Judgement Consolidated Appeals (Nos. 38 and 39 of 1940) from a decree of the High Court (February 10, 1939), which varied a decree of the Court of the Subordinate Judge of Nellore (March 18, 1936). The following facts are taken from the judgment of the Judicial Committee. The questions in this case arose within a Sudra family of which the defendant (appellant), the Raja of Venkatagiri, was the head. He was the present holder of the impartible estate which went by that name, having succeeded to his father in 1937 while the present suit was pending in appeal before the High Court of Madras. The estate was admittedly joint family property though impartible. The two plaintiffs (respondents) were the illegitimate sons of one Venugopal, younger brother of Rajagopala, the defendants grandfather, who was a previous holder of the impartible estate. The claim of the plaintiffs, brought by a suit of July 4, 1932, was threefold. First, they said that by the terms of a deed dated April 8, 1889, they were entitled between them to an allowance of Rs. 1000 per month payable by the defendant as holder of the impartible estate. Secondly, they claimed that by custom maintenance was payable to them as junior members of the family. Thirdly, they said that apart from the deed, and apart from any custom, they had the right to be paid maintenance out of the impartible estate as a matter of Hindu law. The Subordinate Judge found in their favour as regards their claim under the deed, but rejected their other grounds of claim. On appeal the High Court (Leach C.J. and Krishnaswami Ayyangar J.) held against them on the deed and on the custom, but decided that they had a good claim by the Hindu law to maintenance out of the impartible estate, and fixed the amount at Rs. 250 per month for each plaintiff. The relevant terms of the deed of 1889 appear from the judgment of the Judicial Committee. 1941. July 14, 15, 16. Sir Herbert Cunliffe K.C. and P. V. Subba Row for the appellant. There are concurrent findings on two questions of fact—that there is no such custom as is alleged by the respondents entitling illegitimate sons of a junior member of the family to maintenance out of the impartible estate; and that the respondents were amply provided for by their father. Sir Herbert Cunliffe K.C. and P. V. Subba Row for the appellant. There are concurrent findings on two questions of fact—that there is no such custom as is alleged by the respondents entitling illegitimate sons of a junior member of the family to maintenance out of the impartible estate; and that the respondents were amply provided for by their father. They are entitled to nothing out of the impartible estate, illegitimacy being a fatal bar to any claim, whether under the deed or under Hindu law or custom. On the true construction of the deed of 1889 illegitimate sons were never contemplated and are not within its scope—it could not have been intended to make provision for illegitimate sons of Venugopal, who at that time was a mere boy. Even if they were legitimate they would take nothing under Hindu law, the right to maintenance out of an impartible estate being limited to sons and brothers of the Zamindar. The question is whether decisions of this Board up to Shiba Prasad Singh v. Rani Prayag Kumari Debi (( 1932) L. R. 59 I. A. 331.), to the effect that maintenance in the case of an impartible estate is limited to sons and brothers of the present holder were overruled by Collector of Gorakhpur v. Ram Sunday Mal (( 1934) L.R. 61.I.A. 286.) ; there is nothing in the last-mentioned case which in terms overrules the previous decisions. Those cases were all considered in Commissioner of Income-tax v. Dewan Bahadur Dewan Krishna Kishore (Ante at p. 155.). Both the judges of the High Court accepted the position that before the decision in Collector of Gorakhpur v. Ram Sundar Mal (( 1934) L.R. 61.I.A. 286.) the law clearly would not allow these respondents, legitimate or otherwise, to take, because they were beyond the permitted degrees entitled to maintenance out of an impartible estate. It is submitted that the High Court misunderstood the effect of the decision in the Gorakhpur case (( 1934) L.R. 61.I.A. 286.). This Board, if it overrules a decision, does not do so in the oblique way suggested, but clearly states that a different conclusion has been arrived at. That the view of the Hindu law now submitted is correct is put beyond doubt by the judgment in Commissioner of Income-tax v. Dewan Bahadur Dewan Krishna Kishore (Ante at p. 155.). This Board, if it overrules a decision, does not do so in the oblique way suggested, but clearly states that a different conclusion has been arrived at. That the view of the Hindu law now submitted is correct is put beyond doubt by the judgment in Commissioner of Income-tax v. Dewan Bahadur Dewan Krishna Kishore (Ante at p. 155.). Pritt K.C., S. Hyam and U. Sen-Gupta for the respondents. The paternity of the respondents and their legal status have been admitted by the appellant. The construction put on the deed of 1889 by the Subordinate Judge is correct. The deed evidenced a family arrangement whereunder the father of the respondents agreed to recognize the joint family estate of Venkatagiri as impartible joint family property, and to recognize the succession to it as being governed by the rule of primogeniture, in consideration of the promise by the head of the family for himself and his successors (inter alia) to pay the annuity reserved in the deed to the purusha santhathi of the respondents father. Upon the true construction of the deed the respondents are included in the description of " the purusha santhathi of Venugopal Krishna," and are entitled to the annuity reserved in the deed. As regards the position under Hindu law, it must be conceded that there appears to be no escape from the conclusion reached in Commissioner of Income-tax v. Dewan Bahadur Dewan Krishna Kishore (Ante at p. 155.). [Reference was made to Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh (( 1890) I. L. R. 18 C. 151 ; L. R 17 I. A. 128, 130.).] S. Hyam followed. A reply was not required. Oct. 16. The judgment of their Lordships was delivered by Sir George Rankin, who stated the facts above set out, and continued Raja Kumara Yachama | idth1420| | | | Rajagopala Muttu Venkata Venugopal (covenantor (died | (died 1920 in 1889) childless) unmarried) | | ||| | Govinda Krishna Rajeswara Maheswara (original Bahadur (plaintiff 1) (plaintiff 2) defendant died 1937) | Kumara (defendant) The respondents mother, though not married to Venugopal, cohabited with him in a manner exclusive and continuous so as to be a dasi within the meaning of the text of the Mitakshara (chap, i, s. 12, verse 2) which confers certain rights of inheritance upon the sons of Sudras if born of such a union. The meaning and effect of this passage in the Mitakshara were much considered by the Board in Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh (L. R. 17 I. A. 128.) and Vellaiyappa Chetty v. Natarajan (( 1931) L. R. 58 I. A. 402.), but no disputable matter has to be decided thereunder in the present case. The evidence adduced to prove the alleged custom was held by both courts to be insufficient; even if the question be any logger open before the Board, it was not contended that the evidence is of such strength as to make it reasonable that their Lordships should be invited to disagree with the concurrent findings of the courts in India. Hence custom as a ground of claim goes out of the case. The claim under the deed of 1889 depends on the question whether the respondents are within the words purusha santhathi (male descendants) as they occur in a clause which provides that on the death of Venugopal his male descendants shall in perpetuity be paid the amount of the allowance of Rs. 1000 which had by the deed been made payable to him for life. It is unnecessary to set out the deed at length, or to describe in detail the circumstances in which it came to be entered into ; just as it is unnecessary that their Lordships should endeavour to set forth the various considerations which may bear more or less effectively on the problem whether—apart from any cases of adoption—words meaning "son," "family," " descendants " and so forth, are to be taken as restricted to persons of legitimate birth. At the time of the deed Raja Kumara Yachama was alive and Venugopal was a minor. It appears that the Raja had in 1878 made over the estate and much other property to his eldest son, Rajagopala ; but that in 1889 the younger sons, Muttu and Venkata, had been minded to claim that the estate was partible, and had been persuaded by their father to recognize the impartibility of the estate on being given certain money and jewellery, and on a proper allowance being provided in perpetuity for each of the three junior branches. The Raja of Bobbili having acted as mediator and fixed the amount of the allowance to each branch at Rs. The Raja of Bobbili having acted as mediator and fixed the amount of the allowance to each branch at Rs. 1000 per month, the deed of April 8, 1889, gives the sum of Rs. 1000 per month to each of the three younger brothers for life and then sets forth in detail the persons who are to become entitled to the allowances thereafter. The operative clause so far as regards Venugopals branch, when stripped of certain verbiage and of a clause with reference to widows, is as follows " After the life of the said Sri Venugopala "Krishna Yachendrulu, his purusha santhathi shall, in "perpetuity, be paid the same allowance amount, that is, at "the rate of Rupees one thousand (Rs. 1000) per month, "in the aforesaid manner. But, if, at any time, in any one "of the branches of the said Sri Muttukrishna Yachendrulu, "Sri Venkatakrishna Yachendrulu and Sri Venugopala "Krishna Yachendrulu, there be more than one male member, "such males, and their purusha santhathi shall take the said "allowance amount of Rupees one thousand in proportion to "their respective shares, in the same manner as they would "respectively take their other properties separately by way of "inheritance according to the Hindu law. Moreover, if in any "of the aforesaid three branches of our family .... any male "should die without purusha santhathi, either by way of "aurasa or by way of adoption, the allowance amount that "was being received by the person who so died without "purusha santhathi shall go to the gnatis (agnates) who are "nearest to him in his own branch according to Hindu law----- "Further, should any of the said three branches of our family “become extinct by the total absence of purusha santhathi "either by way of aurasa or by way of adoption, the allowance “being paid to that branch shall be stopped . . .” Both of the learned judges of the High Court have held that if the clause to which the plaintiffs make their appeal is considered in the light of its immediate context it becomes clear that, as the words are used in this deed, a man is said to die "without purusha santhathi " if he die leaving neither a legitimate nor an adopted son. Their Lordships are in agreement with this view, which makes an end of the respondents claim on the deed. Their Lordships are in agreement with this view, which makes an end of the respondents claim on the deed. That an illegitimate son is not an aurasa son as that word is used in Hindu law seems to their Lordships to be elementary. The learned judges of the High Court both say that this was not disputed before them, and their Lordships do not find that the learned trial judge had been of any different opinion. The court translator appended to his version of the deed a glossary of terms which is to the same effect. No weight can be attributed to any suggestion that in a Telegu deed of 1889 regulating the legal rights of a Hindu family in respect of an impartible raj in Madras the word aurasa includes natural sons because the etymology of the Sanskrit word aurasa shows its original root meaning as "produced from the breast." Aurasa has always been used to import the highest class of son—the son begotten by the man himself on his lawful wife of lower kinds once recognized several were not sons in any physical sense, e.g., the putrika putra or son of an adopted daughter [Mayne Hindu Law and Usage, 6th ed., 1900, ss. 67-8, pp. 79, 80]. Their Lordships think that the deed of 1889 provides its own guide to the meaning of the words purusha santhathi, and that in the language of the deed Venugopals branch became extinct on his death. The interesting question which remains is whether the respondents are entitled to maintenance from the impartible estate on the ground that it is the prima facie right at law of all junior male members of the family to be maintained out of impartible estate which is family and not separate property. The answer made by the appellant to this claim is that junior male members have no such right save by custom and that, apart altogether from any question of legitimacy, the respondents not being sons or brothers of any holder of the impartible estate can succeed only by proving a special custom, which they have failed to do. For this view of the law the appellant relies upon a line of decisions of the Board—the second Pittapur case (( 1918) L. R. 45 I. A. 148.), the Jeypore case (( 1919) 24 Cal. For this view of the law the appellant relies upon a line of decisions of the Board—the second Pittapur case (( 1918) L. R. 45 I. A. 148.), the Jeypore case (( 1919) 24 Cal. W. N. 226.), Baijnath’s case (( 1921) L. R. 48 I. A. 195.), the Dhalbhum case (( 1927) L. R. 54 I. A. 289.), and Shiba Prasad Singhs case (L. R. 59 I. A. 331.). The respondents reply is that this line of decision was abandoned or deflected by the judgment of the Board in the Gorakhpur case (L. R. 61 I. A. 286.), which, as they contend, established the right to maintenance as belonging to all junior male members of the family by virtue of their interest as co-owners. This interesting and difficult question has recently (July 4, 1941) been determined by the Board in another case (Commissioner of Income-tax v. Dewan Bahadur Dewan Krishna Kishore (Ante at p. 155.)) in a sense unfavourable to the respondents, whose learned counsel recognized that it would be neither reasonable nor useful to ask the Board to give a contrary decision in the present case. Their Lordships on this part of the case agree with the learned Subordinate Judge who negatived this ground of claim. Their Lordships have read the Subordinate Judges judgment and both judgments in the High Court with high appreciation, and have been struck by the skill and care with which the various questions have been elucidated and by the ability with which they have been discussed. But the suit must fail. Their Lordships will humbly advise His Majesty that the appeal of the appellant should be allowed, the appeal of the respondents dismissed, the decree of the High Court set aside, and the suit dismissed. The respondents must pay the appellants costs of both courts in India and of these appeals, save that the appellant must pay to the respondents their costs in the trial court of the issue numbered 5, which relates to the paternity of the respondents, with a set-off in India in respect of these costs.