Michael Westropp, C.J.
1. The findings of fact of the Joint Judge are, in special appeal, binding on this Court. Teja Kurad, Gau, and all of the parties to this suit, are admitted to belong to the Sudra tribe, and it has not been denied that their caste is one in which the custom of remarriage prevails. The pleader for the special appellants at first contended that non-access of Bhagu to Gau was not found as a fact, but when offered by this Court an issue on the question of access or non-access, declined it, and abandoned that point. He contended, however, that as the Pat marriage was void, inasmuch as Gau had not been divorced from Bhagu, who was still living, the plaintiff must be regarded as the result of an adulterous intercourse, and, therefore, could not be deemed such an illegitimate child as might, by the Hindu Law applicable to Sudras, succeed to the estate of his putative father. Whether, under such circumstances, the plaintiff is entitled as illegitimate son of Teja Navsaji, to succeed to the land in dispute, is the main question now before us.
2. In the arguments upon that question, the scope of the term Dasiputra, frequently employed by Hindu jurists who have treated of the rights of illegitimate offspring, has been much discussed. Translators of those authors have usually rendered that term as 'the son of a female slave'; and for the special appellants it has been contended that Dasiputra cannot be accepted as having any more extended signification. Whether it can be so limited, we shall proceed to consider after we have referred to those passages in the Sanskrit works of chief importance in this Presidency which touch the rights of illegitimates, first, however, premising, as the general result of the authorities both juridical and forensic, that amongst the three regenerate classes of Hindus, (Brahmans, Kshatriyas and Vaisyas,) illegitimate children are entitled to maintenance; but, unless there be local usage to the contrary, cannot inherit and that amongst the Sudra class, illegitimate children, in certain cases at least, do inherit. The extent to which this right exists we shall presently consider.
3. The Smriti writer Yajnyavalkya says: 'A son begotten by a man of the servile class on his female slave, may receive a share by his father's choice; or, after the death of the father, the brethren shall allot him half a share (3 Dig. Bk.V, Ch. III, pl. CLXXIV). Should he have no brother, he shall take the whole, unless there be a daughter's son.' (3 Dig, Bk. v. Ch. III pl. CLXXV) Acc. Vivada Chintamani 274, 275 (Tagore's translation).
4. It will be observed that, in the concluding exception in that text, Yajnyavalkya mentions only the daughter's son, and omits the widow and the daughter, both of whom, in the ordinary course of succession amongst legitimates, rank before the daughter's son. The most probable explanation of this omission is that Yajnyavalkya, by the daughter's son (putrika putra), meant the appointed daughter's son--the phrase putrika putra, though literally meaning daughter's son, yet technically denoting the appointed daughter's son (Mitak, Ch. 1, Section XI, pl. 3). In the days of Yajnyavalkya and Manu, the son of an appointed daughter ranked next in succession to the Aurasa (legitimate born son). Since, however, the commencement of the Kaliyug the filiation of any but a son legally begotten or given in adoption by his parents is prohibited, Vijnyanesvara in the Mitakshara, which is of great authority in this Presidency, in commenting on the above text of Yajanyavalkya, would, in the passages which we are about to quote, appear to have given to putrika putra its literal signification of 'any daughter's son', rather than its technical value 'appointed daughter's son,' and thus to have expanded Yajnyavalkya's text by bringing daughter's sons at large, as distinguished from the more limited category of appointed daughter's sons, into competition with such illegitimate sons of the last owner as may fall within the scope of the term Dasiputra. The word used in Yajnyavalkya's text which, in the translation by Colebrooke, has been rendered 'female slave', is Dasi. The 12th section of the 1st Chapter of Colebrooke's translation of the Mitakshara, pages 322, 323, which contains the commentary of Vijnyanesvara, to which we have referred, is as follows:
1. The author (Yajnyavalkya) next delivered a special rule concerning the partition of a Sudra's goods. Even a son, begotten by a Sudra on a female slave, may take a share by the father's choice. [Jatopi dasyam (i.e., on a Dasi) Sudrena Kamaptonsaharo bhavet.] 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'' (Yajnavalkya).
2. The son, begotten by a Sudra on a female slave [Sudrena dasyam (i.e., on a Dasi) samut-pannah putrah] obtains a share by the father's choice, or at his pleasure. But after [the demise of] (Balam Bhatta) the father, if there be sons of a wedded wife, let these brothers allow the son of the female slave (Dasiputra) to participate for half a share; that is, let them give him half [as much as is the amount of one brother's] (The Subodhini and Balam Bhatta) allotment. However, should there be no sons of a wedded wife, the son of a female slave [Dasiputra] takes the whole estate, provided there be no daughter of a wife nor sons of daughters. But if there be such, the son of the female slave (Dasiputra) participates for half a share only.
3. From the mention of a Sudra in this place [it follows that] the son begotten by a man of a regenerate tribe on a female slave [dvijatina dasyam (i.e., on a Dasi) utpannah] does not obtain a share even by the father's choice, nor the whole estate after his demise. But, if he be docile, he receives a simple maintenance.
5. The result of the foregoing commentary appears to us to be that Vijnyanesvara holds that, amongst Sudras, the father of an illegitimate son by a Dasi may in his (the father's) life-time allot to such son a share equal to that of a legitimate son; and, if the father die without making such an allotment, the illegitimate son by the Dasi is entitled to half of the share of a legitimate son; and, if there be no legitimate son, and no legitimate daughter or son of such a daughter, the illegitimate son by the Dasi takes the whole estate. If, however, there be a legitimate daughter or legitimate son of such a daughter, the illegitimate son would take only half the share of a legitimate son; and such daughter or daughter's son would take the residue of the property, subject, of course, to the charge of maintaining the widow of the deceased proprietor. The cases, (with perhaps two exceptions), in this Presidency, mentioned by Messrs. West and Buhler and our own experience lead us without hesitation, to the conclusion, that the law has here been administered in accordance with what has been just stated as the doctrine expressed or implied by Vijnyanesvara in the Mitakshara. He is silent as to the widow, who, in the ordinary course of succession, would come before either the daughter or the daughter's son. The position should be noted of the passages, which we have quoted from his work in that portion of it which treats of the rights of sons at large to inherit, and the prelude to that which immediately follows. viz: 'That sons, principal and secondary, take the heritage, has been shown. The order of succession among all (tribes and classes), on failure of them, is next declared' (Colebrooke's translation of the Mitak. Ch. II, Section 1, pl. 1). He then proceeds to treat of the rights of the wife, daughters, parents, brothers, etc. The preference of the daughters and sons of daughters, in the case of Sudras to illegitimate sons, and the omission to mention or give precedence to the widow in the case of such sons, appear to be the result of arbitrary arrangement rather than of logical sequence or consistency with the general scheme of inheritance. Such an arrangement is one of numerous disturbances of that general scheme: for instance, Vijnyanesvara's preference of the paternal grand-mother to the paternal grand-father (Colebrooke's translation of the Mitak., Ch. II, S.V. pl. 1, 2, 3). A note to Dr. Muir's Sanskrit Texts, Vol. II, pages 170, 171, taken from Roth, indicates the source of these deviations: 'Vedic interpretation could impose on itself no greater obstruction than to imagine that the Indian commentators were infallible, or that they had inherited traditions which were of any value. Even a superficial examination shows that their plan of interpretation is the very opposite of traditional; that it is really a grammatical and etymological one, which only agrees with the former method in the erroneous system of explaining every verse, every line, every word by itself, without inquiring if the results so obtained harmonise with those obtained from other quarters,' etc. Jimuta Vahana, in a passage in the Daya Bhaga (Ch. IX., pl. 31), gives to the son of a Sudra by an unmarried woman the whole property if there be no legitimate son and no daughter's son, and, if there he a daughter's son, permits the son by an unmarried woman to share equally with the daughter's son, assigning a reason for this disposition, which proves that ho too departed from the more strict and technical signification of putrika putra, viz., son of an appointed daughter, and used the term in its ordinary literal signification of son of any daughter, whether appointed or not. That reason is,--'it is fit that the allotment should be equal; since the one, though born of an unmarried woman, is the son of the owner; and the other, though sprung from a married woman, is only his daughter's son.' Devanda Bhatta, whose authority prevails more in the southern part of the peninsula than in this Presidency, interprets the term daughter's son (putrika putra) occurring in the text of Yajnyavalkya commented on, as above mentioned, in the Mitakshara, as including the wife and daughters, and as permitting them to share equally with the illegitimate son by a Dasi (Dattaka Chandrika, See. V., pl. 31). The obiter dictum of the shastri, in favour of a widow if there had been one, in his reply to Question 12 at page 56 of I West and Buhler, and the opinion of the shastri in favour of equality of shares between the daughter and son in his reply to Question 17 at page 60; and also the reply of the shastri to Question 1, Section 5, at page 63, where he assigns one-half to the daughter and one-half to the son of an illegitimate son, may have been suggested by the views of Devanda Bhatta and Jimuta Vahana, although they do not refer to those authors. The obiter dictum, in reply to Question 12, is, in the remark of Messrs. West and Buhler (page 57), rightly denied to be law amongst Sudras in this Presidency. They say: 'The illegitimate son would inherit the whole estate of his father, even though a widow of the latter be living;' and their remark) at page 63, to the effect that the son of the illegitimate son takes only the latter's half share, rightly denies the equality of shares assigned to him and the daughter by the shastri. Those observations of Messrs. West and Buhler are certainly in accordance with the Mitakshara. The exclusion of the Mahatar widow (a widow who has been twice married), is also supported by the case embodied in Question 8, and the shastri's reply thereto at page 53 of I West and Buhler. The Vyavahara Mayukha (by Nilakantha) the other leading authority here, contains, as regards the respective rights, amongst Sudras, of the widow and illegitimate sons, nothing inconsistent with the Mitakshara; and not only makes no reservation in her favour, but is silent also as to daughters and their sons. Placitum 28 of Chap. IV, Section 4, in quoting Devala as to sons of a Sudra woman by a man of equal class, probably applies to legitimate sons only. In plac. 32 alone does he distinctly deal with the rights of the illegitimate sons of a Sudra woman by a man of equal class, and there merely with reference to their rights as against legitimate sons, and not with reference to daughters or their sons. His silence, however, as to the latter, cannot be regarded as implying any contradiction of the Mitakshara. He was manifestly only partially treating of the subject of illegitimate children amongst Sudras, and, in fact, touching upon it very lightly. Where Nilakantha does not expressly or by direct implication contradict the Mitakshara, our safes course in this Presidency is generally, we will not say universally, to follow it.
6. We now proceed to refer to a dictum of Lord Cairns in Sri Gajapathi Radhika Patta v. Sri Gajapthi Nilamani Patta Maha Devi, and another appeal consolidated with it. 13 Moo Ind. App. 497; 6 Beng. L.R. 202; 14 Calc. W.R.P. 33 reversing 2 Mad Rep 369. The decision, however, solely turned upon the construction of documents containing certain terms of compromise. The remarks of Lord Cairns, at p. 512 of the report by Mr. Moore and throughout it, show this to have been so. The dictum, to which we refer, was, therefore, extra-judicial. Any expression however, of the opinions of their Lordships of the Privy Council necessarily carries with it great weight. It is at page 506, where, in giving the judgment of the Privy Council, and while speaking of what would have been the rights of the sons of Padmanabha, if there had not been any compromise, his Lordship is reported as having said:
7. 'Supposing the sons, or either of them, to have been legitimate, the widow (of Padmanabha) could have been entitled to maintenance only. Had both the sons been illegitimate, their claim, unless some special custom governed the case (which is not in proof), would have been to maintenance only. In this last-named case the widow would have had the ordinary estate of a Hindu widow.' The marginal note to the report is erroneous, clearly referring to Padmanabha under the letter A, it describes him as a Hindu, either without caste or of the Sudra class.' But their Lordships of the Privy Council did not announce that they had come to any such conclusion, and, so far as we can perceive, there was not any allegation in the pleadings that Padmanabha was a Sudra or below a Sudra. There was, however, in the pleadings on one side an assertion that Gopinadha, one of his sons, and Gopinadha's son, the appellant, were out-castes or at best of the Sudra class (page 499). The Civil Judge, however, found Gopinadha to be of Kshatriya class (page 500). The High Court of Madras held his father Padmanabha to be a Rajput by caste which they deemed to be a mixed class between the second (Kshatriya) and the third (Vaisya) of the regenerate classes, and that the mother of Gopinadha was a concubine of Padmanabha and a woman of the Karuam caste, and, as such, they regarded her as, at least, a Vaisya, and perhaps more probably a woman of a mixed caste, inferior to the second (Kshatriya), but superior to the third (Vaisya) of the regenerate classes. The High Court accordingly came to the conclusion that Gopinadha, being the illegitimate son of Padmanabha, whom it held to be one of the mixed classes between the second and the third of the regenerate classes, could not succeed simply as heir of Padmanabha 2 Mad. H.C. Rep., 373, although it was of opinion that under the compromise he (Gopinadha) and Krishnachandra, another son of Padmanabha, whose legitimacy was also disputed were entitled to succeed to the property of Padmanabha. It is unnecessary, for the purpose of considering the above dictum of Lord Cairns, to enter more deeply into the facts of those appeals. If Padmanabha were a Sudra, as stated in the head note to Mr. Moore's report, no school of Hindu law would, on account of illegitimacy (uncomplicated by the stain of adultery or incest), have wholly excluded his sons from inheriting. On the supposition, then, that Padmanabha was a Sudra, that part of the dictum of Lord Cairns, in which he says that, had both of Padmanabha's sons been illegitimate, they would have been entitled to maintenance only, could not be reconciled with any school of Hindu law. We have already referred to the doctrines of the Benares, Mahratta, Dravida and Bengal schools as represented by the Mitakshara, Mayukha, Dattaka Chandrika, and Daya Bhaga, respectively. That of the Mithila school will be found at pages 274, 275, of the Vivada Chintamani (Tagore's translation). We think, however, that, when so speaking, Lord Cairns must have been regarding the status of those sons from the same point of view as that of the Madras High Court, which pronounced them to be the illegitimate sons of a Rajput i. c., of a man of mixed caste between the second and third regenerate classes, and, therefore, above the degree of a Sudra. This would completely reconcile his Lordship's dictum with the Hindu law 7 Moo Ind. App. 18.
8. We now revert to the question as to the force of the term Dasiputra. The masculine noun Das or Dasa is, by Professor H.H. Wilson in his Sanskrit and English Dictionary published at Calcutta in 1819, explained as 'a fisherman a servant, a slave, a sudra, or man of the fourth tribe.' He further says that it is (as is well known here) used as an affix to the names of Sudras, and adds that it is occasionally employed to indicate 'a person to whom it is proper to make gifts' and 'a sage-one to whom the proper nature of the soul is known.' The feminine, Dasi, he describes as a female servant or slave, the wife of a slave or a Sudra.' Professor Monier Williams, in his Sanskrit and English Dictionary, published at Oxford in 1872, describes Dasa as 'a fisherman, a boatman', and Dasi as 'a female servant or slave, servant-maid, whore, harlot.' Mr. Burnell, in the introduction to his translation of the Daya Vibhaga of Madhaviya (p. XIV, and note), says that, in Southern India, the word Dasi signifies also a female dancer attached to a temple 12 Moore Ind. App. 203 to the same effect.) And Devanda Bhatta, in the Smriti Chandrika, Ch. XI, Section 1, pl. 10, 11, in speaking of a wife married in the Asura form, observes: 'That woman, who has been purchased for value paid, is not styled a Patni; she associates neither in rites relating to deities nor in rites relating to the manes. The learned call her a Dasi.' The affinity between slavery and the condition of a Sudra is illustrated by a text from Manu in the second volume of the Digest, Book III, Ch. 1, Secion 2, pl. XXXVI: 'A Sudra, though emancipated by his master, is not released from a state of servitude; for, of a state which is natural to him, by whom can he be divested?' Culluca Bhatta's comment upon that text (Ibid) is: 'Emancipated by him to whom he had become a slave by capture in war or the like, a Sudra is not released from a state of servitude to Brahmanas, since servitude is natural to him, who can divest him of a state of slavery proper to the servile class? Hence it is necessary that obedience be paid by a Sudra to a Brahmana or twice-born man. This is intended: else the subsequent enumeration of slaves would be nugatory.'
9. Mr. Colebrooke 2 StraH.L. 68 remarks that 'issue by a concubine' (by which we understand him to mean Dasiputra) 'is described in the law as a son by a female slave or by a Sudra woman. If the father were a Sudra, he might have allotted a share to his illegitimate son'; and for this he cites the passages in the Mitakshara, above quoted, which circumstance shows that, although Mr. Colebrooke, in his translation of them, rendered the term Dasi a female slave, he understood it to include a Sudra woman. And the commentator (Jagannatha) upon Pl. CLXXIV (the text of Yajnyavalkya) in Colebrooke's translation of the Digest, Vol. III, Bk. V. Ch. III., page 143 of the edition of 1801, referring to Jimuta Vahana (presently to be again mentioned), says: 'The son of a Sudra by a female slave or other Sudra woman not lawfully married, shall, with his father's consent, have an equal share with other sons.' Vachespati Misra (Vivada Chintamani, p. 274, translated by Prosonno Coomar Tagore), purporting to quote Yajnyavalkya, says: 'A son of a Sudra by an unmarried woman may receive a share by the permission of his father; but, if the father be dead, ho shall receive half of the share of his brothers who are born by married wives. Should he have no brother, he shall take the whole, unless there be a daughter's son.' In the note, at pages 15 and 16 of Sir William Macnaghten's Hindu Law, that author gives it as his opinion that, 'if the woman were not his (the putative father's) female slave, the son begotten on her by him would have no right to the inheritance, but only a claim to maintenance.' For that remark he has not given any reference; and, although in Bengal he deservedly enjoys a high reputation as a writer on Hindu law, his opinion, so far as it denies the right of inheritance to the son of a Sudra by a concubine, who is not a female slave, is at variance, not only with that of authors whom we have already quoted, but also with the Daya Bhaga, the leading treatise on the law of inheritance amongst Hindus in Bengal, at Chap. X, pl. 29, of which the author, Jimuta Vahana, is, in Colebrooke's translation, represented as Baying: 'But the son of a Sudra by a female slave, or other unmarried Sudra woman [Sudrasya aparinita dasyadi Sudraputra], i. e., literally, 'the son (born) to a Sudra by an unmarried Dasi or other Sudra' (female) may share equally with other sons by consent of the father.' For this he cites Manu, Ch. IX, pl. 179. And in pl. 30 he says that 'without such consent he shall take half a share'; and in pl. 31, already above referred to, he continues thus: 'Begotten on an unmarried woman, and having no brother, he may take the whole property: provided there be not a daughter's son. So Yajnyavalkya ordains: one who has no brothers may inherit the whole property for want of daughter's sons.' But, if there be a daughter's son, he shall share equally with him: for no special provision occurs: and it is fit that the allotment should be equal; since the one, though born of an unmarried woman, is son of the owner; and the other, though sprung from a married woman, is only his daughter's son.' In support of these latter placita he cites the texts of Yajnyavalkya already set forth in the quotations which we have made from the Mitakshara. These three placita 29, 30 and 31 in the Daya Bhaga show that Jimuta Vahana understood the term Dasi in a wide sense, including, speaking generally, any unmarried Sudra woman kept for the purpose of concubinage; for Manu (Ch. IX, pl. 179) speaks only of the Dasi of the putative father, or of the Dasi of his Das or Dasa (Dasa-Dasi or in the locative case, Dasa-Dasyam), explained by Chudamani as the wife of the putative father's male slave, and by Srikrishna as the unespoused concubine of his male slave (see. Colebrooke's translation of the Daya Bhaga, page 151, in notis), and Yajnyavalkya uses only the term Dashyam (on a Dasi), or Dasiputra (son of a Dasi).
10. Sir William Macnaghten's opinion would appear to rest on the limited view of the scope of the term Dasi, which the High Court of Madras seemed disposed to repudiate 2 Mad. H.C. Rep. 293 Maintenance only was sought in that case, and was granted, though opposed on the ground that the plaintiff was not the son of a female slave but was the son of a zamindar (a Sudra) by a concubine. Mr. Mayne, for the defendant, had there argued that the plaintiff, being the son of a Sudra, might be entitled to inherit, although illegitimate, but was not entitled to maintenance. If it be true that the son of a Sudra by a female slave may inherit, but that the son of a concubine, who is free, cannot do so, an absurd consequence would seem to follow. It is laid down by Katyayana (2 Dig., Bk. III, Section 2, pl. 49) that, 'if a man approach his own female slave, and she bear him a son, she must, in consideration of her progeny, be enfranchised with her child'--which rule, Jagannatha, the commentator, referring to other authorities, says 'is applicable if her master have no legitimate or adopted son, for in that case she need not he enfranchised.' Assuming that, under such circumstances, the Sudra father of the illegitimate son emancipates the female slave, and she, subsequently when free, bears to him another son--the former illegitimate son would inherit and the latter illegitimate son, though by the same father and mother, would not, if Sir W. Macnaghten's doctrine be correct.
11. Nilakantha, in the Vyavahara Mayukha, Chap. IV, Section 4, pl. 28, quoting Devala, says: 'The son begotten on a Sudra woman by any man of a twice-born class is not entitled to a share of land: but one begotten on her, being of equal class, shall take all the property (whether land or chattels): thus is the law settled.' Of land acquired by purchase and the other modes also. Yet he does obtain a share of the moveable wealth.' That passage, as already observed, refers to Sudra. women who are married. He next refers to Sudra women, who are not married, thus:
12. '29. But the son by a Sudra woman, not legally married, does not obtain a share even of the moveable property.' (If he stopped here, we might suppose that he was speaking of the son of a Sudra woman by a man of her own class, but the sequel shows that he was speaking only of the son of a Sudra woman by a man of one of the twice-born classes.) He continues: 'And Manu: 'The son of a Brahman, a Kshatriya, or a Vaisya, by a woman of the servile class, shall inherit no part of the estate [unless he be virtuous; nor jointly with other sons unless his mother was lawfully married:] whatever his father may give him, let that be his own.' A previous passage (pl. 27 quoted by Nilakantha from Yajnyavalkya) (And see Manu, Ch. IX, pl. 149 to 151) contemplated the possession by a Brahman of wives of the four tribes, including the Sudra; by a Kshatriya of three, including the Sudra; and by a Vaisya of two including the Sudra--a luxury, however, forbidden to the twice-born classes since the Kali-yug commenced [3 Dig., Bk. V. Ch. III., pl. CLXXIII. 1 Stra. H.L., 40 (Ed. of 1830)]. Note to translation of Manu, p. 430. Smiriti Chandrika, Ch. X, p. 7. This is one of many instances in which comparatively modern writers on Hindu law discussed, with as much zest as if it were living law, doctrine which in the lapse of time had become obsolete.
13. In Plac. 30 Nilakantha still appears to treat of the offspring of a Sudra Woman by one of the twice-born classes, and Plac. 31 applies to Pratilomas only. In Plac. 32 he treats of the Sudra class. Mr. Borradaile translates that passage thus: 'Yajnyavalkya states a distinction with regard to a son begotten by a Sudra on a woman not married to him.' [The words 'to him' are not in the original, and appear to have been improperly introduced. The expression used is aparinitayam, which simply means 'an unmarried woman.'] The translation continues: ''Even a son begotten by a Sudra on a female slave may take a share by his father's choice.'' [Jatopi dasyam (i.e., on a Dasi) Sudrena Kamatonsaharo bhavet.] The words 'his father'' are not in the text, but the word Kama, which means 'desire' or 'choice', is, as we shall see, interpreted by Nilakantha to mean' pleasure of the father'. The translation continues: ''But if the father be dead, the brethren should make him partaker of the moiety of a share.' Choice (Kama), the pleasure of the father. Prom specifying by a Sudra, it is clear that a son begotten by a twice-born man on a female salve does not obtain a share, even by the father's choice: neither, after the death of the father, will he get the half: nor, in the absence of sons or other heirs, will he get the whole. This is the argument of the Madana Ratna and others.'
14. It certainly would appear that Jimuta Vahana and Nilakantha concurred in thinking that, in order to entitle the illegitimate offspring of a Sudra women by a Sudra to inherit the property of the latter, or a share in it, she should be 'an unmarried woman' (Acc. Vivada Chintamani, p. 275, Tagore's translation), which expression, aparinita (or aparinitayam), when occurring in pl. 28 of Chap. IX of the Daya Bhaga, is in the note to Colebrooke's translation, p. 150, explained as not married to any one, but kept for sensual gratification'--and for this interpretation Srikrishna is relied upon.
15. The condition, that the Sudra woman should never have been married to any man, has, in practice, as the cases in I West and Buhler, to which we shall refer, show, been discarded in the Presidency of Bombay.
16. With a view to a clear understanding of some of those cases, it is desirable to refer to the custom, which undoubtedly extensively prevails among castes belonging to the Sudra class, and has, for a long time previously to Act XV of 1856 [which relates to widows only (the words 'with certain exceptions' in the preamble of that Act should be noted)] existed in this Presidency, of the remarriage of wives and widows. Such remarriage amongst Mahrattas is called Pat or Patta, and amongst the inhabitants of Guzerat is named Natra. An instance, in which the Sadr Adalat refused to grant a divorce to the first wife on the ground of the husband having contracted a Natra marriage, occurs in 1 Borr. Rep., 1st edition, p. 59; 2nd edition, p. 65. Other instances of the custom of contracting such marriages are mentioned in 2 Strange H.L., pp. 399, 400. Mr. Steele, who is, on such a subject, a high authority in this Presidency, says that, though forbidden in the present age (Kali-yuq) to twice-born castes, it is not forbidden to Sudras (Law and Custom of Hindu Castes, 1st ed., pp. 32, 37; 2nd ed., pp. 26, 30). Manu (2 Dig. Bk. IV, C. IV, Section 2, pl. CLVI, p. 473) appears to have limited the prohibition to the twice-born clashes; Devala expressly permits remarriage to all classes (but is not followed to that extent by any other author), and almost recommends it to the servile classes (2 Dig. Bk. IV, c. IV). Section 21 pl. CLIII, p. 471). A text of Harita implies that Sudras may remarry 2 Dig. B.K. IV. e. IV. Section III, pl. CLVIII).
17. Mr. Steele (Law and Custom of Hindu Castes, 1st ed., p. 161; 2nd ed., 159) says that 'all the lower castes admit the second marriage of wives in particular instances and of widows, the ceremonies at which differ in many respects from those at a first marriage.' At pp. 168, 169, 170, 171, 174, 181, 1st ed., (2nded., pp. 166, 167, 168, 169, 172, 173, 179), he enumerates many instances in which it is allowed in the cases of women whose husbands were living; but on such occasions the proper course would appear to be for the first husband to give the wife a chhor chithi, or writing of divorcement, and generally the concurrence of the castes is reqiured, but not invariably. The general rule in the caste in which remarriage is permitted to a woman, although it has been disputed by some pandits, is that the children by a Lugun (Lagna) marriage (i.e., first marriage of a woman) and those by a duly contracted Pat marriage have equal rights of inheritance 1st ed., p., 181, Appx. 23; 2nd ed. p. 179.
18. We think that the remarks of Messrs. West and Buhler, at page 60, Vol. I, of their work, to Case 16 (p. 59) and at page 61 to case 17 (p. 60) and Case 18 (p. 61), must be regarded as referring to the general Hindu law; and that, in making those remarks, they had not in their immediate contemplation the custom of remarriage so generally prevalent amongst the lower castes in this Presidency. The sons of a Punarbhu (twice-married woman) by a duly contracted Pat marriage, i.e., in accordance with the custom of the caste, are legitimate; and rank, as to the right of inheritance and extent of shares, on a par with the sons by a Lagna marriage. In the second volume of their work, at pp. 15 and 16, the same learned authors mention two decisions (Cases 6 and 7) to that effect.
19. In the introduction to their book, Vol. 1, p. XLIII, Messrs. West and Buhler, following the Mitakshara, lay down the rule as to the rights of inheritance of the illegitimate issue of a Sudra, thus: 'In the case of a Sudra being an avibhakta (separated man) his share, on failure of the three legitimate descendants, is inherited by his illegitimate sons, grandsons, or great-grandsons. If legitimate descendants to living, the illegitimate inherit half a share.' The precedents which they have collected, establish that in this Presidency, amongst Sudras, the illegitimate offspring of a kept woman, or continuous concubine, are on the same level as to inheritance as the issue of a female slave by a Sudra. Case 3 at page 68; Case 4 at page 49; Cases 6 and 7 at page 52; Case 8 at page 53; Case 12 at page 56; and Cases 13 and 14 at page 57 in I, West and Buhler--all show that this is so under ordinary circumstances in this Presidency.
20. Under such circumstances the plaintiff, being the son of a kept-woman, would, as against the legitimate daughters of Teja Kurad, have been entitled to a half share. This being so, we have next to consider whether the special circumstance, that the intercourse between Teja Kurad and Gau, the mother of the plaintiff, was adulterous--she never having received a chhor chithi from her first husband, or other sanction from him of her marriage by Pat to Teja Kurad--alters the case.
21. That adultery was regarded and punished by Hindu law as a crime of grave character, is abundantly shown by the 19th Chapter of the Vyavahara Mayukha and the ancient Smriti texts there quoted.
22. It has been held in the High Court that a custom of a particular caste, which permitted a woman in the life-time of her husband to contract a second marriage without his consent, was invalid, and the remarriage punishable, as regarded the woman, under Section 494 of the Penal Code; and the act of the man, who contracted the marriage and had sexual intercourse with her was held to be punishable, as adultery, under Section 497 of the same Code: Reg. v. Karsan Goja 2 Bom. H.C. Rep., 117. In the case of the man, he would not be punishable if, at the remarriage, he honestly believed that the woman was not the wife of another man: Reg. v. Manohar Raiji 5 Bom. H.C. Rep. Cr. Ca., 17.
23. In the case of Khemkor v. Umiashankar 10 Bom. H.C. Rep., 381, which arose in the caste of Sompura Brahmans, which was found by the Court of Small Causes at Ahmedabad to have a custom permitting Natra or remarriage, the High Court held that a woman, who, in the life-time of her husband, had remarried without his consent, was not the legal wife of the person whom she so married; but, as his concubine and mother of his illegitimate children, was entitled to maintenance after his death out of his estate. Steele (1st ed., p. 182; 2nd ed., p. 180), says that the children of a woman living in adultery have no caste. In Dati Parisi Nayudu v. Dati Bangaru Nayudu 4 Mad. H.C. Rep., 204, the High Court of Madras held that the illegitimate son of a Sudra, being the offspring of an incestuous intercourse (between a father-in-law and his daughter-in-law), is not entitled to inherit or share in the property of his putative father. That Court expressed an opinion that the decision should be the name in a case of adultery, it being an intercourse in violation of law. At page 92 of West and Buhler, Vol. I, there is a case of the year 1852 which is directly in point here. A man had two wives, one by Lagna and the other by Pat. He married a third by Pat; her first husband, who was living, had not assented to her second marriage. She bore a daughter to her Pat husband. The question was whether the daughter could succeed to her father's property after his death; and shastri advised the Zillah Court at Sholapur that 'it is not legal for a woman to enter into a Pat marriage without having previously obtained permission of her husband, unless he is dead. The daughter, therefore, can have no share in the property of the deceased father. But as she was the result of the Pat marriage, the heirs, who will take the assets of the deceased, must support her. The Lagna and the first Pat wives will be the heirs of the deceased, entitled to take all his property.'
24. Upon these authorities we think that the plaintiff, being the result of an adulterous intercourse between Teja Kurad and Gau, cannot take as heir even to the extent of half a share, and is not a Dasiputra within the scope of Yajnyavalkya's text or recognized as such by the commentators. But, having been recognized as his son by Teja Kurad, we think that the plaintiff is entitled to maintenance; and, in order to prevent further litigation, we shall direct the Court of First Instance to ascertain and allot to him out of the estate of Teja Kurad a liberal but suitable maintenance, having due regard to the extent of the estate.
25. In Muttuswamy v. Vencataswara 12 Moore Ind. App. 203; see p. 220) Sir J. Colvile in giving the judgment of the Privy Council said: 'It appears, however, to their Lordships that if it be established that the respondent was the natural son of this Hindu father, and recognized by him as such, it is not essential to his title to maintenance that he should be shown to be born in the house of his father or of a concubine possessing a peculiar status therein. They concur in the judgment of the High Court upon this point, against which little, if anything, has been urged at the bar.'
26. The claim of the plaintiff to inherit being disposed of in the negative, the estate (subject to his maintenance) will descend according to the ordinary canons of descent in force in this Presidency; but it is unnecessary to make any special reference in the decree to that effect, and we have not been invited by the parties so to do.
27. We shall, therefore, simply reverse the decree of the Joint Judge, and dismiss the claim of the plaintiff as heir of Teja Kurad to his estate; but we declare that the plaintiff is entitled to maintenance out of that estate, and we direct the Court of First Instance to fix a liberal and suitable maintenance for him, having due regard to the extent and value of the estate of Teja Kurad.
28. Looking at the conduct of the family, we think that the fairest direction which we can make as to costs is that the parties respectively should bear their own costs of the suit and of both appeals.
29. We are indebted to Mr. Justice Nanabhai Haridas and to the Honourable Rav Saheb V.N. Mandlik for valuable assistance as to the original Sanskrit of the texts of Hindu law to which we have referred.