JUDGMENT Rajamannar, J.
1. This suit relates to the succession to the properties of one Thiru-vengada Nayakar who died on the 21st March, 1945. The plaintiff claims as his divided brother on the ground that the deceased did not leave any nearer heir like widow or child. The first defendant claims to be the second wife of the deceased and defendants 2 and 3 claim to be the son and the daughter respectively of the deceased by the first defendant. The defendants put forward an alternative case that even if the first defendant was not the lawfully married wife of the deceased, she was in any event his permanently kept concubine and the second defendant was the son born to the deceased by the first defendant and therefore as an illegitimate son he would be entitled to succeed to his putative father. It is obvious that the plaintiff's suit must fail if either case of the defendants is established.
2. Issues 1 to 4 raise questions which are really necessary for the disposal of the suit. Issues 1 and 2 relate to the plea of a lawful marriage set up by the defendants "while issue 3 relates to the case of exclusive concubinage set up by them.
3. The undisputed facts are as follows. Sometime in 1922 there was a partition between the deceased Thiruvengada Nayakar and his two brothers and the properties now in suit fell to the share of Thiruvengada. The deceased was married to one Saraswathi and she died in December, 1933. The first defendant was herself married to one Kolandavelu who died in March, 1935. It is common ground that the first defendant and her deceased husband Kolandavelu Naicker were tenants in the house belonging to the deceased Thiruvengada Nayakar, namely, 1-A, Vathiar Kanda Pillai Street, Choolai, Madras and the deceased was "himself living in another part of the same house. Though the actual date from "which the tenancy started is not known, it appears from the evidence that they were tenants even prior to the death of Thiruvengada's first wife. It is also admitted by the plaintiff that even subsequent to the death of her husband Kolandavelu Na/akar, the first defendant continued to live in the same house in which Thiruvengada lived, right up to his death.
4. The first defendant's case is that, within two months after the death of her husband Kolandavelu Nayakar, she married Thiruvengada Nayakar and since the date of the marriage lived with him as his wife and bore him four children of whom two, namely, defendants 2 and 3 survive. According to the first defendant, the ceremony of marriage which was gone through was not presumably the usual marriage ceremony, but a ceremony which consisted in tying what is called Nadu veetu thali according to a custom among Nayakars. The plaintiff firstly denies the factum of marriage and further pleads that the alleged ceremony, even if it took place, is no form of legal marriage. In paragraph 11 of the plaint a further contention is put forward, namely, that the first defendant does not belong to a community, in which re-marriage is permitted by custom and therefore she is not the legally married wife of Thiruvengada Nayakar. This contention is obviously untenable because, after the Hindu Widows' Re-marriage Act, it is not necessary to resort to custom to validate the re-marriage of a Hindu widow. It is not pleaded that there is a custom which invalidates a marriage permitted by Statute even assuming such a custom can ever be upheld by a Court. This contention can therefore be disregarded in limine.
5. Two questions therefore arise--a question of fact and a question of law. On the question of fact the evidence is all one way though, it must be admitted, the evidence is very meagre. The first defendant herself has given evidence of the ceremony that was gone through for the marriage. Her second witness, one Ramanuja Naicker who claims to have been a tenant in the house of Thiruvengada Nayakar for several years, says that he was present on the occasion of her marriage. He describes the ceremony thus : In the centre of the court-yard a lamp was lit, a purohit officiated and a thali was tied.
6. Though the evidence of the actual ceremony of marriage is confined to the testimony of these two witnesses there is abundant evidence on record which unmistakably establishes that the deceased Thiruvengada Nayakar and the first defendant were living together as man and wife till the date of Thiruvengada Nayakar's death. On this point, besides the evidence of Ramanuja Naicker there is the evidence of D.W. 3, admittedly a purohit of Thiruvengada Nayakar as well as the plaintiff besides several other Nayakar families. I have no reason whatever to doubt his testimony. He says that he knows of the birth of the third defendant and that he officiated at the punyavachanam ceremony on the nth day after the birth and that on that day the deceased Thiruvengada Nayakar and the first defendant sat together as husband and wife and went through the ceremony. Kuppuswami, D.W. 4, is the son of the first defendant by Kulandavelu Nayakar. After his father's death, he continued to live with his mother in the same house. He deposes to the fact that his mother was living with the deceased Thiruvengada Nayakar as his wife. He also speaks to the birth of the second and the third defendants. D.W. 5, Thangavelu Nayakar has been a tenant of the same house in which Thiruvengada Nayakar and the first defendant were living from 1938. He knows of the birth of the third defendant and he speaks to the fact that Thiruvengada Nayakar and the first defendant were living together as man and wife.
7. There is also evidence that the funeral and obsequial ceremonies of Thiruvengada Nayakar were performed by one Kannappa, the son of a paternal uncle of Thiruvengada Nayakar officiating for the second defendant. The plaintiff would have it that he lit the funeral pyre and performed the 16th day ceremony. Besides giving evidence himself, he has examined one Vinayaka Nayakar for this part of his case; but I do not believe their evidence. P.W. 2, a garrulous old man, was inclined to be more loyal than the King himself and extremely anxious, to say anything that is likely to be of use to the plaintiff. He would even say that the plaintiff carried the fire pot though the plaintiff himself denied having carried it. P.W. 2's evidence with regard to the performance of the 16th day ceremony is also not worthy of acceptance. It is very doubtful if he was ever present at all at the ceremony. On the other hand, I have no reason to doubt the veracity of the purohit D.W. 3 when he says that the 16th day ceremony was performed, as it ought to be performed, at the tank by the second defendant with Kannappa deputising for him as the second defendant was a young boy.
8. I must confess that there is not enough evidence before me to find that the form of marriage described by D. Ws. 1 and 2 is recognised by a custom among the Nayakars to be a valid form of marriage. No doubt I refuse to attach any importance to the evidence of P.W. 2, who asserted that he had never even heard the term " Veettu thali" at any time in all his eighty years; but I doubt if the evidence of Ramanuja Nayakar alone is enough to enable a Court to come to a definite finding as to the existence of a custom. Though neither party asked the purohit any question on this point, I asked him whether he had officiated at or knew anything about this form of marriage. He said that he had not himself officiated at any such marriage but that he had heard of such a form and that it was not sastraic but was customary. Ramanuja Nayakar no doubt asserted that a wife married according to this form of " Nadu veetu thali " was also considered a legally married wife by the community. In this state of the evidence I am forced to rest my conclusion not on a definite finding that it has been established before me that this form of marriage is valid, but rather on the general presumption which ought to be drawn in favour of a valid marriage, when the fact of the celebration of some form of marriage is established and it has not been established before me by evidence on behalf of the plaintiff that that form is invalid.
9. Even assuming that the evidence in this case falls short of establishing that there has been a valid marriage between the deceased Thiruvengada Nayakar and the first defendant, there can be no doubt whatever that the evidence is certainly sufficient to support a finding that the first defendant was the permanently kept concubine of the deceased Thiruvengada Nayakar. That the first defendant remained with the same Thiruvengada Nayakar for several years admittedly till: the date of his death is admitted by the plaintiff. It was also admitted by the plaintiff that defendants 2 and 3 were born to the first defendant in the house in which Thiruvengada Nayakar and the first defendant were living. When the first defendant was in the witness box not a question was asked of her suggesting that other menhad access to her. The witnesses examined on behalf of the defendants are unanimous that the deceased Thiruvengada Nayakar treated the first defendant as his wife and defendants 2 and 3 as his children. On this point there is evidence of the utmost importance and unimpeachable character. Ex. D-I is an extract from the Birth Register kept of the 19th division by the Corporation of Madras. It shows that on the 16th December, 1936, a male child was born at No. 1, Vathiar Kanda Pillai Street. The father is named there as Thiruvengada Nayakar and the mother as Ethirajamma. The informant was one Ramanuja Nayakar living in the same house. He is D.W. 2 and he says that those columns were filled up according to the instructions of the deceased Thiruvengada Nayakar. Ex. D-2 is the triplicate given to the informant when the report of the birth of the third defendant was made by Kuppuswami, D.W. 4. In this also the father is entered as Thiruvengada Nayakar and the mother as Ethirajamma. These two documents taken with the evidence of Ramanuja Nayakar, D.W. 2, the purohit D.W. 3 and Thangavelu Nayakar D.W. 5, establish the fact that the second and third defendants were considered and treated by Thiruvengada Nayakar as his children. I have therefore no hesitation in finding on issue 3 that the first defendant was the exclusively kept concubine of Thiruvengada Nayakar and that defendants 2 and 3 are the illegitimate children of Thiruvengada Nayakar by the first defendant.
10. Mr. Ramakrishna Aiyar, the learned advocate for the plaintiff, has raised an interesting question of law that the second defendant cannot inherit to Thiruvengada Nayakar because he was born of an intercourse between Thiruvengada Nayakar with the first defendant, a woman who had been married though at the time of the birth of the second defendant and at the time of his conception the husband of the first defendant was not alive. In other words, he says, even though a widow can be kept permanently as concubine, the illegitimate son born to her would not fee capable of inheriting to the putative father as a dasi putra. No doubt there: is some authority in his favour. In Annayyan v. Chinnan (1909) 20 M.L.J. 355 : I.L.R. 33 Mad. 366, which was a case similar to the present, Sir Arnold White, C.J. and Benson, J., held that an illegitimate son of a Sudra widow has no right of inheritance, because they found that re-marriage of widows was forbidden among Sudras of the cast to which the parties belonged, and the son, being the offspring of a connection forbidden by customary law, had no right of inheritance to the property. They also referred to the rule that the illegitimate son of a Sudra who can inherit to him, should be the son by " an unmarried Sudra woman " according to the texts of the Hindu Law in Dayabagha, Chapter 9. The learned Judges, however, did not rest the decision on this ground. This decision was followed by another Bench of this Court, Sundara Aiyar and Ayling, JJ., in Padala Krishna Rao v. Padala Kumarajamma (1912) 15 I.C. 340. The facts in that case also were similar to the facts of the present case and it was held that, in order that an illegitimate son may be entitled to succeed his father, he must have been born of a woman who was never married to anyone before she came under the keeping of the person whose son the claimant was.
11. The reasoning of the learned Judges in Annayyan v. Chinnan (1915) 29 M.L.J. 793 : I.L.R.39 Mad. 136 (F.B.), must be considered in my opinion, to have been overruled by the decision of the Full Bench in Soundararajan v. Arunachalam Chetti (1915) 29 M.L.J. 793 : I.L.R.39 Mad. 136 (F.B.). It was there held that there is no condition that.a marriage could have taken place between the putative father and the mother who was the concubine according to the custom of the caste to which the mother belonged. That case no doubt related to the claim of an illegitimate son of a Sudra by a dancing woman who was by profession a prostitute. But, in my opinion, the ratio decidendi of that case must be taken to also govern the case of a widow being kept as a permanent mistress. At page 150, Sir John Wallis, C.J., says:
To satisfy the texts it must be shown that the mother is a dasi, not that she is qualified to become a wife. As regards her being unmarried woman the Dayagbhaga no doubt mentions this, but -.his text has been interpreted as meaning not married to father of the child--Venkatachala Chetti v. Parvatham (1915) I.L.R. 40 Bom. 369, Karuppannan Chetti v. Bulokam Chetti (1899) I.L.R. 23. Mad. 16, Annayyan v. Chinnan (1909) 20 M.L.J. 355 : I.L.R. 33 Mad. 366 and Padala Krishna Rao v. Padala Kumara-jamma (1912) 15 I.C. 340 and this is how the passage was understood by Medatithi.
At page 154, Sadasiva Aiyar, J., clearly says that he is not prepared to follow either Annayyan v. Chinnan (1909) 20 M.L.J. 355 : I.L.R. 33 Mad. 366, or Padala Krishna Rao v. Padala Kumarajamma (1912) 15 I.C. 340. Dealing with this question that the mother must have been unmarried, the learned Judge observed as follows:
Mr. B. Sitarama Rao argued for imposing still another restriction that the mother must have been a virgin when she became the permanent concubine of the plaintiff's father. There is nothing in the Hindu Law texts to support that contention.
The fundamental basis of the decision in Annayyan v. Chinnan, namely, that a legal connection should be possible between the putative father and the mother before the male offspring of such a connection could inherit was completely destroyed by the decision of this Full Bench. Again at page 154, Sadasiva Aiyar, J., observes : " When the legislature itself treats the marriage of all widows (including a Brahmin widow) as lawful it seems to me rather difficult to hold that the permanent connection between a Sudra widow and a Sudra male is equivalent to an incestuous and adulterous connection because in the sub-caste of the lady, remarriage is not approved of by custom and to hold in consequence that the son born of such a connection is not entitled to a share.";
12. In Subramania Aiyar v. Rathnavelu Chetti (1917) 33 M.L.J. 224 :I.L.R. 41 Mad 44 (F.B.), actual decision by the Full Bench was not concerned with the question which falls to be considered here; but in the order of reference made by Sadasiva Aiyar, J., with which Napier, J., concurred, this question had to be incidentally considered. In that case, as in this, the illegitimate son was the offspring of a widow. The following observations of Sadasiva Aiyar, J., at page 47 are apposite. Referring to Annayyan v. Chinnan (1909) 20 M.L.J. 355 : I.L.R. 33 Mad. 366, he observes:
There the learned Tudges, notwithstanding that remarriage of widow is sanctioned by Statute Law, held that if re-marriage is unlawful by custom, concubinage with such a widow is prohibited connection. They also held that ' unmarried ' does not mean ' not married to the putative father ' but not married to anybody before. I respectfully dissent from that decision.... The ex-expression in the Texts translated loosely as ' unmarried woman ' merely means ' a woman not married to the father of the person whose rights of inheritance were under consideration.
I may mention that the High Court of Bombay has consistently taken the view that the illegitimate son of a widow kept as a permanent mistress would be entitled to inherit to his putative father--Rahi V. Govind, Valad Teja7 and Gangabai Peerappa v. Bandu (1915) I.L.R. 40 Bom. 369.
13. It is important to remember that this condition of the mother being an unmarried Sudra is not to be found in any of the southern commentaries of Yagnavalkya, is not to be found in Mitakshara, in fact it is to be found only in Dayabhaga and in some of the commentaries on the Dayabhaga. The original Sanskrit word ' apari-neetha', to my mind, cannot refer to the status of the woman independent of the person with reference to whom she is being described as a dasi. ' Parinaya,' the marriage relation, is obviously intended to refer to the person the rights of whose offspring are the subject-matter of the dicussion; otherwise, one would expect a positive term like " kanya " if it was intended to refer to a maiden in her virgin state.
14. On a consideration of the authorities referred to I am clearly of opinion that the following statement of the law in Mayne's Hindu Law, 10th edition, at page 648 represents the correct view:
The requirement that the 'dasi' should be unmarried woman does not, it has been held, mean that she should not have been married to another before. Accordingly an illegitimate son born to a widow or to any prostitute kept as a continuous concubine is entitled to inherit.
My finding on this issue is that, either defendants 1 and 2 or the second defendant would exclude the plaintiff; that is to say if the marriage is valid marriage as I have held, the first defendant and the second defendant would be entitled to succeed to the properties of Thiruvengada Nayakar; if however the marriage were to be held invalid, then, according to my finding on issue 3, the second defendant would be an illegitimate son of Thiruvengada Nayakar, entitled to succeed to him. The plaintiff "would in any event fail.
15. No finding is necessary on issue 5 as the plaintiff has failed to establish his title.
16. In the result the suit is dismissed with costs.