V. Subramania Iyer vs Rathnavelu Chetty and Others

Wallis, C.J.—The question has been dealt with so very fully by Sadasiva Aiyar, J., in the Order of Reference and in the judgment to be

delivered by Kumaraswami Sastri, J., that. I shall state my reasons for concurring in the answer proposed by them very shortly. Manu only

mentions the right of a Sudra father to give his illegitimate son a share if he chooses, but at the date of Yagnavalkya the illegitimate son was

recognised as one of his father''s nearest heirs. In the few Slokas(114 to 149) upon which this part of the Mitakshara is a commentary,

Yagnavalkya deals first with partition during the father''s life-time, and then with partition by the brothers after the father''s death. Next he

enumerates the twelve classes of sons who are to inherit to the father, each class excluding the subsequent classes and all other heirs. "" A legitimate

(aurasa) son is one born of a lawfully wedded (dharma) wife. Equal with him is the son of an appointed daughter."" (Sloka 128). This is the son of a

daughter without brothers who had been appointed by the father to remain in his own gotra and to bear sons who were to be regarded as his sons,

a possibility which occasioned the numerous warning in the texts against marrying a girl without brothers. These are the first two classes of sons. It

is immediately after the enumeration of the twelve classes of sons, and before dealing with the other heirs who are to take "" in default of male

issue,"" that Yagnavalkya treats of the rights of the Sudra''s illegitimate son as regards partition and succession. On partition during the father''s life

his share was to be at the father''s discretion which was still wide in those times. After the father''s death, he was entitled to share with the legitimate

brothers, but only to half a share. "" If there be no brothers nor daughter''s sons, he then takes the whole""-Sloka 134. This would be perfectly

logical, if by daughter''s sons were meant the sons of the appointed daughter who were equal to the aurasa sons, and I cannot help thinking this

was originally so, an inference which is supported by the fact that Medhatithi, as interpreted by Dr. Jolly in his History of the Hindu Law, p. 187,

puts the daughter''s sons here on the same footing as legitimate sons as regards their shares of inheritance. But, as has been pointed out, the words

for daughter''s sons used by Yagnavalkya include as well daughter''s sons generally who would have no claim to come in preference to the other

sons. When we come to the Mitakshara some six hundred years later according to some estimates we find the daughters mentioned as well as the

daughter''s sons. Much later the Dattaka Chandrika includes the widow; and it is now settled that in the absence of legitimate sons the illegitimate

son only takes half if there are widows, daughter or daughter''s sons. This looks as if there had been an advancement of these three classes to take

along with the illegitimate son. Simultaneously the artificial sons became obsolete with the exception of the dattaka who was admitted to rank with

an aurasa son. But, however this may be, it does not affect the fact that from the time of Yagnavalkya onwards the illegitimate son has been an heir

to his father and an heir of a very high rank excluding all the subsequent classes of sons which at that time included even the dattaka or son given in

adoption. No doubt the general principle was that the inheritance went to the next sapinda, and that though the relation of sapindaship depended

on community of particles it existed at any rate among the higher castes in later times only between persons who were born of a regular marriage,

but the texts show an exception to the rule in the case of the illegitimate sons of Sudras who were excluded from the sacramental forms of

marriage. This being so, and the illegitimate son being heir to the father, I can see no reason why the father also should not on the usual principle be

heir to the illegitimate son in the case put in the order of reference. This view also seems to me to be in accordance with the decision of the

Bombay High Court in Sadu v. Baiza and Genu ILR (1878) B. 37, which was accepted and acted on by the Privy Council in Joginclro Bhupati

Hurrochundra Mahapatra v. Nityanand Man Sing ILR (1890) Cal. 151, that an illegitimate son of a Sudra was a member of the family and a co-

parcener of his legitimate brother to whose share he succeeded by virtue of the co-parcenership in preference to the brother''s widow. It was held

that the legitimate brother would take the illegitimate brother''s share in the same way. If this be so, it seems to me to involve a fortiori that there is

no sufficient reason for refusing to allow the father to succeed to the illegitimate son according to the ordinary rule just as the illegitimate son

succeeds to the father. My answer is in the affirmative.

Oldfield, J.

I concur in the answer proposed, because such concurrence is in my opinion entailed by the decision in Jogendro Bhupati v. Nityanand ILR

(1890) Cal. 151. For the language used in that decision and in Sadu v. Baiza ILR (1878) B. 37 the judgment in which was apparently endorsed by

their Lordships of the Privy Council without reservation, appears to me to entail that a co-parcenary exists between the legitimate and illegitimate

sons in virtue of a relationship and not as specially created by the recognition of the latter in the texts for special purposes which they specify, and

subject to special limitations, which those purpose simply. Such relationship can be traced only through the affiliation of both sons to their common

father; and the result, which must be accepted, is the recognition of the illegitimate son as a son in the most comprehensive sense, subject only to

certain disabilities not at present material; and consequently of his father as connected with him by the ordinary paternal relationship. From such a

relationship the father''s right to inherit, from him follows.

As this ground of decision is adequate, I refrain from discussion of the texts or discussion of the reasoning employed in the three cases, which

have for many years been accepted as stating the law in this Presidency, Krishnayyan v. Muttusami ILR (1883) M. 407, Ronoji v. Kandoji ILR

(1885) M. 557, and Parvathi v. Thirumalai ILR (1887) M. 334. I moreover offer no opinion regarding the possibility of reconciling our conclusion

in the present case with the well settled course of decisions, by which the illegitimate son''s right of succession to collaterals is at present negatived.

Kumaraswami Sastri, J.

The question referred to us for decision is "" whether, where an illegitimate son was born of a permanently kept concubine and under the Hindu

Law he would be the sole heir or one of the heirs of his putative father''s properties, his father could, if he survived the illegitimate son inherit the

said son''s properties, when that son left no widow or issue and his mother had predeceased him.

The meaning of the term "" Dasi putra"" in the texts has been the subject of conflicting decisions, but it is unnecessary to refer to them, as the law,

so far as this Presidency is concerned has been settled by the recent decision of the Full Bench in Soundararajan v. Arunachalam Chetty ILR

(1914) M. 136 : 29 M.L.J. 793. In order to entitle an illegitimate son of a Sudra to succeed, all that is necessary is that the connection between his

parents should be continuous and neither adulterous nor incestuous.

There can be little doubt that the smritis treat the illegitimate son of a Sudra as one capable of inheriting his father''s property by virtue of the

relationship of father and son subsisting between them. In dealing with the subject of "" the partition of heritage "" Yagnavalkya in verses 128 to 132

deals with the twelve classes of sons, namely, (1) the Aurasa or the son of the lawfully wedded wife, (2) Putrika Suta or son of the appointed

daughter, (3) Kshetraja, the son begotten on a wife by a Sagotra under rules relating to Niyoga, (4) Gudhaja, one secretly begotten in the house,

(5)Kanina, the son of an unmarried daughter, (6) Punarbhava, the son of a woman who has been previously married, (7) Dattaka, one who is

given in adoption by his father or mother, (8) Krita, a son purchased from his parents, (9) Kritrima, the sons adopted by the man himself, (10)

Swayamdatta, one given himself as a son,Sahodhaja, a son of a woman pregnant at the time of marriage,(11) Apaviddha, a person who has been

forsaken by his parents and is adopted as a son. In verse 132 he states that each of the classes of sons is in the absence of the preceding one, the

giver of the funeral cake and the inheritor of a share of the property of his father. Then follow verses 133 to 135 which run as follows (I adopt

Mandlik''s translation): The law is propounded by me in regard to sons equal by class. A son begotten on a dasi by a Sudra becomes even the

partaker of a share by the father''s choice, after the death of the father the brother should make him a half-sharer. An illegitimate son of a Sudra if

brotherless can take the whole unless there is a son to any of the daughters of the Sudra. Then follow the well-known Slokas 135 and 136 which

form the basis of the law of inheritance to sonless Hindus and which run as follows:"" The wife, daughters, both parents, brothers and likewise their

sons, got rajas, bandhus, a pupil and a fellow-student. Of these on failure of the preceding the next following in order is heir to the estate of one

who has departed for heaven leaving no son (putra). This rule extends to all classes.'' Then follows Sloka 137 which prescribes a special rule as

regards a hermit, an ascetic and a student. Other writers describe as many as seventeen classes of sons, but it is not necessary to refer to them.

Turning to Manu who deals with the subject of inheritance in Chapter IX we find that he describes twelve classes of sons in verses 166 to 177

and in verse 179 states that "" a son who is begotten by a Sudra on a female slave or the slave of his slave may, if permitted by his father, take a

share of the inheritance."" Verse 180 runs as follows (I adopt the translation given in the Sacred Books of the East): These eleven, the son begotten

on the wife and the rest as enumerated above, the wise call substitutes for a son taken, in order to prevent a failure of the funeral ceremonies.

Verse 181 states that sons begotten by strangers belong in reality to him from whose seed they sprang, but not to the man who took them. Verses

182 and 183 refer to a son of uterine brothers (who is said to be the son of all) and to a son of one of several wives who is said to be the son of all

the wives. Verses 184 and 185 run as follows: on failure of each better son each next inferior is worthy of the inheritance; but if there be many of

equal rank they shall all share the estate (184). Not brothers, nor fathers, (but) sons take the paternal estate; but the father shall take the inheritance

of a son who leaves no male issue, and his brothers (185). It is clear that Manu declares the father of each class of sons enumerated by him above

to take the inheritance of the son who dies leaving no male issue.

It will be observed that both Manu and Yagnavalkya deal with the dasiputra of a Sudra immediately after the twelve classes of sons and the

context shows that the dasiputra was treated as the son of a Sudra and placed on a footing superior to the illegitimate son of the twice-born classes

by being given a share on a partition between himself and his brothers and also the right to share, with the daughter''s son, and to take the whole

estate in the absence of sons and daughter''s sons. But for this special provision the illegitimate son of a Sudra would take only in default of all

aurasa and putrika putra or other sons classed by the smriti writers as superior and the fact that a special text was, necessary to give him a

favourable position cannot in my opinion be treated as showing an intention to exclude him from the category of sons whom the smriti writers

mention as capable of inheriting to their father. As the verses in Manu and Yagnavalkya deal with sons common to all the four castes (with the

reservation that marriage or concubinage between a woman of higher caste with a man, of the lower caste was strictly forbidden) a special rule has

to be introduced in order to give the son of a Sudra by a concubine the right which no, other illegitimate son had, namely, that of getting a share

with the legitimate son, daughter and daughter''s son and in, their absence of succeeding to the whole estate in preference to, his father''s brother

and agnates. There is no reason to suppose that the smriti writers attached any special stigma to the illegitimate son of a Sudra by a dasi as a

reference to the twelve kinds of sons allowed to the twice-born classes shows that, several of them can by no stretch of imagination be said to be

the legitimate sons of their father or even to induce a prima facie belief as to the father being the author of their being. Manu, Gautama, Vasishta,

Bodhayana and other smriti writers of undoubted, eminence who placed the Gudhaja or son of. concealed birth in the first group of six sons who

are said to be "" heirs and kinsmen"" would hardly have refused heirship or kinsmanship to the son of a Sudra born of a connection which had a

greater element of certainty as to paternity about it. It is also extremely unlikely that so far as Sudras were concerned the smriti writer would have

treated the absence of a marriage between a Sudra and the "" dasi"" as any very serious matter. In dealing with the various forms of marriage they

state that the lowest forms (Asura, Rakshasa, Gandharva, Paisacha) which can by no pretence be said to be anything but pure concubinage were

intended for Sudras (see Gautama, Chapter 19; Baudhayana, Chapter II). The Grihya Sutras prescribe no Vedic '' ritual to be observed in the

case of marriages amongst Sudras; and. Yagnavalkya in Chapter II, sloka 10 expressly states that the vedic rites beginning from conception and

ending with the burning ground were for the twice-born classes alone. Far from treating the illegitimate son as a bastard without rights of inheritance

smriti writers placed him in a very favourable position and almost equal to the Aurasa or Dattaka son. Jimutavahana gives the reason fort he

illegitimate son of a Sudra sharing with the legitimate daughter''s son as follows "" since the one though born of an unmarried woman is the son of the

owner and the other though sprung from a married woman is only his daughter''s son."" A similar explanation is given by Raghunandana in his

Dayatatwa. Brihat Parasara while laying down the general rule that the illegitimate son is only the son of the mother makes an exception in the case

of Sudras and observes the son by a slave of a Sudra is the fulfiller of desire and offers the pinda. Twelve sons are mentioned by the rishis. They

are offerers of the pinda one after the other in the order mentioned. Balambhatta in his commentary states that the use of the word Haret in the text

of Yagnavalkya indicates that the illegitimate son acquires a right by birth like the legitimate son. Baghunandhana in his Dayatatwa explains the

word Amsa (share) as meaning ""a share equal to that of other sons."" Both his relationship by propinquity to his putative father and his right to offer

funeral oblations are nowhere disputed. A consideration of the position assigned to the illegitimate son of a Sudra when compared to that of

illegitimate sons of other classes fully bears out, the view of Seshagiri Aiyar, J. in Meenakshi v. Muniandi Panikkan ILR (1914) M. 1114 : 27

M.L.J. 353, that ""in cases of Sudras continuous concubinage was regarded as equivalent to marriage, although the children of such irregular union

did not rank equally with those with whose mother there was a formal marriage"" a view in which Sadasiva Aiyar, J. concurred in Soundararajan v.

Arunachalam Chetty ILR (1915) M. 136 : 29 M.L.J. 793.

The position accorded to the illegitimate son in the scheme of succession and the place where his rights dealt with by Manu and Yagnavalkya

and also the fact that Vignaneswara in the Mitakshara deals with the rights of the illegitimate son at the end of the chapter relating to

Apratibandhadaya or inheritance by indefeasible right strongly support the view taken by West and Buhler and concurred in by Bhashyam

Aiyangar, J. in Ramalinga Mup-pan v. Pavadi Goundan ILR (1902) M. 519, that the position of an illegitimate son of a Sudra is more analogous to

that of a legitimate son than to that of relations who inherit by right liable to obstruction. His position so far as the Smriti writers are concerned is by

no means inferior to that of a Dattaka. The Smritis clearly assume that there is heritable blood between the illegitimate son of a Sudra and his

putative father. There is nothing so far as I can see in the Smritis to support the argument of Mr. Narasimha Aiyangar based largely on the

observations in Ranoji v. Kandoji ILR (1888) M. 557, and Parvathi v. Thirumalai I.L.R (1887) M. 331, that the share of the illegitimate son was

given in lieu of maintenance and that he was treated as a person having no legal connection with the family of his illegitimate father but only as an

outsider a quasi nullius filius who was given something because of the moral right which he had, to be supported by the author of his being. Why a

share should have been given to the Sudra illegitimate son while the sons of the twice-born were given only an allowance for maintenance or why

the right in lieu of maintenance should have taken the form of the right to share with the natural son, the widow, daughter and daughter''s son and to

get the whole estate of his divided putative father in their absence (cutting out the father''s legitimate brothers and other collaterals) has not been

explained and it seems to me is not possible of any satisfactory explanation.

The authorities show that the illegitimate son was always considered as inheriting to his putative father. Vignaneswara distinctly states that all

classes of sons without exception have the right of inheritance to their father''s estate because of the text of Manu "" Not brothers, nor parents, but

sons are the heirs to the estate of the father"" (Manu, Chapter IX, verse 185). In Pandiya Telaver v. Puli Telaver (1863) 1 M.H.C.R. 478,

Scotland, C. J., observed that the Hindu Law does not like the EnglishLaw consider an illegitimate son quasi nullius filius and that in the case of

Sudras illegitimate sons succeed to their father by right of inheritance. In Venkataraman v. Venkatalakshmi Ammal 2 Strange Rep. of Cases 136 a

similar view was taken and illegitimate sons of a Sudra were declared entitled to rights of survivorship inter se. All the Sastries consulted by the

Chief Justice had not the slightest doubt that "" where illegitimate sons succeeded to their father, the brothers will succeed to one another living and

dying undivided."" All the subsequent cases which deal with the rights of an illegitimate son deal with his rights as based on inheritance to his putative

father whatever the view taken as to his rights to succeed to the putative father''s collaterals. So far as the mother is concerned no doubt has ever

been cast on the decision in Mayna Bai v. Uttaram (1864) 2 M.H.C.R. 196, that illegitimate brothers succeed not only to their mother but to each

other.

The position of an illegitimate son was considered in Sadu v. Baiza I.L.R (1878) B. 37, and it was held that when a legitimate and an

illegitimate son succeed to the property of their father they take as coparceners and that the share of the legitimate son who leaves no male issue

passes by survivorship to the illegitimate son. In dealing with the position of an illegitimate son Nanabhai Haridas, J.,after setting out the arguments

advanced against him and stating the disabilities he was under observed as follows ""While admitting therefore that the position of a dasi-putra in a

Sudra family does differ in important particulars from that of an aurasa putra, I am not prepared to allow that the former is not a member of the

family at all, nor that he is not a co-parcener, and not, therefore, entitled to succeed by right of survivorship. His legal status as a son is

unquestionably recognised and accordingly he inherits from his father even before the latter''s widow; and if there are aurasa putras of his father, he

succeeds to the father''s estate jointly with them. He is clearly, therefore, their co-parcener. That he is their brother, not only in the popular, but

also in the legal acceptation of the term is evident from the Mitakshara, Chapter 1, S. XII, I, 2, where they are spoken of both by Yagnavalkya

and Vignanesvara as brethren and brothers (bhratarah)."" Westropp, C.J., while agreeing with the view taken by Nanabhai Haridas, J. emphasised

the fact that the dasi-putra was dealt with by the author of the Mitakshara before he treats of obstructed heritage, i. e., the rights of succession on

failure of sons, primary or secondary, treating the dasi-putra as amongst these in the case of Sudras. In Ranoji v. Kandoji ILR (1885) M. 557.

Muthuswami Aiyar, J., (at page 562) while referring to this contention was inclined to the view that no inference can be drawn from this fact as the

passage introduced a special rule and the share given to the illegitimate son was given to him in satisfaction of the claim to maintenance which he

had at one time in common with the illegitimate sons of the twice-born classes. With all respect an examination of the Smritis shows that there is

nothing in them to support the view as to the share being given in lieu of maintenance or to suggest that at some period the illegitimate son''s rights

were enlarged he'' being given a share in lieu of maintenance. An examination of the development of Hindu Law as to the various forms of

marriages and the twelve classes of sons shows that greater importance was being gradually attached to marriage and legitimacy and that even in

the time of Manu and Yagnavalkya distinction based on these considerations were drawn between the various classes of sons. It is hardly likely

that if the Sudra illegitimate son was not in the pale of heirs at any anterior period he would have been given the extensive rights conferred, in lieu,

of a bare right of maintenance. On the contrary there is considerable force in the observation of Sadasiva Aiyar, J., in the order of reference that

in ancient Hindu Law he came in as one of the twelve classes of sons and that his being allowed afterwards only to share with the widow, daughter

and daughter''s sons instead of inheriting his father''s estate wholly was a development of the later Smritis and commentators"".

In Jogendro Bhupati v. Nityanand ILR (1890) C.151, their Lordships of the Privy Council following Sadu v. Baiza ILR (1878) B 37, held that

amongst Sudras governed by the Mitakshara the legitimate and the illegitimate sons took by survivorship and that consequently the illegitimate son

succeeded to an impartible estate by rights of survivorship in preference to the widow of the legitimate son. As their Lordships state that the same

rules apply to impartible estates as to partible estates for determining who is the heir, the fact that they were dealing with an impartible estate makes

no difference. It appears from the report that Mr. Arathoon, Counsel for the appellants referred to the Madras decisions reported in Krishnayyan

v. Muthusami ILR (1884) M. 407, and Banoji v. Kandoji ILR (1884) M. 557, where a contrary view was taken to that in Sadu v. Baiza ILR

(1879) B.37, but their Lordships of the Privy Council, after referring at some length to the judgment of Nanabhai Haridas, J., and Westropp, C.J.,

in Sadu v. Baiza ILR (1879) B.37, followed the decision.

I am of opinion that the effect of the decision of the Privy Council is to settle the law as propounded by Nanabhai Haridas, J., and to make the

illegitimate son a member of the family of his putative father capable of inheriting to his father and succeeding to his legitimate brother''s share by

right of survivorship. It is difficult to see how there can be a co-parcenary under the Mitakshara with its necessary incidence of survivorship

between two males who cannot for want of heritable blood be heirs to each other or to the person whose estate they inherit. The effect of the

decision has been thus summarized by Bhashyam Aiyangar, J., in Ramalinga Moopan v. Pavadai Goundan ILR (1902) M. 519. "" If the legitimate

son dies without leaving male issue, the illegitimate son becomes entitled to the whole estate. If the illegitimate son predeceases the legitimate son,

leaving male issue and the legitimate son afterwards dies without leaving male issue, the whole property will devolve by survivorship, on the issue of

the illegitimate son. This must be the necessary result if, as affirmed by the Privy Council, the legitimate and the illegitimate sons on the death of the

father hold the family property as members of a joint family.

The rights of an illegitimate son and his position in the family of his putative father received a further extension in Bamalinga Moopan v. Pavadai

Goundan ILR (1902) M. 519, where it was held that in cases where an illegitimate son predeceases his putative father the illegitimate son''s son

would be entitled to a share as against the deceased brother of his grand-father as representing his father who if he had survived would have been

entitled to a share.

Sir Bhashyam Aiyangar, J., was of opinion that a Sudra illegitimate son''s right of inheritance was not contingent but absolute as in the cases of

a legitimate son and that he was in a position more analogous to that of a legitimate son than that of other relations whose right of inheritance is

liable to obstruction.

So far as competition between the illegitimate son and the widow of his putative father is concerned the view taken by Muthuswami Aiyar, J.,

in Parvathi v. Thirumalai ILR (1887) M. 334, that she excludes the illegitimate son is, having regard to the decisions in Chinnamal v. Varadarajulu

ILR (1892) M. 307, and Meenakshi Anni v. Appahutti (1909) 20 M.L.J. 359, (which hold that they divide the estate equally), no longer good

law.

I am of opinion that the illegitimate son of a Sudra is one of the classes of sons recognised by Hindu Law and allowed to a Sudra in addition to

the twelve classes of sons enumerated as common to all the four castes. In the case of Brahmins, Kshatriyas and Vysyas the classes of sons

enumerated in verses 128 to 132 of Yajnavalkya and 166 to 177 of Manu except the Aurasa and Dattaka sons are obsolete, and in the case of

Sudras they have in addition to the Aurasa and Dattaka a third class of sons, namely, the ''dasi-putra.'' It seems difficult to see why under verse

185 of Manu in which succession is provided for in the case of the son dying issueless, the right of the father''s illegitimate son should not be

established, especially as verse 184 refers to sons of all classes succeeding to the estate in order of rank.

Where an illegitimate son of a Sudra dies, succession to him has to be traced according to the rules laid down as regards Apratibandha and

Sapratibandha daya as he is capable of inheriting and of transmitting heritable blood. If he has a legitimate issue or illegitimate sons who will satisfy

the conditions of '' dasi-putras'', they succeed. In their absence the same rule should be applied as to the case of legitimate sons in the rules

contained in verses 135 and 136 of Yajnavalkya and his putative father who is his ''pita'' in the legal and ordinary acceptance of the term would

succeed. In the preceding verses the word ''pita'' is used in reference to sons whose others were not married to the fathers and different classes of

sons are enumerated. There is nothing to indicate that the word ''pita'' in those verses was to be confined to the father of an Aurasa or Dattaka son

and there is no reason why such a limitation should be imported into the meaning of the word in, verses 135 and 136.

It has been argued strenuously by Mr. Narashimha Aiyangar that an illegitimate son has not been specially mentioned in Chapter II dealing with

succession to a sonless Hindu and reference has been made to Shomi Shankar Rajendra Varere v. Bajesar Swami Jangam ILR (1898) A. 99. I do

not think any inference against the illegitimate son can be drawn from the omission as in my opinion the illegitimate son of a Sudra was already

referred to in the chapter dealing with the unobstructed heritage and having been included in the category of sons there was no reason for making

any special mention of an illegitimate son of a Sudra in dealing with the heirs of a person who left no sons. If the illegitimate son of a Sudra was

treated as a person who is a mere outsider and not a member of the family of his father, his exclusion in Chaptar II may be a ground for not

applying the rule of succession therein stated to him, but if his position is that stated by Haridas, J. in Sadu v. Baiza ILR (1879) B. 37, it is difficult

to see why separate mention is necessary.

I am of opinion that so far at least as the father is concerned the word pita should, for the purposes of tracing succession to the illegitimate son

of a Sudra who is a "" dasiputra,"" be taken to include a putative father. It is unnecessary to determine whether such a son is the "" sapinda"" of his

father so as to enable him to inherit to other collaterals assuming that sapinda relationship can only exist in the case of a valid marriage.

Vignaneswara in dealing with the twelve classes of sons observes that the division of sons into two classes, the first six being heirs and kinsmen and

the latter six kinsmen and not heirs must be "" expounded as signifying that the first six may take the heritage of their father''s sapindas and

samanodakas if there be no nearer heirs but not the last six"" and adds that as regards however consanguinity and the performance of the duty of

offering libations of water and so forth, both classes of sons are equal. The Saraswati Vilasa describes all the twelve classes of sons as sapindas of

their father. As between the illegitimate son and his putative father filial relationship exists in my opinion for all purposes of inheritance and

succession. It would be unreasonable to place the dasi-putra in a worse position than the Gudhaja who is classed amongst heirs and kinsmen. The

fact that the Gudhaja is now obsolete is no ground for cutting down the rights of the dasi-putra whose sonship is recognised in the Kali Age. The

fact that the word pita or pitarau is wide enough to include the putative father owing to special considerations does not necessarily imply that a

dasi-putra becomes ipso facto the preferential heir of all his father''s collaterals in case of competition between him and the agnates of his father.

So far as collateral succession is concerned all the Courts have held that an illegitimate son is not the heir to his putative father''s collateral

relations. The ground on which the exclusion is based is that the rule which guides collateral succession is based on the text of Manu as to the

inheritance going to the nearest sapinda and as consequently excluding an illegitimate son as sapindaship presupposes a lawful marriage. A long

catena of cases beginning from Nissar Murtojah v. Kowar Dhunwunt Boy (1868) M Rep 609, decided so long ago as 1863 have taken this view.

There is considerable force in the view taken by Sarwadhikari in his learned treatise on the Law of Inheritance that all the analogies of Hindu Law

are in favour of allowing him the right of succession to collaterals. Were the matter res Integra and the case were one of first impression to be

decided on a consideration of the Smritis and Commentaries, Iwould be inclined to hold with my learned brother Sadasiva Aiyar, J., that the

illegitimate son of a Sudra is for the purpose of inheritance to collaterals in the same position as his Aurasa son. The current of authorities against

the view is very strong. I need only refer to Krishnayyan v. Muttusami ILR (1884) M. 407, Ranoji v. Kandoji ILR (1884) M. 557, Parvathi v.

Thirumalai I.L.R (1887) M. 234, Shome Shanhar Bajendra Varere v. Bajesar Swami Jangam ILR (1898) A. 99, Bamalinga Moopan v. Pavadai

Goundan ILR (1902) M 519, and I consider it unnecessary for the purpose of this reference to dissent from them.

Even assuming that the order of succession to a sonless Hindu given by Manu and Yajnavalkya and propounded by Vignaneswara in Chapter

II, Section 1, pl. 2 of the Mitakshara would not in terms apply owing to the word '' pita '' being confined to the legitimate father, and to the want of

sapinda relationship between a Sudra and dasi-putra, I see nothing to prevent succession to the illegitimate son being traced by analogy to the rule

laid down in verses 135 and 136 of Yajnavalkya as explained in Chapter II, Section 1, pl. 2 of the Mitakshara especially as the Hindu Law

recognises heritable blood between a Sudra and his dasi-putra and Manu states that the father of every one of the classes of sons enumerated by

him succeeds to the property of the heirless son. The whole law of succession to dancing girls and prostitutes in cases not expressly provided for

by the rules relating to Streedhana has been built up by Courts on analogies furnished by other parts of the Hindu Law. In Kamakshi v.

Nagarathnam (1868) 5 M.H.C.R. 161, Scotland, C.J. and Collet, T. held that in the absence of any positive rule relating to the particular kind of

property in dispute (the hereditary office of dancing girls attached to a temple) the law to be applied is the general law of inheritance regarding

daughters or sons. In Subbaratna Mudali and Others Vs. Balakrishnaswami Naidu, , Abdur Rahim and Sreenivasa Aiyangar, JJ. in dealing with the

question of heirship to a dancing girl whose grand-mother was the issue of a marriage between her parents observed as follows: ""The rules of

Streedhana obviously do not apply to such property and there is no other rule of succession laid down in the Smritis or the commentaries

prescribing the devolution of property of a woman of this caste, except it be the general rule that to the nearest sapinda the inheritance next

belongs."" They acted on analogies and held that the great grand-father''s brother''s daughter succeeded in preference to her great grandfather''s

daughter''s son. The argument that the analogy afforded by sapinda relationship cannot be applied as there was no marriage is met by the

observations that according to Vignaneswara sapinda merely connotes relationship and reference is made to the Acharadhyaya of the Mitakshara,

(the commentary of Vignaneswara on verse 52). In Venku v. Mahalinga ILR (1888) M. 391. Muthuswami Aiyar, J. was of opinion that in the case

of adoptions by dancing girls questions as to inheritance and collateral succession should be adjudicated upon in the absence of a positive rule of

law to the contrary with reference to the custom of the caste and the analogies of Hindu Law as indicated in Kamakshi v. Nagarathnam (1868) 5

M.H.C.R. 161. In Ramalinga Moopan v. Pavadai Goundan ILR (1902) M. 519, Bhashyam Aiyangar, J. rested the right of representation of the

legitimate son of an illegitimate Sudra on the analogy of legitimate sons and grandsons and observed: ""The principles, therefore, applicable to the

succession of sons and grand-sons of legitimate sons may by analogy be applied to the sons and grand-sons of an illegitimate son, viz., that they

should be considered capable of representing the illegitimate son and in case he dies before his father, of taking the share which would have fallen

to Trim if he had not so died."" Though there are no texts in the Smritis expressly recognising the right of an adopted son to inherit to his adoptive

mother''s relations Courts have enforced the right on general principles of equity and good conscience and analogy to the right of the aurasa. The

principle of atidesa whereby principles laid down with reference to one case are applied to other analogous eases was recognised by Jaimini in his

Mimamsa. (Books VII and VIII of Jaimini''s Mimamsa).

Reference was made during the argument to the doctrine of reciprocity and it was argued that if the illegitimate son of his father was an heir to

his putative father (as he undoubtedly is under Hindu Law) there was no reason to hold the converse not to be true. I think there is considerable

force in the argument. Except in the case of females who come in only under special texts and the hermit, ascetic and brahmachari referred to in

verse 137 I have not been referred to any instance where heritable blood is recognised between persons who could not be the heirs of each other.

Where therefore a text expressly declares that a male is the heir of male, there is, in the absence of anything to the contrary in other texts, nothing

to prevent the converse rule from being applied as a rule of equity and good conscience even though the case is not specially provided in the texts

so long as there is nothing against it in the Smritis.

I would for the foregoing reasons answer the question referred in the affirmative.