SUBRAMANYA MUDALI Vs. VELU

JUDGEMENT

(1.) This is a suit for maintenance by the illegitimate sons of one Chidambara Mudali, deceased, against his undivided brothers and their sons. The Subordinate Judge has decreed the plaintiff's claim with some modification as regards the amount and the defendants appeal. It has been assumed by the Subordinate Judge for the purpose of his decision, that Umayal, the mother of the plaintiffs, was a married woman who was living with Chidambara Mudali as his concubine.

(2.) The first question is whether the plaintiffs are entitled to maintenance, and the second, whether they are entitled to it against the father's undivided brothers and their sons in consequence of their having taken the father's share of the family property by survivorship. It is altogether useless to consider whether the Hindu Law, as regards the claims of illegitimate sons as now administered, is in accord with the ancient Hindu Texts or even the authoritative commentaries. It is true the High Court of Calcutta still adheres to the literal interpretation of the texts, holding that the illegitimate son entitled to inherit amongst Sudras is the son of the female slave. See the cases of Narain Dhara V/s. Rakhal Gain (1875) I.L.R. 1 C. 1 Kirpal Narain Tezvari V/s. Sukurmoni (1891) I.L.R. 19 C. 91 and Ram Sarain Garain V/s. Tekchand Garain (1900) I.L.R. 28 C. 194. But this High Court as well as the High Courts of Bombay and Allahabad have adopted the view that an unmarried woman kept as a continuous concubine is on the same footing as the female slave with reference to the rights of the illegitimate sons born to them--see the cases of Krishnayyan V/s. Muthusami (1883) I.L.R. 7 M. 407 Ranoji v. Kandoji (1884) I.L.R. 8 M. 557 Rahi and Ors. V/s. Govindavalad Teja (1875) I.L.R. I B. 37. Sadu V/s. Baiza and Genu (1879) I.L.R. 4 B. 37 Sarasuti V/s. Manu (1880) I.L.R. 2 A. 134 and Hargobind Kuari V/s. Dharam Singh (1894) I.L.R. 16 A. 329. But even this rule as to the mother being an unmarried woman has been relaxed as regards the illegitimate son's right to maintenance--see the cases of Venkatachella Chetty V/s. Parvatham (1871) 8 M.H.C.R. 134 at p. 134 Viramuthi Udayan V/s. Singaravetu (1877) I.L.R I M. 306 where the claimant was the offspring of an adulterous intercourse; and so also in the case of Kuppa V/s. Singara-velu (1885) I.L.R. 8 Map. 325. In the case of Rahi and Ors. V/s. Govind Velad Teja (1875) I.L.R. 1 B. 97 the Bombay High Court decided that the illegitimate son by an adulterous intercourse was entitled to maintenance.

(3.) The next question is whether the decree against the surviving members of the family is right. In Chouturya Ruk Murden Syn V/s. Sahub Purhulad Syn (1857) 7 M.I.A. 18 a decree for maintenance was made by the Privy Council in favour of an illegitimate son by a Sudra concubine against a successor to the Raj of the putative father. In Muthusami Jegavara Yettappa Naicker V/s. Vencateswara Yettaya (1868) 12 M.I.A. 203 the same tribunal awarded maintenance to the son of the concubine of a Sudra Zamindar and directed an enquiry as to the existence of private property of the putative father and in its absence as to the charging the income of the Zamindari with the amount of maintenance.