History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1202

v4.c63.1202

From ancient times it had been settled that the dāsīputra of a person belonging to the twice-born classes is not entitled to a share on partition or to inherit, but is entitled to maintenance only. Gaut. 28. 37 provides¹¹³⁵ that even the son of a brāhmaṇa who is issueless from a śūdra woman (a concubine) should receive the means of maintenance provided he is obedient in the manner of a pupil. Bṛ. (S. B. E. vol. 33 p. 374 verse 31) contains a similar rule for the maintenance of an illegitimate son born of a śūdra woman after the father's death. But as regards the son of a śūdra from a *dāsī* Manu IX. 179 provides that such an illegitimate son may take a share in the father's property if the father allows him to do so. The classical passage on the rights of the illegitimate son of a śūdra from a dāsī is Yāj. II. 133–134 which verses are introduced by the V. Mayūkha¹¹³⁶ with the words "Yāj. declares a special rule as regards one begotten by a śūdra on a woman (of the same caste) not married to him" and which may be rendered thus "even a son begotten by a śūdra on a dāsī may partake of a share at the choice (of his father). But, when the father is dead, the brothers should make him the recipient of a half share". This passage and the comments of the Mit., the V. Mayūkha, the Dāyabhāga have been cited and explained in numerous cases. The following propositions as deduced from the texts and the case-law may be set out here:—(1) the illegitimate son of a śūdra even under the Mit. does not acquire by birth any interest in the estate held by the father and so cannot enforce a partition in his father's lifetime, but the father may give him a share in his lifetime, which may even be equal to that of a legitimate son (4 Bom. 37, 44-45, 23 Mad. 16); (2) on the father's death an illegitimate son of a deceased śūdra becomes a coparcener along with the legitimate sons and the former is entitled to seek partition (4 Bom. 37 F. B.); (3) on a partition the illegitimate son takes only one half of what he would have taken¹¹³⁷ if he were a legitimate son i. e. if there be one legitimate and one illegitimate son, the latter would take one-fourth and the former three-fourths; (4) if no partition takes place and the legitimate son or sons all die without partition, the illegitimate son would take the whole as the last survivor of the coparcenary (L. R. 17. I. A. 128); (5) if there be no legitimate sons, grandsons, or great-grandsons of the śūdra father, the illegitimate son takes the whole estate;¹¹³⁸ (6) as the text of Yāj. refers only to a son, an illegitimate daughter is not entitled to any inheritance or even to maintenance (32 Bom. 562); (7) if the śūdra father be joint with his collaterals such as brothers, uncles or nephews, the illegitimate son cannot demand a partition of the joint family property though he is entitled to maintenance as a member of the family provided the father left no separate estate (L. R. 58 I. A. 402). It has been held that if a śūdra keeps a woman of the brāhmaṇa caste as his exclusive mistress and has a son from her, he is not a dāsīputra (but acc. ancient works a cāṇḍāla) and is not entitled to inherit the estate the śūdra father as an illegitimate son. Vide *Ramchandra v. Hanamnaik* 37 Bom. L. R. 920 followed in 18 Lucknow 585. Further rules about the inheritance of the illegitimate son when in competition with the widow, legitimate daughter or legitimate daughter's son will be dealt with later on (vide n. 1356 below).