Patkar, J.:— This was a suit brought by the plaintiffs Shankar and Dinkar for possession of certain property on the ground that they were the dasiputras of one Mahadu Daryaji Patil who died in February 1924. Defendant 1 the brother of Mahadu contended that the plaintiffs were not the dasiputras of the deceased Mahadu, and that Mahadu and defendant 1 were Kshatriyas and not Shudras.

2. Both the lower Courts came to the conclusion that Mahadu and defendant 1 were Shudras, that Shankar was born in November 1918, that Radha's husband died on 6th August 1918, and that therefore Shankar was not the illegitimate son of Mahadu, but Dinkar, who was born on 10th March 1922, was the illegitimate son of Mahadu and was entitled to succeed to the property of Mahadu.

3. In second appeal it is urged that the finding of both the Courts that Mahadu and defendant 1 were Shudras should not be accepted on the ground that the decision in Maharaja of Kolhapur v. Sundaram Ayyar (1) was not followed by this Court in Subrao Ramhirrao v. Radha Hambirrao (2), and that both the Courts have not applied the test of the consciousness of the community in order to determine the varna of Mahadu. The learned Subordinate Judge applied the principle of the consciousness of the community as the test of varna, and having regard to the defendant's admission before the revenue officers that he was a Shudra and to the fact that Mahadu's family was not one of the 96 fa nilies, came to the conclusion that they were not Kshatriyas but were Shudras. That finding was accepted by the lower appellate Court. The finding therefore on this point is based on the evidence in the case, and is on a question of fact with which it is difficult to interfere in second appeal. It is next urged that the connexion of Radha with Mahadu was in its inception adulterous, and therefore Radha could not be said to be a dasi of Mahadu, and Dinkar also was not entitled to succeed as the illegitimate son of Mahadu.

4. In Rahi v. Gooind (3) it was held that in the Presidency of Bombay the illegitimate offspring of a kept woman or a continuous concubine amongst Shudras are on the same level as to inheritance as the issue of a female slave by a Shudra, and at p. 113 it was observed that the condition, that the Shudra woman should never have been married to any man, has in practice, been discarded in the Presidency of Bombay.

5. In Sadu v. Baiza (4) it was held following Rahi v. Govind , that in the Bombay Presidency, among Shudras 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 Shudra.

6. In Rajani Nath Das v. Nitai Chandra Dey (5) it was held that an illegitimate son of a Shudra was 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.

7. In Gangabai Peerappa v. Bandu (6) it was held that among Shudras an illegitimate son of a concubine stands on the same level as to inheritance as the dasiputra. In that case the woman was a widow and lived with her paramour till his death, and it was observed at p. 371 that the condition that the Shudra woman of whom the illegitimate son is born, should never have been married to any man has been discarded in the Presidency of Bombay, and that among Shudras the illegitimate sons of a kept woman or concubine are on the same level as to inheritance as the dasiputra or the son of a female slave by a Shudra.

8. In Soundararajan v. Arunachalam Chetty (7) it was held by the Full Bench of the Madras High Court that the illegitimate son of a Shudra by a dancing-woman who was by profession a prostitute before she came into his keeping but who was kept by him in continuous and exclusive concubinage thereafter was entitled to get his appropriate share in the joint family property after his father's death, provided the connexion between his father and mother was not incestuous or adulterous. At p. 151 it was observed that the limitation as to her being an exclusive and continuous concubine is not to be found in the texts and appears to have been imposed by the Courts as necessary to secure due evidence of the paternity, just as the further restriction that the connexion must not have been incestuous or adulterous was imposed on general grounds of morality. It was held in Subramania Ayyar v. Rathnavelu Chetty (8) that it was not necessary that the woman should be an unmarried woman.

9. It would therefore follow from the decided cases that it is not necessary that the woman should be an unmarried woman. She may be a widow according to the decision in Gangabai Peerappa v. Bandu (6) or a common prostitute according to the decision of the Madras High Court in Soundararajan v. Arunashalam Chetty .

10. Golapchandra Sarkar Sastri in his Hindu Law, 6th Edn., at p. 299, is of pinion that the various decisions on the ??? to maintenance of a concubine from ??? estate of her deceased paramour, and ??? son's claim to a share therein, ??? cases in which the concubine ??? as a member of the family and that which a concubine is called avaruddha stri his opinion coincides with the view of ???, J., in Bai Monghibai… v. Bai Rambhalaxmi…Opponent. ??? (9). But their Lordships of the Privy ??? in Bai Naguhai v. Bai Monghibai (10) have expressed the view that as ??? is abolished, common residence is at now necessary, whatever may have been the case when the concubine was a ave of the household, and that a combine is entitled to maintenance out of be estate of her deceased paramour provided that the concubinage be permanent until the death of the paramour and ??? fidelity to him be preserved ??? the concubine be not kept in the family house of the deceased.

11. It would therefore follow that the woman must be in the sole keeping of her ??? and the connexion must last ??? the death of the paramour and the ??? fidelity to him is preserved. There no limitation of time fixed by any of ??? decided cases or by the texts as to be duration of such connexion. In the Privy Council decision the period was?e years, whereas in the Madras Full Bench case of Soundararajan v. ??? Chetty the period of three jars elapse 1 from the inception of the mnexion to the birth of the illegitimation. It would therefore be sufficient if ??? concubine was in the sole keeping of ??? deceased and the connexion lasted the ??? of the paramour, and the ??? son was not fruit of ??? is connexion.

12. In the present case, even though the connexion was in its inception adultery, it ceased to be adulterous after the ??? of Radha's husband on 6th August 18, and the plaintiff was born four years after Radha became a widow and ??? connexion ceased to be illegal or for ??? by law. Though Radha's connexion with Mahadu was immoral, it ceased to be illegal or forbidden by law after Govind's death, and being of the: same caste as Mahadn, it was open to her to remarry him after her husband's death. The decisions have not gone so far as to lay down that the connexion from the very inception should be free from the taint of adultery or illegality. The only condition is that the illegitimate son should not be the fruit of adulterous intercourse. I think therefore that Radha comes within the category of a dasi or continuous concubine according to the decided cases, and that the plaintiff Dinkar is dasi-putra or the illegitimate aon of Mahadu and entitled to succeed.

13. I think therefore that the view taken by both the Courts is correct, and this appeal must be dismissed with costs.

Broomfield, J.:— I agree with my learned brother that this appeal fails. Of the points raised by Mr. Thakor on behalf of the appellant only one can be regarded as a point of law. He has contended that the plaintiff-respondent has not the legal status of a dasiputra because his mother Radha had only lived with his father Mahadu for five or six years (seven or eight years according to the trial Judge) and because their association was in its inception adulterous, Radha's husband Govind being still alive when Radha first began to live with Mahadu. The interesting argument in which Mr. Thakor has developed this point seems only to have disguised the fact that there is no real substance in either of the reasons that have been put forward. There is no authority for the proposition that a man and a woman must have lived together for any particular term of years in order that the woman may be entitled to the privileges of a dasi or avaruddha stri, or the offspring of their intercourse to the privileges of a dasiputra. One must be able to say of the woman that she was a permanent or continuing concubine, that she consoried exclusively with the one man during the period of her association with him and that she was openly and avowedly his mistress and dependant. That was laid down by Shah, J., in Bai Monghilai v. Bai Nagubai , and to that extent the judgment of Shah, J., was unaffected by the decision of the Privy Council in appeal in the same case, Bai Nagubai v. Bai Monghibai . To satisfy those conditions it is no doubt necessary that the association must be have lasted for some considerable time. Provided the conditions are satisfied, it seems to me it is neither necessary nor possible to be more precise as regards the duration of time. The Privy Council decision in Bai Nagubai v. Bai Monghibai implies that a period of five years is sufficient, and in Soundararajan v. Arunachalam Chetty a person was held to be entitled to the status of a dasiputra who was born only three years after his mother began to live with his father.

14. As regards the argument based on the fact that Radha's husband was still alive when she first began to live with Mahadu, I am unable to see that makes any material difference. Mr. Thakor says that it is a matter of first impression, and we have not been referred to any reported case in which the facts were precisely the same. But in my opinion the authorities are wide enough to cover the present case. It is perfectly well settled that no person who is himself the offspring of an adulterous intercourse can claim a share as dasiputra; but that is not the position in this case. The plaintiff's mother had been a widow for four years when the plaintiff was born, and I can see no essential difference between the facts of this case and the facts in Gangabai Peerappa v. Bandu . As my learned brother has pointed out, it was held as long ago as Rahi v. Govind valad Teja , that it is no longer a necessary condition that the woman should not have been married to another man. In this case it appears that Radha had never lived with Govind who is said to have been a leper. Before she came to live with Mahadu, she had been the mistress of another man, Yithu, but that fact is immaterial. In Soundararajan v. Arunachalam Chetty the woman held to be entitled as a dasi had been previously a professional prostitute. The fact seems to be that, provided the conditions mentioned above are fulfilled, the antecedents of the woman do not count.

15. An illegitimate son can only be entitled to a share in his father's property if the parties are Shudras. In this case the parties are Marathas. The question was raised at the, trial whether the family in question is of the Kshatriya or Shudra caste. Both the lower Court have held that the parties are no Kshatriyas but Shudras. On the face ??? it that appears to be obviously a ques tion of fact. Mr. Thakor, relying on some remarks of Madgavkar, J., in Subrao Hambirrao v. Radho Hambirrao has argued that, in order to decide whether a particular Maratha family belongs to the Kabatriya caste or the ??? caste, caste consciousness or the ??? of the community is an in portant factor, that caste consciousnes may be proved by the evidence ??? the members of the community, that the lower Courts have ignored the evidence of certain members of the community who were examined, an that this amounts to a mistake of ??? which enables the whole question to be re-opened even in second appeal. The evidence however of these Marath witnesses has not been ignored by the lower Courts. What the learned Assistant Judge says is that their evidence is interested. That does not seem to the an unreasonable description of the evidence of witnesses who are claiming higher status not only for the defendant but for themselves. There is nothing in the judgment in Subrao Hambirrao v. Radha Hambirrao which make it incumbent on the Court to ??? importance to interested evidence. Further the lower Courts have given other reasons for not relying on the evidence of these Maratha witnesses. It seem to me to be purely a question of ??? of evidence and not a matter law at all. But, as my learned brother has pointed out, if the argument base on caste consciousness has to be considered, it would appear to tell rather against the defendant than in his favor seeing that in the heirship inquiry the revenue authorities he himself admitted that he was of Shudra caste.

R.M/R.K

16. Appeal dismissed.