1. The questions for consideration in this appeal are (1) whether the learned Judge of the trial Court was right in awarding maintenance cut of the joint family estate to an illegitimate son of a member of the regenerate classes, the father having died in union and without leaving separate property and the plaintiff's mother not being a dasi within the meaning of the texts, and (2) whether he was right in fixing the rate of maintenance at an amount higher than what is required for the bare necessities of life. By a series of Magistrate's: orders the plaintiff had for a period of years received maintenance at a rate varying from Rs. 5 to Rs. 10 per month ; but not long after the death of his father he brought the present suit against his father's brother for maintenance at the rate of Rs. 200 per month out of the joint family property, and he has succeeded to the extent of Rs. 40 per month. The defendant comes in appeal and the plaintiff cross-objects to the reduction of his claim.
2. There is no text directly bearing upon the points involved in this appeal. But in Mitakshara, Chapter, I, Section 12, the author cites the law as to the illegitimate sons of Shudras by a female slave, which is that they are entitled to a share at their father's choice or to the moiety of a share after their father's death or to the whole estate in default of certain other heirs, and in verse 3 he says ' From the mention of a Shudra in this place it follows that the son begotten by a man of a regenerate tribe on a female slave 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.' It is accepted that this statement of the law as to Shudras refers to the father's separate property see Vellaiyappa Chetty v. Natarajan and clearly verse 3 stands on the same footing in that respect. But nevertheless the Privy Council in the case cited allowed maintenance to the illegitimate son of a Shudra out of the family estate, though the text refers only to the father's property and is silent as to the maintenance of Shudras. Again, in Muttusawmy v.Vencataswara (1868) 12 M.I.A. 203 the Privy Council allowed maintenance to a son who was the result of a casual intercourse, and in Subramania Mudaly v. Valu I.L.R. (1910) Mad. 68 the Madras High Court allowed it in the case of an adulterous intercourse. It is contended in the present appeal that the plaintiff is not the result of intercourse with a continuous concubine within the meaning of the text as now interpreted. But in view of the two decisions last cited the point seems to me to be immaterial, and I see no reason for going into the evidence. For the purposes of this appeal, I take it that the plaintiff's illegitimacy is covered by the text, so that he would receive maintenance for life1 from his late father's separate estate if there had been one.
3. But the question is whether he can receive it from family property in the hands of his father's collaterals. As in Vellaiyappa's case this case stands outside the text. But 'this is not sufficient to cause the rejection of the plaintiff's claim if it can be sustained on some principle recognised by the Hindu Law.' In Ananthaya v. Vishnu I.L.R. (1893) Mad. 160 a complete parallel to the present case, the Madras High Court over forty years ago found such a principle in the fact that persons excluded from inheritance can claim maintenance by reason of that exclusion. That this is a recognised principle of Hindu law is beyond question. But it has been argued on behalf of the defendant in this appeal that in assuming an illegitimate son to be a member of a class which is excluded from inheritance the learned Judges who decided Ananthaya v. Vishnu are begging the real question at issue. I have, however, some doubt as to whether this is really an assumption on the part of the learned Judges. On the contrary it seems to me to be a reasoned conclusion. Their Lordships say (p. 161) :- 'An illegitimate son is one of that class of persons who, by reason of their exclusion from inheritance, are allowed maintenance by the Hindu law, and this is clear from the fact that among Shudras he shares his father's property together with the legitimate son.' Taking that sentence by itself, I must confess to finding some difficulty in following the argument. But later on they say that the illegitimate son gets maintenance ' 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.' Now, if the illegitimate son of a member of the regenerate classes is recognised as a son and regarded as having the status of a member of his father's family, then there is I think no difficulty in holding that the fact of his being mentioned in the same section of the Mitakshara as the illegitimate son of a Shudra and the fact that the Shudra is given actual inheritance does mean that he is ' excluded from inheritance ' in the case of the regenerate classes ; in other words, that he does come within the class of persons who are excluded from the inheritance and are on that account entitled to receive maintenance under the Hindu law. Moreover one of the main grounds of the decision in Vellaiyappa's case was the status of the illegitimate son of a Shudra as a member of his father's family, and one of the principal reasons for holding (as against some of the earlier authorities) that he was recognised as a member of his father's family was that he was mentioned in Chapter I of the Mitakshara (dealing with sons who are entitled to unobstructed inheritance) and immediately before Chapter II of the Mitakshara, which deals with persons entitled to an obstructed inheritance. It is difficult not to apply the same reasoning to the status of an illegitimate son in the regenerate classes.
4. In giving his reasons for saying that the regenerate illegitimate son unlike the Shudra does not obtain an actual share even by the father's choice, or the whole estate after the father's death, the author does not say that this is because the regenerate stands upon a different footing from the Shudra. What he does say is that the regenerate son is not mentioned along with the Shudra as a person entitled to the actual estate and therefore it must follow that he does not get the actual estate, and in fact all that he gets is maintenance. I can see nothing in this that suggests any withholding from the regenerate illegitimate son of any recognition of his status as a son and member of the family ; on the contrary it seems to me that he is treated in that respect as being upon the same footing as the Shudra. I think therefore that there is a principle of Hindu law at the basis of the decision in Ananthaya v. Vishnu and that the decision is not incorrect.
5. But apart from the actual reasons which led the learned Judges of the Madras High Court to that particular decision, it is noteworthy that this case was decided over forty years ago and since then, to the best of my knowledge, has never been criticised adversely either directly or by implication in any other decided case or in the authoritative text books. It has on the contrary been followed in a later case of the same High Court, Subramania Muddy v. Valu, and it was cited by the Privy Council in Vellaiyappa Chetty's case without any sign of disapproval. Indeed in this last case their Lordships expressly said (p. 410) 'that maintenance in the case of the twice-born classes is in lieu of inheritance is apparent from the terms of verse 3', and I find it difficult to draw any distinction between maintenance which is given in lieu of inheritance and maintenance which is given because of exclusion from inheritance. I think therefore that the decision in Ananthaya v. Vishnu ought to be accepted as correct and should be followed in this case.
6. The next question is the amount which should be awarded. Verse 3 of the section of the Mitakshara which I have cited says that the illegitimate son is entitled to ' a simple maintenance'. That is the translation given by Stokes (Hindu Law Books). It has also been translated by Gharpure as ' a bare maintenance.' The Sanskrit words are ' jivana matra,' and it is contended that the real meaning of this is ' maintenance confined to the barest necessities '. But this point was not considered by the Court below, clearly because it was never argued and had not been taken in the written statement ; and in all the cases to which reference has been made in the course of the arguments in this appeal it does not appear that this restricted interpretation of the words has ever been accepted or indeed ever suggested, I think that the words ought to be interpreted as ' only maintenance '. After all, the author has just been discussing the position of the illegitimate son of a Shudra, and he says that the illegitimate son of a Shudra gets the actual inheritance. He then turns to the case of the regenerate classes and says that among the regenerate classes the illegitimate son gets maintenance. Primarily he was merely contrasting the position of the illegitimate sons in the two classes as regards what they took, whether it was by way of maintenance or by way of inheritance, and any rule as to the amount of maintenance would, I think, have been unnecessary in that text. But, apart from that, the words are capable of the ordinary meaning ' only maintenance ', and I do not think we should be justified in restricting them to ' the bare necessities of life.'
7. For these reasons the appeal will have to be dismissed with costs.
8. Plaintiff has cross-objected to the amount of maintenance actually awarded, which is only Rs. 40. He contends that in considering the position of the family and the capacity of the property in the hands of the defendant to pay maintenance to the plaintiff the learned Judge has overlooked certain material pieces of evidence which suggest that the income from the property and the resources of the defendant are larger than the learned Judge has taken them to be. It is also suggested that the learned Judge is wrong in thinking that the defendant would still have to pay Rs. 20 per month to the plaintiff's mother. But the plaintiff after all is a man presumably capable of working, and we are satisfied that Rs. 40 is enough for his maintenance ; and although the resources of the family may be greater than the learned Judge thinks, it is not necessary to draw upon them further. The real question is whether he has been awarded enough for his legitimate needs, and we1 think that he has been awarded enough. The cross-objections also are therefore dismissed with costs.
9. The plaintiff-respondent must pay the Court-fees on the cross-objections which he would have had to pay if he had not been allowed to make them as a pauper.
10. The question in this appeal is whether the plaintiff, who is the illegitimate son of one Bhikchand, deceased, a Jain and therefore belonging to the twice born or regenerate classes, is entitled to get, maintenance from the joint family estate which has now passed to Bhikchand's brother by survivorship. Bhikchand left no separate property.
11. The trial Judge has held that he is so entitled, and that view is in accordance with Ananthaya v. Vishnu I.L.R. (1893) Mad. 160 which has been relied on in later Madras cases, Subramania Mudaly v. Valu I.L.R. (1910) Mad. 68 and Vellaiyappa Chetty v. Natarajan I.L.R. (1926) Mad. 340. There is no Bombay case and no Privy Council case which deals directly with the point in issue. In Chuoturya Run Murdun Syn v. Suhub Purhulad Syn (1857) 7 M.I.A. 18 and Rajah Parichat v. Zalin Singh (1877) L.R. 4 IndAp 159 the right of an illegitimate son of one of the three regenerate classes to maintenance out of the estate of his father has been affirmed in general terms, but those were not cases in which the estate had passed by survivorship, though in the latter case an alienation of an ancestral property by the putative father for the maintenance of his illegitimate son was held valid as being based upon a legal obligation. In Roshan Singh v. Balwant Singh the Privy Council had to consider a claim to maintenance by the son of one Bhoj who was the illegitimate son of one Indrajit. Indrajit and Narain were members of a joint family and their Lordships conceded the point that the plaintiff's father Bhoj could have claimed maintenance as against Narain. But this may have been perhaps for the sake of argument and certainly the only point decided in the case was that the illegitimate son's right to maintenance is a purely personal right in the sense that it cannot be transmitted to his own son.
12. The texts bearing on the point are contained in Chapter I, Section 12, of the Mitakshara (Stokes Hindu Law Books, p. 426). My learned brother has referred to them. The case of the illegitimate son in the regenerate classes is mentioned incidentally and by contrast to the illegitimate son of a Shudra. The former can never get a share of the estates as the latter does but is entitled to maintenance only. It is now settled law that these texts apply proprio vigore only in the case of separate property [see Vellaiyappa Chetty v. Natarajan ] The texts also refer in terms only to the dasi putra or son of a female slave. But this restriction is now obsolete, at any rate where the claim is to maintenance only. In Multuswami Jagavira Yettappa Naicker v. Venkateswara Yettaya (1868) 12 M.I.A. 203 the Judicial Committee said (p. 220) :-
It appears, however, to their Lordships, that if it be established that the Respondent was the natural Son of this Hindoo Father, and recognised by him as such, it is not essential to his title to maintenance that he should be shown to have been born in the house of his Father, or of a Concubine possessing a peculiar status therein.
13. Reference may also be made to Roshan Singh v. Balwant Singh and Vellaiyappa Chetty v. Natarajan I.L.R. (1926) Mad 340. The fact that plaintiff in the present case, has not proved that his mother was the continuous concubine of Bhik-chand is therefore immaterial.
14. learned Counsel for the appellant, to whom we are indebted for a very full and able discussion of the law on the subject, admits that Ananthaya v. Vishnu is against him, but contends that it cannot be considered good law in view of the Privy Council judgment in Vellaiyappa Chetty v. Natarajan. Ananthaya v. Vishnu is certainly not directly overruled, for Sir Dinshah Mulla who delivered the judgment in Vellaiyappa Chetty v. Natarajan refers to it and discusses it at some length and expresses no disapproval of it. But it is suggested that the grounds on which their Lordships held in that case that the illegitimate son of a Shudra can claim maintenance out of the joint family estate, when there is no separate estate in which he can get a share, are inconsistent with such a right to maintenance in the case of an illegitimate son in the twice-born classes. The conclusions of their Lordships are summed up at p. 414 of the report :-
On a consideration of the texts and the cases on the subjects their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son; that where the father has left no separate property and no legitimate son, but was joint with his collaterals, as in the present case, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but he is entitled as a member of the family to maintenance out of that: property ; that his position in this respect is analogous to that of widows and disqualified heirs to whom the law allows maintenance because of their exclusion from inheritance and from a share on partition.
Mr. Thakor says that it cannot be predicated of the illegitimate son in the twice-born classes that he has the status of a son or that he is a member of the family and therefore he has no right other than that expressly given to him by the text, viz. a right to maintenance out of the separate estate of his putative father, and that there is no principle of Hindu law according to which he can claim maintenance out of the joint family property, if no separate estate exists. [As held in Vellaiyappa Chetty v. Natarajm the absence of express authority in the texts is no ground for the rejection of a claim to maintenance if it can be sustained on some principle recognised by Hindu law,].
15. Now prima facie the fact that the illegitimate son of a Shudra is given a share in the estate of his father, whereas an illegitimate son in the regenerate classes is entitled to maintenance only, does suggest a difference in status and there is authority for the view that the difference in treatment is due historically to the fact that at one time the illegitimate son of a Shudra by a dasi was; one of the classes of sons recognised by Hindu law and allowed to a Shudra in addition to the twelve classes of sons enumerated in the texts as common to all the four castes [see Submmania Ayyar v. Rathnavelu Chetty I.L.R. (1916) Mad. 44. Nevertheless in some earlier cases in Madras, Ranoji v. Kandoji I.L.R. (1884) Mad. 557 and Parvathi v. Thimmalai I.L.R. (1886) Mad. 334 the Court took the view that the share of the Shudra illegitimate son was given to him in lieu of maintenance as though he were treated as ' a person having no legal connection with the family of his illegitimate father but only as an outsider a quasi nullius films whom was given something because of the moral right which he had, to be supported by the author of his being (p. 66).' (I quote from Submmania Ayyar v. Rathanvelu Chetty). It was this view which Sir Dinshah Mulla discussed and disapproved in Vellaiyappa Chetty v. Natarajan and he held that the Shudra illegitimate son gets his share in the inheritance not merely in lieu of maintenance but in recognition of his status as a son.
16. Now if the interpretation which the Courts placed upon the texts had been that the Shudra illegitimate son was no better than the illegitimate son in the regenerate classes, that both alike were allowed maintenance only, though in one case it took the form of a share in the inheritance, the view now approved by the Privy Council that the Shudra illegitimate son has the status of a son might certainly be said to cast considerable doubt on the claim of any other illegitimate sons to that status. For there can be no doubt that the finding in favour of the Shudra illegitimate son is based partly at any rate on the fact that he is given a share in the inheritance which other illegitimate sons are not. But whereas in these early cases it was held that the illegitimate son of a Shudra got his share only by way of maintenance, it was held in Ananthaya v. Vishnu1 that the illegitimate son in the regenerate classes was allowed maintenance in lieu of inheritance (p. 161):-
The Smriti of Yajnyavalkya awards maintenance to an illegitimate son not as a 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.
This distinction is referred to by Sir Dinshah Mulla in Vellaiyappa Chetty v. Natarajan and as the judgment shows, he holds that there is no such distinction. The illegitimate son of a Shudra gets his share because he is a member of the family, and if he cannot get a share because there is no separate estate, he gets maintenance in lieu of inheritance. But there is nothing in the judgment as far as I can see which necessarily points to the conclusion that the illegitimate son of a Shudra is the only one who can be regarded as a member of the family. The view that maintenance in the twice-born classes is in lieu of inheritance is in fact accepted. Sir Dinshah Mulla says at p. 410 that it is apparent from the terms of the text. It is not easy to see what this means unless it is that in the twice-born classes also the illegitimate son has the status of a member of the family although he is disqualified from inheritance.
17. The principle on which the Court relied in Ananthaya v. Vishnu I.L.R. (1894) Mad. 160 was this (p. 161) :-
As the maintenance awarded is the result of exclusion from inheritance, and as the Hindu theory is that family property constitutes assets from which charges in the nature of maintenance etc., are to be met, the maintenance decreed to an illegitimate son may be secured on the family property,....
The principle itself is not challenged and indeed it is affirmed in Vellaiyappa Chetty v. Natarajan.
18. The argument for the appellant is that the principle does not apply because an illegitimate son in the regenerate classes cannot be said to be excluded from inheritance having never been in the category of possible heirs. It is true that as compared with the case of a son of a Shudra the principle has to be applied at an earlier stage, The latter according to the text gets a share of the inheritance if there is any separate estate. If there is none he may be said to be excluded from inheritance and therefore is entitled to maintenance out of the joint family estate. The illegitimate son in the twice-born classes is given maintenance originally by the text itself. But as that text has been interpreted to mean that he gets maintenance in lieu of inheritance, and that seems to connote exclusion from inheritance of a member of the family who would have inherited but for the disqualification arising from the circumstances of his birth, I can see no convincing reason why the principle should not be applied in this case also. I think we want stronger grounds than have been shown to exist at present before we differ from the law as it has been laid down by the High Court of Madras for more than forty years. I therefore agree that the appeal fails on this point.
19. As regards the question of the quantum of maintenance I agree with my learned brother that it is not clear that the expression (sic) in the original text has any reference to the amount of maintenance. It is quite probable, I think, that it means no more than that the illegitimate sons get maintenance merely as distinguished from a share. That is the view which the Courts appear to have always taken. At any rate no authority has been cited for the view that the illegitimate sons are only entitled to enough to keep body and soul together. The point was not taken in the written statement: nor was it argued in the lower Court. I agree that the cross-objections should be disallowed.