1. This suit was brought by the plaintiff to recover possession of the property in suit as reversioner of one Harjivan Sadaram, on the ground that the marriage of defendant No. 1's father Nathu, a Brahmin by caste, with defendant No. 1's mother, a Koli woman, was invalid and illegal, that defendant No. 1 was an illegitimate son of Nathu, the brother of Harjivan, and therefore did not inherit to his uncle Harjivan.
2. Defendant No. 1 contended that Nathu, born a Brahmin, married Hari, a Dharala woman, and defendant No. 1, a son, and defendant No. 2, a daughter, were born of that marriage, and were the legitimate children of Nathu and entitled to inherit Harjivan's property. The rest of the defendants are the tenants of the lands in suit.
3. The learned Subordinate Judge, following the decision in Bai Gulab v. Jiwanlal Hanlal ILR (1921) 46 Bom. 871, 24 Bom. L.R. 5, held that a man of a higher caste can validly marry a girl of the lower caste, and therefore, defendant No. 1 was a legitimate son of Nathu and entitled to inherit the property of his uncle, and, therefore, dismissed the plaintiff's suit.
4. On appeal, the learned District Judge, on consideration of the texts bearing on the point in question, held that defendant No. 1 was the legitimate son of Nathu, and being a son by a Sudra wife was not entitled to more than one-tenth share of the inheritance of Nathu's brother Harjivan under Hindu law, and that the remaining nine-tenths share would go to the plaintiff', the nearest agnate of Harjivan, and therefore declared that the plaintiff was the owner of the nine-tenths share of the estate left by Harjivan, and the remaining one-tenth share went to defendant No. 1 by inheritance as the nephew born of a Sudra woman.
5. The first question arising in the case is whether the marriage of Nathu, a Brahmin, with a Sudra woman is valid. Where there is a marriage in fact, there is a presumption in favour of there being a marriage in law. See Inderun Valungypooty Taver v. Ramasawmy Pandit Talaver (1869) 13 M. I. A. 141. But, as observed by Chandavarkar J. in Bai Kashi v. Jamnadas : (1912)14BOMLR547 , the legal presumption can be rebutted by strong, satisfactory and conclusive evidence. Pratiloma marriages, that is, marriages in the reverse order of castes, have been held to be invalid in this Presidency.
6. In Lakshmi v. Kaliansing (1900) 2 Bom. L.R. 128 a marriage between a Brahmin girl and a Rajput, i.e., a Kshatriya male, was held invalid. Similarly, in Bai Kashi v. Jamnadas : (1912)14BOMLR547 it was held that under Hindu law as recognised in the Bombay Presidency a Brahmin woman . cannot contract a valid marriage with a Sudra. Chandavarkar J-has discussed the various texts bearing on this point and held that Pratiloma marriages, i.e., marriages in the reverse order of castes, are invalid. On the other hand, in Bai Gulab v. Jiwanlal Harilal Shah J. has discussed the texts bearing upon the question and come to the conclusion that Anuloma marriages are valid and that according to Hindu law as administered in the Bombay Presidency a marriage between a Vaishya male and an illegitimate daughter born of a Vaishya father and a Sudra mother is valid.
7. In Manu, Ch. Ill, verse 13, it is stated .--
It is declared that a Sudra woman alone (can be) the wife of a Sudra, she and one of his own caste (the wives) of a Vaisya, those two and one of his own custe (the wives) of a Kshatriya, those three and one of his own caste (the wives) of a Brahmana.' See Sacred Books of the East, Vol. XXV, page 77.
But in verses 14 to 19 of the same Chapter, the marriage of a Sudra woman with a Brahmin or a Kshatriya or a Yaishya is condemned. It appears from the commentary of Medhatithi that such marriages are not absolutely prohibited, but the condemnation is in the nature of a recommendation to Brahmins, Kshatriyas and Vaishyas not to marry a Sudra woman, and an option is given ; and Kulluka Bhafcta, another commentator of Manu, construes the prohibition as limited to Pratiloma marriages, i.e., marriages in the reverse order of castes, and not to be extended to Anuloma marriages, i.e., marriages according to the descending order of castes. It would, therefore, follow that so far as Manu is concerned, there is no absolute prohibition of Anuloma marriages. Narada allows such marriages and is in favour of a man of one of the regenerate castes marrying a Sudra woman. See Narada XII, 5 ; Dr. Jolly's Institute of Narada, page 173.
8. Yajnavalkya in his Smriti (see Mitakshara, Achara Adhaya, Ch. I, verse 56) expresses an opinion that though the twice-born may take a wife from a Sudra family yet that was not his (i.e. Yajnavalkya's) opinion, because out of her he is born himself. In verse 62 Yajnavalkya describes the special ceremonies to be observed in marrying girls of the same or different classes and ordains (Translation by Srisachandra Vidyarnava, published by the Panini office, Bhuvaneshwari Ashrama, Allahabad, p. 129):-
In marrying a girl of the same class, the hand should be taken, the Kabatriya girl should take hold of an arrow, the Vaighya should hold a goad, in the marriage with one of a higher class.
9. In commenting on this verse Vijnaueshvara observes :-
' In marrying a girl of one's own class, the hand should be taken, according to the rules of one's own Grihya Sutra. A Kshatriya girl should hold an arrow,' a Vaishya girl should hold & goad in her marriage with persons of higher classes, A Sudra girl should take hold of the end of the skirt. As it has been said by Manu (Ch. Ill, verse 44) :- A Sudra girl marrying one of a higher class should take hold of the hem of the (bridegroom's) garment.
10. Shah J. in Bai Gulab v. Jiwanlal Harilal ILR (1921) 46 Bom. 871, 24 Bom. L.R. 5 observed as follows (p. 882) :-
Taking the verses of Yajnavalkya without the commentary it is clear that in the opinion of Yajnavalkya a twice-born person should not take a wife from a Sudra family but if at all a person is inclined to depart from that rule, he can do so on the lines indicated in Verse No. 57. Far from there being a prohibition there is a provision for what Yajnavalkya is not in favour of. Here Yajnavalkya has adopted a style of expression which, to ray mind, is clearly indicative of disapproval on his part of such marriages but of readiness to recognise departures from approved linos within the limits indicated in the next Terse. Vijnaneshvara makes this clear in his commentary. The word nishedha (meaning prohibition) used by him in the commentary in Verse No. fits must be read subject to the limitation which ho points out in that very sentence and also subject to what ho clearly lays down in his commentary on Verse No. 57. This meaning is clear from the phraseology adopted by Yajnavalkya and Vijnaneshvara in Verse No. 92 in the next chapter in the same Adhyaya. While speaking of amdomajas both Yajnavalkya and Vijnaneshvara use the word mind (married woman) which indicates the recognition by them of valid marriages among those classes in their order. No such word is used in Verses Nos, 93 and 94 relating to pratilomajas. Yajnavalkya expressly states in Verse No. 95 that all pratilomajas are bad (asanta) and onulomajas are good (santa).
11. In verses Nos. 91 and 92 Yajuavalkya describes the son of a Brahmin by a Kshatriya woman as Murdhavasikta, by a Vaishya woman, as an Ambashtha, and by a Sudra woman as a Nishada or a Parasava; and in verse No. 92 describes the son of a Kshatriya on a Vaishya woman as Mahishya, and on a Sudra woman as Ugra, and the son of a Vaishya on a Sudra woman as Karana, and describes this as the law propounded with regard to married women. Vijnaneshvara in his Mitakshara on Verse No. 57 says:-
As to the son of a Sudra woman being counted among sons and being described in the Chapter on Partition, e. g., where the author after enumerating the sons begotten by a Brahmaua upon his Kshatriya wife is Murddhavasikta etc., ends with ' this rule refers to wives regularly married (V. 90 and 91) that refers to the son of a person desirous of sexual enjoyment or who is simply desirous of remaining in the Ashrama (order of house holder) and does not refer to twice-born in legitimate wedlock. See Translation, Paniui Office, by Vidyaranya, p, 122.
The words would mean 'does not refer to one who was born in a hidden or secret manner, i. e., not born in lawful wedlock.' The translator at page 123 suggests the way of reconciling Yajnavalkya with himself and Manu.
12. Further Yajnavalkya in his verse 125 in the Vyavahara Adhyaya has made provision for sons born of Anuloma marriages :-
The sons of a Brahmana (in the several tribes) have four shares, or three, or two or one respective))' according to the tribe (of each); the children of a Kshatriyai have three portions, or two, or one ; and those of a Vaishya take two parts or one, See also Mitakshara, Ch. I, Section viii, ph. 2 to 11, pages 206 to 208 of Gharpure's translation.
13. I shall deal with the share of defendant No. 1 fully hereafter. The absence of any provision for sons born of Pratiloma marriages is an indication that such marriages are not valid.
14. Further in Mayukha, Ch. IV, Section 11, relating to the exclusion from inheritance, it is observed in pi. 7 (Gharpure'a translation, p. 139):-
A son begotten even by a husband on a wife, who is born of a marriage in an inverse order cannot inherit.
15. Further, says the same author (p. 139):-
The son of a woman who is born of a marriage in an inverse order cannot inherit. Food and clothing are considered to be due to him to the end of his life from his kinsmen.
16. Similarly, a reference is made to Katyayana in pi. 5 of the same chapter in the Mayukha which lays down as follows (p. 139):-
The son of a woman married in a wrong order, as also he who is born of a saijotra, and an apostate from a religions order, for these, there can never be the inheritance.
17. It would, therefore, follow that while provision is made for inheritance of sons born of Anuloma marriages, there is no provision for inheritance of sons born of Pratiloma marriages. On the other hand, in the Mayukha there is clear exclusion from inheritance in respect of sons born of Pratiloma marriages.
18. Further, the rule of impurity ordained in the case of birth and. death of Kshatriya, Vaishya and Sudra sapindas is laid down by verse 22 of the Prayasehitta Adhyaya, but in the case of sons born in the reverse order, there is no impurity whatever.
19. Shah J. has exhaustively dealt with the texts bearing upon this point and has come to the conclusion that Manu, Yajuavalkya, Vijuaneshvara and Nilakantha arc agreed that Anuloma marriages are not prohibited.
20. It is urged on behalf of the respondents, relying .on Mayne's Hindu Law, 9th Edition, pages 108 and 785, that marriages between persons of different caste is are obsolete, and a son born of such marriage would be illegitimate. Shah J. in Bai Gulab's case was unable to accept the view that because such marriages are obsolete, they are illegal or prohibited by law, and held that the prohibition must be found in the law books, or in the usage having the force of law, and such usage must be proved like any other fact. In Bai Gulab's case Shah J. observes (p. 886):-
But the attitude of the castes, which is stated in different modern books as prohibiting inter-caste marriages altogether, is generally indicative of nothing more than the disapproval of such marriages according to the rules of practice of each different caste. It does not afford a sufficient justification for treating as illegal what has not been prohibited but in terms contemplated and allowed by law.
21. It would, therefore, follow that the marriage of Nathu with a Sudra woman would be valid, and if once that conclusion is reached, it must inevitably follow that defendant No. 1 is the legitimate son of Nathu.
22. The next question is whether the son of a Brahmin by a Sudra woman inherits the whole property or only a one-tenth share.
23. Yajnavalkya, Ch. II, Vyavahara Adhyaya, verse 125, declares the mode of partition amongst sons of different classes of wives as follows (Gharpure's translation, p. 206):-
The sons of a Brahmana (in the several tribes) have four shares, or three, or two or one respectively according to the tribe (of each); the children of a Kshatriya have three portions, or two, or one ; and those of a Vaisya take two parts or one.
24. Therefore, it would follow that if a Brahmin has left a son by a Brahmin wife and a son by a Kshatriya wife and a son by a Vaishya wife and a son by a Sudra wife, the property will be divided into ten shares of which the son of a Brahmin wife, will take four shares, the son of a Kshatriya wife will take three shares, the son of a Vaishya wife will take two shares and the son of a Sudra wife will take one share. The question is fully discussed in Chapter I, Section viii, of the Mitakshara. See pages 206 to 208 of Gharpure's translation. In commenting on Yajnavalkya, verse 133, Mitakshara in Oh. I, Section xi, pll. 41 to 43, states as follows :-
41. But the son by a Sudra wife, though legitimate, does not take the whole estate, even on failure of other issue. Thus Manu (Ch. IX, 154) says : 'But whether a man have sons or no sons (by wives of other classes), no more than a tenth part, must be given to the son of sudra woman, according to law.
42, 'Whether he have sons' ''. e. whether he have existing the male issue of a regenerate tribe; or 'have no sons' i. e. have no issue of regenerate tribe, in either case, upon his demise, the son of the wife or other (kind of son,) or any kinsman (sapinda), [or on another reading Asapinda meaning Sakulya or other kinsman] shall not give to the son of the Sudra, more than a tenth part of the father's estate.
43, Thus it appears from this very text, that the son of a Kshttriya or a Vaishya -wife takes the whole of the property on failure of issue by women of equal class. See Gharpure's translation, page 225, and Stokes' Hindu Law, page 425.
25. It would, therefore, follow, according to the view of Mitakshara based on the text of Manu, Ch. IX, sh. 154, that the son of a Dvija class or on his death the other sons of Kshatriya or Vaishya wife or any other heir that may be in existence should not give to the son of a Sudra woman more than a tenth share of the wealth. The son of a Sudra wife, therefore, would, according to the Mitakshara, be entitled to one-tenth share of the estate of his father.
26. Mayukha does not deal specifically with this point. Mayukha in Book IV, Oh iv, pll. 27 to 31, deals generally with this question. See Gharpure's translation, pages 60 and 61, and Stokes' Hindu Law, pages 54 and 55. Placitum 27 mentions Yajuavalkya's declaration as to the mode of partition among sons by different classes of mothers, namely, the sons of a Brahmin get respectively four, three, two or one share according to the tribe of each, those born of a Kshatriya three shares, two or one respectively, and those born of a Vaishya two shares or one respectively. Placitum 28 relates to the land which is obtained by a gift and the text of Devala mentioned in pi. 28 must be taken to refer to land obtained by a Brahmin father by a gift. Placitum 29 refers to a son by an unmarried Sudra woman. The word for unmarried in pi. 29 is (aparinnita). It appears, therefore, that Mayukha has not dealt specifically with the quantum of the share which a son of a Sudra woman would get in the absence of a son by a woman of a higher caste, and when he claims the inheritance in competition with Sapinda or distant heir, i. e., a-Sapinda or a Sakulya.
27. In the present case the plaintiff claims as a Sapinda of the deceased Harjivan, while defendant No. 1 claims as nephew of Harjivan being the son of his brother by a Sudra woman. It is clear from the Mitakshara, Book I, Ch. XI, pi. 42, that the son of a Sudra woman will not get more than one-tenth share of the inheritance. I have already referred to the Mayukha, Chapter IV, Section xi, pll. 5 and 7, where the sons of Pratiloma marriages are excluded from inheritance. There is no such exclusion in the case of sons born of Anuloma marriages. Such marriages have been held to be valid in Bai Gulab v. Jiwanlal Harilal ILR (1921) 46 Bom. 871, 24 Bom. L.R. 5, and it would necesssarily follow that the son born of such marriage would be legitimate and would be entitled to a share of inheritance. Such share has been fixed at one-tenth of the inheritance by the Mitakshara.
28. The text of Devala that a Nishada being an only son of a Brahmin shall have a third part, and that a Sapinda and Sakulya should take the remaining two shares has been reconciled with Manu's text, Ch. IX, sh. 154, that no more than a tenth share should be given to him, by Dayabhaga on the ground that a third part is given to an excellent only son of a Sudra woman. See Dayabhaga, Ch. IX, pll. 24 to 27, Setlur's translation, p. 64.
29. The prohibition of a share being given to the son of a Sudra woman by some Smriti texts has been construed by Apararka as referring to one who is given something by the father, otherwise the rule that prescribes a share to a Sudra son becomes meaningless. See Translation of Apararka by S. Shrimwas Ayyar, pages 22 and 34. See also Mitakshara, Oh. I, Section viii, pi. 11, Gharpure's translation, p. 208.
30. Subodhini, a commentary of Mitakshara (see Gharpure's translation, page 153), states as follows :-.'no more than a tenth part should be given to a son of a Sudra womem, according to law.' It may be argued, this is improper. For one share has been stated to be for a son from a Sudra woman in the text 'Shall have four, three, two, and one shares respectively in the order of their Varnas,' while here a tenth share has been mentioned. The answer is no, not so. The four shares of the son of a Srahctmani and the three of a Kshatnya make seven ; the two of the son of a Vaisyi would make it nine and one for the son of a Sudra added together make ten. And thus even in the test, ' Four, three, two and one' a tenth share having been stated there is no contradiction, and thus everything is unexceptionable.
31. It would, therefore, follow that a son of a Sudra wife is not entitled to more than one-tenth share of the estate of his father.
32. A further question arises as to whether defendant No. 1 is entitled to the whole or only a onetenth share of the inheritance of his uncle, whereas according to strict Hindu law he is entitled to not more than one-tenth share when claiming as heir of his father. The question is not free from difficulty. The validity of mixed marriages was not adjudicated till recently in Bai Gulab's case. The question of the legitimacy of the offspring of such marriages and their right to inheritance is beset with considerable difficulty. With reference to Yajnavalkya's verse 125, the Mitakshara makes the remark that the author describes the mode of partition among brethren dissimilar in class (bhinna patina). Commenting on the first half of the verse 1S3 which concludes the law propounded with regard to sons equal in class, Mitakshara discusses the right of a son by a Sudra wife and lays down that he is not entitled to more than a tenth part of the father's estate though he is Aurasa, i. e., legitimate. Verses 135 and 136 of Yajnavalkya lay down the compact series of heirs, and the order of succession is declared in the case of all. The word 'all' in verse 136 is commented in Ch. II, Section i, pi. 4, as follows:-
This rule (ayam vidhih) about the taking of heritage or the order of succession, must he understood as extending to all tribes (sarveshu varneshu) whether the Murdhattikta and others in the direct series of classes, or Suta [Annlomaja] and the rest in the in vense order [Pratttomag's], and as comprehending the several classes, the Brahmanas and the rest. See Mitakshara, Ch. II, Section i, pi. 4, Gharpure's translation, page 228.
Reference may also be made to Mitakshara, Ch. II, Section iv, pll. 2 and 3-Gharpure's translation, pages 251 and 252. The compact series is prescribed, therefore, not only for the principal tribes, but also for mixed tribes like Anulomaja. The shares of sons by mothers of different tribes are regulated by Shloka 125. But there does not appear to be any distinct authority or text enabling the son of a Sudra wife to inherit collaterally, e.g., to his uncle. We are bound by the decision in Bai Gulab v. Jiwanlal Harilal, where the marriage of a twice- born with a Sudra woman is held valid. It must, therefore, follow that defendant No. 1, the son of a Sudra wife, is legitimate. If defendant No. 1 is legitimate, he becomes the son of Nathu and nephew of Harjivan. There is no text prohibiting such a son from inheriting to his uncle. The question then is whether he is entitled to the whole estate or only one-tenth share. We think that if a son born of a Sudra wife is not entitled to more than one-tenth share of his father's inheritance, much less can a nephew be held entitled to inherit a larger share of the inheritance of his uncle.
33. The view, therefore, of the lower Court that defendant No. 1 is not entitled to more than one-tenth of the inheritance, and the plaintiff is entitled to the remaining nine-tenths is, in our opinion, correct.
34. It is urged on behalf of the appellant that defendant No. 1 is entitled to the whole of the inheritance on account of the Removal of the Caste Disabilities Act, XXI of 1850. The relevant section runs as follows:-
So much of any law or usage now in force within the territories subject to the Government of the Bast India Company, as inflicts on any person forfeiture o rights or property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the communion of any religion, or being deprived of caste, shall cease to be enforced as Law...
35. Reliance is placed on behalf of the appellant on the decision in the case of Bhagwant Singh v. Kallu ILR (1888) All. 100, where it was held that Act XXI of 1850 applied to cases where a person, born a Mahomedan his father having renounced the Hindu religion, claims by right of inheritance under the Hindu law a share in his father's family. On the other hand, it was held by the Madras High Court in Vaithilinga v. Ayyathorai ILR (1917) Mad. 1118 that the Caste Disabilities Removal Act does not apply to descendants of persons relieved by the Act, and that the descendants of a Hindu converted to Christianity have, therefore, no interests in the property of their unconverted relatives. It is unnecessary to go into this question, for, in our opinion, Act XXI of 1850 does not apply to the facts of the present case. In the present case the degradation of the caste of defendant No. 1 has not involved any forfeiture of rights or property, nor has it in any way impaired or affected his right of inheritance under Hindu law, for, as I have already stated, under Hindu law he is not entitled to more than one-tenth share, and the degradation of caste, if any, has not in any way affected or impaired the right to which he is entitled under Hindu law, namely, to merely one-tenth of the inheritance. It is not contended that though defendant No. 1 is entitled to one-tenth share of the inheritance he has lost it by degradation of caste, but it is contended that he is not entitled to any share on the ground that he is not a legitimate son. The latter contention cannot be accepted in view of the decision in Bai Gulab's case. We think, therefore, that Act XXI of 1850 has no application to the facts of the present case.
36. We think, therefore, on the whole, that the view taken by the lower appellate Court is right, and this appeal must be dismissed with costs, and the cross-objections must be dismissed with costs.
1. This suit involves a contest for succession to the property of a person by name Harjivan Sadaram who was a Khedawal Brahmin by caste. He died unmarried in 1924, He had a brother by name Nathu, who had married a Sudra woman, and defendants Nos. 1 and 2 are off-spring of the marriage, defendant No. 1 being his son and defendant No. 2 his daughter. The deceased Harjivan was plaintiff's cousin. Harjivan owned some property and plaintiff claims the same as heir, alleging that the marriage of Nathu with a Sudra woman was illegal and as a consequence, defendants Nos. 1 and 2 are illegitimate off-spring. The rest of the defendants are stated to be tenants of lands left by Harjivan.
2. The contention on the other side was that defendants Nos. 1 and 2 are legitimate children of Nathu and that defendant No. 1 was entitled to the whole property. It was admitted that the mother of defendants Nos. 1 and 2 was a Dharala woman by caste. The case was argued on the assumption that the woman was a Sudra,
3. The Court of first instance, following the decision in Bai ' Gulab v. Jiwanlal Harilal ILR (1921) 46 Bom. 871, 24 Bom. L.R. 5 held that the marriage of Nathu with the Sudra woman was a valid marriage and that defendant No. 1, as the legitimate son of Nathu, was entitled to succeed in priority to the plaintiff'.
4. The lower appellate Court agreed in holding that the marriage was valid, but held that defendant No. 1 was not entitled to get more than one-tenth share in the property in suit and that the remaining nine-tenths devolved upon the plaintiff' as the nearest agnate. In coming to this conclusion, the learned District Judge, who decided the appeal, based his decision on a text of Vijnaneshvara.
5. Defendants Nos. 1 and 2 appealed against the decree. Defendant No. 8 joined them in appealing. Plaintiff filed cross-objections to the decree, so that the points that arise are : (a) whether the marriage between Nathu and the mother of defendants Nos, 1 and 2 was legal and valid, and, whether defendants Nos. 1 and 2 are legitimate children of Nathu, and (5) if the marriage was legal and valid, can defendant No. 1 lay claim to the whole of the property in suit
6. In the case of Bai Gulab v. Jiwanlal Harilal, it was decided that according to Hindu law, the marriage between a Vaishya male and the illegitimate daughter of a Vaishya born of a Sudra woman is valid. The decision was based on the grounds that the woman, the validity of whose marriage was being considered in the case, was a Sudra by caste and that a marriage between a male of a higher caste and a female of a lower caste was valid. Such marriages come under the category of Anuloma marriages as opposed to Pratiloma marriages or marriages between a male of a lower caste and a female of a higher caste. Pratiloma marriages have been held to be invalid. Vide Lakshmi v. Kaliansing : (1912)14BOMLR547 and Bai Kashi v. Jamnadas (1900) 2 Bom. L.R. 128, The correctness of the decision in Bai Gulab's case was not challenged on behalf of the plaintiff. It is not necessary, therefore, to go into the various texts of Hindu law on the point. My learned brother has considered them. The marriage under consideration in the present case being valid, the children born of the marriage are legitimate. It may be noted that in Har Prasad v. Kewal ILR (1924) All. 169 it was held that a man may marry a woman of a lower class or grade within his caste and in the absence of any clear evidence to show that 1 such a marriage would not be recognised as valid by the custom of the community to which either the husband or the wife belonged, neither he nor his issue can lose the right of inheritance in the family property.
7. The only point that survives, therefore, is whether defendant No. 1 in the present case can get the whole of the property in suit to the exclusion of the plaintiff. While discussing this point, it will be necessary to refer to a few texts of Hindu law.
8. (a) In Manu, Chapter IX, verses 152 to 154 (Sacred Books of the East, Vol. XXV, p. 357), we find the following:-
152. Or let him who knows the law make ten shares of the whole estate, and justly distribute them according to the following rule :
153. The Brahmana (son) shall take four shares, the son of the Kshatriya (wife) three, the son of the Vaishya shall have two parts, the son of the Sudra may take one share.
154. Whether (a Brahmana) have sons or have no sons (by wives of the twice-born castes', the (heir) must, according to the law, give to the son of a Sudra (wife) no more than a tenth (part of his estate).
(b) Yajnavalkya in verse 126 in the Vyavahara Adhyaya states thus :-
The sons of a Brahmana (in the several tribes) have four shares, or three, or two or one respectively according to the tribe (of each); the children of a Kshatriya have three portions, or two, or one; and those of a Vaishya take two parts or one, See page 200 of Gharpure's translation of the Mitakshara.
(c) Vijnaneshvara comments upon this passage and observes in effect that it would follow that if a Brahmana has left a son by a Brahmana wife and a son by a Kshatriya wife and a son by a Vaishya wife and a son by a Sudra wife, the property will be devided into ten shares, of which the son of a Brahman wife will take four shares, the son of a Kshatriya wife will take three shares, the son of a Vaishya wife will take two shares, and the son of a Sudra wife will take one share. See Gharpure's translation of the Mitakshara, pp. 207 to 208.
(d) In commenting upon the first part of verse 133 of Vyavahara Adhyaya of Yajnavalkya, Mitakshara states as follows:-
But the son by a Sudra wife, though legitimate, does not take the whole estate, even on failure of other issue. Thus Manu (Oh, IX, 154) says: 'But whether a man have sons or no sons (by wives of other classes), no more than a tenth part, must be given to the son of a sudra woman, according to law.' 'Whether he have sons' 'i.e., whether he have existing the male issue of a regenerate tribe; or 'have no sons'' i. e. have no issue of a regenerate tribe, in either case, upon his demise, the son of the wife or other (kind of son,) or any kinsman (sapinda], shall not give to the soil of the Sudra, more than a tenth part of the father's estate. Vide Ghaipure's translation of the Mitakshara, p, 225.
(e) The author of Subodhini, a commentary upon the Mitakshara, discusses the point and apparently accepts the rule mentioned above. Vide Gharpure's translation of Subodhini, pages 158-151
(f) Nilakantha, the author of Mayukha, does not give his opinion on the point. He, however, quotes opinions of some of the writers then available. First of all, he deals with the case of the mode in which property should be divided amongst sons of different clashes and cites versa 125 of Yajnavalkya mentioned above. Then he refers to the point as to how land obtained by a Brahmin by acceptance of a gift should devolve and cites a text from Brahaspati. This kind of property, it is stated, can only descend upon the son of a Brahmin wife, and this is also the opinion expressed in the Mitakshara Vide Gharpure's translation of the Mitakshara, p. 208, and the translation of the Mayukha by the same author, p. 61. I do not refer to the remaining part of the discussion in Mayukha, for it does not specifically relate to the point under consideration.
9. Thus, there is a large consensus of opinion on the point of the share which a son by a Sudra wife of a Brahmin should take, and the share thus allowed is one-tenth of the inheritance and never more than that.
But in the present case, we are dealing with the case of a nephew -a son born of the Sudra wife of Nathu. a Brahmin and the brother of the propositus and the question to be considered is whether such a person is entitled to claim to succeed. The point is by no means easy and clear. The text in favour of a son of the Sudra wife of a Brahmin is a special text. A marriage between a Brahmin and a Sudra woman, though not disallowed, was not much in favour, The issue of the marriage were not classed as Brahmins. Yajnavalkya in Vivaha Prakarna, verse 56, states that though the twice-born may marry a wife from a Sudra family, yet he (the author) expresses his view that he would not like such a connection ' because out of her he is born himself,' I entertain doubt as to whether a special text of such a kind should be extended beyond its avowed scope. It is important to note that the text in the Mitakshara definitely allowing one-tenth to the son of a Sudra wife of a Brahmin is placed below the first part of verso 133 of Yajnavalkya, which relates to the law in regard to sons equal by class (sajatiya) and Vijnaneshvara prefaces verse 125 by remarking, ' now is given the (mode of) partition among brethren dissimilar in class.' An illegitimate son of a Sudra who also gets a share because of a separate text is not allowed to succeed collaterally nor can the collaterals of his father succeed to him (vide Subramania Ayyar v. Bathnavelu Chetty ILR (1917) Mad. 44 and Zipru v. Bomtya IRL (1921) 46 Bom. 424. Whatever all this may signify, I am bound by the decision in Bai Gulab v. Jiwanlal Harilal. According to the principle laid down in that case, defendant No. 1 in this case is the legitimate son of his father. If so, he is entitled to succeed. A question arises that in the absence of a special prohibition why should he not be allowed to take the whole of the property The question is one on which it is indeed difficult to pronounce a definite opinion unhesitatingly. I, however, agree with my learned brother and hold that defendant No. 1 is entitled to one-tenth of the property in suit.
10. A point remains. It is based on the Removal of Caste Disabilities Act XXI of 1850. The learned advocate for defendant No. 1 urged that his client, defendant No. 1, is entitled to the whole of the suit property on account of the provisions of the said Act. It is sufficient to observe that this is not a case of renunciation of religion or of an exclusion from the communion of any religion. The disability of defendant No. 1 arises owing to the fact that he was born of a Sudra wife of a Brahmin. I do not, therefore, think that Act XXI of 1850 applies to this case.
I agree with my learned brother in dismissing the appeal and the cross-objections with costs.