John Wallis, C.J.
1. I have already attempted to summarise the decisions upon this subject in my order of reference and need not go over the ground again. The order of Seshagiri Ayyar, J., proceeds upon the ground that the illegitimate son of a Sudra is not entitled to inherit unless the mother was competent to marry the father, and he holds that the mother in this case was not competent on two grounds that she was not a Sudra and not an unmarried woman. After hearing the question further argued we think it is unnecessary in our opinion to consider what are the essentials of a marriage among Sudras, because we are not satisfied, that this is the test to he applied. To satisfy the texts it must be shown that the mother is a dasi, not that she is qualified to become a wife. As regards her being unmarried woman the Dayabhaga no doubt mentions this, but this text has been interpreted as meaning not married to the father of the child--Vencatachella Chetty v. Parvatham (1875) 8 M.H.C.R. 143, Karuppannan Chetti v. Bulokam Chetti I.L.R. (1900) Mad. 16, Annayyan v. Chinnan I.L.R. (1910) Mad. 366 and Padala. Krishna Rao v. Padala Kumarajamma 15 NDI.CAS. 340--and this is how the passage was understood by Medatithi. However this may be, we think that the plaintiff's mother who followed the profession of a dancing girl was not a married woman. The only other question then is, was she a dasi? Dasi is the feminine of dasa which according to Mac Donnell's Vedic Index, volume I, page 356, volume II, page 388 at first meant 'an enemy' and was afterwards applied to conquered enemies reduced to a servile condition. The word dasa was long applied to this class, the term Sudra being introduced later, and even to this day dasa and dasi are in use in some parts of India as suffixes to Sudra names in the same way as Ayyar, etc., in the case of Brahmin names.
2. Professor Jolly in the Tagore lectures for 1888 at page 187, draws attention to the fact that Medatithi, who flourished before Vijnareswara, understood the text as meaning the son of a Sudra by a woman neither married to him nor authorized to raise offspring (according to the custom of Niyoga). Professor Jolly also refers to the fact that the term dasi was also understood by the commentators as meaning a prostitute, citing the Calcutta edition of the second part of the Mitakshara where the term dasi in a passage in Yajnavalkya is explained as meaning a lewd married woman or prostitute. He also alludes to the common use of the word in South India to denote the consecrated female dancers attached to temples. In these circumstances it seems difficult to say that women of this class are not dasis within the meaning of the texts. We are not satisfied that the passage of the Mitakshara cited by Seshagiri Ayyar, J., is sufficient authority for holding dancing girls to form a separate caste, though this again does not appear to be very material, as it cannot be said that according to Hindu ideas unions of this kind are regarded more unfavourably than unions founded on the seduction of an unmarried Hindu woman not belonging to this class. It has not been shown that in practice the offspring of such unions which are very common have been regarded as having less claim to inherit than the children of concubines who had not been dancing girls.
3. In Brindavana v. Radhamani I.L.R. (1889) Mad. 72, the learned Judges in their observations at page 87, though they do not decide the point, were apparently inclined to hold that a dancing girl might become the mother of an illegitimate child within the meaning of the Mitakshara law. The learned Judges who decided Sundaram v. Meenakshi Achi 16 Ind.Cas. 787, expressly reserved this point, and their decision may possibly be explained on the ground that a woman who continued to do service in the temple could not be regarded as an exclusive and continuous concubine. The limitation as to her being an exclusive and continuous concubine is not to be found in the texts and appears to have been imposed by the Courts as necessary to secure due evidence of the paternity, just as the further restriction that the connection must not have been incestuous or adulterous was imposed on general grounds of morality. The partial rights of succession which are conferred upon illegitimata children under Hindu law may be matter for regret, but we should not, in my opinion, be justified in imposing for this reason fresh restrictions which are not shown to be supported by authority or in conformity with the practice of the community.
4. I agree and need only add a few words with reference to a case relied on by the respondent's vakil, Sundaram v. Meenakshi Achi 16 Ind.Cas. 787, to the decision of which I was a party. The circumstances of that case, and in particular the fact that the plaintiff's mother while in the keeping of his father, did not give up her profession as a dancing girl attached to the temple made it difficult to say that the finding of the original Court that she was not kept by him exclusively was wrong. Speaking for myself this consideration strongly affected the decision of the ease; and I do not think the judgment of my learned brother, SANKARAN NAIR, J., in which I concurred, should be treated as laying down any general principle of restriction of the right of inheritance of an illegitimate son of Sudra.
Sadasiva Ayyar, J.
5. The learned Chief Justice in his referring order has summarised the rulings in all the important cases on the question of the right of the illegitimate son of a Sudra to claim a share in paternal property. I may state shortly that I respectfully adopt the opinion of Sir S. SUBRAHMANYA AYYAR, J., in Karuppannan Chetti v. Bulokam Chetti I.L.R. (1900) Mad. 16, that the son of a Sudra woman continuously kept by a Sudra father is entitled to obtain a full share in the father's property at his father's choice during the father's life-time and to obtain a half share with the legitimate sons of the father after the father's death if the connection between his father and his mother was neither adulterous nor incestuous. I might be permitted to state that that decision was given in Second Appeal in a suit which was decided by myself as District Munsif. I was inclined to hold in that case (decided so long ago as in 1896 or 1897) that the son of a Sudra male born of a permanent female concubine of the Sudra caste is, strictly speaking, not an illegitimate son but a legitimate (sic) aurasa son born of a Gandharva marriage. In the very recent case Minakshi v. Muniandi Panikkar I.L.R. (1915) Mad. 1144; S.C. 27 M.L.J. 353 et seq, my learned brother, Seshagiri Ayyar, J., says at page 360: 'I am of opinion that this treatment' (that is, the favourable treatment of illegitimate sons of Sudras as regards right to share in paternal and ancestral property) ' was due to the idea that marriage among them (Sudras) was not so strictly formal and ceremonial as in the case of the higher classes. Continuous concubinage was regarded as equivalent to marriage although the children of this irregular union did not rank equally with those with whose mother there was a formal marriage.'
6. As regards the translation of the word 'dasi' as 'female slave' in the text of Yajnavalkya as distinguished from an ordinary Sudra female, that translation has not been accepted by the Madras and Bombay High Courts and very rightly, if I may say so with respect. Dasa, according to Apte's Sanskrit Dictionary, has got also the following meanings: a servant in general, a Sudra, a man of the fourth caste, the caste-title of a Sudra. Dasi has got the meaning of a 'female servant.' The Sudra caste was formerly the servant caste. The members belonging to the Sudra caste even in the old days ought not to be called 'slaves' as they had very substantial rights against their masters; see also Chatturbhuj Patnaik v. Krishna Chandra Patnaik 17 C.W.N. 442, as to the meanings of 'dasa,' 'dasi' and 'dasiputra.' See also Manu, Chapter VIII, Slokas 413 and 444 as to a Sudra being by his natural qualities an irredeemable servant or Dasa of the higher castes.
7. When the connection between a Sudra male and a Sudra female begins in mutual love and they live together as husband and wife continuously by mutual understanding or agreement, I held long ago that such connection was created by the Gandharva form of marriage. Mr. B. Sitarama Rao, the learned vakil for the third respondent suggested that the Gandharva form of marriage was never legal for Sudras. I am unable to accept the suggestion. A reference to Manu, Chapter III, Slokas 23 to 25 would indicate that the Gandharva and Asura forms were considered as the most proper forms of marriage for the servant class by the majority of the old lawyers though, speaking for himself, Manu would treat the Asura form as illegal even for Sudras and leave the Gandharva form alone as the approved form. If then continuous concubinage is equivalent to marriage' among Sudras, it seems difficult to hold in strict logic that the son born of such a marriage is an illegitimate son. But my opinion that such a son is, according to the Shastras, an aurasa (sic) legitimate son cannot now be sustained in a Court of law in the face of the decisions which describe such a son as an illegitimate son. I therefore concur respectfully with the judgment of My Lord the Chief Justice just now pronounced that according to the preponderating weight of the case-law the son by a permanent concubine while he is an illegitimate son and not a legitimate son is entitled to get his appropriate share after the father's death provided the connection between his father and his mother was not incestuous or adulterous and that his said right is not subject to a further condition that a marriage could have taken place between the father and. the mother according to the custom of the caste to which the mother belonged. I respectfully dissent from the decision in Annayyan v. Chinnan I.L.R. (1910) Mad. 366, which holds the contrary. When the legislature itself treats the marriage of all widows (including a Brahmin widow) as lawful, it seems to me rather difficult to hold that the permanent connection between a Sudra, widow and a Sudra male is equivalent to an incestuous and adulterous connection because in the sub-caste of the lady, remarriage is not approved of by custom and to hold in consequence that the son born of such a connection is not entitled to a share. I am for the same reason not prepared to follow the decision in Padala Krishna Rao v. Padala Kumarajamma 15 Ind.Cas. 340, which goes even further than the decision in Annayyan v. Chinnan I.L.R. (1910) Mad. 366.
8. Mr. B. Sitharama Rao argued for imposing still another restriction that the mother must have been a virgin when she became the permanent concubine of the plaintiff's father. There is nothing in the Hindu Law texts to support that contention. The well-known text of Manu that the panigrahaniha-mantras can be pronounced only at the marriages of virgins has no relevancy in this connection as the recitation of Vedic Mantras were neither necessary nor permitted in the conduct of marriages among Sudras.
9. The next question is whether the plaintiff's father was a, Sudra and the plaintiff's mother also was a Sudra woman, it being not denied that their connection was neither adulterous nor in cestuous. It seems not to have been contested in the lower Courts, and it was not contested before us, that a. Nattukottai Chetty belongs to the Sudra caste. No doubt, according to very learned Sanskrit scholars like Pandit A. Mahadeva Sastri and the late Diwan Bahadur Raghunatha Rao, a Nattukottai Chetty who belongs to a caste whose profession is not menial service but trading enterprise and money-lending ought not to be called a Sudra. In fact, it sounds very grotesque now-a-days in the ears of many cultured Hindus to call that community Sudras and not Vaisyas. But, as my learned brother SESHAGIRI AYYAR, J., said in Muthukaruppa Pillai v. Kanahammal (1914) 16 M.L.T.587 : 26 M.L.J. 587, the Sastras cannot go against 'usage' and according to custom and the consciousness of the vast majority of the Hindus, Nattukottai Chettis are Sudras. Hence they must be considered to belong to the. Sudra caste.
10. As regards the dancing girl caste, in Palni, Coimbatore and other places, they are usually known as belonging to the Kaihola Mudali caste. Of course, this Kaihola Mudali caste should not be confounded with the respectable caste of high class Mudaliyars. But still Kaihola Mudalis are always recognized by usage as belonging to the Sudra caste and though many of the females of the caste take to the profession of the dancing girls, a respectable proportion are hulastris. Other sub-sections of the dancing girl caste call themselves Kavarais (again not to be confounded with the high class Kavarais) and the Telugu dancing girls call themselves Sanis. Permanent concubinage of females belonging to these castes with males belonging to the several respectable sub divisions of the Sudra caste is not very uncommon and the children of such unions after a few years (if the father is a very respectable and influential man) or after a few generations (if the descendants continue to lead respectable lives) are quietly incorporated into the father's respectable Sudra sub-caste, the progeny calling themselves Mudaliyars, Nayudus, Pillais and so on. Such an elevation to respectability is not at all opposed to the genius of the Hindu Social polity. Manu says in chapter X: 'Should the tribe sprung from a Brahman by a Sudra woman reproduce a succession of children by the marriages of its women with other Brahmans, the low tribe shall be raised to the highest in the seventh generation.'
As the son of a Sudra may thus attain the rank of a Brahman and as the son of a Brahman may sink to a level with Sudras, even so must it be with him who springs from a Kshatriya, even so with him who was born of a Vaisya.
He who was begotten by an exalted man on a base woman may, by his good acts, become respectable.
11. It is, however, said that these dancing girl dasis ought not to be classed as Sudras but as belonging to a fifth caste, and reliance is placed upon the commentary of Vijnaneswara (in the Mitakshara) on the 290th verse of Yajnavalkya. Chapter XXIV in which the verse occurs relates to the subject of illicit intercourse with women and has nothing to do with the law relating to marriage or legitimacy or caste except in a very remote and indirect way. (Colebrooke did not translate the later portions of the Mitakshara beginning with chapter IX of the Vyavahara Adhyaya of Yajnavalkya as they deal with those portions of the Hindu Law which need not and in many cases ought not to be applied by the British Courts of Justice.) A free translation of this 290th verse of Yajnavalkya is: 'In the case of women who are the house-bora servants of another or the kept mistresses of another, even though they are fit for intercourse' (that is, though there is no other objection to an intercourse with them) 'the man who has had such an intercourse shall be fined ten panas.' It is clear to my mind that Yajnavalkya when he uses the expression 'fit for intercourse' (sic) gamya in Sanskrit) means that the intercourse is not prohibited as adulterous or incestuous, etc. But the Mitakshara proceeds to invent an objector who says that as every intercourse with even an unmarried woman is immoral whether she belongs to the same caste or a lower caste, or an anuloma casta or a pratiloma caste, intercourse can never be permissible, that is, the woman cannot be 'fit for intercourse.' Vijnaneswara answers by saying that punishment by legal tribunals does not exist in the case of prostitutes who are not under the guardianship of the father or other guardian or in the case of an unmarried woman, who, though not a prostitute, is not the kept mistress or Dasi of one particular man. And he says that only a private prayaschittam for immorality is prescribed in such cases and not punishment (sic) (danda) by the king and his tribunals. 'For having intercourse-' with brutes or prostitutes, the prajapatya expiation is ordained.' Then he says that though originally there were only four castes or varnas, there have sprung up by the birth of illegitimate children among the castes, persons like kundas and golakas and their descendants, a very numerous class born of illicit connections of women with men of their own caste or of superior castes. This shows that a prostitute by profession born in any of the four castes was called vesya (sic). Then he refers to the Skandapurana and to the fanciful story of ethereal nymphs or Apsarasas called Panchachudas and their progeny who lead the life of prostitutes (but prostitution only with males, of their own birth-caste or with people of superior caste) and all these may be called a fifth caste. As far as I could understand the Mitakshara, the commentator does not intend to say that vesyas are not human beings. He might have meant that prostitutes being the progeny of illicit connections in all varnas may be fancifully styled to be the descendants of the Apsarasas called Panchachudas, for immediately afterwards he says that a vesya might have lawful connection with a man of an equal or superior caste. It seems to be the same sort of allegorical description which says that the four castes were born from and even now form the limbs and organs of the Prajapati Purusha. It is well known that the original Skandapurana has been so much expanded by the addition of fanciful stories (including many recent Sthalamahatmyams) that it is very difficult to say of any passage alleged to be found therein that it is undoubtedly genuine. I shall now say a few words on the value to be given to such passages when the community has not adopted the view enunciated in those passages. The Privy Council has declared that ' under the Hindu system of the law, clear proof of usage will outweigh the written text of the law.' In one recent case, the following passage occurs: 'I would say, as a judge who is bound to follow the authority of the Privy Council, that the rules of the commentators must be discarded, if opposed to custom. ' ' Several instances might be cited to show that practices which were valid according to the ancient books are not legally valid now' : for example Niyoga--The Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 M.I.A. 397. Mr. Justice Bhashyam Ayyangar was of opinion that the rule as to lameness being a bar to inheritance had become obsolete: see Venkata Svbba Rao v. Purushottam I.L.R. (1903) Mad. 133. The same learned Judge in Karuppai Nachiar v. Sankaranarayanan Ghetty I.L.R. (1904)Mad. 300 said that 'this branch of the law relating to 'putrika-putra' is now obsolete.' So also it has been held that the rule as to impartibility of waters found in the Mitakshara has become obsolete. Again Abdur Rahim, J., in Viswanathaswamy Naicker v. Kamu Ammal : (1913)24MLJ271 , said, 'supposing for argument's sake that the Gandharva form of marriage would according to the ancient texts, be permissible among the Sudras, I am of opinion that so far as this caste is concerned, it must upon the evidence in the case be held to be obsolete and DO longer recognised as valid. It has beeD strongly contended that if ancient Hindu Law texts sanction this form of marriage we must hold that it is valid. But I am not inclined to accept that position. If I find that a certain caste among the Hindus has long given up this form of marriage and this is shown by their consistently adopting other more regular forms, I do not think that we are still obliged to recognise its validity in that caste.' It is on account of such considerations that, as I said before, I felt obliged, sitting as a Judge, not to press my view that the son born of a permanent concubine to a Sudra is a legitimate son. On similar grounds I think that it is now difficult to hold that the dancing girl caste in the present day is not a sub-division of the Sudra caste, notwithstanding this fanciful story of the Skandapurana, used for a particular dialectical purpose by Vijnaneswara in connection with the question of punishment by the king for intercourse with a public prostitute. (Punishment by the king is Danda, while penance for the sin is Prayaschitta and the distinction is clearly made by Vijnaneswara.) I respectfully adopt the opinion of Sankaran Nair, J., that all those Hindu castes which are not proved to be twice-born must be treated as Sudras where it is admitted that they are not 'untouchables.' See Muthusami Mudaliat v. Masilamani I.L.R. (1910) Mad. 342. Persons belonging to the dancing girls' caste are freely allowed into temples and Brahman bouses and being caste Hindus, not belonging to any of the three twice-born castes, must, according to the clear consciousness of the vast majority of the Hindu community, be deemed to belong to the Sudra caste. Even if it be held that the Mitakshara does intend to treat a particular class of prostitutes who claimed to be the progeny of Apsarasas (called Panchachudas) as not belonging to the Sudra caste, but to a fifth varna there is nothing to show that the dancing girl caste to which the plaintiff's mother belonged was not derived from the Sudra caste but claimed to be descended from these Apsarasas.
12. Coming to the decision in Sundaram v. Meenakshi Achi Appeal No. 56 of 1908 quoted by the third respondent's vakil, that decision must be deemed to have proceeded on the facts of that particular case as pointed out by my learned brother, Ayling, J., in the judgment just now delivered by him. I do not think that in a different case where slightly different (though similar) facts are established the same conclusion against the existence of the relationship of permanent concubinage is bound to be arrived at. A man who allows his permanent; concubine to serve as a domestic servant for wages in a respectable household cannot, in my opinion, be held to have thereby destroyed the permanency of the connection between him and his said concubine any more than a husband who so allows his wife weakens the matrimonial relationship between himself and his wife.
13. In the result, I would answer the reference by saying that the plaintiff is entitled' to a share in the joint family property left by his father.