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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 plaintiff's mother in 1900, when she had for some years been carrying on the profession of a dancing girl and a prostitute. He set her up in a house at Srirangam, near Trichinopoly, where he carried on business, and lived with her there for some years. Shortly before the plaintiff's birth, early in 1903, he was imprisoned for fraud, and the correspondence shows that he regarded the child about to be born as his and that subsequently he recognised it as such. The correspondence also shows that his legitimate son, the 1st defendant, used to live in the house with his approval. In 1905, when the plaintiff was a little over two years old, the deceased refused any longer to maintain him and his mother, who petitioned the Assistant 1st Class Magistrate on his behalf for maintenance in Exhibit III. The order of the Assistant 1st Class Magistrate, which was rejected by the Subordinate Judge, but admitted by us as evidence of the conduct of the deceased with reference to this claim, shows he made no serious attempt to contest the petition, or show grounds for doubting his paternity, and in these circumstances very little weight attaches to the fresh evidence as to the conduct of the plaintiff's mother prior to his birth, which has now been put forward for the first time. Further, that evidence in itself is of a very worthless kind, and is more than counterbalanced by the letters of the deceased, which show that he was at one time much attached to the plaintiff and recognised him as his son. The question then arises whether the plaintiff, as the son of the deceased by a woman of the position and antecedents of his mother, is entitled to claim a share of the joint family property as the illegitimate son of the deceased. It must now be taken as settled that the illegitimate children of the higher castes are not entitled to inherit Bhaiya Sher Bahadur v. Bhaiya Ganga Bakhsh Singh 22 Ind. Cas. 293 : 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 said to be disregarded in Bombay Rahi v. Govinda valad Teja 1 B. 97. The question then is, are there any further restrictions? In Krishnayyan v. Muttusami 7 M. 407 at pp. 411, 412 it is said that the reason of the rule is that the dasi's son succeeded not as a slave, but as the son of one who was in the position of a substitute for a wife though not legally married. It is not clear that this meant more than that she must have been a continuous concubine, but it is now suggested, very largely on the authority of this passage, that she must have been qualified to marry the father. I do not think the learned Judges who decided Krishnayyan v. Muttusami 7 M. 407 at pp. 411, 412 intended to lay down any such rule, as one of them, Muthusawmi Aiyar, J., in a subsequent case, Brindavana v. Radhamani 12 M. 72 at p. 86., expressly reserved the question whether a dancing girl could not give up her profession and be the mother of illegitimate children within the meaning of the Mitakshara Law. In Karuppannan Chetti v. Bulokam Chetti 23 M. 16, to which Subrahmania Aiyar, J., was a party, it was held that the sons of a woman continuously kept by the father as a concubine whose connection was neither adulterous nor incestuous were in this Presidency entitled to inherit, but in Annayyan v. Chinnan 5 Ind. Cas. 84 : 33 M. 366 : 7 M.L.T. 140 : 20 M.L.J. 355, White, C.J., and Benson, J., held that the son of a child widow, who had lived with the father as his concubine, could not inherit. This ruling appears to have been based on the finding that re-marriage of widows was forbidden among Sudras of the class to which the father belonged, and that the father and mother had been out-casted by their community in consequence of their living together. In these circumstances the connection was treated as one in violation of or forbidden by the father's customary law. In Sundaram v. Meenakshi Achi 16 Ind. Cas. 787 it was held by Sankaran Nair and Ayling, JJ., that the son of a dancing girl who had formed her first connection with the father and lived with him ever since, was not entitled to inherit apparently on the ground that she had not severed her connection with the temple and so could not fulfil the duties of a wife, relying on the passage in Krishnayyan v. Muttusami 7 M. 407 at pp. 411, 412, which I have already mentioned. In Meenakshi v. Muniandi Panikkan 25 Ind. Cas. 957 : 1 L.W. 704 : 27 M.L.J. 353 at p. 360 : (1914) M.W.N. 672 : 16 M.L.T. 270 : 38 M. 1144 where, however, the point did not arise for decision, my learned brother expressed the view that illegitimate children of Sudras were allowed to inherit because among them continuous concubinage was equivalent to marriage and in the judgment in the present case which I have had the advantage of reading, he has come to the conclusion that the plaintiff is not entitled to succeed because his mother in his opinion was not qualified to marry the plaintiff's father. The question is one of considerable importance and, as the authorities are not uniform, I think it would be better before deciding it to refer to a Full Bench the question whether in the circumstances set out above the plaintiff is entitled to share in the joint family property.

10. The second point which is equally fatal to the claim of the plaintiff for a share of the inheritance is that his mother was not an unmarried woman. It is true that she has not gone through a form of marriage with any particular individual. But as pointed out by Mr. Justice Sankaran Nair in Appeal No. 56 of 1908, the fact of her having been dedicated to service in a temple renders her unfit for married state. Whether we accept the theory that a woman dedicated in a temple is married to the deity or not, there can be no question that the object of the farce that is gone through is to ensure that her services shall be at the disposal of the temple authorities whenever required. As Sir T. Muthuswami Aiyar points out in Krishnayyan v. Muttusami 7 M. 407 at pp. 411, 412, in order that the illegitimate offspring may claim a share, she must be "a substitute for a wife." Mr. Justice Sankaran Nair expresses the same opinion in the case I have already referred to. In a recent case in which I had to consider the rights of illegitimate children to inherit their mother's stridhanam, I expressed an opinion that the provision in the Mitakshara for illegitimate offspring contemplates that the continuous cohabitation must be equivalent to marriage. See Meenakshi v. Muniandi Panikkan 25 Ind. Cas. 957 : 1 L.W. 704 : 27 M.L.J. 353 at p. 360 : (1914) M.W.N. 672 : 16 M.L.T. 270 : 38 M. 1144. I was not then aware of the pronouncement to the same effect by Sir T. Muthuswamy Aiyar and Sir C. Sankaran Nair. Mr. Justice Chandavarkar in Tara v. Krishna 31 B. 495 at p. 407 : 9 Bom. L.R. 774 had to consider whether a prostitute who leads a life of promiscuous intercourse can be said to be an unmarried woman. The learned Judge came to the conclusion that ouch a woman was neither a (kanya) (maiden), nor a (kulastri) (married woman). I entirely agree with this conclusion. In Mitakshara, Chapter I, Section 12, placitum 3, the author says that the illegitimate son of the three higher castes are not entitled to inheritance. See also Chuoturya Run Murdun Syn v. Sahub Purhulad Syn 7 M.I.A. 18 : 4 W.R. 132 (P.C.) : 1 Suth. P.C.J. 313 : 1 Sar. P.C.J. 591 : 10 E.R. 217 and Roshan Singh v. Balwant Singh 27 I.A. 51 : 22 A. 191 : 4 C.W.N. 353 : 2 Bom. L.R. 529 : 7 Sar. P.C.J. 642. It has further been held that even in the case of Sudras, if the connection is adulterous or incestuous, the son of such a union cannot claim a share in the father's property Muttusamy Jagavira Yeltapa Naikar v. Venkatasubha Yettia 2 M.H.C.R. 293; Krishtamma v. Papa 4 M.H.C.R. 234 and The Vencatachella Chetty v. Parvatham 8 M.H.C.R. 134. The reason of these exclusions is that the woman with whom such intercourse is maintained cannot be a "substitute for a wife." Therefore, unless the woman who is kept as a concubine could have been legally married by the paramour, the son will not be entitled to a share, and a dancing girl, being outside the varnas, is not eligible for marriage to persons within the varnas. I. am aware that it is open to persons belonging to the dancing girls' caste to become married women. It is of constant occurrence in Southern India; but that is only among their own people. If she is once dedicated to a temple, she cannot be married even among her castemen. As Mr. Justice Sankaran Nair points out in Appeal No. 58 of 1908, a woman thus dedicated puts herself under the power of the temple authorities and is no longer a free agent; and she becomes a * * (sadharanastri) in the language of Vijnaneswara. Moreover, it would be preposterous to speak of such a woman as a kanya or an unmarried woman. In the present case, as I pointed out already, this woman had known other men before she became the concubine of Ramasawmi. She was not a kanya at the time. I am clearly of opinion that the term "unmarried" cannot apply to a woman of such antecedents. It is necessary that the exceptional rule stated in the Mitakshara should be applied with great care and caution. The rule, tinder no circumstances, should be extended beyond what the letter of the text warrants. The interests of public morality and the changes which time has brought about have to be taken into account in applying the texts of Hindu Law. It is on that account that certain texts have been regarded as obsolete. Fortunately in this case the law as explained by Vijnaneswara and the conditions of the times both favour the non-applicability of Yajnavalkya's text to the class of women known as dancing girls. I have assumed throughout that Ramasawmi was a Sudra, as it was not contended before as that a Nattukottai' Chetty did not belong to that caste.

18. In Brindavana v. Radhamani 12 M. 72 at p. 86. the learned Judges, in their observations at page 87, though they do not decide the point, were apparently inclined to hold that a dancing girl might become the mother of an illegitimate child within the meaning of the Mitakshara Law. The learned Judges who decided Sundaram v. Meenakshi Achi 16 Ind. Cas. 787 expressly reserved this point, and their decision may possibly be explained on the ground that a woman who continued to do service in the temple could not be regarded as an exclusive and continuous concubine. The limitation as to her being an exclusive and continuous concubine is not to be found in the texts and appears to have been imposed by the Courts as necessary to secure due evidence of the paternity, just as the further restriction that the connection must not have been incestuous or adulterous was imposed on general grounds of morality. The partial rights of succession which are conferred upon illegitimate children under Hindu Law may be matter for regret, but we should not, in my opinion, be justified in imposing for this reason fresh restrictions which are not shown to be supported by authority or in conformity with the practice of the community.

22. When the connection between a Sudra male and a Sudra female begins in mutual love and they live together as husband and wife continuously by mutual understanding or agreement, I held long ago that such connection was created by the gandharva form of marriage. Mr. B. Sitarama Rao, the learned Vakil for the 3rd respondent, suggested that the ghandharva form of marriage was never legal for Sudras. I am unable to accept the suggestion. A reference to Manu, Chapter III slokas 23 to 25 would indicate that the gandharva and asura forms were considered as the most proper forms of marriage for the servant class by the majority of the old lawyers; though, speaking for himself, Manu would treat the asura form as illegal even for Sudras and leave the gandharva form alone as the approved form. If then "continuous concubinage is equivalent to marriage" among Sudras, it seems difficult to hold in strict logic that the son born of such a marriage is an illegitimate son. But my opinion that such a son is, according to the Shastras, an aurasa legitimate son cannot now be sustained in a Court of Law in the face of the decisions which describe such a son as an illegitimate son. I, therefore, concur respectfully with the judgment of My Lord the Chief Justice just now pronounced that according to the preponderating weight of the case-law, the son by a permanent concubine, while he is an illegitimate son and not a legitimate son, is entitled to get his appropriate share after the father's death, provided the connection between his father and his mother was not incestuous oradulterous and that his said right is not subject to a further condition that a marriage could have taken place between the father and the mother according to the custom of the caste to which the mother belonged. I respectfully dissent from the decision in Annayyan v. Chinnan 5 Ind. Cas. 84 : 33 M. 366 : 7 M.L.T. 140 : 20 M.L.J. 355, which holds to the contrary. When the Legislature itself treats the marriage of all widows (including a Brahmin widow) as lawful, it seems to me rather difficult to hold that the permanent connection between a, Sudra widow and a Sudra male is equivalent to an incestuous and adulterous connection because in the sub-caste of the lady, re-marriage is not approved of by custom and to hold in consequence that the son born of such a connection is not entitled to a share. I am for the same reason not prepared to follow the decision in Padala Krishna Rao v. Padala Kumarajamma 15 Ind. Cas. 340, which goes even further than the decision in Annayyan v. Chinnan 5 Ind. Cas. 84 : 33 M. 366 : 7 M.L.T. 140 : 20 M.L.J. 355.