Soundararajam By His Mother and Next Friend Kannammal vs T.R.M.A.R.R.M. Arunachalam Chetty (Deceased) and Others

John Wallis, C.J.—The plaintiff in this suit, as the illegitimate son by a dancing woman of the late Ramasawmi Chettiar, a Nattukottai Chetty, seeks to recover a one-third share of the joint family properties, as against the legitimate son, the 1st defendant, who would otherwise take the whole by survivorship. The Subordinate Judge found that the paternity of the plaintiff was not proved and dismissed the suit. We are unable to agree with this conclusion.

The deceased, as found by the Subordinate Judge, appears to have become acquainted with the plaintiff''s mother in 1900, when she had for some years been carrying on the profession of a dancing girl and a prostitute. He set her up in a house at Srirangam, near Trichinopoly, where he carried on business, and lived with her there for some years. Shortly before the plaintiff''s birth, early in 1903, he was imprisoned for fraud, and the correspondence shows that he regarded the child about to be born as his and that subsequently he recognised it as such. The correspondence also shows that his legitimate son, the 1st defendant, used to live in the house with his approval. In 1905, when the plaintiff was a little over two years old, the deceased refused any longer to maintain him and his mother, who petitioned the Assistant 1st Class Magistrate on his behalf for maintenance in Exhibit III. The order of the Assistant 1st Class Magistrate, which was rejected by the Subordinate Judge, but admitted by us as evidence of the conduct of the deceased with reference to this claim, shows he made no serious attempt to contest the petition, or show grounds for doubting his paternity, and in these circumstances very little weight attaches to the fresh evidence as to the conduct of the plaintiff''s mother prior to his birth, which has now been put forward for the first time. Further, that evidence in itself is of a very worthless kind, and is more than counterbalanced by the letters of the deceased, which show that he was at one time much attached to the plaintiff and recognised him as his son. The question then arises whether the plaintiff, as the son of the deceased by a woman of the position and antecedents of his mother, is entitled to claim a share of the joint family property as the illegitimate son of the deceased. It must now be taken as settled that the illegitimate children of the higher castes are not entitled to inherit Bhaiya Sher Bahadur v. Bhaiya Ganga Bakhsh Singh 22 Ind. Cas. 293 : 18 C.W.N. 401 : 12 A.L.J. 188 : 16 Bom. L.R. 306 : (1914) M.W.N. 184 : 15 M.L.T. 169 : 26 M.L.J. 291 but it is otherwise with Sudras. All the Courts recognise that the son of a Sudra by a dasi is entitled to inherit. Manu (IX, 179) and Yajnavalkya (II, 133) mention not only a dasi but also the wife of a dasa or slave, and the Dayabhaga adds "or other unmarried woman" which, as pointed out in Padala Krishna Rao v. Padala Kumarajamma 15 Ind. Cas. 340 may merely mean "not married to the father of the child." As pointed out in Krishnayyan v. Muttusami 7 M.k 407 the words "or other unmarried woman" do not occur in the Mitakshara or other commentators of the South. The Mitakshara merely speaks of a son begotten by a Sudra on a dasi. In a recent case in Chatturbhuj Patnaik v. Krishna Chandra Patnaik 17 Ind. Cas. 276 Mookerjee and Beachcroft, JJ., have given good reasons for doubting the correctness of the Calcutta decision that under the Dayabhaga this must be read as meaning a woman in the position of a slave," and have refused to follow these decisions in a case arising under the Mitakshara, agreeing in this with our own and the other High Courts. In this Court it is also well settled that the son must be born of a continuous concubine, and also that he must not be the issue of a connection that is incestuous or adulterous Krishtamma v. Papa 4 M.H.C.R. 234 though the latter condition is said to be disregarded in Bombay Rahi v. Govinda valad Teja 1 B.k 97. The question then is, are there any further restrictions? In Krishnayyan v. Muttusami 7 M.k 407 it is said that the reason of the rule is that the dasi''s son succeeded not as a slave, but as the son of one who was in the position of a substitute for a wife though not legally married. It is not clear that this meant more than that she must have been a continuous concubine, but it is now suggested, very largely on the authority of this passage, that she must have been qualified to marry the father. I do not think the learned Judges who decided Krishnayyan v. Muttusami 7 M. k 407intended to lay down any such rule, as one of them, Muthusawmi Aiyar, J., in a subsequent case, Brindavana v. Radhamani 12 M.k 72 expressly reserved the question whether a dancing girl could not give up her profession and be the mother of illegitimate children within the meaning of the Mitakshara Law. In Karuppannan Chetti v. Bulokam Chetti 23 M.k 16, to which Subrahmania Aiyar, J., was a party, it was held that the sons of a woman continuously kept by the father as a concubine whose connection was neither adulterous nor incestuous were in this Presidency entitled to inherit, but in Annayyan v. Chinnan 5 Ind. Cas. 84, White, C.J., and Benson, J., held that the son of a child widow, who had lived with the father as his concubine, could not inherit. This ruling appears to have been based on the finding that re-marriage of widows was forbidden among Sudras of the class to which the father belonged, and that the father and mother had been out-casted by their community in consequence of their living together. In these circumstances the connection was treated as one in violation of or forbidden by the father''s customary law. In Sundaram v. Meenakshi Achi 16 Ind. Cas. 787 it was held by Sankaran Nair and Ayling, JJ., that the son of a dancing girl who had formed her first connection with the father and lived with him ever since, was not entitled to inherit apparently on the ground that she had not severed her connection with the temple and so could not fulfil the duties of a wife, relying on the passage in Krishnayyan v. Muttusami 7 M. k 407 which I have already mentioned. In Meenakshi v. Muniandi Panikkan 25 Ind. Cas. 957where, however, the point did not arise for decision, my learned brother expressed the view that illegitimate children of Sudras were allowed to inherit because among them continuous concubinage was equivalent to marriage and in the judgment in the present case which I have had the advantage of reading, he has come to the conclusion that the plaintiff is not entitled to succeed because his mother in his opinion was not qualified to marry the plaintiff''s father. The question is one of considerable importance and, as the authorities are not uniform, I think it would be better before deciding it to refer to a Full Bench the question whether in the circumstances set out above the plaintiff is entitled to share in the joint family property.

Seshagiri Aiyar, J.

This is a suit by the son of a woman belonging to the dancing girls'' caste for a share in the property of one Ramasawmi Chettiar, who is alleged to have kept the plaintiff''s mother as his concubine. There is an alternative claim for maintenance. The 1st defendant is the son of the deceased by his wedded wife, the 3rd defendant. The defendants denied that the plaintiff was born to Ramasawmi Chetty. The Subordinate Judge came to the conclusion that the plaintiff was not born to the deceased and dismissed the suit. In the view he had taken, it was not necessary to consider the question of maintenance. The plaintiff has appealed.

I am unable to agree with the Subordinate Judge regarding the plaintiff''s paternity. It is in evidence that Ramasawmi Chetty carried on business as a banker at first in Trichinopoly. He subsequently took a mortgage of a house in Srirangam in November 1901 (Exhibit G). There can be no doubt that the plaintiff''s next friend, the dancing girl, was living in this house along with her sister and her paramour. The oral evidence on this point is consistent and is strengthened by Exhibit E (dated 25th December 1902), which was a rent-deed executed to Ramasawmi Chetty''s father by Subbu Singh, the paramour of the sister. The plaintiff was born in February 1903. Ramasawmi Chetty was then in jail, having been sentenced to six months'' rigorous imprisonment for criminal breach of trust. He came out of the jail in May 1903. The evidence given in this case admits of no doubt that from about June 1900, till Ramasawmi was sent to jail, he kept this woman as his concubine and lived from November 1901 in the same house with her till his conviction. Evidence has been let in that others were in the habit of frequenting the house. This is denied by the plaintiff''s witnesses. It is true that there is no presumption as in the case of a married woman that a child born during the period of concubinage is the paramour''s. The status of the woman and the fact that others had access to her are factors which negative such a presumption. In this case, the woman was living in the same house with Ramasawmi and he seems to have felt no doubt that the child born in February 1903 was his. In Exhibit A-8, written after the release from jail to this woman, he says, "You go as you please. I do not mind it. Support the thambi and hand him over to me. It is only for that, that I have written this letter." It is conceded that thambi referred to in this letter is the plaintiff. In Exhibit A-6, he calls himself the husband of the woman. In Exhibit A-4 he calls her his abhimana stri. In Exhibit B-2, written from the jail, he makes enquiries as to whether the child was delivered and asks Subbu Singh to see that the woman lives a respectable life. These letters, coupled with the oral evidence in this case and the fact of their residing together in the same house, leave no room for doubt that Ramasawmi Chetty was the father of the plaintiff.

Before dealing with the question of law which arises in the case, I should like to point out that I see no reason to disbelieve the evidence which has been adduced to the effect that when this woman became the concubine of Ramasawmi, she was not a virgin. She was then, according to one account, 23 years of age, and according to another, 27 years. It was admitted that she was a native of Ariyalur and that she was dedicated as a dasi in a temple there. Women of this class soon fall into evil ways. Mr. Aiya Aiyar did not seriously argue that she had not known others before she became Ramasawmi''s concubine. The evidence and the probabilities are against it. My conclusion is that she had been in the keeping of others before she came to Ramasawmi Chetty.

The point for decision is whether to a child born to a woman of the class and of the antecedents I have mentioned, the text of Yanjavalkya contained in the Mitakshara, Chapter 1, Section 12, applies. The sage says: "Even a son begotten by a Sudra on a female slave may take a share by the father''s choice." (Stokes'' Hindu Law Books, page 426.) Manu states the law in a slightly different way (Chapter IX, Section 179). The view of the Calcutta High Court in Narain Dhara v. Rakhal Gain 1 C.J. 23 W.R. 334 that the term dasi in Yajnavalkya''s text means only a female slave has not been accepted in Madras. See Krishnayyan v. Muttusami 7 M.k 407and Brindavana v. Radhamani 12 M. k 72. On the other hand, the interpretation of the text by Jimutavahana that the concubine should be unmarried has been regarded as correctly expressing the meaning of the sage. A further limitation that the kept woman must have been a continuous concubine has been insisted upon. Datti Parisi Nayudu v. Datti Bangaru Nayudu 4 M.H.C.H. 204; Kuppa v. Singaravelu 8 M.k 325; Karuppannan Chetti v. Bulokam Chetti 23 M.k 16; Rahi v. Govinda valad Teja. 1 B.k 97 and Dalip v. Ganpat 8 A.k 387. The object of these restrictions has been to confine the special rule of inheritance within strict limits, in order that no encouragement beyond what is absolutely within the letter of the law may be afforded. Therefore, to enable an illegitimate son to lay claim to a share in his father''s property, his mother must be a Sudra, must have been unmarried and must have been kept by the putative father as a continuous concubine. The question is, whether the plaintiff''s next friend satisfies all these requirements. I have come to the conclusion that in two essential particulars she is outside this rule of law.

In the first place, a dancing girl is not a Sudra. Manu in Chapter VIII, Section 415, describes a dasa or servant thus: "There are servants of seven sorts; one made captive under a standard or in battle, one maintained in consideration of service, one born of a female slave in the house, one sold, or given, or inherited from ancestors and one enslaved by way of punishment on his inability to pay a large fine." Narada gives 15 sources from which a dasa can be drawn. It is not necessary to refer to them as Balambhatta points out that the 15 classes are really amplifications of Manu''s seven classes. It need hardly be mentioned that a dasi (the feminine of dasa) should belong to one of these seven classes. Kulluka, Bhatta, in commenting upon Manu''s text, points out that a dasi must belong to one of the seven classes. Reference may also be made to the well-known Dictionary, the "Sabda-Kalpa Druma." It its clear that a dancing girl does not come under any one of the seven classes. These seven classes constitute, with those born as such, the Sudra caste. The matter is made very clear by the commentary of (Chapter 24 of Acharadhyaya of the Mitakshara entitled Stri-Sangrahana Prakarana"). The text of Yajnavalkya prescribes varying degrees of punishment for men and women who go wrong. In Sloka, 272 the Rishi prescribes a different kind of punishment for a man cohabiting with a vesya or dancing girl, from that prescribed for one having connection with a dasi. In commenting upon the term dasi, Vijnaneswara, at the outset of his commentary upon Sloka 290, says: * * * * (Ukta-lakshanavarnastriyodasyah). (Caste women of the above description are slaves). The reference here is to the 14th Prakarana and to the four castes. He then says that prostitutes are common to all men. He is met by the objection that there is nothing in the Sastras to countenance the theory that certain women are common to all men. The objector further points out that such women should belong to one of the four castes. It is desirable to quote here the exact language used by the objector."Again, by becoming a slave, a woman does not cease to be governed by her own personal law, for slavery deprives her of her independence and not of the law which otherwise governed her person. Nor are dancing girls common to all men, for beside the four castes and the caste resulting from the union of a male with a female of a lower caste, there is no separate caste in which women are common. If the dancing girls fall within those castes, they are, as already stated, not common. If, on the other hand, they belong to a class resulting from the union of males with females of higher castes, they are still further from being common. When, therefore, people have sexual intercourse with them, they are degraded for repeating a condemned act; and as a degraded (that is, declared an outcaste) person is ordained not to be associated with, dancing girls are not fit to be common to all people." The answer given to these objections is very explicit. The commentator justifies his position that the dancing girl herself is not to be punished as in the case of others, because she commits no sin in following her profession. On the question, whether she belongs to one of the four castes, the answer is in these terms: "What was said, therefore, that in the absence of any such separate caste, the dancing girls must belong to the caste system by the process of reasoning that, being human beings, they must, as Brahmins and others, belong to the caste system, is wrong, as the caste system does not cover the entire humanity, there being distinct classes, like the son born to a paramour while the husband is living and the widow''s son. Hence dancing girls form a separate class which has been in existence from time immemorial, which has resulted from the union of men of superior or equal caste with them (dancing girls) and whose profession is prostitution, and as this class, like that of Brahmins and others, has been well known to people, it is but fit that it should be recognised. Nor is the popular conviction unsupported by authority. It is said in the Skanda Purana, ''There was a celestial damsel named Panchachuda and her progeny formed the fifth caste of dancing girls.'' Therefore, not having the institution of marriage, they incur no sin in having sexual intercourse with men of superior or equal caste nor are they liable to punishment."

I have made these long quotations from the commentary because the statement therein contained is clear and decisive of the question before us. Some commentaries give a different origin to the term vesya. It is not necessary to pursue the Subject further. My conclusion, therefore, is that a dancing girl does not belong to the Sudra caste.

There has been no direct decision on this point. In Brindavana v. Badhamani 12 M.k 72. Sir Arthur Collins and Mr. Justice Muthuswami Aiyar left it open whether dancing girls may not give up their profession and become mothers of illegitimate children within the meaning of the Mitakshara Law." Mr. Justice Sankaran Nair in his judgment in Appeal No. 56 of 1908 considered it unnecessary to decide the point. In Chellammal v. Ranganatham Pillai 12 Ind. Cas. 247 the question whether a dancing girl can be a continuous concubine as described in the Mitakshara was not considered. Ananthaya v. Vishnu 17 M.k 160 was a case of maintenance. So also was the case decided by the Judicial Committee in Muttusawmy Jagavera Yettappa Naicker v. Vencataswara Yettaya, 12 M.I.A. 203 Mr. Aiya Aiyar contended that the term dasi has been interpreted by Professor Monier Williams and others to include a dancing girl. This is beside the point. These dancing girls have assumed in Southern India the appellation of dasis and devadasis. Consequently the compiler of the lexicon says that the term is also applicable to dancing girls. This will not assist us in finding out in what sense the Smriti writers used the term.

The second point which is equally fatal to the claim of the plaintiff for a share of the inheritance is that his mother was not an unmarried woman. It is true that she has not gone through a form of marriage with any particular individual. But as pointed out by Mr. Justice Sankaran Nair in Appeal No. 56 of 1908, the fact of her having been dedicated to service in a temple renders her unfit for married state. Whether we accept the theory that a woman dedicated in a temple is married to the deity or not, there can be no question that the object of the farce that is gone through is to ensure that her services shall be at the disposal of the temple authorities whenever required. As Sir T. Muthuswami Aiyar points out in Krishnayyan v. Muttusami 7 M.k 407 in order that the illegitimate offspring may claim a share, she must be "a substitute for a wife." Mr. Justice Sankaran Nair expresses the same opinion in the case I have already referred to. In a recent case in which I had to consider the rights of illegitimate children to inherit their mother''s stridhanam, I expressed an opinion that the provision in the Mitakshara for illegitimate offspring contemplates that the continuous cohabitation must be equivalent to marriage. See Meenakshi v. Muniandi Panikkan 25 Ind. Cas. 957. I was not then aware of the pronouncement to the same effect by Sir T. Muthuswamy Aiyar and Sir C. Sankaran Nair. Mr. Justice Chandavarkar in Tara v. Krishna 31 B.k 495 had to consider whether a prostitute who leads a life of promiscuous intercourse can be said to be an unmarried woman. The learned Judge came to the conclusion that ouch a woman was neither a (kanya) (maiden), nor a (kulastri) (married woman). I entirely agree with this conclusion. In Mitakshara, Chapter I, Section 12, placitum 3, the author says that the illegitimate son of the three higher castes are not entitled to inheritance. See also Chuoturya Run Murdun Syn v. Sahub Purhulad Syn 7 M.I.A. 18 and Roshan Singh v. Balwant Singh 27 I.A. 51 : 4 C.W.N. 353 : 2 Bom. L.R. 529 : 7 Sar. P.C.J. 642. It has further been held that even in the case of Sudras, if the connection is adulterous or incestuous, the son of such a union cannot claim a share in the father''s property Muttusamy Jagavira Yeltapa Naikar v. Venkatasubha Yettia 2 M.H.C.R. 293; Krishtamma v. Papa 4 M.H.C.R. 234 and The Vencatachella Chetty v. Parvatham 8 M.H.C.R. 134. The reason of these exclusions is that the woman with whom such intercourse is maintained cannot be a "substitute for a wife." Therefore, unless the woman who is kept as a concubine could have been legally married by the paramour, the son will not be entitled to a share, and a dancing girl, being outside the varnas, is not eligible for marriage to persons within the varnas. I. am aware that it is open to persons belonging to the dancing girls'' caste to become married women. It is of constant occurrence in Southern India; but that is only among their own people. If she is once dedicated to a temple, she cannot be married even among her castemen. As Mr. Justice Sankaran Nair points out in Appeal No. 58 of 1908, a woman thus dedicated puts herself under the power of the temple authorities and is no longer a free agent; and she becomes a * * (sadharanastri) in the language of Vijnaneswara. Moreover, it would be preposterous to speak of such a woman as a kanya or an unmarried woman. In the present case, as I pointed out already, this woman had known other men before she became the concubine of Ramasawmi. She was not a kanya at the time. I am clearly of opinion that the term "unmarried" cannot apply to a woman of such antecedents. It is necessary that the exceptional rule stated in the Mitakshara should be applied with great care and caution. The rule, tinder no circumstances, should be extended beyond what the letter of the text warrants. The interests of public morality and the changes which time has brought about have to be taken into account in applying the texts of Hindu Law. It is on that account that certain texts have been regarded as obsolete. Fortunately in this case the law as explained by Vijnaneswara and the conditions of the times both favour the non-applicability of Yajnavalkya''s text to the class of women known as dancing girls. I have assumed throughout that Ramasawmi was a Sudra, as it was not contended before as that a Nattukottai'' Chetty did not belong to that caste.

For the reasons given by me the claim of the plaintiff for a share in Ramasawmi''s property is, in my opinion, unsustainable. He is undoubtedly entitled to maintenance. As the learned Chief Justice considers it desirable that the question arising for decision in this case should be referred to the decision of a Full Bench. I agree in the order proposed.

[The appeal was heard by the Full Bench on the question referred to.]

Mr. K.N. Aiya Aiyar, for the Appellant.--A dancing girl is governed by the Hindu Law. It is not necessary that she must be qualified to be a lawful wife. A dancing girl is of a caste higher than Sudra. There is no case which decides that she is of the Sudra caste. The words used in Mitakshara, Chapter I, Section 12, (the text which deals with the illegitimate son''s right to inherit) are born to a, dasi by a Sudra.'' See Muthusamy Jagavira Yettapa Naikar v. Venkatasubha Yettia 2 M.H.C.R. 293 and Muttusawmy Jagavera Yettappa Naicker v. Vencataswara Yettaya 12 M.I.A. 203. As to whether an illegitimate son of a Sudra by a woman beyond the pale of the Hindu Law is entitled to inherit, see Lingappa Goundan v. Esudasan 27 M.k 13. The word ''dasi'' denotes a woman under exclusive concubinage.'' In Muthusamy Jagavira Yettapa Naikar v. Venkatasubha Yettia 2 M.H.C.R. 293 the woman was the daughter of a dancing girl but did not follow the profession of a dancing girl. In Ananthaya v. Vishnu 17 M.k 160 an illegitimate son of a Brahmin by a dancing girl was held entitled to maintenance, the fact of the woman being a dancing girl being considered only in determining whether the connection was casual or continuous. As to whether a dancing girl can give up her profession and become a dasi, see Brindavana v. Radhamani 12 M.k 72.; Krishnayyan v. Muttusami 7 M.k 407 is against me as well as Sundaram v. Meenakshi Achi 16 Ind. Cas. 787 which follows it. Chellammal v. Ranganathuni Pillai 12 Ind. Cas. 247 : 34 M.k 277 was a case of a prostitute and yet the son by such a woman was held entitled to a share. Dasi includes a ''prostitute'' Rahi v. Govinda valad Teja 1 B.k 97 J. See Dr. Jolly''s Tagore Law Lectures (Partition and Inheritance), 1863, page 187 : Davavibhaga (Barnells'' Translation), Introduction : Elbering on Inheritance (Gift), Articles 60. 71 and Chatturbhuj Patnaik v. Krishna Chandra Patnaik 17 Ind. Cas. 276. ''Unmarried'' means ''unmarried to the man''. See Karuppannan Chetti v. Bulokan Chetti 23 M.k 16; Annayyan v. Chinnan 5 Ind. Cas. 84; Tara v. Krishna 31 B.k 495 ; Vencatachella Chetty v. Parvatham 8 M.H.C.R. 134; Muttusawmy. Jagavera Yettappa Naicker v. Vencataswara Yettaya 12 M.I.A. 203 : 11 W.R. 6and Padala Krishna Rao v. Padala Kumarajamma 15 Ind. Cas. 340.

Mr. B. Sitarama Rao, for the Respondent.--The word dasi according to Yajnavalkya and Mitakshara meant only a female slave.'' The Sudras merely adopt Brahmanical forms of marriage. The dancing girls belong to the fifth caste mentioned in the Mitakshara, and not to the four castes. The Mitakshara differentiates between a family woman and a common woman. The former are still further divided into kanyas and married women. The texts dealing with this subject are Manu (Sacred Books of the East series), Chapter IX, verse 179; and Mitakshara, Chapter I, Section 12. The Mitakshara only mentions the son of a slave. It ought not to be extended to cases of sons of prostitutes. The term dasi in the text refers to a woman capable of marrying the man. Krishtamma v. Papa 4 M.H.C.R. 234. Dasi being a secondary wife must satisfy all the conditions of a legal wife. Except Chellammal v. Ranganatham Pillai 12 Ind. Cas. 247 the other cases are of women who were not dancing girls, though in some of them they were of that caste. The prohibition in regard to a dancing girl marrying is due to the fact that she is not a virgin, who alone can marry. Dahi Bai v. Soonderji Damji 9 Bom. L.R. 819. Consecration is an absolute bar to marriage. Ramamani Ammal v. Kulanthai Natchear 14 M.I.A. 346. The present is the case of a prostitute. Diyabhaga, Chapter V. Volume 14; Smriti Chandrika (Krishnaswamy Iyer''s Translation), pages 63 and 64 : 3 Col. Dig. (Madras Edition), pages 317, 410. A dancing girl''s son cannot inherit, though he may be entitled to maintenance. Annayyan v. Chinnan 20 M.L.J. 355.

After hearing arguments of Counsel etc., the Full Bench expressed the following

Opinion

Wallis, C.J.

I have already attempted of summarise the decisions upon this subject in my order of reference and need not go over the ground again. The order of Seshagiri Aiyar, 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 text to be 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 an 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. Pravatham 8 M.H.C.R. 134; Karuppannan Chetti v. Bulokam Chetti 23 M. k16; Annayyan v. Chinnan 5 Ind. Cas. 84; Padala Krishna Rao v. Padala Kumarajamma 15 Ind. 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 MacDonnell''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 dam 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 Aiyar," etc., in the case of Brahmin names.

Professor Jolly in the Tagore Lectures for 1883, at page 187, draws attention to the fact that Medatithi, who flourished before Vijnaneswara, understood the text as meaning the son of a Sudra by a woman neither married to him nor authorised 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 attaches to temples. In these circumstances it seems difficult to say that women of this class are not (last''s within the meaning of the texts. We are not satisfied that the passage of the Mitakshara cited by Seshagiri Aiyar, 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.

In Brindavana v. Radhamani 12 M.k 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 illegitimate 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.

Ayling, J.

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 case; 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 a Sudra.

Sadasiya Aiyar, J.

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. Subrahmania Iyer, J., in the case Karuppannan Chetti v. Bulokam Chetti 23 M.k 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 lifetime 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 189o 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 aurasa son born of a gandharva marriage. In the very recent case Meenakshi v. Muniandi Panikkan 25 Ind. Cas. 957, my learned brother, Seshagiri Aiyar, J., says: 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 then (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."

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 414, as to a Sudra being by his natural qualities an irredeemable servant or dasa of the higher castes.]

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 3rd respondent, suggested that the ghandharva 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 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 oradulterous 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 5 Ind. Cas. 84, which holds to 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, re-marriage 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 5 Ind. Cas. 84 .

Mr. B. Sitarama 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 pani-grahanika-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.

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 incestuous. 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 Dewn 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 Aiyar, J., said in Muthukaruppa Pillai v. Sellathammal (1915) M.W.N. 48 the Sastras cannot go against ''usage'' and according to custom and the consciousness of the vast majority of the Hindus, Nattukottai Chetties are Sudras. Hence they must be considered to belong to the Sudra caste.

As regards the dancing girl caste, in Palani, Coimbatore and other places, they are usually known as belonging to the Kaikola Mudali caste. Of course, this Kaikloa Mudali caste should not be confounded with the respectable caste of high class Mudaliars. But still Kaikola Mudalis are always recognised 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 kulastris. 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 Mudaliars, Naidus, 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 spring 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.

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 latter portions of the Mitakshara beginning with Chapter IX of the Vyavahara Adhayaya 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-born 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 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 caste 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 un-married woman, who, though not a prostitute, is not the kept mistress or dasi of one particular man. And he says that only a private prayaschitham for immorality is prescribed in such cases and not punishment (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. Then he refers to the Skandapurana and to the fanciful story of ethereal nymphs or apsatasai 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 Prajpati 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. Collector of Madura v. Moottoo Ramalinga Sathupathy 12 M.I.A. 397 Mr. Justice Bhashyam Aiyangar was of opinion that the rule as to lameness being a bar to inheritance had become obsolete. See Venkata Subba Rao v. Purushottam 12 M.L.J. 262. The same learned Judge in Karuppai Nachiar v. Sankaranarayana Chetty 13 M.L.J. 398 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 Visvanathaswamy Naicker v. Kamu Ammal 21 Ind. Cas. 724 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 no longer recognised as valid. It has been 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 prayaschitha 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 Mudaliar v. Masilamani 5 Ind. Cas. 42. Persons belonging to the dancing girls'' caste are freely allowed into temples and Brahmin houses and being paste 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.

Coming to the decision in Appeal No. 56 of 1908, quoted by the 3rd 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.

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.

The appeal then came on before their Lordships, Sir John Wallis, C.J., and Seshagiri Aiyar, J., who again made the following.

Second Order Of Reference To A Full Bench.

This was a suit by a person, alleging himself to be an illegitimate son of one Ramasawmi Chettiar, for partition against the legitimate son of his father. The Subordinate Judge held that the paternity of the plaintiff was not proved and dismissed the suit. On appeal, we came to the conclusion that the plaintiff was the son of Ramasawmi Chettiar. On a reference to the Full Bench, it was decided that he is entitled to the share of an illegitimate son in his father''s property. While the appeal was pending in this Court, the legitimate son died unmarried. His mother was brought on the record as his legal representative.

It is now contended for the appellant that he is entitled to the whole of the property of Ramasawmi Chettiar by survivorship. The respondent''s Vakil argues that by the presentation of the plaint for partition, the plaintiff became a divided member and that consequently he is not entitled to succeed to his legitimate brother by survivorship. He has also raised a preliminary objection on the ground that as the suit was framed for partition, it ought not to be converted into one for sole possession. We see no force in this latter contention. The claim of the plaintiff was to establish his status as an illegitimate son and to obtain a share in His father''s property on that footing. The claim for partition is consequent on the declaration of status. The relief claiming sole possession is similarly consequential. This objection must be overruled. On the main question of survivorship, the observations of the Judicial Committee in Suraj Narain v. Iqbal Narain 18 Ind. Cas. 30 : 35 A.d 80 are relied on by the respondent. Very recently Sankaran Nair, J. in Pothi Naicken v. Naganna Naicker0(915) M.W.N. 303 held that these observations clearly mean "that it is open to a member of an undivided family governed by the Mitakshara Law to effect a separation between himself and the other members of the family by a declaration to that effect made to the other members." It is accordingly contended that the plaint in this suit which was served on the defendant was a declaration by the plaintiff of his intention to separate himself from his undivided brother, and effected a partition. This view is not consistent with the decisions of this Court in Sudarsanam Maistri v. Narasimhulu Maistri 11 M.L.J. 353 and Thandayuthapani Kangiar v. Ragunatha Kangiar (1911) 1 M.W.N. 223 or with the decisions of some of the other High Courts. Appeal No. 119 of 1912 is now the subject of a Letters Patent Appeal, but as the other learned Judge disposed of the case on other grounds, it may not be necessary to decide the point in that case, and as the question is one of great importance we have decided to refer it to a Full Bench. We, therefore, refer the question, whether a member of a joint Hindu family becomes separated from the other members by the fact of suing them for partition."

[The appeal was heard by the Full Bench on the question referred to.]

Mr. A. Krishnaswamy Iyer for Mr. K.N. Aiya Aiyar, for the Appellant.--A mere unilateral expression of intention to separate is not enough to effect a severance of the co-parcenary, unless the same is accepted by or acquiesced in by the other members. This view is not only supported by the Hindu Law but has also been uniformly recognised by the decisions of the Courts. According to Mitakshara, a ''partition'' is the adjustment of diverse rights regarding the whole. (Chapter I, Section 1, pl. 4.) It follows that a division must be the act of all the parties interested, if not by the Court. See also Subodhini, Balambhatta and Viramitrodaya. The Mayukha, Chapter IV, Section IV, pl. 2, supports the contrary view. This text, I submit, refers only to a case where there is no property to divide. Nilakanta supports the former view. (See Mandlik''s Hindu Law, page 38.) Sarasvati Vilasa distinguishes between the case of the family owning and not owning property, and states that in the latter case alone division may be effected by a unilateral declaration of intention. In Pothi Naicken v. Naganna Naicker 28 Ind. Cas. 625 : (915) M.W.N. 303 Sankaran Nair, J., wrongly supposes that in Suraj Narain v. Iqbal Narain 18 Ind. Cas. 30 the Privy Council accepted the view of the Calcutta High Court that an unilateral declaration effected a severance. The Calcutta cases do not lay down any such rule. The observations in the case in Bulakee Lull v. Musammat Indurputtee Kowar 3 W.R. 41 are obiter. Musammat Vato Koer v. Rowshun Singh 8 W.R. 82 merely interprets Appovier v. Rama Subba Aiyan 11 M.I.A. 75. See also Sadabart Prasad v. Foolbash Koer 12 W.R. 1 (per Peacock, C.J., at page 7) approved in Madho Pershad v. Mehrban Singh 17 I.A. 194. In Brojo Kishore Mitter v. Radha Gobind Dutt 12 W.R. 339 it was held that the institution of a suit, though an unambiguous act, was insufficient to effect division. Sudaburt Pershad Sahoo v. Lotf Ali Khan 14 W.R. 339 is only a note of dissent from Sadabart Prasad v. Foolbash Koer 12 W.R. 1. See also Joy Narain Giri v. Goluck Chunder Mytee 25 W.R. 355; Collector of Monghyr v. Hurdai Narain Shahai 5 C.L.R. 112; Radha Churn Dass v. Kripa Sindhu Dass 4 C.L.R. 428; Raghubanund Doss v. Sadhu Churn Doss 3 C.L.R. 534; Tej Protap Singh v. Champa Kalte Koer 12 C.k 96; Bata Krishna Goswami v. Gopal Krishna Goswami 5 C.L.J. 417 and Banwari Lal v. Sheo Sankar Misser 13 C.W.N. 815. The cases, in Appovier v. Rama Subba Aiyan 11 M.I.A. 75: 1 Suth. P.C.J. 657; Ram Chunder Dutt v. Chunder Coomar Mundul 13 M.I.A. 181 and Chidambaram Chettiar v. Gauri Nachiar 5 C.L.R. 6hold that partition could only be effected by mutual consent. The expression ''earlier'', occurring in the last case, does not refer to the institution of the suit. In Joy Narain Giri v. Girish Chunder Myti 5 I.A. 228 mesne profits were awarded from the day the plaintiff left the family as there was exclusion from participation therein. See also Balkishen Das v. Ram Narain Sahu 7 C.W.N. 578; Ram Pershad Singh v. Lakhpati Koer 7 C.W.N. 162 and Parbati v. Naunihal Singh 31 A.p 412. The discussion regarding the consent of the guardian in the last case entirely supports my position and would be useless, if otherwise. In Suraj Narain v. Iqbal Narain 18 Ind. Cas. 30 the point was left open, though it was assumed for purposes of argument. The dictum, even if any, was only casual. In Madras the decisions have been uniform that to effect a severance, there must be mutual assent or decree of Court and mere institution of a suit had no such effect. See Appovier v. Rama Subba Aiyan 11 M.I.A. 75; Subbdraya Mudali v. Manika Mudali 19 M.k 345; Sudarsanam Maistri v. Narasimhulu Maistri 25 M.k 149; Thandayuthapani Kangiar v. Ragunatha Kangiar 10 Ind. Cas 660 and Balakrishna Mudaliar v. Raju Mudaliar 27 Ind. Cas. 736 The Bombay decisions are also to the same effect, though under the Mayukha, Moro Vishvanath v. Ganesh Vithal 10 B.H.C.R. 444; Babaji Parshrav v. Kashibai 4 B.k 157 and Murari Vithoji v. Mukund Shivaji Naik Golatkar 15 B.k 201. Any other interpretation of the Privy Council decision will lead to anomalies. In Sangili v. Mookan 3 M.L.J. 137; Subbaraya Mudali v. Manika Mudali 19 M.k 345; Banwari Lal v. Sheo Sankar Misser 13 C.W.N. 815 and Babasi Parshram v. Kashibai 4 B.k 157 it was held that a filing of the plaint did not effect a division of status. An alienation of a co-parcener''s whole interest has been held not to constitute severance. A man is not allowed to bequeath his share of joint family properties except with the consent of his co-parceners. See Nanjaya Mudali v. Shanmuga Mudali 22 Ind. Cas. 555 and Maharaja of Bobbili v. Venkataramanjulu Naidu 25 Ind. Cas. 585. See also 24 Halsbury''s Laws of England, Section 204; Freeman on Co-tenancy, 30, 31; Lord Hardwike in Partriche v. Powlet 2 Atk. 54 and In re Wilks Child v. Bulmer (1891) 3 Ch. 59. The inconvenience attendant upon the upholding of the opposite view will be obvious and the principle of stare decisis ought to apply.

Messrs. S. Srinivasa Iyengar and B. Sitarama Row, for the Respondents.--The matter is concluded by the authority not only of the texts of Hindu Law but also by the decided cases. Mitakshara, Ch. I, Section 1, pl. 4, merely defines partition or rather states its effect. Manu, Ch. IX, Section 104, lays down that one of the modes by which severance can be effected is by mutual agreement. The text of Manu is not exhaustive. Vide Viramitrodaya, Ch. II, pl. 5. Saraswati Vilasa, pl. 28, lays down that mere intention to divide creates a severance. The rule applies not only to religious duties but also to property. When there is no property, religious duties alone can be divided and if property existed, that must be divided before the duties, but in either case mere unilateral intention is enough. Section 30 makes the meaning perfectly clear. See also Mayukha, Ch. IV, Section IV, pl. 2. The footnote on page 38 of Mandlik''s Hindu Law is not against me. The statement of agreement as one of the modes of severance in Appovier v. Rama Subba Aiyan 11 M.I.A. 75 is not exhaustive. Beside mutual consent a disruption of the joint family can be brought about by renunciation, exclusion, conversion, unilateral declaration, alienation, award, decree, attachment, &c. Sudarsanam Maistri v. Narasimhulu Maistri 25 M.k 149 is not correctly decided. See Thangavelu Pillai v. Doraisami Pillai 26 Ind. Cas. 211. An alienee from a co-parcener becomes a tenant-in-Common with the other co-parceners Aiyyagari Venkataramayya v. Aiyyagari Ramayya 25 M.k 690; Chinnu Pillai v. Kalimuthu Chetti 9 Ind. Cas. 59; Subba Row v. Ananthanarayana Iyer 14 Ind. Cas. 524 and Ram Chunder Dutt v. Chunder Coomar Mundul 13 M.I.A. 181(cases of alienations); Joy Narain Giri v. Girish Chunder Myti 4 C.d 434 (exclusio