M.M. Dutt, J.
1. This appeal is at the instance of the plaintiff and it arises out of a suit for partition and accounts. The only point that is involved in this appeal is whether the illegitimate son of a Sudra by a Brahmin concubine is entitled to inherit his property along with his legitimate son.
2. The facts which have not been disputed before us are that the property in suit belonged to one Bhadreswar Gole, a Sudra, who died on February 24, 1944 leaving behind him the plaintiff Mongal, his illegitimate son, the defendant No. 1 Dhiren, his legitimate son and the defendant No. 2, his widow. About 30 years prior to his death, Bhadreswar had kept the plaintiff's mother Urmila Bala Debi, a Brahmin widow as his mistress and lived with her as husband and wife till his death. When the plaintiff's mother was in the exclusive keeping of Bhadreswar, the plaintiff was born. Bhadreswar subsequently married the defendant No. 2 Monorama Dasi. The defendant No. 1 Dhiren is the son of Bhadreswar by Monorama. The parties are governed by the Dayabhaga School of Hindu Law. The plaintiff claims that as the illegitimate son of his father he has inherited l/4th share in the properties in suit, that is, half of the share inherited by the defendant No. 1, the legitimate son of Bhadreswar.
3. The defendants contested the claim of the plaintiff. It was inter alia contended by them that as the plaintiff's mother was a Brahmin woman, he was not entitled to have any share in the properties left by Bhadreswar.
4. The learned Subordinate Judge, First Court, Hooghly, took the view that the plaintiff being the illegitimate son of Bhadreswar, a Sudra, begotten of his mother Urmila Bala Debi, a Brahmin lady, he is not entitled to any share in the properties in suit. In that view of the matter, he dismissed the suit, Hence, this appeal.
5. It is not disputed that as Bhadreswar died in 1944, the Hindu Succession Act 1956 is inapplicable. The point with which we are concerned is of some importance, for so far as this Court is concerned, it is a point of first impression. It is now well-settled that the illegitimate son of a Sudra has the status of a son and is entitled to inherit his father along with his legitimate sons.
6. We may now refer to paragraph 29 of Chapter IX of Dayabhaga of Jimutavahana which is as follows:--
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Paragraph 29 has been translated by Cole-brooke as follows:--
'But the son of Sudra, by a female slave or other unmarried Sudra woman, may share equally with other sons, by consent of the father. Thus, Manu says, 'A son begotten by a man of the servile class on his female slave, or on the female slave of his slave, may take a share of the heritage, if permitted'. Thus is the law established.'
7. In Rajani Nath Das v. Nitai Chandra De, 25 Cal WN 433 = (AIR 1921 Cal 820) (FB), the points, namely, whether paragraph 29 as translated by Cole-brooke was correct and whether the words 'female slave' also included a concubine inter alia came up for consideration before the Full Bench of this Court, In the case before the Full Bench the concubine was a Sudra woman. Sir Ashutosh Mookerjee, who delivered the majority judgment of the Full Bench held as follows:--
(a) The text of the Dayabhaga, Chapter IX, para. 29, as given in the edition of Bharat Chandra Siromoni, must be accepted as the basis of our decision. Tested from the point of view of that text, the translation Riven by Mr. Justice Mitter in Narayan v. Rakhal, ((1875) ILR 1 Cal 1) and followed by Mr. Justice Ghose in Kripal v. Sukurmani, ((1891) ILR 19 Cal 91) and Ramsaran v. Tekchand. ((1902) ILR 29 Cal 194), must be pronounced to be inaccurate in a material particular.
(b) The term 'Dasi' is not exclusively applicable to a female slave, but includes a Sudra woman kept as a concubine. According to the correct interpretation of Para. 29 of Chapter IX of the Dayabhaga, the term 'Dasyadi Sudraputra' includes the son of a Dasi or the like; It is not restricted only to the son of a Dasi or the Dasi (slave woman or wife) of a Dasa. In the same text, the term 'Aparinita' means not 'a maiden', but 'not married (to the Sudra to whom she bears a son)'.
(c) Under the Bengal School of Hindu Law, correctly interpreted, an illegitimate son of a Sudra is entitled as a Dasiputra to a share of the inheritance, provided that his mother was in the continuous and exclusive keeping of his father, and he was not the fruit of an adulterous or an incestuous intercourse. This right is not subject either to the condition that his mother was a slave woman in the technical sense of the term or to the condition that a marriage could have taken place between his father and his mother. The contrary view taken in Narayan v. Rakhal and Kripal v. Sukurmani cannot be supported.'
8. The above decision of the Full Bench has been relied on by both parties. While it has been contended by Mr. Asoke Kumar Sen Gupta, learned Advocate appearing on behalf of the plaintiff-appellant that according to the decision of the Full Bench a concubine of a Sudra may belong to any caste, Mr. Ranjit Kumar Banerjee, learned Advocate appearing on behalf of the defendants-respondents has urged that the Full Bench has specifically ruled that the concubine must be a Sudra woman. He has placed reliance on the sentence 'the term 'Dasi' is not exclusively applicable to a female slave but includes a Sudra woman kept as a concubine.' We are unable to accept either of the contentions. Before the Full Bench it was argued that a concubine was not contemplated by the term 'Dasi' or a female slave. It is true that according to the Full Bench, the term includes a Sudra woman kept as a concubine, but upon a careful consideration of the decision of the Full Bench, we do not think that the Full Bench laid down the law that the concubine must be a Sudra woman. The question before the Full Bench was not as to the caste to which a concubine or a kept mistress of a Sudra should belong, but as stated above, the question was whether the term 'Dasi' or a female slave included a concubine. In view of the fact that the kept mistress was a Sudra woman, the Full Bench held that the term included a Sudra woman. In coming to the conclusion that the word 'Dasi' includes a concubine, Sir Ashutosh relied on the commentaries of Medhatithi and Sarvajna Narayana on Manu, For our purpose, we may quote a portion from Verse 179, Book IX of Medhatithi's commentaries on Manu;
'This is the son begotten of a Sudra on a woman though not married to him (Anuhraya) or appointed (for raising issue) (Aniyuktaya).'
9. Again Verse 179, Book IX of Sarbajna Narayan's commentaries on Manu is as follows:
'On a Dasi (means) on a woman not married to the Sudra, so also issue procreated by the Sudra, who is the master or chief, on a Dasi who is such of the Dasa of the Sudra, he is also to be given the Sudra's share -- that is the meaning ......
10. Professor Jolly (Tagore Law Lectures, Page 187) has summarised the said passage of Medhatithy's commentary as follows:
'The term 'a Sudra's son by a Dasi' means a son begotten by him on a woman neither married to him nor authorised to raise offspring (according to the custom of Niyoga) ...............'
It is clear from the passages quoted above that the two commentators Medhatithi and Sarbajna Narayan interpreted the term 'Dasi' occurring in the text of Manu as meaning a woman not married to the Sudra nor authorised to raise issue. They did not, however, include within the meaning given by them a further qualification that such a woman must be Sudra woman. In this connection, it may be stated that in his judgment Sir Ashutosh pointed out that in Southern India the term 'Dasi' is applied also to a female dancer attached to a temple (See also Soundararajan v. Arunachalam Chetty, AIR 1916 Mad 1170 = ILR 39 Mad 136 (FB)).
11. According to Jimutavahana, the son of a Sudra may be by a female slave or other unmarried Sudra woman. If it was meant that a female slave which includes a concubine must be a Sudra woman, then it was not at all necessary to provide that the son might be by other unmarried Sudra woman. The word 'Aparinita' in paragraph 29 of Chap. IX of Dayabhaga of Jimutavahana has been interpreted by the Full Bench as 'not married to the Sudra'. In our view, Jimutavahana did not specify the caste to which a concubine should belong. The text of Manu as interpreted by Medhatithi and Sarbajna Narayan, does not also lay down that a Dasi must also be a Sudra woman.
12. It is, however, contended by Mr. Banerjee that under the Hindu Law a marriage between a Sudra and a woman of a higher caste, that is, a Pratiloma marriage, is forbidden. He submits that when the Hindu Sastras disfavour a Pratiloma marriage, it is unthinkable that Pratiloma connection which is worse than a Pratiloma marriage between a Sudra and a Brahmin woman is permissible so that the son begotten by them will have the right of inheritance. In support of his contention he has strongly relied on a decision in Ramchandra Boddappa v. Hanamnaik, AIR 1936 Bom 1. It has been held by a learned Single Judge of the Bombay High Court that any relationship between a Sudra male and a Brahmin female, whether it purports to be a relationship by so-called marriage or a state of concubinage, is not recognised by the Hindu Law and, therefore, children begotten by such couples are regarded as chandals and outcastes and are not Dasiputras and so they cannot claim any right to share in the property of their father. In coming to the said conclusion, the learned Judge has placed reliance on text No. 93 of Yajnavalkya which says: 'One begotten on a Brahmim woman by a Kshatriya is a suta, by a Vaishya, a vaidehaka and by a Sudra, a chandal, outcastes to all religion.' Further, the learned Judge has relied on the observation of the Privy Council in Raoji Rupa v. Kujalal Hiralal, AIR 1930 PC 163. In that case, the Privy Council observed that the term 'Dasiputra' no doubt originally meant sons of a female slave, but in Western India, at all events, it has come to mean sons by a kept mistress of one of the lower castes. In making that observation, their Lordships of the Privy Council referred to two decisions of the Bombay High Court, namely, Rahi v. Govind, (1875) ILR 1 Bom 97 and Sadu v. Baiza, (1878) ILR 4 Bom 37 (FB).
13. There can be no doubt that Ramchandra's case supports the contention of the respondents, but we regret we are unable to accept the view expressed by the learned Single Judge of the Bombay High Court. In the case before the Privy Council referred to above, the point with which we are concerned was not in issue either directly or indirectly, and it seems to us that their Lordships did not intend to lay down the law in the light of the said observation. Moreover, in that case, the illegitimate sons did not claim the right of inheritance but the dispute was with regard to their maintenance. It has been already stated that the term 'Dasi' has been interpreted as a female slave or a concubine. There is no indication either by Jimutavahana or Yajna-valkya that a female slave or a concubine must belong to the Sudra community. There is also no indication in that regard by the Text and Smriti Writers. The ancient law-givers were quite conscious of the rule that Pratiloma marriage was forbidden. But in granting the right of inheritance to the offspring begotten by a Sudra on a female slave or a concubine, they did not put any restriction as to the caste of the concubine. They were very strict in the matter of marriage in that they did not allow such right to the issue of a marriage between a Sudra and a Brahmin woman and treated such issue as a chandal, but it seems that they took a liberal and compassionate view regarding the offspring of a Sudra by his Brahmin concubine. Hindu society was founded on caste system and in order to maintain this foundation inter-caste marriages were forbidden, for if such marriages were allowed the foundation would be shaken and the caste system would fall. At the same time, they were not oblivious of some lapses from virtue, for instance, illicit connection between a Sudra and a Brahmin woman, and in the best interest of the society, the son be-botten of such connection was conferred with the right of inheritance, provided the woman was not married to the Sudra and was in his exclusive keeping. The condition that the woman must not be married to the Sudra is strongly indicative of the fact that violation of the rules of marriage was not tolerated. Considered from the above point of view, we are unable to accept the contention of the respondents.
14. We may now refer to a decision of the Supreme Court in Amireddi Raja Gopala Rao v. Amireddi Sitharamamma, : 3SCR122 . In that case, Sitaramarnma, a Brahmin woman, during the lifetime of her husband became the kept mistress of one Lingayya, a Sudra. Since she became the mistress, she preserved sexual fidelity to Lingayya. Lingayya died leaving Sitaramamma and two sons by her. They filed a suit against the brother and the brother's sons of Lingayya claiming that they were exclusively entitled to the estate left by Lingayya. Their claim was rejected only on the ground that as the husband of Sitaramamma was alive, the sons of Lingayya by Sitaramamma were born as a result of an adultero s and incestuous connection and, as such, they were not Dassiputras, and consequently not entitled to inherit the estate of Lingayya. It was, however, held that they were entitled to maintenance and the Andhra Pradesh High Court granted them leave to amend the plaint reducing the claim to one for maintenance. Thereafter, their claim for maintenance was decreed by the trial Court and upheld by the High Court, The brother and the brother's sons of Lingayya challenged the decree for maintenance by an appeal before the Supreme Court. The Supreme Court upheld the decision of the Andhra Pradesh High Court granting maintenance to the illegitimate children of Lingayya. We have referred to this decision for the purpose of pointing out one significant fact that the Andhra Pradesh High Court did not dismiss the claim of the kept mistress and her children on the ground that as the connection between her and Lingayya was Pratiloma, the children of such connection were chandals and, accordingly, had no status of a son. But as stated above, their claim was refused on the ground that the connection was incestuous and adulterous. The Supreme Court also upheld the decision of the Andhra Pradesh High Court disallowing the claim of the illegitimate children of Lingayya on the sole ground that as the husband of Sitaramamma was alive, the connection between her and Lingayya was adulterous and incestuous and, as such, they were not entitled to inherit but only to maintenance. Although the decision of the Supreme Court is not directly on the point, it seems to us that indirectly the Supreme Court approved the proposition that the illegitimate children of a Sudra by a kept mistress of the Brahmin community would get the status of a son provided they were not born as a result of an incestuous or adulterous connection,
15. After carefully considering the Hindu Texts and the contentions made on behalf of either party, we are of the view that the appellant Mongal Chandra Gole, who is the illegitimate son of Bhadreswar, a Sudra, by a Brahmin concubine has the status of a son and is according to Dayabhaga School of Hindu Law, entitled to 1/4th share in the properties in suit, that is, half of the share of the legitimate son, the defendant no. 1 Dhirendra Nath Gole.
16. For the reasons aforesaid, the judgment and decree of the learned Subordinate Judge are set aside and the suit is decreed in a preliminary form. The 1/4th share of the plaintiff-appellant in the suit properties 19 declared. The parties are granted two months time to effect an amicable partition; in default, the appellant will be entitled to apply for the appointment of a Commissioner for partition and for a final decree for partition of his 1/4th share by metes and bounds.
17. The appeal is allowed, but in view of the facts and circumstances of the case, we direct each party to bear his own costs in the Trial Court as also in this Court.
18. I agree.