Rathinasabapathi Odayar … vs Gopala Odayar And Ors. on 1 November, 1928

JUDGMENT

Devadoss, J.

1. The plaintiff is the illegitimate son of one Venkataramana Odayar, a Sudra. Defendants 1 and 2 are the sons and the 3rd defendant the widow of Panchapakesa Odayar, the brother of Venkataramana Odayar. Defendants 4 and 5 are Venkataramana Odayar’s widows. 2nd defendant has been adopted into a different family. Venkataramana Odayar was at the time of his death a member of a joint family consisting of himself and his brother, Panchapakesa Odayar. The plaintiff has brought this suit for a half share of the family property and in the alternative for suitable maintenance and other reliefs. The Lower Court negativing his claim to partition of the family properties has given a decree for maintenance with some minor reliefs. Defendants 1 and 3 have preferred this appeal and the plaintiff has preferred a memorandum of objections.

2. As the main question in the appeal is as regards the plaintiff’s right to partition of the suit property, we allowed Mr. T. R. Venkatarama Sastri, who appears for the plaintiff, to open the case. His contention is that the illegitimate son of a Sudra is entitled to his putative father’s share even if the latter was undivided from his brother or brother’s sons at the time of his death. This point is covered by ample authorities in Krishnayyan v. Muttusami (1883) I.L.R. 7 M. 407, Ranoji v. Kandoji (1885) I.L.R. 8 M. 557, Parvathi v. Thirumalai (1887) I.L.R. 10 M. 334, Karuppa Goundan v. Kumarasami Goundan (1901) I.L.R. 25 M. 429, Gopalasami Chetti v. Arunachalam Chetti (1903) I.L.R. 27 M. 32, Visvanathaswamy Naicker v. Kamu Ammal (1912) 24 M.L.J. 271 and Nagarathnammal v. Chinnu Sah (1927) 53 M.L.J. 861. In all these’ cases, it was held that the illegitimate son of a Sudra or Dasiputra was not entitled to a share in the family property, if his putative father at the time of his death was not separated from his brothers or brothers’ sons. Mr. Venkatarama Sastri attacks the correctness of these decisions and relies in support of his contention upon some observations of Sadasiva Aiyar, and Sir Kumaraswami Sastri, JJ., in Subramania Aiyar v. Rathnavelu Chetty (1917) I.L.R. 41 M. 44 : 33 M.L.J. 224 (F.B.) and urges that the decisions require reconsideration and asks us to refer the question to a Full Bench. As the question raised is of considerable importance and as the observations of the two learned Judges to some extent support the respondent’s contention we have allowed both the appellant and the respondents’ counsel to argue the point with reference to the original authorities.

3. The law applicable to the illegitimate son of a Sudra, for the purpose of this case, may be summarised as follows : (1) It is well settled that an illegitimate son of a Sudra or Dasiputra is entitled to an equal share with the legitimate son of the putative father if partition takes place during the lifetime of the father and half the share of the legitimate son if partition takes place after the death of the father. The illegitimate son of a Dwija or one of the regenerated classes is entitled to maintenance only. There are positive texts in the law books as regards this and the Courts following them decided that he is only entitled to maintenance. (2) It is likewise well settled that, if the putative father leaves no legitimate male issue but a widow, daughter or daughter’s son, the illegitimate son takes half the father’s estate and the widow, daughter or daughter’s son takes the other half. (3) It is also well settled that, if the father dies leaving neither wife nor daughter, nor daughter’s son, the illegitimate son takes the whole of the father’s estate. (4) It is also well settled that the illegitimate son of a Sudra cannot succeed to his father’s collaterals but can succeed to his father’s legitimate son, if he and the legitimate son lived as members of a co-parcenary. (5) The putative father of an illegitimate son can succeed to him if he leaves neither wife nor lineal descendants.

4. Mr. Venkatarama Sastri attacks the correctness of the decisions of the Madras High Court in Krishnayyan v. Muttusami (1883) I.L.R. 7 M. 407, Ranoji v. Kandoji (1885) I.L.R. 8 M. 557, and other cases on the following grounds: (1) The learned Judges erred in not reading Section 12 of Chap. I of the Mitakshara as relating to unobstructed heritage. (2) The learned Judges made a mistake in thinking that an illegitimate son of a Sudra had originally a right to maintenance only and not the right to a share. (3) Section 12 of Chap. I of Mitakshara relating to the illegitimate son is not an exception to the general rule of inheritance relating to sons but is only a part of it. (4) If the commentary of Balambatta had been brought to the notice of the Judges, the result might have been different. (5) Certain text-writers are strongly of opinion that the illegitimate son of a Sudra is entitled to sue for his share the members of the joint family of which his putative father was a member. Mr. Venkatarama Sastri’s arguments may be summarised as follows:

(1) In the case of Dwijas, Mann and Yajnavalkya Smrithis and other Smrithis recognise 12 classes of sons and in the case of Sudras 13th class is recognised as Dasiputra.

(2) In the Mitakshara the rights of Dasiputra are treated in the portion relating to succession or devolution of Apratibandha Daya, unobstructed property.

(3) The position of Dasiputra is superior to that of a widow or daughter’s son whose claims are considered in the portion relating to Sapratibandha Daya, obstructed property.

(4) According to the Mitakshara a Dasiputra is entitled to a share on partition in the life-time of the father and after his death with his legitimate son, whereas the widow, daughter and daughter’s son do not get a share when there is a legitimate son.

(5) The illegitimate son being recognised by Smrithis as Dasiputra is entitled to represent his father, as he offers funeral oblations to him and as his father succeeds to him, if he dies leaving neither wife nor descendants.

5. Manu recognizes twelve classes of sons. Placitum 159 in the Chapter on Inheritance is:

The son begotten by a man himself in lawful wedlock, the son of his wife begotten in the manner before described, a son given to him, a son made or adopted, a son of concealed birth, or whose real father cannot be known, and a son rejected by his natural parents, are the six kinsmen and heirs.

6. Placitum 160 is:

The son of a young woman unmarried, the son of a pregnant bride, a son bought, a son by a twice married woman, a son self-given, and a son by a Sudra, are the six kinsmen, but not heirs to collaterals.

7. In Placitum 163 Manu says:

The son of his own body is the sole heir to his estate, but, that all evil may be removed, let him allow a maintenance to the rest.

8. When Manu comes to deal with inheritance he leaves out the case of a son by a Sudra wife. This omission may be a deliberate one or the placitum relating to Sudra’s son has been left out by later editors. That Manu made some provision for the share of a son by a Sudra wife can be gathered from the fact that he in placitum 178 speaks of a son begotten through lust, The placitum is:

A son, begotten through lust on a Sudra by a man of the priestly class, is even as a corpse, though alive, and is thence called in law a living corpse.

9. It would be more appropriate to apply the term Parasava to a concubine’s son and not to a son by a Sudra wife. Placitum 179 which refers to an illegitimate son of a Sudra is as follows:

But a son begotten by a man of the servile class on his female slave, or on the female slave of his male slave, may take a share of the heritage, if permitted by the other sons : thus is the law established.

10. That placitum 178 could only refer to an illegitimate son is apparent not only from the juxtaposition of the two placita but from the way in which the inheritance of the sons is treated. Jimutavahana in his Dayabhaga understands placitum 178 as referring to an illegitimate son, for the expression “begotten through lust” on a Sudra could not refer to begetting a son on a wife. At page 65 he says,
hence expression ‘begotten through lust’ on a Sudra must relate to a child upon an unmarried Sudra.

(In this judgment reference to the Mitakshara and other commentaries are to Setlur’s collection of Hindu Law books). In placitum 184 Manu says;

On failure of the best, and of the next best, among those twelve sons, let the inferior in order take the heritage; but, if there be many of equal rank, let all be sharers of the estate.

11. Of the twelve the son by a Sudra wife is one. Placitum 185 is:

Not brothers, nor parents, but sons, if living, or their male issue, are heirs to the deceased, but of him, who leaves no son, nor a wife, nor a daughter, the father shall take the inheritance; and, if he leaves neither father, nor mother, the brothers.

12. According to Manu the illegitimate son of a Sudra is a son and according to his classification he belongs to the 13th class. His rights to his father’s property is recognised in placitum 179 already quoted. In the text there is no word which could be translated as “by the other sons.” The word is Anujna which may be interpreted “if permitted.” Some translators supply the ellipses with the words “by the father,” others, “by the other sons” and some others, “by the brothers.” Mr. Varadachari suggests that the permission implied in the text is that of the Sovereign as the law of escheat was very rigorous in those clays and the permission of the Sovereign had to be obtained in order to divide the inheritance of a man dying without male issue. From the text and the way in which Yajnavalkya understands it, we may take it that the permission implied in the text is the permission of the father. Under this text no definite share is given to an illegitimate son. He may have a share if permitted by the father. It was Yajnavalkya that gave a definite share to an illegitimate son. Yajnavalkya (ii. 134-135) says,
even a son begotten by a Sudra on a female slave, may take a share by the father’s choice. But, if the father be dead, the brethren should make him partaker of the moiety of a share and one, who has no brothers, may inherit the whole property, in default of daughter’s sons.

13. This text is the foundation of the rights of an illegitimate son to a share in his father’s property and is in the portion relating to partition and heritage.

14. Vijnaneswara begins the portion of the Mitakshara relating to inheritance after referring to what preceded with the words “the partition of heritage is now explained by the Image of Holiness” meaning Yajnavalkya. He says,
heritage is of two sorts; unobstructed (Apratibandha), or liable to obstruction (Sapratibandha).

15. What is Apratibandha and what is Sapratibandha is explained. In Section 2 at page 8 he considers at what time, by whom, and how, partition may be made and says,
when a father wishes to make a partition, he may at his pleasure separate his children (from himself) and either give the eldest the best share, or (if he choose) all may be equal sharers.

16. This text is explained at considerable length. The next verse is:

If he make the allotments equal, his wives, to whom no separate property has been given by the husband or the father-in-law, must be rendered partakers of like portions.

17. This verse shows that the mother took an equal share with the sons, when the division took place in the life-time of the father. The father’s power of distribution is explained. Then follows the text:

A legal distribution, made by the father among sons separated with greater or less share, is pronounced valid.

18. Section 3 deals with partition after the death of the father. The heading is partition after the death of the father and the mother, the verse is:

Let sons divide equally both the effects and the debts after their two parents.

19. According to Yajnavalkya as interpreted in the Mitakshara, the sons could only divide after the death of both the father and the mother. The next verse is:

The daughters share the residue of their mother’s property, after payment of her debts and the issue succeeds in their default.

20. From this it is clear that the mother’s property was shared by the daughters after payment of her debts and the sons were to pay the debts and to give what remained to the daughters, and if there were no daughters to take it themselves. Section 4 deals with effects not liable to partition. What was acquired by a member of the family without detriment to the father’s estate is not liable to partition. Section 5 deals with equal rights of father and son in property ancestral. The text is,
but among grandsons by different fathers, the allotment of shares is according to the fathers.

21. The next text is:

It is well known that the ownership of father and son is the same in land which was acquired by the grandfather, or in a corrody or in chattels (which belonged to him).

22. From these texts Vijnaneswara draws the inference that the sons have an equal right with the father in the grandfather’s property, and if any of the sons dies before division the grandson gets the son’s share. The division is not by per capita but by ster pes. The Mitakshara reconciles the rules relating to the right of the father to make unequal distribution of the family property among the sons with the rule that the sons acquire an interest equal to that of the father in the grandfather’s property by explaining that the rule as to unequal division refers to the self-acquisition of the father and not to ancestral property. The father’s right to effect a partition among his sons whether the property is ancestral or self-acquired is undisputed. If the property is ancestral, he is to effect an equal division. As regards property which is not ancestral but which is self-acquired, he may distribute it as he likes, for the sons have no vested interest by birth in the self-acquisition of the father. Section 7 deals with the share of widows. The text is:

Of heirs dividing after the death of the father, let the mother also take an equal share.

23. According to Yajnavalkya and Vijnaneswara the mother was to get a share equal to that of the sons on partition. In Section 3 the injunction was that the sons should divide after the lifetime of the father and the mother but if the sons effect a division in the life-time of their mother they ought to give her an equal share. This right of the mother has been unfortunately whittled down in later times to a right to maintenance. The next verse deals with the share of sisters and says:

But sisters should be disposed of in marriage giving them as an allotment the fourth part of a brother’s own share.

24. The institutes of Vishnu lay down the same rules. Placita 34 and 35 of Section 18 are:

Mothers shall receive shares proportionate to their sons’ shares”; “And so shall unmarried daughters.

25. It is to be regretted that these positive rules were ignored in later times and the British Courts which depended for their Hindu Law upon Pandits were misguided by them in regard to the rights of mothers and daughters. Section 11 deals with the several classes of sons. The text is:

The legitimate son is one procreated on the lawful wedded wife. Equal to him is the son of an appointed daughter. The son of the wife is one begotten on a wife by a sagotra of her husband, or by some other relative. One, secretly produced in the house, is a son of hidden origin. A damsel’s child is one born of an unmarried woman : he is considered as son of his maternal grandsire. A child, begotten on a woman whose (first) marriage had not been consummated, or on one who had been deflowered (before marriage), is called the son of a twice-married woman. He whom his father or his mother gives for adoption shall be considered as a son given. A son bought is one who was sold by his father and mother. A son made is one adopted by a man himself. One, who gives himself, is self-given. A child accepted while yet in the womb is one received with a bride. He who is taken for adoption having been forsaken by his parents, is a deserted son.

26. This classification of sons applies to all classes, Brahmana, Kshatriya, Vysia and Sudra. In the case of a Brahman there may be four classes of sons, one born to a Brahman woman, another to a Kshatriya woman, a third to a Vysia woman and the fourth to a Sudra woman. As for the rules as to succession the text is:

Among these, the next in order is heir and presents funeral oblations on failure of the preceding.

27. If in the case of a Brahman father, there be no sons by a Brahman woman, his sons by a Kshatriya woman take the inheritance, and in the absence of sons by a Kshatriya woman, his sons by a Vysia woman take the inheritance, and in the absence of sons by a Vysia woman, his sons by a Sudra woman take only one-tenth of the inheritance. The Mitakshara says:

But the son by a Sudra wife, though legitimate, does not take the whole estate, even on failure of other issue,

and Manu says:

But whether the man have sons, or have no sons, no more than a tenth part must be given to the son of the Sudra.

28. Yajnavalkya for the purpose of inheritance recognizes twelve classes of sons. The first six are termed principal and the next six secondary. According to Manu the first six are heirs and kinsmen and the rest are not heirs but kinsmen. Para. 30 at page 33 is, Manu having premised two sets of six sons, declares the first six to be heirs and kinsmen, and the last to be not heirs but kinsmen:

The true legitimate issue, the son of a wife, a son given, and one made by adoption, a son of concealed origin, and one rejected are the six heirs and kinsmen. The son of an unmarried woman, the son of a pregnant bride, a son bought, a son by a twice-married woman, a son self-given, and a son by a Sudra woman, are six not heirs but kinsmen.

29. The first six inherit to collaterals but not the rest. All these have a right to inherit to the father and they take in the order given. The aurasa son gets the whole inheritance except when there is an appointed daughter’s son or a Dattaka son. Of these twelve sons on failure of the first the next in order takes the inheritance and so on. But a Sudra wife’s son does not take the whole estate on the failure of the other sons but only a tenth. After dealing with rights of sons Vijnaneswara says:

The author next delivers a special rule concerning the partition of a Sudra’s wealth.

30. This is the beginning of Section 12 at page 35. The text is,
even a son begotten by a Sudra on a female slave may take a share by the father’s choice But, if the father be dead, the brethren should make him partaker of the moiety of a share; and one, who has no brothers, may inherit the whole property, in default of daughter’s sons.

31. Mr. Venkatarama Sastri strongly urges that, as this verse is in the portion dealing with apratibandha daya, it must be taken that the illegitimate son acquires by birth a right in his grandfather’s estate in the same way as a legitimate son does. This argument is not correct. In the first place, there is no warrant for saying that this chapter deals only with apratibandha daya. In Section 1, placitum 3, Vijnaneswara speaks of heritage being of two sorts, apratibandha and sapratibandha. He goes on to explain what they are,. Nowhere is there a statement in the Mitakshara that this chapter is devoted to a consideration of apratibandha daya only. Secondly, the property of a mother is dealt with in Section 3 at page 12 of the (Setlur’s Hindu Law Books) Mitakshara. Thirdly, this portion of the Mitakshara deals, in Section 4, with separate property which is not apratibandha daya. Fourthly, Section 12 is said to be a special rule. The author, having dealt with the rights of legitimate sons, deals with an exception or the special case of the sons of a Sudra born of a woman not married to him. This is not an exception to the general rule but a special case. The opening lines of the next chapter do not help the respondents’ contention. Placitum 1 at page 36 says:

That sons, principal and secondary, take the heritage, has been shown. The order of succession among all on failure of them, is next declared.

32. Then follows the text:

The wife, and the daughters also, both parents, brothers likewise, and their sons, gentiles, cognates, a pupil, and a fellow student; on failure of the first among these, the next in order is indeed heir to the estate of one who departed for heaven leaving no male issue. This extends to all classes.

33. The illegitimate son is neither a principal nor a secondary son but is sui generis a class by himself.

34. Sarasvati Vilasa after quoting Yajnavalkya’s text regarding the illegitimate son of a Sudra and commenting upon it, says that the illegitimate son of one of the regenerate classes by a Sudra woman receives only maintenance and concludes with the words “Thus ends the chapter on partition of unobstructed heritage” (page 163). This does not mean that what the illegitimate son of a Sudra gets is unobstructed heritage. Unobstructed heritage does not mean joint family property. Vyavahara Mayukha, Section 2, placitum 2 (page 66) says:

This heritage is of two kinds, obstructed and unobstructed. When the life of the owner of the property, or that of his sons, etc., is interposed, that is termed obstructed; for instance, the wealth of paternal uncles, and the like. But where ownership accrues to sons and others solely from affinity to the owner, without reference to other means of acquiring property, the heritage is then unobstructed, as the wealth of a father. This is the definition of heritage.

35. Vyavahara Mayukha dealing with sapratibandha daya begins in Section 8, placitum 1, page 96, thus:

Now of the order of succession to obstructed heritage.” The fact that Section 12 of the Mitakshara immediately follows the rules of inheritance as regards sons and before the right to sapratibandha is dealt with, is no ground at all for holding that Section 12 deals with unobstructed heritage, if the illegitimate son is not entitled to unobstructed heritage he cannot succeed to the property of his putative father’s father independent of the father. He gets a share by the permission of the father, if the division takes place during his life-time. It is urged that their permission only increases the half share to an equal share with the aurasa son. Granting it to be so, can it be said that his right is independent of his father’s pleasure. Could he sue his father for his share like an aurasa son? The Mitakshara contemplates only the case of an householder, a father, and sons and grandsons. If one of the sons dies, that son’s sons stand in his shoes for purposes of reckoning the shares. A son’s death is treated as an elimination of the son from the household and such son’s sons take on partition the share that the son would have taken had he lived. The grandson’s right to a share in the grandfather’s property is, by virtue of his birth, that is, independent of the father’s right and it is equal to that of the father in the grandfather’s property. The illegitimate son not having an interest equal to that of the father in the grandfather’s property, does not get a share if the father’s father divides the inheritance. The same rule would apply where the father’s brethren divide the inheritance. His right is that of a person who shares sapratibandha daya. It is in this view that he is placed with the sons of daughters where there is no son to share the inheritance with. Where there is a son he occupies an exceptional position. In default, he is put on a level with a daughter’s son. The word “daughter” ought to be “daughters” in the translation. In the original the corresponding word is in the plural form and this was brought to our notice by Mr. Varadachari. A good deal of discussion of this case could have been avoided if the mistake in the translation had been brought to our notice earlier. The text means “In default of the sons of daughters” and not a daughter’s sons. The expression “daughter’s sons” gave rise to the interpretation that it meant “son of an appointed daughter.” The correct rendering does away with speculation whether the text did not refer to the appointed daughter’s son instead of ordinary daughter’s sons. If Yajnavalkya meant that an illegitimate son should take the whole heritage in default of the appointed daughter’s son his position would be much higher in the order of sons and his rights would be much more than what they are now. Vijnaneswara and other commentators, who put the illegitimate son along with the sons of daughters, did not push down the illegitimate son but gave him the place which the correct rendering of the text made him occupy.

36. A daughter’s son comes after the widow and the daughter. As Yajnavalkya has already dealt with the case of a wife and daughter, in the text relating to the illegitimate son he mentions the daughter’s sons only and that is the reason why the Mitakshara and other commentators give him a place along with grandsons by daughters.

37. Mr. Venkatarama Sastri relies upon certain passages in Medhatithi, Sarvajna Narayana and other commentators as supporting the position that an illegitimate son gets a share of the apratibandha daya. Medhatithi, one of the earliest commentators of Manu, commenting upon verse 179 says:

He, that is, a son who is born to a Sudra or unmarried ‘anuyukta’ woman, such a son who is permitted by his father shall take an equal share with the legitimate son when the father makes a partition during his life-time or if the father says ‘Let him have an equal share with you’.

38. Sarvajna Narayana says, in the case of a son born to a Sudra on an unmarried female slave or the female slave of a slave he shall take an equal share along with the sons of a married woman, being permitted to do so by his father while alive. Reference is made to a passage from Sarvajna Narayana’s text, in Rajani Nath Das v. Nitai Chandra Dey (1920) I.L.R. 48 C. 643 at 689 (F.B.). It is urged that the term ‘sons’ include aurasa sons and other sons excepting the son begotten on a Sudra woman by a twice-born. Manu recognizes the son of a Brahman by a Sudra woman as a son. Narayana is not prepared to do that. The word “Parasava” son of a Sudra wife has been confounded with the illegitimate son of a Brahman referred to in verse 179 of Manu and that probably led to the later commentators ignoring the Brahman’s son by a Sudra wife. These commentators did not say that the illegitimate son of a Sudra acquires by birth an equal right with his father in his grandfather’s property.

39. Balambhatta’s commentary on the Mitakshara is relied upon very strongly by the respondent. It is also referred to by Kumaraswami Sastriar, J., in Subramania Aiyar v. Rattoiavelu Chett (1917) I.L.R. 41 M. 44 : 33 M.L.J. 224 (F.B.). The translation of the relevant passages has been furnished to us. I quote the passages in full as much ‘reliance was placed upon them by the respondent’s learned Counsel:

The fact of an illegitimate son taking an equal share by the father’s choice where there is an aurasa and taking a half-share in the absence of such a direction, and the fact that the adopted boy takes a one-fourth share, where there is an aurasa son, shows the weaker character of the adopted son : He (the illegitimate son) is also superior to the wife and others because before the text ‘wife, etc’ and after mentioning the sons, the Yogi has inserted the text ‘Jatopi, etc.’.

Because also Manu in dealing with the sons begins with Aurasan, Kshetraja, etc., and ends with Parasava, and then mentions the sons in order and then mentions the verse ‘Dasyamva’ and then adds the text relating to Kshetraja’s son, etc, as substitutes for the son and after these introduces the text of ‘Brathrunamva’.

Therefore it is at this point the commentator introduces the text in regard to the division of Sudra’s wealth with the words ‘here follows special rule in regard to Sudra’s property’.”

By the word, ‘Visesha’ it is indicated that the previous text is confined to the people of the three varnas (regenerate classes). There is, however, no room for the question how, if we say so, the reference to daughter and daughter’s son fits in here; for having regard to the two commentaries above referred to about Putrikasuta, (i.e., either an appointed daughter or an appointed daughter’s son) it is said so, vis., Duhitrunam suthadrithe Hence among the substitutes mentioned before it is indicated that in this yuga among Sudras this ‘Putrikaputra’ is the substitute son and not the Dattaka son. All the texts like Daitaurasa Ithareshamthu relates to the other three classes because of the implication of the word Parigraha Therefore it is that it is said that Putrikasuta is equivalent to aurasa son.

40. Balambhatta is not an authority in Southern India. Even in the Bombay Presidency he is not considered to be an authority–vide Bhagwan v. Warubai (1908) I.L.R. 32 B. 300 Even if he is an authority some of his opinions are so opposed to those of well-known commentators that he cannot be treated as a safe guide. For in the passage following the passage quoted above he says:

Further the (laughter’s son is not specifically mentioned here. This is based on the author’s theory that in all places where a male is mentioned the corresponding female should be included, i.e., brother includes sister and daughter’s son includes daughter’s daughter

and goes on to observe that as among Sudras there cannot be proper religious ceremonies so there cannot be a valid adoption, and adds that, if among the regenerate classes all the ceremonies are not performed, the adopted boy would only become a dasa (slave). The opinion that there can be no adoption among Sudras because of their inability to take part in religious ceremonies is opposed to the authorities, and that defective ceremonies, in the case of the regenerate classes make the adopted boy a dasa, is not countenanced by any authority. Balambhatta’s remark, that wherever a word is used the corresponding female is intended, that is, a brother means or includes a sister, is too revolutionary to be seriously taken notice of. Sarvadhikari in his lectures on Hindu Law says that Balambhatta was a woman who flourished about the end of the 17th century (Hindu Law, page 810). Her exposition of the law of inheritance is not adopted by the Benares school. (Vide Sarvadhikari, p. 826.) There is. no warrant for saying that the illegitimate son stands in the shoes of an aurasa son or even a dattaka son.

41. Siromani in his 1st edition of Hindu Law owing to an incorrect reading of Sadu v. Baiza and Genu (1878) I.L.R. 4 B. 37 (F.B.) was of opinion that an illegitimate son could inherit his grandfather’s property by birth. In the 2nd edition he corrected this view by reason of the decision in Jogendro Bhupali Hurrochandra Mahapatra v. Nityanund Man Singh (1890) L.R. 17 I.A. 128 : I.L.R. 18 C. 151 (P.C.).

42. Jolly rests his opinion upon West and Buhler.

43. West and Buhler in their Hindu Law, 3rd edition, say:

In the case of a Stidra, being an avibhaktha, his share, on failure of the three legitimate descendants, is inherited by his illegitimate sons, grandsons and great-grandsons. if legitimate descendants are living the illegitimates inherit half a share.

44. The authorities they quote are Manu, Mitakshara, Mayukha and Strange’s Hindu Law. They observe at page 82:

The Sudra’s illegitimate son is therefore in a position more analogous to that of a legitimate son, than to that of relations who inherit by a right liable to obstruction. Hence it would seem a correct doctrine that those laws which apply to the succession of sons and grandsons of legitimate sons should also be applied to his sons, i.e., that his sons should be considered to represent him, and to take, in case he dies before his father, the share which would have fallen to him.

In favour of this view we may adduce also the fact, that the rules treating of the rights of the illegitimate son are given by Vijnaneswara at the end of the chapter on the apralibandha daya inheritance by indefeasible right, and form as it were an appendix to it. Hence it may be inferred that Vijnaneswara intended all the rules previously given, regarding sons in general, to apply also to him, except as far as they were apparently modified by the text of Yajnavalkya. According : to this, the failure of daughters and their sons is necessary before the illegitimate son can inherit the whole property. (a) See Mil. Chap. I. Section 12, and Chap. TT, Section 2, pl. 6; and also above Section 3-A (3), page 72.

45. The statement of law on page 82 is not supported by the authorities on whom the learned authors rely. The illegitimate son’s right to share with the legitimate half-brother, though termed absolute,’ is a right which is available if his father is a separated householder. The use of the term absolute by West and Buhler does not mean absolute in every case….

46. Sapinda relationship cannot exist when there is no marriage. The illegitimate son cannot be a sapinda of the father though he has the particles of the father in him. An adopted son occupied an inferior position in Manu. As the several forms of marriage came to be discouraged and as the moral consciousness of the people began to increase the feeling that family life should be pure outweighed the desire for sons and the only way of honourably getting a son when the wife did not bear one was by the adoption of a son and this was probably encouraged by the priests on account of the opportunity it afforded them for interfering in family affairs. It was Nanda Panditha who gave the adopted son a high place among sons in his Dattaka Mimamsa. But for Dattaka Chandrika and Dattaka Mimamsa he would not occupy the position he now holds. Practically for all purposes he is considered as good as an aurasa son. This elevation of the Dattaka son is no sufficient reason for lifting the illegitimate son from the position he all along occupied on the bare ground that Yajnavalkya gave half the share of an aurasa son to an illegitimate son, whereas an adopted son gets only one-fourth share of the afterborn aurasa son (Mitakshara 33); nor can the illegitimate son be put on a par with the appointed daughter’s son by reason of the former sharing equally with the afterborn aurasa son, whereas the latter does not. The illegitimate son of a Sudra is not a co-parcener with his father though he may be a co-parcener with his father’s legitimate son. In order to get a share of the grandfather’s property along with the father’s brother or brother’s sons he must have acquired by birth an interest in the grandfather’s property. He does not, in the case of the grandfather’s property, represent the father who had died before separation from his collaterals.

47. The above is the result of my examination of the original authorities relied on by Mr. Venkatarama Sastri. In Krishnayyan v. Muttwsami (1883) I.L.R. 7 M. 407 the facts were : there were two undivided brothers, V and S, who belonged to the Sudra caste : V died before S, leaving two illegitimate sons by A, an unmarried Sudra woman kept as a continuous concubine. S left two widows : it was held that, although the illegitimate sons of A would be entitled to inherit to the estate of V they could neither exclude the right of survivorship of .S nor succeed to the estate of S. At page 413 the learned Judges observe:

While we concede the claim of the illegitimate son we are unable to uphold the contention that he is entitled to take the undivided interest of his father. He is placed in the Mitakshara on the same footing with a daughter’s son, and the conception of co-parcenary pre-supposes sapinda relationship and a legal marriage.

48. In Ranoji v. Kandoji (1885) I.L.R. 8 M. 557 it was held that the illegitimate son of a Sudra cannot sue the undivided brothers of his father for a share of the family estate. At page 561, Turner, C.J., and Muthuswami Aiyar, J., observe:

We hesitate to accept the view that Vijnaneswara intended to postpone the widow to the illegitimate son.

49. This observation of the learned Judges would not have been made, I venture to think, if the correct interpretation of the text was before them. As already shown the plural form of daughter is used in the text and daughters’ sons could only have meant sons of daughters, for there could not have been more than one appointed daughter. Further Vijnaneswara, after dealing with the share of the mother and sons, deals with the illegitimate son’s rights as a special case and in his time the right of the mother to a share was not challenged and the right of an unmarried daughter to a share was not disputed. That was the reason why he gave the illegitimate son a half share along with the sons of daughters. The learned Judges further observe at page 561:

All the texts we have cited are found in those portions of the several works which relate to the partition of the estate of separated householders. Do the same rights accrue to a son of a Sudra when his father is unseparated? We can find no Hindu authority on this subject and Messrs. West and Buhler are the only English writers who affirm that they do, but when we look at the authorities cited in support of their opinion, We find they do not support the view.

50. This opinion, I respectfully say, I have found to be correct on a full examination of the authorities. The contention of Mr. Venkatarama Sastri that the learned Judges who decided Krishnayyan v. Muttnsami (1883) I.L.R. 7 M. 407 and Ranoji v. Kandoji (1885) I.L.R. 8 M. 557 did not attach sufficient importance to Section 12 being a part of Chapter 1 which has already been dealt with.

51. In Parvathi v. Thirumala (1887) I.L.R. 10 M. 334 it was held that, in a contest between the illegitimate son of a Zamindar and his widow for possession of the zamindari, the widow was entitled to succeed in preference to the illegitimate son. In that case they relied upon Krishnayyan v. Muttusami (1883) I.L.R. 7 M. 407, and distinguished Sadu v. Baiza (1878) I.L.R. 4 B. 37 (F.B.) and Jogendro Bhuputi v. Nilyanund Man Singh (1885) I.L.R. 11 C. 702. The authority of this decision may be taken to have been considerably shaken by the decision in Jogendro Bhupati Hurrochandra Mahapatra v. Nityanund Man Singh (1890) L.R. 17 I.A. 128 : I.L.R. 18 C. 151 (P.C.).

52. In Katuppa Goundan v. Kumarasami Goundan (1901) I.L.R. 25 M. 429 it was held that an illegitimate son was not entitled to a share in the property of his father’s brother’s sons. The learned Judges observed that they were not prepared to extend the principle laid down in Jogendro Bhupati Hurrochandra Mahapatra v. Nityanund, Man Singh (1890) L.R. 17 I.A. 128 : I.L.R. 18 C. 151 (P.C.) to the case of collaterals in the face of the rulings in Krishnayyan v. Muttusami (1883) I.L.R. 7 M. 407 and Ranoji v. Kandoji (1885) I.L.R. 8 M. 557.

53. In Gopalasami Chelti v. Arunachalam Chetti (1903) I.L.R. 27 M. 32 the facts were : The illegitimate son of a deceased Chetti sued the adopted son and the brother of his late father for a share in his father’s estate or in the alternative for maintenance. It was held
that the claim for a share must fail as it was not shown that the deceased had left any separate or self-acquired property. The family of the deceased (consisting of his father and two sons of whom one was the deceased) was not shown to have had any ancestral property, but it had acquired property by trade in which the father and the two sons were jointly engaged. There being no indication of an intention to the contrary, it must be presumed that the property thus acquired was held by the members of the family as joint property with the incident of the right of survivorship. Inasmuch as the plaintiff’s father had predeceased his father and brother, the plaintiff could claim no share as against his grandfather and uncle and, as he was illegitimate, he could not ‘represent’ his father in the undivided family.

54. The learned Judges at page 35 observe:

It is true that in none of the reported cases on the point did there exist, as in the present case, along with the illegitimate son, a legitimate son, by birth or adoption of the deceased ‘avibhaktha’ or undivided father. But that circumstance cannot make any difference in principle inasmuch as the special rule of inheritance in favour of the illegitimate son of a Sudra, along with his legitimate brothers, provides that, in the absence of legitimate brothers, the illegitimate sou may inherit the whole property in default of daughter’s sons of the deceased. This clearly shows that the Sudra father therein contemplated is one that was divided from his ancestors and collaterals (see West and Buhler, 3rd edition, Vol. I, page 72). But if he was not so divided the text cannot apply, though he may have left legitimate sons along with the illegitimate son.

55. The modern notion of a joint family is a recent one and the present idea of a joint family is partly due to the notions derived from the English Law of joint tenancy. Joint family as understood now was unknown to Manu and Yajnavalkya and even to Vijnaneswara. What the Mitakshara speaks of is a householder that is pater famtias–a father with his sons and grandsons. As I have already shown, when a son dies, his place for purposes of division is taken up by that son’s sons, and if he left no legitimate son that son is simply eliminated from the family and the rest of the members divide the estate. The grandsons, in which case, take a share in the family property by virtue of their having by birth acquired an interest equal to that of their father, and as long as the illegitimate son does not acquire an interest equal to that of the father by birth he could not succeed to the property of the grandfather after the father’s death.

56. In Visvanathaswamy Naicker v. Karm Ammal (1912) 24 M.L.J. 271 it was held that
the illegitimate son of a Sudra Zamindar is excluded from succession to an impartible zamindari by the widow or the member of the joint family of the deceased Zamindar according as the property is separate or joint family property of the deceased.

57. It was further held that
an illegitimate son is not a member of a co-parcenary to which his putative father belonged and cannot succeed to the joint family property in competition with the collaterals of the father. He cannot be a co-parcener with his father’s uncles and cousins.

58. The case in Jogendro Bhupati Hurrochuudra Mahapatra v. Nityanand Man Singh (1890) L.R. 17 I.A. 128 : I.L.R. 18 C. 151 (P.C.) was relied upon in that case for the position that the illegitimate son was a member of a co-parcenary. Both Miller and Rahim, JJ., were not prepared to hold that illegitimate son was a co-parcener with his father’s collaterals. With reference to Jogendro Bhupati Hurrochundra Mahapatra v. Nityanand Man Singh (1890) L.R. 17 I.A. 128 : I.L.R. 18 C. 151 (P.C.), Rahim, J., observed at p. 285:

As I understand the decision the text of the Mitakshara already alluded to gives him a share along with the legitimate son of his natural father and that a co-parcenary is thereby created between the two.

59. It has also been decided that if the illegitimate son dies leaving a son of his own, that son will take his father’s share. But I find no warrant for extending the scope of the Privy Council ruling so as to hold that the illegitimate son is a coparcener along with his father’s uncles and cousins. Miller, J., was of opinion that the illegitimate son could succeed to the separate property of the Zamindar.

60. In Nagarathnammal v. Chinnu Sah (1927) 53 M.L.J. 861 it was held that
an illegitimate son was not entitled to any share in the family property of his deceased father when there are collaterals in the family.

61. Sir William Phillips, Offg. C.J., and Anantakrishna Aiyar, J., observed:

That current of decisions has continued for the last 40 years and there appears to be no case in which the principle has been questioned. With all respect we entirely agree with the decision in Gopalasaimi Chetti v. Aruna-clmlam Chetti (1903) I.L.R. 27 M. 32, and, as nothing has been urged before us to show that it is in any way wrong, we are prepared to follow it.

62. In Karuppai Nachiar v. Sankaranarayanan Chetti (1903) I.L.R. 27 M. 300 : 13 M.L.J. 398 (F.B.) it was held by a Full Bench that
in the Mitakshara no distinction is made between ‘obstructed’ and ‘unobstructed’ heritage in respect of the devolution of stridhanam property-The definitions of ‘obstructed’ and ‘unobstructed’ heritage given therein refer in terms only to the property of a male

and further held that there was no right of survivorship in property inherited by two members of a joint family from their maternal uncle.

63. The case in Subramdnia Aiyar v. Rathnavelu Chetti (1917) I.L.R. 41 M. 44 : 33 M.L.J. 224 (F.B.) is the sheet anchor of the respondents’ contention. In that case the question was
whether the father who survives his illegitimate son is entitled to inherit his property when he dies leaving neither issue nor widow nor mother.

64. The Full Bench consisting of Sir John Wallis, C.J., Oldfield, Rathina and Kumaraswami Sastriar, J., held that the father could succeed to his illegitimate son’s property in the circumstances. The Gopala case came on before Sadasiva Aiyar and Napier, JJ., who referred the question to the Full Bench and the point before us was Devadoss, J. not actually before the Full Bench, but the observations of Sadasiva Aiyar, J., in the referring judgment and some of the observations of Kumaraswami Sastriar, J., in the Full Bench judgment are relied upon by the respondents. Sadasiva Aiyar, J., observes at page 55 that
an illegitimate son is not connected by blood with his father and mother so as to have sapinda relationship with them, is, in my opinion (with the greatest deference to opinions contra) unsustainable.

65. He in support of his opinion refers to a passage in the Ramayana in which Hanuman is spoken of as an our as a son. The term ‘aurasa’ literally means breast, that is, an aurasa son means son of the breast and the corresponding Biblical expression is who came out of the loins. There is no warrant for saying that sapinda relationship could exist in the absence of legitimate marriage. All the Smritis and commentaries confine sapinda relationship to the legitimate issue born of a patni, and in some cases the expression is Dharmapatni. To say that a concubine’s son is a sapinda with all the rights and liabilities of an aurasa son is, with due respect to the learned Judge not warranted by the Hindu Law texts. The learned Judge after discussing the Madras cases observed:

It is probably too late to go back on the long course of decisions which have established the contrary.

66. After referring to the Yajnavalkya Smriti and Mitakshara he remarked:

It is now settled that in the absence of legitimate sons the illegitimate son takes only a half share if there arc widows, daughters or daughter’s sons. This looks as if there had been an advancement of these three classes to take along with the illegitimate sons.

67. The widow, the daughter and the daughter’s son were not advanced but the position which the widow and the daughter occupied in the time of Yajnavalkya and Vijnaneswara was in later times given up and they were made to occupy a very subordinate place. At the time, when Vijnaneswara wrote, their position was recognized and that was why he placed an illegitimate son along with the daughter’s sons. Kumaraswami Sastriar, J., observes at page 64:

But for this special provision the illegitimate son of a Sudra would take only in default of all aurasa and putrika putra or other sons classed by the Smriti writers as superior and the fact that a special text was necessary to give him a favourable position cannot in my opinion be treated as showing an intention to exclude him from the category of sons whom the Smriti writers mention as capable of inheriting to their father.

68. From the time of Manu the illegitimate son of a Sudra occupied only a subordinate position and got only a share at the pleasure of the father. It was Yajnavalkya that gave him a share and when we find that the legitimate son of one of the regenerate classes by a Sudra woman was given only one-tenth of the property even in the absence of other classes of sons and that Manu treated the illegitimate son of one of the regenerate classes as a corpse it cannot be said that he at any time occupied a position which was equal to any one of the 12 sons mentioned by Manu and Yajnavalkya. The learned Judge relies upon Balambhatta’s commentary that the use of the word “hareth” in the text of Yajnavalkya indicates that the illegitimate son acquires the right by birth like the legitimate son. As I have already shown Balambhatta is not an authority and if the views of Balambhatta are taken as correct it would revolutionize the whole of Hindu Law. The learned Judge observes at page 66:

His position, so far as the Smriti writers are concerned, is by no means inferior to that of a Dattaka.

69. The mere fact that he gets a share more than that of a Dattaka son in competition with an aurasa son when division is made after the father’s death is not a ground for making him one of the sons recognized by the Smritis. Both Manu and Yajnavalkya recognize only twelve classes of sons and the illegitimate son of one of a regenerate class is never treated as a son and only in the case of Sudras the illegitimate son is given a share in the father’s property. Whatever may be the reason whether it be that among Sudras concubinage was popular, or, whether it he that the Aryans found the inhabitants of this country whom they compendiously called Sudras marrying without ceremonies, or whether it was the practice to beget children on slave girls, whatever be the reason, in one case and in one case only was the illegitimate son given a recognized position in the matter of inheritance and the share which he got was not by virtue of any right which he acquired by birth but in the first instance by the pleasure of the father and if the father died without dividing the inheritance the sons were directed to give a half share to the illegitimate half-brother. In the case of an appointed daughter’s son and Dattaka son they had a definite place in the ‘family and their position was assured. But for the birth of an aurasa son they would take the whole of the inheritance. Owing to the subsequent birth of an aurasa son they had to take a subordinate place. What applied to them cannot be said to apply to an illegitimate son. With great respect I am unable to agree with the learned Judge’s view that the illegitimate son had a right to a share in the family property in the beginning and not merely a right to maintenance. In the case of the illegitimate sons of the three regenerate classes the texts distinctly laid down that he is only entitled to maintenance. It is only in the case of Sudras that be was given a share. Even the 11 illegitimate sons had only a right to be maintained in competition with an aurasa son. It is only in the absence of the first class the second comes in and in the absence of the second the third comes in and so on till a Sudra wife’s son is reached and he gets only one-tenth of the inheritance even though all the previous sons are non-existent. It cannot therefore be said that the illegitimate son was given a share in the beginning and it was subsequently cut down to a right to maintenance. Though in one portion of his judgment the learned Judge treats the illegitimate son as one of the 12 sons, at page 70 he observes:

I am of opinion that the illegitimate son of a Sudra is one of the classes of sons recognized by Hindu Law and allowed to a Sudra in addition to the 12 classes of sons enumerated as common to all the four castes.

70. As I have already observed the illegitimate son of a Sudra is sui genetis and he is a class by himself. At page 72 he observes:

As between the illegitimate son and his putative father filial relationship exists in my opinion for all purposes of inheritance and succession. It would be unreasonable to place the dasiputra in a worse position than the gudhaja who is classed amongst heirs and kinsmen.

71. No doubt some of the sons mentioned by Manu as well as Yajnavalkya are not sons at all; but when the family was small and it was found necessary to have as many sons as possible all that came into the net was considered good fish. As was said by the Psalmist “Happy is the man that has his quiver full of them.” In those days when property and person had to be defended against attack from man and beast all the arrows that came into the quiver were considered good and no scrutiny was considered necessary to see whether the arrows really belonged to the man who owned the quiver or were other people’s arrows. The considerations which prevailed in days when the family had to be guarded night and day from enemies did not weigh with the law-givers and jurists when the country became settled and life and property became secure. Though concubinage was allowed among the upper classes and though marriages outside the caste were permitted by custom and recognized by law yet at a later stage and in more settled times marriages out of caste were given up and illegal connections and marriages were discountenanced and discouraged. In Thangam Pillai v. Suppa Pillai (1888) I.L.R. 12 M, 401 it was held that among Sudras an illegitimate son is entitled to maintain a suit for partition of the family property against his father’s legitimate sons. Muthuswami Aiyar, J., and Wilkinson, J., observed after referring to Ranoji v. Kandoji (1885) I.L.R. 8 M. 557 and Rajagopala v. Doraisami, Appeal No. 84 of 1885 (unreported) and Parvathi v. Thirumalai (1887) I.L.R. 10 M. 334:

that the ordinary incident of the status of an illegitimate son was a right to be maintained; that among Sudras a specific share was allotted as a special case on account of the limited importance attached to ceremonial offerings rather than a recognized laxity of marriage tie and that the inferiority of his status in the family was marked by reducing his share and making him a co-heir with the legitimate (laughter and her son. It was nowhere held that he was entitled to the share allotted to him only by the choice of his legitimate brother, and that he could not recover that share by insisting on partition.

72. In Jogendro Bhuputi v. Nityanund Man Singh (1885) I.L.R. 11 C. 702 was held that
in a Sudra family of the Mitakshara school a dasiputra or illegitimate son by a slave girl is a co-parcener with his legitimate brother in the ancestral estate and will take by survivorship.

73. Sir Richard Garth, C.J., and Beverley, J., observe at p. 715:

This case of an adopted son appears to us very analogous to that of an illegitimate son. In both cases there is the same sort of imperfect brotherhood to the legitimate son and in both the superior position of the legitimate son is recognised by his receiving a larger share upon partition.”

“We see no reason, therefore, why an illegitimate son should be in a worse position than an adopted son as regards his succession by survivorship to the legitimate brother. It is obvious that practically speaking in a family composed partly of legitimate and partly of illegitimate sons, the fact of either a legitimate or illegitimate son dying before partition would result in the augmentation of the shares of the survivors upon partition

and they approved of the decision in Sadu v. Baisa and Genu (1878) I.L.R. 4 B. 37 (F.B.). As I have already shown that the mere fact that an adopted son takes a smaller share than an illegitimate son when partition is effected with an aurasa son is no ground for holding that the illegitimate son is equal if not superior to the adopted son. By adoption the adopted boy becomes not merely for practical purposes but for all purposes of inheritance and performance of ceremonies a son born of the wife, who participates in the adoption. The reason why the adopted son is given one-fourth share of the aurasa son is that the law gives the auras a son the whole of the inheritance and inasmuch as the adopted son has left his family and is prevented by law from entering his natural family he is given a share in the adopter’s family. But in the case of the illegitimate son of a Sudra a special rule is enacted and that special rule should not be taken as forming part of the rules of inheritance with regard to legitimate sons. With great respect I am unable to follow the reasoning of the learned Judges. It was only in the case of Sudras that the illegitimate son is given a share. In the case of the regenerate classes he is only entitled to maintenance. The reason of the illegitimate son of a Sudra getting a share may or may not be clear; but the absence of the reason is no ground for holding that his position could be determined by the quantum of the share taken by him in his putative father’s property. This decision of the Calcutta High Court was affirmed by the Privy Council in Jogendro Bhupati Hurrochundra Mahapatra v. Nityanund Man Singh (1890) L.R. 17 I.A. 128 : I.L.R. 18 C. 151 (P.C.). Sir Richard Couch in delivering the judgment of their Lordships observed at page 156:

It appears that, in the course of the argument the question was put to the learned Counsel by the Chief Justice as to what would be the case if, instead of the legitimate son being the one who had died, the illegitimate son had died, and the legitimate son survived, and it was apparently admitted that in such a case the legitimate son would take the share of the illegitimate son by survivorship. If that be so, their Lordships cannot see any reason for holding that the illegitimate son would not take by survivorship in the case of the death of the legitimate son. It cannot be a, different right–in the one case a right by survivorship–and in the other, no right by survivorship.

74. Their Lordships’ approval of the decision in Sadu v. Baiza and Genu (1878) I.L.R. 4 B. 37 (F.B.) seems to have been influenced by the admission of Counsel. No doubt, if there is a right of survivorship between an illegitimate and a legitimate son, the survivor must succeed to the whole of the property. But, the question is, was there a right of survivorship between the legitimate son and the illegitimate son. If they live as members of a joint family the right to survivorship may exist between the two. It is unnecessary to canvass this position as the decision in Sadu v. Baiza and Genu (1878) I.L.R. 4 B. 37 (F.B.) is held to be good law and has been followed in several cases.

75. In Chinnammal v. Varadarajulu (1892) I.L.R. 15 M. 307 it was held that an illegitimate son of a Sudra was entitled to half the share of his putative father and the widows were entitled to the other half. Collins, C.J. and Handley, J., after referring to Jogendro Bhuputi v. Nityanund Man Singh (1885) I.L.R. 11 C 702, observe:

This decision of the Calcutta High Court was no doubt dissented from by this Court in Panvathi v. Thirumalai (1887) I.L.R. 10 M. 334, and to that extent the authority of that Madras case is shaken by the Privy Council decision, but that does not affect the doctrine established by the Madras cases as to the right of the widow to at least half when the deceased has left no legitimate but only an illegitimate son.

76. It does not appear from the facts of this case that the legitimate sons and the illegitimate sons formed members of a joint family. If they were legitimate sons they would have succeeded by right of survivorship to the whole of the property.

77. In Karuppannan Chetti v. Bulokam Chetti (1899) I.L.R. 23 M. 16 it was held that the sons born of a woman continuously kept by their father as a concubine are, in the case of a Sudra’s estate, entitled to equal shares with legitimate sons in a suit for partition, if it is the wish of the father that they should so participate. The learned Judges observe at page 18:

There is no foundation whatever for the suggestion, that the Mitakshara, Fart II, Chapter I, Section 12, Clause (2) refers only to self-acquired property of the father.

78. This does not mean that the illegitimate son acquires by birth a right to the grandfather’s estate. If the father is a separated householder the illegitimate son gets a right to the father’s property.

79. In Rahi and Ors. v. Govind valad Teja (1875) I.L.R. 1 B. 97 it was held that among the Sudra class, illegitimate children, in certain cases at least, do inherit. The learned Judges in a very exhaustive judgment considered the texts bearing upon the point. With due respect I may observe that they made a mistake in thinking that the widow was left out when Vijnaneswara considered the rules as to inheritance. They also seem to think that Putrika putra in the text quoted is the appointed daughter’s son. That evidently was owing to a mistranslation and the correct translation as pointed above is “daughters’ sons” and means “sons of daughters” the word “daughter” being used in the plural form.

80. In Sadu v. Baiza and Genu (1878) I.L.R. 4B. 37 (F.B.), Nanabhai Haridas, J., held that the illegitimate son and the legitimate son after their father’s death formed members of a joint family with rights of survivorship. He observed at page 45:

It must be allowed, I think, that the position of a dasi-putra in a Sudra family does differ in several respects from that of an aurasa putra. The latter may, during his father’s lifetime, enforce a partition of ancestral property, even against the father’s wish. Whether the former can do so has not yet formed the subject-matter of a judicial decision but should the question ever arise, it seems very unlikely that any such claim on his part would be recognized seeing that his right to take a share during his father’s lifetime is expressly made to depend, ‘on the father’s choice’.

81. He goes on to observe that
while admitting, therefore, that the position of a dasi-putra in a Sudra family does differ in important particulars from that of an aurasa putra I am not prepared to allow that the former is not a member of the family at all, nor that he is not a co-parcener and not therefore entitled to succeed by right of survivorship. His legal status as son is unquestionably recognized and accordingly he inherits from his father even before the latter’s widow and if there arc aurasa patras of his father, he succeeds to the father’s estate jointly with them. He is clearly, therefore, their coparcener. That he is their brother, not only in the popular but also the legal acceptation of the term is evident from the Mitakshara, Chapter I, Section 12 (1) (2) where they are spoken of both by Yajnavalkya and Vijnaneswara as his ‘brethren’ or ‘brothers (Bratarah)’.

82. The learned judge is of opinion that the illegitimate son could not enforce a partition during the lifetime of the father. If he cannot enforce partition then he has no right to the property in the father’s lifetime. In other words, he does not acquire by birth an interest in the grandfather’s property. The observation that the term “Bratarah” used by Yajnavalkya and Vijnaneswara imports an equality of status, I regret to observe, does not follow. The illegitimate son born of a continuously kept concubine is no doubt a son in a sense. According to English jurisprudence an illegitimate son or a bastard is not a son. He is nullius filius. But Hindu Law in the case of a Sudra recognizes the sonship of a bastard. The use of the term “bra-tharum” does not elevate him to an equality with the son of the wife or Dharmapatni. That he is a co-parcener with the father in the sense that he has an equal right with him in the ancestral property is denied by the learned Judge. The father’s coparcener takes the inheritance to his exclusion. He can be coparcener only with the legitimate half-brother for they are the sons of the same father and live in union as members of a family. If the father was a co-parcener with his brothers or brothers’ sons the illegitimate son cannot get a share even if he has a legitimate half-brother if the legitimate half-brother does not seek partition from his uncle or cousins. The adopted son’s position is different. He by reason of his adoption becomes a co-parcener with his father and gets a right in the grandfather’s property equal to that of the father and therefore it is not proper to place the illegitimate son on a par with the adopted son. Some observations in Meenakshi v. Muniandi Panikkan (1914) I.L.R. 38 M. 1144 : 27 M.L.J. 353 are relied upon by the respondents. There the point before us did not arise for consideration. The competition was between the legitimate children and the illegitimate children of a prostitute.

83. In Soundararajan v. Arunachalam Chetty (1915) I.L.R. 39 M. 136 : 29 M.L.J. 793 (F.B.) it was held that
the illegitimate son of a Sudra by a dancing woman, who was by profession a prostitute before she came into his keeping but who was kept by him in continuous and exclusive concubinage thereafter, is entitled to get his appropriate share in the joint family property after his father’s death, provided the connection .between his father and mother was not incestuous or adulterous.

84. The competition was not between the legitimate son and the illegitimate son.

85. In Ayiswaryanandaji Saheb v. Sivaji Raja Saheb (1925) I.L.R. 49 M. 116 : 49 M.L.J. 568 it was held that the illegitimate sons of a Raja though they might be his sapindas were not entitled to succeed as heirs to the collaterals of the Raja and consequently they were not entitled to the Stridhanam properties of the Ranis. In that case the illegitimate sons of the late Raja of Tanjore claimed among other things to succeed to the Stridhanam property of the Ranis. Spencer and Kumaraswami Sastri, JJ., disallowed their claim.

86. In Dharmalakshman v. Sakharam Ramji Rao (1919) I.L.R. 44 B. 185 on the death of a Sudra his property was claimed by two persons, one of whom was his divided brother and the other was the illegitimate son of his father. Held, that the former was entitled to succeed since the illegitimate son was under Hindu Law excluded from all collateral succession. The learned Judges followed Ravji valad Mahadu v. Sakudi valad Kaloji (1909) I.L.R. 34 B. 321 and Ramalinga Muppan v. Pavadai Goundan (1901) I.L.R. 25 M. 519 : 11 M.L.J. 399. After discussing the judgment of Sadasiva Aiyar, J., and Kumaraswami Sastri, J., in Subramnia Aiyar v. Rathnavelu Chetty (1917) I.L.R. 41 M. 44 : 33 M.L.J. 224 (F.B.), they observe at page 190:

The current of decisions is strong and uniform and it would require very clear texts to induce any Court to reconsider the point. There is no such express text in favour of allowing the illegitimate son a right to collateral succession. On the contrary, I think that the. decisions are fully justified by the Mitakshara and the Mayukha.

87. Then referring to the text Shah, J., observes:

It seems to me very difficult to interpret the word (brothers) used in the text relating to succession as including illegitimate sons of the father in the case of Sudras and excluding them. in the case of other classes. Neither Vijnaneswara nor Nilkanta in expounding the text has suggested such an interpretation and according to all recognized rules of construction such an interpretation does not appear to me to be correct. The fact that the same word is used in the immediately preceding text specially relating to Sudras and in the commentary thereon with reference to illegitimate sons in relation to the legitimate sons of the same father does not appear to me to afford sufficient basis for interpreting the same word in two different senses when applied to different classes in one and the same text expressly relating to all classes.

88. In Shamu v. Babu Aba (1927) I.L.R. 52 B. 300 the facts were : The property in suit belonged to one J, a Sudra. In 1878, J passed a registered document in favour of his two illegitimate sons, R and S, declaring that they were like legitimate sons with right of heir-ship to his properties. After J’s death, R and S lived together jointly and enjoyed the property in common. In 1917, R made a will, by which a portion of the property was given to his legitimate son and another portion to a sister of his mistress. The plaintiff contended that R obtained the properties of J by survivorship and could not dispose of them by will. It was held that the two brothers, R and S, after J’s death formed a joint Hindu family in regard to the properties in the deed of 1878, which they inherited from J, and R had no power to dispose of them by will. At page 306 the learned Judges observe:

In any case speaking for ourselves, we are not prepared to take the further step in law we are invited by the appellant to take in this appeal, and to hold that, because an illegitimate brother succeeds to the property in preference to the widow of the deceased legitimate brother and in this sense forms a co-parcenary with the latter, therefore a father and his illegitimate sons living with him, such as Jagoji with Raoji and Sakharam in the manner recited in Exhibit 100, arc members of a joint Hindu family in the only legal sense in which the term is used with all its legal implications and consequences; or that Jagoji has such a power in law which he could exercise.

89. The learned Judges negatived the contention that the illegitimate son was a co-parcener with his father. Where two persons, whether they are legitimate sons or illegitimate sons, are members of a co-parcenary, the right of survivorship obtains among them.

90. The case in Ganulal v. Kashiram (1922) 68 I.C. 417 does not help the respondents. It was held that an illegitimate son was not required to produce succession certificate to his father. That would not make him a co-parcener with his father and give him the right of an aurasa son.

91. In Arumili Perrazu v. Subbarayadu (1921) I.L.R. 44 M. 656 : L.R. 48 I.A. 280 : 41 M.L.J. 33 (P.C.). it was held that in the case of Sudras in the Madras Presidency an adopted son on partition of the family properties shares equally with the sons of the adoptive father born after the adoption. Though in the case of the regenerate classes the adopted son gets only one-fourth share, in the case of Sudras the adopted son takes a share equal to that of the afterborn son of the adoptive father. This decision shows that in the case of Sudras the adopted son takes a much larger share than the adopted son of any one of the regenerate classes. It may be taken that this is an exception to the general rule as to the rights of an adopted son. The Privy Council gave effect to a series of decisions for over a hundred years though there is no text either in the Smritis or in the Mitakshara in support of the position that an adopted son of a Sudra is entitled to half the share or a share equal to that of the after-born son of an adoptive father.

92. In Ram Saram, Garain v. Tek Chand Garain (1900) I.L.R. 28 C. 194 it was held that under the Mitakshara school of Hindu Law an illegitimate son of a Sudra, not born of a female slave, cannot claim a share in the family property where his putative father has already parted with his interest in the property during his lifetime; the learned Judges held that an illegitimate son did not acquire an interest in the property of the putative father’s father.

93. In Rajani Math Das v. Nitai Chandra Dey (1920) I.L.R. 48 C. 643 (F.B.) it was held by a Full Bench after an exhaustive examination of the original texts that
the term dasi-putra does not necessarily mean the son of a slave-girl but means the son of a continuously kept concubine.

94. The Calcutta High Court took a different view on the point and this decision brings the law in line with the Madras view.

95. After a careful and anxious consideration of the original texts and the decided cases, I hold that the illegitimate son of a Sudra does not acquire by birth an interest in the property of his putative father’s father and therefore cannot get the father’s share if the putative father dies undivided from his brother or brother’s sons or other collaterals.

96. Mr. Varadachari presses three points in his appeal : the first is that the illegitimate son of a Sudra is not entitled to maintenance. This point is covered by distinct authority and it is unnecessary to discuss it at length. In Vellaiyappa Chetty v. Natarajan (1926) I.L.R. 50 M. 340 : 52 M.L.J. 229, Ananthaya v. Vishnu (1893) I.L.R. 17 M. 160, Subramania Mudaly v. Vahu (1910) I.L.R. 34 M. 68 : 20 M.L.J. 350 and Natarajan v. Muthiah Chetty (1925) 22 L.W. 650 it was laid down that the illegitimate son of a Sudra was entitled to maintenance. Apart from the authorities there is the further fact that the plaintiff’s mother brought a suit, O.S. No. 35 of 1914, on the file of the Subordinate Judge of Kumbakonam for maintenance for herself and the plaintiff. Maintenance was decreed and the decision in appeal is reported in Panchapagesa Odayar v. Kanaka Ammal (1917) 33 M.L.J. 455. The point having been decided between the parties it is difficult to see how the question can be raised now.

97. The next point urged by Mr. Varadachari is that the present suit is barred by reason of the decision in O.S. No. 35 of 1914 on the file of the Subordinate Judge of Kumbakonam which came up on appeal as A.S. No. 121 of 1916. In that case the plaintiff’s mother claimed maintenance for herself and the plaintiff who was a minor at the time and who was impleaded as a plaintiff. In the plaint it was definitely stated in paragraph 7 that
under these circumstances the 1st defendant is bound by law, justice and custom, to pay out of the family properties inclusive of the properties of the said Venkataramana Odayar in his possession, the amounts necessary for maintenance, apparel, etc., until the 2nd plaintiff attains majority or during the life-time of the plaintiffs and until the minor daughters are married, etc.

98. In paragraph 12 the averment is:

As the 2nd defendant is the undivided son of the 1st defendant and therefore entitled (to a share) in the family properties and as the 2nd defendant is bound to maintain the plaintiffs, etc., and to make some arrangement in respect of the suit, he has been added herein as a party.

99. In prayer 1 there is a direction to the defendants to pay plaintiffs in advance in two instalments a year the sum due at the rate mentioned below for maintenance, apparel and other expenses of the plaintiffs and of the said girls until the 2nd plaintiff attains majority and gets his share in the family properties or during the life-time of the plaintiffs, for the expenses of his education, etc., of the 2nd plaintiff and for house rent. The phrase’ “during the life-time of the plaintiff” is relied on as showing that the prayer in the plaint was for maintenance for life of the present plaintiff. When the averments in paragraphs 7 and 12 are to the effect that the 2nd plaintiff is entitled to maintenance till he could bring a suit for possession of the family properties it is not proper to attach any importance to the expression “during the life-time of the plaintiffs” as showing that the prayer was for maintenance of the plaintiff during his natural life. No plea was raised as to the maintenance of the plaintiff after the period of minority and no issue was framed as regards the liability of the defendants to maintain the plaintiff after he attained majority and the learned Judge who decided the case specifically stated in paragraph 28 of his judgment:

In the result there will be a decree for plaintiffs entitling each of them to receive maintenance at Rs. 20 per mensem from defendants 1 and 2 during the period of the natural life of the 1st plaintiff and till 2nd plaintiff attains majority.

100. It is urged that the decision is either. res judicata under Section 11, Civil Procedure Code, or that it is barred by Order 2, Rule 2. Clause (5) of Section 11 is as follows:

Any relief claimed in the plaint which is not expressly granted by the. decree, shall, for the purposes of the section, be deemed to have been refused.

101. Plaints in the mufassal are as a rule prolix and contain a number of unnecessary averments. They should not be construed too strictly and in construing a plaint the whole of the plaint must be considered and not a stray clause here or a stray clause there. When the plaint contains distinct averments that the 2nd defendant is the undivided son of the 1st defendant and therefore entitled to a share in the family properties and the plaintiff is entitled to maintenance till he attains majority or until he is able to sue for a share it would not be right to attach any importance to the phrase in the prayer “during the life-time of the plaintiffs;” The plaint was not understood by the defendants as containing a claim for maintenance during the natural life of the second plaintiff. If that was so a distinct issue would have been raised and it would have been considered. In applying the rule of res judicata as contained in Section 11 the Court should not be guided by stray clauses here and there but should consider the averments in the plaint and the contentions of the parties and the issues raised and the decision thereon. I hold that the present suit is not barred by the principle of res judicata on account of the decision in A.S. No. 121 of 1916.

102. It is next urged that the suit is barred by Order 2, Rule 2, which says that
Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.

103. This rule does not apply to the present case. The mother sued for the maintenance of the plaintiff during his minority and left the right of the present plaintiff to be fought out after he became a major. She asked for maintenance for herself and for her minor son, and daughters and she was not bound to claim on behalf of the plaintiff his share of the family properties, I do not think there is anything in this contention.

104. The next point is as regards the rate of maintenance. The plaintiff claims Rs. 300 a month. The learned Distric Judge awarded one-thirtieth of the family income which comes to Rs. 110. The plaintiff has preferred a Memorandum of Objections against this portion of the decree. The question is what is the proper amount. It is urged for the appellants that, being an illegitimate son, he should be given only just enough to live on. In all cases of maintenance the Court has to see what the position of the plaintiff claiming maintenance is and what the income of the family is. Though the plaintiff may be an illegitimate son yet he is the illegitimate son of a wealthy man who, during his lifetime, maintained him in affluence and treated him as a son. When a man is accustomed to a certain mode of life he should not be made to suffer by reason of something for which he is not responsible. Where the family income is sufficient it is but just that those who have a claim upon it should be given a reasonable amount. The finding of the learn’ ed judge is that the total income of the family is Rs. 43,000 a year. If the plaintiff’s father had divided from his brother before his death the plaintiff would have been entitled to half the father’s share and his. income would have been at. least Rs. 10,000 and odd. The plaintiff, as appears from the evidence, was treated by the father as. if he was going to inherit the property. In other words, he treated him as a son. Taking all the circumstances into consideration I think it would not be too much to award him maintenance at the rate of Rs. 250 a month which will be a charge on the family property. In this view it is unnecessary to consider the cases Gobinda Rani Dasi v. Radha Ballabh Das (1910) 7 I.C. 118, Ananthaya v. Vishnu (1893) I.L.R. 17 M. 160, Subramania. Mudaly v. Valu (1910) I.L.R. 34 M. 68 : 20 M.L.J. 350 and Natarajan v. Muthiah Chetty (1925) 22 L.W. 650. Each case depends upon the circumstances appearing in it and no hard and fast rule can be laid down to govern all cases. The Court should not be niggardly in awarding maintenance where the person claiming maintenance has been accustomed to a certain mode of life and when the amount of maintenance awarded would not be a hardship upon the family which enjoys the whole of the income of the family property.

105. The next point is as regards arrears. The learned Judge has not given arrears of maintenance to the plaintiff and he does not give reasons for his refusal. The plaintiff being entitled to maintenance it is but proper that he should be part the arrears of maintenance. It is not necessary that there should be a distinct demand in cases of maintenance in order to sustain the claim for the arrears. Vide Parwatibai v. Chatru Limbaji (1911) I.L.R. 36 B. 131. It is suggested for the appellants that the plaintiff was given a small amount during his minority and therefore he should be given the arrears only at that rate. It does not appear that the appellants offered to pay the small amount of maintenance that was decreed during the minority after he attained majority. The attitude that they took up was that he was not entitled to anything. That being so there is no reason why the plaintiff should be; given the arrears of maintenance at the rate decreed in A.S. No. 121 of 1916. That rate was fixed only during his minority. After he attained majority different considerations arise and I see no reason to refuse him arrears of maintenance at the rate awarded by this Court.

106. The respondent wants an increase of the amount given for his marriage expenses. I do not see any reason to increase the amount which I consider to be sufficient for his marriage expenses.

107. The plaintiff claims a house to live in. The amount we have awarded is sufficient for his maintenance and as he is not a member of the family he has no right of residence in the family and therefore he is not entitled to be given a house to live in.

108. In the result the appeal is dismissed with costs and the memorandum of objections is allowed to the extent of Rs. 250 a month with arrears. Parties will pay and receive proportionate costs on the memorandum of objections including Advocates’ fee. Two sets of Vakils’ fee under Rule 46 payable to appellant.

Pakenham Walsh, J.

109. The plaintiff in this case, one Gopala Odayar, is the illegitimate son of one Venkataramana Odayar. The latter had a brother, Panchapakesa Odayar, who is dead leaving sons who are the 1st and 2nd defendants. The 2nd defendant has been adopted to another family and so has been struck off. The 3rd defendant is Panchapakesa Odayar’s widow and the 4th and 5th defendants are the widows of Venkataramana Odayar. The plaintiff sued as the illegitimate son of Venkataramana Odayar for a moiety in the family properties and in the alternative to maintenance. The first claim was disallowed in the Lower Court and he was granted maintenance at the rate of Rs. 110 a month with an allowance of Rs. 750 towards marriage expenses. Defendants 1 and 3 have appealed against the decree alleging in the main two legal grounds for holding that a decree for maintenance cannot be made in this case and further objecting to the quantum of maintenance allowed. A memorandum of cross-objections has been put in by the plaintiff against the decision of the Lower Court holding that he is not entitled to a share in the family properties and also against the quantum of maintenance awarded. The cross-memorandum of objections as involving the most important point was argued first.

110. It was admitted that as the law stands at present the ruling of the Lower Court that the plaintiff is not entitled to a share in the joint family property is correct but the plaintiff has asked us to make a reference to a Full Bench as to whether the decisions in Krishnayyan v. Muttusami (1883) I.L.R. 7 M. 407, Ranoji V. Kandoji (1885) I.L.R. 8 M. 557, Parvathi v. Thirumalai (1887) I.L.R. 10 M. 334, Karuppa Goundan v. Kumarasami Gaundan (1901) I.L.R. 25 M. 429, Gopalasami Chetti v. Arunachalam Chatti (1903) I.L.R. 27 M. 32, Visvanathaswamy Naicker v. Kamu Ammal (1912) 24 M.L.J. 271 and Nagarathnammal v. Chinnu Sah (1927)53 M.L.J. 861 were correct. It is urged that doubt has been thrown on the correctness of these decisions by the decisions in Thongam Pillai v. Suppa Pillai (1888) I.L.R. 12 M. 401, Chinnammal v. Varadarajulu (1892) I.L.R. 15 M. 307, Karuppannan Chetti v. Bulokam Chetti (1899) I.L.R. 23 M. 6, Ramalinga Muppan v. Pavadai Goundan (1901) I.L.R. 25 M. 519 : 11 M.L.J. 399, Subramania Aiyar v. Rathnavelu Chetty (1917) I.L.R. 41 M. 44 : 33 M.L.J. 224 (F.B.) and certain remarks in Soundararajan v. Arunachalam Chetti (1915) I.L.R. 39 M. 136 at 152 : 29 M.L.J. 793 (F.B.) as well as in some other cases quoted. It may be stated at the outset that not a single case has been decided on the point in question in favour of the plaintiff’s contention, but the argument is that if other decisions are pressed to their logical conclusions and if certain remarks, which are really obiter, in those cases be taken into account, there is sufficient room for doubting whether the uniform course of decisions has been correct and whether a reference should not be made. It will be seen therefore that the plaintiff-respondent’s learned advocate has got to make out a very strong case before he can show that a reference should be made questioning a course of decisions uniform for forty years, and especially is this so in a matter of succession. Their Lordships of the Privy Council have remarked:

To alter the law of succession as established by a uniform course of decisions, or even by the dicta of received Treatises, by some novel interpretations of the vague and often conflicting texts of the Hindu Commentators, would be most dangerous, inasmuch as it would unsettle existing titles”–vide Thakoorain Sahib v. Mohun Lall (1867) 11 M.I.A. 386 at 403.

111. In this case, there is also the objection that if the view contended for by the plaintiff is correct, we should be introducing into Southern India or at least into some parts of it a novelty in the shape of a co-parcenary family some of whose members are females.

112. It may be as well at the outset to state the law as it stands at present by the decided cases. The claim of a Sudra’s illegitimate son to succeed to his putative father’s estate depends upon a text of Yajnavalkya which also appears in a shorter form in Manu. The text, which, as quoted by Vijnaneswara, is really the last half of sloka No. 133 and the whole of sloka No. 134 runs as follows:

A son begotten on a dasi by a Sudra becomes even the partaker of a share by (the father’s) choice

After the death of the father, the brothers should make him a half-sharer. An illegitimate son of a Sudra, if brotherless, can take the whole, unless there is a son to (any of) the daughters (of the Sudra) (pp. 219 and 220 of Mandlik’s work).

113. I have given this translation of Mandlik rather than that which is found in Setlur’s work, because we find in the latteir “in default of daughter’s sons” with the apostrophe in the singular, whereas the word “Duhi-trunam” is plural in the original text. This difference between the genitive singular and the genitive plural is of considerable importance because of a certain argument that has been raised on the supposition that it is a genitive singular with which I shall deal later. Now all the decisions have held that the property to which a Sudra’s illegitimate son can succeed under this text is the property of a separated father and that he is not a co-parcener with his father’s undivided brothers, nor can he succeed to his father’s collaterals. This has been the uniform course of the Madras decisions and those of other Indian High Courts and the learned Judges have steadily refused to extend the rights of a Sudra’s illegitimate son so as to make him either a co-parcener with his father’s undivided brothers or a successor to his father’s collaterals. In the Calcutta High Court, it was held during a long series of cases that as a female slave, “dasi,” was extinct in these days, a “dasiputra” could not exist and that the text for practical purposes had ceased to be operative at all, but the decision in Rajani Nath Das v. Nitai Chandra Dey (1920) I.L.R. 48 C. 643 (F.B.) overruled this catena of decisions and brought the Calcutta view into uniformity with that held in Madras. In Jogendro Bhupati Hurrochandra Makapatra v. Nityanand Man Singh (1890) L.R. 17 I.A. 128 : I.L.R. 18 C. 151 (P.C), which went up to the Privy Council, it was held that under the Mitakshara, among Sudras, where a father left a son by a wedded wife, and an illegitimate son, the ordinary rule of survivorship incidental to a family co-parcenary applied, and the illegitimate son, having survived the legitimate, was held entitled by survivorship to succeed to the family estate on the death of his brother without male issue. This was an impartible estate but the rules applicable were the ordinary rules pertaining to a Sudra family under the Mitakshara. In Than gam Pillai v. Suppa Pillai (1888) I.L.R. 12 M. 401 it was laid down that an illegitimate son of a Sudra could maintain a partition suit against his legitimate brother. In Chinnammal v. Varadrajulu (1892) I.L.R. 15 M. 307 it was held that an illegitimate son and his father’s widow would divide the family property equally in default of legitimate sons. The same principle was affirmed in Karuppannan Chetti v. Bulokam Chetti (1899) I.L.R. 23 M. 16 as regards his dividing equally with the legitimate sons. In Ramalinga Muppan v. Pavadai Goundan (1901) I.L.R. 25 M. 519 : 11 M.L.J. 399 it was held that the legitimate son of a Sudra’s illegitimate son was entitled to take the share in the property which his father would have taken had he survived. In Subramania Aiyar v. Rathnavelu Chetti (1917) I.L.R. 41 M. 44 : 33 M.L.J. 224 (F.B ) it was held that where an illegitimate son, who, if he had survived his putative father, would have inherited his estate either alone or along with others, dies leaving no issue, widow or mother, his putative father is entitled to succeed as his heir. This is as far as the Courts have gone.

114. But as the matter is of considerable importance, we permitted it to be argued and this has been very fully and ably done by both sides. The main arguments in plaintiff’s favour may be summed up thus : that the illegitimate son of a Sudra stands on a level with the other sons except as regards the amount of property to which he is entitled, that his right to represent his father cannot be prevented by the survivorship of his father’s undivided brothers, that the text of Yajnavalkya in the Mitakshara occurs in Chapter I which deals with unobstructed or apratibandha inheritance, that hence the property cannot be confined to the property of a separated householder and that the verse in the Mitakshara really represents a cutting down and not an enlargement of the rights of a Sudra’s illegitimate son compared with what he had been entitled to previously. The argument founded on the order of the Mitakshara is evidently not new and has been urged before but has not found acceptance. However, as it has not been set out in much detail in previous judgments and as it forms the principal weapon in the armoury of the plaintiff, it may be useful to give it in some detail here. It is important to note in the first place that Vijnaneswara does not state that he is first of all going to deal with unobstructed and then with obstructed inheritance. Chapters, sections and headings of course do not occur in the original. The first placitum runs thus:

Evidence, with reference to its classification into human and divine, has been explained; the partition of heritage is now explained by the Image of Holiness” (i.e., Yajnavalkya).

115. Placitum 2 says:

Here the term heritage (daya) signifies that wealth which becomes the property of another, solely by reason of (his) relation to the owner,

and placitum 3:

It is of two sorts : unobstructed (Apratibandha) or liable to obstruction (Sapratibandha)

which Vijnaneswara then proceeds to define. Placitum 4 defines “Partition” (Vibhaga). Then follows a consideration of the texts from Yajnavalkya, the last of which in the Chapter is the one and a half slokas dealing with a Sudra’s illegitimate son. Chapter II begins : placitum No. 1
That sons, principal and secondary, take the heritage, has been shown. The order of succession among all on failure of them, is next declared.

116. It is quite true that some commentators, and noticeably Sarasvati Vilasa, in commenting on Yajnavalkya, regard this verse about the Sudra’s illegitimate son as ending the discussion on partition of unobstructed heritage. Vide paragraph 398. of Sarasvati Vilasa at page 163 of Setlur’s work on Inheritance. But it appears to me, as argued for the appellants, that the divisions might as easily be regarded as (1) Partition by sons during their father’s life-time; (2) Partition by sons after his death. Then comes in Chapter II (3) Partition of the family property where there are no sons on the death of the father. In Setlur’s Sanskrit edition of the Mitakshara with Visvarupa and Subhodhini Balambhatti, Chap. I, is headed “Atha Dayavibhaga Prakaranam”. Here begins the explanation about the partition of wealth, and this section of the work is evidently one primarily on partition. Vijnaneswara in Section 1, placitum 6 says distinctly that he is going to deal with partition, the time, the manner and the persons, when, in which, and by whom it may be made. These three points, he says, he will explain in the commentaries on the stanzas on these subjects respectively and the fourth matter as to what properties are to be divided, he proposes to deduce from other sources. It is also to be noted that Vijnaneswara was not free to follow his own method, even if he had one in mind, because he had to take the texts of Yajnavalkya in their order. It is at least quite clear (as pointed out for the appellants) looking to placitum 3, that he included self-acquired property in the class of unobstructed inheritance of apratibandha daya because he states that the existence of a son and the existence of the owner are impediments to the succession.

117. So it may be granted without any detriment to the view of the case-law which is sought to be controverted that Chapter I does deal with unobstructed inheritance and Chapter II with obstructed inheritance, but I cannot accept the further contention sought to be forced upon us that all the property dealt with in Chapter I is the father’s heritable property and that it is not permissible to confine any property mentioned in this chapter within any narrower limit. This is a position which clearly cannot be sustained. In the very first text dealt with in Section II which allows the father to give equal or unequal shares to his sons as he pleases, Vijnaneswara finds himself obliged to restrict this to the father’s self-acquired property saying that in ancestral property the father has no such right. He says in Placitum 6,
this unequal distribution is allowed in respect of his self-acquired property. But, if the wealth descended to him from his father, an unequal partition at his pleasure is not proper; for equal ownership will be declared.

118. It was sought to meet this by arguing and quite probably correctly, that Yajnavalkya was really in this sloka referring to ancestral property but that conditions having changed and the policy of the Mitakshara being as is well known to cut down the “patria potestas”, the author had to place this limited construction upon Yajnavalkya’s text, and it is therefore argued that Yajnavalkya was still keeping in mind the principle that he was dealing with ancestral property in this part of his work. But the next section No. III is absolutely fatal to this contention. Here the text considered is “Let sons divide equally both the effects and the debts, after their two parents,” and the sloka goes on to say
the daughters share the residue of their mother’s property after payment of her debts.

119. Here Yajnavalkya deals with the mother’s property which is not ancestral at all. If the sons were to succeed to it. it might have been urged that it might have been incidentally introduced in talking of sons succeeding to their father’s ancestral estate, but as Yajnavalkya was going to lay down that the daughters succeed to their mother’s property, there was absolutely no need for him to mention the mother’s property or to deal with the case of partition after the death of both parents if he was confining himself to ancestral property. Section IV deals with self-acquired property of a co-parcener, which is again obviously not ancestral property nor even the self-acquired property of the father. These texts make it perfectly clear to my mind at least that the principle which is guiding Yajnavalkya throughout is the discussion of partition and not the distinction between ancestral and separate property. Section VII also which considers the text “Of heirs dividing after the death of the father, let the mother also take an equal share” must refer to the case of a father who dies separate. With this section standing in Chapter I where it does, it is impossible to contend that Section XII cannot refer to the property of a separated father and it is interesting to note that the word “haret” to which I shall refer later, is used in both sections, in Section VII as regards the mother and in Section XII as regards the illegitimate son. The contention contra urged on behalf of the appellants that in each of these texts we are to determine the nature of the property by the nature of the text itself is exactly that which has been followed by Vijnaneswara himself as is seen from Section II mentioned above. That is the principle on which the Courts have apparently dealt with the text in question. Finding in that text that daughter’s sons, which must mean “as far as daughters’ sons” (since widows and daughters had already been dealt with by Yajnavalkya) are to share the property with the! illegitimate son who has no legitimate brothers, they have deduced that the property spoken of must be the property of a separated householder. It is in this connection that the genitive plural “duhitrunam” in the fext is of importance. Suggestions have been made that the text originally referred to an “appointed daughter’s” sons and that this having been lost sight of, widows and daughters were afterwards introduced even in preference to a daughter’s sons. There can be only one appointed daughter and therefore it seems clear that the text did not refer to the sons of an appointed daughter. This renders it unnecessary to consider passages from Muller’s “Sacred Books of the East” which have been quoted to us to show that in reading the texts of Manu we may introduce the word “appointed” before the word “daughter” where the context required it. In fact, this genitive plural “duhitrunam” deals a fatal blow to the plaintiff’s contention that the illegitimate son of a Sudra ranks as a real son inheriting to his father exactly like the other sons but merely taking a smaller share of the property. I am of opinion that we must construe the property referred to in the text in question by the text itself, which is a special provision and if that is done, the inclusion of daughters’ sons as heirs sharing the estate of the illegitimate son in default, of legitimate sons would at once suggest that the property referred to is the property of a separated householder.

120. The next contention is that this illegitimate son is equal to a legitimate son in every way except as regards the extent of the property which he takes. The learned Advocate for the plaintiff practically admitted that he has not one important right of a legitimate son, namely, that of claiming a partition with his father. But it was argued that the lack of this right does not exclude recognition of his right in his father’s property by birth and in this connection Section V, placitum 10 of Vijna-neswara was quoted where he states:

Although he (that is, the grandson) have right by birth in his father’s and in his grandfather’s property, still, since he is dependent on his father in regard to the paternal estate, and since the father has a -predominant interest as it was acquired by himself, the son must acquiesce in the father’s disposal of his self-acquired property.

121. The emphatic opinion of Medhatithi quoted in Rajani Naih Das v. Nitai Chandra Dey (1920) I.L.R. 48 C. 643 at 688 (F.B.),the opinion of Sarvajna Narayan’s commentary on Manu quoted on page 689 of the same judgment, the commentary of Balambhatta quoted in Subramania Aiyar v. Rathnavelu Chetty (1917) I.L.R. 41 M. 44 at 65 : 33 M.L.J. 224 (F.B.) and the verse of Manu “Neither brothers, nor parents, but sons, are heirs to the estate of the father”–quoted in Section 11, placitum 33 by Vijnaneswara–are relied on to show the high standing of the illegitimate son of a Sudra. There is no doubt that Medhatithi’s expression is very emphatic and with due respect 1 agree with the contention of the learned Advocate for the plaintiff that this emphasis is not sufficiently brought out in the translation of the passage on page 688 of the report which runs:

This is the son begotten by a Sudra on a woman though not married to him (anoorhaya) or appointed (for raising issue) (aniyuktaya).

and that the emphatic (Suta Eva) might be better brought out if the sentence were translated thus : “One begotten, etc.–is verily a son”. It is also true that Vijnaneswara himself knew of Medhatithi’s commentary on Manu, for he mentions him in Section 7, placitum 13. Still Vijnaneswara and not Medhatithi is the authority we have to follow and one cannot conclude that because he mentions Medhatithi he agreed with him on the point. Balambhatta no doubt infers from the word “hareth” that the illegitimate son takes like a legitimate son, a point which has been mentioned by Kumaraswami Sastri, J. (now Sir Kumaraswami Sastri, J.) in Subramania Aiyar v. Ratknavelu Chetty (1917) I.L.R. 41 M. 44 : 33 M.L.J. 224 (F.B.), whose judgment is one of the main reasons urged on us for making a reference. But Balambhatta gives the illegitimate son of a Sudra preference over even the adopted son, who, he says, is only a dasa. Balambhatta is not an authority in this presidency and he goes to such lengths in favour of women that it has been even thought that his commentary was written or at-least inspired by a woman. (For remarks on Balambhatta, see Bhagwan v. Warubai (1908) I.L.R. 32 B. 300 at 304 to 311.) As regards the use of the word ”haret” in the text, it has been pointed out to us that the same word occurs in verse 123 which refers to the mother taking a share when the sons divide after the death of their father. Here clearly the mother does not take by right of birth, so that Balambhatta’s argument founded on the use of the word “haret”; fails. Narayana’s commentary is of course very strongly in favour of the illegitimate son under this verse for he says “Directed by the father, he takes a share, but not that not so directed he takes only maintenance.” Vide Rajani Nath Das v. Nitai Chandra Dey (1920) I.L.R. 48 C 643 at 689 (F.B.). I find myself unable to agree with the translation which the appellants’ learned advocate suggests, namely, that we should put a fullstog at the end of and read it “directed by his father he takes a share but not at all if not directed.” No authority has been quoted for such a translation and it leaves the next words “(let him take maintenance)” in the air. However, Narayana is also not an authority in the Madras Presidency. As regards the text from Manu in Section 11, placitum 33 of Setlur’s work quoted above, it has been strongly urged before us for the respondent that as this text in Manu, Chap. IX, verse 185, follows the text regarding the Sudra’s illegitimate son in verse 179, it was evidently intended to include him as one of the sons referred to who took in preference to brothers. We are not in the position of basing the law on Manu nor even on Yajna-valkya but only on Yajnavalkya as expounded by Vijnaneswara. The text in Manu runs
a son who is (begotten) by a Sudra on a female slave or on the female slave of his slave may, if permitted (by his father), take a share (of the inheritance) : thus the law is settled” (Midler’s Sacred Books of the East, Vol. XXV, p. 364).

122. It is to be noted that there is nothing said in Manu in verse 179 as to whose permission is required for the Sudra’s illegitimate son to take a share. Some commentators have held that it is the permission of the brothers and some even that it is that of the Sovereign, to whom the estate would otherwise escheat, that is required. The latter is the opinion of Vishwarupa. (Vide his commentary on Yajnavalkya, Book II, verses 133 and 134, quoted on page 692 in Rajani Nath Das v. Nitai Chandra Dey (1920) I.L.R. 48 C. 643 (F.B.)). There is this basic difficulty in the claim put forward for the illegitimate son ranking equally with legitimate sons, either on the text of Manu or on of Yajnavalkya. He is not one of the twelve sons recognized in Manu. Yajnavalkya’s list of twelve sons does not, it is true, coincide with that of Manu. He leaves out the “parasava” (living corpse) the son whom a Brahmana begets through lust on a Sudra female, and makes up the number by adding the “putrika” son whom Manu provides for separately; but he also does not include the Sudra’s illegitimate son in the list of twelve sons. The learned advocate for the plaintiff-respondent had to admit that a Sudra’s illegitimate son could not be found referred to in any section until we come to this Section 12. Further, while in Manu the principal and subsidiary sons take in default of the son of higher rank, the Sudra’s illegitimate son is in a different category altogether. He takes his share or half-share (whichever ft may be) not in succession to any class of sons but apparently with them. So the Sudra’s illegitimate son cannot be said to be in Manu at all in the same category as the twelve sons just mentioned before by him. Any argument attempted to be founded upon the order in which he appears in Manu clearly disappears when we come to Yajnavalkya. As mentioned above, the verse in Section 12 is really the second half of sloka 133 added to 134. The first part of sloka 133 is “this law is propounded by me in regard to sons equal by class.” ¦ The differences in sons due to the caste of the wives having vanished in Yajnavalkya, the classification was one by legal right, so that the claim of the sons equal on this basis ends naturally, as Vijna-neswara makes it do, in the middle of sloka 133 and it cannot therefore be argued that a Sudra’s illegitimate son was meant to be put in the same class. The whole classification of sons in Yajnavalkya proceeds on a different basis from that in Manu. Yajnavalkya confines his list so as to apply to persons of equal class and his text No. 133 would not have been applicable if he had taken Manu’s list since it would not have applied to the last of the twelve sons in Manu, that born by a Sudra wife to a Brahman. Yajnavalkya is concerned with providing for sons of married wives. In Manu, the son of a Brahman by a Sudra woman is one of the twelve sons though he gets nothing at all, while according to Yajnavalkya he would get maintenance. In the Mitakshara, the Sudra’s illegitimate son does not inherit in default of an aurasa son, but in certain contingencies along with him. In the cases of the twelve other sons mentioned in the Mitakshara, there is no question of their sharing with the widow, daughter or daughters’ sons. So it is clear that the Sudra’s illegitimate son mentioned in Section 12 stands on a footing quite different from that of the twelve sons previously mentioned. In the text under consideration we find therefore several featunes which go strongly to support the view that it is a special text introducing a special rule and that the illegitimate son does not stand on the same footing nor is the property referred to the same as in the case of legitimate sons. The father has evidently a choice at least as regards whether he will give him more than half the share, a position which under the Mitakshara the father cannot occupy except with reference to his separate property. Then it is to be noted that it is said that the brother should make him a half-sharer after the father’s death, not that he should take as a half-sharer, and lastly, we have the inclusion of daughters’ sons with whom he is to share the property.

123. I next come to the argument sought to be founded on representation. It has been strongly pressed that the only logical conclusion from the decision in Subramania Aiyar v. Rathnavelu Chetti (1917) I.L.R. 41 M. 44 : 33 M.L.J. 224 (F.B), that the putative father succeeds to his illegitimate son is that the illegitimate son represents his father and that he must therefore represent him for all purposes and for all his property. It has been frequently observed that the scheme of Hindu Law is not a logical one. Their Lordships of the Privy Council in considering the text in question in Jogendro Bhupati Hurrockundra Mahapatra v. Nityanund Man Singh (1890) L.R. 17 I.A. 128 : I.L.R. 18 C. 151 at 155 (P.C.) say emphatically “it cannot be said that at his birth he (i.e., the illegitimate son) acquires any right to share in the estate in the same way as a legitimate son would do.” We are told that this is an obiter dictum and was not necessary for the determination of that particular case. But it is a dictum of very great weight being founded on a consideration of the text in question. It has been pointed out to us by the learned Advocate for the appellants that the law of representation as considered by Vijna-neswara in Section 5 is clearly with reference to the grandsons’ right to a share in the grandfather’s property. They are distinctly stated in placitum 2 to have by birth a right in their grandfather’s property. Their father’s position if he dies is merely taken to show the quantum to which his sons will be entitled and it is to be noted that the word used in the commentary is the adjective Pitriyam and not the genitive (of the father), and so also in the text of Yajnavalkya itself the word is “according to fathers,” and so translated both by Colebrooke and Mandlik. It is the distribution of the grandfather’s property and not the right to it that is adjusted through the respective fathers, so that the property is not contemplated as descending from the father. The decisions have uniformly held that the co-parcenary of the illegitimate Sudra son with his legitimate brothers is caused only by the death of the father and it has never been held that the illegitimate son is a coparcener with his father still less a coparcener with his father’s coparceners. In Dharma Lakshman v. Sakharam Ramji Rao (1919) I.L.R. 44 B. 185, in which the case most strongly pressed upon us Subramania Aiyar v. Rathnavelu Chetti (1917) I.L.R. 41 M. 44 : 33 M.L.J. 224 (F.B), was considered, a very decided opinion was expressed against a coparcenary between the putative father and his illegitimate son. It has of course been strongly urged that Vijnaneswara himself expressly bases partition on a previous right and that a coparcenary cannot come into existence merely by a person’s death. As stated above, the view which has been taken by the Courts of the position arising from this text is that the coparcenary does begin in this particular instance with the father’s death and depends on it though in a partition before the putative father’s death the illegitimate son share the separate estate of his father with his legitimate brothers and that it is the existence of the coparcenary which gives the subsequent right to partition between the legitimate and illegitimate sons and to a right of survivorship between them. The result may be illogical and an anomaly to the rest of the Hindu law but that is no reason to ask us to make a reference suggesting that all these decisions are incorrect and, as I pointed out above, the view contended for by the plaintiff would make a much more revolutionary change in the Hindu joint family as understood at least over the greater part of this Presidency by introducing females into the coparcenary. Ram Saran Garain v. Tek Chand Garain (1900) I.L.R. 28 C. 194 also lays down emphatically that the illegitimate son of a Sudra does not occupy the same position as a son lawfully begotten and does not acquire at his birth a joint interest, with his father in the ancestral property.

124. I may finally deal with the argument that on account of the opinions expressed by certain modern commentators and judges sufficient doubt has been thrown upon the established law to justify a reference. Siromani, at page 408, of the old edition of 1885 is cited but it is to be noticed that when this edition was published, the decision in Jogendro Bhupati Hurrochundra Mahapatra v. Nityanund Man Singh (1890) L.R. 17 I.A. 128 : I.L.R. 18 C. 151 (P.C.) had not been given and that in the 2nd edition of 1893 at page 329 he says that the Privy Council decision clears up the difficulties by laying down that the father must be divided. Next West and Buhler (3rd edition, page 72) are cited. Here the heading appears to be in contradiction with the text below. The heading speaks of an undivided Sudra while the commentary says the passage in the Mitakshara can only refer to cases where the father is separated. I now come to the observations in Meenakshi V. Muniandi Panik-kan (1914) I.L.R. 38 M. 1144 at 1149 : 27 M.L.J. 353, Soundararajan V. Arunachalam Chetty (1915) I.L.R. 39 M. 136 at 152 and 153 : 29 M.L.J. 793 (F.B) and Subramania Aiyar v. Rathnavelu Chetty (1917) I.L.R. 41 M. 44 at 62 : 33 M.L.J. 224 (F.B.) etc., which it is urged have thrown a doubt on the law as hitherto laid down. In Meenakshi v. Muni-dndi Panikkan (1914) I.L.R. 38 M. 1144 at 1149 : 27 M.L.J. 353 there is only a suggestion of Seshagiri Aiyar, J., that it is open to question whether having regard to the advancement of the class known as Sudras, the law, which owes its conception to the ideas prevalent when the twice-born classes were allowed to take Sudra women as wives, should still be allowed to prevail. In Soundararajan v. Arunachalam Chetty (1915) I.L.R. 39 M. 136 at 152 : 29 M.L.J. 793 (F.B.), Sadasiva Aiyar, J., expresses the view that the son of a Sudra male born of a permanent female concubine of the Sudra caste is strictly speaking not an illegitimate but a legitimate (aurasa) son born of Gandharva marriage. But it has been pointed out to us for the appellant that Vijnaneswara, Section 11, placitum 2 defines an aurasa son as one born of a legal wife (Dharmapatni) and that “Dharmapatni” never means a concubine. It has also been argued for the appellants that a Gandharva marriage is not a simple concubinage but an agreement of the parties to live together as husband and wife. There is no need to express any opinion on the latter point, but the text in Manu, Chap. III, verse 32, does not appear to me to support this view of a Gandharva marriage, for it says:

The voluntary union of a maiden and her lover one must know (to be) the Gandharva rite, which springs from desire and has sexual intercourse for its purpose.

125. Coming to Subramania Aiyar v. Rathnavelu Chetty (1917) I.L.R. 41 M. 44 at 62 : 33 M.L.J. 224 (F.B.), the same Judge in his order of reference remarks at page 53:

That, in ancient Hindu Law, he (i-e,, a Sudra’s illegitimate son) came in as one of the twelve classes of sons, there can, in my opinion, be no doubt.

This matter has been fully discussed above and I think at least it can be said that it is open to doubt whether a Sudra’s illegitimate son comes into either of the list of Manu’s twelve sons or the list of twelve sons of Yajnavalkya. At page 55, the same learned Judge expresses the opinion that an aurasa son corresponds to the English expression “son born of the loins” and that there are expressions in sacred writings which show that an illegitimate son can be called the aurasa son of the putative father. This opinion has been dealt with above. It may be noted that the question before the Court in that case was whether the father referred to in Chapter II was the natural father or the putative father. Next, we come to the remarks of Sir Kumaraswami Sastri, J., in Subramania Aiyar v. Rathnavelu Chetty (1917) I.L.R. 41 M. 44 at 62 : 33 M.L.J. 224 (F.B.). The best commentary on this is the same learned Judge’s remarks in a later case in Ayiswaryandaji Saheb v. Sivaji Raja Saheb (1925) I.L.R. 49 M. 116 at 154 : 49 M.L.J. 568. The latter case was a question of the succession by an illegitimate son to his father’s collaterals, and Sir Kumaraswami Sastri, J., states:

Were the matter res integra, I am disposed to hold that, in the case of Sudras, an illegitimate son is in the same position as a legitimate son except that he gets a lesser share. The fact that an illegitimate son gets a lesser share would not by itself create a bar to collateral succession any more than the fact that an adopted son who exists along with a natural son born subsequently and who gets a lesser share would be barred. But there is a long catena of cases beginning with Nissar Murtojah v. Kowar Dhunwunt Roy, [(1863) Marshall’s Reports, 609], which decide that an illegitimate son has no right to collateral succession. J have in Subramania Aivar v. Rathnavelu Chetti (1917) I.L.R. 41 M. 44 : 33 M.L.J. 224 (F.B.) referred to all the authorities and dealt fully with the illegitimate son’s rights and the position of an illegitimate son with regard to collateral succession. The right was negatived in….

and then he quotes eight cases and finally feels that the weight of authority must prevail. When this is the view of Sir Kumaraswami Sastri, J., himself, on the matter as to whether his opinions expressed in Subramania Aiyar v. Rathnavelu Chetty (1917) I.L.R. 41 M. 44 : 33 M.L.J. 224 (F.B.) threw so much doubt on the accepted law that we should make a reference, it is hardly necessary that we should differ from him. Two points may, however, be mentioned. On p. 65, he founds an argument on Balambhatta ‘s view of the word “haret” in the text. This has been dealt with above as pointed out, the very same word occurs in Section 7 referring to the widow. With regard to the argument that the illegitimate son had greater rights before, which were curtailed, there is a great deal in my opinion to be said for the opposite point of view which has been held by many learned Judges. Verse 163 of Manu in Chapter IX says:

The legitimate son of the body alone (shall be) the owner of the paternal estate; but, in order to avoid harshness, let him allow a maintenance to the rest.

126. That would appear to apply to all castes with the exception of the Sudra’s illegitimate son and to make all other illegitimate sons entitled only to maintenance. In fact there seems to be no distinct text earlier than Yajnavalkya giving the illegitimate son a right to share with his legitimate brothers. On page 70 Sir Kumaraswami Sastri, J., says:

I am of opinion that the illegitimate son of a Sudra is one of the classes of sons recognized by Hindu Law and allowed to a Sudra in addition to the twelve classes of sons enumerated as common to all the four castes.

127. Thus Sir Kumaraswami Sastri, J., holds that he does not fall within the twelve classes of sons and thereby negatives the view of Sadasiva Aiyar, J., quoted above. I am clearly of opinion that no sufficient cause has been made out for upsetting the long catena of decisions especially in a matter of succession and I agree with my learned brother in holding that no reference is necessary.

128. Turning now to the appeal, two legal points were raised, the first of which, whether an illegitimate son has a right to claim maintenance from property other than his father’s property, though not given up, was not pressed as the matter is now before the Privy Council. The second legal contention was that the claim for maintenance cannot be brought in this suit as it was brought and refused in a prior suit, O.S. No. 35 of 1914, and is therefore barred under Section 11, explanation 5, Civil Procedure Code. The present plaintiff’s mother no doubt in that suit made the present plaintiff, plaintiff eo nomine. That plaint for maintenance was laid on the basis that the present plaintiff was entitled to a share in the family properties and the first relief asked for was as follows:

To pass a decree directing the defendants to pay plaintiffs in advance in two instalments a year the sum due at the rate mentioned below for the maintenance, apparel and other expenses of the plaintiffs and of the said girls until the 2nd plaintiff attains majority and gets his share in the family properties or during the life-time of the plaintiffs, for the expenses of education, etc, of the 2nd plaintiff and for house-rent.

129. The Court gave the 2nd plaintiff maintenance until he attained majority. No reason was assigned in the judgment for granting him maintenance only until his majority and the matter was not put in issue or discussed. The decision on this matter was not appealed against and is perfectly clear why the plaintiffs in that case would not appeal against the order limiting maintenance to the minority of the 2nd plaintiff, because that would be entirely inconsistent with the case set up that the plaintiff was entitled to a share in the family properties. The learned Judge on this matter of res judicata in the present case says:

The plaint in the previous suit read as a whole makes it perfectly clear that the claim made therein by the plaintiff’s mother on behalf and as the next friend of the plaintiff was only for the period of the plaintiff’s minority and was not intended to relate to any subsequent period. This is made out by the fact that the first and primary relief asked for therein was to recover maintenance until the plaintiff should attain majority. No doubt it was prayed to be granted for life in the alternative, but this must obviously have been intended to restrict the first and primary prayer and not to extend it. In other words, the suit was for the maintenance of the plaintiff during his minority or, that is, if he did not continue to live during the whole of that period, for his life.

130. In spite of the objection that there was no need to mention anything about the 2nd plaintiff dying before he attained majority since his maintenance must automatically cease if he did so, it cannot, I think, be said that this is an absolutely impossible explanation. The 1st plaintiff, the mother in that suit, was entitled to ask for maintenance for herself during her life-time. There is no question that the learned Judge is correct in saying that the 2nd plaintiff’s claim to maintenance was based on his owning a share in the estate and it would therefore naturally cease when he attained majority when he would either assert his right or sue for it. In the mofussil, plaints are often badly drafted and both my learned brother and myself are of opinion that it would be very hard to non-suit the plaintiff in the matter of maintenance owing to the unfortunate use of the plural “plaintiffs” in the plaint prayer. The plaint prayer no doubt should have run in some such way as this : “till the 2nd plaintiff attains majority and gets his share in the family properties for the expenses of education, etc., of the 2nd plaintiff and for house rent, and to the 1st plaintiff during her life-time,” and I have no doubt that this is what was meant. I would therefore find for the plaintiff on this point. The learned Subordinate Judge’s view at page 39, line 35:

as the actual right to recover maintenance really accrues day by day, a suit for maintenance relating to a certain period cannot legally bar a subsequent suit for it in respect of a period subsequent both to the date of the first suit and the period for which maintenance was claimed therein

would not appear to be correct. It is a change of circumstances which gives rise to a fresh cause of action as regards the amount of maintenance, but the claim for maintenance itself arises once and for all. In the present suit as the claim for maintenance is only an alternative to the claim for partition, it will be sustainable if we read the prayer for maintenance in the first suit in the light in which it was evidently intended and there is no bar by res judicata.

131. As regards the quantum of maintenance, the estate appears to consist of a thousand acres and the income appears to be about Rs. 43,000. It was no doubt held in Gopalasami Chetti v. Arunachalam Chetti (1903) I.L.R. 27 M. 32 at 36 that
in determining the rate of maintenance, an illegitimate member of a family who is not entitled to inherit can be allowed only a compassionate rate of maintenance,

though it was also said:

In fixing, however, the compassionate rule of maintenance regard no doubt should 1)0 had to the interest of his deceased father in the joint family property and the position of his mother’s family.

132. No authority is quoted for the view that the illegitimate son of a Sudra is entitled only to a compassionate rate of maintenance. Medhatithi in discussing the meaning of maintenance of illegitimate sons of dasis by Brahmins talks of “prajivanam” in his commentary on verse 179 of Manu which is as urged for the plaintiff-respondent, “more than jivanam” and denotes maintenance on a liberal scale (the prefix being the Greek Pi). In Ananthaya v. Vishnu (1893) I.L.R. 17 M. 160 at 161 Muthuswami Aiyar and Best, JJ., state:

The Smriti of Yajnavalkya awards maintenance to an illegitimate son not as provision against starvation and vagrancy, but in recognition of his status as a member of his father’s family and by reason of his exclusion from inheritance among the regenerate classes.

133. In Muthusawmy Jagavera Yettappa Naicker v. Vencateswara Yettappa (1868) l2 M.I.A. 203 an illegitimate son was granted maintenance of Rs. 2,500 a year. In the present case, the plaintiff claimed Rs. 300 a month as maintenance. The Lower Court has granted him Rs. 110 with an allowance of Rs. 750 towards expenses of his marriage. The appellants claim that this rate is excessive and there is a cross-memorandum of objections that the rate asked for, Rs. 300, should have been granted, My learned brother and myself think that the rate granted by the Lower Court, which proceeds on the theory that the plaintiff is entitled only to a compassionate allowance, is too low and we would award a rate of Rs. 250. The expenses allowed for the marriage appear to be reasonable. With regard to arrears for the three years before suit which the plaintiff claimed, his circumstances and needs have naturally changed with his attaining majority and the rate allowed him in the previous suit, Rs. 20, which was for his minority, is not a guide. I think that as the defendants neither paid nor offered to pay him at this rate, but on the other hand denied his claim to maintenance altogether he can be granted arrears at the rate we have fixed. In regard to other item of maintenance I agree with my learned brother.

134. The appeal therefore fails and is dismissed with costs. The cross-memorandum of objections is allowed so far as the increase in the rate of maintenance from Rs. 110 to Rs. 250 with three years’ arrears before date of suit is concerned, but in other respects it is dismissed. The parties will pay and receive proportionate costs on the memorandum of cross-objections including advocate’s fee. I concur in the other order as to costs passed by my learned brother.