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Judgment
Horwill, J.—The question is whether the appellants, born of an ordinary Marumakattayam union, are entitled to inherit the self-acquired
property of their deceased father. Both the Courts held that they were not.
The law of intestacy ordinarily applied to those who follow the Marumakattayam system is that the self-acquired property of a male passes to
his tarwad upon his death. It has always been held that the customary union between persons subject to the Marumakattayam law is not a legal
marriage and that, consequently, the offspring are not legitimate children who can claim to inherit their father''s property under the ordinary Hindu
law. Act IV of 1896 made such unions legal marriages provided that they were registered, with the effect of making children both before and after
the registration legitimate. Act XXII of 1933 went a step further and recognised such unions whether they were registered or not, provided that the
union:
(1) had been solemnised with the customary ceremonies and was subsisting on the date when the act came, into force; or
(2) was so solemnjsfid after the Act came into force; or
(3) had been registered as a marriage under the Act of 1896, and was subsisting on the date when the 1933 Act came into force.
The devolution of property upon the death of a male following the Maru-makattayam law upon intestacy is set out in Section 19. The principal
question argued here is whether the expression ""children"" in Section 19 means children of any union, however irregular, or whether it means
lgitimate children. No authority is necessary to show that the ordinary meaning of ""children"" in statutes is legitimate children, unless the contrary is
indicated in the statute itself. If it: were otherwise, then Section 19 would give a right to their father''s property to the offspring of even adulterous or
fleeting connections. If ""children"" in Section 19 means legitimate children, then the appellants can inherit their father''s property only if they are the
offspring of a legal marriage between their parents. Ordinarily, as I have already said, the children of such union are not the offspring of a legal
marriage; so that the appellants can only succeed if the union between their parents has become a legal marriage by statute. The only Act by which
they claim that the union between their parents become a legal marriage is Act XXII of 1933. This Act, however, applies only to subsisting
marriages. The very wording of Section 4(1).(b) ( iii) says so expressly. A union that has been terminated by the death of one of the parties to the
union is no longer a union and so does not subsist.
The learned advocate for the appellants argues that this could not have been the intention of the legislature; for the offspring of a union
recognised by the Act of 1896 would not then have the benefit of the present Act if the mother had died before the Act of 1933 came into force.
That, however, is not the case. If children were born of a marriage recognised by the Act of 1896 they would be legitimate children and would
therefore be entitled to inherit property u/s 19. I have been referred to Section 30 of the Act which deals with the devolution of property upon the
death intestate of a male not following the Maru-makattayam system; but we are not concerned with such a case. I do not find anything in Section
30 which makes it improbable that the Legislature intended that Section 4 and Section 19 should be read according to their plain wording. It is
further argued that if Section 19 applies only to legitimate children, Section 50 would be unnecessary. That, too, is not the case; for section SO is
of wide application and does not and is not meant to apply only to the rights of children u/s 19.
It was finally argued that it was not open to the respondents to deny the appellants'' claim, because in former proceedings it was held that the
appellants are the legal representatives of their father. That decision was in proceedings under Order XXII, rules 3 and 5 of the Civil Procedure
Code. Such a decision would probably not operate as res judicata in subsequent proceedings; but the matter has not been argued fully here,
because the point was not taken in the memorandum of appeal and the learned advocate for the respondent is consequently not ready to argue the
question. It is found in the memorandum of appeal to the lower appellate Court, but seems not to have been argued. This is not altogether a
question of law, although no doubt the nature of the previous litigation could be readily ascertained by reference to documents in Court. As the
matter has not been taken in the memorandum of appeal, it is not necessary for. me to express any opinion on this question.
The appeals are dismissed with costs (advocate''s fee one set).