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Madras High Court
Kojiyadu And Ors. vs Lakshmi on 14 March, 1882
Equivalent citations: (1882) ILR 5 Mad 149
Author: Innes
Bench: Innes, Kindersley


JUDGMENT

Innes, J.

1. The question in this second appeal is–Whether the District Judge is right in holding that unchastity in a mother, prior to the death of her son, is not a bar to her inheritance ?

2. The widow of one Pala Madanna, who inherited her husband’s estate, married again and transferred her rights in the property to the next heir, the second defendant, the mother of Pala Madanna.

3. The District Munsif held that second defendant’s conduct was a bar to her succeeding. The District Judge held that it was no bar. He was of opinion that, under the law of the Mitakshara, by which this case would be governed, there is no rule which can preclude a mother from inheriting on account of previous unchastity. He also thought that, if any such rule existed, it would not apply to cases in which, although unchastity at a previous period were shown, there had been an after period, prior to the succession opening, during which no misconduct had been proved to have taken place.

4. I am unable to concur with the District Judge in his able judgment upon this latter ground. There is no authority to support this view. The interval of chastity prior to the succession opening might be longer or shorter. Suppose the interval to be only a month, or two months, or even six months. It would be strange to find that the law disqualified a woman from inheritance for unchastity if she were unchaste at the time of the succession opening, but that the accident of a few months or days intervening prior to the succession opening, during which her conduct was unimpeachable, would be sufficient to enable her to make good her claim to the inheritance, notwithstanding previous unchastity.

5. On the other grounds, however, on which the District Judge has rested his judgment, I entirely agree. The case Advyapa v. Rudrava I.L.R. 4 Bom. 104 in which the law on the subject of unchastity as affecting the rights of a daughter is very carefully considered, is, I think, conclusive to show that a daughter is not excluded on the ground of unchastity.

6. The case Mussamat Deokee v. Sookhdev 2 N.W.P. 361 merely decides that unchastity in a mother subsequent to her inheriting does not divest the inheritance.

7. The grounds for the decision in Advyapa v. Rudrava equally apply to a mother as to a daughter.

8. The exact point was not before the Privy Council in Moniram Kolita v. Keri Kolitani I.L.R. 5 Cal. 776 so that the dictum at page 787, assuming as to the mother that unchastity would exclude, is not binding upon us.

9. On the ground that the texts which pronounce that females are debarred from inheriting by unchastity are confined in their application to the widow, and do not impose a condition on the succession of the mother, I would dismiss the second appeal with costs.

Kindersley, J.

10. In the present case the District Judge has found that there is no evidence that the mother was unchaste in 1877, when she took the estate as the heiress of her son; and, therefore, it appears to me that the question, whether an unchaste mother could inherit from her son, does not arise. Cases might occur in which it would be difficult to determine whether, at the time of inheritance, the mother was chaste or not. But in this case all that appears is that she was guilty of unchastity nine years before.

11. Upon the question of law, if it arises, I agree with Mr. Justice INNES in the opinion that there is no rule of law in force in this Presidency by which a mother would be debarred from inheriting her son’s property on the ground of her unchastity at the time at which she would otherwise inherit. The reasons which required chastity in the widow as the condition of her inheriting the property of her husband do not apply with equal force to the case of that widow inheriting from her son.

12. I agree that this second appeal ought to be dismissed with costs.


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