Authored By : Mookerjee, Ernest Edward Fletcher, Chatterjea,Thomas William Richardson, William Teunon

Mookerjee, Actg. C.J.

1. This Reference has been made in connection with a suitfor recovery of possession of land upon declaration of title. Thesubject-matter of the litigation is a holding which belonged at one time to anagriculturist, Panchanan Das by name. A widow Rupa Dasi, who had a son RajaniNath Das (the first Defendant) by her deceased husband, came to live with PanchananDas as his mistress. They lived together for many years and the secondDefendant, Hari Mohan Das, is their illegitimate son. Panchanan Das died in1911. The Plaintiffs, who are the landlords, instituted the present suit on the8th April, 1915, for recovery of possession of the holding on the ground that,as Panchanan Das had left no legal heir, the land had reverted to them. Theparties were not agreed as to the status of the tenant; the Plaintiffs assertedthat Panchanan Das was an under-raiyat, while the Defendants maintained that hewas a raiyat. The Courts below did not determine this question, but held that,if the holding were assumed to have belonged to an occupancy raiyat, his rightof occupancy was, under Section 26 of the Bengal Tenancy Act, extinguished uponhis death, as he left no legal heir; in other words, that the second Defendant,as the illegitimate son of Panchanan Das, could not be deemed to be hisheir-at-law under the Bengal school of Hindu law. This conclusion was foundedupon the decision in Narain Dhara v. Rakhal Gain I.L.R. (1875) Cal. 1, whichwas followed in Kirpal Narain Tewari v. Sukurmoni I.L.R. (1891) Cal. 91. It wasnot disputed before the Division Bench that if these cases were correctlydecided, the decree of the District Judge could not be successfully assailed.Mr. Gupta, who argued the case on behalf of the Appellants, however, invitedthe Court to examine the correctness of these decisions which were based on theassumption that a passage in the Dayabhaga (Ch. IX, para. 29) was inaccuratelyrendered by Colebrooke. Mr. Gupta contended that there was really no foundationfor this view. He also drew attention to the fact that in Bombay, Madras andAllahabad, it had been held that an illegitimate son of a Sudra by a continuousand exclusive concubine or mistress is an heir under the respective school ofHindu law which prevails in each of those jurisdictions; and for this purposehe referred to the judgment in Chatturbhuj Patnaik v. Krishna Chandra Patnaik(1912) 17 C.W.N. 442, where the earlier cases are mentioned. Amongst laterdecisions to the same effect, reference was made to Gangabai Peerappa v. BanduI.L.R. (1915) Bom. 369, Soundararajan v. Arunachalam Chetty I.L.R. (1915) Mad.136, Subramania Ayyar v. Rathnavelu Chetty I.L.R. (1917) Mad. 44, which, it wassaid, were all supported by the opinion of the Judicial Committee in JogendroBhupati Hurrochundra Mahapatra v. Nityanand Man Sing I.L.R. (1890) Cal. 151 :L.R. 17 IndAp 128.

2. Mr. Gupta further urged that on a correct interpretationof the texts, it would be found that there was no real difference on thisquestion between the Bengal school and the other schools of Hindu law. Hefinally pointed out that the decisions in Narain Dhara v. Rakhal Gain I.L.R.(1875) Cal. 1 and Kirpal Narain Tewari v. Sukurmoni I.L.R. (1891) Cal. 91, havebeen frequently doubted by text-writers. The Division Bench, withoutpronouncing a final opinion on the question raised, thought that there wasconsiderable force in these contentions and accordingly referred the followingquestion for decision by a Full Bench:

Whether, under the Bengal school of Hindu law, theillegitimate son of a Sudra by a continuous and exclusive concubine is an heirto his putative father

3. The Division Bench observed that in the case before them,no question arose as to preferential right, in the event of competition betweensuch a son and a legitimate heir.

4. As the point referred arose in an Appeal from AppellateDecree, the whole appeal was, under rules of Court, referred to the Full Bench.

5. The solution of the question referred depends primarilyupon the true construction of paragraph 29 of Chapter IX of the Dayabhaga ofJimutavahana. It may be stated at the outset that the original of the Dayabhagais not divided into chapters, sections and paragraphs; these, together withappropriate headings, were supplied by Colebrooke in his translation; besides,as the original is written in prose, it is not correct to describe theparagraphs as verses, as is sometimes done. What is called by ColebrookeChapter IX, treats of the participation of sons by women of various tribes andis divided into 31 paragraphs. Paragraph 1 describes the subject-matter underdiscussion as partition among sons of the same father by different women, someequal to himself by class, others married in the direct order of the tribes.Paragraphs 2 to 7 specify the different classes of wedded wives, for marriageis allowed with women in the order of the tribes as well as with those of equalclass. Paragraphs 8 to 10 censure the union by marriage of a man of aregenerate tribe with a Sudra woman. Then follows paragraph 11-

6. Hence these evils do not ensue on the procreation ofoffspring upon a Sudra woman, not married to the Brahmin himself; but a venialoffence is committed and a slight penance is requisite, as will be shown.Srikrishna comments on the word notmarried to himself that this implies , married to another man and adds :indicating that there is thus no conflict with the rule to be laid down inparagraph 28. Paragraph 11 undoubtedly implies that, according to the author,intercourse without marriage was less objectionable than marriage with a womanof a degenerate class. Paragraphs 12 to 23 describe the rules of partition amongsous by wives of different classes. Paragraphs 24 to 26 treat only of sons by aSudra wife. Paragraph 27 attempts to reconcile a text of Manu (IX. 154-155).Paragraph 28 refers to a text, of Vrihaspati,

7. Which laid down that the virtuous and obedient son, borneby a Sudra woman to a man who has no other offspring, should obtain amaintenance. Then reference is made to a text of Manu (IX. 178):

which declares that "a son begotten through lust on aSudra woman by a man of the priestly class, is even as a corpse though aliveand is thence called a living corpse. This, according to Jimutavahana, impliesthat the Sudra woman is unmarriedwhereupon Srikrishna comments: not married to any one, but kept forsensual gratification. This paragraph plainly takes up the thread fromparagraph 11 which must be read with it. Then follows paragraph 29, : I whichstands as follows in the version by Colebrooke:

But the son of a Sudra, by a female slave or other unmarriedSudra woman, may share equally with other sons, by consent of the father. Thus,Mann (IX. 178) says, A son, begotten by a man of the servile class on his*female slave, or on the female slave of his slave, may take a share of theheritage, if permitted: thus is the law established.

8. The expression onthe female slave of his slave is taken by Rambhadra as also by Srikrishna, thewell-known commentators of the Dayabhaga, to mean on the unespoused concubineof his male-slave, while Srinath Churamani, another commentator, interprets itas equivalent to on the wife of his male slave as is done by Raghavananda, acommentator of Manu. Paragraphs 30 and 31 treat of the share taken by the sonof the Sudra woman mentioned in paragraph 29.

9. The translation of paragraph 29 by Colebrooke was calledin question in the case of Narain Dhara v. Rakhal Gain I.L.R. (1875) Cal. 1,where Mr. Justice Romesh Chunder Mitter, after setting out the passage as translatedby Colebrooke, observed as follows:

The passage as translated certainly warrants the conclusionthat an illegitimate son of a Sudra by a slave or other unmarried Sudra womantakes the inheritance of the father; but referring to the original text, I findthat there is a slight inaccuracy of translation in the first part of the versein question. The passage, if correctly rendered, would run thus: But the sonof a Sudra by an unmarried female slave, etc., may share equally with othersons, by consent of the father, etc There is a similar inaccuracy in v. 31,which should stand thus: Having no other brother begotten on a married woman(he) may take the whole property: provided there be not a (laughters son. SoYajnavalka ordains: One who has no brother may inherit the whole property forwant of daughters sons. But if there be a daughters son, he shall shareequally with him; for no special provision occurs; and it is fit that theallotment should be equal; since the one, though born of an unmarried woman, isson of the owner and the other, though sprung from a married woman, is only hisdaughters son.

10. The accuracy of the translation given by Mr. JusticeMitter was unsuccessfully challenged by the Appellant in the case of KirpalNarain Tewari v. Sukurmoni I.L.R. (1891) Cal. 91, where Shastri GolapchandraSarkar urged that the translation by Colebrboke was perfectly correct, iftested by reference to the original text as contained in the editions of 1813and 1829, published under the authority of Government, as also the edition withsix commentaries prepared, after collation with numerous manuscripts, by PanditBharatchandra Shiromani, Professor of Hind a Law in the Sanskrit College,Calcutta and reputed as one of the most erudite teachers of the subject in themiddle of the last century. This edition was published in 1863 under theauspices of the well-known Sanskritist, Prasanna Coomar Tagore, who himselfheld a distinguished position In the field of scholarship as the translator ofthe "Vivada-Chintamani." The text as reproduced in this standardedition unquestionably shows that the translation given in the judgment of Mr.Justice Mitter is inaccurate, as it omits the word sudra , which Colebrookecorrectly rendered as Sudra woman. On what text that translation was basedhas never been traced and a reference to all the available printed editions andmanuscripts of the Dayabhaga in the libraries of the Asiatic Society and theSanskrit College, which has been made for the purposes of this case, confirmsthe accuracy of the text contained in the standard edition we have mentioned.It must further be remembered that the translation given by Colebrooke in theDayabhaga is identical with that made by him of the corresponding passage inthe Digest of Jagannath (Book V. 171), where the original text in themanuscripts available supports his version, namely, the son of a Sudra by afemale slave or other Sudra woman not lawfully married, shall, with hisfathers consent, have an equal share with other sons. Colebrooke, as we haveseen, renders the first sentence in paragraph 29 as follows: "But the sonof a Sudra, by a female slave or other unmarried Sudra woman, may share equallywith other sons, by consent of the father. That this is a substantiallycorrect version, becomes clear if we compare it with the following literaltranslation of the original., prepared by Shastri Golapchandra Sarkar:"But of a Sudraa-son-by-a-not-married-female-slave-or-the-like-Sudra-woman, may share equallywith other sons, by the fathers permission." The words connected by thehyphens stand for a single compound word in the original, namely,aparineeta-dasyadisudraputra (). The only difference between this literalrendering and the translation by Colebrooke is that the word unmarried asused by Colebrooke is ambiguous and may mean either not married by the man ornever married to any one, that is a maiden. Apart from this, it is plain thatif the text be accepted as given in the edition prepared by Bharatchandra Shiromaniand the literal translation thereof be adopted, there is no escape from theconclusion that the decision in the case of Narain Dhara v. Rakhal Gain I.L.R.(1875) Cal. 1, cannot be sustained ; indeed, Mr. Justice Mitter himself, as wehave seen, conceded that the passage as translated by Colebrooke certainlywarrants the conclusion that an illegitimate son of a Sudra by a slave or otherunmarried Sudra woman takes the inheritance of the father. We observe from thejudgment of Sir Michael Westropp C.J., in Rahi v. Govinda Valad Teja: I.L.R. (1875) Bom. 97, 110, that he had before him the sametext of the Dayabhaga as is contained in the edition prepared by BharatchandraShiromani; he quotes the Sanskrit words sudrasya aparineeta dasyadisudraputra() which he translated literally as the son (born) to a Sudra by an unmarrieddasi or other Sudra (female) may share equally with other sons by consent of hefather. Reference may also be made to the comments of Dr. Julius Jolly,Professor of Sanskrit in the University of Wurzburg, in his Tagore Law Lectureson the "History of Hindu Law" (page 188), where he suggests slightmodifications in the translations given by Colebrooke of paragraphs 29 and 31;in the former case, he substitutes: the son of a Sudra by a female slave orother unmarried Sudra woman": in the latter case, he gives the translation: having no brother begotten on a married woman, he (meaning the son of a dasi)may take the whole property. These modifications are not material for ourpresent purpose and do not lend support to the decision in Narain Dhara v.Bakhal Gain I.L.R (1875) Cal. 1.

11. Mr. Banerji for the Respondent felt pressed by thisargument and fully realised the grave difficulty of supporting a view whichrested on a translation of an unknown, an untraced and apparently, anerroneously assumed reading. He accordingly took recourse to another line ofargument and maintained that the rule laid down in the first sentence ofChapter IX, paragraph 29 of the Dayabhaga should be given a narrowinterpretation so as to fit in precisely with the text of Manu quoted there asauthority. This method of interpretation was disapproved by the JudicialCommittee in Collector of Madura v. Moottoo Ramalinya Sathupalhy (1868) 12 Moo.I.A. 397, 436, where Sir James Colvile observed that "the duty of anEuropean Judge who is under the obligation to administer Hindu law, is not somuch to inquire whether a disputed doctrine is fairly deducible from theearliest authorities, as to ascertain whether it has been received by theparticular school which governs the district with which he has to deal and hasthere been sanctioned by usage." To the same effect are the weightyobservations of Sir Barnes Peacock in Moniram Kolita v. Keri Kolitani (1880)I.L.R. 5 Calc. 776, 785 : L.R. 7 IndAp 115, where with reference to thecontention that a certain interpretation should be placed upon a text ofKatyayana, he said: Their Lordships are of opinion that what they have toconsider is not so much what inference can be drawn from the words ofKatyayanas text taken by itself, as what are the conclusions which the authorof the Dayabhaga has himself drawn from them. It is to that treatise that wemust look for the authoritative exposition of the law which governs LowerBengal, whilst on the other hand nothing is more certain than that, in dealingwith the same ancient texts, the Hindu commentators have often drawn oppositeconclusions. If the contrary view were adopted and if we were called upon toinvestigate whether in each instance, rules enunciated, for example, byVijnareswara in his Mitakshaia or by Jimutavahana in his Dayabhaga could reallybe supported to the fullest extent by the texts of the institutional writersquoted, which they professed to interpret but which they often made subservientto their views (see, for instance, the attempt made by Jimutavahana toreconcile the texts of Devala and Vishnu, in the Dayabhaga, Ch. IX, paragraphs24 and 26), we should have to undertake afresh the duties discharged byauthoritative expounders of Hindu law centuries ago in the different provinces.Consequently, if the text of paragraph 29 is ascertained and if its meaning isclear, we cannot place a narrow construction upon it, simply because the ruleenunciated therein seems more extensive than the ancient text of Manu quoted inits support; indeed, Mr. Justice Mitter himself followed the reverse process,when he adopted for the first part of paragraph 29 a modified reading and thenobserved that the version as corrected by him harmonised with the text of Manu:Narain Dhara v. Rakhal Gain I.L.R. (1875) Cal. 1. The present instance,however, is reasonably free from difficulty even from the standpoint of thetext of Manu. The three texts quoted by Jimutavahana are as follows:

12. The virtuous and obedient son, borne by a Sudra womanto a man who has no other offspring, should obtain a maintenance; and let thekinsmen take the residue of the estate: Vrihaspati (XXV. 31).

13. This text is explained to refer to a son of a twice-bornperson by a Sudra woman not married by him (see Dayabhaga IX, 23; Jagannath,Book V. 3, 168; "Vivada-Chintamani", page 274;"Vyavahara-Mayukha, page 47).

14. A son, begotten by a Sudra, or on a female slave, or ona female slave of a slave, may take a share (on partition) if permitted (by thefather): this is settled law: Manu (IX. 179).

15. According to a familiar Sanskrit rule of construction,as observed by Shastri Golapchandra, Sarkar, the repetition of the participleor may be taken to imply or on any other similar woman in other words, theenumeration is not exhaustive but only illustrative.

16. Even a son, begotten by a Sudra on a female slave mayget a share by the fathers choice; but, if the father be dead, the (legitimate)brother should make him partaker of half a share: one who has no (legitimate)brother may take the whole, in default of (heirs down to) the son ofdaughters: Yajnavalkya (II. 133-131).

17. Jimutavahana lays down, on the authority of the text ofVrihaspati, that the son of a regenerate person by any Sudra woman, not marriedby him, is entitled to maintenance and then goes on to discuss the law relatingto such a son of a Sudra in paragraph 29; there he first enunciates the ruleapplicable to the case and next quotes Manu in support of his view. Let usassume, for a moment, that it is permissible for us to investigate the truescope of this text of Manu. For this purpose, it is obviously legitimate tohave recourse to the recognized commentators of Manu, particularly suchcommentators as were antecedent to or contemporary with Jimutavahana. NowJimutavahana is known to have flourished in the eleventh century; indeed, fromthe astronomical data furnished by his work on kalaviveka (published by the AsiaticSociety of Bengal), it has been ascertained, with as much approach to accuracyas is practicable in such matters, that Jimutavahana was alive in 1092 A.D.[See the article by Mr. Panchanan Ghosh 26 C.L.J. 17 n]. The most ancientcommentator on Mann, whose work has come down to us, is Medhatithi, who is saidto have flourished about the eighth century. Next to him was Gobindaraj who isquoted several times by Jimutavahana, but unfortunately his work has reached usin a fragmentary condition and the portion relating to the text now underconsideration (IX. 179) is not available. Sarbajuanarayan is said to haveflourished in the fourteenth century and Kulluk Bhatia in the centuryfollowing. The relevant passages from these commentaries as also the translationswhich have been prepared for our use are set out below:

(A) Medhatithi.... Commentary on Manu-Book IX, verse 179.

18. This is the son begotten by a Sndra on a woman thoughnot married to him (anoorhaya) or appointed (for raising issue)(aniyuktaya).Thus, even though the text says dasi of a dasa , begotten on her (he is son)not of the dadsa, but of the master of the dadsa. Enjoined by the father hetakes a share equal to that of the aurasha son. (This is) when the partition ismade during the fathers lifetime, or if he enjoins Be you equal sharer. Butwhen the father leaves no injunction that is provided for in another smriti(thus), Even though begotten on a dasi by a Sudra he becomes taker of a shareby choice. By choice (is meant) the share that the father enjoins. If thefather be dead the brothers should make him partaker of half share. Shouldmake him (i.e.) in reference to their own shares. They should take two shareseach themselves and should give one to him. Brotherless (he) should take thewhole, in the absence of aurasha sons he alone takes the whole property, if(there) is no daughters son. If he exists he should be considered as anaurasha son.** But dasis sons of Brahmins and others take only maintenance(and) not property, this is well-settled.

(B) Sarbajnanarayan.... Commentary on Manu Bock IX, verse179:

19. On a dasi (means) on a woman not married to a Sudra; soalso issue procreated by the Sudra, who is the master or chief, on a dasi whois such of the dasa of the Sudra; he is also to be given the Sudras share thatis the meaning. Directed by the father, he takes a share, but not that not sodirected he takes only maintenance. By this (is indicated that) issue of aSudra procreated on a Sudra woman, though not married to him, becomes his sonif there is any sort of control or dominion over her, but not, even if she isthe wife of another this is shown. Therefore it is said on a dasi, or on thedasi of a dasa.

(C) Kulluk Bhatta.... Commentary on Manu Book IX, verse 179

20. That son of a Sudra who is born of a dasi, as defined bywon under banner and other marks already (in VIII, 415) spoken of, or of adasi related to a dasa; enjoined by the father he becomes taker of equal sharewith the wedded wives sons, (i.e.) takes a similar share. This is settled ruleof the shastras.

21. The passage just quoted from the commentary ofMedhatithi has been summarized in the following terms by Professor Jolly(Tagore Law Lectures, page 187): (1) " The term a Sudras son by a dasimeans a son begotten by him on a woman neither married to him nor authorized toraise offspring (according to the custom of niyoga). (2) Such a son shallreceive an equal share with a legitimate son, if his father wills it so andeither divides his property in his lifetime or enjoins his legitimate sons toshare equally with the illegitimate son after his death. (3) If the father hasmade no such provision for the illegitimate son, he shall take after thefathers death half of the share allotted to each legitimate son. (4) If thereis no legitimate son, nor daughters son, he shall take the whole property. (5)A daughters sons, where there are any, shall be treated like legitimate sonsas regards their shares of the inheritance."

22. It is thus clear that the commentaries of Medhatithi andSarbajnanarayan are in conformity with the view taken by Jimutavahana as to thetrue scope of the text of Manu. One of these commentators, Medhatithi, as wehave seen, preceded Jimutavahana by several enturies and his work wasunquestionably of high authority in those days. The other commentator,Sarbajuanarayan, followed Jimutavahana by two centuries; as his interpretationis in substantial accord with that of Medhatithi, it may legitimately beassumed that no change of opinion had taken place in the interval and that whenJimutavahana flourished, the accepted interpretation of the text was that givenby Medhatithi. On the other hand, a change had apparently come about by thetime when Kulluk Bhatta and Raghavananda flourished, who interpret the passageas restricted to dasas in the technical sense of the term and refer to Manu(VIII, 415) for the seven varieties of ways in which a man may be reduced toslavery. See also Narada v. 26-28, where fifteen ways in which a man may bereduced to slavery, are enumerated; and the Vivada-bhangarnava of Jagannath,translation by Colebrooke, III. 1. 29-33. Kuiluk Bhatta, however, is remarkablefor the narrowness of his views and his importance is by no means commensuratewith his popularity which was due in a large measure to his brevity. Thegradual spread of his work led to the supersession of the more elaboratecommentaries of the past and soon rendered them obsolete, but the merit of hiscommentary must not be judged by his popularity (see the opinion of Buhler inhis introduction to the translation of the Laws of Manu, page 131, S.B.E.S.Vol. XXV, as also that of Professor Jolly in his introduction to the text ofManu, page xii). In any view, it would be hardly fair to Jimutavahana to testthe accuracy of his interpretation of Manu, not by reference to the opinionheld by the leading commentators who flourished before or immediately afterhim, but by reliance upon the exposition of a commentator who came four or fivecenturies after him and may have held a different opinion.

23. Similar observations apply to the text of Yajnavalkyarelied upon by Jimutavahana. Here, again, we have the commentary of Vishwarupa,who is quoted by Jimutavahana on six occasions, each time with approval. Therelevant portion of his commentary, as also the translation which has beenprepared for our use, is set out below:

Vishwarupa.... Commentary on Yajnavalkya Book II, verses133-34.

24. The word half is used to indicate a less share. Thussays Vrihaspati: On the death of the father, the share of the brother, born ofa Sudra concubine, is to be given (by the other brothers) according to theirwishes just enough for respecting (his rights) if he be willing to render service.Here also the subject relates to one who is ready to transgress the shastrasjust as in the case of a son of a Sudra woman of men belonging to regenerateclasses and it should not be inferred that concubine in case of ddsi is aninjunction (of the shastras). Thus explained, everything is unobjectionable.Such a one, if brotherless, takes the whole in the absence of daughter and herson with the permission of the sovereign. This also follows from Vrihaspatissaying, viz., the sovereign takes everything of an issueless person, orthrough his permission one born of a concubine, say some. All this is specialrule for Sudras.

25. It is remarkable that Vishwarupa uses the wordabarodhaja (which is translated above as born of a concubine) as equivalentto the term dasi which occurs in the text of Yajnavalkya (II. 133) on whichhe comments. There is thus no solid foundation for the distinction suggested byRajkumar Sarvadhikari in his Tagore Law Lectures on the Hindu Law ofInheritance, where (page 941) he maintains, on the interpretation of a passageof the "Madana Parijat," that the word for a female slave is dasiand the word for a concubine is abaruddhd. This passage of the "MadanaParijat" is in the following terms ("Madana Parijat", edited byMadhusudana Smritiratna and published by the Asiatic Society of Bengal, page686):

26. The author first refers to the text of Manu (IX. 218)which declares women impartible and then proceeds to explain the term women:Women female slaves; women of the seraglio. Where the female slaves are unequalin number, they should be made to do duty by terms; if they are equal innumber, they should be divided. But women of the seraglio, even though equal innumber, are not divisible. That is laid down by Gautama (XXVIII 47): There isno division of women who are concubines. This passage merely shows thatMadanapala, the author of "Madana Parijat" used the term dasi todenote a slave woman and the term abaruddhd to denote a concubine. From thisthe inference cannot legitimately be drawn, as appears to have been done byRajkumar Sarvadhikari that the word dasi in Sanskrit means only a slave womanand may not include a concubine; on the other hand, Vishwarupa, as we have justseen, uses the word abaruddhd as equivalent to dasi. The same criticism isapplicable to the use made by Rajkumar Sarvadhikari of the text of the"Dattaka Mimansa" (Section IV, 76) and "Smritichandrika",Chapter XI, Section 1, paragraphs 10, 11. We may add that reference has alsobeen made in this connection to the text of Yajnavalkya (II. 290):

which is thus rendered by Mandlik: A man having intercoursewith an abaruddhd (protected female slave) and bhujishya (anothers mistress)shall be required to pay a fine of fifty panas, even though intercourse withthem be (in other respects) permissible.

27. This text is quoted by Nilakantha in his"Vyavahara-Mayukha" (Chapter XIX, paragraphs 10-13) where he explainsthe term abaruddha to mean female slaves forbidden by their master to haveintercourse with other men and refers to a text of Narada (see edition byMandlik, text, page 94 and translation, page 152). Reference may also beusefully made to the Mitakshara where the word abaruddha is used in thepassages translated by Colebrooke in Chapter I, Section 4, paragraph 22 andchapter II, Section 1, paragraph 28; this is taken as equivalent to sangyuktaof Gautama, that is upabhukta , enjoined or kept in concubinage, in the textstreeshu cha sangyuktashwabibhaga (Gautama, XXVIII. 47). The term dasi is notexplained in the "Subodhini" and the "Balambhatti" whichare commentaries on the Mitakshara; nor is it explained by Apararka in hiscommentary on Yajnavalkya. The same remark applies to Raghunandan who does notexplain the term dasi in his "Dayatattwa", though he quotes the textof Yajnavalkya in Chapter II, paragraph 39 (Shastri Golapchandra Sarkarstranslation, page 18). But the attitude of Raghunandan (who flourished in thelatter half of the fifteenth century) may be inferred from the followingpassage of the Snddhitattwa which refers to the impurity of sapindas and othersand has been translated for our use:

Raghunandan.... Suddhitattwa (Impurity of Sapindas andothers.)

(Serampore edition, 1834-35, Volume II, page 157). (Says)the Brahmapurana: Where of two (brothers) the mother is one, but where in anysuch case (their) fathers are two, there is perfect similarity between thesetwo in birth and death impurities. (If) a woman first married to one (and)having a son by him takes the protection of another with even the son, (and)afterwards has a son by him also, on the birth and death of these two sonsaccording as possible the impurity of the father of the second son is of threenights. Of such two sons the birth and death impurity with respect to eachother is as laid down for the caste of (their) mother Here distinctions aremade by Narada: But those who are born of a woman not appointed (to raiseissued, by one or many, are all non-heirs; they are sons of the procreatorsonly. If the mother is gained by the payment of price let them offer pindas to(their) procreators. But if gained not by the payment of price, they areofficers of pindas to the husband only (of the mother). By the use of the term only, the suggestion of (the son) having two fathers is stopped. And thispayment of price is to be understood as for gaining the woman. The"Sraddha-viveka" says that in the absence of payment of price, (theyare) offerers of pindas to the husband of the woman. But, in fact, as accordingto the saying of "Adityapurana" quoted before, procreation of son onOnes wife by another is forbiddon in the Kali age, such a son is of theprocreator only. Now-a-days, the usage also is such. In view of Yajnavalkyastext, viz., Even though begotten on a dasi by a Sudra, (he) becomes taker ofa share by choice; if the father be dead, the brothers should make him partakerof half share; usage of this kind is of the Sudras alone, (and) not of theother castes. Therefore the abovequoted saying of Brahmapurana also relates tothem.

28. It is noteworthy that the events contemplated byRaghunandan in the opening sentence of this passage have a remarkableresemblance to the facts of the litigation which has culminated in the presentreference. From what has already been stated, it thus appears that the decisionof the question referred is, in one sense, simpler in the case of theDayabliaga than in the case of the authoritative commentaries recognized inother provinces. As we read the original text of paragraph 29 of Chapter IX ofthe Dayabhaga, reference is explicitly made, not merely to the son of a dasibut also to the son of a Sudra woman like a dasi. As Shastri GolapchandraSarkar puts it, the two words dasi and adi may be rendered either as a female slaveor other or a female slave or the like. Mr. Banerji fully realized that thiswas completely destructive of his argument and advanced an extremely ingeniousargument when he made a desperate effort to restrict the normal meaning ofdasyadi by reference to the text of Manu and to limit the adi solely todasa-dasi, that is, to the wife of a slave or a female slave of a slave. Thisassumed interpretation of the text of Manu is, however, incorrect, as itignores the full force of the double use of the particle or which gives it awider significance than might otherwise have been the case. But the argumentis, in our opinion, inadmissible on a further ground, although we do notoverlook that the gloss of Sri-krishna and Rambhadra, namely, " or, on afemale slave of a slave, means, on one, not married, but kept by a slave, maybe so interpreted as to lend it to some extent the weight of their authority.If Jimutavahana had really intended what Mr. Banerji attributed to him, he needonly have quoted the text of Manu; it was needless for him to use acomprehensive phrase like dasyadi which manifestly describes a class wherein isincluded dasi. The only other point, then, which arises in connection withChap. IX, para. 29 of the Dayabhaga, is the true meaning of the wordaparineeta, which was translated by Colebrooke as unmarried and which Mr.Justice Mitter had no occasion to consider in Narain Dhara v. Bakhal GainI.L.R. (1875) Cal. 1. This, as we have seen, is ambiguous and has encouragedthe argument that it signifies never married. A distinction has beenattempted to be drawn between the two Sanskrit words, anoorha and aparineeta;but there is really no foundation for this suggestion. It may be conceded thatthe word aparineeta, taken apart from the context, is capable of either of thetwo meanings attributed to it; but the context, in our opinion, leaves no roomfor reasonable doubt that the term aparineeta has reference to the person towhom the woman bears the son whose right of inheritance is in question; it doesnot refer to the past history of the woman taken by herself. It is worthy ofnote that Srikrishna in his comments on the Dayabhaga, Chap. IX, para. 28,interprets the word, aparineeta as kenapyaparineeta () that is, not married toany one and not as kadapyaparineeta (), that is, not married at any time.Besides, it is difficult to appreciate on what principle the right of theillegitimate son to take by inheritance the estate of his putative fathershould be made to depend upon the fact, whether his mother, when she became aconcubine, was a maiden or widow. The theory suggested by Jogendra NathBhattacharya ("Commentaries on Hindu Law", second edition, p. 332)that the son begotten on an unmarried damsel may be deemed a real son, ismanifestly very farfetched and would give the illegitimate son an equal sharewith the legitimate son. Further, it is remarkable that according to theinterpretation put forward by the Respondent, the illegitimate son wouldacquire a right of inheritance, even though his mother had strayed from thepath of virtue, before she became the mistress of his putative father, while hewould have no right of inheritance, if his mother had been a faithful wife toher first husband and had, after the death of the latter, become the concubineof his progenitor. We should be reluctant to accept an interpretation whichleads to such a result, unless, indeed, there is no escape from the conclusionon the plain reading of the text. On the other hand, we cannot overlook thatboth Mann (XI. 59) and Yajnavalkya (III. 231) emphatically condemn theseduction of maidens and it is highly improbable, to say the least, that eitherof them could have given preference to an illegitimate son on the ground thathe was born of a virgin concubine. We may finally add that the interpretationput forward by the Respondent, not only negatives the claim of the illegitimateson of a Sudra by a continuous and exclusive concubine to take by right ofinheritance, but-also denies him all maintenance. This is plainly opposed tothe scheme of Chap. IX considered and analysed as a whole; that scheme is toallow maintenance to illegitimate sons of the first three classes and a shareof the estate by inheritance to those of Sudras. It is obviously no satisfactoryanswer to suggest that the claim of illegitimate sons of Sudras to maintenance,when not entitled to succeed as heirs, might be otherwise worked out andestablished, which is rendered byColebrooke, the son begotten by a Sudra on a female slave, obtains a share bythe fathers choice or at his pleasure; , but the son begotten on a femaleslave by a man of regenerate class receives only maintenance if he be docile.Mitakshara, Chap. 1, Section 12, paras. 2, 3; Muttusamy Jagvira Yettapa Naikarv. Venkatasubha Yettia (1865) 2 Mad. H.C.R. 293, affirmed in MuttusawmyJagavera Yettappa Naicker v. Vencataswara Yetttaya (1868) 12 Moo. 1 I.A. 203,Chuoturya Run Murdun Syn v. Purhulad Syn (1857) 7 Moo. I.A. 18]. The vitalquestion is whether it is at all probable that Jimutavahana really left theillegitimate son of a Sadra by a continuous and exclusive concubine withoutright of inheritance and without right of maintenance when he had the questionof maintenance of the illegitimate sons of the first three classes in mind andmade express provision in that behalf. It would really be a serious reproach toa jurist of such eminence as Jimutavahana to impute that n a series ofpropositions, elaborately framed, logically arranged and cogently argued out,he expounded the rules as to participation of sons by women of various tribesand at the same time was completely oblivious of the case of maintenance of theillegitimate son of a Sudra in the event of his exclusion from inheritance.This points to the conclusion that Jimutavahana did not provide for themaintenance of the illegitimate son of a Sudra by a continuous and exclusiveconcubine, because he had included him in the category of heirs.

29. The essence of the matter is that the term dasi as usedin the text of Yajnavalkya (II. 133), is capable of the restricted meaning female slave as also of a wider interpretation. The contention of theRespondent is that the narrower interpretation should be adopted, with theresult that as slavery was abolished in British India by Act V of 1843, therecan no longer be any dasiputra in this country entitled to inherit under thetext of Yajnavalkya or the corresponding text of Manu (IX. 179) which forms thefoundation of the rule prescribed on the subject in the various schools ofHindu law. No doubt, slavery has been abolished in this country, but it doesnot follow that the term dasi should be interpreted in the restricted sensecontended by the Respondent. As we shall presently see, the judicial decisionsin each school of Hindu law other than that prevalent in Bengal, undoubtedlysupport, directly or by implication, a liberal interpretation of the texts ofManu and Yajnavilkya. This opinion is supported by the meaning attributed tothe term dasi by lexicographers of established repute, whose views weresummarized in the following terms in the case of Chatturbhuj Patnaik v. KrishnaChandra Patnaik (1912) 17 C.W.N. 442: "Wilson in his Sanskrit Dictionaryexplains the term dasa as signifying a fisherman, a servant, a slave, a Sudra orman of the fourth tribe. The term dasi is defined by him as applicable to afemale servant or slave, the wife of a slave or a Sudra. Monier Williams in hisSanskrit Dictionary explains dasi as a female servant or slave, servant maid,whore or harlot. To the same effect is the definition given in the SanskritWorterbuch by Bohtlingk and Roth, Vol. Ill, col. 604, where numerous quotationsare given to show that the term dasa has a much wider meaning than a slave andthe same observation applies to the feminine form dasi. Burnell in theDayabibhaga of Madhabhya observes that in Southern India the term dasi isapplied also to a female dancer attached to a temple. In fact, the wholedifficulty has been created by the rendering of the word dasi by the expressiona female slave by the earliest translators; but as Sir Michael Westropppoints out in Rahi v. Govinda Valad Teja : I.L.R. (1875) Bom.97109, Mr. Colebrooke, when he translated the term dasiputra as the sonbegotten on a female slave, must have meant issue by a concubine (Strange onHindu Law, 1830, Vol. II, p. 68)." See also the elaborate discussion byWestropp C.J., in Rahi v. Govinda Valad Teja : I.L.R. (1875)Bom. 97109. There is no good reason why the term dasi, as used by Jimtitavahanawho quotes the text of Mann and Yajnavalkya, should be taken in a more limitedsense than has been adopted by the commentators in the other schools of Hindulaw. Reliance was, however, placed by Mr. Banerji upon the passage of theDayabhaga, which is translated by Colebrooke as Chapter VI, Section II,paragraphs 23 and 24, but it does not really establish his thesis. In paragraph23, Jimiitavahana, on the authority of Mann (IX. 219) and Vishnu (XVIII. 44)ordains that women are exempt from partition. In paragraph 24, Jimutavahanadefines the term women to mean other than dasi which Colebrooke renderswomen other than female slaves. Maneswara, one of the commentators of theDayabhaga, takes this to mean upabhogarlham rakshita , kept for enjoyment.Achyuta, another commentator, takes dasi in the same sense and refers to thetext of Gautama (XXVIII. 47). Streeshu cha sangyukta swabibhaga which is quotedin the Mitakshara, Chapter I, Section 4, paragraph 22 and forbids partition ofwomen enjoyed or kept in concubinage (by the father or by one of the co-heirs).Ragbunandan in his comments on this passage of the Dayabhaga similarly refersto the text of Gautama and evidently understands dasi to mean not merely aslave woman but also a concubine, . This makes it fairly clear that the termdasi was not used in a restricted sense at the time of Raghunandan whoflourished, as we have seen, in the latter half of the fifteenth century. But,if it were assumed that in a particular passage of the Dayabhaga the contextshows that the term dasi was used in a limited sense, it does not follow thatin Chap. IX, para. 29, the term is so used. The same remark applies to the"Dayacrama-Sangraha" (Chap. IV, Section II, paras. 13 and 32) of SrikrishnaTarkalankar, who, it may be observed, does not elucidate this particular pointin his commentary on paras. 23 and 24 of Chap. VI, Section 2 of the Dayabhaga.Nor need we refer in detail to the corresponding passages in the works ofcommentators of other schools, such as the Mitakshara of Vijnanesh wara (Chap.I, Section XII, para. 2), the "Vyavahara-Mayukha" of Nilakantha(Chap. IV, Section IV, para. 32), the "Viramitrodaya" of Mitra Misra(Chap. II, Part II, Section 22), the "Vivadaratnakara" ofChandeshwara (Chap. XIII, paras. 27-31), the "Vivada-nanda" ofKamalamkara (Baroda Ed., p. 328), the "Smriti Chandrika" of DevanandaBhatta (Chap. XI, Section I, paras. 10, 11), the "Dattaka-chandrika"of Kuvera or "Raghumani" (Section V, para. 30) and the "DattakaMimansa" of Nanda Pandita (Section 4, paras. 75 and 76). In our opinion,adequate reasons have not been assigned in support of the view that the termdasi should be interpreted to mean a slave woman in the Dayabhaga or in thetexts of Manu and Yajnavalkya quoted by Jimutuvahana. Besides, as we havealready indicated, the use of the word Sudra by Jinuitavahana in theexpression aparineeta dasyadi sudrdputra () makes the case for a liberalinterpretation of the term dasi really unanswerable.

30. Our attention was drawn to five early decisions:Jugyomohun Mullick v. Saumcoomar Bebee (1815) 2 Morleys Dig. 43; I.D. 3 O.S.797, Bukhtear Singh v. Buhadoor Singh (1816) 2 Macnaghteus Hindu Law, p. 14,Case XI, Anonymous (1816) 2 Macnaghtens Hindu Law, p. 256, Case XLVIII,Pershad Singh v. Muhesree (1821) 3 Mac. Sel. Rep. 176 : I.D. 6 O.S. 809 andAnonymous (1824) 2 Mac. Hindu Law, p. 119, Case XII. The first of these caseswhich was decided in 181.5 by Sir Edward Hyde Bast, Chief Justice of theSupreme Court, referred to the illegitimate son of a Sikh ; the court affirmedthe right of the son of a slave woman of a Sikh to inherit in the proportionstated by the pandits with respect to the illegitimate son of a Sudra. Thesecond case was decided in 1816 by the District Court at Hooghly; the parties,however, so far as may be inferred from the names, were Sudras geverned by theMitakshara law and in the opinion of the pandit, reference was made to the textof Yajnavalkya as cited in the Mitakshara of Vijnaneshwara. Macnaghten added anote to the effect that if the woman were not a female slave, the son begottenon her would have no right to inheritance but only a claim to maintenance. Noauthority is mentioned by Macnaghten in support of the latter statement, whichis expressed in somewhat more comprehensive terms than the rule to be found inthe first paragraph of Chap. II of his Principles of Hindu Law, published in1829. The third case was decided in 1816 in the District Court at Dacca. Theparties were apparently Sudras governed by the Bengal school of Hindu law, asreference was made to the Dayabhaga in the opinion of the pandit. The marginalnote by Macnaghten is to the effect that the son of a Sudra by a concubine orfemale slave is entitled to inherit his property, but the widow of such son isincompetent to alienate the property to the prejudice of other heirs. Effectwas given to this view and the dispute between the parties was decided on thefooting that the son of a Sudra begotten by him on his concubine was entitledto take by inheritance. This opinion was stated to be conformable to theDayabhaga, "Dayatatwa", "Vivada-Chintamani", Mitakshara,Manu and other legal authorities. The fourth and fifth cases related to theillegitimate sons of Rajputs resident in the districts of Murshidabad andBhagalpur, respectively. The decisions were based on the ground that anillegitimate son of a Rajput or a member of any of the three superior classesby a woman of the Sudra or other inferior class, is entitled to maintenanceonly. The rule thus formulated is applicable to sons of a concubine and theirmother need not be a slave. It may be conceded that these decisions aresomewhat imperfectly reported, but there is no solid foundation for thecontention that they do not afford trustworthy guidance in the solution of thequestion raised before us. It is abundantly clear from them that during thefirst quarter of the last century, the Hindu law officers attached to theCourts as also the Judges thereof upheld the right of the illegitimate son tomaintenance or inheritance, as the case might be, even though such son was bornof a concubine and not of a slave woman and in 1816, the right to inheritanceof the illegitimate son of a Sudra by a Sudra woman was actually enforced inthe case of parties governed by the Bengal school of Hindu law. The apparentlycontrary view taken by Macnaghten in the footnote to the case of Bukhtear Singhv. Buhadoor Singh (1816) 2 Mac. Hindu Law, p. 14, Case XI, is contradicted byhis opinion as set out in the marginal note to the later case, Anonymous (1816)2 Mac. HL 256, Case XLVIII. We must also remember that texts and commentariesnow available were not so easily accessible in those days, and we cannot tracethe ground for the opinion expressed by Macnaghten. The opinion of Sir WilliamMacnaghtert was considered by the Judicial Committee in Chuoturya Ran MurdunSyn v. Purhulad Syn (1857) 7 Moo. I.A. 18, and as explained by Sir Edward Ryanin that case, cannot be held really to advance the contention of theRespondent. It is remarkable that the marginal notes by Macnaghten to the casesof Pershad Singh v. Muhesree (1821) 3 Mac. Sel. Rep. 176 : I.D. 6 O.S. 809 andAnonymous (1816) 2 Mac. Hindu Law, p. 119, Case XII, are quoted as authorities,but when mention is made later of the footnote to the case of Bukhtear Singh v.Buhadoor Singh (1816) 2 MHL 14, Case XI and of the corresponding passage fromthe text, Vol. I, p. 18, no approval is expressed, while no mention is made ofthe marginal note to Anonymous (1816) 2 Mac. Hindu Law, p. 256. The decision ofthe Judicial Committee just mentioned was followed in the judgment of LordHobhouse in Roshan Singh v. Balwant Singh I.L.R. (1899) All. 191 : L.R. 27IndAp 51. On the other hand, we have the opinion recorded by Colebrooke on acase decided in 1804 and quoted with approval by Sir Thomas Strange in histreatise on (1825) HL 2 198; (1830) Vol. II, p. 68. Issue by a concubine isdescribed in the law as son by a female slave or by a Sudra woman. If the fatherwere a Sudra, he might have allotted a share to Ms illegitimate son. Mitaksharaon Inheritance, Chap. I, Section XII. And the obligation of affording him themeans of subsistence is declared in passages quoted in Jagannaths Digest, Vol.III, p. 170. This effectively removes from the region of doubt and surmise thequestion as to what was intended by Colebrooke when, in his translations of theMitakshara and the Dayabhaga, he rendered the term dasi by the phrase femaleslave; clearly, he included a concubine in that expression. Reference hasfinally been made to indications or expressions of diverse opinions on thetopic under discussion by text-writers, of whom we need mention only those nowdead, such as Shyama Charan Sarkar, Sir Gooroodass Banerjee, Raj KumarSarvadhikari, Jogendra Nath Bhattacharya and Shastri Golapchandra Sarkar.. Theview held by Shyama Charan Sarkar may be said to be dubious; the first andsecond editions of his "Vyavastha-Darpana" were published in 1859 and1867, respectively, that is, before the judgment of Mr. Justice Mitter, whichthus preceded the third edition published in 1883. On the other hand, theopinion expressed by Sir Gooroodass Banerjee (Hindu Law of Marriage andStridhan, 4th edition, page 171), is admittedly based on the judgment of Mr.Justice Mitter in Narain Dhara v. Rakhal Gain I.L.R. (1875) Cal. 1; it furtherappears that he was consulted by Ghose J. and expressed his approval of thecorrectness of the translation given by Mr. Justice Mitter in modification ofthe version of Colebrooke; Kirpal Narain Tewari v. Sukurmoni I.L.R. (1891) Cal.91. A similar remark applies to Raj Kumar Sarvadhikari and Jugendra NathBhattacharya, whose view were undoubtedly influenced by the judgment of Mr.Justice Mitter, which was, however, vigorously assailed by Shastri GolapchandraSarkar. In such circumstances, we-do not feel hampered in placing upon the textof Jimutavahana the construction obviously suggested by its language.

31. It is not necessary for our present purpose to examinein detail the view adopted by authoritative text-writers in schools of Hindulaw prevalent in other parts of India; but it appears that the correspondingpassages in the "Vivada-Chintamani" of Vachaspati Misra, the"Viramitrodaya" of Mitra Misra, the "Vyavahara-Mayukha" ofNilakantha and the "Vivada-Tandava" of Kamalakara, if they could beutilised for the ascertainment of the law as expounded in the Dayabhaga, wouldnot strengthen the view adopted in the case of Narain Dhara v. Rakhal GainI.L.R. (1875) Cal. 1, and would on the other hand, tend to support thecontention that there is no difference in this respect between the Dayabhagaand Mitak-shara. An examination of the judicial decisions in the other HighCourts also makes it plain that the rule propounded in Narain Dhara v. RakhalGain I.L.R. (1875) Cal. 1, is different from what has prevailed in all theother High Courts and has received the approval of the Judicial Committee. InBombay the leading decisions are Rahi v. Govinda Valad Teja :I.L.R. (1875) Bom. 97, Sadu v. Baiza I.L.R. (1878) Bom. 37 and GangabaiPeerappa v. Bandu I.L.R. (1915) Bom. 369, which affirm the view that anillegitimate son of a Sudra is entitled as a dasiputra to a share of theinheritance, provided that his mother was a woman in the exclusive keeping ofhis father and he was not the fruit of an adulterous or an incestuousintercourse.

32. The same view has been adopted in Allahabad in Sarasuliv. Mannu : I.L.R. (1879) All. 134, Hargobind Kuari v. DhararaSingh I.L.R. (1884) All 329 and Ram Kali v. Jamma I.L.R. (1908) All. 508 and inMadras in Vencataram v. Vencata Lutchemee Ummal (1815) 2 Strange N.C. 127 :I.D. 5 O.S. 299 and Krishnayyan v. Muttusami (1883) I.L.R. 7 Mad. 407. The question,whether it is essential that the mother should not previously have been marriedto any one, has been raised in three recent cases in Madras. In Annayyan v.Chinnan I.L.R. (1909) Mad. 366, the point was not expressly decided, but it wasruled that an illegitimate son of a Sudra by a Sudra widow, whose remarriage isprohibited by custom, has no right of inheritance. In Soundararajan v.Arunachalam Chetty I.L.R. (1915) Mad. 136, the question was raised before aFull Bench and the correctness of the decision just mentioned was called inquestion. Wallis C.J., Ayling J. and Sadasiva Iyer J. held that the textsrequire that the mother should be a dasi, not that she is qualified to become awife; and they pointed out that Medhatithi had interpreted the text of Manu asmeaning not married to the father of the child, which was precisely the viewadopted in Vencatachella Chetty v. Parvatham (1875) 8 Mad. H.C.R. 134,Karuppannan Chetti v. Bulokam Chetti I.L.R. (1899) Mad. 16 and Padala KrishnaBao v. Padala Kumarajamma (1912) 15 I.C. 340. Wallis C.J. also made theimportant remark that the limitation that the woman should be an exclusive andcontinuous concubine is not to be found expressed in so many words in the textsand appears to have been imposed by the Courts as necessary to secure dueevidence of the paternity, just as the further restriction that the connectionmust not have been incestuous or adulterous was imposed on general grounds ofmorality. Parisi Nayudu v. Bangaru Nayudu (1869) 4 Mad. H.C.R. 204,Vencatachella Chetty v. Parvatham (1875) 8 Mad. H.C.R. 134. Sadasiva Ayyar J.referred with approval to the theory propounded by Seshagiri Ayyar J., inMeenakshi v. Muniandi Panikkan I.L.R. (1914) Mad. 1144, that the favourabletreatment of illegitimate sons of Sudras as regards right to share in paternaland ancestral property was due to the idea that marriage among them was not sostrictly formal and ceremonial as in the case of the higher classes; continuousconcubinage was regarded as equivalent to marriage, although the children ofthis irregular union did not rank equally with those with whose mother therewas a formal marriage. Mr. Justice Ayyar also pointed out that the term dasawas not exclusively applicable to slaves and referred in support of thisopinion to the authorities cited in the decision of this Court in ChatturbhujPatnaikv. Krishna Chandre. Patnaik (1912) 17 C.W.N. 442. The question of themeaning of the expression unmarried was considered again by another FullBench in Subramania Ayyar v. Rathnavelu Chetty I.L.R. (1917) Mad. 44, where itwas ruled that the expression, loosely translated as unmarried woman, merelymeans a woman not married to the father of the person whose rights ofinheritance were under consideration. Sadasiva Ayyar J., KumaraswamiStistriyar J., who minutely scrutinised the texts and reviewed the judicialdecisions, came to the conclusion that the term dasiputra is not restricted tothe son of a slave woman and that the expression which had been translated unmarrieddid not mean never married to any one. Reference may in this connection beusefully made to the following observations of Professor Jolly (Tagore LawLectures, p. 187) with regard to the contention that the term dasi means afemale slave in the strictest sense of that term and that as slavery has beenabolished under the British rule, the whole law under notice has becomeobsolete : "It is quite certain, however, that the commentators andshastris have persistently explained the term dasi as including any unmarriedfemale of the Sudra caste. To the evidence tending in this direction which maybe collected from the translated works and from Bombay and South Indian cases,I may add the before-quoted statement of Medhatithi and the remark of Kamalakarin the Vivada-Tandava that the text of Mauu refers to the son begotten by aSudra on an unmarried Sudra female." This supports the view taken in thecases of Chatturbhuj Patnaik v. Krishna Chandra Patnaik (1912) 17 C.W.N. 442,Subramania Ayyar v. Rathnavelu Chetty I.L.R. (1917) Mad. 44.

33. The Judicial decisions we have mentioned make referenceto the judgments of the Judicial Committee in Chuoturya Ran Murdun Syn v.Purhulad Syn (1857) 7 Moo. I.A. 18, Inderan Valungypuly Taver v. RamaswamyPandia Taliver (1869) 3 B.L.R. P.C. 1 : 13 Moo. I.A. 141, Gajapathi RadhikaPatla Mahadebi Guru v. Gajapathi Hari Krishna Debi Guru (1870) 6 B.L.R. 202 :13 Moo. I.A. 497, Jogendro Bhupati Hurrochundra Mahapatra v. Nityanand Man SingI.L.R. (1890) Cal. 151 : L.R. 17 IndAp 128 and Roshan Singh v. Balwant SinghI.L.R. (1899) All. 191 : L.R. 27 IndAp 51. An examination of these cases, whosespecial facts need not be analysed and reviewed for our present purpose,discloses that whenever the Judicial Committee has expressed an opinion on thepoint, directly or indirectly, it has been unfavourable to the view maintainedon behalf of the Respondent. Whatever may be urged against some of theseexpressions of opinion as in the nature of obiter dicta, that criticism doesnot apply to the judgment pronounced by the Judicial Committee (Lord Watson,Sir Barnes Peacock and Sir Richard Couch) in Jogendro Bhupati HurrochundraMahapatra v. Nityanand Man Sing I.L.R. (1890) Cal. 151 : L.R. 17 IndAp 128. Inthat case the decision of the Bombay High Court in Sadu v. Baiza I.L.R. (1878)Bom. 37, was expressly approved and it was ruled that where a Sudra leaves alegitimate son as also an illegitimate son by Sudra concubine, the legitimateand illegitimate sons take their fathers property as coparceners with right ofsurvivorship; consequently, where a Sudra died leaving a legitimate son A andan illegitimate son B and A died before partition, B would take As share bysurvivorship. This decision of the Judicial Committee cannot be explained awayon the hypothesis apparently made by Ghose J. in Kirpal Narain Tewari v.Sukurmoni I.L.R. (1891) Cal. 91, 104, that the claimant in that case was theson of a slave woman in the technical sense of the term; the dates mentioned inthe proceedings Jogendro Bhupati Hurrochundra Mahapatra v. Nityanand Man SinghI.L.R. (1890) Cal. 151 : L.R. 17 IndAp 128, negative any such presumption. Norcan the decision be explained away as was attempted in the cases of KirpalNarain Tewari I.L.R. (1891) Cal. 91, 104 and Ram Saran Garain v. Tek ChandGarain I.L.R. (1900) Cal. 194, on the ground that the question raised was notone of right of inheritance but of survivorship incidental to familycoparcenary. Plainly this distinction is immaterial in the determination of thestatus of the legitimate son; indeed, when the Judicial Committee held thatunder the Mitakshara law, among Sudras, where a father left a son by a weddedwife and an illegitimate son by a dasi, the ordinary rule of survivorshipincidental to a family coparcenaries applied, they assigned to the illegitimateson a position as a member of the family like the legitimate son. There can, inour opinion, be no doubt that so far as the Mitakshara school is concerned, ithas been conclusively settled by the Judicial Committee that if a Sudra keeps aSudra woman as continuous and exclusive concubine, she is a dasi and hisillegitimate son by her is a dasiputra entitled to succeed to the estate of hisfather by right of inheritance Chatturbhuj Patnaik v. Krishna Chandra Patnaik(1912) 17 C.W.N. 442. In the view we propose to take, the law on this pointunder the Bengal school does not differ from that recognized by all the otherschools of Hindu law throughout India.

34. As a last resort, Mr. Banerji argued that even if theright of the illegitimate son of a Sudra by a continuous and exclusiveconcubine to take by inheritance the estate of his putative father wasestablished, upon a true construction of what is ordained by Jimutavahana inhis Dayabhaga, we should disregard the rule enunciated by him, inasmuch as itis contrary to usage and custom. In support of this position Mr. Banerjiasserted that all that was stated by Jimutavahana in his Dayabhaga (such as theVarious forms of marriage enumerated in Oh. V, Section III, paras. 3, 4) wasnot operative in the Bengal school of Hindu law and he referred for an exampleto the rules for valid marriages between persons of different castes,elaborately discussed by Jimutavahana in the identical chapter (Ch. IX) of hiswork now under consideration. This illustration cannot but be deemed unhappy,because although it has been sometimes asserted that intermarriage betweendifferent castes is prohibited in the present age, the authorities are notunanimous as to how far this prohibition ("Udvahatattwa" ofRaghunandan, Vol. II, p. 62) extends to intermarriages between different castesof the Sudra class in Bengal. In the case now under examination, Narain Dharav. Rakhal Gain I.L.R. (1875) Cal. 1, Mr. Justice Romesh Chunder Mitter expressedhimself in favour of the view that such prohibition of intermarriage betweendifferent castes was universal and unqualified. In that very case, however, Mr.Justice Markby dissented from this view. In a later case Upoma Kuchain v.Bholaram Dhubi I.L.R. (1888) Cal. 708, which came from Assam, Macpherson andGordon JJ. held that, under the Bengal school of Hindu law marriage betweenpersons belonging to different sections or sub-divisions of the Sudra caste wasvalid. They pointed out that this was in conformity with the opinion expressedby Wilson and OKinealy JJ. in an unreported case Since reported: GirishChandra Roy v. Mahomed Shajed, (1888) 25 C.W.N. 634 and that a similar view hadbeen approved by the Judicial Committee in two cases from Madras InderanValungypuly Taver v. Ramaswamy Pandia Talarer (1869) 3 B.L.R. P.C. 1 : 13 Moo.I.A. 141 and Ramamani Ammal v. Kulanthai Natchear (1871) 14 Moo. I.A. 346; theformer of these cases affirmed the decision of Scotland C.J. and Holloway J. inPandaiya Telaver v. Puli Telaver (1863) 1 Mad. H.C.R. 478. The same conclusionwas reached by Prinsep and Handley JJ. in Ramlal Shookool v. Akhoy CharanMitter (1903) 7 C.W.N. 619, where they approved of the opinion of theSubordinate Judge, Babu Girindra Mohan Chakravarti, whose judgment contained alearned discussion of the subject. The illustration chosen by Mr. Banerji toshow that some at any rate of the rules enunciated by Jimutavahana in hisDayabhaga can no longer be regarded as living law, must consequently be deemeddistinctly unfortunate, as it refers to a question which may itself form thesubject of serious controversy. We must, therefore, leave the illustrationaside and examine the validity of the contention, that the rule formulated inthe Dayabhaga, Ch. IX, para. 29, has been superseded by a custom to thecontrary effect. In this connection Mr. Banerji endeavoured, as might beexpected, to fortify his argument by invoking the aid of the observation of SirJames Colvile in Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12Moo. I.A. 397, 346, that under the Hindu system of law, clear proof of usagewill outweigh the written text of the law, which is in complete accord of whathad been ordained centuries ago by Manu (VIII. 41, 46) and Yajnavalkya (1.342)and was re-echoed by Jimutavahana when he proclaimed that a thing cannot bealtered by a hundred texts. But even if we assume that where there is aconflict between a custom and a text of the smritis the custom overrides thetext:, because in the words of Maim (I. 108, 110) immemorial usage istranscendant law, the real difficulty which lies athwart the path of theRespondent is that no such custom was alleged or proved either in the presentinstance or in the earlier cases in point; Narain Dhara v. Rakhal Gain I.L.R.(1875) Cal. 1, Kirpal Narain Tewari v. Sukurmoni I.L.R. (1891) Cal. 91. On theother hand, the view which found favour with both Mr. Justice Mitter and Mr.Justice Ghose was that the text of the Dayabhaga, correctly read and interpreted,did not at all sanction the claim of the illegitimate son of a Sudra by acontinuous and exclusive concubine to take by inheritance the estate of hisputative father; from that standpoint, the theory could not well be propoundedthat the claim, though sanctioned by the Dayabhaga, must be negatived ascontrary to an overriding custom. Mr. Banerji, however, emphasised the factthat no judicial decisions could be traced in Bengal later than 1816, whichrecognized the right of inheritance of an illegitimate son of a Sudra by acontinuous and exclusive concubine. But it is manifest that this circumstancedoes not, with any approach to certainty, point to the conclusion that a customhas grown up in derogation of the right of the illegitimate son. Paucity andeven absence of judicial decisions may be attributable to a variety of causes,amongst others, to the currency of an opinion that the law was well settled, orto the relative infrequency of instances of such casts of succession. On theother hand, the fact cannot be ignored that in the case of Narain Dhara v.Rakhal Gain I.L.R. (1875) Cal. 1, where the claim of the illegitimate son wasultimately negatived by this Court, it had been upheld in the Court of firstinstance by a Hindu judicial officer who pronounced his judgment in 1873. Wehave thus the series of significant facts that in 1816 the right of theillegitimate son of a Sudra by a continuous and exclusive concubine to take byinheritance the estate of his putative father under the Bengal school of Hindulaw was judicially recognized in a British Court, that such tight had beenacknowledged to be in conformity with the original texts by Colebrooke (thetranslator of the Mitakshara and the Dayabhaga), whose opinion on a casedecided in 1804 published by Sir Thomas Strange in 1825 in the first edition ofhis work (Hindu Law, Vol. II, p. 198), was that an issue by a concubine isdescribed in the law as son by a female slave or by a Sudra woman, that in1829 the right was recognized by Macnaghten in two instances, though rejectedin a third and that so recently as 1873, the right was again upheld by a Hindujudicial officer whose view was negatived on appeal to this Court, on theerroneous assumption that the relevant passage of the Dayabhaga had beeninaccurately rendered by Colebrooke. This chain of circumstances plainlymilitates against the hypothesis that a custom, contrary to the rule enunciatedin the Dayabhaga, had grown up and had become firmly established. Apart fromthis, it is obviously one thing to show that, in recent years, occasions forthe application of a particular rule of inheritance have grown fewer and fewer,possibly from the gradual disappearance of concubine through the spread ofeducation and the consequent adoption of a higher ethical standard of socialrelations; it is an entirely different thing to establish that the particularrule of inheritance has been superseded by the growth of a contrary custom in aspecified locality, family or section of the community. To establish theexistence of such a custom, evidence must be adduced to show that in numerousinstances succession had taken place to the estates of deceased persons incontravention of the prescribed rules of inheritance; in other words, that thelegitimate heir had taken in conformity with the alleged custom and to theexclusion of the illegitimate heir who would have succeeded in accordance withthe original texts of the sages of the Hindu law. The essence of the matter isthat a rule may be deemed obsolete by the layman, merely because there is nooccasion for its application, but this is clearly not equivalent to thedestruction of the rule by the growth of a contradictory custom. As theJudicial Committee have repeatedly pointed out Ramalakhshmi Ammal v. SivananantliaPerumal Sethurayer (1872) 12 B.L.R. 396 : 14 Moo. I.A. 570, Hurpurshad v. SheoDyal : (1876) L.R. 3 I.A. 259, 285, Rup Chand v. Jambu PrasadI.L.R. (1910) All. 247 : L.R. 37 IndAp 93, Abdul Hussein Khan v. Sona DeroI.L.R. (1917) Cal. 450 : L.R. 45 IndAp 10, the existence of a custom must beestablished by clear and unambiguous evidence, to entitle the Court to holdthat in a particular family, community, or locality the customary rule hadobtained the force of law in partial modification or complete supersession ofthe ordinary law. To mention one illustration only, it may be proved byappropriate evidence that a daughter is excluded from inheritance by specialfamily or local custom Bajrangi Singh v. Manokarnika Bakhsh Sing : I.L.R. (1907) All. 1: L.R. 35 IndAp 1, Parbati Kunwar v. Chandarpal KunwarI.L.R. (1909) All. 457 : L.R. 36 IndAp 125, but no custom of this descriptionfor exclusion of the illegitimate son has been asserted, much less proved inany of the cases brought to our notice. Mr. Banerji finally urged that therule, which entitled the illegitimate son of a Sudra by a continuous andexclusive concubine to take by inheritance the estate of his putative father,was opposed to the sentiment of that community. This allegation, even if itcould be established by evidence, would not be material for the decision of thequestion in controversy. But as the assertion was made, Mr. Gupta appropriatelyinvited our attention to the deposition of the first Plaintiff (the landlord)which showed that the Defendant (the illegitimate son) was not only treated byhis putative father as member of the family, but was also received in thefamily of the Plaintiff, who apparently belongs to the same caste, joined withhim in meals and for a time lived as a member of his household. Thisillustrates the paramount need for caution on the part of the Court whensweeping generalisations are put forward as to the sentiments of an entirecommunity which cousists of men and women in various walks of life, brought upunder the influence of widely diversified standards of education and culture.In view of all these circumstances, we hold without hesitation that there is noindication that the rule of inheritance declared by Jimutavahana to beapplicable to the illegitimate son of a Sudra by a continuous and exclusiveconcubine has been abrogated by custom. There is, in our opinion, no foundationfor the suggestion that the view we propose to take is in essence a revival ofan archaic rule of law which has been superseded by contrary custom in Bengal,though it is admittedly in full operation throughout the rest of India. Wedesire to add that Mr. Banerji did not venture to propound what would have beena manifestly unfounded theory, namely, that Jimutavahana in this respectenunciated what even in his time was merely archaic and not living law; such atheory would have been completely demolished by proof that the rule wasactually enforced by a British Court so late as 1816, many centuries after thedeath of Jimutavahana.

35. Our conclusions may now be summarised as follows:

(a) The text of Dayabhaga, Ch. IX, para. 29, as given in theedition of Bharatchandra Shiromoni must be accepted as the basis of ourdecision. Tested from the point of view of that text, the translation given byMr. Justice Mitter in Narain Dhara v. Rakhal Gain I.L.R. (1875) Cal. 1 andfollowed by Mr. Justice Ghose in Kirpal Narain Tewari v. Sukurmoni I.L.R.(1891) Cal. 91 and Ram Saran Garain v. Tek Chand Garain I.L.R. (1900) Cal. 194,must be pronounced to be inaccurate in a material particular.

(b) The term dasi is not exclusively applicable to a femaleslave, but includes a Sudra woman kept as a concubine. According to the correctinterpretation of para. 29, Chap. IX of the Dayabhaga, the term dasyadisudrdputra includes the son of a dasi or the like; it is not restricted only tothe son of a dasi or the dasi (slave woman or wife) of a dasa. In the sametext, the term aparineeta means, not a maiden but not married (to the Sudrato whom she bears a son).

(c) Under the Bengal school of Hindu law correctlyinterpreted, an illegitimate son of a Sudra is entitled as a dasiputra to ashare of the inheritance, provided that his mother was in the continuous andexclusive keeping of his father and he was not the fruit of an adulterous or anincestuous intercourse. This right is not subject either to the condition thathis mother was a slave woman in the technical sense of the term or to thecondition that a marriage could have taken place between his father and hismother. The contrary view taken in Narain Dhara v. Rakhal Gain I.L.R. (1875)Cal. 1 and Kirpal Narain Tewari v. Sukurmoni I.L.R. (1891) Cal. 91, cannot besupported.

36. We have anxiously considered whether we should declineto give effect to what we consider to be the true rule deducible from the textof the Dayabhaga. Mr. Banerji on behalf of the Respondent rightly pressed uponour attention the fact that the decision of Mr. Justice Mitter was pronouncedso far back as 1875 and has up to the present time survived the challenge madein 1891. He urged that in such circumstances we should apply the principle ofstare decisis which was successfully invoked in the cases of Dino Nath Mohuntov. Chundi Koch (1889) 16 C.L.J. 14, Kedar Nath Ray v. Amrita Lal Mukerjee(1911) 17 C.W.N. 492 and Kedar Nath Banerjee v. Hari Das Ghose I.L.R. (1915)Cal. 1. But we are unable to give effect to this contention for two principalreasons. In the first place, the decision of Mr. Justice Mitter was based, notso much upon the interpretation of an accepted text of doubtful import, butupon the translation of a reading of the text, the very existence whereof hasnever been traced. In the second place, the second point which has been arguedbefore us, namely, the true meaning of the term aparineeta translated byColebrooke as unmarried did not arise in the case before Mr. Justice Mitter,and so far as this Court is concerned, presents for solution a question offirst impression. We do not also feel pressed by the consideration whichweighed with Lord Cranworth in Young v. Robertson (1862) 4 Mac. H.L. 314, 345,namely, the risk that a new interpretation of the law may endanger thesecurity of property and titles. Cases of the description before us are ofgreat rarity and are found only occasionally, as Shastri Golapchandra Sarkarputs it, amongst holders of rajes or big estates, or in the case of a lowcaste people; herein the extremes meet; the former are above public opinion andthe latter are below the same. We feel convinced that our decision is notlikely to affect such a large section of the community that we should give ouradherence even to a long-standing error. We hold accordingly that the questionreferred to the Full Bench must be answered in the affirmative.

37. The result is that this appeal is allowed, the decreemade by the District Judge set aside and the case remitted to the Court offirst instance for determination of the question whether the tenancy held byPanchanan Das was a heritable under-raiyati holding. The Appellants areentitled to their costs of the hearing before this Bench, the Division Benchand the District Judge. The costs in the trial Court both before and afterremand will be in the discretion of that Court.

38. We desire to record our appreciation of the able andexhaustive arguments addressed to us by Mr. Gupta and Mr. Banerji, whichexhibited much learning and industry.

Ernest Edward Fletcher, J.

39. I agree with the Chief Justice.

Chatterjea, J.

40. The question referred to the Full Bench is as follows:Whether under the Bengal school of Hindu law, the illegitimate son of a Sudraby a continuous and exclusive concubine is an heir to his putative father

41. It appears that one Panchanan Das had an illegitimateson, the second Defendant Hari Mohan Das, by his mistress Rupa Dasi. Panchananhad a holding and on his death, the landlord brought a suit for recovery ofpossession of the holding on the ground that Panchanan had only a right ofoccupancy in it and having left no heir, the holding reverted to the landlord.The parties are not agreed as to whether Panchanan had a right of occupancy orthe right of an under-raiyat in the holding. The Courts below did not decidethe question, but have held that if he was an occupancy raiyat, his right ofoccupancy was extinguished upon his death, as he left no legal heir and thatthe Defendant Hari Mohan as an illegitimate son of Panchanau could not be hisheir-at-law. The Courts below relied upon the cases of Narain Dhara v. RakhalGain I.L.R. (1875) Cal. 1 and Kirpal Narain Tewari v. Sukurmoni I.L.R. (1891)Cal. 91, in support of their decision. The correctness of those decisionshaving been challenged on behalf of the Appellant, the Division Bench has referredthe question stated above to the Full Bench.

42. In the case of Narain Dhara v. Rakhal Gain I.L.R. (1875)Cal. 1, referred to above, Mitter J. held (Markby J. concurring with him 011the point) that according to the doctrines of the Bengal school of Hindu lawonly a certain description of illegitimate sons of a Sudra by an unmarriedSudra woman is entitled to inherit the fathers property in the absence oflegitimate issue, viz., the illegitimate sons of a Sudra by a female slave or afemale slave of his slave. The passage in the Dayabhaga bearing upon thisquestion (Dayabhaga, Ch. IX, para. 29) runs as follows:

Colebrooke has translated it thus: But the son of a Sudra,by a female slave or other unmarried Sudra woman, may share equally with othersons, by consent of the father. Mitter J. in the above case held thatColebrookes translation was inaccurate and that the passage, if correctlytranslated, would run thus: But the son of a Sudra by an unmarried femaleslave, etc., may share equally with other sons, by consent of the father, etcIt is contended before us, that Mitter J. was mistaken in thinking that therewas any inaccuracy in Colebrookes translation and that the latter hadcorrectly rendered the passage.

43. Now Jimutavahana, immediately after the passage citedabove, quotes a text of Manu and a text and half of Yajnavalkya bearing on thepoint. These texts ran as follows:

Manu, Ch. IX, 179.

44. But a son begotten by a man of the servile class on hisfemale slave or on the female slave of his male slave may take a share of theheritage if permitted by the other sons, thus is the law established. (SirWilliam Jones translation.)

Yajnavalkya, Part II (134-135).

45. Even a son begotten by a Sudra on a female slave, maytake a share by the fathers choice. But if the father be dead the brethrenshould make him partaker of the moiety of a share: and one who has no brothers,may inherit the whole property in default of daughters son.

46. The first thing to be considered is what is the meaningof the word (dasi) which has been translated as ; a female slave in the textcited above. The expression dasi ordinarily means a female servant and is thefeminine of dasa. Dasa has various meanings attributed to it in thedictionaries a fisherman, a servant, a slave, a Sudra, or a man of the fourthtribe and a dasi a female servant or slave, the wife of a slave or a Sudra (seeWilsons Dictionary); a female servant or slave, servant maid, whore or harlot(Monier Williams Sanskrit Dictionary). But although various meanings have beenattributed to the terms dasa and dasi in the dictionaries, the question is inwhat sense they were used by the sages and writers on Hindu law, because it isnot suggested by any one that the expression was used in the sense of a whoreor a harlot in the above texts.

47. Now seven descriptions of slaves (or rather sevendifferent modes in which slaves can be made) are enumerated in Manu, Ch. VIII,verse 415:

48. One made captive under a standard or in battle, onemaintained in consideration of service, one born of a female slave in thehouse, one sold, or given, inherited from ancestors and one enslaved by way ofpunishment on his inability to pay a large fine. (Sir William Jonestranslation.)

49. Narada mentions 15 descriptions of slaves: One born (ofa female slave) in the house of her master, one bought, one received (bydonation), etc., etc The word used in the texts is (dasa) and there is nodoubt that in these texts of Manu and Narada, it is used to denote slaves, asthe texts purport to classify the different kinds of slaves, or the differentmodes in which slaves may be made.

50. It is next to be seen how the word dasi used in the textof Manu, Ch. IX, 179 and Yajnavalkya, Part. II, 131-135, have been understoodby commentators. Of the commentators of Manu, Medhatithi is the oldest and hiscommentary runs as follows:

51. "This refers to the son of a Sudra on a womanthough not married to him or appointed (for raising issue). Thus even the textsays dasi of a dasa begotten on her (he is son) not of the dasa but of themaster of the dasa. Enjoined by the father he takes a share equal to that ofthe aurasa son (this is) when the partition is made during the fatherslife-time or if he enjoins Be you equal sharer. But when the father leaves noinjunction that case is provided for on another smriti (thus) Even thoughbegotten on a dasi by a Sudra (he) becomes taker of a share by choice."

Sarbajnanarayan.

52. On a dasi (means) on a woman not married to the Sudra;so also issue procreated by the Sudra, who is the master or chief, on a dasiwho is such of the dasa of the Sudra; he is also to be given the Sndras sharethat is the meaning. Directed by the father, he takes a share, but not that notso directed he takes only maintenance. By this (is indicated that) issue of aSudra procreated on a Sudra woman, though not married to him, becomes his sonif there is any sort of control or dominion over her, but not, even if she isthe wife of another this is shown. Therefore it is said on a ddsi or on thedasi of a dasa.

53. On the other hand Kulluk Bhatta says:

54. "A son of a Sudra born of a dasi as defined by wonunder a standard and other descriptions (already) spoken of or of a dasirelated to a dasa enjoined by the father he becomes taker of equal share withthe wedded wives sons (i.e.) takes a similar share. This is settled rule ofthe shastras."

55 Kulluk Bhatta in saying dhwajahritadyukta-lakshanayamdasyam () [dasi as defined by one made captive under a standard and otherdescriptions (already) spoken of] evidently refers to the text of Manu, Ch.VIII, v. 415, cited above: One made captive under a standard or in battle, onemaintained in consideration of service, one born of a female slave in thehouse, one sold, or given, inherited from ancestors and one enslaved by way ofpunishment on his inability to pay a large fine.

56. It is clear therefore that of the commentators of Manu,Kulluk Bhatta expressly states the son of a dasi to be the son of a femaleslave, while the other two, Medhatithi and Sarbajnanarayan, refer to the son ofa dasi as the son of a Sudra woman not married to a Sudra.

57. In Yajnavalkya, Part II, 134-135, the expression dasi isnot explained, but in Ch. II, verse 290 (prescribing the penalty for theintercourse with woman), Yajnavalkya says:(abaruddhasu daseesu bhujishyasu tathaibacha) so that he makes adistinction between abaruddhd (excludedfrom intercourse with other men, i.e., a concubine), a (dasi) and a (a womanwho always receives men). Dasi in that sloka must therefore mean somethingother than a concubine and appears to have been used in the sense of a femaleslave. Had dasi meant or even included a concubine it would not have beennecessary to make any distinction between a dasi and an abaruddha.

58. Vishwarupa in his commentary on Yajnavalkyas text, BookII, 133-134 refers to a text of Vrihaspati

59. Thus says Vrihaspati: At option, the brothers should onthe death of the father give to the brother born of a Sudra concubine (kept inseclusion) some share as a mark of respect if he serves. The expression whichis translated as concubine above is abarodhaja.

60. Vijnaneshwara in the Mitakshara, Ch. I, Section 12,para. 2, says:

61. The son begotten by a Sudra on a female slave, obtainsa share by the fathers choice, or at his pleasure. (Colebrookestranslation.) He does not explain what dasi means but it is translated byColebrooke as female slave.

62. "Balambhatti " and "Subodhini"(Commentaries on the Mitakshara), Apararka in his commentary on the Yajnavalkyaand Sulapani all refer to the son of a ddsi, but none of them explains theexpression dasi.

63. In "Vyavahara-Mayukha" of Nilakantha, SectionIV, 32, it is stated-. Yajnavalkya states a distinction with regard to a sonbegotten on a woman not married to him, even a son begotten by a Sudra on afemale slave, may take a share, by the fathers choice. But if the father bedead, the brethren should make him partaker of the moiety of a share.

64. The "Vivada-Chintamani" (of Vachaspati Misra),after referring to the text of Manu and Yajnavalkya says A son of a Sudra by an unmarried woman. Hetherefore apparently understood dasi as any Sudra woman not married to theSudra. Kamalakara also speaks of A sonof a Sudra by a Sudra woman, not married to him.

65. The "Viramitrodaya" of Mitra Misra, Ch. II,Part II, 22, after quoting the text of Yajnavalkya merely speaks of dasiputraand it does not appear in what sense he used the expression. In the translationby Golapchandra Sarkar it is rendered as a female slave (see p. 130).

66. On the other hand, "Vivada-Ratnakar"(Chandeswara), Ch. XIII, after quoting Manus text (on a dasi or on the dasi of a dasa)says: [on a dasi means on a woman whofulfils the character either of a woman captured in war or who becomes a slavein consideration of maintenance (or of similar description).] On the dasi of adasa means on the female slave of a slave of the above character or on anunmarried girl. The author no doubt in explaining dasi of a dasa explains it asa female slave of a slave of the above description or an unmarried girl, buthe gives a very clear meaning to the expression dasi which leaves no room fordoubt that he understood that expression to mean a female slave.

67. In "Dattaka Mimansa" of Nanda Pandit, paras.75 and 76, it is stated:

68. "On the subject of sons, it has been said The sonself-given and the slaves son (dsaputra). Of these he describes the latter:a female purchased by price, who is enjoyed, is a slave: it is thus declared.The son who is born on her, is considered as a slave-son. That female, thoughof equal class, being purchased by price, who is enjoyed cohabited with, isdenominated by former sages, a slave. For, a text expresses, That woman, whois bought by price, is not considered a wife: she neither (avails) in rites, inhonour of Gods, nor in rites in honour of the manes. The sages regard her as afemale slave. One born on her, is a slaves son. The son of a female slave, isa slaves son (dasaputra), the feminine of dasa (slave) being like themasculine in the Vedas." (Sutherlands translation.)

69. The author no doubt was dealing with the question as towho are entitled to perform parvatia shrdadha, but he states the meaning ofdasi as understood by him and at his time.

70. It will appear therefore that commentators on Manu andYajnavalkya and Sanskrit text-writors, ancient and modern, have used orunderstood the word dasiputra in different senses, some restricting it to theson of female slave, while others using it as the son of a concubine or a womannot married to the Sudra.

71. I now come to the text of Dayabhaga as translated byColebrooke. As stated above, Mitter J. in the case of Narain Dhara v. RakhalGam (1875) I.L.R. 1 Calc. 1, was of opinion that Colebrookes translation ofthe passage as But the son of a Sudra, by a female slave or other unmarriedSudra woman, may share equally with other sons by consent of the father iserroneous and that the correct rendering would be: But the son of a Sudra byan unmarried female slave and c., may share equally with other sons, by consentof the father and c. Mitter J. no doubt has omitted the words Sudra woman inhis translation, but I do not think that his translation of the passage isincorrect on that ground. The words ; (dasyadi sudraputra) have been translatedby Colebrooke as a female slave or other unmarried Sudra woman. The expressiondasi has been translated as female slave by both. Then comes the expressionadi sudraputra. Colebrooke translates as or other unmarried Sudra woman. Thequestion therefore is what is the significance of the expression adi. NowJimutavahana in the very next sentence refers to the text of Manu which speaksof dasi and dasi of a dasa . It appears therefore that Jimutavahana instead ofrepeating the words dasi and the dasi of a dasa says (dasi adi), i.e., dasi, etcetera. Manus text itself does not say anything about concubines or other unmarriedwoman. It uses the two expressions dasi and dasi of a dasa and it is morelikely that Jimutavahana, while quoting that text, in the very next sentence,should have by the word adi meant to refer to the expression dasi of a dasathan that he should have meant or other unmarried Sudra women.

72. There was a good deal of discussion at the bar as to themeaning of the expression (aparineeta)(unmarried or unwedded; in paragraphs 29and 28. I do not think, however, that anything turns upon that expression,though the question has been debated at length in the Madras High Court. It maybe conceded that it means not married to the putative father. Even then thepassage may be translated as follows: But the son of a Sudra by a Sudra womanwho is a female slave, et cetera, (i.e., a female slave or a female slave of aslave) not wedded to him. The word (a Sudra woman) is qualified by the wordsdasi and adi. It seems to me that according to Jimutavahana, in order thatthere should be a heritable right, (a) the father must be a Sudra, (b) the sonmust be begotten on a Sudra woman, (c) the Sudra woman must be of dasi class,the expression adi referring to the dasi of a dasa (female slave of a slave) inthe text of Manu cited immediately below. Golapchandra Sarkar Shastri in his"Hindu Law," 4th Ed., page 197, gives a literal translation of thepassage in the Dayabhaga thus: But of a Sudraa-son-by-a-not-married-female-slave-or-the-like-Sudra-woman, and thenreferring to Colebrookes translation, viz., by a female slave or otherunmarried Sudra woman says: "So you see that it is difficult to maintainthat Colebrookes version is wrong, excepting this that the word unmarried isambiguous and may suggest a meaning not intended by the original, namely, thatthe woman must be a maiden, whereas the real meaning is, that she is notmarried by the man. The two words dasi and adi may be done, in either of theabove two ways, namely, either into a female slave or other, or into afemale slave or the like. No Sanskritist would be prepared to say that thefirst of these versions, which is given by Colebrooke is wrong; the translationgiven in Narain Dharas Case I.L.R. (1875) Cal. 1, omits the word Sudra womanaltogether". But the learned author does not appear to have consideredwhether, having regard to the text of Manu immediately following the passagecontaining both the expressions dasi and the dasi of a dasa, Jimutavahana mightnot have used the word adi (et cetera), with reference to the expression dasi ofa dasa.

73. Golapchandra Sarkar refers to the fact that twocommentators of the Dayabhaga, namely, Rambhadra and Srikrishna, explain theterm (on a dasi of a dasa) in the text of Manu thus: : on a female slave of aslave means, on one not married, but kept by a slave, and observes: Hence ifthe son begotten by a Sudra on a kept woman of Ins slave be entitled, itfollows a fortiori that a son begotten by a man on his own kept woman should beentitled to a share. So these commentators of the Dayabhaga appear to supportthe view taken by the other High Courts. But the learned commentators do notexplain the first expression dasi as a kept woman, and Golapchandra Sarkarobserves that their interpretation of the words dasi of a dasa (dasadasyam) ason one not married, but kept by a slave is somewhat unreasonable and put asotherwise the sages might be thought to legalise adultery. If the word (dasi)means kept woman, it is difficult to see why the two learned commentators didnot explain the first expression in Manus text dasi as kept woman, becausein that case it would have been unnecessary to explain the second expression inthat text, viz., dasi of a dasa.

74. It is to be observed that in the Dayabhaga, Ch. VI,Section II, para. 23, Jimiitavahana in dealing with effects not liable topartition says "So Manu and Vishnustate other sorts of property exempt from partition. Clothes, vehicles,ornaments, prepared food, water women and furniture for repose or for meals,are declared not liable to distribution" and in paragraph 24 referring towomen says other than (dasi) female slaves (). The word dasi in Chapter VI,Section II, para. 21, is certainly used by Jimutavahana in the sense of slaves,because concubines cannot be kept as joint property. Sri-krishna in hiscommentary says

75. Srikrishna in his "Dayacrama-Sangraha" alsoappears to have used the word dasi in the sense of a female slave. In ChapterIV, Section II in enumerating properties not liable to partition, the learnedauthor refers to the texts of Manu and Vishnu as indivisible properties whichamong others mentions (woman) see para.13) and in para. 32 explains : as (woman other than dasi) which is translatedby Wynch as other than female slaves. In fact in that passage the words dasicould not have meant a concubine because a concubine would be of a particularperson, whereas a dasi would belong to the family.

76. Raghunandan in his "Shuddhitattwa" under theheading "Impurity of sapindas and others" says: " (Says) theBrahmapnrana Where of two (brothers) the mother is one, but where in any suchcase (their) fathers are two, there is perfect similarity between these two inbirth and death impurities. (If) a woman first married to one (and) having ason by him takes the protection of another with even the son, (and) afterwardshas a son by him also, on the birth and death of these two sons according aspossible the impurity of the father of the second son of three nights. Of suchtwo sons the birth and death impurity with respect to each other is as laiddown for the caste of (their) mother. In view of Yajnavalkyas text, viz.,Even though begotten on a dasi by a Sudra, (he) becomes taker of a share bychoice; if the father be dead, the brothers should make him partaker of halfshare, usage of this kind is of the Sudra alone (and) not of the other castes.Therefore the above quoted saying of Brahmapurana also relates to them."

77. But although Raghunandan quotes Yajnavalkyas text aboutthe son of a dasi in connection with the case of a woman (having a son) takingthe protection of another man and having a son by her, does not say that dasimeans a concubine.

78. The learned vakil for the Appellant invited ourattention to the subject-matter of Chapter IX of the Dayabhaga as stated in thefirst paragraph thereof; viz., Partition among sons of the same father bydifferent women; some equal to himself by class, others married in the directorder of the tribes is now described, and pointed out that Jimutavahana, afterdealing in paras. 2 to 8 with marriages in the order of the tribes and inparas. 9 and 10 with the evil consequences of the union of a regenerate manwith a Sudra woman, lays down in the 11th paragraph that the evils stated inparas. 9 and 10 do not ensue on the procreation of offspring upon a Sudra womannot married to the Brahmin himself, but that a venial offence is committed anda slight penance is requisite as will be shown, and in paragraph 28 deals withthe rights of an illegitimate son of a man of the priestly class by anunmarried Sudra woman. It is contended that the word unmarried should beunwedded ( ) and that the words or other unmarried Sudra woman in paragraph 29do not mean a maiden or a widow, but mean not wedded to the Sudra putative father.This may be so, but paragraphs 11 and 28 refer to the illegitimate son of aperson of the regenerate class by an unwedded Sudra woman and the contention ofthe learned pleader has reference to the meaning of the word (unwedded) as to which a good deal ofcontention has been-raised in the Madras High Court, but which I think has nodirect bearing upon the point before us.

79. It is to be observed that the expression in Dayabhagawhich is relied upon as meaning or other unmarried Sudra woman is not theexpression dasi, but the word adi. If dasi itself meant or included a concubineit would have been wholly unnecessary to say or other unmarried Sudra woman.It is also to be observed that in all the translations of the texts of sagesand commentators, the word dasi has invariably been translated as a femaleslave.

80. It will appear from what is stated above thatcommentators and Sanskrit text-writers have taken different views of theexpression dasi.

81. The age of Jimutavahana is variously estimated. InRajkumar Sarvadhikaris Tagore Lectures, p. 403, it is stated that Jimutavahanaflourished at the beginning of the fifteenth century. See also Jogendra ChunderGhoses Hindu Law, 3rd Ed., Vol. I. Introduction xvi. In a recent articlehowever in 26 C.L.J. 17n, a writer has discussed the opinions of variouspersons on the point and come to the conclusion that Jimutavahana flourishedduring the latter part of the 11th century. Now Kulluk Bhatta is supposed tohave flourished about the 15th century (see Jogendra Chuuder Ghoses Hindu Law,Vol. I, Introduction xvi). He was a Bengal Brahmin, but he nowhere refers toJimutavaliana. If the view taken by Rajkumar Sarvadhikari about the age ofjimutavahana viz., that he flourished at the beginning of the 15th century, iscorrect, then it is probable that he understood the meaning of the word dasi inthe sense interpreted by Kulluk Bhatta, as being the interpretation thencurrent in Bengal. If, on the other hand, Jimutavaliana flourished in the 11thcentury as the writer in 26 C.L.J. 17n endeavours to establish, Kalluksinterpretation cannot be relied upon to explain the sense in whichJimutavaliana used the words in the Dayabhaga.

82. Our attention was drawn to the fact that Jimutavalianadoes not make any provision for the maintenance of illegitimate sons of Sudras,though there is such a provision for illegitimate sons of persons belonging tothe other three castes and this fact is relied upon as showing thatJimutavaliana must have used the expression dasyadi sudraputra as includingsons of concubine and did not provide for maintenance in their case as they areentitled to a share of the estate.

83. There is no express text in the Dayabhaga providing forthe maintenance of illegitimate sons of Sudras and that no doubt is a fact infavour of the Appellants contention. But Dayabhaga is not an exhaustive codeand under the general principles of Hindu law, illegitimate sons are entitledto maintenance.

84. It was expressly held in the case of Muttusamy JagaviraYettapa Naikar v. Venkatasubha Yettia (1856) 2 Mad. H.C.R. 293, which wasaffirmed on appeal by the Judicial Committee (1868) 12 Moo I.A. 203, that theillegitimate son of a Such a by a concubine, not being a female slave, isentitled to maintenance according to Hindu law. The Judicial Committee heldthat as the son was recognized by his natural father it was not essential tohis maintenance that he should have been born in the house of his father, or ofa concubine possessing a peculiar status therein. Again in the case of InderanValungypuly Taver v. Ramaswamy Pandia Talaver (1869) 3 B.L.R. P.C. 1 : 13 Moo.I.A. 141, their Lordships observed that in the Sudra caste, illegitimatechildren may inherit and have a right to maintenance. See also Maynes HinduLaw, 8th Ed., p. 619, where it is stated that illegitimate sons, when notentitled as heirs, are to be maintained even though the connection from whichthey sprung may have been adulterous. The argument, therefore, based upon theabsence of an express text in the Dayabhaga providing for maintenance ofillegitimate sons of Sudras, is not conclusive. I now come to the decided caseson the point. But before dealing with cases under the Dayabhaga, I will dealwith the cases decided by the Judicial Committee and the other High Courts. Thefirst case which came up before the Judicial Committee, was that of ChuoturyaRun Murdun Syn v. Purhulad Syn (1857) 7 Moo. I.A. 18. The question for decisionin that case related to the right of inheritance of an illegitimate son of aSudra woman by a Khetri, one of the three regenerate castes, to the estate ofhis putative father and it was decided that he was not entitled to succeed, butwas only entitled to maintenance. In the next case Inderan Valungypuly Taver v.Ramaswamy Pandia Talarer (1869) 3 B.L.R.P.C.I. : 13 Mco. I.A. 141, a case fromMadras, the right of illegitimate sons of Sudras to inherit was stated ingeneral terms, but it was found in that case that there was a marriage betweenthe mother and the putative father. It was necessary therefore to consider thedistinction between the illegitimate son of a Sudra by a female slave andillegitimate sons generally. Nor was it necessary to consider the question inthe case of Roshan Singh v. Balwant Singh (1899) I.L.R. 22 All. 191 : L.R. 27IndAp 51, where their Lordships had to consider the question of the right, ofthe illegitimate son of one of the three regenerate classes by a Sudra woman.The only case in which the Judicial Committee had to consider the question ofthe right of the illegitimate son of a Sudra was that of Jogendro BhupatiHurrochundra Maliapatra v. Nityanand Man Sing I.L.R. (1890) Cal. 151 : L.R. 17IndAp 128. It was a case from the Bengal High Court, but the family wasgoverned by the Mitakshara. It was held that under the Mitakshara, amongSudras, where a father left a son by a wedded wife and an illegitimate son, theordinary rule of survivorship incidental to a family coparcener would apply;and the illegitimate son, having survived the legitimate, was held entitled bysurvivorship to succeed to the family estate, which was impartible andappertained to a raj, on the death of his brother without male issue. The caseof Sadu v. Baisa I.L.R. (1878) Bom. 37, was referred to and approved by theirLordships as correctly laying down the law as stated in the Mitakshara.

85. So far as the decisions of the High Courts other thanBengal, are concerned, there is no doubt that they are in favour of the viewthat the son of a Sudra by a dasi means or includes an illegitimate son by acontinuous concubine. In the Bombay High Court the question was discussed atlength by Westropp C.J. in Rahi v. Govinda Valad Teja :I.L.R. (1875) Bom. 97. The case of Rahi v. Govinda Valad Teja : I.L.R. (1875) Bom. 97, was followed in Sadu v. Baiza I.L.R. (1878) Bom. 37.On appeal Westropp C.J. observed: It has already been so fully stated in Rahiv. Govinda Valad Teja : I.L.R. (1875) Bom. 97, that, in thisPresidency, amongst Sudras the illegitimate offspring of a kept woman, orcontinuous concubine, are on the same level as to inheritance as the dasiputra,or son of a female slave by a Sudra, that we think it unnecessary to dwell anylonger on that point. As stated above, the decision in that case was referredto by the Judicial Committee in Jogendro Bhupati Hurrochundra Mahapatra v.Nityanand Man Sing I.L.R. (1890) Cal. 151 : L.R. 17 IndAp 128, as laying downthe law under the Mitakshara correctly. The same view was taken in the case ofGangabai Peerappa v. Bandu I.L.R. (1915) Bom. 369.

86. In the Madras High Court, Turner C.J. (and MuthusamiAyyar J.) considered the question whether a concubine is a dasi within themeaning of Mitakshara in the case of Krishnayyan v. Muttusami I.L.R. (1883)Mad. 407. The learned Judges referred to the earlier cases in Madras, Bombayand Allahabad, dissented from the view taken by the Calcutta High Court inNarain Dhara v. Rakhal Gain I.L.R. (1875) Cal. 1 and observed as follows:Although the primary meaning of the word dasi was a slave, it included also aconcubine or a woman of the servile class in a secondary sense and there isreason to hold upon the texts that an unmarried Sudra woman kept as acontinuous concubine came within its scope. The right of an illegitimate sonamong Sudras to succession where the Sudra woman is unmarried and is in theposition of a continuous concubine is within the reason of the rule, viz., thatthe dasis son succeeded not as a slave, but as the son of one who was in theposition of a substitute for the wife though not legally married. For thesereasons and upon the authorities already cited, we are not prepared to departfrom the course of decisions in this Presidency. See also Annayyan v. ChinnanI.L.R. (1909) Mad. 366, where it was observed by White C.J. and Benson J.:"No doubt the rule is well established in Madras that the illegitimate sonof a Sudra, by an unmarried Sudra woman is entitled to a share of the familyproperty if the concubinage was continuous and if the connection was notincestuous or in violation of or forbidden by law. See also the decision ofthe Full Bench in Soundararajan v. Arunachalam Chetty I.L.R. (1915) Mad. 136and Subramania Ayyar v. Rathnavelu Chetty I.L.R. (1917) Mad. 44.

87. In the Allahabad High Court it has been held that theillegitimate offspring of a kept woman or continuous concubine amongst Sudrasare on the same level as to inheritance as the issue of a female slave by aSudra. See Sarasuti v. Mannu : I.L.R. (1879) All. 134,Hargobind Kuari v. Dharam Singh I.L.R. (1884) All. 329, Ram Kali v. JammaI.L.R. (1908) All. 508. Coming to the Bengal cases, the earliest reported caseto which we were referred, on behalf of the Appellant, is that of Doe Dem. JuggomolumMullick v. Saumcoomar Bebee (1815) 2 MD. 43 : I.D. 3 O.S. 797. The question inthe case turned mainly upon the title of one Puttychurn, the son of oneMuteychurn, by a slave girl. Although the parties were Sikhs, it was held bythe Court that the right of inheritance to land must depend upon the law of theprovince and the Sikhs being a sect of Hindus must be governed by the Hindulaw. The pandits were called upon to answer the following questions:

First question. By the Hindu law, can a son by a slave girlinherit the land of the father

Answer. The son of Sudra by a slave girl would inherit, butnot the son of a Khythy or Brahmin or Bhyee (i.e., a Vaisya) by a slave girl.

Second question. If a Sudra have a legitimate and anillegitimate son, will the latter be entitled to share any and what, portion ofthe inheritance

Answer. The illegitimate son will take only half the shareof the legitimate son; i.e., the legitimate son would take two-thirds and theillegitimate son one-third.

88. The Appellant relied upon the answer to the secondquestion which referred to the illegitimate son of a Sudra generally and notmerely by a slave girl. But the illegitimate son in that case was by a slavegirl: the first question distinctly raised the question of the right of the sonby a slave girl and the second question with regard to the share of anillegitimate son of a Sudra must be taken to have reference to the son by aslave girl, who is also an illegitimate son. The question of the right of anillegitimate son of a Sudra by a woman other than a slave girl, would be whollyirrelevant and the general form of the second question must, as stated above,be taken with the first question. 1 am of opinion therefore that the case doesnot in any way help the Appellants contention.

89. The next case is that of Pershad Singh v. Muhesree(1821) 3 Mac. Sel. Rep. 176 : I.D. 6 O.S. 809. The Plaintiff in that case wasthe illegitimate son of Raja Mahakum Singh, a Rajput, by a woman of the Dhanookcaste. It has therefore no bearing upon the present case.

90. In Macnaghtens Precedents of Hindu Law, Vol. II, page256 (case No. 48 from the district of Dacca and decided in 1816), the questionput to the pandits was as follows:

A man dying and leaving some landed property, a son begottenby him on a concubine got possession of that property and died leaving nochildren. He was succeeded by a widow. Was she (the widow of the latterdeceased person) competent to make a gift, sale, or other alienation of theproperty, while the daughters son, or another concubine of the originalproprietor, exists If she should have made either of such dispositions, is itgood and binding, or otherwise

The answer given was:

It is not particularly mentioned to what class the Originalproprietor belonged. If he was a Sudra, that is, of the fourth class and thedaughter whose son survives, was begotten by him on a concubine, the widow ofthe son of his other concubine may enjoy the whole estate, whether consistingof real or personal property, during her life-time and she may also give orsell a small portion of it for the completion of her husbands funeral rites orfor his spiritual benefit, as well as for her own maintenance; but thesecircumstances excepted, she is incompetent to dispose of the property inheritedfrom her husband and the gift of such property made by her must be consideredvoid.

91. In giving the opinion, reference was made toYajnavalkya: "Even a son begotten by a Sudra on a female slave may take ashare by the choice of the father; but if the father be dead, the brethrenshould make him partaker of half a share. By the term a son begotten by aSudra on a female slave, must be understood daughters, daughter sons andother heirs. This opinion is conformable to the Dayabhaga, Dayatattwa,Vivida-Chintamani, Mitakshara, Manu and other legal authorities."

92. The opinion can be used in favour of the Appellant asshowing that the text of Yajnavalkya with respect to a female slave wasunderstood by the pandits in that case to include the case of a concubine andas being conformable to the Dayabhaga and "Dayatattwa". It is notclear, however, whether the case was governed by the Mitakshara or Dayabhaga.

93. Another case in the same volume at page 119 (case No. 12from Bhagalpnr decided in 1821; related to the illegitimate son of a personbelonging to one of the regenerate classes, a Rajput and therefore has noapplication to the case of an illegitimate son of a Sudra.

94. On the other hand in the case of Bukhtear Singh v. BuhadoorSingh (1816) Macnaghtens Principles and Precedents of Hindu Law; Vol. II, p.14. Case No. XI, decided in 1816, the eldest brother of a Sudra family, whichconsisted of four brothers and a sister, had one son by a female slave; and thesister, during her husbands absence, had a son by a stranger. The other threebrothers having died leaving no heir, a question arose whether the son by thefemale slave or the sisters son would succeed to the estate left by the threebrothers. The answer was that in default of all heirs down to the daughtersson, the family being of the Sudra tribe, the entire property will devolve onthe son begotten by the elder brother on a female slave. The son of the sisterhas no title to the inheritance. The text of Yajnavalkya cited in theMitakshara was quoted. In the footnote, Macnaghten clearly gave his own opinionas follows:

According to the Hindu law, the illegitimate sou of a Sudraman by a female slave, or a female slave of his slave, may inherit, but not theillegitimate child of any of the three superior classes. It appears in thiscase that the parties are Sudras: but it is not distinctly stated whether theeldest brother died previously or subsequently to the death of any or all ofhis other three brothers, or whether the woman on whom the Plaintiff wasbegotten by him was one of the fifteen descriptions of slaves, or was merely aconcubine. If the woman were his slave and the other three brothers died beforethe eldest, then the son begotten by him on the female slave would be entitledto the entire property. On the other hand if one or more of the brothers diedsubsequently to the death of the eldest brother, the illegitimate son would beentitled to claim only such portion as belonged to his putative father, there beingno law admitting the son of a Sudra by a female slave to share the estate ofcollaterals. If the woman were not his female slave, the son begotten on her byhim would have no right to the inheritance, but only a claim to maintenance;and under no circumstances could the son of the sister begotten as above haveany right to succeed to his mothers brothers. (See Mac-naghtens Precedentsof Hindu Law, Volume II, pages 15 and 16, Footnote.)

95. That decision was passed in the year 1816 and no casehas been brought to our notice since 1816 until we come to the case of NarainDhara v. Rakhal Gain I.L.R. (1875) Cal. 1, where Mitter and Markby JJ., heldthat Colebrookes translation of the passage in Dayabhaga was incorrect andcame to the conclusion that it is only a particular class of illegitimatechildren, viz., by a female slave, who can succeed.

96. The case was followed by Tottenham and Ghose JJ., inKirpal Narain Tewari v. Sukurmoni I.L.R. (1891) Cal. 91, where the decidedcases on the point were discussed. The learned Judges observed that the reasonwhy in the days when Yajnavalkya, Manu and other sages gave their laws, the sonof a Sudra by a female slave was declared entitled to participate in theproperty of the father was this: "When slavery existed in India, a slaveoccupied the position of a member of the family: he, like the wife and son, wasincapable of owning any property; and whatever he earned belonged to the master(see Tagore Law Lectures by Babu Krishna Komal Bhuttacharjee and the slokasfrom Manu, quoted therein, pp. 3-5). But the like reason would not exist in thecase of a concubine, who is not a slave-girl: her position is wholly differentindeed. There were, we may here observe, in ancient times 15 descriptions ofslaves. We mean 15 different ways in which a person might become a slave toanother (see Shyama Charan Sarkars Vyavastha Darpana, new edition, p. 27 andMacnaghtens Hindu Law, Volume II, p. 273) and it would be necessary to showwhen a right of succession is claimed by an illegitimate son, that he was bornof a female slave of one or other of those descriptions." The same viewwas taken in Ram Saran Garain v. Tek Chand Garain I.L.R. (1900) Cal. 194,201-4, by Ghose and Harington JJ., even in a case governed by the Mitakshara.

97. The latest case in our Court is that of ChatturbhujPatnaik v. Krishna Chandra Patnaik (1912) 17 C.W.N. 442, but that was a casegoverned by the Mitakshara and it was unnecessary to consider the law on thepoint as understood under the Dayabhaga.

98. Turning to the text-books on Hindu law, we find that Dr.Jolly in his "Hindu Law on Partition, Inheritance and Adoption"(Tagore Law Lectures, 1883), pages 186-187, refers to the controversies inmodern works on the various constructions of the two passages in Mann andYajnavalkya relating to the son of a dasi and quotes the opinion of Medhatithiand the remark of Kamalakar in the "Vivada-Tandava." Referring to theBengal decision where it was held that dasi means a female slave in the strictestsense of that term, he observes: It is quite certain however, that thecommentators and shastris have persistently explained the term dasi asincluding any unmarried female of the Sudra caste. The opinion of Dr. Jolly iscertainly entitled to the highest respect, but it does not appear that all thecommentators and shastris have persistently explained the term dasi asincluding any unmarried female of the Sudra caste. Some of them have no doubtdone so, but others of equally high authority explained it in the strictestsense of the term.

99. Dr. Gour in his recent work "Hindu Code" atpage 935, referring to the opinion of Dr. Jolly, says: "It is submittedthat though Sudras were called dasyas, the contextual meaning in the followingtexts leaves no doubt that the term was primarily applied to the son by afemale slave," and gives reference to a number of authorities on thepoint. Mayne in his "Hindu Law", 8th Edition, pages 768-770, afterreferring to Jimutavahanas text and the Bengal decisions on the point says:Now, there seems to be no ground for supposing that there is any difference onthis point between the law of Bengal and the other provinces, as all theauthorities rely upon the same texts. As slavery was abolished by Act V of1843, it follows, if the above construction is sound, that the inheritance ofthe illegitimate son of a Sudra, bora after that date, has now becomeimpossible. He then refers to the various authorities and decided cases on thepoint. Golapchandra Sarkar Shastri in his book on Uindu Law, 4th Edition, pages197-198, discusses the question and comes to the conclusion that Colebrookestranslation is not wrong and that a son begotten by a Sudra on a kept woman, isentitled to succeed. I have already dealt with his opinion and I need notrepeat it here. On the other hand Shyama Charan Sarkar in his "VyavastliaDarpana," 3rd Edition, pages 23-25, citing the text of Mann, gives KullukBhattas commentary the son of a Sudra by a female made captive or slaveunder a standard or the like, or by a female slave belonging to his male slave,etc., etc He then refers to the explanation of on the female slave of hisslave given by Chudamani as on the wife of his male slave and Srikrishnasexplanation of the same as on the unespoused concubine of his male slave andColebrookes Digest, Volume III, pages 143-144 and in paragraph 21 referring tothe vyavctstha the son begotten by a Sudra on a kept woman with whom casualconnection is not incestuous, is also entitled to inherit in the above manner;but such a son of twice-born man is entitled to inheritance, observes: Theabove must be on the womans being considered to be a slave either of thedescription I am thine or as one maintained in consideration of service(bhakta), and cites the texts of Mann and Narada with regard to the differentdescriptions of slaves.

100. In the "Vyavastha Darpana", 2nd Edition(1867), at pages 914-915, the learned author dealing with the heritable rightsof a Sudra dattaka as stated in the "Dattaka-Chandrika" says:"On the strength of the texts cited, the author of the Dattaka-Chandrikarecognizes the heritable right of the son of a female slave and then by parityof reasoning he holds that while the father lives a Sudra, dattaka shares equallywith the legitimately begotten son; and a moiety, where the father may bedead. This, however, cannot here be followed in practice, the marriage with adamsel unequal in class being prohibited in this (Kali) age and consequentlythe son born of such a woman not being entitled to inherit and the heritableright of the son of a female slave being repugnant to the immemorial custom ofthis country, such right of a Sudra dattaka, founded as it is on the ground ofright of the son of a female slave, cannot be deemed valid. As to the texts ofManu and Yajnavalkya cited as authorities for the heritable right of the son ofa female slave, they are applicable to schools other than that of Bengal, wherethey are repugnant to the immemorial custom, which, according to the text theordinances of sadhus are of equal authority with the vedas and that of ManuImmemorial custom is the transcendant law and wherever it obtains, supersedesthe general maxims of the law. Consequently the praatice of the good Sudras ofthis country being like that of the regenerate classes, the right of a Sudradattaka must be held to be the same as that of one of twice-born class."

101. Sir Gooroodass Banerjee, in his "Hindu Law onMarriage and Stridhan" (Tagore Lectures for 1878), 3rd Edition, page 171,says: "The meaning of the term female slave (dasi) in the above rule, hasbeen the subject of much contention in our Courts and the authorities are notunanimous on the subject. They seem, however, to favour the view that a female slave here means not necessarily a slave bought or taken captive, butincludes a continuous concubine, provided that the intercourse is neitheradulterous nor incestuous. The case of Rahi v. Govinda Valad Teja: I.L.R. (1875) Bom. 97, may be referred to for a fullexposition of the meaning of the term dasiputra and of the law relating to therights of an illegitimate son." Evidently he refers to the law in theother provinces, as the references to the Madras and Bombay decisions onlywould go to show. The learned author says at page 170: "In the Hindu law,the illegitimate son of a regenerate man is always excluded from inheritance ;but in the case of a Sudra, the illegitimate son of a particular description,namely, the son born of an unmarried female slave or slaves female slave,inherits his fathers property" and at page 171: "It has beensometimes maintained that the authorities would support the broad propositionthat a Sudras illegitimate son of every description would inherit to hisfather; and a slight inaccuracy which occurs in Colebrookes translation of theDayabhaga (Chap. IX, 29) favours such a view. But Mr. Justice Romesh ChunderMitter, in his elaborate judgment in Narain Dhara v. Hakhal Gain I.L.R. (1875)Cal. 1, has clearly pointed out this error and deduced the correct rule givenabove, after a full examination of the authorities on the subject."

102. Rajkumar Sarvadhikari in his Tagore Lectures, 1880(1882), discusses the question of the heritable right of illegitimate sons ofSudras at pages 936 to 948. At page 940 he observes: We thus see that theessential condition in these persons is that they must be slaves. A dasi thenis not a common woman kept in concubinage, she must be a slave; and at page941 observes: "If you examine the passages in the Mitakshara in which theterms dasi and abaruddha are used, you will find that a sharp distinction wasobserved between these two classes of females. A dasi, whose son was entitledto inheritance, must have been enjoyed, but it does not surely follow from thisthat females, who are kept as concubines, should be regarded as dasi. Theauthor of Madana Parijata, the great commentator of the Mitakshara, incommenting on the text referred to by the Mitakshara in 1.4, 22, says that women are of two descriptions, dasis or female slaves and abaruddhas orconcubines. Had the term dasi included concubines, it would not have beennecessary to distinguish the one class of the females from the other. But as wefind that a clear-distinction was observed between them, we are bound to takenotice of the fact and maintain that, according to the doctrines of the Hindulaw, a certain description only of illegitimate sons of a Sudra is entitled toinherit the fathers property in the absence of legitimate issue, viz., theillegitimate sons of a Sudra by a female slave or a female slave of hisslave." In the "Commentaries on Hindu Law "by JogendraSmarta-Siromani (1885) at page 408 it is stated: Though the commentary ofSrikrishna seems at first sight to favour the view that the son of a concubineis entitled to inherit among Sudras, yet the interpretation put upon the textof the Dayabhaga and of the Samhitasby the Bengal High Court is more acceptableon the ground that it would make the usage and practice prevailing in thecountry consistent with the law. In Bengal at least, even the lower classes ofSudras seldom, if ever, recognize an illegitimate son as capable of inheriting.Such being the case, the view of the law taken by Mr. Justice R.C. Mitter inthe case of Narain Dhara v. Rakhal Gain I.L.R. (1875) Cal. 1, seems moreacceptable than that apparently suggested by the commentators of Dayabhaga. Theexistence of an approved custom justifies the postulating of a text of theVedas; and a forti-ori it justifies only that interpretation of the texts whichmakes the law consistent with usage and good conscience.

103. Jogendra Chuiider Ghose in his "Principles ofHindu Law," 3rd Edition, Vol. 1, page 767, referring to Mr. JusticeMitters decision in the case of Narain Dhara I.L.R. (1875) Cal. 1 and toGolapchandra Sarkars opinion observes: "The literal translation of the passageis Again the son of a Sudra by an unmarried female slave and the like Sudrawoman and c. The words and the like are explained by what follows. They meanthe slave girl and the wife of a slave.has been translated as upon a female slave or the female slave of aslave. But a slave can have no slaves. The wife of a Sudra is also called adasi. Yajnavalkya mentions only the slave girl. The passage refers to the lawthat the wife of a slave was also the property of the master. The whole passagerefers to household slaves and not to concubines as Justice Mitter correctlyheld." To sum up, the matter stands thus. In the texta of Manu andYajnavalkya the expression used is dasi. The commentators and Sanskrittext-book writers, however, have differed in their interpretation of theexpression. Some of them, such as Medhatithi, Sarbaj-nanarayan (thecommentators on Manu), Vishwarupa (commentator on Yajnavalkya) and Sanskrittext-book writers, such as Nilakantha, Vachaspati Misra and Kamalakar have usedor understood it in the sense of concubine. On the other hand Kulluk Bhatta (acommentator on Manu) and the authors of "Vivada-Ratnakara" and"Dattaka Mimansa" have interpreted or used it in the restricted senseof a female slave. Among the writers of modern text-books on Hindu law also,opinions are divided. Dr. Jolly, Golapchandra Sarkar and Mayne are in favour ofthe view that the son of a Sudra by a kept woman is entitled to inherit, whileMacnaghten, Rajkumar Sarvadhikari, Gooroodass Banerjee, Shyama Charan Sarkar,Jogendra Smarta-Shiromani, Jogendra Chunder Ghose and Dr. Gour are of opinionthat only a particular description of illegitimate sons, viz., by a femaleslave, can inherit.

104. So far as the decided cases go, the earlier PrivyCouncil decisions do not directly decide the question whether the illegitimateson of a Sudra by a concubine can inherit. The Bombay, Madras and AllahabadHigh Courts, however, are of opinion that a son of that description can inheritand although in some of the Bombay and Madras decisions, it is stated that inthose Presidencies the son of a Sudra by a concubine is treated as being on thesame level as a son of a female slave, it must be held, having regard to thefact that the Judicial Committee accepted the statement of the law in Sadu v.Baiza I.L.R. (1878) Bom. 37, as correctly laying down the law on the pointunder the Mitakshara, that in cases governed by the Mitakshara it is settledlaw that the son of a Sadra by a kept woman is entitled to succeed.

105. In Bengal, however, the only case in favour of theheritable right of an illegitimate son of a Sudra, not being the son of afemale slave, is that cited in Macnaghtens "Precedents of HinduLaw", Vol. II, page 256. That case was decided in 1816. Since then, formore than a century, there has not been a single case in which the illegitimateson of a Sudra has been held entitled to inherit. Such a right was asserted in1875 in the case of Narain Dhara v. Rakhal Gain I.L.R. (1875) Cal. 1. It ispointed out that the Courts below in that case gave a decree to the Plaintiff,but the Court below relied not upon any Bengal authority but upon cases decidedunder the Mitakshara and when the case came up to this Court, Romesh ChunderMitter J. at once negatived such right. The case was followed by Tottenham andGhose JJ., in 1871 in the case of Kirpal Narain Tewari v. Sukurmoni I.L.R.(1891) Cal. 91 and again in the year 1900 in the case of Ram Saran Garain v.Tek Chand Garain I.L.R. (1990) Cal. 194.

106. Assuming that Colebrookes translation of the passagein question in the Dayabhaga was right and Mitter J. was wrong, there is nodoubt that at least for a century the law in Bengal has been understood in theway in which Mitter J. interpreted it.

107. It is not that Mitter J. was the first to entertainthat opinion in Bengal. In 1829, Sir William Macnaghten, whose opinion is heldin high respect in Bengal, clearly stated that the illegitimate son of a Sudrain order to inherit must be by a female slave and in 1867, i.e., 8 years beforeNarain Dharas Case I.L.R. (1875) Cal. 1, came up to the High Court, ShyamaCharan Sarkar in his "Vyavastha Darpana" stated that the lawdeclaring the right of illegitimate son of a Sudra must be taken to be the lawin provinces other than Bengal where they are repugnant to immemorial custom.It appears that with the exception of Golapchandra Sarkar, all the authoritiesin Bengal, such as Romesh Chunder Mitter J., Chunder Madhub Ghose J. (amongJudges), Sir Gooroodass Banerjee, Rajkumar Sarvadhikari, Jogendra Smarta-Shiromani,Shyama Charan Sarkar and Jogendra Chunder Ghose (among writers of textbooks onHindu law) have all understood the law in the same way; and some of them haveexpressly stated that it is in consonance with the usage and sentiments of thepeople of Bengal. It may be said that if, under the Dayabhaga, the illegitimateson of a Sudra by a concubine is entitled to inherit, we should declare it tobe the law, even if it has not been recognized by the Court by reason of someerroneous translation of a text in the Dayabhaga, or for any other reason andthat we should not be influenced by any consideration such as the sentiments ofthe people. But there are many things laid down in the Dayabhaga, which areeither prohibited in the present age, or have long become obsolete. Forinstance, the Dayabhaga, Chapter IV, Section 3, refers to eight different formsof marriage and the very chapter (Chapter IX) which deals with the heritablerights of a Sudra by a dasi, not only refers to marriage with other castes inthe direct order (anuloma marriages), but lays down the rules for partitionamong sons of the same father by women belonging to different castes. We wouldnot be justified in declaring that they are valid because we find Jimutavahanastating or discussing the law with regard to them. It is true, the right of anillegitimate son of a Sudra by a concubine is recognized in all the otherprovinces of India, but that by itself is no ground for reviving it in Bengal.For instance, the adoption of kritrimaputra (kurtaputra) is prevalent in Biharan adjoining province: there is nothing opposed to the sentiments of the peoplein such adoptions, but it is not recognized now in Bengal. The JudicialCommittee in the case of Collector of Madura v. Moottoo Ramalinga Sathupathy(1868) 12 Moo. I.A. 397, 436, observed that the duty of an European Judge whois under the obligation to administer Hindu law, is not so much to enquirewhether a disputed doctrine is fairly deducible from the earliest authorities,as to ascertain whether it has been received by the particular school whichgoverns the district with which he has to deal and there has been sanctioned byusage. For under the Hindu system of law clear proof of usage will outweigh thewritten text of the law.

108. In the present case no doubt the question arises onlybetween the zemindar and the illegitimate son of the deceased raiyat, but onceit is held that the illegitimate son of a Sudra by a concubine has a heritableright, the question would arise between such son and the legitimate sons orother heirs. The very texts which declare the heritable right of the son of aSudra by a dasi, define the share which such son is entitled to get where thereare legitimate sons and it is to be observed that in the absence of heirs downto daughters sons, the son of a dasi would under the texts get the wholeestate. She would thus exclude even the brother of the deceased, not to speakof other agnates. Many respectable castes in Bengal come within the category ofSudras and the heritable right of an illegitimate son of a Sudra by a keptwoman, being declared by the Court, would lead to disturbance ofwell-established titles. Having regard to the fact that, for more than acentury, the right of an illegitimate son of a Sudra by a kept woman has notbeen recognized in Bengal and having regard to the opinions of writers of Hindulaw in Bengal, I think we should not revive such a right which is opposed tothe usage and sentiments of the people of Bengal, even if it is deducible fromthe texts of Jimutavahana or any other authority.

109. For the reasons stated above, I would respectfullydiffer from the opinion of the majority and answer the question referred to theFull Bench, in the negative.

Thomas William Richardson, J.

110. I agree with the Chief Justice.

William Teunon, J.

111. I agree with the Chief Justice.

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Rajani Nath Das vs.Nitai Chandra Dey (01.09.1920 - CALHC)