John Wallis, C.J.

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

2. The deceased, as found by the Subordinate Judge, appears to have become acquainted with the plaintiffs mother in 1900, when she had for some years been carrying on the profession of a dancing girl and a prostitute. He set her up in a house at Srirangam, near Trichinopoly, where he carried on business, and lived with her there for some years. Shortly before the plaintiffs birth, early in 1903, he was imprisoned for fraud, and the correspondence shows that he regarded the child about to be born as his and that subsequently he recognised it as such. The correspondence also shows that his legitimate son, the 1st defendant, used to live in the house with his approval. In 1905, when the plaintiff was a little over two years old, the deceased refused any longer to maintain him and his mother, who petitioned the Assistant 1st Class Magistrate on his behalf for maintenance in Exhibit III. The order of the Assistant 1st Class Magistrate, which was rejected by the Subordinate Judge, but admitted by us as evidence of the conduct of the deceased with reference to this claim, shows he made no serious attempt to contest the petition, or show grounds for doubting his paternity, and in these circumstances very little weight attaches to the fresh evidence as to the conduct of the plaintiffs mother prior to his birth, which has now been put forward for the first time. Further, that evidence in itself is of a very worthless kind, and is more than counterbalanced by the letters of the deceased, which show that he was at one time much attached to the plaintiff and recognised him as his son. The question then arises whether the plaintiff, as the son of the deceased by a woman of the position and antecedents of his mother, is entitled to claim a share of the joint family property as the illegitimate son of the deceased. It must now be taken as settled that the illegitimate children of the higher castes are not entitled to inherit Bhaiya Sher Bahadur v. Bhaiya Ganga Bakhsh Singh 22 Ind. Cas. 293 : 41 I.A. 1 : 18 C.W.N. 401 : 12 A.L.J. 188 : 36 A. 101 : 16 Bom. L.R. 306 : 17 O.C. 68 : (1914) M.W.N. 184 : 15 M.L.T. 169 : 26 M.L.J. 291 : 19 C.L.J. 277 : 1 O.L.J. 109 but it is otherwise with Sudras. All the Courts recognise that the son of a Sudra by a dasi is entitled to inherit. Manu (IX, 179) and Yajnavalkya (II, 133) mention not only a dasi but also the wife of a dasa or slave, and the Dayabhaga adds "or other unmarried woman" which, as pointed out in Padala Krishna Rao v. Padala Kumarajamma 15 Ind. Cas. 340 may merely mean "not married to the father of the child." As pointed out in Krishnayyan v. Muttusami 7 M. 407 at pp. 411. 412 the words "or other unmarried woman" do not occur in the Mitakshara or other commentators of the South. The Mitakshara merely speaks of a son begotten by a Sudra on a dasi. In a recent case in Chatturbhuj Patnaik v. Krishna Chandra Patnaik 17 Ind. Cas. 276 : 17 C.W.N. 442 : 16 C.L.J. 335 Mookerjee and Beachcroft, JJ., have given good reasons for doubting the correctness of the Calcutta decision that under the Dayabhaga this must be read as meaning a woman in the position of a slave," and have refused to follow these decisions in a case arising under the Mitakshara, agreeing in this with our own and the other High Courts. In this Court it is also well settled that the son must be born of a continuous concubine, and also that he must not be the issue of a connection that is incestuous or adulterous Krishtamma v. Papa 4 M.H.C.R. 234 though the latter condition is