JUDGMENT Mookerjee, Actg. C.J. 1. This Reference has been made in connection with a suit for recovery of possession of land upon declaration of title. The subject-matter of the litigation is a holding which belonged at one time to an agriculturist, Panchanan Das by name. A widow Rupa Dasi, who had a son Rajani Nath Das (the first Defendant) by her deceased husband, came to live with Panchanan Das as his mistress. They lived together for many years and the second Defendant, Hari Mohan Das, is their illegitimate son. Panchanan Das died in 1911. The Plaintiffs, who are the landlords, instituted the present suit on the 8th April, 1915, for recovery of possession of the holding on the ground that, as Panchanan Das had left no legal heir, the land had reverted to them. The parties were not agreed as to the status of the tenant; the Plaintiffs asserted that Panchanan Das was an under-raiyat, while the Defendants maintained that he was a raiyat. The Courts below did not determine this question, but held that, if the holding were assumed to have belonged to an occupancy raiyat, his right of occupancy was, u/s 26 of the Bengal Tenancy Act, extinguished upon his death, as he left no legal heir; in other words, that the second Defendant, as the illegitimate son of Panchanan Das, could not be deemed to be his heir-at-law under the Bengal school of Hindu law. This conclusion was founded upon the decision in Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1, which was followed in Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. 91. It was not disputed before the Division Bench that if these cases were correctly decided, the decree of the District Judge could not be successfully assailed. Mr. Gupta, who argued the case on behalf of the Appellants, however, invited the Court to examine the correctness of these decisions which were based on the assumption that a passage in the Dayabhaga (Ch. IX, para. 29) was inaccurately rendered by Colebrooke. Mr. Gupta contended that there was really no foundation for this view. Mr. Gupta, who argued the case on behalf of the Appellants, however, invited the Court to examine the correctness of these decisions which were based on the assumption that a passage in the Dayabhaga (Ch. IX, para. 29) was inaccurately rendered by Colebrooke. Mr. Gupta contended that there was really no foundation for this view. He also drew attention to the fact that in Bombay, Madras and Allahabad, it had been held that an illegitimate son of a Sudra by a continuous and exclusive concubine or mistress is an heir under the respective school of Hindu law which prevails in each of those jurisdictions; and for this purpose he referred to the judgment in Chatturbhuj Patnaik v. Krishna Chandra Patnaik (1912) 17 C.W.N. 442, where the earlier cases are mentioned. Amongst later decisions to the same effect, reference was made to Gangabai Peerappa v. Bandu ILR (1915) Bom. 369, Soundararajan v. Arunachalam Chetty ILR (1915) Mad. 136, Subramania Ayyar v. Rathnavelu Chetty ILR (1917) Mad. 44, which, it was said, were all supported by the opinion of the Judicial Committee in Jogendro Bhupati Hurrochundra Mahapatra v. Nityanand Man Sing ILR (1890) Cal. 151 : L.R. 17 IndAp 128. 2. Mr. Gupta further urged that on a correct interpretation of the texts, it would be found that there was no real difference on this question between the Bengal school and the other schools of Hindu law. He finally pointed out that the decisions in Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1 and Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. 91, have been frequently doubted by text-writers. The Division Bench, without pronouncing a final opinion on the question raised, thought that there was considerable force in these contentions and accordingly referred the following question for decision by a Full Bench: Whether, under the Bengal school of Hindu law, the illegitimate son of a Sudra by a continuous and exclusive concubine is an heir to his putative father? 3. The Division Bench observed that in the case before them, no question arose as to preferential right, in the event of competition between such a son and a legitimate heir. 4. As the point referred arose in an Appeal from Appellate Decree, the whole appeal was, under rules of Court, referred to the Full Bench. 5. 3. The Division Bench observed that in the case before them, no question arose as to preferential right, in the event of competition between such a son and a legitimate heir. 4. As the point referred arose in an Appeal from Appellate Decree, the whole appeal was, under rules of Court, referred to the Full Bench. 5. The solution of the question referred depends primarily upon the true construction of paragraph 29 of Chapter IX of the Dayabhaga of Jimutavahana. It may be stated at the outset that the original of the Dayabhaga is not divided into chapters, sections and paragraphs; these, together with appropriate headings, were supplied by Colebrooke in his translation; besides, as the original is written in prose, it is not correct to describe the paragraphs as verses, as is sometimes done. What is called by Colebrooke Chapter IX, treats of the participation of sons by women of various tribes and is divided into 31 paragraphs. Paragraph 1 describes the subject-matter under discussion as partition among sons of the same father by different women, some equal to himself by class, others married in the direct order of the tribes. Paragraphs 2 to 7 specify the different classes of wedded wives, for marriage is allowed with women in the order of the tribes as well as with those of equal class. Paragraphs 8 to 10 censure the union by marriage of a man of a regenerate tribe with a Sudra woman. Then follows paragraph 11- 6. 'Hence these evils do not ensue on the procreation of offspring upon a Sudra woman, not married to the Brahmin himself; but a venial offence is committed and a slight penance is requisite, as will be shown.' Srikrishna comments on the word 'not married to himself that this implies , 'married to another man' and adds : indicating that there is thus no conflict with the rule to be laid down in paragraph 28. Paragraph 11 undoubtedly implies that, according to the author, intercourse without marriage was less objectionable than marriage with a woman of a degenerate class. Paragraphs 12 to 23 describe the rules of partition among sous by wives of different classes. Paragraphs 24 to 26 treat only of sons by a Sudra wife. Paragraph 27 attempts to reconcile a text of Manu (IX. 154-155). Paragraph 28 refers to a text, of Vrihaspati, 7. Paragraphs 12 to 23 describe the rules of partition among sous by wives of different classes. Paragraphs 24 to 26 treat only of sons by a Sudra wife. Paragraph 27 attempts to reconcile a text of Manu (IX. 154-155). Paragraph 28 refers to a text, of Vrihaspati, 7. Which laid down that the virtuous and obedient son, borne by a Sudra woman to a man who has no other offspring, should obtain a maintenance. Then reference is made to a text of Manu (IX. 178): which declares that "a son begotten through lust on a Sudra woman by a man of the priestly class, is even as a corpse though alive and is thence called a living corpse.' This, according to Jimutavahana, implies that the Sudra woman is 'unmarried' whereupon Srikrishna comments: 'not married to any one, but kept for sensual gratification.' This paragraph plainly takes up the thread from paragraph 11 which must be read with it. Then follows paragraph 29, : I which stands as follows in the version by Colebrooke: But the son of a Sudra, by a female slave or other unmarried Sudra woman, may share equally with other sons, by consent of the father. Thus, Mann (IX. 178) says, 'A son, begotten by a man of the servile class on his* female slave, or on the female slave of his slave, may take a share of the heritage, if permitted: thus is the law established. 8. The expression 'on the female slave of his slave' is taken by Rambhadra as also by Srikrishna, the well-known commentators of the Dayabhaga, to mean 'on the unespoused concubine of his male-slave,' while Srinath Churamani, another commentator, interprets it as equivalent to 'on the wife of his male slave' as is done by Raghavananda, a commentator of Manu. Paragraphs 30 and 31 treat of the share taken by the son of the Sudra woman mentioned in paragraph 29. 9. The translation of paragraph 29 by Colebrooke was called in question in the case of Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1, where Mr. Paragraphs 30 and 31 treat of the share taken by the son of the Sudra woman mentioned in paragraph 29. 9. The translation of paragraph 29 by Colebrooke was called in question in the case of Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1, where Mr. Justice Romesh Chunder Mitter, after setting out the passage as translated by Colebrooke, observed as follows: The passage as translated certainly warrants the conclusion that an illegitimate son of a Sudra by a slave or other unmarried Sudra woman takes the inheritance of the father; but referring to the original text, I find that there is a slight inaccuracy of translation in the first part of the verse in question. The passage, if correctly rendered, would run thus: ' But the son of a Sudra by an unmarried female slave, etc., may share equally with other sons, by consent of the father, etc There is a similar inaccuracy in v. 31, which should stand thus: 'Having no other brother begotten on a married woman (he) may take the whole property: provided there be not a (laughter's son.' So Yajnavalka ordains: 'One who has no brother may inherit the whole property for want of daughter's sons. But if there be a daughter's son, he shall share equally with him; for no special provision occurs; and it is fit that the allotment should be equal; since the one, though born of an unmarried woman, is son of the owner and the other, though sprung from a married woman, is only his daughter's son.' 10. The accuracy of the translation given by Mr. Justice Mitter was unsuccessfully challenged by the Appellant in the case of Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. 91, where Shastri Golapchandra Sarkar urged that the translation by Colebrboke was perfectly correct, if tested by reference to the original text as contained in the editions of 1813 and 1829, published under the authority of Government, as also the edition with six commentaries prepared, after collation with numerous manuscripts, by Pandit Bharatchandra Shiromani, Professor of Hind a Law in the Sanskrit College, Calcutta and reputed as one of the most erudite teachers of the subject in the middle of the last century. This edition was published in 1863 under the auspices of the well-known Sanskritist, Prasanna Coomar Tagore, who himself held a distinguished position In the field of scholarship as the translator of the "Vivada-Chintamani." The text as reproduced in this standard edition unquestionably shows that the translation given in the judgment of Mr. Justice Mitter is inaccurate, as it omits the word sudra , which Colebrooke correctly rendered as 'Sudra woman.' On what text that translation was based has never been traced and a reference to all the available printed editions and manuscripts of the Dayabhaga in the libraries of the Asiatic Society and the Sanskrit College, which has been made for the purposes of this case, confirms the accuracy of the text contained in the standard edition we have mentioned. It must further be remembered that the translation given by Colebrooke in the Dayabhaga is identical with that made by him of the corresponding passage in the Digest of Jagannath (Book V. 171), where the original text in the manuscripts available supports his version, namely, 'the son of a Sudra by a female slave or other Sudra woman not lawfully married, shall, with his father's consent, have an equal share with other sons.' Colebrooke, as we have seen, renders the first sentence in paragraph 29 as follows: "But the son of a Sudra, by a female slave or other unmarried Sudra woman, may share equally with other sons, by consent of the father.' That this is a substantially correct version, becomes clear if we compare it with the following literal translation of the original., prepared by Shastri Golapchandra Sarkar: "But of a Sudra a-son-by-a-not-married-female-slave-or-the-like-Sudra-woman, may share equally with other sons, by the father's permission." The words connected by the hyphens stand for a single compound word in the original, namely, aparineeta-dasyadisudraputra (). The only difference between this literal rendering and the translation by Colebrooke is that the word 'unmarried' as used by Colebrooke is ambiguous and may mean either 'not married by the man or' never married to any one,' that is a maiden. Apart from this, it is plain that if the text be accepted as given in the edition prepared by Bharatchandra Shiromani and the literal translation thereof be adopted, there is no escape from the conclusion that the decision in the case of Narain Dhara v. Rakhal Gain ILR (1875) Cal. Apart from this, it is plain that if the text be accepted as given in the edition prepared by Bharatchandra Shiromani and the literal translation thereof be adopted, there is no escape from the conclusion that the decision in the case of Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1, cannot be sustained ; indeed, Mr. Justice Mitter himself, as we have seen, conceded that the passage as translated by Colebrooke certainly warrants the conclusion that an illegitimate son of a Sudra by a slave or other unmarried Sudra woman takes the inheritance of the father.' We observe from the judgment of Sir Michael Westropp C.J., in Rahi v. Govinda Valad Teja ILR (1875) Bom. 97, 110, that he had before him the same text of the Dayabhaga as is contained in the edition prepared by Bharatchandra Shiromani; he quotes the Sanskrit words sudrasya aparineeta dasyadisudraputra () which he translated literally as 'the son (born) to a Sudra by an unmarried dasi or other Sudra (female) may share equally with other sons by consent of he father.' Reference may also be made to the comments of Dr. Julius Jolly, Professor of Sanskrit in the University of Wurzburg, in his Tagore Law Lectures on the "History of Hindu Law" (page 188), where he suggests slight modifications in the translations given by Colebrooke of paragraphs 29 and 31; in the former case, he substitutes: the son of a Sudra by a female slave or other unmarried Sudra woman": in the latter case, he gives the translation : having no brother begotten on a married woman, he (meaning the son of a dasi) may take the whole property.' These modifications are not material for our present purpose and do not lend support to the decision in Narain Dhara v. Bakhal Gain I.L.R (1875) Cal. 1. 11. Mr. Banerji for the Respondent felt pressed by this argument and fully realised the grave difficulty of supporting a view which rested on a translation of an unknown, an untraced and apparently, an erroneously assumed reading. He accordingly took recourse to another line of argument and maintained that the rule laid down in the first sentence of Chapter IX, paragraph 29 of the Dayabhaga should be given a narrow interpretation so as to fit in precisely with the text of Manu quoted there as authority. He accordingly took recourse to another line of argument and maintained that the rule laid down in the first sentence of Chapter IX, paragraph 29 of the Dayabhaga should be given a narrow interpretation so as to fit in precisely with the text of Manu quoted there as authority. This method of interpretation was disapproved by the Judicial Committee in Collector of Madura v. Moottoo Ramalinya Sathupalhy (1868) 12 Moo. I.A. 397, 436, where Sir James Colvile observed that "the duty of an European Judge who is under the obligation to administer Hindu law, is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal and has there been sanctioned by usage." To the same effect are the weighty observations of Sir Barnes Peacock in Moniram Kolita v. Keri Kolitani (1880) ILR 5 Calc. 776, 785 : L.R. 7 IndAp 115, where with reference to the contention that a certain interpretation should be placed upon a text of Katyayana, he said: 'Their Lordships are of opinion that what they have to consider is not so much what inference can be drawn from the words of Katyayana's text taken by itself, as what are the conclusions which the author of the Dayabhaga has himself drawn from them. It is to that treatise that we must look for the authoritative exposition of the law which governs Lower Bengal, whilst on the other hand nothing is more certain than that, in dealing with the same ancient texts, the Hindu commentators have often drawn opposite conclusions.' If the contrary view were adopted and if we were called upon to investigate whether in each instance, rules enunciated, for example, by Vijnareswara in his Mitakshaia or by Jimutavahana in his Dayabhaga could really be supported to the fullest extent by the texts of the institutional writers quoted, which they professed to interpret but which they often made subservient to their views (see, for instance, the attempt made by Jimutavahana to reconcile the texts of Devala and Vishnu, in the Dayabhaga, Ch. IX, paragraphs 24 and 26), we should have to undertake afresh the duties discharged by authoritative expounders of Hindu law centuries ago in the different provinces. IX, paragraphs 24 and 26), we should have to undertake afresh the duties discharged by authoritative expounders of Hindu law centuries ago in the different provinces. Consequently, if the text of paragraph 29 is ascertained and if its meaning is clear, we cannot place a narrow construction upon it, simply because the rule enunciated therein seems more extensive than the ancient text of Manu quoted in its support; indeed, Mr. Justice Mitter himself followed the reverse process, when he adopted for the first part of paragraph 29 a modified reading and then observed that the version as corrected by him harmonised with the text of Manu: Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1. The present instance, however, is reasonably free from difficulty even from the standpoint of the text of Manu. The three texts quoted by Jimutavahana are as follows: 12. 'The virtuous and obedient son, borne by a Sudra woman to a man who has no other offspring, should obtain a maintenance; and let the kinsmen take the residue of the estate': Vrihaspati (XXV. 31). 13. This text is explained to refer to a son of a twice-born person by a Sudra woman not married by him (see Dayabhaga IX, 23; Jagannath, Book V. 3, 168; "Vivada-Chintamani", page 274; "Vyavahara-Mayukha, page 47). 14. 'A son, begotten by a Sudra, or on a female slave, or on a female slave of a slave, may take a share (on partition) if permitted (by the father): this is settled law': Manu (IX. 179). 15. According to a familiar Sanskrit rule of construction, as observed by Shastri Golapchandra, Sarkar, the repetition of the participle 'or' may be taken to imply 'or' on any other similar woman in other words, the enumeration is not exhaustive but only illustrative. 16. 'Even a son, begotten by a Sudra on a female slave may get a share by the father's choice; but, if the father be dead, the (legitimate) brother should make him partaker of half a share: one who has no (legitimate) brother may take the whole, in default of (heirs down to) the son of daughters': Yajnavalkya (II. 133-131). 17. 'Even a son, begotten by a Sudra on a female slave may get a share by the father's choice; but, if the father be dead, the (legitimate) brother should make him partaker of half a share: one who has no (legitimate) brother may take the whole, in default of (heirs down to) the son of daughters': Yajnavalkya (II. 133-131). 17. Jimutavahana lays down, on the authority of the text of Vrihaspati, that the son of a regenerate person by any Sudra woman, not married by him, is entitled to maintenance and then goes on to discuss the law relating to such a son of a Sudra in paragraph 29; there he first enunciates the rule applicable to the case and next quotes Manu in support of his view. Let us assume, for a moment, that it is permissible for us to investigate the true scope of this text of Manu. For this purpose, it is obviously legitimate to have recourse to the recognized commentators of Manu, particularly such commentators as were antecedent to or contemporary with Jimutavahana. Now Jimutavahana is known to have flourished in the eleventh century; indeed, from the astronomical data furnished by his work on kalaviveka (published by the Asiatic Society of Bengal), it has been ascertained, with as much approach to accuracy as is practicable in such matters, that Jimutavahana was alive in 1092 A.D. [See the article by Mr. Panchanan Ghosh 26 C.L.J. 17 n]. The most ancient commentator on Mann, whose work has come down to us, is Medhatithi, who is said to have flourished about the eighth century. Next to him was Gobindaraj who is quoted several times by Jimutavahana, but unfortunately his work has reached us in a fragmentary condition and the portion relating to the text now under consideration (IX. 179) is not available. Sarbajuanarayan is said to have flourished in the fourteenth century and Kulluk Bhatia in the century following. The relevant passages from these commentaries as also the translations which have been prepared for our use are set out below: (A) Medhatithi.... Commentary on ManuBook IX, verse 179. 18. This is the son begotten by a Sndra on a woman though not married to him (anoorhaya) or appointed (for raising issue)(aniyuktaya). Thus, even though the text says 'dasi of a dasa ', begotten on her (he is son) not of the dadsa, but of the master of the dadsa. Commentary on ManuBook IX, verse 179. 18. This is the son begotten by a Sndra on a woman though not married to him (anoorhaya) or appointed (for raising issue)(aniyuktaya). Thus, even though the text says 'dasi of a dasa ', begotten on her (he is son) not of the dadsa, but of the master of the dadsa. Enjoined by the father he takes a share equal to that of the aurasha son. (This is) when the partition is made during the father's lifetime, or if he enjoins 'Be you equal sharer.' But when the father leaves no injunction that is provided for in another smriti (thus), 'Even though begotten on a dasi by a Sudra he becomes taker of a share by choice.' 'By choice' (is meant) the share that the father enjoins. 'If the father be dead the brothers should make him partaker of half share.' 'Should make him' (i.e.) in reference to their own shares. They should take two shares each themselves and should give one to him. 'Brotherless (he) should take the whole', in the absence of aurasha sons he alone takes the whole property, if (there) is no daughter's son. If he exists he should be considered as an aurasha son.** But dasi's sons of Brahmins and others take only maintenance (and) not property, this is well-settled. (B) Sarbajnanarayan.... Commentary on Manu Bock IX, verse 179: 19. On a dasi (means) on a woman not married to a Sudra; so also issue procreated by the Sudra, who is the master or chief, on a dasi who is such of the dasa of the Sudra; he is also to be given the Sudra's share that is the meaning. Directed by the father, he takes a share, but not that not so directed he takes only maintenance. By this (is indicated that) issue of a Sudra procreated on a Sudra woman, though not married to him, becomes his son if there is any sort of control or dominion over her, but not, even if she is the wife of another this is shown. Therefore it is said on a dasi, or on the dasi of a dasa. (C) Kulluk Bhatta.... Commentary on Manu Book IX, verse 179 20. Therefore it is said on a dasi, or on the dasi of a dasa. (C) Kulluk Bhatta.... Commentary on Manu Book IX, verse 179 20. That son of a Sudra who is born of a dasi, as defined by 'won under banner' and other marks already (in VIII, 415) spoken of, or of a dasi related to a dasa; enjoined by the father he becomes taker of equal share with the wedded wives' sons, (i.e.) takes a similar share. This is settled rule of the shastras. 21. The passage just quoted from the commentary of Medhatithi has been summarized in the following terms by Professor Jolly (Tagore Law Lectures, page 187): (1) " The term 'a Sudra's son by a dasi' means a son begotten by him on a woman neither married to him nor authorized to raise offspring (according to the custom of niyoga). (2) Such a son shall receive an equal share with a legitimate son, if his father wills it so and either divides his property in his lifetime or enjoins his legitimate sons to share equally with the illegitimate son after his death. (3) If the father has made no such provision for the illegitimate son, he shall take after the father's death half of the share allotted to each legitimate son. (4) If there is no legitimate son, nor daughter's son, he shall take the whole property. (5) A daughter's sons, where there are any, shall be treated like legitimate sons as regards their shares of the inheritance." 22. It is thus clear that the commentaries of Medhatithi and Sarbajnanarayan are in conformity with the view taken by Jimutavahana as to the true scope of the text of Manu. One of these commentators, Medhatithi, as we have seen, preceded Jimutavahana by several enturies and his work was unquestionably of high authority in those days. The other commentator, Sarbajuanarayan, followed Jimutavahana by two centuries; as his interpretation is in substantial accord with that of Medhatithi, it may legitimately be assumed that no change of opinion had taken place in the interval and that when Jimutavahana flourished, the accepted interpretation of the text was that given by Medhatithi. The other commentator, Sarbajuanarayan, followed Jimutavahana by two centuries; as his interpretation is in substantial accord with that of Medhatithi, it may legitimately be assumed that no change of opinion had taken place in the interval and that when Jimutavahana flourished, the accepted interpretation of the text was that given by Medhatithi. On the other hand, a change had apparently come about by the time when Kulluk Bhatta and Raghavananda flourished, who interpret the passage as restricted to dasas in the technical sense of the term and refer to Manu (VIII, 415) for the seven varieties of ways in which a man may be reduced to slavery. See also Narada v. 26-28, where fifteen ways in which a man may be reduced to slavery, are enumerated; and the 'Vivada-bhangarnava' of Jagannath, translation by Colebrooke, III. 1. 29-33. Kuiluk Bhatta, however, is remarkable for the narrowness of his views and his importance is by no means commensurate with his popularity which was due in a large measure to his brevity. The gradual spread of his work led to the supersession of the more elaborate commentaries of the past and soon rendered them obsolete, but the merit of his commentary must not be judged by his popularity (see the opinion of Buhler in his introduction to the translation of the Laws of Manu, page 131, S.B.E.S. Vol. XXV, as also that of Professor Jolly in his introduction to the text of Manu, page xii). In any view, it would be hardly fair to Jimutavahana to test the accuracy of his interpretation of Manu, not by reference to the opinion held by the leading commentators who flourished before or immediately after him, but by reliance upon the exposition of a commentator who came four or five centuries after him and may have held a different opinion. 23. Similar observations apply to the text of Yajnavalkya relied upon by Jimutavahana. Here, again, we have the commentary of Vishwarupa, who is quoted by Jimutavahana on six occasions, each time with approval. The relevant portion of his commentary, as also the translation which has been prepared for our use, is set out below: Vishwarupa.... Commentary on Yajnavalkya Book II, verses 133-34. 24. The word 'half' is used to indicate a less share. Here, again, we have the commentary of Vishwarupa, who is quoted by Jimutavahana on six occasions, each time with approval. The relevant portion of his commentary, as also the translation which has been prepared for our use, is set out below: Vishwarupa.... Commentary on Yajnavalkya Book II, verses 133-34. 24. The word 'half' is used to indicate a less share. Thus says Vrihaspati: 'On the death of the father, the share of the brother, born of a Sudra concubine, is to be given (by the other brothers) according to their wishes just enough for respecting (his rights) if he be willing to render service.' Here also the subject relates to one who is ready to transgress the shastras just as in the case of a son of a Sudra woman of men belonging to regenerate classes and it should not be inferred that concubine in case of ddsi is an injunction (of the shastras). Thus explained, everything is unobjectionable. Such a one, if brotherless, takes the whole in the absence of daughter and her son with the permission of the sovereign. This also follows from Vrihaspati's saying, viz., 'the sovereign takes everything of an issueless person, or through his permission one born of a concubine, say some.' All this is special rule for Sudras. 25. It is remarkable that Vishwarupa uses the word 'abarodhaja' (which is translated above as born of a concubine) as equivalent to the term 'dasi' which occurs in the text of Yajnavalkya (II. 133) on which he comments. There is thus no solid foundation for the distinction suggested by Rajkumar Sarvadhikari in his Tagore Law Lectures on the Hindu Law of Inheritance, where (page 941) he maintains, on the interpretation of a passage of the "Madana Parijat," that 'the word for a female slave is dasi and the word for a concubine is abaruddhd. This passage of the "Madana Parijat" is in the following terms ("Madana Parijat", edited by Madhusudana Smritiratna and published by the Asiatic Society of Bengal, page 686): 26. The author first refers to the text of Manu (IX. 218) which declares 'women' impartible and then proceeds to explain the term women': Women female slaves; women of the seraglio. Where the female slaves are unequal in number, they should be made to do duty by terms; if they are equal in number, they should be divided. The author first refers to the text of Manu (IX. 218) which declares 'women' impartible and then proceeds to explain the term women': Women female slaves; women of the seraglio. Where the female slaves are unequal in number, they should be made to do duty by terms; if they are equal in number, they should be divided. But women of the seraglio, even though equal in number, are not divisible. That is laid down by Gautama (XXVIII 47): 'There is no division of women who are concubines'. This passage merely shows that Madanapala, the author of "Madana Parijat" used the term dasi to denote a slave woman and the term abaruddhd to denote a concubine. From this the inference cannot legitimately be drawn, as appears to have been done by Rajkumar Sarvadhikari that the word dasi in Sanskrit means only a slave woman and may not include a concubine; on the other hand, Vishwarupa, as we have just seen, uses the word abaruddhd as equivalent to dasi. The same criticism is applicable to the use made by Rajkumar Sarvadhikari of the text of the "Dattaka Mimansa" (Section IV, 76) and "Smritichandrika", Chapter XI, Section 1, paragraphs 10, 11. We may add that reference has also been made in this connection to the text of Yajnavalkya (II. 290): which is thus rendered by Mandlik: 'A man having intercourse with an abaruddhd (protected female slave) and bhujishya (another's mistress) shall be required to pay a fine of fifty panas, even though intercourse with them be (in other respects) permissible.' 27. This text is quoted by Nilakantha in his "Vyavahara-Mayukha" (Chapter XIX, paragraphs 10-13) where he explains the term abaruddha to mean 'female slaves forbidden by their master to have intercourse with other men' and refers to a text of Narada (see edition by Mandlik, text, page 94 and translation, page 152). Reference may also be usefully made to the Mitakshara where the word abaruddha is used in the passages translated by Colebrooke in Chapter I, Section 4, paragraph 22 and chapter II, Section 1, paragraph 28; this is taken as equivalent to sangyukta of Gautama, that is upabhukta , enjoined or kept in concubinage, in the text streeshu cha sangyuktashwabibhaga (Gautama, XXVIII. 47). The term dasi is not explained in the "Subodhini" and the "Balambhatti" which are commentaries on the Mitakshara; nor is it explained by Apararka in his commentary on Yajnavalkya. 47). The term dasi is not explained in the "Subodhini" and the "Balambhatti" which are commentaries on the Mitakshara; nor is it explained by Apararka in his commentary on Yajnavalkya. The same remark applies to Raghunandan who does not explain the term dasi in his "Dayatattwa", though he quotes the text of Yajnavalkya in Chapter II, paragraph 39 (Shastri Golapchandra Sarkar's translation, page 18). Bat the attitude of Raghunandan (who flourished in the latter half of the fifteenth century) may be inferred from the following passage of the Snddhitattwa which refers to the impurity of sapindas and others and has been translated for our use: Raghunandan.... Suddhitattwa (Impurity of Sapindas and others.) (Serampore edition, 1834-35, Volume II, page 157). (Says) the Brahmapurana: 'Where of two (brothers) the mother is one, but where in any such case (their) fathers are two, there is perfect similarity between these two in birth and death impurities.' (If) a woman first married to one (and) having a son by him takes the protection of another with even the son, (and) afterwards has a son by him also, on the birth and death of these two sons according as possible the impurity of the father of the second son is of three nights. Of such two sons the birth and death impurity with respect to each other is as laid down for the caste of (their) mother Here distinctions are made by Narada: But those who are born of a woman not appointed (to raise issued, by one or many, are all non-heirs; they are sons of the procreators only. If the mother is gained by the payment of price let them offer pindas to (their) procreators. But if gained not by the payment of price, they are officers of pindas to the husband only (of the mother).' By the use of the term ' only,' the suggestion of (the son) having two fathers is stopped. And this payment of price is to be understood as for gaining the woman. The "Sraddha-viveka" says that in the absence of payment of price, (they are) offerers of pindas to the husband of the woman. But, in fact, as according to the saying of "Adityapurana" quoted before, procreation of son on One's wife by another is forbiddon in the Kali age, such a son is of the procreator only. Now-a-days, the usage also is such. But, in fact, as according to the saying of "Adityapurana" quoted before, procreation of son on One's wife by another is forbiddon in the Kali age, such a son is of the procreator only. Now-a-days, the usage also is such. In view of Yajnavalkya's text, viz., ' Even though begotten on a dasi by a Sudra, (he) becomes taker of a share by choice; if the father be dead, the brothers should make him partaker of half share;' usage of this kind is of the Sudras alone, (and) not of the other castes. Therefore the abovequoted saying of Brahmapurana also relates to them. 28. It is noteworthy that the events contemplated by Raghunandan in the opening sentence of this passage have a remarkable resemblance to the facts of the litigation which has culminated in the present reference. From what has already been stated, it thus appears that the decision of the question referred is, in one sense, simpler in the case of the Dayabliaga than in the case of the authoritative commentaries recognized in other provinces. As we read the original text of paragraph 29 of Chapter IX of the Dayabhaga, reference is explicitly made, not merely to the son of a dasi but also to the son of a Sudra woman like a dasi. As Shastri Golapchandra Sarkar puts it, the two words dasi and adi may be rendered either as 'a female slave or other' or 'a female slave or the like.' Mr. Banerji fully realized that this was completely destructive of his argument and advanced an extremely ingenious argument when he made a desperate effort to restrict the normal meaning of dasyadi by reference to the text of Manu and to limit the adi solely to dasa-dasi, that is, to the wife of a slave or a female slave of a slave. This assumed interpretation of the text of Manu is, however, incorrect, as it ignores the full force of the double use of the particle 'or' which gives it a wider significance than might otherwise have been the case. This assumed interpretation of the text of Manu is, however, incorrect, as it ignores the full force of the double use of the particle 'or' which gives it a wider significance than might otherwise have been the case. But the argument is, in our opinion, inadmissible on a further ground, although we do not overlook that the gloss of Sri-krishna and Rambhadra, namely, " or, 'on a female slave of a slave, means, on one, not married, but kept by a slave,' may be so interpreted as to lend it to some extent the weight of their authority. If Jimutavahana had really intended what Mr. Banerji attributed to him, he need only have quoted the text of Manu; it was needless for him to use a comprehensive phrase like dasyadi which manifestly describes a class wherein is included dasi. The only other point, then, which arises in connection with Chap. IX, para. 29 of the Dayabhaga, is the true meaning of the word aparineeta, which was translated by Colebrooke as 'unmarried' and which Mr. Justice Mitter had no occasion to consider in Narain Dhara v. Bakhal Gain ILR (1875) Cal. 1. This, as we have seen, is ambiguous and has encouraged the argument that it signifies 'never married.' A distinction has been attempted to be drawn between the two Sanskrit words, anoorha and aparineeta; but there is really no foundation for this suggestion. It may be conceded that the word aparineeta, taken apart from the context, is capable of either of the two meanings attributed to it; but the context, in our opinion, leaves no room for reasonable doubt that the term aparineeta has reference to the person to whom the woman bears the son whose right of inheritance is in question; it does not refer to the past history of the woman taken by herself. It is worthy of note that Srikrishna in his comments on the Dayabhaga, Chap. IX, para. 28, interprets the word, aparineeta as kenapyaparineeta () that is, not married to any one and not as kadapyaparineeta (), that is, not married at any time. Besides, it is difficult to appreciate on what principle the right of the illegitimate son to take by inheritance the estate of his putative father should be made to depend upon the fact, whether his mother, when she became a concubine, was a maiden or widow. Besides, it is difficult to appreciate on what principle the right of the illegitimate son to take by inheritance the estate of his putative father should be made to depend upon the fact, whether his mother, when she became a concubine, was a maiden or widow. The theory suggested by Jogendra Nath Bhattacharya ("Commentaries on Hindu Law", second edition, p. 332) that the son begotten on an unmarried damsel may be deemed a real son, is manifestly very farfetched and would give the illegitimate son an equal share with the legitimate son. Further, it is remarkable that according to the interpretation put forward by the Respondent, the illegitimate son would acquire a right of inheritance, even though his mother had strayed from the path of virtue, before she became the mistress of his putative father, while he would have no right of inheritance, if his mother had been a faithful wife to her first husband and had, after the death of the latter, become the concubine of his progenitor. We should be reluctant to accept an interpretation which leads to such a result, unless, indeed, there is no escape from the conclusion on the plain reading of the text. On the other hand, we cannot overlook that both Mann (XI. 59) and Yajnavalkya (III. 231) emphatically condemn the seduction of maidens and it is highly improbable, to say the least, that either of them could have given preference to an illegitimate son on the ground that he was born of a virgin concubine. We may finally add that the interpretation put forward by the Respondent, not only negatives the claim of the illegitimate son of a Sudra by a continuous and exclusive concubine to take by right of inheritance, but-also denies him all maintenance. This is plainly opposed to the scheme of Chap. IX considered and analysed as a whole; that scheme is to allow maintenance to illegitimate sons of the first three classes and a share of the estate by inheritance to those of Sudras. This is plainly opposed to the scheme of Chap. IX considered and analysed as a whole; that scheme is to allow maintenance to illegitimate sons of the first three classes and a share of the estate by inheritance to those of Sudras. It is obviously no satisfactory answer to suggest that the claim of illegitimate sons of Sudras to maintenance, when not entitled to succeed as heirs, might be otherwise worked out and established, which is rendered by Colebrooke, the son begotten by a Sudra on a female slave, obtains a share by the father's choice or at his pleasure; , but the son begotten on a female slave by a man of regenerate class receives only maintenance if he be docile. Mitakshara, Chap. 1, Section 12, paras. 2, 3; Muttusamy Jagvira Yettapa Naikar v. Venkatasubha Yettia (1865) 2 Mad. H.C.R. 293, affirmed in Muttusawmy Jagavera Yettappa Naicker v. Vencataswara Yetttaya (1868) 12 Moo. 1 I.A. 203, Chuoturya Run Murdun Syn v. Purhulad Syn (1857) 7 Moo. I.A. 18]. The vital question is whether it is at all probable that Jimutavahana really left the illegitimate son of a Sadra by a continuous and exclusive concubine without right of inheritance and without right of maintenance when he had the question of maintenance of the illegitimate sons of the first three classes in mind and made express provision in that behalf. It would really be a serious reproach to a jurist of such eminence as Jimutavahana to impute that n a series of propositions, elaborately framed, logically arranged and cogently argued out, he expounded the rules as to participation of sons by women of various tribes and at the same time was completely oblivious of the case of maintenance of the illegitimate son of a Sudra in the event of his exclusion from inheritance. This points to the conclusion that Jimutavahana did not provide for the maintenance of the illegitimate son of a Sudra by a continuous and exclusive concubine, because he had included him in the category of heirs. 29. The essence of the matter is that the term dasi as used in the text of Yajnavalkya (II. 133), is capable of the restricted meaning ' female slave' as also of a wider interpretation. 29. The essence of the matter is that the term dasi as used in the text of Yajnavalkya (II. 133), is capable of the restricted meaning ' female slave' as also of a wider interpretation. The contention of the Respondent is that the narrower interpretation should be adopted, with the result that as slavery was abolished in British India by Act V of 1843, there can no longer be any dasiputra in this country entitled to inherit under the text of Yajnavalkya or the corresponding text of Manu (IX. 179) which forms the foundation of the rule prescribed on the subject in the various schools of Hindu law. No doubt, slavery has been abolished in this country, but it does not follow that the term dasi should be interpreted in the restricted sense contended by the Respondent. As we shall presently see, the judicial decisions in each school of Hindu law other than that prevalent in Bengal, undoubtedly support, directly or by implication, a liberal interpretation of the texts of Manu and Yajnavilkya. This opinion is supported by the meaning attributed to the term dasi by lexicographers of established repute, whose views were summarized in the following terms in the case of Chatturbhuj Patnaik v. Krishna Chandra Patnaik (1912) 17 C.W.N. 442: "Wilson in his Sanskrit Dictionary explains the term dasa as signifying a fisherman, a servant, a slave, a Sudra or man of the fourth tribe. The term dasi is defined by him as applicable to a female servant or slave, the wife of a slave or a Sudra. Monier Williams in his Sanskrit Dictionary explains dasi as a female servant or slave, servant maid, whore or harlot. To the same effect is the definition given in the Sanskrit Worterbuch by Bohtlingk and Roth, Vol. Ill, col. 604, where numerous quotations are given to show that the term dasa has a much wider meaning than a slave and the same observation applies to the feminine form dasi. Burnell in the 'Dayabibhaga' of Madhabhya observes that in Southern India the term dasi is applied also to a female dancer attached to a temple. In fact, the whole difficulty has been created by the rendering of the word dasi by the expression 'a female slave' by the earliest translators; bat as Sir Michael Westropp points out in Rahi v. Govinda Valad Teja ILR (1875) Bom. 97 109, Mr. In fact, the whole difficulty has been created by the rendering of the word dasi by the expression 'a female slave' by the earliest translators; bat as Sir Michael Westropp points out in Rahi v. Govinda Valad Teja ILR (1875) Bom. 97 109, Mr. Colebrooke, when he translated the term dasiputra as the son begotten on a female slave, must have meant issue by a concubine (Strange on Hindu Law, 1830, Vol. II, p. 68)." See also the elaborate discussion by Westropp C.J., in Rahi v. Govinda Valad Teja ILR (1875) Bom. 97 109. There is no good reason why the term dasi, as used by Jimtitavahana who quotes the text of Mann and Yajnavalkya, should be taken in a more limited sense than has been adopted by the commentators in the other schools of Hindu law. Reliance was, however, placed by Mr. Banerji upon the passage of the Dayabhaga, which is translated by Colebrooke as Chapter VI, Section II, paragraphs 23 and 24, but it does not really establish his thesis. In paragraph 23, Jimiitavahana, on the authority of Mann (IX. 219) and Vishnu (XVIII. 44) ordains that women are exempt from partition. In paragraph 24, Jimutavahana defines the term 'women' to mean other than dasi which Colebrooke renders 'women other than female slaves.' Maneswara, one of the commentators of the Dayabhaga, takes this to mean upabhogarlham rakshita , kept for enjoyment. Achyuta, another commentator, takes dasi in the same sense and refers to the text of Gautama (XXVIII. 47). Streeshu cha sangyukta swabibhaga which is quoted in the Mitakshara, Chapter I, Section 4, paragraph 22 and forbids partition of women enjoyed or kept in concubinage (by the father or by one of the co-heirs). Ragbunandan in his comments on this passage of the Dayabhaga similarly refers to the text of Gautama and evidently understands dasi to mean not merely a slave woman but also a concubine, . This makes it fairly clear that the term dasi was not used in a restricted sense at the time of Raghunandan who flourished, as we have seen, in the latter half of the fifteenth century. But, if it were assumed that in a particular passage of the Dayabhaga the context shows that the term dasi was used in a limited sense, it does not follow that in Chap. IX, para. 29, the term is so used. But, if it were assumed that in a particular passage of the Dayabhaga the context shows that the term dasi was used in a limited sense, it does not follow that in Chap. IX, para. 29, the term is so used. The same remark applies to the "Dayacrama-Sangraha" (Chap. IV, Section II, paras. 13 and 32) of Srikrishna Tarkalankar, who, it may be observed, does not elucidate this particular point in his commentary on paras. 23 and 24 of Chap. VI, Section 2 of the Dayabhaga. Nor need we refer in detail to the corresponding passages in the works of commentators of other schools, such as the Mitakshara of Vijnanesh wara (Chap. I, Section XII, para. 2), the "Vyavahara-Mayukha" of Nilakantha (Chap. IV, Section IV, para. 32), the "Viramitrodaya" of Mitra Misra (Chap. II, Part II, Section 22), the "Vivadaratnakara" of Chandeshwara (Chap. XIII, paras. 27-31), the "Vivada-nanda" of Kamalamkara (Baroda Ed., p. 328), the "Smriti Chandrika" of Devananda Bhatta (Chap. XI, Section I, paras. 10, 11), the "Dattaka-chandrika" of Kuvera or "Raghumani" (Section V, para. 30) and the "Dattaka Mimansa" of Nanda Pandita (Section 4, paras. 75 and 76). In our opinion, adequate reasons have not been assigned in support of the view that the term dasi should be interpreted to mean a slave woman in the Dayabhaga or in the texts of Manu and Yajnavalkya quoted by Jimutuvahana. Besides, as we have already indicated, the use of the word 'Sudra' by Jinuitavahana in the expression aparineeta dasyadi sudrdputra () makes the case for a liberal interpretation of the term dasi really unanswerable. 30. Our attention was drawn to five early decisions: Jugyomohun Mullick v. Saumcoomar Bebee (1815) 2 Morley's Dig. 43; I.D. 3 O.S. 797, Bukhtear Singh v. Buhadoor Singh (1816) 2 Macnaghteu's Hindu Law, p. 14, Case XI, Anonymous (1816) 2 Macnaghten's Hindu Law, p. 256, Case XLVIII, Pershad Singh v. Muhesree (1821) 3 Mac. Sel. Rep. 176 : I.D. 6 O.S. 809 and Anonymous (1824) 2 Mac. Hindu Law, p. 119, Case XII. The first of these cases which was decided in 181.5 by Sir Edward Hyde Bast, Chief Justice of the Supreme Court, referred to the illegitimate son of a Sikh ; the court affirmed the right of the son of a slave woman of a Sikh to inherit in the proportion stated by the pandits with respect to the illegitimate son of a Sudra. The second case was decided in 1816 by the District Court at Hooghly; the parties, however, so far as may be inferred from the names, were Sudras geverned by the Mitakshara law and in the opinion of the pandit, reference was made to the text of Yajnavalkya as cited in the Mitakshara of Vijnaneshwara. Macnaghten added a note to the effect that if the woman were not a female slave, the son begotten on her would have no right to inheritance but only a claim to maintenance. No authority is mentioned by Macnaghten in support of the latter statement, which is expressed in somewhat more comprehensive terms than the rule to be found in the first paragraph of Chap. II of his Principles of Hindu Law, published in 1829. The third case was decided in 1816 in the District Court at Dacca. The parties were apparently Sudras governed by the Bengal school of Hindu law, as reference was made to the Dayabhaga in the opinion of the pandit. The marginal note by Macnaghten is to the effect that the son of a Sudra by a concubine or female slave is entitled to inherit his property, but the widow of such son is incompetent to alienate the property to the prejudice of other heirs. Effect was given to this view and the dispute between the parties was decided on the footing that the son of a Sudra begotten by him on his concubine was entitled to take by inheritance. This opinion was stated to be 'conformable' to the Dayabhaga, "Dayatatwa", "Vivada-Chintamani", Mitakshara, Manu and other legal authorities.' The fourth and fifth cases related to the illegitimate sons of Rajputs resident in the districts of Murshidabad and Bhagalpur, respectively. The decisions were based on the ground that an illegitimate son of a Rajput or a member of any of the three superior classes by a woman of the Sudra or other inferior class, is entitled to maintenance only. The rule thus formulated is applicable to sons of a concubine and their mother need not be a slave. It may be conceded that these decisions are somewhat imperfectly reported, but there is no solid foundation for the contention that they do not afford trustworthy guidance in the solution of the question raised before us. The rule thus formulated is applicable to sons of a concubine and their mother need not be a slave. It may be conceded that these decisions are somewhat imperfectly reported, but there is no solid foundation for the contention that they do not afford trustworthy guidance in the solution of the question raised before us. It is abundantly clear from them that during the first quarter of the last century, the Hindu law officers attached to the Courts as also the Judges thereof upheld the right of the illegitimate son to maintenance or inheritance, as the case might be, even though such son was born of a concubine and not of a slave woman and in 1816, the right to inheritance of the illegitimate son of a Sudra by a Sudra woman was actually enforced in the case of parties governed by the Bengal school of Hindu law. The apparently contrary view taken by Macnaghten in the footnote to the case of Bukhtear Singh v. Buhadoor Singh (1816) 2 Mac. Hindu Law, p. 14, Case XI, is contradicted by his opinion as set out in the marginal note to the later case, Anonymous (1816) 2 Mac. HL 256, Case XLVIII. We must also remember that texts and commentaries now available were not so easily accessible in those days, and we cannot trace the ground for the opinion expressed by Macnaghten. The opinion of Sir William Macnaghtert was considered by the Judicial Committee in Chuoturya Ran Murdun Syn v. Purhulad Syn (1857) 7 Moo. I.A. 18, and as explained by Sir Edward Ryan in that case, cannot be held really to advance the contention of the Respondent. It is remarkable that the marginal notes by Macnaghten to the cases of Pershad Singh v. Muhesree (1821) 3 Mac. Sel. Rep. 176 : I.D. 6 O.S. 809 and Anonymous (1816) 2 Mac. Hindu Law, p. 119, Case XII, are quoted as authorities, but when mention is made later of the footnote to the case of Bukhtear Singh v. Buhadoor Singh (1816) 2 MHL 14, Case XI and of the corresponding passage from the text, Vol. I, p. 18, no approval is expressed, while no mention is made of the marginal note to Anonymous (1816) 2 Mac. Hindu Law, p. 256. I, p. 18, no approval is expressed, while no mention is made of the marginal note to Anonymous (1816) 2 Mac. Hindu Law, p. 256. The decision of the Judicial Committee just mentioned was followed in the judgment of Lord Hobhouse in Roshan Singh v. Balwant Singh ILR (1899) All. 191 : L.R. 27 IndAp 51. On the other hand, we have the opinion recorded by Colebrooke on a case decided in 1804 and quoted with approval by Sir Thomas Strange in his treatise on (1825) HL 2 198; (1830) Vol. II, p. 68. 'Issue by a concubine is described in the law as son by a female slave or by a Sudra woman. If the father were a Sudra, he might have allotted a share to Ms illegitimate son. Mitakshara on Inheritance, Chap. I, Section XII. And the obligation of affording him the means of subsistence is declared in passages quoted in Jagannath's Digest, Vol. III, p. 170.' This effectively removes from the region of doubt and surmise the question as to what was intended by Colebrooke when, in his translations of the Mitakshara and the Dayabhaga, he rendered the term dasi by the phrase 'female slave'; clearly, he included a concubine in that expression. Reference has finally been made to indications or expressions of diverse opinions on the topic under discussion by text-writers, of whom we need mention only those now dead, such as Shyama Charan Sarkar, Sir Gooroodass Banerjee, Raj Kumar Sarvadhikari, Jogendra Nath Bhattacharya and Shastri Golapchandra Sarkar.. The view held by Shyama Charan Sarkar may be said to be dubious; the first and second editions of his "Vyavastha-Darpana" were published in 1859 and 1867, respectively, that is, before the judgment of Mr. Justice Mitter, which thus preceded the third edition published in 1883. On the other hand, the opinion expressed by Sir Gooroodass Banerjee (Hindu Law of Marriage and Stridhan, 4th edition, page 171), is admittedly based on the judgment of Mr. Justice Mitter in Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1; it further appears that he was consulted by Ghose J. and expressed his approval of the correctness of the translation given by Mr. Justice Mitter in modification of the version of Colebrooke; Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. 91. Justice Mitter in Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1; it further appears that he was consulted by Ghose J. and expressed his approval of the correctness of the translation given by Mr. Justice Mitter in modification of the version of Colebrooke; Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. 91. A similar remark applies to Raj Kumar Sarvadhikari and Jugendra Nath Bhattacharya, whose view were undoubtedly 'influenced by the judgment of Mr. Justice Mitter, which was, however, vigorously assailed by Shastri Golapchandra Sarkar. In such circumstances, we-do not feel hampered in placing upon the text of Jimutavahana the construction obviously suggested by its language. 31. It is not necessary for our present purpose to examine in detail the view adopted by authoritative text-writers in schools of Hindu law prevalent in other parts of India; but it appears that the corresponding passages in the "Vivada-Chintamani" of Vachaspati Misra, the "Viramitrodaya" of Mitra Misra, the "Vyavahara-Mayukha" of Nilakantha and the "Vivada-Tandava" of Kamalakara, if they could be utilised for the ascertainment of the law as expounded in the Dayabhaga, would not strengthen the view adopted in the case of Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1, and would on the other hand, tend to support the contention that there is no difference in this respect between the Dayabhaga and Mitak-shara. An examination of the judicial decisions in the other High Courts also makes it plain that the rule propounded in Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1, is different from what has prevailed in all the other High Courts and has received the approval of the Judicial Committee. In Bombay the leading decisions are Rahi v. Govinda Valad Teja ILR (1875) Bom. 97, Sadu v. Baiza ILR (1878) Bom. 37 and Gangabai Peerappa v. Bandu ILR (1915) Bom. 369, which affirm the view that an illegitimate son of a Sudra is entitled as a dasiputra to a share of the inheritance, provided that his mother was a woman in the exclusive keeping of his father and he was not the fruit of an adulterous or an incestuous intercourse. 32. The same view has been adopted in Allahabad in Sarasuli v. Mannu ILR (1879) All. 134, Hargobind Kuari v. Dharara Singh ILR (1884) All 329 and Earn Kali v. Jamma ILR (1908) All. 32. The same view has been adopted in Allahabad in Sarasuli v. Mannu ILR (1879) All. 134, Hargobind Kuari v. Dharara Singh ILR (1884) All 329 and Earn Kali v. Jamma ILR (1908) All. 508 and in Madras in Vencataram v. Vencata Lutchemee Ummal (1815) 2 Strange N.C. 127 : I.D. 5 O.S. 299 and Krishnayyan v. Muttusami (1883) ILR 7 Mad. 407. The question, whether it is essential that the mother should not previously have been married to any one, has been raised in three recent cases in Madras. In Annayyan v. Chinnan ILR (1909) Mad. 366, the point was not expressly decided, but it was ruled that an illegitimate son of a Sudra by a Sudra widow, whose remarriage is prohibited by custom, has no right of inheritance. In Soundararajan v. Arunachalam Chetty ILR (1915) Mad. 136, the question was raised before a Full Bench and the correctness of the decision just mentioned was called in question. Wallis C.J., Ayling J. and Sadasiva Iyer J. held that the texts require that the mother should be a dasi, not that she is qualified to become a wife; and they pointed out that Medhatithi had interpreted the text of Manu as meaning 'not married to the father of the child,' which was precisely the view adopted in Vencatachella Chetty v. Parvatham (1875) 8 Mad. H.C.R. 134, Karuppannan Chetti v. Bulokam Chetti ILR (1899) Mad. 16 and Padala Krishna Bao v. Padala Kumarajamma (1912) 15 I.C. 340. Wallis C.J. also made the important remark that the limitation that the woman should be an exclusive and continuous concubine is not to be found expressed in so many words 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. Parisi Nayudu v. Bangaru Nayudu (1869) 4 Mad. H.C.R. 204, Vencatachella Chetty v. Parvatham (1875) 8 Mad. H.C.R. 134. Sadasiva Ayyar J. referred with approval to the theory propounded by Seshagiri Ayyar J., in Meenakshi v. Muniandi Panikkan ILR (1914) Mad. Parisi Nayudu v. Bangaru Nayudu (1869) 4 Mad. H.C.R. 204, Vencatachella Chetty v. Parvatham (1875) 8 Mad. H.C.R. 134. Sadasiva Ayyar J. referred with approval to the theory propounded by Seshagiri Ayyar J., in Meenakshi v. Muniandi Panikkan ILR (1914) Mad. 1144, that the favourable treatment of illegitimate sons of Sudras as regards right to share in paternal and ancestral property was due to the idea that marriage among them was not so strictly formal and ceremonial as in the case of the higher classes; continuous concubinage was regarded as equivalent to marriage, although the children of this irregular union did not rank equally with those with whose mother there was a formal marriage.' Mr. Justice Ayyar also pointed out that the term dasa was not exclusively applicable to slaves and referred in support of this opinion to the authorities cited in the decision of this Court in Chatturbhuj Patnaikv. Krishna Chandre. Patnaik (1912) 17 C.W.N. 442. The question of the meaning of the expression 'unmarried' was considered again by another Full Bench in Subramania Ayyar v. Rathnavelu Chetty ILR (1917) Mad. 44, where it was ruled that the expression, loosely translated as 'unmarried woman', merely means 'a woman not married to the father of the person whose rights of inheritance were under consideration.' Sadasiva Ayyar J., Kumaraswami Stistriyar J., who minutely scrutinised the texts and reviewed the judicial decisions, came to the conclusion that the term dasiputra is not restricted to the son of a slave woman and that the expression which had been translated 'unmarried' did not mean never married to any one.' Reference may in this connection be usefully made to the following observations of Professor Jolly (Tagore Law Lectures, p. 187) with regard to the contention that the term dasi means a female slave in the strictest sense of that term and that as slavery has been abolished under the British rule, the whole law under notice has become obsolete : "It is quite certain, however, that the commentators and shastris have persistently explained the term dasi as including any unmarried female of the Sudra caste. To the evidence tending in this direction which may be collected from the translated works and from Bombay and South Indian cases, I may add the before-quoted statement of Medhatithi and the remark of Kamalakar in the 'Vivada-Tandava' that the text of Mauu refers to the son begotten by a Sudra on an unmarried Sudra female." This supports the view taken in the cases of Chatturbhuj Patnaik v. Krishna Chandra Patnaik (1912) 17 C.W.N. 442, Subramania Ayyar v. Rathnavelu Chetty ILR (1917) Mad. 44. 33. The Judicial decisions we have mentioned make reference to the judgments of the Judicial Committee in Chuoturya Ran Murdun Syn v. Purhulad Syn (1857) 7 Moo. I.A. 18, Inderan Valungypuly Taver v. Ramaswamy Pandia Taliver (1869) 3 B.L.R. P.C. 1 : 13 Moo. I.A. 141, Gajapathi Radhika Patla Mahadebi Guru v. Gajapathi Hari Krishna Debi Guru (1870) 6 B.L.R. 202 : 13 Moo. I.A. 497, Jogendro Bhupati Hurrochundra Mahapatra v. Nityanand Man Sing ILR (1890) Cal. 151 : L.R. 17 IndAp 128 and Roshan Singh v. Balwant Singh ILR (1899) All. 191 : L.R. 27 IndAp 51. An examination of these cases, whose special facts need not be analysed and reviewed for our present purpose, discloses that whenever the Judicial Committee has expressed an opinion on the point, directly or indirectly, it has been unfavourable to the view maintained on behalf of the Respondent. Whatever may be urged against some of these expressions of opinion as in the nature of obiter dicta, that criticism does not apply to the judgment pronounced by the Judicial Committee (Lord Watson, Sir Barnes Peacock and Sir Richard Couch) in Jogendro Bhupati Hurrochundra Mahapatra v. Nityanand Man Sing ILR (1890) Cal. 151 : L.R. 17 IndAp 128. In that case the decision of the Bombay High Court in Sadu v. Baiza ILR (1878) Bom. 37, was expressly approved and it was ruled that where a Sudra leaves a legitimate son as also an illegitimate son by Sudra concubine, the legitimate and illegitimate sons take their father's property as coparceners with right of survivorship; consequently, where a Sudra died leaving a legitimate son A and an illegitimate son B and A died before partition, B would take A's share by survivorship. This decision of the Judicial Committee cannot be explained away on the hypothesis apparently made by Ghose J. in Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. This decision of the Judicial Committee cannot be explained away on the hypothesis apparently made by Ghose J. in Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. 91, 104, that the claimant in that case was the son of a slave woman in the technical sense of the term; the dates mentioned in the proceedings Jogendro Bhupati Hurrochundra Mahapatra v. Nityanand Man Singh ILR (1890) Cal. 151 : L.R. 17 IndAp 128, negative any such presumption. Nor can the decision be explained away as was attempted in the cases of Kirpal Narain Tewari ILR (1891) Cal. 91, 104 and Ram Saran Garain v. Teh Chand Garain ILR (1900) Cal. 194, on the ground that the question raised was not one of right of inheritance but of survivorship incidental to family coparcenary. Plainly this distinction is immaterial in the determination of the status of the 'legitimate son; indeed, when the Judicial Committee held that under the Mitakshara law, among Sudras, where a father left a son by a wedded wife and an illegitimate son by a dasi, the ordinary rule of survivorship incidental to a family coparcenaries applied, they assigned to the illegitimate son a position as a member of the family like the legitimate son. There can, in our opinion, be no doubt that so far as the Mitakshara school is concerned, it has been conclusively settled by the Judicial Committee that if a Sudra keeps a Sudra woman as continuous and exclusive concubine, she is a dasi and his illegitimate son by her is a dasiputra entitled to succeed to the estate of his father by right of inheritance Chatturbhuj Patnaik v. Krishna Chandra Patnaik (1912) 17 C.W.N. 442. In the view we propose to take, the law on this point under the Bengal school does not differ from that recognized by all the other schools of Hindu law throughout India. 34. As a last resort, Mr. Banerji argued that even if the right of the illegitimate son of a Sudra by a continuous and exclusive concubine to take by inheritance the estate of his putative father was established, upon a true construction of what is ordained by Jimutavahana in his Dayabhaga, we should disregard the rule enunciated by him, inasmuch as it is contrary to usage and custom. In support of this position Mr. In support of this position Mr. Banerji asserted that all that was stated by Jimutavahana in his Dayabhaga (such as the Various forms of marriage enumerated in Oh. V, Section III, paras. 3, 4) was not operative in the Bengal school of Hindu law and he referred for an example to the rules for valid marriages between persons of different castes, elaborately discussed by Jimutavahana in the identical chapter (Ch. IX) of his work now under consideration. This illustration cannot but be deemed unhappy, because although it has been sometimes asserted that intermarriage between different castes is prohibited in the present age, the authorities are not unanimous as to how far this prohibition ("Udvahatattwa" of Raghunandan, Vol. II, p. 62) extends to intermarriages between different castes of the Sudra class in Bengal. In the case now under examination, Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1, Mr. Justice Romesh Chunder Mitter expressed himself in favour of the view that such prohibition of intermarriage between different castes was universal and unqualified. In that very case, however, Mr. Justice Markby dissented from this view. In a later case Upoma Kuchain v. Bholaram Dhubi ILR (1888) Cal. 708, which came from Assam, Macpherson and Gordon JJ. held that, under the Bengal school of Hindu law marriage between persons belonging to different sections or sub-divisions of the Sudra caste was valid. They pointed out that this was in conformity with the opinion expressed by Wilson and O'Kinealy JJ. in an unreported case Since reported: Girish Chandra Roy v. Mahomed Shajed, (1888) 25 C.W.N. 634 and that a similar view had been approved by the Judicial Committee in two cases from Madras Inderan Valungypuly Taver v. Ramaswamy Pandia Talarer (1869) 3 B.L.R. P.C. 1 : 13 Moo. I.A. 141 and Ramamani Ammal v. Kulanthai Natchear (1871) 14 Moo. I.A. 346; the former of these cases affirmed the decision of Scotland C.J. and Holloway J. in Pandaiya Telaver v. Puli Telaver (1863) 1 Mad. H.C.R. 478. The same conclusion was reached by Prinsep and Handley JJ. in Ramlal Shookool v. Akhoy Charan Mitter (1903) 7 C.W.N. 619, where they approved of the opinion of the Subordinate Judge, Babu Girindra Mohan Chakravarti, whose judgment contained a learned discussion of the subject. The illustration chosen by Mr. H.C.R. 478. The same conclusion was reached by Prinsep and Handley JJ. in Ramlal Shookool v. Akhoy Charan Mitter (1903) 7 C.W.N. 619, where they approved of the opinion of the Subordinate Judge, Babu Girindra Mohan Chakravarti, whose judgment contained a learned discussion of the subject. The illustration chosen by Mr. Banerji to show that some at any rate of the rules enunciated by Jimutavahana in his Dayabhaga can no longer be regarded as living law, must consequently be deemed distinctly unfortunate, as it refers to a question which may itself form the subject of serious controversy. We must, therefore, leave the illustration aside and examine the validity of the contention, that the rule formulated in the Dayabhaga, Ch. IX, para. 29, has been superseded by a custom to the contrary effect. In this connection Mr. Banerji endeavoured, as might be expected, to fortify his argument by invoking the aid of the observation of Sir James Colvile in Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 Moo. I.A. 397, 346, that 'under the Hindu system of law, clear proof of usage will outweigh the written text of the law,' which is in complete accord of what had been ordained centuries ago by Manu (VIII. 41, 46) and Yajnavalkya (1.342) and was re-echoed by Jimutavahana when he proclaimed that 'a thing cannot be altered by a hundred texts.' But even if we assume that where there is a conflict between a custom and a text of the smritis the custom overrides the text:, because in the words of Maim (I. 108, 110) 'immemorial usage is transcendant law,' the real difficulty which lies athwart the path of the Respondent is that no such custom was alleged or proved either in the present instance or in the earlier cases in point; Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1, Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. 91. On the other hand, the view which found favour with both Mr. Justice Mitter and Mr. 1, Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. 91. On the other hand, the view which found favour with both Mr. Justice Mitter and Mr. Justice Ghose was that the text of the Dayabhaga, correctly read and interpreted, did not at all sanction the claim of the illegitimate son of a Sudra by a continuous and exclusive concubine to take by inheritance the estate of his putative father; from that standpoint, the theory could not well be propounded that the claim, though sanctioned by the Dayabhaga, must be negatived as contrary to an overriding custom. Mr. Banerji, however, emphasised the fact that no judicial decisions could be traced in Bengal later than 1816, which recognized the right of inheritance of an illegitimate son of a Sudra by a continuous and exclusive concubine. But it is manifest that this circumstance does not, with any approach to certainty, point to the conclusion that a custom has grown up in derogation of the right of the illegitimate son. Paucity and even absence of judicial decisions may be attributable to a variety of causes, amongst others, to the currency of an opinion that the law was well settled, or to the relative infrequency of instances of such casts of succession. On the other hand, the fact cannot be ignored that in the case of Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1, where the claim of the illegitimate son was ultimately negatived by this Court, it had been upheld in the Court of first instance by a Hindu judicial officer who pronounced his judgment in 1873. We have thus the series of significant facts that in 1816 the right of the illegitimate son of a Sudra by a continuous and exclusive concubine to take by inheritance the estate of his putative father under the Bengal school of Hindu law was judicially recognized in a British Court, that such tight had been acknowledged to be in conformity with the original texts by Colebrooke (the translator of the Mitakshara and the Dayabhaga), whose opinion on a case decided in 1804 published by Sir Thomas Strange in 1825 in the first edition of his work (Hindu Law, Vol. II, p. 198), was that 'an issue by a concubine is described in the law as son by a female slave or by a Sudra woman,' that in 1829 the right was recognized by Macnaghten in two instances, though rejected in a third and that so recently as 1873, the right was again upheld by a Hindu judicial officer whose view was negatived on appeal to this Court, on the erroneous assumption that the relevant passage of the Dayabhaga had been inaccurately rendered by Colebrooke. This chain of circumstances plainly militates against the hypothesis that a custom, contrary to the rule enunciated in the Dayabhaga, had grown up and had become firmly established. Apart from this, it is obviously one thing to show that, in recent years, occasions for the application of a particular rule of inheritance have grown fewer and fewer, possibly from the gradual disappearance of concubine through the spread of education and the consequent adoption of a higher ethical standard of social relations; it is an entirely different thing to establish that the particular rule of inheritance has been superseded by the growth of a contrary custom in a specified locality, family or section of the community. To establish the existence of such a custom, evidence must be adduced to show that in numerous instances succession had taken place to the estates of deceased persons in contravention of the prescribed rules of inheritance; in other words, that the legitimate heir had taken in conformity with the alleged custom and to the exclusion of the illegitimate heir who would have succeeded in accordance with the original texts of the sages of the Hindu law. The essence of the matter is that a rule may be deemed obsolete by the layman, merely because there is no occasion for its application, but this is clearly not equivalent to the destruction of the rule by the growth of a contradictory custom. As the Judicial Committee have repeatedly pointed out Ramalakhshmi Ammal v. Sivananantlia Perumal Sethurayer (1872) 12 B.L.R. 396 : 14 Moo. I.A. 570, (1876) L.R. 3 I.A. 259 (Privy Council) , Rup Chand v. Jambu Prasad ILR (1910) All. 247 : L.R. 37 IndAp 93, Abdul Hussein Khan v. Sona Dero ILR (1917) Cal. As the Judicial Committee have repeatedly pointed out Ramalakhshmi Ammal v. Sivananantlia Perumal Sethurayer (1872) 12 B.L.R. 396 : 14 Moo. I.A. 570, (1876) L.R. 3 I.A. 259 (Privy Council) , Rup Chand v. Jambu Prasad ILR (1910) All. 247 : L.R. 37 IndAp 93, Abdul Hussein Khan v. Sona Dero ILR (1917) Cal. 450 : L.R. 45 IndAp 10, the existence of a custom must be established by clear and unambiguous evidence, to entitle the Court to hold that in a particular family, community, or locality the customary rule had obtained the force of law in partial modification or complete supersession of the ordinary law. To mention one illustration only, it may be proved by appropriate evidence that a daughter is excluded from inheritance by special family or local custom Bajrangi Singh v. Manokarnika Bakhsh Sing ILR (1907) All. 1 : L.R. 35 IndAp 1, Parbati Kunwar v. Chandarpal Kunwar ILR (1909) All. 457 : L.R. 36 IndAp 125, but no custom of this description for exclusion of the illegitimate son has been asserted, much less proved in any of the cases brought to our notice. Mr. Banerji finally urged that the rule, which entitled the illegitimate son of a Sudra by a continuous and exclusive concubine to take by inheritance the estate of his putative father, was opposed to the sentiment of that community. This allegation, even if it could be established by evidence, would not be material for the decision of the question in controversy. But as the assertion was made, Mr. Gupta appropriately invited our attention to the deposition of the first Plaintiff (the landlord) which showed that the Defendant (the illegitimate son) was not only treated by his putative father as member of the family, but was also received in the family of the Plaintiff, who apparently belongs to the same caste, joined with him in meals and for a time lived as a member of his household. This illustrates the paramount need for caution on the part of the Court when sweeping generalisations are put forward as to the sentiments of an entire community which cousists of men and women in various walks of life, brought up under the influence of widely diversified standards of education and culture. This illustrates the paramount need for caution on the part of the Court when sweeping generalisations are put forward as to the sentiments of an entire community which cousists of men and women in various walks of life, brought up under the influence of widely diversified standards of education and culture. In view of all these circumstances, we hold without hesitation that there is no indication that the rule of inheritance declared by Jimutavahana to be applicable to the illegitimate son of a Sudra by a continuous and exclusive concubine has been abrogated by custom. There is, in our opinion, no foundation for the suggestion that the view we propose to take is in essence a revival of an archaic rule of law which has been superseded by contrary custom in Bengal, though it is admittedly in full operation throughout the rest of India. We desire to add that Mr. Banerji did not venture to propound what would have been a manifestly unfounded theory, namely, that Jimutavahana in this respect enunciated what even in his time was merely archaic and not living law; such a theory would have been completely demolished by proof that the rule was actually enforced by a British Court so late as 1816, many centuries after the death of Jimutavahana. 35. Our conclusions may now be summarised as follows: (a) The text of Dayabhaga, Ch. IX, para. 29, as given in the edition of Bharatchandra Shiromoni must be accepted as the basis of our decision. Tested from the point of view of that text, the translation given by Mr. Justice Mitter in Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1 and followed by Mr. Justice Ghose in Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. 91 and Ram Saran Garain v. Tek Chand Garain ILR (1900) Cal. 194, must be pronounced to be inaccurate in a material particular. (b) The term dasi is not exclusively applicable to a female slave, but includes a Sudra woman kept as a concubine. According to the correct interpretation of para. 29, Chap. IX of the Dayabhaga, the term dasyadi sudrdputra includes the son of a dasi or the like; it is not restricted only to the son of a dasi or the dasi (slave woman or wife) of a dasa. According to the correct interpretation of para. 29, Chap. IX of the Dayabhaga, the term dasyadi sudrdputra includes the son of a dasi or the like; it is not restricted only to the son of a dasi or the dasi (slave woman or wife) of a dasa. In the same text, the term aparineeta means, not 'a maiden 'but 'not married (to the Sudra to whom she bears a son).' (c) Under the Bengal school of Hindu law correctly interpreted, an illegitimate son of a Sudra is entitled as a dasiputra to a share of the inheritance, provided that his mother was in the continuous and exclusive keeping of his father and he was not the fruit of an adulterous or an incestuous intercourse. This right is not subject either to the condition that his mother was a slave woman in the technical sense of the term or to the condition that a marriage could have taken place between his father and his mother. The contrary view taken in Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1 and Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. 91, cannot be supported. 36. We have anxiously considered whether we should decline to give effect to what we consider to be the true rule deducible from the text of the Dayabhaga. Mr. Banerji on behalf of the Respondent rightly pressed upon our attention the fact that the decision of Mr. Justice Mitter was pronounced so far back as 1875 and has up to the present time survived the challenge made in 1891. He urged that in such circumstances we should apply the principle of stare decisis which was successfully invoked in the cases of Dino Nath Mohunto v. Chundi Koch (1889) 16 C.L.J. 14, Kedar Nath Ray v. Amrita Lal Mukerjee (1911) 17 C.W.N. 492 and Kedar Nath Banerjee v. Hari Das Ghose ILR (1915) Cal. 1. But we are unable to give effect to this contention for two principal reasons. In the first place, the decison of Mr. Justice Mitter was based, not so much upon the interpretation of an accepted text of doubtful import, but upon the translation of a reading of the text, the very existence whereof has never been traced. 1. But we are unable to give effect to this contention for two principal reasons. In the first place, the decison of Mr. Justice Mitter was based, not so much upon the interpretation of an accepted text of doubtful import, but upon the translation of a reading of the text, the very existence whereof has never been traced. In the second place, the second point which has been argued before us, namely, the true meaning of the term aparineeta translated by Colebrooke as 'unmarried' did not arise in the case before Mr. Justice Mitter, and so far as this Court is concerned, presents for solution a question of first impression. We do not also feel pressed by the consideration which weighed with Lord Cranworth in Young v. Robertson (1862) 4 Mac. H.L. 314, 345, namely, the risk that a new interpretation of the law may 'endanger the security of property and titles'. Cases of the description before us are of great rarity and are found only occasionally, as Shastri Golapchandra Sarkar puts it, 'amongst holders of rajes or big estates, or in the case of a low caste people; herein the extremes meet; the former are above public opinion and the latter are below the same.' We feel convinced that our decision is not likely to affect such a large section of the community that we should give our adherence even to a long-standing error. We hold accordingly that the question referred to the Full Bench must be answered in the affirmative. 37. The result is that this appeal is allowed, the decree made by the District Judge set aside and the case remitted to the Court of first instance for determination of the question whether the tenancy held by Panchanan Das was a heritable under-raiyati holding. The Appellants are entitled to their costs of the hearing before this Bench, the Division Bench and the District Judge. The costs in the trial Court both before and after remand will be in the discretion of that Court. 38. We desire to record our appreciation of the able and exhaustive arguments addressed to us by Mr. Gupta and Mr. Banerji, which exhibited much learning and industry. Fletcher J. 39. I agree with the Chief Justice. Chatterjea J. 40. The costs in the trial Court both before and after remand will be in the discretion of that Court. 38. We desire to record our appreciation of the able and exhaustive arguments addressed to us by Mr. Gupta and Mr. Banerji, which exhibited much learning and industry. Fletcher J. 39. I agree with the Chief Justice. Chatterjea J. 40. The question referred to the Full Bench is as follows: Whether under the Bengal school of Hindu law, the illegitimate son of a Sudra by a continuous and exclusive concubine is an heir to his putative father? 41. It appears that one Panchanan Das had an illegitimate son, the second Defendant Hari Mohan Das, by his mistress Rupa Dasi. Panchanan had a holding and on his death, the landlord brought a suit for recovery of possession of the holding on the ground that Panchanan had only a right of occupancy in it and having left no heir, the holding reverted to the landlord. The parties are not agreed as to whether Panchanan had a right of occupancy or the right of an under-raiyat in the holding. The Courts below did not decide the question, but have held that if he was an occupancy raiyat, his right of occupancy was extinguished upon his death, as he left no legal heir and that the Defendant Hari Mohan as an illegitimate son of Panchanau could not be his heir-at-law. The Courts below relied upon the cases of Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1 and Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. 91, in support of their decision. The correctness of those decisions having been challenged on behalf of the Appellant, the Division Bench has referred the question stated above to the Full Bench. 42. In the case of Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1, referred to above, Mitter J. held (Markby J. concurring with him 011 the point) that according to the doctrines of the Bengal school of Hindu law only a certain description of illegitimate sons of a Sudra by an unmarried Sudra woman is entitled to inherit the father's property in the absence of legitimate issue, viz., the illegitimate sons of a Sudra by a female slave or a female slave of his slave. The passage in the Dayabhaga bearing upon this question (Dayabhaga, Ch. IX, para. The passage in the Dayabhaga bearing upon this question (Dayabhaga, Ch. IX, para. 29) runs as follows: Colebrooke has translated it thus: 'But the son of a Sudra, by a female slave or other unmarried Sudra woman, may share equally with other sons, by consent of the father.' Mitter J. in the above case held that Colebrooke's translation was inaccurate and that the passage, if correctly translated, would run thus: ' But the son of a Sudra by an unmarried female slave, etc., may share equally with other sons, by consent of the father, etc' It is contended before us, that Mitter J. was mistaken in thinking that there was any inaccuracy in Colebrooke's translation and that the latter had correctly rendered the passage. 43. Now Jimutavahana, immediately after the passage cited above, quotes a text of Manu and a text and half of Yajnavalkya bearing on the point. These texts ran as follows: Manu, Ch. IX, 179. 44. 'But a son begotten by a man of the servile class on his female slave or on the female slave of his male slave may take a share of the heritage if permitted by the other sons, thus is the law established.' (Sir William Jones' translation.) Yajnavalkya, Part II (134-135). 45. 'Even a son begotten by a Sudra on a female slave, may take a share by the father's choice. But if the father be dead the brethren should make him partaker of the moiety of a share: and one who has no brothers, may inherit the whole property in default of daughter's son.' 46. The first thing to be considered is what is the meaning of the word (dasi) which has been translated as ; a female slave' in the text cited above. The expression dasi ordinarily means a female servant and is the feminine of dasa. Dasa has various meanings attributed to it in the dictionaries a fisherman, a servant, a slave, a Sudra, or a man of the fourth tribe and a dasi a female servant or slave, the wife of a slave or a Sudra (see Wilson's Dictionary); a female servant or slave, servant maid, whore or harlot (Monier William's Sanskrit Dictionary). Dasa has various meanings attributed to it in the dictionaries a fisherman, a servant, a slave, a Sudra, or a man of the fourth tribe and a dasi a female servant or slave, the wife of a slave or a Sudra (see Wilson's Dictionary); a female servant or slave, servant maid, whore or harlot (Monier William's Sanskrit Dictionary). But although various meanings have been attributed to the terms dasa and dasi in the dictionaries, the question is in what sense they were used by the sages and writers on Hindu law, because it is not suggested by any one that the expression was used in the sense of a 'whore' or a 'harlot' in the above texts. 47. Now seven descriptions of slaves (or rather seven different modes in which slaves can be made) are enumerated in Manu, Ch. VIII, verse 415: 48. 'One made captive under a standard or in battle, one maintained in consideration of service, one born of a female slave in the house, one sold, or given, inherited from ancestors and one enslaved by way of punishment on his inability to pay a large fine.' (Sir William Jones' translation.) 49. Narada mentions 15 descriptions of slaves: 'One born (of a female slave) in the house of her master, one bought, one received (by donation), etc., etc' The word used in the texts is (dasa) and there is no doubt that in these texts of Manu and Narada, it is used to denote slaves, as the texts purport to classify the different kinds of slaves, or the different modes in which slaves may be made. 50. It is next to be seen how the word dasi used in the text of Manu, Ch. IX, 179 and Yajnavalkya, Part. II, 131-135, have been understood by commentators. Of the commentators of Manu, Medhatithi is the oldest and his commentary runs as follows: 51. "This refers to the son of a Sudra on a woman though not married to him or appointed (for raising issue). Thus even the text says 'dasi of a dasa' begotten on her (he is son) not of the dasa but of the master of the dasa. "This refers to the son of a Sudra on a woman though not married to him or appointed (for raising issue). Thus even the text says 'dasi of a dasa' begotten on her (he is son) not of the dasa but of the master of the dasa. Enjoined by the father he takes a share equal to that of the aurasa son (this is) when the partition is made during the father's life-time or if he enjoins 'Be you equal sharer.' But when the father leaves no injunction that case is provided for on another smriti (thus) 'Even though begotten on a dasi by a Sudra (he) becomes taker of a share by choice.'" Sarbajnanarayan. 52. On a dasi (means) on a woman not married to the Sudra; so also issue procreated by the Sudra, who is the master or chief, on a dasi who is such of the dasa of the Sudra; he is also to be given the Sndra's share that is the meaning. Directed by the father, he takes a share, but not that not so directed he takes only maintenance. By this (is indicated that) issue of a Sudra procreated on a Sudra woman, though not married to him, becomes his son if there is any sort of control or dominion over her, but not, even if she is the wife of another this is shown. Therefore it is said on a ddsi or on the dasi of a dasa. 53. On the other hand Kulluk Bhatta says: 54. "A son of a Sudra born of a dasi as defined by 'won under a standard' and other descriptions (already) spoken of or of a dasi related to a dasa enjoined by the father he becomes taker of equal share with the wedded wives' sons (i.e.) takes a similar share. This is settled rule of the shastras." 55 Kulluk Bhatta in saying dhwajahritadyukta-lakshanayam dasyam () [dasi as defined by 'one made captive under a standard' and other descriptions (already) spoken of] evidently refers to the text of Manu, Ch. VIII, v. 415, cited above: 'One made captive under a standard or in battle, one maintained in consideration of service, one born of a female slave in the house, one sold, or given, inherited from ancestors and one enslaved by way of punishment on his inability to pay a large fine.' 56. VIII, v. 415, cited above: 'One made captive under a standard or in battle, one maintained in consideration of service, one born of a female slave in the house, one sold, or given, inherited from ancestors and one enslaved by way of punishment on his inability to pay a large fine.' 56. It is clear therefore that of the commentators of Manu, Kulluk Bhatta expressly states the son of a dasi to be the son of a female slave, while the other two, Medhatithi and Sarbajnanarayan, refer to the son of a dasi as the son of a Sudra woman not married to a Sudra. 57. In Yajnavalkya, Part II, 134-135, the expression dasi is not explained, but in Ch. II, verse 290 (prescribing the penalty for the intercourse with woman), Yajnavalkya says: (abaruddhasu daseesu bhujishyasu tathaibacha) so that he makes a distinction between abaruddhd (excluded from intercourse with other men, i.e., a concubine), a (dasi) and a (a woman who always receives men). Dasi in that sloka must therefore mean something other than a concubine and appears to have been used in the sense of a 'female slave.' Had dasi meant or even included a concubine it would not have been necessary to make any distinction between a dasi and an abaruddha. 58. Vishwarupa in his commentary on Yajnavalkya's text, Book II, 133-134 refers to a text of Vrihaspati 59. Thus says Vrihaspati: 'At option, the brothers should on the death of the father give to the brother born of a Sudra concubine (kept in seclusion) some share as a mark of respect if he serves.' The expression which is translated as 'concubine' above is abarodhaja. 60. Vijnaneshwara in the Mitakshara, Ch. I, Section 12, para. 2, says: 61. 'The son begotten by a Sudra on a female slave, obtains a share by the father's choice, or at his pleasure.' (Colebrooke's translation.) He does not explain what dasi means but it is translated by Colebrooke as 'female slave.' 62. "Balambhatti " and "Subodhini" (Commentaries on the Mitakshara), Apararka in his commentary on the Yajnavalkya and Sulapani all refer to the son of a ddsi, but none of them explains the expression dasi. 63. "Balambhatti " and "Subodhini" (Commentaries on the Mitakshara), Apararka in his commentary on the Yajnavalkya and Sulapani all refer to the son of a ddsi, but none of them explains the expression dasi. 63. In "Vyavahara-Mayukha" of Nilakantha, Section IV, 32, it is stated-.' Yajnavalkya states a distinction with regard to a son begotten on a woman not married to him, even a son begotten by a Sudra on a female slave, may take a share, by the father's choice. But if the father be dead, the brethren should make him partaker of the moiety of a share.' 64. The "Vivada-Chintamani" (of Vachaspati Misra), after referring to the text of Manu and Yajnavalkya says 'A son of a Sudra by an unmarried woman.' He therefore apparently understood dasi as any Sudra woman not married to the Sudra. Kamalakara also speaks of 'A son of a Sudra by a Sudra woman, not married to him.' 65. The "Viramitrodaya" of Mitra Misra, Ch. II, Part II, 22, after quoting the text of Yajnavalkya merely speaks of dasiputra and it does not appear in what sense he used the expression. In the translation by Golapchandra Sarkar it is rendered as a 'female slave' (see p. 130). 66. On the other hand, "Vivada-Ratnakar" (Chandeswara), Ch. XIII, after quoting Manu's text (on a dasi or on the dasi of a dasa) says: ['on a dasi' means on a woman who fulfils the character either of a woman captured in war or who becomes a slave in consideration of maintenance (or of similar description).]' On the dasi of a dasa' means on the female slave of a slave of the above character or on an unmarried girl. The author no doubt in explaining dasi of a dasa explains it as a female slave of a slave of the above description or an 'unmarried girl,' but he gives a very clear meaning to the expression dasi which leaves no room for doubt that he understood that expression to mean a female slave. 67. In "Dattaka Mimansa" of Nanda Pandit, paras. 75 and 76, it is stated: 68. "On the subject of sons, it has been said 'The son self-given and the slave's son (dsaputra).' Of these he describes the latter: 'a female purchased by price, who is enjoyed, is a slave: it is thus declared. 67. In "Dattaka Mimansa" of Nanda Pandit, paras. 75 and 76, it is stated: 68. "On the subject of sons, it has been said 'The son self-given and the slave's son (dsaputra).' Of these he describes the latter: 'a female purchased by price, who is enjoyed, is a slave: it is thus declared. The son who is born on her, is considered as a slave-son.' That female, though of equal class, being purchased by price, who is' enjoyed' cohabited with, is denominated by former sages, a slave. For, a text expresses, 'That woman, who is bought by price, is not considered a wife: she neither (avails) in rites, in honour of Gods, nor in rites in honour of the manes. The sages regard her as a female slave.' One born on her, is a slave's son. The son of a female slave, is 'a slave's son' (dasaputra), the feminine of dasa (slave) being like the masculine in the Vedas." (Sutherland's translation.) 69. The author no doubt was dealing with the question as to who are entitled to perform parvatia shrdadha, bat he states the meaning of dasi as understood by him and at his time. 70. It will appear therefore that commentators on Manu and Yajnavalkya and Sanskrit text-writors, ancient and modern, have used or understood the word dasiputra in different senses, some restricting it to the son of female slave, while others using it as the son of a concubine or a woman not married to the Sudra. 71. I now come to the text of Dayabhaga as translated by Colebrooke. As stated above, Mitter J. in the case of Narain Dhara v. Rakhal Gam (1875) ILR 1 Calc. 1, was of opinion that Colebrooke's translation of the passage as 'But the son of a Sudra, by a female slave or other unmarried Sudra woman, may share equally with other sons by consent of the father' is erroneous and that the correct rendering would be: 'But the son of a Sudra by an unmarried female slave and c., may share equally with other sons, by consent of the father and c.' Mitter J. no doubt has omitted the words 'Sudra woman' in his translation, but I do not think that his translation of the passage is incorrect on that ground. The words ; (dasyadi sudraputra) have been translated by Colebrooke as a female slave or other unmarried Sudra woman. The words ; (dasyadi sudraputra) have been translated by Colebrooke as a female slave or other unmarried Sudra woman. The expression dasi has been translated as 'female slave by both. Then comes the expression adi sudraputra. Colebrooke translates as 'or other unmarried Sudra woman.' The question therefore is what is the significance of the expression adi. Now Jimutavahana in the very next sentence refers to the text of Manu which speaks of dasi and dasi of a dasa . It appears therefore that Jimutavahana instead of repeating the words dasi and the dasi of a dasa says (dasi adi), i.e., dasi, et cetera. Manu's text itself does not say anything about 'concubines' or 'other unmarried woman.' It uses the two expressions dasi and dasi of a dasa and it is more likely that Jimutavahana, while quoting that text, in the very next sentence, should have by the word adi meant to refer to the expression dasi of a dasa than that he should have meant 'or other unmarried Sudra women.' 72. There was a good deal of discussion at the bar as to the meaning of the expression (aparineeta)(unmarried or unwedded; in paragraphs 29 and 28. I do not think, however, that anything turns upon that expression, though the question has been debated at length in the Madras High Court. It may be conceded that it means 'not married to the putative father.' Even then the passage may be translated as follows: 'But the son of a Sudra by a Sudra woman who is a female slave, et cetera, (i.e., a female slave or a female slave of a slave) not wedded to him.' The word (a Sudra woman) is qualified by the words dasi and adi. It seems to me that according to Jimutavahana, in order that there should be a heritable right, (a) the father must be a Sudra, (b) the son must be begotten on a Sudra woman, (c) the Sudra woman must be of dasi class, the expression adi referring to the dasi of a dasa (female slave of a slave) in the text of Manu cited immediately below. Golapchandra Sarkar Shastri in his "Hindu Law," 4th Ed., page 197, gives a literal translation of the passage in the Dayabhaga thus: 'But of a Sudra a-son-by-a-not-married-female-slave-or-the-like-Sudra-woman,' and then referring to Colebrooke's translation, viz., 'by a female slave or other unmarried Sudra woman' says: "So you see that it is difficult to maintain that Colebrooke's version is wrong, excepting this that the word 'unmarried' is ambiguous and may suggest a meaning not intended by the original, namely, that the woman must be a maiden, whereas the real meaning is, that she is not married by the man. The two words dasi and adi may be done, in either of the above two ways, namely, either into 'a female slave or other,' or into 'a female slave or the like.' No Sanskritist would be prepared to say that the first of these versions, which is given by Colebrooke is wrong; the translation given in Narain Dhara's Case ILR (1875) Cal. 1, omits the word 'Sudra woman' altogether". But the learned author does not appear to have considered whether, having regard to the text of Manu immediately following the passage containing both the expressions dasi and the dasi of a dasa, Jimutavahana might not have used the word adi (et cetera), with reference to the expression dasi of a dasa. 73. Golapchandra Sarkar refers to the fact that two commentators of the Dayabhaga, namely, Rambhadra and Srikrishna, explain the term (on a dasi of a dasa) in the text of Manu thus: : 'on a female slave of a slave means, on one not married, but kept by a slave,' and observes: 'Hence if the son begotten by a Sudra on a kept woman of Ins slave be entitled, it follows a fortiori that a son begotten by a man on his own kept woman should be entitled to a share. So these commentators of the Dayabhaga appear to support the view taken by the other High Courts.' But the learned commentators do not explain the first expression dasi as a 'kept woman,' and Golapchandra Sarkar observes that their interpretation of the words dasi of a dasa (dasadasyam) as 'on one not married, but kept by a slave' is 'somewhat unreasonable' and put as 'otherwise the sages might be thought to legalise adultery.' If the word (dasi) means 'kept woman,' it is difficult to see why the two learned commentators did not explain the first expression in Manu's text dasi as 'kept woman,' because in that case it would have been unnecessary to explain the second expression in that text, viz., dasi of a dasa. 74. It is to be observed that in the Dayabhaga, Ch. VI, Section II, para. 23, Jimiitavahana in dealing with effects not liable to partition says "So Manu and Vishnu state other sorts of property exempt from partition. Clothes, vehicles, ornaments, prepared food, water women and furniture for repose or for meals, are declared not liable to distribution'" and in paragraph 24 referring to 'women' says 'other than (dasi) female slaves (). The word dasi in Chapter VI, Section II, para. 21, is certainly used by Jimutavahana in the sense of slaves, because concubines cannot be kept as joint property. Sri-krishna in his commentary says 75. Srikrishna in his "Dayacrama-Sangraha" also appears to have used the word dasi in the sense of a female slave. In Chapter IV, Section II in enumerating properties not liable to partition, the learned author refers to the texts of Manu and Vishnu as indivisible properties which among others mentions (woman) see para. 13) and in para. 32 explains : as ('woman' other than dasi) which is translated by Wynch as 'other than female slaves.' In fact in that passage the words dasi could not have meant a 'concubine' because a concubine would be of a particular person, whereas a dasi would belong to the family. 76. 13) and in para. 32 explains : as ('woman' other than dasi) which is translated by Wynch as 'other than female slaves.' In fact in that passage the words dasi could not have meant a 'concubine' because a concubine would be of a particular person, whereas a dasi would belong to the family. 76. Raghunandan in his "Shuddhitattwa" under the heading "Impurity of sapindas and others" says: " (Says) the Brahmapnrana 'Where of two (brothers) the mother is one, but where in any such case (their) fathers are two, there is perfect similarity between these two in birth and death impurities.' (If) a woman first married to one (and) having a son by him takes the protection of another with even the son, (and) afterwards has a son by him also, on the birth and death of these two sons according as possible the impurity of the father of the second son of three nights. Of such two sons the birth and death impurity with respect to each other is as laid down for the caste of (their) mother. In view of Yajnavalkya's text, viz., 'Even though begotten on a dasi by a Sudra, (he) becomes taker of a share by choice; if the father be dead, the brothers should make him partaker of half share,' usage of this kind is of the Sudra alone (and) not of the other castes. Therefore the above quoted saying of Brahmapurana also relates to them." 77. But although Raghunandan quotes Yajnavalkya's text about the son of a dasi in connection with the case of a woman (having a son) taking the protection of another man and having a son by her, does not say that dasi means a concubine. 78. The learned vakil for the Appellant invited our attention to the subject-matter of Chapter IX of the Dayabhaga as stated in the first paragraph thereof; viz., 'Partition among sons of the same father by different women; some equal to himself by class, others married in the direct order of the tribes is now described,' and pointed out that Jimutavahana, after dealing in paras. 2 to 8 with marriages in the order of the tribes and in paras. 9 and 10 with the evil consequences of the union of a regenerate man with a Sudra woman, lays down in the 11th paragraph that the evils stated in paras. 2 to 8 with marriages in the order of the tribes and in paras. 9 and 10 with the evil consequences of the union of a regenerate man with a Sudra woman, lays down in the 11th paragraph that the evils stated in paras. 9 and 10 do not ensue on the procreation of offspring upon a Sudra woman not married to the Brahmin himself, but that 'a venial offence is committed and a slight penance is requisite as will be shown,' and in paragraph 28 deals with the rights of an illegitimate son of a man of the priestly class by an unmarried Sudra woman. It is contended that the word 'unmarried' should be unwedded ( ) and that the words or other unmarried Sudra woman' in paragraph 29 do not mean a maiden or a widow, but mean 'not wedded to the Sudra putative father.' This may be so, but paragraphs 11 and 28 refer to the illegitimate son of a person of the regenerate class by an unwedded Sudra woman and the contention of the learned pleader has reference to the meaning of the word (unwedded) as to which a good deal of contention has been-raised in the Madras High Court, but which I think has no direct bearing upon the point before us. 79. It is to be observed that the expression in Dayabhaga which is relied upon as meaning 'or other unmarried Sudra woman' is not the expression dasi, but the word adi. If dasi itself meant or included a concubine it would have been wholly unnecessary to say 'or other unmarried Sudra woman.' It is also to be observed that in all the translations of the texts of sages and commentators, the word dasi has invariably been translated as a female slave. 80. It will appear from what is stated above that commentators and Sanskrit text-writers have taken different views of the expression dasi. 81. The age of Jimutavahana is variously estimated. In Rajkumar Sarvadhikari's Tagore Lectures, p. 403, it is stated that Jimutavahana flourished at the beginning of the fifteenth century. See also Jogendra Chunder Ghose's Hindu Law, 3rd Ed., Vol. I. Introduction xvi. In a recent article however in 26 C.L.J. 17n, a writer has discussed the opinions of various persons on the point and come to the conclusion that Jimutavahana flourished during the latter part of the 11th century. See also Jogendra Chunder Ghose's Hindu Law, 3rd Ed., Vol. I. Introduction xvi. In a recent article however in 26 C.L.J. 17n, a writer has discussed the opinions of various persons on the point and come to the conclusion that Jimutavahana flourished during the latter part of the 11th century. Now Kulluk Bhatta is supposed to have flourished about the 15th century (see Jogendra Chuuder Ghose's Hindu Law, Vol. I, Introduction xvi). He was a Bengal Brahmin, but he nowhere refers to Jimutavaliana. If the view taken by Rajkumar Sarvadhikari about the age of jimutavahana viz., that he flourished at the beginning of the 15th century, is correct, then it is probable that he understood the meaning of the word dasi in the sense interpreted by Kulluk Bhatta, as being the interpretation then current in Bengal. If, on the other hand, Jimutavaliana flourished in the 11th century as the writer in 26 C.L.J. 17n endeavours to establish, Kalluk's interpretation cannot be relied upon to explain the sense in which Jimutavaliana used the words in the Dayabhaga. 82. Our attention was drawn to the fact that Jimutavaliana does not make any provision for the maintenance of illegitimate sons of Sudras, though there is such a provision for illegitimate sons of persons belonging to the other three castes and this fact is relied upon as showing that Jimutavaliana must have used the expression dasyadi sudraputra as including sons of concubine and did not provide for maintenance in their case as they are entitled to a share of the estate. 83. There is no express text in the Dayabhaga providing for the maintenance of illegitimate sons of Sudras and that no doubt is a fact in favour of the Appellant's contention. But Dayabhaga is not an exhaustive code and under the general principles of Hindu law, illegitimate sons are entitled to maintenance. 84. It was expressly held in the case of Muttusamy Jagavira Yettapa Naikar v. Venkatasubha Yettia (1856) 2 Mad. H.C.R. 293, which was affirmed on appeal by the Judicial Committee (1868) 12 Moo I.A. 203, that the illegitimate son of a Such a by a concubine, not being a female slave, is entitled to maintenance according to Hindu law. 84. It was expressly held in the case of Muttusamy Jagavira Yettapa Naikar v. Venkatasubha Yettia (1856) 2 Mad. H.C.R. 293, which was affirmed on appeal by the Judicial Committee (1868) 12 Moo I.A. 203, that the illegitimate son of a Such a by a concubine, not being a female slave, is entitled to maintenance according to Hindu law. The Judicial Committee held that as the son was recognized by his natural father it was not essential to his maintenance that he should have been born in the house of his father, or of a concubine possessing a peculiar status therein. Again in the case of Inderan Valungypuly Taver v. Ramaswamy Pandia Talaver (1869) 3 B.L.R. P.C. 1 : 13 Moo. I.A. 141, their Lordships observed that in the Sudra caste, illegitimate children may inherit and have a right to maintenance. See also Mayne's Hindu Law, 8th Ed., p. 619, where it is stated that 'illegitimate sons, when not entitled as heirs, are to be maintained even though the connection from which they sprung may have been adulterous.' The argument, therefore, based upon the absence of an express text in the Dayabhaga providing for maintenance of illegitimate sons of Sudras, is not conclusive. I now come to the decided cases on the point. But before dealing with cases under the Dayabhaga, I will deal with the cases decided by the Judicial Committee and the other High Courts. The first case which came up before the Judicial Committee, was that of Chuoturya Run Murdun Syn v. Purhulad Syn (1857) 7 Moo. I.A. 18. The question for decision in that case related to the right of inheritance of an illegitimate son of a Sudra woman by a Khetri, one of the three regenerate castes, to the estate of his putative father and it was decided that he was not entitled to succeed, but was only entitled to maintenance. In the next case Inderan Valungypuly Taver v. Ramaswamy Pandia Talarer (1869) 3 B.L.R.P.C.I. : 13 Mco. I.A. 141, a case from Madras, the right of illegitimate sons of Sudras to inherit was stated in general terms, but it was found in that case that there was a marriage between the mother and the putative father. It was necessary therefore to consider the distinction between the illegitimate son of a Sudra by a female slave and illegitimate sons generally. It was necessary therefore to consider the distinction between the illegitimate son of a Sudra by a female slave and illegitimate sons generally. Nor was it necessary to consider the question in the case of Roshan Singh v. Balwant Singh (1899) ILR 22 All. 191 : L.R. 27 IndAp 51, where their Lordships had to consider the question of the right, of the illegitimate son of one of the three regenerate classes by a Sudra woman. The only case in which the Judicial Committee had to consider the question of the right of the illegitimate son of a Sudra was that of Jogendro Bhupati Hurrochundra Maliapatra v. Nityanand Man Sing ILR (1890) Cal. 151 : L.R. 17 IndAp 128. It was a case from the Bengal High Court, but the family was governed by the Mitakshara. It was held that under the Mitakshara, among Sudras, where a father left a son by a wedded wife and an illegitimate son, the ordinary rule of survivorship incidental to a family coparcener would apply; and the illegitimate son, having survived the legitimate, was held entitled by survivorship to succeed to the family estate, which was impartible and appertained to a raj, on the death of his brother without male issue. The case of Sadu v. Baisa ILR (1878) Bom. 37, was referred to and approved by their Lordships as correctly laying down the law as stated in the Mitakshara. 85. So far as the decisions of the High Courts other than Bengal, are concerned, there is no doubt that they are in favour of the view that the son of a Sudra by a dasi means or includes an illegitimate son by a continuous concubine. In the Bombay High Court the question was discussed at length by Westropp C.J. in Rahi v. Govinda Valad Teja ILR (1875) Bom. 97. The case of Rahi v. Govinda Valad Teja ILR (1875) Bom. 97, was followed in Sadu v. Baiza ILR (1878) Bom. 37. On appeal Westropp C.J. observed: 'It has already been so fully stated in Rahi v. Govinda Valad Teja ILR (1875) Bom. 97. The case of Rahi v. Govinda Valad Teja ILR (1875) Bom. 97, was followed in Sadu v. Baiza ILR (1878) Bom. 37. On appeal Westropp C.J. observed: 'It has already been so fully stated in Rahi v. Govinda Valad Teja ILR (1875) Bom. 97, that, in this Presidency, amongst Sudras the illegitimate offspring of a kept woman, or continuous concubine, are on the same level as to inheritance as the dasiputra, or son of a female slave by a Sudra, that we think it unnecessary to dwell any longer on that point.' As stated above, the decision in that case was referred to by the Judicial Committee in Jogendro Bhupati Hurrochundra Mahapatra v. Nityanand Man Sing ILR (1890) Cal. 151 : L.R. 17 IndAp 128, as laying down the law under the Mitakshara correctly. The same view was taken in the case of Gangabai Peerappa v. Bandn ILR (1915) Bom. 369. 86. In the Madras High Court, Turner C.J. (and Muthusami Ayyar J.) considered the question whether a concubine is a dasi within the meaning of Mitakshara in the case of Krishnayyan v. Muttusami ILR (1883) Mad. 407. The learned Judges referred to the earlier cases in Madras, Bombay and Allahabad, dissented from the view taken by the Calcutta High Court in Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1 and observed as follows: 'Although the primary meaning of the word dasi was a slave, it included also a concubine or a woman of the servile class in a secondary sense and there is reason to hold upon the texts that an unmarried Sudra woman kept as a continuous concubine came within its scope. The right of an illegitimate son among Sudras to succession where the Sudra woman is unmarried and is in the position of a continuous concubine is within the reason of the rule, viz., 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 the wife though not legally married. For these reasons and upon the authorities already cited, we are not prepared to depart from the course of decisions in this Presidency.' See also Annayyan v. Chinnan ILR (1909) Mad. For these reasons and upon the authorities already cited, we are not prepared to depart from the course of decisions in this Presidency.' See also Annayyan v. Chinnan ILR (1909) Mad. 366, where it was observed by White C.J. and Benson J.: "No doubt the rule is well established in Madras that the illegitimate son of a Sudra, by 'an unmarried Sudra woman' is entitled to a share of the family property if the concubinage was continuous and if the connection was not incestuous or in violation of or forbidden by law.' See also the decision of the Full Bench in Soundararajan v. Arunachalam Chetty ILR (1915) Mad. 136 and Subramania Ayyar v. Rathnavelu Chetty ILR (1917) Mad. 44. 87. In the Allahabad High Court it has been held that the illegitimate offspring of a kept woman or continuous concubine amongst Sudras are on the same level as to inheritance as the issue of a female slave by a Sudra. See Sarasuti v. Mannu ILR (1879) All. 134, Hargobind Kuari v. Dharam Singh ILR (1884) All. 329, Ram Kali v. Jamma ILR (1908) All. 508. Coming to the Bengal cases, the earliest reported case to which we were referred, on behalf of the Appellant, is that of Doe Dem. Juggomolum Mullick v. Saumcoomar Bebee (1815) 2 MD. 43 : I.D. 3 O.S. 797. The question in the case turned mainly upon the title of one Puttychurn, the son of one Muteychurn, by a slave girl. Although the parties were Sikhs, it was held by the Court that the right of inheritance to land must depend upon the law of the province and the Sikhs being a sect of Hindus must be governed by the Hindu law. The pandits were called upon to answer the following questions: First question. By the Hindu law, can a son by a slave girl inherit the land of the father? Answer. The son of Sudra by a slave girl would inherit, but not the son of a Khythy or Brahmin or Bhyee (i.e., a Vaisya) by a slave girl. Second question. If a Sudra have a legitimate and an illegitimate son, will the latter be entitled to share any and what, portion of the inheritance? Answer. The illegitimate son will take only half the share of the legitimate son; i.e., the legitimate son would take two-thirds and the illegitimate son one-third. 88. Second question. If a Sudra have a legitimate and an illegitimate son, will the latter be entitled to share any and what, portion of the inheritance? Answer. The illegitimate son will take only half the share of the legitimate son; i.e., the legitimate son would take two-thirds and the illegitimate son one-third. 88. The Appellant relied upon the answer to the second question which referred to the illegitimate son of a Sudra generally and not merely by a slave girl. But the illegitimate son in that case was by a slave girl: the first question distinctly raised the question of the right of the son by a slave girl and the second question with regard to the share of an illegitimate son of a Sudra must be taken to have reference to the son by a slave girl, who is also an illegitimate son. The question of the right of an illegitimate son of a Sudra by a woman other than a slave girl, would be wholly irrelevant and the general form of the second question must, as stated above, be taken with the first question. 1 am of opinion therefore that the case does not in any way help the Appellant's contention. 89. The next case is that of Pershad Singh v. Muhesree (1821) 3 Mac. Sel. Rep. 176 : I.D. 6 O.S. 809. The Plaintiff in that case was the illegitimate son of Raja Mahakum Singh, a Rajput, by a woman of the Dhanook caste. It has therefore no bearing upon the present case. 90. In Macnaghten's Precedents of Hindu Law, Vol. II, page 256 (case No. 48 from the district of Dacca and decided in 1816), the question put to the pandits was as follows: A man dying and leaving some landed property, a son begotten by him on a concubine got possession of that property and died leaving no children. He was succeeded by a widow. Was she (the widow of the latter deceased person) competent to make a gift, sale, or other alienation of the property, while the daughter's son, or another concubine of the original proprietor, exists? If she should have made either of such dispositions, is it good and binding, or otherwise? The answer given was: It is not particularly mentioned to what class the Original proprietor belonged. If she should have made either of such dispositions, is it good and binding, or otherwise? The answer given was: It is not particularly mentioned to what class the Original proprietor belonged. If he was a Sudra, that is, of the fourth class and the daughter whose son survives, was begotten by him on a concubine, the widow of the son of his other concubine may enjoy the whole estate, whether consisting of real or personal property, during her life-time and she may also give or sell a small portion of it for the completion of her husband's funeral rites or for his spiritual benefit, as well as for her own maintenance; but these circumstances excepted, she is incompetent to dispose of the property inherited from her husband and the gift of such property made by her must be considered void. 91. In giving the opinion, reference was made to Yajnavalkya: "Even a son begotten by a Sudra on a female slave may take a share by the choice of the father; but if the father be dead, the brethren should make him partaker of half a share. By the term 'a son begotten by a Sudra on a female slave,' must be understood daughters, daughter' sons and other heirs. This opinion is conformable to the Dayabhaga, ' Dayatattwa,' 'Vivida-Chintamani', Mitakshara, Manu and other legal authorities." 92. The opinion can be used in favour of the Appellant as showing that the text of Yajnavalkya with respect to a female slave was understood by the pandits in that case to include the case of a concubine and as being conformable to the Dayabhaga and "Dayatattwa". It is not clear, however, whether the case was governed by the Mitakshara or Dayabhaga. 93. Another case in the same volume at page 119 (case No. 12 from Bhagalpnr decided in 1821; related to the illegitimate son of a person belonging to one of the regenerate classes, a Rajput and therefore has no application to the case of an illegitimate son of a Sudra. 94. On the other hand in the case of Bukhtear Singh v. Buhadoor Singh (1816) Macnaghten's Principles and Precedents of Hindu Law; Vol. II, p. 14. 94. On the other hand in the case of Bukhtear Singh v. Buhadoor Singh (1816) Macnaghten's Principles and Precedents of Hindu Law; Vol. II, p. 14. Case No. XI, decided in 1816, the eldest brother of a Sudra family, which consisted of four brothers and a sister, had one son by a female slave; and the sister, during her husband's absence, had a son by a stranger. The other three brothers having died leaving no heir, a question arose whether the son by the female slave or the sister's son would succeed to the estate left by the three brothers. The answer was that 'in default of all heirs down to the daughter's son, the family being of the Sudra tribe, the entire property will devolve on the son begotten by the elder brother on a female slave. The son of the sister has no title to the inheritance.' The text of Yajnavalkya cited in the Mitakshara was quoted. In the footnote, Macnaghten clearly gave his own opinion as follows: According to the Hindu law, the illegitimate sou of a Sudra man by a female slave, or a female slave of his slave, may inherit, but not the illegitimate child of any of the three superior classes. It appears in this case that the parties are Sudras: but it is not distinctly stated whether the eldest brother died previously or subsequently to the death of any or all of his other three brothers, or whether the woman on whom the Plaintiff was begotten by him was one of the fifteen descriptions of slaves, or was merely a concubine. If the woman were his slave and the other three brothers died before the eldest, then the son begotten by him on the female slave would be entitled to the entire property. On the other hand if one or more of the brothers died subsequently to the death of the eldest brother, the illegitimate son would be entitled to claim only such portion as belonged to his putative father, there being no law admitting the son of a Sudra by a female slave to share the estate of collaterals. On the other hand if one or more of the brothers died subsequently to the death of the eldest brother, the illegitimate son would be entitled to claim only such portion as belonged to his putative father, there being no law admitting the son of a Sudra by a female slave to share the estate of collaterals. If the woman were not his female slave, the son begotten on her by him would have no right to the inheritance, but only a claim to maintenance; and under no circumstances could the son of the sister begotten as above have any right to succeed to his mother's brothers.' (See Mac-naghten's Precedents of Hindu Law, Volume II, pages 15 and 16, Footnote.) 95. That decision was passed in the year 1816 and no case has been brought to our notice since 1816 until we come to the case of Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1, where Mitter and Markby JJ., held that Colebrooke's translation of the passage in Dayabhaga was incorrect and came to the conclusion that it is only a particular class of illegitimate children, viz., by a female slave, who can succeed. 96. The case was followed by Tottenham and Ghose JJ., in Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. 91, where the decided cases on the point were discussed. The learned Judges observed that the reason why in the days when Yajnavalkya, Manu and other sages gave their laws, the son of a Sudra by a female slave was declared entitled to participate in the property of the father was this: "When slavery existed in India, a slave occupied the position of a member of the family: he, like the wife and son, was incapable of owning any property; and whatever he earned belonged to the master (see Tagore Law Lectures by Babu Krishna Komal Bhuttacharjee and the slokas from Manu, quoted therein, pp. 3-5). But the like reason would not exist in the case of a concubine, who is not a slave-girl: her position is wholly different indeed. There were, we may here observe, in ancient times 15 descriptions of slaves. 3-5). But the like reason would not exist in the case of a concubine, who is not a slave-girl: her position is wholly different indeed. There were, we may here observe, in ancient times 15 descriptions of slaves. We mean 15 different ways in which a person might become a slave to another (see Shyama Charan Sarkar's 'Vyavastha Darpana', new edition, p. 27 and Macnaghten's Hindu Law, Volume II, p. 273) and it would be necessary to show when a right of succession is claimed by an illegitimate son, that he was born of a female slave of one or other of those descriptions." The same view was taken in Ram Saran Garain v. Tek Chand Garain ILR (1900) Cal. 194, 201-4, by Ghose and Harington JJ., even in a case governed by the Mitakshara. 97. The latest case in our Court is that of Chatturbhuj Patnaik v. Krishna Chandra Patnaik (1912) 17 C.W.N. 442, but that was a case governed by the Mitakshara and it was unnecessary to consider the law on the point as understood under the Dayabhaga. 98. Turning to the text-books on Hindu law, we find that Dr. Jolly in his "Hindu Law on Partition, Inheritance and Adoption" (Tagore Law Lectures, 1883), pages 186-187, refers to the controversies in modern works on the various constructions of the two passages in Mann and Yajnavalkya relating to the son of a dasi and quotes the opinion of Medhatithi and the remark of Kamalakar in the "Vivada-Tandava." Referring to the Bengal decision where it was held that dasi means a female slave in the strictest sense of that term, he observes: ' It is quite certaint however, that the commentators and shastris have persistently explained the term dasi as including any unmarried female of the Sudra caste.' The opinion of Dr. Jolly is certainly entitled to the highest respect, but it does not appear that all the commentators and shastris have persistently explained the term dasi as including any unmarried female of the Sudra caste. Some of them have no doubt done so, but others of equally high authority explained it in the strictest sense of the term. 99. Dr. Gour in his recent work "Hindu Code" at page 935, referring to the opinion of Dr. Some of them have no doubt done so, but others of equally high authority explained it in the strictest sense of the term. 99. Dr. Gour in his recent work "Hindu Code" at page 935, referring to the opinion of Dr. Jolly, says: "It is submitted that though Sudras were called dasyas, the contextual meaning in the following texts leaves no doubt that the term was primarily applied to the 'son by a female slave'," and gives reference to a number of authorities on the point. Mayne in his "Hindu Law", 8th Edition, pages 768-770, after referring to Jimutavahana's text and the Bengal decisions on the point says: 'Now, there seems to be no ground for supposing that there is any difference on this point between the law of Bengal and the other provinces, as all the authorities rely upon the same texts. As slavery was abolished by Act V of 1843, it follows, if the above construction is sound, that the inheritance of the illegitimate son of a Sudra, bora after that date, has now become impossible.' He then refers to the various authorities and decided cases on the point. Golapchandra Sarkar Shastri in his book on Uindu Law, 4th Edition, pages 197-198, discusses the question and comes to the conclusion that Colebrooke's translation is not wrong and that a son begotten by a Sudra on a kept woman, is entitled to succeed. I have already dealt with his opinion and I need not repeat it here. Golapchandra Sarkar Shastri in his book on Uindu Law, 4th Edition, pages 197-198, discusses the question and comes to the conclusion that Colebrooke's translation is not wrong and that a son begotten by a Sudra on a kept woman, is entitled to succeed. I have already dealt with his opinion and I need not repeat it here. On the other hand Shyama Charan Sarkar in his "Vyavastlia Darpana," 3rd Edition, pages 23-25, citing the text of Mann, gives Kulluk Bhatta's commentary ' the son of a Sudra by a female made captive or slave under a standard or the like, or by a female slave belonging to his male slave, etc., etc' He then refers to the explanation of 'on the female slave of his slave' given by Chudamani as 'on the wife of his male slave' and Srikrishna's explanation of the same as 'on the unespoused concubine of his male slave' and Colebrooke's Digest, Volume III, pages 143-144 and in paragraph 21 referring to the vyavctstha' the son begotten by a Sudra on a kept woman with whom casual connection is not incestuous, is also entitled to inherit in the above manner; but such a son of twice-born man is entitled to inheritance', observes: 'The above must be on the woman's being considered to be a slave either of the description I am thine' or 'as one maintained in consideration of service (bhakta),' and cites the texts of Mann and Narada with regard to the different descriptions of slaves. 100. 100. In the "Vyavastha Darpana", 2nd Edition (1867), at pages 914-915, the learned author dealing with the heritable rights of a Sudra dattaka as stated in the "Dattaka-Chandrika" says: "On the strength of the texts cited, the author of the 'Dattaka-Chandrika' recognizes the heritable right of the son of a female slave and then by parity of reasoning he holds that while the father lives a Sudra, dattaka shares equally with the legitimately begotten son; and a moiety, where the father may be dead.' This, however, cannot here be followed in practice, the marriage with a damsel unequal in class being prohibited in this (Kali) age and consequently the son born of such a woman not being entitled to inherit and the heritable right of the son of a female slave being repugnant to the immemorial custom of this country, such right of a Sudra dattaka, founded as it is on the ground of right of the son of a female slave, cannot be deemed valid. As to the texts of Manu and Yajnavalkya cited as authorities for the heritable right of the son of a female slave, they are applicable to schools other than that of Bengal, where they are repugnant to the immemorial custom, which, according to the text 'the ordinances of sadhus are of equal authority with the vedas' and that of Manu 'Immemorial custom is the transcendant law' and wherever it obtains, supersedes the general maxims of the law. Consequently the praatice of the good Sudras of this country being like that of the regenerate classes, the right of a Sudra dattaka must be held to be the same as that of one of twice-born class." 101. Sir Gooroodass Banerjee, in his "Hindu Law on Marriage and Stridhan" (Tagore Lectures for 1878), 3rd Edition, page 171, says: "The meaning of the term female slave (dasi) in the above rule, has been the subject of much contention in our Courts and the authorities are not unanimous on the subject. They seem, however, to favour the view that a ' female slave' here means not necessarily a slave bought or taken captive, but includes a continuous concubine, provided that the intercourse is neither adulterous nor incestuous. The case of Rahi v. Govinda Valad Teja ILR (1875) Bom. They seem, however, to favour the view that a ' female slave' here means not necessarily a slave bought or taken captive, but includes a continuous concubine, provided that the intercourse is neither adulterous nor incestuous. The case of Rahi v. Govinda Valad Teja ILR (1875) Bom. 97, may be referred to for a full exposition of the meaning of the term dasiputra and of the law relating to the rights of an illegitimate son." Evidently he refers to the law in the other provinces, as the references to the Madras and Bombay decisions only would go to show. The learned author says at page 170: "In the Hindu law, the illegitimate son of a regenerate man is always excluded from inheritance ; but in the case of a Sudra, the illegitimate son of a particular description, namely, the son born of an unmarried female slave or slave's female slave, inherits his father's property" \and at page 171: "It has been sometimes maintained that the authorities would support the broad proposition that a Sudra's illegitimate son of every description would inherit to his father; and a slight inaccuracy which occurs in Colebrooke's translation of the Dayabhaga (Chap. IX, 29) favours such a view. But Mr. Justice Romesh Chunder Mitter, in his elaborate judgment in Narain Dhara v. Hakhal Gain ILR (1875) Cal. 1, has clearly pointed out this error and deduced the correct rule given above, after a full examination of the authorities on the subject." 102. Rajkumar Sarvadhikari in his Tagore Lectures, 1880 (1882), discusses the question of the heritable right of illegitimate sons of Sudras at pages 936 to 948. At page 940 he observes: 'We thus see that the essential condition in these persons is that they must be slaves. A dasi then is not a common woman kept in concubinage, she must' be a slave'; and at page 941 observes: "If you examine the passages in the Mitakshara in which the terms dasi and abaruddha are used, you will find that a sharp distinction was observed between these two classes of females. A dasi, whose son was entitled to inheritance, must have been enjoyed, but it does not surely follow from this that females, who are kept as concubines, should be regarded as dasi. A dasi, whose son was entitled to inheritance, must have been enjoyed, but it does not surely follow from this that females, who are kept as concubines, should be regarded as dasi. The author of ' Madana Parijata,' the great commentator of the Mitakshara, in commenting on the text referred to by the Mitakshara in 1.4, 22, says that ' women are of two descriptions, dasis or female slaves and abaruddhas or concubines.' Had the term dasi included concubines, it would not have been necessary to distinguish the one class of the females from the other. But as we find that a clear-distinction was observed between them, we are bound to take notice of the fact and maintain that, according to the doctrines of the Hindu law, 'a certain description only of illegitimate sons of a Sudra is entitled to inherit the father's property in the absence of legitimate issue, viz., the illegitimate sons of a Sudra by a female slave or a female slave of his slave." In the "Commentaries on Hindu Law "by Jogendra Smarta-Siromani (1885) at page 408 it is stated:' Though the commentary of Srikrishna seems at first sight to favour the view that the son of a concubine is entitled to inherit among Sudras, yet the interpretation put upon the text of the Dayabhaga and of the Samhitasby the Bengal High Court is more acceptable on the ground that it would make the usage and practice prevailing in the country consistent with the law. In Bengal at least, even the lower classes of of Sudras seldom, if ever, recognize an illegitimate son as capable of inheriting. Such being the case, the view of the law taken by Mr. Justice R.C. Mitter in the case of Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1, seems more acceptable than that apparently suggested by the commentators of Dayabhaga. The existence of an approved custom justifies the postulating of a text of the Vedas; and a forti-ori it justifies only that interpretation of the texts which makes the law consistent with usage and good conscience.' 103. Jogendra Chuiider Ghose in his "Principles of Hindu Law," 3rd Edition, Vol. 1, page 767, referring to Mr. Justice Mitter's decision in the case of Narain Dhara ILR (1875) Cal. Jogendra Chuiider Ghose in his "Principles of Hindu Law," 3rd Edition, Vol. 1, page 767, referring to Mr. Justice Mitter's decision in the case of Narain Dhara ILR (1875) Cal. 1 and to Golapchandra Sarkar's opinion observes: "The literal translation of the passage is 'Again the son of a Sudra by an unmarried female slave and the like Sudra woman and c.' The words 'and the like' are explained by what follows. They mean the slave girl and the wife of a slave. has been translated as 'upon a female slave or the female slave of a slave.' But a slave can have no slaves. The wife of a Sudra is also called a dasi. Yajnavalkya mentions only the slave girl. The passage refers to the law that the wife of a slave was also the property of the master. The whole passage refers to household slaves and not to concubines as Justice Mitter correctly held." To sum up, the matter stands thus. In the texta of Manu and Yajnavalkya the expression used is dasi. The commentators and Sanskrit text-book writers, however, have differed in their interpretation of the expression. Some of them, such as Medhatithi, Sarbaj-nanarayan (the commentators on Manu), Vishwarupa (commentator on Yajnavalkya) and Sanskrit text-book writers, such as Nilakantha, Vachaspati Misra and Kamalakar have used or understood it in the sense of concubine.' On the other hand Kulluk Bhatta (a commentator on Manu) and the authors of "Vivada-Ratnakara" and "Dattaka Mimansa" have interpreted or used it in the restricted sense of a female slave. Among the writers of modern text-books on Hindu law also, opinions are divided. Dr. Jolly, Golapchandra Sarkar and Mayne are in favour of the view that the son of a Sudra by a kept woman is entitled to inherit, while Macnaghten, Rajkumar Sarvadhikari, Gooroodass Banerjee, Shyama Charan Sarkar, Jogendra Smarta-Shiromani, Jogendra Chunder Ghose and Dr. Gour are of opinion that only a particular description of illegitimate sons, viz., by a female slave, can inherit. 104. So far as the decided cases go, the earlier Privy Council decisions do not directly decide the question whether the illegitimate son of a Sudra by a concubine can inherit. Gour are of opinion that only a particular description of illegitimate sons, viz., by a female slave, can inherit. 104. So far as the decided cases go, the earlier Privy Council decisions do not directly decide the question whether the illegitimate son of a Sudra by a concubine can inherit. The Bombay, Madras and Allahabad High Courts, however, are of opinion that a son of that description can inherit and although in some of the Bombay and Madras decisions, it is stated that in those Presidencies the son of a Sudra by a concubine is treated as being on the same level as a son of a female slave, it must be held, having regard to the fact that the Judicial Committee accepted the statement of the law in Sadu v. Baiza ILR (1878) Bom. 37, as correctly laying down the law on the point under the Mitakshara, that in cases governed by the Mitakshara it is settled law that the son of a Sadra by a kept woman is entitled to succeed. 105. In Bengal, however, the only case in favour of the heritable right of an illegitimate son of a Sudra, not being the son of a female slave, is that cited in Macnaghten's "Precedents of Hindu Law", Vol. II, page 256. That case was decided in 1816. Since then, for more than a century, there has not been a single case in which the illegitimate son of a Sudra has been held entitled to inherit. Such a right was asserted in 1875 in the case of Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1. It is pointed out that the Courts below in that case gave a decree to the Plaintiff, but the Court below relied not upon any Bengal authority but upon cases decided under the Mitakshara and when the case came up to this Court, Romesh Chunder Mitter J. at once negatived such right. The case was followed by Tottenham and Ghose JJ., in 1871 in the case of Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. 91 and again in the year 1900 in the case of Ram Saran Garain v. Tek Chand Garain ILR (1990) Cal. 194. 106. The case was followed by Tottenham and Ghose JJ., in 1871 in the case of Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. 91 and again in the year 1900 in the case of Ram Saran Garain v. Tek Chand Garain ILR (1990) Cal. 194. 106. Assuming that Colebrooke's translation of the passage in question in the Dayabhaga was right and Mitter J. was wrong, there is no doubt that at least for a century the law in Bengal has been understood in the way in which Mitter J. interpreted it. 107. It is not that Mitter J. was the first to entertain that opinion in Bengal. In 1829, Sir William Macnaghten, whose opinion is held in high respect in Bengal, clearly stated that the illegitimate son of a Sudra in order to inherit must be by a female slave and in 1867, i.e., 8 years before Narain Dhara's Case ILR (1875) Cal. 1, came up to the High Court, Shyama Charan Sarkar in his "Vyavastha Darpana" stated that the law declaring the right of illegitimate son of a Sudra must be taken to be the law in provinces other than Bengal where they are repugnant to immemorial custom. It appears that with the exception of Golapchandra Sarkar, all the authorities in Bengal, such as Romesh Chunder Mitter J., Chunder Madhub Ghose J. (among Judges), Sir Gooroodass Banerjee, Rajkumar Sarvadhikari, Jogendra Smarta-Shiromani, Shyama Charan Sarkar and Jogendra Chunder Ghose (among writers of textbooks on Hindu law) have all understood the law in the same way; and some of them have expressly stated that it is in consonance with the usage and sentiments of the people of Bengal. It may be said that if, under the Dayabhaga, the illegitimate son of a Sudra by a concubine is entitled to inherit, we should declare it to be the law, even if it has not been recognized by the Court by reason of some erroneous translation of a text in the Dayabhaga, or for any other reason and that we should not be influenced by any consideration such as the sentiments of the people. But there are many things laid down in the Dayabhaga, which are either prohibited in the present age, or have long become obsolete. But there are many things laid down in the Dayabhaga, which are either prohibited in the present age, or have long become obsolete. For instance, the Dayabhaga, Chapter IV, Section 3, refers to eight different forms of marriage and the very chapter (Chapter IX) which deals with the heritable rights of a Sudra by a dasi, not only refers to marriage with other castes in the direct order (anuloma marriages), but lays down the rules for partition among sons of the same father by women belonging to different castes. We would not be justified in declaring that they are valid because we find Jimutavahana stating or discussing the law with regard to them. It is true, the right of an illegitimate son of a Sudra by a concubine is recognized in all the other provinces of India, but that by itself is no ground for reviving it in Bengal. For instance, the adoption of kritrimaputra (kurtaputra) is prevalent in Bihar an adjoining province: there is nothing opposed to the sentiments of the people in such adoptions, but it is not recognized now in Bengal. The Judicial Committee in the case of Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 Moo. I.A. 397, 436, observed that 'the duty of an European Judge who is under the obligation to administer Hindu law, is not so much to enquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal and there has been sanctioned by usage. For under the Hindu system of law clear proof of usage will outweigh the written text of the law'. 108. In the present case no doubt the question arises only between the zemindar and the illegitimate son of the deceased raiyat, but once it is held that the illegitimate son of a Sudra by a concubine has a heritable right, the question would arise between such son and the legitimate sons or other heirs. 108. In the present case no doubt the question arises only between the zemindar and the illegitimate son of the deceased raiyat, but once it is held that the illegitimate son of a Sudra by a concubine has a heritable right, the question would arise between such son and the legitimate sons or other heirs. The very texts which declare the heritable right of the son of a Sudra by a dasi, define the share which such son is entitled to get where there are legitimate sons and it is to be observed that in the absence of heirs down to daughter's sons, the son of a dasi would under the texts get the whole estate. She would thus exclude even the brother of the deceased, not to speak of other agnates. Many respectable castes in Bengal come within the category of Sudras and the heritable right of an illegitimate son of a Sudra by a kept woman, being declared by the Court, would lead to disturbance of well-established titles. Having regard to the fact that, for more than a century, the right of an illegitimate son of a Sudra by a kept woman has not been recognized in Bengal and having regard to the opinions of writers of Hindu law in Bengal, I think we should not revive such a right which is opposed to the usage and sentiments of the people of Bengal, even if it is deducible from the texts of Jimutavahana or any other authority. 109. For the reasons stated above, I would respectfully differ from the opinion of the majority and answer the question referred to the Full Bench, in the negative. Richardson, J. 110. I agree with the Chief Justice. Teunon, J. 111. I agree with the Chief Justice.