Chainani, J. - (1.)THE appellants in these two appeals are illegitimate sons of Sardar Chandrasinghji Himatsinghji, who was the Thakore of Matar estate, which is a talukdari estate in Amod taluka in Broach District. He was a Rajput by caste. THE respondent is the eldest legitimate son of Sardar Chandrasinghji, and succeeded to the estate on the latter's death on July 10, 1939. By custom the estate is impartible, and succession to it is governed by the rule of primogeniture. In 1943 the two appellants filed two separate suits claiming maintenance from the respondent. THEy stated in their plaints that their mother was in the continuous and exclusive keeping of Chandrasinghji, that there was a custom prevalent in Gujarat and in the Broach District according to which the junior members of the family and illegitimate sons were entitled to maitenance, and that they had, therefore, a right to recover maintenance from the estate, both according to custom and also according to law. THE defendant disputed these statements. THE trial Judge found that the mother of the appellants -plaintiffs was in the continuous and exclusive keeping of Chandrasinghji, and that apart from the talukdari estate, Chandrasinghji had left no separate property of his own. He also held that the appellants had not proved the custom as regards the right of illegitimate sons to claim maintenance from the estate. THEse findings have not been disputed in appeal. THE trial Judge also came to the conclusion that as the estate was impartible, and as no custom giving a right to illegitimate sons to receive maintenance from it had been proved, the plaintiffs were not entiled to any relief. He, therefore, dismissed their suits. THE plaintiffs have appealed.
(2.)THE position of an illegitimate son rests upon two texts, as pointed out at p. 646 in Mayne's treatise on Hindu Law and Usage, 1938 Edition. According to Manu, 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.) Yajnavalkya has enlarged the rule as follows : Even a son besrotten by a Sudra on a female slave (dasipuira) 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 sons. This is cited as the first verse in Mitakshara, c. I. Section 12.In explanation of these texts, Vijnanesvara says in the second verse, THE son, begotten by a Sudra on a female slave, obtains a share by the father's choice, or at his pleasure. But, after (the demise of) the father, if there be sons of a wedded wife, let these brothers allow the son of the female slave to participate for half a share : that is let them give him half (as much as is the amount of one brother's allotment, However, should there be no sons of. a wedded wife, the son of the female slave takes the whole estate, provided there be no daughters of a wife, nor sons of daughters. ' But, if there be such, the son of a female slave participates for half a share only. THE third verse in Section 12 of the Mitakshara is as follows: From the mention of a Sudra in this place (it follows that) the son begotten by a man of a regenerate tribe on a female slave does not obtain a share even by the father's choice. But, if he be docile, he receives a simple maintenance. THE last verse is obviously based on the conclusion drawn by the learned author from the position assigned to an illegitimate son of a sudra by the texts. Mitra Misra in the Viramitrodaya (c. II, pt. II, Section 23, Shastri's translation, Ed. Calcutta 1879, p. 130) has interpreted the texts thus: From the use of the term 'a person of the servile class' in Yajnavalkya's text, it appears that one begotten by a twice horn person on a female slave cannot, notwithstanding the desires of the father, get a share or a half -share after his death; the taking of his entire property is out of the question : but he is entitled only to maintenance, provided he be not disobedient.
The texts refer in terms only to dasiputra or the son of a female slave. But this restriction is now obsolete with regard to the right of maintenance given to an illegitimate son. In Muttusazmny Jagavera Yettappa Naicker v. Vencataswara Yettaya (1868) 12 M. I. A. 203 the Privy Council allowed maintenance to a son who was the result of a casual intercourse, while in Rahi v. Govind Valad Teja (1875) I. L. R. 1 Bom. 97 the Bombay High Court, and in Viraramuthi Udayan v. Singaravelu (1877) I. L. R. 1 Mad. 306 Kuppa v. Singaravelu (1885) I. L. R. 8 Mad. 325 and Subramania Mudaly v. Valu (1910) I. L. R. 34 Mad. 68 the Madras High Court allowed it in the case of an adulterous intercourse. In Muttusawmy Jagavera Yettappa Naicker v. Vencataswara Yettaya, at p. 220 the Privy Council has observed : It appears, however, to their Lordships, that if it be established that the Respondent was the natural Son of this Hindoo Father, and recognised by him as such, it is not essential to his title to maintenance that he should be shown to have been born in the house of his Father, or of a concubine possessing a peculiar status therein. In Roshan Singh v. Balwant Singh (1899) L. R. 27 I. A. 51 : s. c. Bom. L. R. 529 their Lordships, after referring to the third verse of Section 12 of the Mitakshara, which deals with the rights of an illegitimate son of a father belonging to the higher castes, stated (p. 56): There is no reason to think that this effect of illegitimacy differed according to the particular mode of it.

A Hindu father is under a personal obligation to maintain his minor sons, irrespective of whether he has property or not. This is based on the following precept of Manu: Aged parents, virtuous wife and an infant child must be maintained even by doing hundred misdeeds. There is, however, no such obligation in regard to adult sons. It has, therefore, been held that a father is not bound to maintain an adult son out of the property which belongs exclusively to him; see Premchand Peparah v. Hulashchand Peparah (1869) 4 Beng. L. R. (Appx.) 23 Nilmoney Singh Deo v. Baneshur (1899) L. R. 37 I. A. 51; Bhoopati Nath Chakrabarti v. Basanta Kumaree Debee (1936) I. L. R. 63 Cal. 1098, 1111 Ammakannu v. Appu (1887) I. L. R. 11 Mad. 91 and Subbayya Thevar v. Marudappa Pandian [1937] Mad. 42. As regards illegitimate sons, Mr. Justice Venkatramana Rao in Muniappa Mudaliar v. Kuppuswami Mudaliar [1942] A. I. R. Mad. 419 (2) stated (p. 420): It is a well settled principle of Hindu law that where the father is not possessed of any joint family property, he is under no personal obligation to maintain his legitimate son and the latter has no claim over the separate property of his father : vide 11 Mad. 91. An illegitimate son cannot claim higher rights than the legitimate son and the same principle ought to apply to him. This decision was followed in Krishna Rao v. Venkataramarao [1944] A. I. R. Mad. 362 in which it was held that an adult illegitimate son was entitled to maintenance both before and after his father's death, if the father was in possession of any joint family property.

(3.)IT has been held in various cases decided by the Madras High Court that the texts cited above refer to the estate of a separated house holder, that is to the separate property of father (see Ranoji v. Kandoji (1885) I. L. R. 8 Mad. 557 Parvathi v. Thirumalai (1887) I. L. R. 10 Mad. 334 Ramalinga Muppan v. Pavadai Goundan (1901) I. L. R. 25 Mad. 519 and Gopalasami Chetti v. Arunachelam Chetti (1903) I. L. R. 27 Mad. 32) After referring to these cases, Sir Dinshah Mulla in his judgment in Vellaiyappa Chetty v. Natarajan (1931) L. R. 38 I. A. 402, 407 has stated that verses 1 and 2 inc. I, Section 12 of the Mitakshara, which relate to a Sudra son make no mention of maintenance where the father has left no property to which the son can succeed, and that cases in which the maintenance is claimed out of joint family property must, therefore, be considered outside the texts. Following these decisions Mr. Justice Broom field in Hiralal Lax -mandas v. Meghraj Bhikchand [1938] Bom. 779, 789 : s. c. 40 Bom. L. R. 937 has stated that it is now settled law that the texts apply only in the case of separate property of the father. Nevertheless maintenance to illegitimate sons out of joint family property in the hands of the surviving members of the joint family has been awarded in several cases: see Hargobind Kuari v. Dharam Singh (1884) I. L. R. 6 All. 329; Ananthaya v. Vishnu (1893) I. L. R. 17 Mad. 160; Gopalasami Chetti v. Arunacfielam Chetti (1903) I. L. R. 27 Mad. 32; Subramania Muddy v. Valu (1930) I. L. R. 84 Mad. 68; Vellaiyappa Chetty v. Natarajan; Vellaiyappa Chetty v. Natarajan and Hiralal Laxmandas v. Meghraj Bhikchand. Maintenance out of joint family property has been awarded on the recognised principle of Hindu law that where a person is excluded from inheritance to property or from a share on partition of joint family property, he is entitled to maintenance out of that property (see Vellaiyappa Chetty v. Natarajan, p. 407 ). In Vellaiyappa Chetty V. Natarajan (1926) I. L. R. 50 Mad. 340 Mr. Justice Krishnan has summed up the position thus (p. 346) : . . . the authorities are quite clear that when the illegitimate son cannot ask for a share, he is entitled to get maintenance from his putative father's joint family estate even in ths hands of his coparceners. The decision in this case was affirmed by the Privy Council in Vellaiyappa Chetty v. Natarajan (1931) L. R. 58 I. A. 402 : s. c. 33 Bom. L. R. 1526.
So far as Sudras are concerned, the law as settled by the Privy Council in Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh (1890) L. R. 17 I. A. 128 Kamulam -mal v. Visvanaihaswami Naicker (1922) L. R. 50 I. A. 32 s. c. 25 Bom. L. R. 577 and Vellaiyappa Chetty v. Natarajan is that an illegitimate son does not acquire at his birth any right to a share in the estate in the same way as a legitimate son would do, that during his father's lifetime he can take a share only by father's choice, that he cannot enforce a partition, that on the father's death he succeeds to the father's estate as a coparcener with the legitimate son, that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son, and that the share to which he is entitled is a half of that which he would have taken had he been legitimate. As regards illegitimate sons of Hindus belonging to the three higher classes, they are entitled to maintenance and not to any share of the inheritance: see Chuoturya Run Murdun Syn v. Purhulad Syn (1857) 7 M. I. A. 18 Raja Parichat v. Zalim Singh (1877) L. R. 4 I. A. 159 and Roshan Singh v. Balwant Singh (1899) L. R. 27 I. A 51 : s. c. 2 Bom. L. R. 529. In Hargobind Kuari v. Dharam Singh (1884) I. L. R. 8 All. 329 in accordance with the last sentence in the third verse in Section 12 of the Mitakshara it was held that an illegitimate son was entitled to maintenance so long as he was'docile', that is ' not disobedient' to the head of the family. The following passage from the Viramitrodaya of Mitra Misra was cited at p. 335 : Obedience to the head of the family, not the age of the illegitimate descendant, or his capacity to earn his own livelihood, is the test by which under Hindu Law, the continuance of the right to receive maintenance must be decided. Till the illegitimate sons jeach full age, this test cannot be applied; but thereafter it cannot be ignored. Cowell in his Tagore Law Lectures 1870, Vol. I, at p. 172 states : But in the three superior castes, an illegitimate son has long ceased to possess a right to inherit. Nevertheless, he is not, as in English law, quasi nullius filius, but his status as a son in the family, and his rights to maintenance, are secured to him. In Ananthaya v. Vishnu (1893) I. L. R. 17 Mad. 160 the Madras High Court held that the maintenance given to an illegitimate son amongst regenerate classes is in recognition of his status as a member of his father's family and by reason of his exclusion from inheritance. As stated in the judgment in that case (p. 161): An illegitimate son is one of that class of persons who, by reason of their exclusion from inheritance, are allowed maintenance by the Hindu law, and this is clear from the facts that among Sudras he shares in his father's property together with the legitimate son. . . . The Smriti of Yajnya -valkya awards maintenance to an illegitimate son not as a provision against starvation and vagrancy, but in recognition of his status as a member of his father's family and by reason of his exclusion from inheritance among the regenerate classes. As in the case of females of the family or of disqualified heirs, an illegitimate son is entitled to maintenance as long as he lives. . . . As the maintenance awarded is the result of exclusion from inheritance, and as the Hindu theory is that family property constitutes assets from which charges in the nature of maintenance, etc. , are to be met, the maintenance decreed to an illegitimate son may be secured on the family property. . . . This decision was followed in Subramania Mudaly v. Valu (1910) I. L. R. 34 Mad. 68. In Raoji Rupa v. Kunjalal Hiralal (1030) I. L. R. 54 Bom. 455 : s. c. 32 Bom. L. R. 888, p. c. in which the right of illegitimate sons to maintenance was disputed, the Privy Council at p. 458 has observed : They (the lower Courts) also held that as dasiputras the sons were entitled to maintenance during their lives out of Balmukund's estate, and their Lordships have no doubt on the authorities that this is correct. Ananthaya v. Vishnu was referred to and discussed in Vellaiyappa Chetty v. Natarajan (1931) L. B. 38 I. A. 402 s. c. 33 Bom. L. R. 1526 in which, after reviewing the various decided cases, Sir Dinshah Mulla stated at p. 410 : That maintenance in the case of twice born classes is in lieu of inheritance is apparent from the terms of verse 3,. . . . The question was again considered in Hiralal Laxmandqs v. Meghraj Bhikchand, in which it was held that where a father has left no separate property, an illegitimate son is entitled to maintenance from the joint family property in the hands of surviving members of the family. In that ease it was contended that the decision in Ananthaya v. Vishnu was not good law. This decision was, therefore, considered and discussed at length in the judgments of both Mr. Justice Macklin and Mr. Justice Broomfield who decided Hiralal Laaomandas v. Meghraj Bhikchand. In his judgment Mr. Justice Malcklin has stated at pp. 785 -786: Moreover one of the main grounds of the decision in Vellaiyappa's case was the status of the illegitimate son of a Shudra as a member of his father's family, and one of the principal reasons for holding (as against some of the earlier authorities) that he was recognised as a member of his father's family Was that he was mentioned in Chapter I of the Mitakshara (dealing with sons who are entitled to unobstructed inheritance) and immediately before Chapter II of the Mitakshara, which deals with persons entitled to an obstructed inheritance. It is difficult not to apply the same reasoning to the status of an illegitimate son in the regenerate classes. In giving his reasons for saying that the regenerate illegitimate son unlike the Shudra does not obtain an actual share even by the father's choice, or the whole estate after the father's death, the author does not say that this is because the regenerate stands upon a different footing from the Shudra. What he does say is that the regenerate son is not mentioned along with the Shudra as a person entitled the actual estate and therefore it must follow that he does not get the actual estate, and in fact all that he gets is maintenance. I can see nothing in this that suggests any withholding from the regenerate illegitimate son of any recognition of his status as a son and member of the family; on the contrary it seems to me that he is treated in that respect as being upon the same footing as the Shudra. At page 787, he stated : I think therefore that the decision in Ananthaya v. Vishnu ought to be accepted as correct and should be followed in this case.