Illegitimate daughters are entitled to succeed to their mothers' stridhanam properties in preference to illegitimate sons, irrespective of the caste of the degraded woman.

Abdur Rahman, J.

1. Kotamma, a Brahmin girl, became a widow while she was very young. When she grew older, she fell into evil ways and had two illegitimate children one of whom Namburi Subbamma is the present plaintiff and the other Sundararamayya is the seventh defendant in the present litigation. Kotamma, died on the 12th October, 1919 and left some stridhanam property at the time of her death which forms the subject matter of the present suit.

2. The property left by Kotamma, was sold by her son Sundararamayya to six defendants (defendants 1 to 6) under several sale deeds. Namburi Subbamma brought a suit out of which the present appeals arise for the recovery of their possession. If the children were not illegitimate, Kotammas stridhanam property would, under the ordinary rule of Hindu law devolve on her daughter Namburi Subbamma in preference to her son. But it was contended that as Kotamma was an outcaste and lived in a degraded condition, the plaintiff would be no heir to her mother and the seventh defendant would succeed to her property (paragraph 5 of the written statement). This plea did not prevail and the suit was decreed by the District Munsif of Kanigiri. Defendants 4 to 6 did not appeal against the decree and the decree as regards the properties purchased by them has become final. Two appeals were preferred against that decree to the Court of the Subordinate Judge at Nellore one by the first defendant and the other by the second and third defendants (A.S. Nos. 209 and 210 of 1934). With these appeals, the defendants filed two petitions for permission to amend their written statements by including an allegation that there were other heirs of Kotamma in the legitimate line who would take precedence over her illegitimate daughter in respect of succession to Kotammas stridhanam properties. These were accepted by the learned Subordinate Judge on the ground that it was for the plaintiff to establish her title to the property and that it would not be enough for her to show merely that she bad a better title than that of the defendants. But he overlooked the important fact that the plea that was being attempted to be advanced by these applications in his Court was not only a new one but inconsistent with the allegations contained in the written statements. Mere delay would not have been a ground for refusing an amendment; but when the amendment was being proposed with the object of introducing an entirely new and inconsistent case, it could not have been possibly allowed. It is indisputable that leave to amend a pleading is more or less a discretionary matter and the power to grant leave ought to be liberally exercised. Nor can it be disputed that once a discretion has been exercised by a Court in favour of a party, the appellate Court would not lightly interfere with that discretion; but when the Court disregards the first principles and does something which is wholly unjustifiable, it is equally the duty of an appellate Court to interfere and set the wrong right. The defendants, in their written statements, as observed by me before, came to Court with the allegation that the 7th defendant was the heir to his mothers stridhanam properties and not the plaintiff. It might have been possible for them to raise an inconsistent or an alternative case when they filed their written statements in the beginning; but not having done so, they could not be either permitted to advance new positions at the time of arguments before the trial Court or to ask for their written statements to be amended before the lower appellate Court so as to enable them to plead that although the 7th defendant was not entitled to deal with his mothers property, yet there was somebody else in the legitimate line who would take precedence over both the plaintiff and the 7th defendant and the plaintiffs suit must for that reason fail. There is no reference in the whole of the written statements to the existence of any person in the legitimate line an