Judgement

Appeal (No. 71 of 1928) from a decree of the High Court in its appellate jurisdiction (December 6, 1926) which affirmed, so far as material to the present appeal, a judgment of the Court in its original jurisdiction (January 6, 1925).

The appeal related to the rights of maintenance of the two illegitimate sons of a Sudra by a continuous concubine. The suit was instituted on September 8, 1919, against the father by the mother as next friend of the sons and of a daughter who were minors. Maintenance was claimed from July 15, 1919, it being alleged that the defendant had neglected to provide maintenance from that date. The father died on April 21, 1921, before the trial, leaving no separate property and no legitimate son or grandson; the appellants, collaterals of the father who had succeeded by survivorship to the joint estate, were joined as defendants in his place.

The facts are stated in the present judgment.

The trial judge, Kumaraswami Sastri J., awarded maintenance to each son for his life and to the daughter until she attained eighteen years of age, and by his judgment decreed that the maintenance should be a charge upon the joint family property.

The decision was affirmed by Krishnan and Odgers JJ. as to the sons but rejected as to the daughter. The appeal is reported at I. L. R. 50 M. 340.

There was no appeal to the Privy Council from the rejection of the daughters claim.

1931. June 8, 9, 11, 12. Dunne K.C. and Narasimham for the appellants. The text of the Mitakshara, ch. 1., s. 12, which deals with the rights of an illegitimate son of a Sudra by a female slave relates only to separate property. That view has been uniformly adopted by Courts in India. There is no text supporting a right to maintenance out of joint property. The right is a personal one against the father, and in respect of his separate property only. It is true that the High Court at Madras in many cases has awarded an illegitimate Sudra maintenance out of the joint property. Those decisions however merely followed one another and are not based upon any text or sound principle. In the present case the appellants are not the legitimate sons but collaterals; they cannot therefore be treated as holding the joint property subject to the duty to discharge the fathers obligations. Even if there was any right to maintenance out of the joint estate it ceased upon the plaintiffs attaining majority. Reference was made to Chuoturya Run Murdun Syn v. Purhulad Syn (( 1857) 7 Moo. I. A. 18.), Muttusawmy Jagavera Yettappa Ndicker v. Vencataswara Yettaya (( 1868) 12 Moo. I. A. 203.), Ranoji v. Kandoji (( 1885) I. L. R. 8 M. 557.), Parvathi v. Thirumalai (( 1887) I. L. R. 10 M. 334.), Ananthaya v. Vishnu (( 1893) I. L. R. 17 M. 160.), Gopalasami Chetti v. Arunachelam Chetti (( 1903) I. L. R. 27

M. 32.), Subramania Mudaly v. Valu (( 1910) I. L. R. 34 M. 68.), Panchapagesa Odayar v. Kanaka Animal. (( 1917) 33 Mad. L. J. 455.) In the two cases last mentioned the joint estate was in the hands of collaterals ; it is submitted that in any case those decisions were wrong. There is no real analogy between the position of an illegitimate son and a member of the family incapacitated from inheritance.

Wallach for the respondents. Although the text of the Mitakshara relates only to separate property there has been no case which decides that the rights of an illegitimate son of a Sudra are restricted to those there mentioned. On the contrary there is the series of Madras decisions already referred to in which maintenance has been awarded out of the joint estate, sometimes in the hands of collaterals. Those cases cover a period of fifty years and are mentioned without question in authoritative text-books. In Muttusawmy Jagaveras case (( 1868) 12 Moo. I. A. 203.), the Privy Council as early as 1868 held that the illegitimate son of a Sudra was entitled to maintenance after his fathers death, and, it is submitted, recognized that it might be payable out of joint estate. The r