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It was there held that before the illegitimate sons of a Sudra can succeed to his estate, they must shew that connection between their parents was not adulterous. This may be so; but in this case, admittedly, the sixth defendant is not entitled, to any right, of inheritance; all that he can claim is a right to maintenance and so far as his right to maintenance is concerned, it is well-established law that even an offspring by adulterous find incestuous intercourse is entitled to maintenance from the father's estate as well as from the estate of the coparcenary of which the father was a member.

7. The learned trial Judge apparently decided that it was unnecessary to go into the question, whether it had been proved that the union between Janaki and Tirumalai was neither adulterous or incestuous.

8. In this appeal the sixth defendant reiterated his claim, that even as the illegitimate son of Tirumalai and Janaki, he was entitled to a share in the property of the family of which his father had been a member.

9. The questions that remain for determination are (1) Is he sixth defendant the illegitimate son of Tirumalai by his permanently kept woman? and (2) Is the sixth defendant entitled to a share in the properties involved in this suit, or is he only entitled to maintenance therefrom?

12. No doubt it is well settled that, before an illegitimate son of a Sudra can establish a claim to a share in the properties of his putative father, it must be shown that the son was born of a union neither adulterous nor incestuous. See Pachai Pillai v. Gopala Pillai (1921) 42 M.L.J. 276 in which the learned Judges followed a decision of the Pull Bench in Soundararajan v. Arunachalam Chetti (1915) 29 M.L.J. 793 : I.L.R. 39 Mad. 136 (F.B.); but, were the claim of the illegitimate son limited only to maintenance, there should be no need to prove that the union between his mother and his putative father was neither adulterous nor incestuous.

13. The learned Counsel for the plaintiff-respondent contended that the burden lay upon the sixth defendant, who claimed a share in the properties, to establish that the union between Janaki and Tirumalai was neither adulterous nor incestuous. In Packed Pillai v. Gopal Pillai (1921) 42 M.L.J. 276 there was no occasion for the learned Judges to go into the question of the burden of proof; nor was there any oceasion to go into that question in Soundararajan v. Arunachalam Chetti (1915) 29 M.L.J. 793 : I.L.R. 39 Mad. 136 (F.B.). The question of burden of proof came up specifically for decision in Palani Animal v. Kuppusami Goundaw (1921) 13 L.W. 511 Sadasiva Aiyar, J. after pointing out that adultery was an offence punishable under the Penal Code in India, observed that, as the law always presumed innocence both in civil and. criminal cases, the presumption was that the connection was not adulterous. It therefore rested on the person who pleaded that the connection was adulterous to prove it. There was no such specific plea in the plaint; certainly there was no proof. No doubt, incest as such is not on a par with adultery under the Criminal law of India; there can be no question of presumption. In Palani Ammal v. Kuppusami Goundan (1921) 13 L.W. 511 Sadasiva Aiyar, J., pointed that no question of incost could arise there as the parties belonged to different sub-sects. In the present suit Tirumalai Chetti was described as a Telugu Chetty. In the particulars furnished by the sixth defendant on a call from the plaintiff Janaki was shown as a widow born of Yadava parents. The sixth defendant's claim was not specifically contradicted by the plaintiff or by any of the other parties to the suit at any stage in the trial Court, nor was any evidence offered to prove that that claim of the sixth defendant was not true. On the material on record we have no hesitation in coming to the conclusion, that no question of incest could arise in this case. To sum up there was no proof that the union between Tirumalai and Janaki was adulterous; there was no proof that it was incestuous.