TMI Blog1965 (2) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... patla, now in Andhra Pradesh and governed by the Mitakshara school of Hindu law. In the plaint, as originally filed, the respondents claimed that they were exclusively entitled to the estate left by Lingayya. The Subordinate Judge and the High Court found that as the first respondent was and continued to be a married woman while she lived with Lingayya and bore him children, she was not the lawfully wedded wife of Lingayya and the children born of the union were not his legitimate sons, nor were they Dasiputras and as such entitled to his properties. The suit was originally dismissed by the Subordinate Judge, but on appeal, the High Court gave the respondents leave to amend the plaint by making suitable averments for the award of maintenance, and remanded the suit for trial on the question of maintenance. At the subsequent trial on the amended plaint, the Subordinate Judge decreed the respondents claim for maintenance and consequential reliefs and awarded to them maintenance during their lifetime out of the estate of Lingayya. The Subordinate Judge passed his decree on September 20, 1954. During the pendency of the appeal preferred by the appellants before the High Court, the Hind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a son, see Gur Narain Das and another v. Gur Tahal Das and others([1952] S.C.R. 869, 875.). But the illegitimate son of a Sudra by his concubine was not entitled to a share of the inheritance if he were the offspring of an incestuous connection, see Datti Parisi Nayudu v. Datti Bangaru Nayudu([1869] 4 Madras High Court Reports. 204,), or if at the time of his conception, the connection was adulterous, see Rahi and others v. Govind Valad Teja([1875] I.L.R.1 Bom.97), Narayan Bharthi v. Laving Bharthi and others([1878] I.L.R.2Bom.140.), Tukaram v. Dinnkar([1931] 33 B.L.R. 280.). Such an illegimate son could not claim the status of a member of his father s family and could not get a share of the inheritance as a Dasiputra under the express text of the Mitakshara. For the reason, the previous judgment of the High Court rightly held that the second, third and fourth respondents were not Dasiputras of Lingayya, and could not claim the inheritance. But the point whether they are entitled to maintenance out of the estate of Lingayya is not concluded by the previous judgment. It is well recognised that independently of the express texts of the Mitakshara, Ch. I s. 12, V. 3, the illegitimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur as his permanently kept mistress could claim the status of an Avaruddha Stree by remaining faithful to her paramour, though the connection was adulterous, and was entitled to maintenance from the estate of the paramour so long as she preserved her sexual fidelity to him. This Full Bench decision overruled the decision in Anandilal Bhagchand v. Chandrabai(I.L.R 48 Bom. 203.)and followed the earlier decisions in Khemkore v. Umiashankar([1873] 10 Biombay High Court Reports. 381.), and Bingareddi v. Lakshmawa([1901] I.L..R. 26 Bom. 163.). The decision in Akku Pralhad v. Ganesh Pralhad(I.L.R. [1945] Bom. 216.) has been the subject of strong criticism in Mayne s Hindu law and Usage, 11th Edn., Art. 683, p. 816 edited by Sri N. Chandrasekhara Aiyar and in a learned article in (1946) 1 M.L.J., Notes of Indian cases, p. 1, but the Full Bench of the Andhra Pradesh High Court in the instant case found themselves in complete agreement with the Bombay decision. We are of the opinion that the Bombay decision lays down the correct law. Avaruddha Stree, as understood by Vijnaneswara, includes a Swairini or adulteress kept in concubinage. While dealing with the assets of a deceased Hindu no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken away by the Hindu Adoptions and Maintenance Act, 19 5 6, which came into force during the pendency of the appeal to the High Court. The Act is intended to amend and codify the law relating to adoptions and maintenance among Hindus. Section 4 of the Act is as follows: 4. Save as otherwise expressly provided in this Act,-(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. Section 21 defines dependants as meaning certain relatives of the deceased, and under sub-cl (viii), includes his or her minor illegitimate son, so long as he remains a minor . A concubine is not one of the persons within the definition of dependants given in s. 21, and an illegitimate son is not a dependant when he ceases to be a minor. Section 22 reads thus: 22. (1) Subject to the provisions of sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mencement of the Act. Now, before the Act came into force, rights of maintenance out of the estate of a Hindu dying before the commencement of the Act were acquired, and the corresponding liability to pay the maintenance was incurred under the Hindu law in force at the time of his death. It is a well-recognised rule that a statute should be interpreted, if possible, so as to respect vested rights. See Craies on Statute Law, 6th Edn. (1963), p. 397. We think that ss. 21 and 22 read with s. 4 do not destroy or affect any right of maintenance out of the estate of a deceased Hindu vested on his death before the commencement of the Act under the Hindu law in force at the time of his death. On the death of Lingayya, the first respondent as his concubine and the second, third and fourth respondents as her illegitimate sons had a vested right of maintenance during their lives out of the estate of Lingayya. This right and the corresponding liability of the appellants to pay maintenance are not affected by ss. 21 and 22 of the Act. The continuing claim of the respondents during their lifetime springs (out of the original right vested in them on the death of Lingayya and is not roun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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