Straight, Offg. C.J and Duthoit, J.:— This is a suit for maintenance. It was instituted in the Court of the Sub-ordinate Judge of Mainpuri, on the 29th July, 1882, by (1) Rukmini, age 40, and (2) Dharam Singh, age 17, (3) Har Prasad, age 12, and (4) Manohar Lal, age 10, under the guardianship of their mother, plaintiff No. 1, against Kanhai Lal, Brahman, son of Mauji Lal.

The allegations of the plaint are, that Rukmini, plaintiff No. 1 lived with Mauji Lal, as his concubine, for some twenty-five year, and by him had issue, plaintiffs 2, 3, and 4, and a daughter who is married and provided for; that Mauji Lal provided suitably for Rukmini till 1873, when she was compelled to apply to the Criminal Court for a maintenance order; that such order, to the extent of Rs. 10 per mensem, was granted on the 1st November, 1873; that Mauji Lal paid this allowance until his death on the 24th June, 1881; that although the defendant has taken his father's estate, (in which is included considerable landed property), as heir, he has discontinued payment of the allowance; and that, under Hindu Law and custom, and upon principles of equity, the plaintiff's, who are otherwise destitute, are entitled to be maintained out of Mauji Lal's estate.

The relief sought was the following:—(1). That Rs. 10 per mensem, on account of the maintenance of the plaintiffs, be declared to he a perpetual charge upon Mauji Lal's landed estate. (2) That Rs. 100, on account of arrears of maintenance and the costs of the suit, be awarded to the plaintiffs against the defendant. For the defence it was pleaded that Rukmini was a common prostitute; that the male plaintiffs were not begotten upon her by Mauji Lal; that as the property is ancestral, Mauji Lal's interest in it ceased at his death, and the interests of the plaintiffs ceased also; that the order of the Criminal Court could afford no basis for this suit; that a Criminal Court could not pass a maintenance order in favour of the female plaintiff; that Dharam Singh was of full age; and that as Rukmini and Dharam Singh could in no case obtain the relief sought, the utmost that could be decreed would be Rs. 10 per mensem.

The lower Courts have found the facts to be as stated in the plaint. The Sub-ordinate Judge decreed in the plaintiffs' favour jointly, for Rs. 100 (arrears) and costs of the suit, and severally for the recovery by each of them, as a charge upon Mauji Lal's real estate, of Rs. 2-8-0 per mensem in perpetuity.

The District Judge varied this decree, by declaring Rukmini to have no right to maintenance, and by reducing proportionately the sum decreed by the Sub-ordinate Judge.

The defendant Kanhai Lal appealed to this Court; but he died before the appeal come on for hearing, and the estate of Manji Lal is now represented by Kanhai Lai's widow, Hargobind Kauri.

It is contended on behalf of the appellant (Hargobind Kuari) that she is under no legal obligation to maintain the illegitimate song of her father-in-law; that in no case could such maintenance be rightly made a charge upon the property; and that at any rate the charge should cease upon the illegitimate children reaching an age when they are able to maintain themselves.

It must at once be conceded to the appellant that unless the right claimed by the illegitimate children of Mauji Lal can be supported by Hindu Law and usage, it cannot be affirmed.

“The obligation of a father to support his children is,” to use the words of Mr. Justice West in Nurbihi v. Husen Lal “one imposed on him by the law of the family in some form or other, either of civil or criminal liability, under every civilized system” but it is not a proposition of natural law that the obligation devolves upon the father's heirs, or is a charge on his estate.

It is, however, clear that Hindu Law favours to an extraordinary degree the claims of illegitimate children upon the paternal estate “Amongst Hindus,” writes Mr. Herbert Cowell (Tagore Law Lectures, 1870, vol. 1, p. 170). ‘illegitimacy does not confer disgrace. Sonship confers so great advantages upon fathers, that the question of legitimacy is one which originally had no effect even in excluding from inheritance………The paunerbhara or illegitimate offspring were entitled to inherit on failure of legitimate of other preferable issue, or to as inferior portion, if there were a legitimate son………*……………………The distinction availed at first to give to legitimate issue merely a preferable right of inheritance over illegitimate. All the analogies of Hiudu law are Against the View of a bastard taken by the law of England, which law in that respect is founded upon the doctrine of Christianity. The right of inheritance to their father's estate, which formerly belonged to ??? sons in the Sudra caste, is still retained to them…………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 right to maintenance, are secured to him”. And at p. 936 of the Tajore Law Lectures for 1880, Pandit Rnjkumar Sarvadbikari writes thus:—“The general result of the examination of the authorities, both juridical and forensic; is that among the three regenerate clashes of Hindus (Brahmaum, Kshatriyas, and Vaisyas), illegitimate children are entitled to maintenance.” So also a Vaivshta ??? in Book I. chapter 6 section 2 quest. 1, West and Buhler, ed. of 1878, p. 275:—“An illegitimate son of a Brahman, a Kshatriya, or a Vaisya, cannot be a legal heir of his father. He and his mother, if well behaved, can claim a maintenance only from the property of the decreased.” So also Mr. J.D Mayne, in his Treatise on Hindu Law and Usage, section 374 (ed. 1878, p. 865), writes:—“Those who ??? be entitled to share in the bulk of the property are entitled to have all their necessary expenses paid out of its income. But the right of maintenance goes farther than this. Those who would be sharers, but for some personal disqualification, are also similarly entitled…………as for instance…………illegitimate sons when not entitled as heirs.”

The doctrines ??? stated are, in our opinion, fully borne out by the texts.

Thus Baudhayana, Pr. 2. Ka. 2 v. 23 (West and Buhler, ed., 1878, p. 537):—“They call the ??? sen, the son of un-appointed daughter, the son begotten on a wife, the adopted son the son made, the son born secretly, and the son cast off, entitled to share the inheritance. The spinster's son, the son taken with a bride, the son bought, the son of a twice-married woman, the self-given son, and the Nishda, these they call members of their father's family.”

So the Institutes of law ascribed to Vishnu, chapter xv, vv. 27 to 30 (West and Buhler, ed. 1878, p. 559):—“The son born by any woman whatever (yatra ??? †) is the twelfth. Amongst these sons each preceding one is preferable to the next mentioned. And the first mentioned inherits before the nett mentioned. And 1st him (the heir) maintain the rest.”

Both these authorities are of the Sutra period. Turning to the texts of the Smriti period, we find, in the authorities to which most respect is paid on this side of India, the following:—

A placitum of Yajnavalkya runs thus:—“Even a son begotten by a Sudra on a female salve 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 ??? and one who has no brother may inherit the whole property, in default of daughter's sons. The interpretation of the author of the ??? (Vijnanesvara) is—that portion only is quoted with which our present purpose is concerned—“From the mention of a Sundra 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 choices nor the whole estate after his demise. But if he be decile be receives a simple maintenance” (Mitakshara, chapter 1 section 12). And Mitra Misra in the Viramitrodaya (chap. ii, pt. ii., v. 23, ed. Calcutta 1879, p. 130) interprets thus:—“From the use of the term ‘a person of the servile class,’ it appears that one begotten by a ??? person on a female slave cannot, notwithstanding the desire of the father, get a share or a half-share after his death; the taking of his entire properly is out of the question; but he is entitled only to maintenance, provided be not disobedient.”

The learned plunder for the appellant admits the force of these texts, but pleads that they refer to the case of a son begotten on a female state (dasi), whereas in ibis suit there in no presence of Rukmini having been a female slaves and she is alleged, and found by the Courts below, to have been a respectable woman of the Brahman caste, and that the texts cited are therefore inapplicable.

There is we are of opinion, no force in this contention; for if Mayr following Colebrooke and Buhler, rightly interprets the definition in a text of Vasistha of the term ??? the effect of the contention would he to raise, not to depress, the respondents (who would be paunarbhavas, not dasiputras) in the scale of illegitimate sons; and it has been held by a Division Bench of this Court, in Sarasuti v. Manuu , that “there is no such distinction as is contended for between a son born of a female stave and of a concubine.” The case of Sarasuti v. Mannu is a Sudhra case; but the interpretation of the word “dasiputra” therein stated is not affected by that fact. We see no reason to doubt the justice of the dictum of Messrs West and Buhler in their remarks on Vaivshta 5, Book 1, chapter iv. (ed. 1878, p. 223), viz., that “according to Hindu Law the woman who commits herself into the keeping of a man becomes his slave.” And in a recent case—Raja Parichat v. Zalim Singh —their Lordships of the Privy Council have laid down the broad principle of Mitakshara Law on this subject in these terms:—“appears to be unquestionably the law that the illegitimate son of a person belonging to one of the twice-born classes has a right to maintenance.”

We must hold, therefore, that the respondents are entitled to maintenance; and if this conclusion be correct, it cannot, we think be doubted that in making the estate of their father liable for its payment, the Courts below have acted rightly.

In Chuoturya Ram Murdun Syn v. Sahub Purhulad Syn their Lordships of the Privy Council delivered judgment thus:—“The right of an illegitimate child of one of the three regenerate classes to maintenance out of the estate of his father, is recognized by all the authorities on Hindu Law relative to this subject…………Their Lordships are of opinion that although the appellant is shown to have no right to the inheritance, either as the legitimate or illegitimate son, he is still entitled to maintenance out of estate of his deceased father. Their Lordships therefore wilt humbly recommend to Her Majesty……to declare that the appellant, as the illegitimate son of the late Rajah Umur Purtab Syn, was and is entitled to maintenance out of his estate at the rate fixed .”

The fairness of the rate at which, in this case, the maintenance has been fixed by the Courts below, is not challenged in the appeal to this Court. The only point remaining for our consideration is, that of the period for which the maintenance should continue to be paid. Upon equitable grounds there is undoubtedly much force in the contention of the learned pleader for the appellant, that it is unjust to saddle the estate of Mauji Lal with the burden of maintaining young men who will soon be of age to earn their own Jiving. But it is undeniable that the criterion which the learned pleader asks us to fix is not that which has been fixed by the Hindu sages. “if he be docile,” says Vijnanesvara; “provided he be not disobedient,” says Mitra Misra. 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 reach full age, this test cannot be applied; but thereafter it cannot be ignored. What constitutes docility or disobedience, in the sense of the texts, is a question the answer of which is not easy; but we think that the true answer 3 indicated in a Vaivashta translated as No. 2, Book 1, chapter vi., section 2 of Messrs West and Buhler's collection (ed. 1878, p. 276) and we think that, on attaining full age, the responding must, as a condition of receiving maintenance from the estate of Mauji Lal, render to the head of the family such reasonable service as is ordinarily rendered by cadets of a family in that station of life to which the parties belong.

A decree, varying the decree of the lower appellate Court, will be made in the above terms. The costs of this appeal will be borne by Mauji Lal's estate.