Chandavarkar, J.
1. The appellant was plaintiff in the action out of which this second appeal has arisen. She sued to recover possession of the property of her father, Hari Shinde, deceased, alleging in her plaint that he died, leaving three daughters, including herself; and that she was unmarried and the other two married. She claimed the property as heir to the exclusion of her sisters under the rule of Hindu law that an unmarried inherits to her father before his married daughter.
2. The appellant's sisters as defendants resisted the claim upon several grounds, one of which, material for the purposes of this second appeal, was that she was a murali prostitute and that, therefore, she was not an unmarried daughter of her father to entitle her to the whole of his property.
3. The Subordinate Judge, who tried the suit, found that the appellant was a murali dedicated to The service of the god Khandoba and lived by prostitution. But he held that, as she had never married, she was an unmarried daughter of her father. Accordingly, he awarded the appellant's claim.
4. Upon appeal preferred by the second defendant (one of the appellant's married sisters), the District Judge modified the Subordinate Judge's decree by awarding to her only a third share in the property.
5. The ground of the District Judge's judgment for disallowing her claim to the whole of the property is that she, being a prostitute, 'having four children, begotten by promiscuous intercourse, ' could not be regarded as an unmarried woman, but that she was entitled to share the property equally with her married sisters.
6. The practical result of that judgment is that the appellant, who is found to be a prostitute, is given the status, which a married daughter occupies for the purposes of inheritance under the Hindu law. No reason is given or text cited by the District Judge in support of that conclusion.
7. The only question of law raised in this second appeal is whether the appellant, who has never married but who has led the life of a prostitute since her dedication as a Murali to the service of the god Khandoba, is an unmarried woman within the meaning of that term in the rule of Hindu law, which regulates the succession of daughters to their father's property.
8. It has been held by this Court in Advyapa v. Rudrawa ILR (1879) 4 Bom. 104 that incontinence is no bar to a daughter's right of inheritance to her father and does not bring her within the class of 'disqualified heirs ' in Hindu law.
9. But the law that a daughter, who has become a prostitute, does not forfeit her right as heir to her father by reason of her unchastity, does not affect the question whether a woman, who in her maiden condition becomes a prostitute, is an unmarried daughter of the kind or description contemplated in the rule of Hindu Law, according to which where a man dies leaving several daughters, some of whom are unmarried and the rest married, the former succeed to his property to the exclusion of the latter. When it is said that a person is a disqualified heir, what is meant is that the person is absolutely debarred from all rights of inheritance. It is a case then of exclusion from heirship in any event and under all conditions. But where a daughter claims priority of the right to inherit to her father as an unmarried as against his married daughter, the claim is under other texts of Hindu Law and the question is one of competition and preference between heirs otherwise qualified.
10. The rule that an unmarried daughter succeeds to her father's property before her married sister is stated both in the Mitakshara and the Vyavahara Mayukha on the authority of three Smritis or texts-one is of Katyayana, the second of Brihaspati and the third of Gautama. The Sanskrit word for 'unmarried' used by the first two is anudha; that used by Gautama is apratta. The same rule is given by Para-sara in his Institutes and Devala. The former uses the word 'kumari' and the latter the word kanya for 'unmarried' and both terms stand for 'virgin' or 'maiden.' Mitra Misra, the author of the Viramitrodaya, quotes the rule as given by Para-sara and by Devala and in his comments on it uses the word kanya, to signify 'an unmarried daughter.' (See Mr. Gholap Chandra Sarcar Shastri's Edition of the Viramitrodaya, page 73, Section 2, placitum 2). In a subsequent placitum [No. 4] Mitra Misra uses, like the Mitakshara and the Vyavahara Mayukha, the words 'anudha' and 'apratta. '
11. When, therefore, some of the Smriti writers and some of their commentators, such as Vijnaneshwara in the Mitakshara and Nilakantha in the Vyavahara Mayukha, state that an anudha or apratta (unmarried) daughter succeeds to her father in preference to his married (udha) daughter, they mean by the former expression a daughter who is otherwise known and re-ferred to in the Hindu law books as a kanya (maiden).
12. It is true that the word kanya is used in certain texts of the Hindu Shastras as being applicable only to a girl of 10 years of age and no other. But, as pointed out by Madhavacharya (1) in his commentary on the Institutes of Parasara, that is not the popular (lokaprasiddhu) but only a technical [paribhashika] sense of the term, employed specially for the purpose of recommending a girl's marriage at that age so as to enable the person giving her away to attain Heaven. And both Vijnaneshwara in the Mitakshara and Nilakantha in the Vyavahara Mayukha use the word kanya in its popular sense to signify an anudha, (unmarried) daughter, without restriction as to age (2).
13. As only one of several illustrations that could be given from both the Mitakshara and the Vyavahara Mayukha of that use of the word kanya, reference may be made to that portion of each of the works where it is pointed out that the sons of a deceased
14. Hindu are bound to give away his unmarried daughter in marriage before effecting inter 88 a partition of his property and to allot to such daughter a fourth of the share of each son. There the unmarried daughter is mentioned as a kanya. (The Vyavahara Mayukha, Mandlik's Edition, page 38. The Mitak-shara edited by Bapu Shastri Moghe, page 191). Such a daughter has, under the Hindu law, a legal status of her own, with special rights attached to it. And that status is called kanyavastha (condition of maidenhood) to distinguish it from the status of marriage, which is called bharyatwa, or kulastritwa and from the status of a prostitute which is designated veshyatwa or sadharan stritva.
15. The rights attaching to the condition of maidenhood are those of protection and maintenance by the father. 'Her father,' says a text of Yajnyavalkya, 'shall protect a kanya' (1). The Mitakshara's gloss on that is that 'before marriage the father shall protect his kanya and prevent her from going wrong' (2).
16. And it is because of her dependence on her father, while she is in her maiden condition, that on his death his sons, if any, are held bound to give her away in marriage and allot a fourth of the share of each son out of the paternal estate (3). According to Cankha, 'when partition of heritage takes place, the unmarried daughter takes the virgin trinkets, nuptial portion and the Stridhan' (4). And that is impliedly because of her virginhood.
17. Further, the reason of the rule that where a Hindu dies leaving as his heirs several daughters, some of whom are unmarried and the rest married, the former succeed to his property before the latter, is, according to some Smriti writers and some of the commentators, that the unmarried daughter, having been dependent on the father, has the first right to his property by way of maintenance. According to others, the right is given to her by way of provision for her marriage expenses (5). 'Whichever of these two views we adopt, the result is the same. An unmarried daughter succeeds to her father's property before her married sisters, because of her eligibility for marriage and her dependence on the father and his estate till she enters into the state of matrimony.
18. These two are principal conditions of what the Hindu law-givers designate kanyavastka (maidenhood). And, according to them, the status of a kanya stands conspicuously distinguished from the status of a prostitute who is designated a sadharan stri (literally, a common woman).
19. If, according to Hindu law-givers, one essential test of kanyavastha (maidenhood) is eligibility for marriage, which gives a maiden the right to her father's estate in preference to a married daughter, that test obviously does not exist in the case of a sadharan stri (prostitute), because, as Vijnaneshwara points out in the Mitakshara, in her case 'there is an absence of any form of marriage with a particular man' (1). That is, a kanya (maiden) is one who is fit, according to the skastras, to be given in marriage in conformity with the prescribed rites to one man, whereas a sadharan stri (prostitute) is a woman, who has cast herself away from all parental or other control and guardianship and the injunctions of the shastras, and, being a woman accessible to all men (sarva purusha sadharanataya), she has become ineligible for marriage. (See the Mitakshara, Vyavaharadhyaya or Section on Judicature: Chapter on Stri Samgrahanam or Seduction of women). The reason of the rule, therefore, which gives an unmarried daughter the right of heirship to her father before her married sister, ceases to apply to such a woman. The result is that she is no longer a kanya (unmarried daughter) (2).
20. It is because of that result that the Hindu Law-givers have in several ways sharply distinguished between the status of a kanya and that of a sadharan stri. For one thing, according to them, the latter has no caste, the former has. A sadhardn stri is treated as a patita [outcaste]. But apart . om that, in the same chapter as that last cited from the Mitakshara, Vijnaneshwara first quote a four texts of Yajnavalkya which provide punishment for seduction of married women, who are called parastriyas (wives). Next follow three texts of Yajnya-valkya, which relate to punishment for the seduction or defilement of maidens (kanyas). And then is given a Smriti providing punishment in the case of a man cohabiting with a prostitute (sadharan stri) who is in the keeping of another man. Here is another distinction then in point of law between a kanya (uumarricd woman) and a sadharan stri (prostitute). In dealing with this last, Vijnaneshwara states an objection as proceeding from a disputant who questions the existence of any such class of women as sadharan stris or prostitutes. The disputant's argument as stated by Vijnaneshwara need not be given here in full, as we are concerned with only that part of it which relates to the question of a kanya (maiden) becoming a sadhardn stri (prostitute) and yet retaining or losing the legal status of kanya or unmarried woman.
21. The disputant argues that a life of prostitution is not possible or cannot exist in the case of a kanya (unmarried woman), because a kanya is one, who, according to the Shastras, has to be given away in marriage by her father or the like, or who, if she has no father or the like to give her away, is at liberty to give herself away in marriage by the form of ceremony known as Swayamvdra (self chosen marriage). Therefore, maintains the disputant, 'the condition of a prostitute (sadharanatva) does not exist in the case of kanyas (maidens)' (1) which means that the words kanya and sadharana stri are mutually inconvertible terms and that if a woman is a maiden, she is not a prostitute and vice versa.
22. To that Vijnaneshwara's reply, translated into English, is as follows:-
True this is so; but here from the absence of a worldly prohibition in the shape of fear from the parents and other guardians, or from the punishment by the King and the like, the statement of (the woman being eligible for intercourse (to all men) is proper.
23. That is, Vijnaneshwara admits the force of the disputant's argument so far that, having regard to the Shastra's, a woman can not be in her maiden condition (kanyavastha) and at the same time be a sadharan stri or prostitute. But, he replies, it is not correct to argue from that, that a maiden cannot lapse from her maiden condition into a life of prostitution. Because, although it is true that the Shastras enjoin marriage in the case of a kanya, yet there is nothing by way of worldly punishment to restrain her, if she disregards her parents or the like, has her own way and takes to a life of vice. Her parents or other guardians cannot punish her; nor can the King, She can be punished only in the next world. Under these circumstances, it is a matter of observation in life that some maidens, disobeying the injunctions of the Shastras, turn out prostitutes, Hence, according to Vijnaneshvara, the necessity of making such a provision of law as Yajnayavalkya has made in the Smriti relating to sadharan stris.
24. This discussion in the Mitakshara is of value as showing that a prostitute is known to Hindu law as a sadharan stri (public woman), as distinguished from a kanya (maiden) and from a kulastri or bharya (married woman).
25. This is made more explicit still by Vijnaneshwara in another part of the Mitakshara.
26. In the 5th Chapter of the section relating to 'Purification' (Prayaschitta) in the Mitakshara, (1) Vijnaneshwara deals with the question of penance in the case of a man who commits the sin called guru talpatva, that is, the sin committed by a pupil by defiling the bed of his religious preceptor. There he quotes with approval a Smriti of Vyaghra, which, rendered into English, is as follows:-
In the case of sadharana stris (prostitutes), there is no (such thing as) adultery, which is (a term) applicable to (a married woman) of (recognized) caste ; (or) the defilement of a kanya (maiden); (or) the defilement of one's preceptor's bed.
27. The meaning is this :-
The term 'adultery' does not apply to sexual intercourse with a prostitute, because it is used only in the case of illicit connection with a married woman, being a marital offence committed in violation of the Shastras and caste rules. Hence a prostitute has not the status, in law, of a married woman. Nor does a man having sexual intercourse with a prostitute commit the sin of kanyadushana, i.e., of deflowering a kanya. And why Because a prostitute is not a kanya or maiden, as that term is understood in the Hindu Shastras and law.
28. We have in this Smriti of Vyaghra, cited by Vijnaneswara, a very clear enunciation of the Hindu law that a prostitute is not within either the legal or Shastraic acceptation of the terms unmarried woman and married woman.
29. This Smriti is also quoted by Madhavacharya in his Commentary on the Institutes of Parasara (1) and by Nilakantha, the author of the Vyavahara Mayukha, in his Prayaschitta Mayukha. Both cite the Smriti for the same purpose for which Vijnaneshwara has quoted it in the Mitakshara.
30. The conclusion at which I have arrived upon an examination of the texts and discussion in the Hindu Law books is that a woman, who having never married, becomes a prostitute, is not an unmarried daughter of her father entitled as heir to the whole of his property to the exclusion of his married daughters. I agree with the Madras High Court that ' a prostitute is certainly not a maiden.' Sivsangu v. Minal (1889) I.L.R. 12 Mad. 277, P. 280. Though the question there arose under another rule of law, viz., the rule regulating the succession to the stridhan of a kanya (maiden) the Court had to decide whether the term maiden included a prostitute.
31. It was also held in this Madras case that a woman, who having never married, leads a life of prostitution, is not a married woman. This question does not arise before us in the present case, there being no appeal from or cross-objection to that portion of the District Judge's decree whereby he has allowed the appellant to share her father's property equally with her married sisters, thus practically treating an unmarried woman who is a prostitute as a married daughter of her father. Had we had to decide the question, it would have been impossible for us to accept as sound the startling conclusion of the District Judge, having regard to the elementary principle of all law, to which the Hindu law is no exception, that a legal marriage is a pre-requisite of the status of a married woman. Moreover, from some of the texts of the Smriti writers and the dicta of the commentators, with which I have dealt in this judgment, as bearing on the question of an unmarried daughter, it is clear that such a woman is not to be regarded as a married woman either, according to Hindu law.
32. If that is so, a woman, who in her maiden condition becomes a prostitute, being neither a kanya [unmarried] nor a kulastri [married], but being at the same time, notwithstanding her prostitution, a qualified heir, as held in Advydpa v. Rudrava ILR (1879) 4 Bom. 104 would be entitled to succeed to her father's property only in default of either unmarried or married sisters.
33. This arrangement seems no doubt at first sight to introduce a third class of daughters not mentioned in the rule about the succession of daughters as stated in the Mitakshara or the Vyavaha-ra Mayukha or any other recognized commentaries. They have not mentioned the third class of daughter (sadhdran stri) for the simple reason that, according to them, such a daughter, as any other woman lapsing into prostitution, became a disqualified heir as either a patita (outcaste) or upapataki (vicious woman) and forfeited absolutely all right of inheritance. But by Act XXI of 1850, her disability as an outcaste has been removed; and by usage, as pointed out in Advyapa v. Rudrava, the bar arising from vice has ceased to be operative, both in the case of men and of women. An incontinent daughter, who has not married, being thus brought in among qualified heirs, can succeed to her father's property only in default of unmarried or married daughters of his, if, according to Hindu law, she does not come within the description of either of the latter two. The ground on which it has been held in Advyapa v. Rudrava ILR (1879) 4 Bom. 104 that a daughter who has become a prostitute does not forfeit her right as heir to her father by reason of her prostitution, is inapplicable to the rule which gives a right of priority to the unmarried over the married. That ground is that chastity is not made an express condition of her right to inherit as it is in the case of a widow succeeding to the property of her husband. But in the rule giving the right of priority it is made an express condition that an unmarried daughter shall take first; the married after her. That condition stands unaffected either by any Act of the Legislature or by any usage to the contrary, or by any decision of the Courts. There is no question of loss of caste or of immorality involved in that condition so as to attract to it the application of either Act XXI of 1850 or the principle of the decision in Advyapa v. Rudrava. When the Hindu law says that a maiden who has become a prostitute shall cease to be a maiden and shall not be regarded as a married woman either, it means that she loses her status as a maiden and acquires a new status-that of a sadharan stri, not that of a married woman and that quite apart from any question of loss of caste or any question of vice being the result of prostitution. It involves a mere change of status just as much as if the kanya had ceased to be a maiden after marriage and become a wedded woman. The only difference is that, instead of ceasing to be a kanya by marrying, she ceases to be a kanya by becoming a sadharan stri or prostitute. Under these circumstances the only place which such daughter can take as heir in the line of daughters is in the absence of the unmarried or the married. That is the logical result and combined effect of Act XXI of 1850, of the decision of this Court in Advyapa v. Rudrava ILR (1879) 4 Bom. 104 and the rule of Hindu law that where there are several daughters, some of whom are unmarried and the rest married, the unmarried succeed to their father's property before the married.
34. The result is that the appellant's claim to recover the whole of the property has been rightly disallowed and that portion of the District Judge's decree, which is the subject-matter of this second appeal, must be confirmed with costs.
Beaman, J.
35. I entirely concour with the very instructive learned and closely resoned, judgment just pronounced by my learned colleague.