(1.) I have already attempted to summarise the decisions upon this subject in my order of reference and need not go over the ground again. The order of Seshagiri Ayyar, J., proceeds upon the ground that the illegitimate son of a Sudra is not entitled to inherit unless the mother was competent to marry the father, and he holds that the mother in this case was not competent on two grounds that she was not a Sudra and not an unmarried woman. After hearing the question further argued we think it is unnecessary in our opinion to consider what are the essentials of a marriage among Sudras, because we are not satisfied, that this is the test to he applied. To satisfy the texts it must be shown that the mother is a dasi, not that she is qualified to become a wife. As regards her being unmarried woman the Dayabhaga no doubt mentions this, but this text has been interpreted as meaning not married to the father of the child--Vencatachella Chetty v. Parvatham (1875) 8 M.H.C.R. 143, Karuppannan Chetti v. Bulokam Chetti (1900) I.L.R. 23 Mad. 16, Annayyan v. Chinnan (1910) I.L.R. 33 Mad. 366 and Padala. Krishna Rao v. Padala Kumarajamma (1912) 15 I.C., 340--and this is how the passage was understood by Medatithi. However this may be, we think that the plaintiff s mother who followed the profession of a dancing girl was not a married woman. The only other question then is, was she a dasi? Dasi is the feminine of dasa which according to Mac Donnell s Vedic Index, volume I, page 356, volume II, page 388 at first meant an enemy and was afterwards applied to conquered enemies reduced to a servile condition. The word dasa was long applied to this class, the term Sudra being introduced later, and even to this day dasa and dasi are in use in some parts of India as suffixes to Sudra names in the same way as Ayyar, etc., in the case of Brahmin names.
(2.) Professor Jolly in the Tagore lectures for 1888 at page 187, draws attention to the fact that Medatithi, who flourished before Vijnareswara, understood the text as meaning the son of a Sudra by a woman neither married to him nor authorized to raise offspring (according to the custom of Niyoga). Professor Jolly also refers to the fact that the term dasi was also understood by the commentators as meaning a prostitute, citing the Calcutta edition of the second part of the Mitakshara where the term dasi in a passage in Yajnavalkya is explained as meaning a lewd married woman or prostitute. He also alludes to the common use of the word in South India to denote the consecrated female dancers attached to temples. In these circumstances it seems difficult to say that women of this class are not dasis within the meaning of the texts. We are not satisfied that the passage of the Mitakshara cited by Seshagiri Ayyar, J., is sufficient authority for holding dancing girls to form a separate caste, though this again does not appear to be very material, as it cannot be said that according to Hindu ideas unions of this kind are regarded more unfavourably than unions founded on the seduction of an unmarried Hindu woman not belonging to this class. It has not been shown that in practice the offspring of such unions which are very common have been regarded as having less claim to inherit than the children of concubines who had not been dancing girls.
(3.) In Brindavana v. Radhamani (1889) I.L.R. 12 Mad. 72, 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 (1912) 16 I.C., 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 illegitimata 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. Ayling, J.