Alfred Henry Lionel Leach, C.J.
1. These three appeals arise out of suits filed in the Subordi-nate Judge's Court of Devalcottah. Appeal No. 233 of 1943 and Appeal No. 501 of 1943 are from the decree passed in O.S. No. 10 of 1943. Appeal No. 500 of 1943 is from the decree passed in O.S. No. 33 of 1942. O.S. No. 10 of 1943 is the first in time. It was originally filed in the Court of the Subordinate Judge of Devakottah where it was numbered O.S. No. 93 of 1939. It was transferred to the Court of the Subordinate Judge of Sivaganga and there numbered O.S. No. 57 of 1940. It was transferred back to the Subordinate Judge's Court of Devakottah and on this occasion numbered O.S. No. 10 of 1943. The two suits were tried together and were dealt with in a common judgment. The three appeals have been heard together and can likewise be dealt with in a common judgment. For convenience, we shall refer to the parties according to their designations in O.S. No. 10 of 1943.
2. There are three plaintiffs in O.S. No. 10 of 1943, Subramaniam, Lakshmi Achi and Swarnavalli Achi. The first two plaintiffs are the children of the third plaintiff and are minors. They sue through their mother as next friend. There are five defendants. The first defendant is the husband of the third plaintiff and the father of the minor plaintiffs. The second defendant is the minor daughter of the first defendant by his first wife, who died in the month of May, 1931. The third defendant claims to be a lawful wife of the first defendant and the fourth defendant claims to be his son by the third defendant. The fifth defendant is a minor son of the first defendant by a wife whom he married in May, 1939. The third plaintiff was married to the first defendant in August, 1931. The first plaintiff sued for a decree for partition of the family estate. On the date of the institution of the suit the joint family consisted of the first defendant and the first plaintiff. The fifth defendant was not then born. The second plaintiff claimed a decree for maintenance and a sum for her marriage expenses. The third plaintiff also claimed a decree for maintenance. The third and fourth defendants were made parties because the plaintiffs denied that the third defendant was ever married to the first defendant who also repudiated the claim of the third defendant to be his wife. Further he denied that the fourth defendant was his son.
3. In proceedings instituted under Section 488 of the Code of Criminal Procedure, the fourth defendant claiming through his mother obtained an order for maintenance against the first defendant at the rate of Rs. 25 per mensem. In the same proceedings the fourth defendant claimed maintenance for herself, but this claim was disallowed. The case before the Magistrate was decided on the basis that the third defendant was a dancing girl and that she had not proved that she had remained chaste from the date when the first defendant abandoned her. As the result of the order for maintenance the first defendant filed O.S. No. 33 of 1942 for a declaration that the third defendant is not his wife and that the fourth defendant is not his son.
4. The first defendant dented that the first plaintiff was entitled to a decree for partition on the ground that it would not be for the minor's benefit. On this issuethe Subordinate Judge dicided in favour of the first plaintiff. Tsdhe reasons set forth in the judgment are not satisfactory. The main ground of his decision appears to have been the incompatibility of temper shown by the third plaintiff and the first defendanat. As we shall in due course indicate there are however grounds for holding that a decree for partition is for the benefit of the first plaintiff. The Subordinate Judge held that the second plaintiff was entitled to maintence at the rate or Rs. 50 per annum but not to a decree for her marriage expenses. He found that thethird plaintiff was not entitled to separate maintence. The Subordi- nate Judge held against the third defendant on the question of heer marriage with the first defendant. He did not, however, decide whether the fourth defendant was a son of the first defendant by the third defendant.
5. Appel No. 233 of 1943 has been filed by the first, second and fifthe defendants. They say that the learned Judge crred in holding theat the first plaintiff was entitled to a decree for partion. In this appeal, the second plaintif says that the award of Rs. 50 per annum for her maintenance is inadequate and the third plaintiff says that the Subordinate Judge erred in not granting her a decree for separate maintenance. It may be mentioned that the second plaintiff does not persist in her claim for a decree for marrigae expenses. Appeal No. 501 of 1943 has been filed by the third and fourth defendants. They say that the Subordinate Judge erred in not holding that the first difendant was lawfully married to the third defendant and that the fourth defendant was the issue of that marriage. Appeal No. 500 of 1943 has been filed by the third and fourth defendats. Here they raise the same contentions as in Appeal No. 501 of 1943. In Appeal No. 500 of 1943 the first defendant has filed a memorandum of cross-objections. He says there should have been a declaration that the fourth defendant was not his son.
6. The third plaintif and the first defendant appear to have lived happily together until 1938 when the wife to reside with her parents. It has been accepted by all parties that the quarrel between the father and the mother is no ground for the granting of a decrec for partition to their son. It is also accepted that the fact that the father married another wife in May 1939 is no ground for partition. What the Court has to decide is whether a partition is in the interest of the minor. If it is satisfied that a decree for partition is in the interest of the Court's duty is to grant a decree
7. The first defendant'smanagement of the family estate does not confidence in him. He is a Nattukottai Chettiar and his real business is money-lending.
8. He has, however, indulged in speculation in shares to a large extent and speculation of this nature frequently leads to disaster. He produced no accounts in this connection. As he is a Nattukottai Chettiar an members of that community usually keep very careful accounts of their business dealings, this statement cannot be accepted. He admits to having entered into share transactions to the extent of Rs. 70,000 but would have the Court believe that in most of these transations he was acting as a commission agent for other. He is not a stock broker and dealings in stock exchange are usually done through brokers. Again we are unable to accept the first defendant's word.
9. The family was a partner in two money-lending businesses in the Federated Malay States. Copies of the accounts of these businesses have not been produced. It is usual for the agent conduction the foreign business of a Nattukottai Chettiar principal to send coopies of the accounts to him. The first defendant says that copies of the accounts were sent to his brother, Palaniappa. When Palaniappa was called upon to produce them he said that they could not be found. Chettiars are not only very careful in making up their accounts but are usually very careful in preserving them. It is not, however, uncommon to fing that they are not forth coming when it would be awkward to produce them.
10. The speculation in shares by the first defendant with regard to the family cannot be defended on any ground and the fact that he has indulged in such transactions is in itself sufficient to justify the Court in holding that it will be for the benifit of the minor son to be separeted from his father and in directing that he be given his hare of the family estate. 13. There is the further reason that the first defendant has not produced his accounts. The position does not however stop there.
11. His relationship with the third defendant might affect the first plaintiff's sharein the estate if the joint status continues. We shall deal presently with the question whether the first defedant did in fact marry the third defendant; but eveen if he did not marry her in law, any male issue of their defendant; but evern if he with the the defendant is apparent-would entitle such issue to claim a share in the estate on the first defendant's death. It is well-settled law that the illegitimate son of a Sudra is entitled to a share in his father's property. There is still another factor. The first defendant has not maintained the first plaintiff since the month of August 1938. This is admitted. In these circumstances we have no hesitation in holding that the decree for partition was rightly passed by the Subordinate Judge.
12. The first defendant has agreed to an increase in the amount of maintence to be given to the secon plaintiff. The sum of Rs. 50 per year obviously inadequate of The first defendant has offered to pay Rs. 240 per year and this has been rightly accepted as sufficient by the learned adovocate for the second plaintiff. The first decree passed by the Subordinate Judge will be amended accordingly. The first defendant has also agreed to pay the third plaintiff Rs. 300 per annum for her separate maintenance. This is the amount claimed by her in the plaint. Mr. Rajah Aiyar agrees that she cannot expect more. Consequently, by consent, there will be a decree for separate maintenance at this rate. This disposes No. 233 of 1943 and the memorandum of objections filed by the second and third plaintiffs.
13. The main question which remains to be decided is whther the Subordinate Judge was right in holding that the first defendant had not married the third defendant. The third defendant claims to be a mamber of the melakkara (piper) caste. The plaintiffs and the first defendant repudiate this suggestion. They say that she is a member of the dancing girl community and we consider that there is much force in this contention. Her son, the fourth defendant, was born on the 10th June, 1939 A certified copy of the relevant entries in the Register of Births has been produced. No father's name is mentioned and the name of the Register of Births has been dasi Visalakshi. The village headman who made these entries was examined as a witness and he stated tha he made them as a result of enquiries made at the house where the third defendant lived. The fourth defendant was vaccinated on the 19th December, 1939. Copies of the entries in the Vaccination Register have also been produced. Alain the father's name is not given, only that of the mother who is described as dasi Visalakshi Admitted the entries in this Register were made on information given by the third defendant's sister. If the third defendant was a member of the melakkara caste and not a dancing girl she would not be described.
14. Before considering the evidence of the alleged marriage we will examine the question whether a Sudra can contract a lawful marriage with a dancing girl. There appears to be no direct authority on the question, certainly none has been produced to us; but there are reported judgments which throw great light on the matter. Giffard, L.J., in delivering the judgment of the Privy Council in Inderun Velungypooley Taver v. Ramaswami Pandia Talaver (1869) 13 M.I.A. 141 said this
Then, if there was a marriage in fact, was there a marriage in law? When once you get to this viz., that there was a marriage in fact, there would be a favour of there being a marriage in law.
15. Therefore, the Court must assume that a Sudra can marry a dancing girl unless it is manifestly opposed to Hindu law. A member of a twice born caste cannot lawfully marry out of his caste; but this does not mean that a Sudra cannot marry a Hindu woman who is of a lower social status. In Manickam v. Poongavanammal (1934) M.W.N. 185, Ananthakrishna Aiyar, J., held that a Sudra could contract a lawful marriage with an Adi Dravida. The learned Judge examined numerous authorities bearing on the question and we see no reason to differ from his conclusion. If a Sudra can marry an Adi Dravida it is difficult to see why there should be any legal impediment to his marrying a dancing girl. In saying this we are not considering the case of a dancing girl who has been dedicated to a temple. In Subbaratna Mudali v. Balakrishnasami Naidu (1917)33 M.L.J. 307, it was said that at was not beyond dispute whether a dancing girl who has been dedicated to a temple can contract a marriage. It is unnecessary to consider that question because it is common ground that the third defendant has not been dedicated to a temple. It would certainly be against public policy to say that a member of the dancing girl community shall not be allowed to marry at all and as there is nothing in the Hindu law which prevents a Sudra marrying a dancing girl we hold that the first defendant could in law have contracted a lawful marriage with the third defendant.
16. Did he do so? The third defendant's case is that she was married to the first defendant on the 15th September, 1937, at Kandadevi village, which is about two miles from Devakottah where many Nattukottai Chettiars live. She says that her mother and her sister had both married Brahmans. They certainly could not have contracted lawful marriages with Brahmins. Even if they had gone through marriage ceremonies their positions would still be that of concubines and not wives. The third defendant avers that the marriage took place in her mother's house at Kandadevi and that many people were present. She has called four persons who say that a marriage ceremony was performed, but we are unable to accept their testimony as being trustworthy. In the first place, it is very unlikely that a Nattukottai Chettiar would marry a dancing girl. Nattukottai Chettiars marry within their own community. It would be regarded as being very improper for a Nattukottai Chettiar to marry out of his community. It has been suggested in argument that if the first defendant had contracted a marriage with the third defendant he would be ostracised by his community, and we can well imagine that this would be the case. Kandadevi is so near to Devakottah that the first defendant would have been in a very difficult position if he had married the third defendant.
17. Admittedly no printed invitations were sent out and no member of the melakkara community of which the third defendant professed to belong was invited to the ceremony. It was said that muhurta olai was prepared, but this has not been produced. The priest who is said to have performed the ceremony has not been called. According to Parimalam Pillai (D.W. 3) some Nattukottai Chettiars attended the marriage, but no Nattukottai Chetti has given evidence. It is not suggested that the marriage was a secret affair; on the contrary, the third defendant's case is that the function was well attended. If there had been marriage ceremony in the presence of numerous guests, we consider that there would have been far better testimony in proof of it than that which the third defendant has adduced.
18. The Subordinate Judge, does not deal with the oral evidence. He considers that there was an alliance between the first defendant and the third defendant on the same basis as the alliance which her mother contracted with a Brahmin and her sister with another Brahmin. The Subordinate Judge should have dealt expressly with the evidence of the marriage ceremony; but his failure to do so is of no consequence. When we bear in mind that it is very improbable that the first defendant would have married the third defendant, that no written invitations to the marriage were sent out, that no member of the melakkara community was present, that out of 40 or 50 people said to be present only four persons have come forward to support the third defendant's case, that the priest who is alleged to have performed the marriage ceremony was not called and that the muhurta olai is not forthcoming the decision here must be in favour of the plaintiffs and the first defendant. That the first defendant had relations with the third defendant we have no doubt; but that does not mean that she was validly married to him. We hold that she was not.
19. A mistake has been made by the Subordinate Judge in dealing with the question whether the third plaintiff was living with her husband on the 15th September, 1937, the date of the alleged marriage of the first defendant to the third defendant, The Subordinate Judge has said that she had left her husband and was living in her father's house. That is not the case. She admits that in 1937 she gave birth to a son who lived for only nine days. This child was born in the early part of 1937-The third plaintiff herself says that the child was born in her husband's house and that she did not leave her husband for her father's house until some time in the month of August, 1938.
20. Appeal Nos. 500 and 501 of 1943 must be dismissed. It is not necessary to decide whether the fourth defendant is the illegitimate son of the first defendant, and consequently the memorandum of objections by the first defendant in Appeal No. 500 of 1943 must also be dismissed.
21. In Appeal No. 233 of 1943, the first, second and fifth defendants will pay the costs of the plaintiffs. There will be no order as to costs on the memorandum of objections filed by the second and third plaintiffs. In Appeal Nos. 500 and 501 of 1943 the third and fourth defendants will pay the costs of the plaintiffs and of the first defendant. As they have appealed in forma pauperis they will also pay the requisite court-fees to the Government. There will be no order as to costs on the memorandum of cross-objections filed by the first defendant in Appeal No. 500 of 1943.