1. This is a suit by the minor plaintiffs suing by their mother and next friend for maintenance. The case for the plaintiffs is that their mother Chinnammal was, shortly after she attained puberty, kept by the 1st defendant who is a Nattukkottai Chetty continuously and exclusively as his concubine, that the 1st and 2nd plaintiffs are his illegitimate sons and the third plaintiff his illegitimate daughter. Maintenance is claimed at Rs. 500 a month for all the three plaintiffs. The suit was originally filed against the 1st defendant only, but he died pending suit and Defendants 2 to 5, his undivided uncles and uncles sons, have been brought on the record. The 1st defendant filed a written statement denying that the plaintiffs' mother Chinnammal was continuously kept by him as concubine from 1901 to 1919. He states that Chinnammal was a dancing-girl who did not abandon her usual mode of life which was that of prostitution and that he used to visit her occasionally. He denies that the plaintiffs are his children by Chinnammal. He denies that he was at any time maintaining the plaintiff's or began neglecting them from July 1919. He admits that demands were made by the plaintiff's mother but denies his liability to maintain them. He denies that any charge can be created on the property mentioned in the plaint. He pleads that he belongs to the Nattukottai Chetty community and is a Vysia and that in any event, the claim for maintenance is excessive and that any maintenance that is granted can only be decreed till the plaintiffs attain majority. The 2nd defendant filed a written statement adopting the written statement of the 1st defendant and pleading in addition that the 1st defendant was a member of a joint undivided Hindu trading family possessed of considerable property, moveable and immovable, that he was not possessed of any separate property, that he died without leaving any issue, that his only son was adopted to his brother during his lifetime, that after the death of the 1st defendant all the family properties vested by survivorship in the other defendants and that the plaintiffs are not entitled to any relief as against the surviving coparceners. Defendants 3, 4, and 5 filed written statements adopting the statement of the 1st and 2nd defendants.

2. The following issues were settled:

1. Was Chinnammal kept continuously or exclusively by the 1st defendant as concubine?

2. Are the plaintiffs children of the 1st defendant by such continuous concubinage?

3. Is the defendant bound to pay any maintenance to the plaintiffs and is the said maintenance a charge on the family property as alleged in the plaint?

4. Is the defendant a Vysia; and if so, are plaintiffs entitled to maintenance beyond the period of their majority?

5. What maintenance, if any, are the plaintiffs entitled to?

3. Chinnammal, the mother of the plaintiffs, belongs to a dancing-girl community. She was brought up by her aunt Bhag-yammal who was dedicated to the temple at Thiruvalangadu. The 1st defendant is a member of an undivided family of Nattukottai Chetties, which family was dharmakartas of the temple at Thiruvalangadu. The 1st defendant was the dharmakarta of the temple along with the Rajah of Kalahasti. Chinnammal, according to the evidence, is now about 33 years old. She attained puberty, when she was 12 or 13 and was dedicated soon afterwards to the temple at Thiruvalangadu. The 1st defendant, who was looking after the duties of the Dharmakarta of the temple at that time was in addition the ijaradar of the place and he began to keep Chinnammal. The evidence, to which I shall refer later on in detail, is that from 1904 to 1919 he was keeping her. He was first visiting her at Thiruvalangadu and he then rented a house in Madras where Chinnammal was kept and where he was visiting her. He subsequently kept her in a house which he had purchased in Iyappa Chetty Street. The 1st defendant bore all her expenses and was paying her moneys in addition. He also made jewels for her for about Rs. 7,000 or Rs. 8,000. He built a house in Thirvalangadu for her and lands were also purchased for her, to the extent of 7 or 8 cawnies according to the evidence of the father, of which the father was in management for her. Chinnammal had a sister who was being kept by one Periyanna Chetty, who was a friend of the 1st defendant. In 1916 Chinnammal's sister filed a suit against Chinnammal and the 1st defendant for the recovery of certain jewels. A decree was passed on the 26th of April 1917, against both Chinnammal and the 1st defendant. Chinnammal and the 1st defendant continued to be friendly for two years afterwards and misunderstandings arose in 19l9, after which notices passed between the parties and the 1st defendant gave up visiting her afterwards. As the 1st defendant has denied his liability to maintain the plaintiffs, Chinnammal's children, this suit was filed on the 19th September 1919. The 1st defendant died on the 23rd April 1921, and on his death 2 to 5 defendants were made parties. (His Lordship then discussed the evidence and held that chinnammal was under the protection of Muthiah Chetty, the 1st defendant, from 1904 or 1905 till 1919 and that the plaintiffs are the children born of the continuous concubinage of Muthiah Chetti.)

4. So far as the 1st and 2nd plaintiffs are concerned, the law has been clearly laid down in Madras that in order to give rise to the rights of an illegitimate son of a Sudra either to succession or maintenance, all that is necessary is that the connexion between the parents should be continuous and neither adulterous nor incestuous. The fact that the woman kept is a dasi or a dancing-girl makes no difference as regards the rights of the illegitimate children.

5. Soundararajan v. Arunachalam Chetty [1916] 89 Mad. 136 it was held by a Full Bench of this Court that an illegitimate son of a Sudra 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, is entitled to get his share of the joint family properties after his father's death provided the connexion between his father and mother was not incestuous or adulterous. The whole law on the subject was reviewed and that was laid down as a condition requisite to give rights to illegitimate children of Sudras. In Subramania Ayyar v. Rathnavelu Chetty [1917] 41 Mad. 44 I have discussed the law on the question of the right of illegitimate children and I have referred to all the cases on the subject. In the present case I have found that Chinnammal soon after her dedication and her attaining puberty, was in the continuous and exclusive concubinage of Muthiah Chetti till about 1919 and that the plaintiff's are the children born during that period and that, therefore, they have the rights of illegitimate children. Under the Hindu Law, even assuming that the parties are not Sudras but belong to the higher classes e.g., Vysias, they still have got rights to get maintenance though not the right of succession. When the parties are Sudras there is the limitation that where the father is a member of joint and undivided family and the properties of the father pass by survivorship to other members of the family the illegitimate children of Sudras, in case the father had no self-acquired property, would not succeed to his estate, but have only rights of maintenance out of the property. In the present case the evidence is to the effect that Muthiah Chetti was a member of a joint and undivided family, that he had no separate property and that after his death the properties passed to his coparceners who are his uncle and uncle's sons. It is, therefore, clear on the authorities that the plaintiffs are entitled to maintenance. The fact that the property has passed to coparceners is no ground for defeating their claim; they would be entitled to a share if their father was a divided member of the family or had self-acquired properties and the Hindu Law is that, in cases of persons who by reason of certain circumstances are not entitled to a share in the estate, they are entitled to maintenance by those to whom the estate has passed by survivorship. The liability to maintain is on the coparceners by virtue of the fact that they take the estate of their deceased relations. In Ananthaya v. Vishnu [1894] 17 Mad. 160 it was held that even among regenerate classes under the Mitakshara Law, an illegitimate son is entitled to maintenance, as long as he lives, in recognition of his status as a member of his father's family and by reason of his exclusion from inheritance and that such a maintenance should be a charge on the family property. Muthusami Aiyar and Best. JJ., observe:

There can be no doubt that, under the Mitakshara Law, by which the parties are governed, an illegitimate son is entitled to maintenance among the regenerate classes. The Smriti of Yajnavalkya and its exposition in the Mitakshara, Chapter I, Section 12, leave no room for doubt on this point. 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 it is clear from the facts that among Sudras he shares his father's property together with the legitimate son. It is urged on appellants' behalf that respondent is not entitled to maintenance after he attains his age, but we are unable to accede to this contention. The Smriti of Yajnavalkya 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. We do not, however, desire to be understood as holding that his earnings, when he is able to earn, should not be considered in fixing the rate at which maintenance should be paid.

6. As regards the making it a charge upon the family property, their Lordships observe:

As the maintenance awarded is the result of exclusion from inheritance and the Hindu theory is that the 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 family property as in the case of female members by being declared to be a charge.

7. Referring to the contention that the mother of the respondent in that case was only a dancing-girl by easte, they observe:

But both the Courts find that the respondent is the illegitimate son of his father, and as this was a question of fact the finding is binding upon us. The position of the mother as a dancing-girl by easte is only important as showing that her connexion with, the father was casual and not continued concubinage; but in the present case the Judge referred to evidence showing that the respondent's mother was the concubine of his father for a long period of years.

8. In Kuppa v. Singaravelu [1885] 8 Mad. 325, it was held that the son of a Sudra who kept the wife of another person as a concubine for many years was entitled to recover maintenance. The point was that, as her connexion was adulterous, he could not succeed to a share, to which he would otherwise have succeeded, if the mother had not been a married woman and consequently he was entitled to maintenance. Turner, C.J., and Muthuswami Aiyar, J., observe:

That an illegitimate son is not entitled to inherit to a Sudra under the Mitakshara law, if he is the offspring of incestuous or adulterous intercourse, has been already recognized by this Court in Venkatachella Chetty v. Parvatham 8 M.H.C. 134. In Muttusawmy Jagavera Yettappa Naicker v. Venktaswara Yettaya [1867-69] 12 M.L.A. 203, the Judicial Committee have, however, held confirming a decision of this Court that the natural son of a Hindu father recognized by him as such is entitled to maintenance, although he may not have been born in the house of his father or of a concubine possessing such a status as is necessary to entitle her son to inherit to his father.

9. In Gopalasami Chetti v. Arunach ellam Chetti [1904] 27 Mad. 32, it was held by Benson and Bashyam Ayyangar, JJ., that an illegitimate son was entitled to maintenance. The learned Judges observed that in fixing a compossionate, rate of maintenance, regard should be had to the interest which the deceased father of the illegitimate son had in the joint family property and the position of his mother's family. It is enough to say that there is compassionate maintenance in case of disqualified heirs simply because the illegitimate man, who would succeed, if his father were separated, is ousted by the coparceners by virtue of the superior right of survivorship. In Hargobind Kuari v. Dharam Singh [1884] 6 All. 329, it was held that illegitimate sons are entitled to maintenance from their father and his estate is liable for its payment. My attention has been called to Panchapakesa Odayar v. Kanaka Ammal [1917] 6 L.W. 408, where it was held by Abdur Rahim and Srinivasa Aiyangar, JJ., that an illegitimate son of deceased Naidu had a right of maintenance against family property of which the putative father was the coparcener. It appears from the report that the decree of the lower Court awarded maintenance till the children attained majority, but there seems to have been no cross-appeal and no objection taken to that part of the decree, and there was no argument as to whether the maintenance should be for life or till majority. But as pointed out in Ananthayya v. Vishnu [1894] 17 Mad. 160, already referred to, there is no principle under the Hindu Law where, when persons are given maintenance, the right (being a substitute of right for partition) can be subjected to any such limitation as to age. In Nilmoney Singh Deo v. Baneshur [1879] 4 Cal. 91 the maintenance was refused, but that was a case arising under the Dhayabhaga law and the Judges state that, if it were under the Mitakshara, it would be different. So far therefore as the 1st and 2nd plaintiffs are concerned, there can be no doubt that they are entitled to maintenance from the joint family properties.

10. So far as the 3rd plaintiff the daughter, is concerned the position is different. She was born in 1908 and she is now 16 years old. It is contended by the defendant's vakil that there is no rule under the Hindu Law under which maintenance can be given in the case of illegitimate daughters, the text only referring to dasi putra or son by the female slave and not to daughters. So far as the text is concerned, the Mitak shara deals with illegitimate children in Ch. I, Section 12. Vignaneswara refers to a text of Yajnavalkya which runs as follows: Even a son begotten by a sudra by a female slave may take a share by the father's choice. But if the father be dead, the brother 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."

11. Upon this, there is the commentary of Vignaneswara. It is argued that this section does not give any right to the daughters of the Sudras begotten by a Sudra. So far as I can see, there are no texts which refer in any express terms to the case of illegitimate daughters and which regulate their rights, nor are there any decisions which expressly decide this question. In Parvati v. Ganapatrao Balal [1894] 18 Bom. 177 the question was raised as to whether an illegitimate daughter was entitled to maintenance. It was raised because the father had disposed of certain joint family properties and the question arose whether that disposition was valid. Sir Charles Sargent, C.J., and Bayley, J., dealt with the question and were of opinion that there was no separate text. At page 183 they observe:

Moreover, the right of illegitimate children to be maintained by the family is clearly an exceptional one as shown by the language of the text; and as the right to maintenance is laid down in terms in favour only of illegitimate sons, the proper inference, from the absence of any express provision for daughters, is, we think, that they are not contemplated as having the same right.

12. They go on to observe,

"that even if the daughters were entitled to simple maintenance out of the family property, it was not within the competence of the father to alienate the share for that purpose."

When they rest the decision on that ground, although it is obiter, it is a weighty dictum and is entitled to great weight in estimating the rights of illegitimate daughters. In Bhikya v. Babu [ 1908] 32 Bom. 562 the question was raised whether under the Hindu Law, among the Sudras, an illegitimate daughter can succeed to her father's property in preference to the son of a divided brother. Mr Justice Batchelor and Mr. Justice Chaubal negatived the right of the illegitimate daughter to succeed on the ground that the Mitakshara referred only to an illegitimate son and not to an illegitimate daughter.

13. Benson and Bashyam Aiyangar, JJ., in Lingappa Goundan v. Esudasan [1904] 27 Mad. 13 hold that though an illegitimate son, not a Hindu, is entitled to claim maintenance from his father under Section 488 of the Criminal Procedure Code, such claim can only be enforced during the lifetime of the father and the right terminates with his death. This case was, however, a case where the illegitimate son of a Hindu was born to a woman who was not a Hindu and was, therefore, not in the pale of Hinduism. The learned Judges held that it can only be in force in the manner provided by Section 488 of the Criminal Procedure Code, and not otherwise.

14. It is contended by Mr. K.S. Krishnaswami Aiyangar, that except in cases of aged parents, wife and infant children, the Hindu Law nowhere refers to the rights of maintenance of females by any separate text and that the right of maintenance comes only incidentally, and that under the Hindu Law, where a person who was a member of a Hindu family was excluded from a share, the law always allows maintenance to compensate for this exclusion. It is also argued that ancient Hindu Law takes no notice of individuals but only of the family as a corporation that the right of maintenance was cast upon the manager of the head of the family and that no special text was required, such right being incidental to the very nature of the corporate joint family. It is also argued that among Sudras, the illegitimate children are members of the family of their father and that they being members of the family of their father they are entitled to maintenance out of the family property by the person who is in charge of the family properties and all that you have to see is whether the person who claims the maintenance is an illegitimate child and can be said to be member of the family of the deceased. It is also argued, it is clear from the decision in Sadu v. Baiza [1879] 4 Bom. 37 which was approved of by the Privy Council in Jogendro Bhupati Hurrochandra Mahapatra v. Nityanand Man Singh [1891] 18 Cal. 151 that the illegitimate children can be members of the coparcenary with the legitimate children and that, being such members of the coparcenary, they are entitled to succeed by survivorship. There is on reason why daughters should not be members of the family. Reference has been made to the decision in Subramania Ayyar v. Ratnavelu Chetti [1917] 41 Mad. 44 where it has been held that there is a right of inheritance on the ground of relationship and it is argued that illegitimate daughters may be treated as members of the family for all purposes except for the purposes of inheritance. Reference has been made to West and Buhler, p. 415 and Ghana Kanta Mohanta v. Gereli [1905] 32 Cal. 479 where it was held that under the Hindu Law as well as under the general law, the father of an illegitimate child is bound to provide for its maintenance. I agree with the contention urged by plaintiffs' counsel. I have in Subramania Aiyar v. Ratnavelu Chetty [1917] 41 Mad. 44 gone into the position of an illegitimate son in the family and it seems to me to be clear that having regard to the decisions in Sadu v. Baiza [1879] 4 Bom. 37 and Parvati v. Ganapatrao Balal [1894] 18 Bom. 177, where it was "held that an illegitimate son can be held to belong to the coparcenary with his legitimate brother and having regard to the decisions of this Court where the right of a representative is given to an illegitimate son, I find it difficult to see why the illegitimate daughter should not be a member of the family of the illegitimate father and if she is a member of the family of the illegitimate father, it seems to me under the general law that she will be entitled to maintenance.

15. I am of opinion that in the absence of any authority directly against the view, there is no reason either in justice or equity to hold that illegitimate daughters are entitled to no right against the putative father. As observed in Ghana Kanta Mohanta v. Gereli [1905] 32 Cal. 479, apart from Hindu Law, maintenance has to be awarded on general principles; and if a father is bound to maintain his illegitimate daughter, his coparceners who took his property by survivorship are equally bound to do so. The case was the case of an illegitimate daughter. I think that the provision in the Criminal Procedure Code would not take away the antecedent Hindu Law right. The provision of a summary remedy cannot, unless the Act expressly says so, take away a right conferred by Hindu Law. There is great force in the contention of Mr. K.S. Krishnaswami Aiyangar that so far as Hindu Law is concerned, the maintenance of females goes as a necessary corollary to their exclusion from inheritance and so long as they are members of the family, there is no reason why maintenance should not be given to them. Mr. K.S. Krishnaswami Aiyangar admits that if maintenance is given to an illegitimate daughter, it cannot be for her lifetime for she could not be in a better position than a legitimate daughter and I think that so far as the 3rd plaintiff is concerned maintenance can only be given, until she attains the age of 18 or is married earlier. As she belongs to the caste of the dancing-girl maintenance should continue till her marriage in case she were to marry or till she is able to earn her living according to the rules of her caste. I am of opinion that the plaintiffs are entitled to maintenance.

16. The fourth issue relates to the question whether the defendants are Vysias or Dvijas and it has not been pressed or argued.

17. The fifth issue is, to what rate of maintenance the parties are entitled. As regards the rate of maintenance, the defendants in their written statement say that they belong to a wealthy class of Chettis. In the notice sent by Gurusami Chetti on behalf of the plaintiffs, they say that the property is worth 30 lakhs and there is no specific denial of in the reply. Mr. Radhakrishnayya has put in Ex. JJ., the income-tax assessment which shows that the property has been assessed at Rs. 50,000 by the income tax authorities but that relates only to the income from the business carried on. The defendants have not adduced any evidence as to what other properties they possess, but it has come out in evidence that they own large properties and that they have also purchased a village for 1&1/2 lakhs of rupees. Muthiah Chetti would have been entitled to 1/8 share of the family properties, if he had effected partition during his lifetime. Chinnammal would have no rights of maintenance after she was discarded by Muthiah Chetti; whereas her children would, under the law, be entitled to maintenance for they would be in the position of excluded coparceners. On the other hand, one has to remember that in these cases maintenance should depend not only on the share of Muthiah Chetty but other relations which he has got. Certain allowance is made for the rights of coparceners. Muthiah Chetti has left two widows who are now alive.

18. Having regard to all the facts of the case, I think that a sum of Rs. 100 a month for each of the 1st and 2nd plaintiffs during their lifetime and Rs. 50 a month for the 3rd plaintiff till she attains the age of 18, will be a fair sum to allow.

19. As regards costs I think the defendants have not only raised a false plea but have also supported it by perjured evidence and I think the defendants must pay the plaintiffs' costs. Certified for two counsel.

20. The maintenance will be a charge upon the property (242, Police Commissioner's Road), as it is alleged that the property mentioned in the plaint has been disposed of. The maintenance will commence from the date of the plaint and they are entitled to it from the date of the plaint to this date and future maintenance to be payable on the 16th of each succeeding month.