JUDGMENT
1. We think that the decree of the District Judge is right.
2. The facts necessary for the purposes of this appeal may be thus stated:
The relationship of the principal parties is as follows:–
_______________|________________
| |
Venkatagiri Pillanan (died 1883)
|
Venkatasamy (who
| sold to 3rd defendant.)
Timaraya –Kept Sanjivammal
|
1st defendant (who sold
to plaintiff).
3. The lands in dispute originally belonged to Pillanan who died in 1883. His brother, Venkatagiri, unlawfully took possession of them in 1884, and on his death possession passed to his son, Timaraya, who died in 1896, and the land then passed into the possession of the 1st defendant who was the illegitimate son of Timaraya by his kept woman, Sanjivammal. The possession by the 1st defendant and his father and grandfather was adverse to Yenkatasamy from 1884 onwards. That possession was held through a tenant, the 2nd defendant, who was the actual occupant of the land. On the 29th September 1900, Venkatasamy sold his interest in the land to the 3rd defendant who induced the and defendant, who was the tenant in actual possession, to attorn to him. The attornment was in October 1900, and payment of rent by the 2nd defendant to 3rd defendant was certainly made in February 1901, and afterwards. The 3rd defendant thus obtained possession of the land in October 1900. In the same month the 1st defendant sold his interest to the plaintiff, and as the defendants Nos. 2 and 3 refused to give him rent or possession, he brought this suit for possession and mesne profits:
4. The question is as to the respective rights of the 1st defendant and Venkatasami. The District Judge found in favour of Venkatasami. The plaintiff, who claims under the 1st defendant, appeals. It is sought to support the claim of the 1st defendant by the fact that he and his predecessors were in adverse possession from 1884 until possession was lost in October 1900 or March 1901 by his tenant collusively attorning to the 3rd defendant who had purchased Venkatasatny’s interest. But it is found that Venkatasamy came of age only in 1898. He might, therefore, have sued to recover possession of the land on the strength of his title at any time up to the end of 1900. In other words the 1st defendant’s title by adverse possession had not been gained before Venkatasamy regained possession by the tenant (the 2nd defendant) attorning to him in October 1900. It is argued that Venkatasamy could not regain legal possession by collusion with the 1st defendant’s tenant, and reliance is placed on the case of Pasupathi v. Narayana (1889) I.L.R. 13 M. 335. No doubt that would be so, if the tenant had been let into possession by the 1st defendant, or his predecessor in interest; but there is no evidence that this was so. The 2nd defendant would, therefore, not have been estopped from denying the 1st defendant’s title. Venkatasamy, being the true owner, was not estopped from recovering possession by inducing the tenant in possession to attorn to him.
5. In these circumstances it must be held that the plaintiff’s title by adverse possession has not been established and he has no right to eject the 2nd and 3rd defendants
6. On another ground also he must be held to have no title. He claims through the 1st defendant, who is the illegitimate son of Timaraya by Saujivammal. This Sanjivammal became a widow while still a child, and it appears that Timaraya lived with her continuously as his concubine. It has been found that remarriage of widows is forbidden among Sudras of the class to which the 1st defendant belongs, and the District Munsif points out that Timaraya and Sanjivammal were, in fact, outcasted by their community in consequence of their living together.
7. The 1st defendant was, therefore, the offspring of a connection forbidden by their customary law, and no authority has been cited to show that such an offspring has any rights of inheritance to the property of his father. No doubt the rule is well established in Madras that the illegitimate son of a Sudia by ” an unmarried Sudra woman” is entitled to a share of the family property, if the concubinage was continuous, and if the connection was not incestuous or adulterous, or in violation of, or forbidden by law–Yettappa Naicker v. Venkataswara Yettia (1868) 12. M.I.A. 203. Dattiparisi Nayudu v. Datti Bangaru Nayudu (1869) 4 M.H.C.R. 204. Venkatachella Chetty v. Parvatham (1875) 8 M.H.C.R. 134. Krishnayyan v. Muthusami.(1883) I.L.R. 7 M. 407. It is argued by the appellant’s vakil that the words ” unmarried Sudra woman” in the text of the Hindu Law, (Dayabhaga, Ch. 9, V. 29), on which the rule is founded, do not mean a woman who has never been married at all to any one, but mean ” a woman who has not been married to the father of the child,” and there is an obiter dictum in the case of Venkatachella Chetty v. Parvatham (1875) 8 M.H.C.R. 134 that is ” at least doubtful” whether the words are not limited in the latter sense. It is also pointed out that in Bombay the condition that the woman should never have been married has, in practice, been disregarded–Rahi and Ors. v. Govind Valad Teja (1875) I.L.R 1 B. 97. But, as Mr. Mayne points out, in all the Bombay cases, the connection with the married woman was not an adulterous one, but was sanctioned by usage having the force of law. No case has been cited in this Presidency where the offspring of such a concubinage, as there was in the present case, has been held entitled to inherit as an illegitimate son, and we are not disposed to extend the rights of illegitimate sons beyond the limits laid down by the authorities.
8. We must hold that the second appeal fails on this ground also.
9. We therefore dismiss it with costs.
