uterine brother. The Courts in this country having answered thequestion as a point of Hindu law in the affirmative, their decision wasreversed by the Privy Council, and the case was sent back for further inquiry,especially with reference to local custom or usage. After the remand, theMadras High Court re-affirmed the original answer, the learned Judges "feelingsatisfied" as they said "that all the analogies of Hindu law and theplain rules of equity and justice are in favour of the evidence of heritableblood between the illegitimate sons." Whether this view is correct or notit is unnecessary for us now to consider. It will be sufficient to say thataccepting it to be correct, it does not help the appellant before us, becausein the case cited the party claiming to be the heir, the uterine brother of thedeceased, was certainly his heir under the ordinary Hindu law, but for thestain of illegitimacy on the relationship between the parties, and all that theMadras High Court decided was that that stain did not affect the heritableright of the plaintiff; whereas in the present case the appellant is no heir tothe deceased under the ordinary Hindu law of the province, and what she has tomake out is that the stain of degradation creates a new heritable right in her.

7. As for the other three cases relied upon, Sivasangu v.Minal (1889) I.L.R. 12 Mad. 277 Narasanna v. Gangu (1890) I.L.R. 13 Mad. 133,and Tara Naikin v. Nana Lakshman (1890) I.L.R. 14 Bom. 90 they and othersimilar cases, of which there are several in our reports, are based more orless upon local custom and usage. It was ingeniously argued upon the authorityof a text of the Skanda Purana cited in the Mitakshara in its Commentary onYajnavalkya, Ch. II, v. 290 see Sanskrit, Mitakshara Bombay Edition p. 265Grish Chunder Tarkalankars Translation p. 231 which treats prostitutes asforming a fifth class or caste, that prostitutes belong to one caste orcommunity all over India, and that if a degraded sister of a prostitute is herheir in Madras as has been held in Sivasangu v. Minal (1889) I.L.R. 12 Mad. 277the same rule should be held to be true for Bengal. One simple answer to thisargument is that in the case just mentioned, the deceased and her degradedsister lived jointly, and this circumstance is relied upon in the judgment,whereas in the case before us the appellant and her deceased sister lived inwidely distant places, and did not since their degradation meet each other morethan twice or thrice in the course of nearly a quarter of a century. And weneed hardly add that a custom obtaining amongst any caste in Madras or Bombaycannot, in the absence of evidence, be assumed to govern the same class inBengal.

8. The second branch of the argument advanced by the learnedVakil for the appellant is clearly untenable. The deceased Sahachari wasclearly a Hindu by birth, and it is neither shown nor even suggested that sheever abjured Hinduism. By lapsing into prostitution she became an outcaste, butdid not cease to be a Hindu. The passage of the Mitakshara referred to abovefully supports this view. The Indian Succession Act cannot therefore apply to thiscase.

9. In the view we take that assuming the appellant to be thesister of the deceased, still she is no heir to her, it becomes unnecessary toconsider the question whether the relationship set up has been proved.

10. The result then in our opinion is that the appeal fails,and must be dismissed with costs.

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Sarna Moyee Bewa vs.Secretary of State for India in Council(06.09.1897 - CALHC)