1. This is a suit for maintenance by the illegitimate sons of one Chidambira Mudali, deceased, against his undivided brothers and their sons. The Subordinate Judge has decreed the plaintiffs' claim with some modification as regards the amount; and the defendants appeal. It has been assumed by the Subordinate Judge for the purpose of his decision that Umayal, the mother of the plaintiffs, was a married woman who was living with Chidam-bara Mudali as his concubine.
2. The first question is whether the plaintiffs are entitled to maintenance? and, the second, whether they are entitled to it against the father's undivided brothers and their sons in consequence of their having taken the father's share of the family property by survivorship? It is altogether useless to consider whether the Hindu law as regards the claims of illegitimate sons as now administered is in accord with the ancient Hindu texts or even the authoritative commentaries. It is true the High Court of Calcutta still adheres to the literal interpretation of the texts holding that the illegitimate son entitled to inherit amongst Sudras is the son of the female slave. [See the oases of Narain Dhara v. Rakhal Gain I.L.R. (1876) Cal. 1, Kirpal Narain Tewari v. Sukurmoni I.L.R. (1892) Cal. 91, and Ram Saran Garain v. Tekchand Garain I.L.R. (1901) Cal. 194]. But the High Court of Madras, as well as the High Courts of Bombay and Allahabad, have adopted the view that an unmarried woman kept as a continuous concubine is on the same footing as the female slave with reference to the rights of the illegitimate sons born to them. [See the cases of Krishnayyan v. Muthusami I.L.R. (1884) Mad. 407, Ranoji v. Kandoji (1885) I.L.R. 8 Mad. 557, Rahi and Ors. v. Govinda Valad Teja I.L.R. (1875) Bom. 97, Sadu v. Baiza and Gonu I.L.R. (1880) Bom. 37, Sarasuti v. Mannu I.L.R. (1879) All. 134, and Hargobind Kuari v. Dharam Singh I.L.R. (1884) All. 329]. But even this rule as to the mother being an unmarried woman has been relaxed as regards the illegitimate sons' right to maintenance. [See the cases of Vencatachella Chetty v. Parvatham (1875) 8 M.H.C.R. 134; Viraramuthi Udayan v. Singaravelu I.L.R. (1877) Mad. 306, and Kuppa v. Singaravelu I.L.R. (1885) Mad. 325.] We think it too late to go back on this line of authorities. In the case of Viraramuthi Udayan v. Singaravelu (1877) I.L.R. 1 Mad. 306, the claimant was the offspring of an adulterous intercourse; and so also in the case of Kuppa v. Singaravelu I.L.R. (1885) Mad. 325, In the case of Rahi and Ors. v. Govinda Valad Teja I.L.R. (1875) Bom. 97, the Bombay High Court decided that the illegitimate son by an adulterous intercourse was entitled to maintenance.
3. The next question is whether the decree against the surviving members of the family is right. In Chuoturya Run Murdun Syn v. Sahib Purhlulad Syn (1857) 7 M.I.A. 18, a decree for maintenance was made by the Privy Council in favour of an illegitimate son by a Sudra concubine against a successor to the Raj of the putative father. In Muttusawmy Jagavera Yettappa Naicker v. Vencataswara Yottaya (1868) 12 M.I.A. 203, the same tribunal awarded maintenance to the son of the concubine of a Sudra zamindar and directed an enquiry as to the existence of private property of the putative father, and in its absence as to charging the income of the zamindari with the amount of maintenance. In both these cases the estates concerned would seem to have been impartible and at least one of them descendible according to the rule of survivorship. In Ananthaya v. Vishnu I.L.R. (1894) I.L.R. 17 Mad. 160, Muthusami Ayyar and Best, 33, charged the maintenance awarded to the illegitimate son against the family properties in the hands of the survivors. And in Gopalasami Chetti v. Arunachellam Chetti I.L.R. (1904) Mad. 32, a decree was passed by Benson and Bhashyam Iyengar, JJ., against the brothers and legitimate sons of the putative father.
4. It has however been argued that whatever justification there may be for passing such a decree in favour of illegitimate sons by a concubine who was not a married woman, such a decree is improper when the claimants are the offspring of an adulterous intercourse. It is difficult to suggest any principle upon which this distinction can rest. Although this Court has refused to give a decree for a share to the illegitimate son of a Sudra where he is the offspring of an adulterous intercourse [see the cases of Datti Parisi Nayudu v. Datti Bangaru Nayudu (1869) 4 M.H.C.R. 204, Vencatachella Chetti v. Parvatham (1875) 8 M.H.C.R. 134, Annayn v. Ghinnan I.L.R. (1910) Mad. 366] his claim to maintenance has always been recognised. We are aware of no instance where such a claim, if valid against the putative father has not been held good against the surviving members of the joint family who have taken his share by survivorship. In Viraramuthi Udayan v. Singaravelu I.L.R. (1877) Mad. 306, the claim was recognised against the legitimate sons who presumably took the property by survivorship. In Ananthaya v. Vishnu I.L.R. (1894) Mad. 160, it was pointed out by Muthusami Ayyar and Best, JJ., that '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'. If this be the correct theory on which maintenance is awarded, we can see no distinction between the case of the offspring of an adulterous intercourse and the illegitimate son by an unmarried woman, in so far as they are entitled to maintenance against the putative father or the successors to his property.
5. It has been contended that whare the illegitimate son is the offspring of an adulterous intercourse no rights should accrue as he comes into being by a violation of the Criminal law. But intercourse with a married Woman is not always a crime. And though there is authority for the position that the criminal him-salf should not acquire rights by the crime [see the case of Vedanayaga Mudaliar v. Vedammal I.L.R. (1904) Mad. 591], there is no warrant for holding that the offspring of a criminal intercourse should be deprived of all rights. It is difficult to find in the Hindu Law, which recognised twelve sorts of sons, including the Kshetraja and the Gudhaja, a negation of rights of maintenance on the ground of the criminal origin of a class of illegitimate sons, At all events we cannot develop any new legal theory for the sake of denying to illegitimate sons of married women maintenance against the surveying members of the putative father's joint family when it has already been judicially allowed against the fathers themselves.
6. We are therefore constrained to hold that the decree of the Court below is right and we dismiss the second appeal with costs.