Decided on October 24,1901



Bhashyam Aiyangar, J - (1.) The question and the only question which arises in this second appeal is whether, under the Mitakshara Law a divided brother of a Sudra A, who died without leaving legitimate mate issue is entitled to succeed to A's estate in preference to A's grandson, the legitimate son of A's predeceased illegitimate son. Neither side relies upon any usage or custom having the force of law and the question has td be decided as an abstract question of Hindu Law. There is no direct authority, either in the Hindu Law texts or in judicial decisions, applicable to the case. The question, therefore, has to be answered with reference to established principles and the analogies which have heretofore prevailed in like cases.
(2.) The author of the Mitakshara defines the rights of an illegitimate son in Ch. I, Section 12. He lays down that a son begotten by a Sudra on a female slave can be given a share by the father's choice; but that after the death of the father leaving legitimate male issue, they must allow their illegitimate brother half a share. But if the father died without leaving legitimate male issue but leaving a daughter or daughter's son, the illegitimate son takes half a share along with the daughter or daughter's son as the case may be. But in default of a daughter or daughter's son the illegitimate son takes the whole estate.
(3.) The rights of an illegitimate son in the paternal estate when the father has died a separated house-holder have now been clearly defined by judicial decisions. If the father left legitimate sons the illegitimate son is a co-sharer with them, the extent of his share being one-half of what it would be if he were a legitimate son ; and he can enforce a partition of his share (Thangam Pillai V/s. Suppa Pillai I.L.R. 12 M. 401 and Karuppanna Chetti V/s. Bulokam Chetti I.L.R., 23 M. 16 though, he cannot, like a legitimate son, claim a share as against his father, during the father's lifetime, even in respect of ancestral property. If the father left a widow, daughter or daughter's son but no legitimate male issue, the illegitimate son succeeds as a co-heir with the widow, daughtor or daughter's son as the case may be, and as sole heir, in default of any other heir down to a daughter's son. It is also tolerably well established that an illegitimate son though he may succeed as heir to his paternal and maternal estate, has no claim to inherit to collaterals Shome Shankar Rajendra Varere V/s. Rajesarswammi Jangam, I.L.R., 21A, 99 Krishnayyan V/s. Muthusami I.L.R., 7 M. 407. The point chiefly argued on behalf of the appellant is that inasmuch as the illegitimate son of his divided brother predeceased the father and had no right to enforce partition against the father, his son the respondent cannot claim under his father and that therefore he, the appellant, is entitled to succeed to his brother's heir and that the respondent as the grandson by an illegitimate son cannot claim directly as the heir of his grandfather. In support of this contention reliance is chiefly placed upon the decisions of this court that an illegitimate son has no claim by survivorship against the undivided co-parcerners of his father and therefore cannot sue them for a partition after the death of his father Krishnayyan V/s. Muthusami I.L.R., 7 M. 407 ; Ranaji V/s. Kandoji I.L.R., 8 M. 557; Parvati V/s. Tirumalai I.L.R., 10 M. 334. The effect of these decisions is that it is only when the father dies a separated householder that an illegitimate son is entitled to inherit to his separate estate, but that when the father dies an avibhaktu (undivided from his brothers or other collaterals) he is entitled only to maintenance. The principle of these decisions is explained as follows in Thangam Pillai V/s. Suppa Pillai, I.L.R., 12 M., 401.--" But these decisions proceeded on the view that he had no claim by survivorship against his father's co-parceners by jus representation's and that, he was neither a co-heir with his father, nor a sapinda in relation to his father's co-parceners." I may here refer to a subsequent decision of the Privy Council. (Jogendra, Bhupati V/s. Nittyananda Man Singh L.R. 17, I.A. 128; Jogendre Bhupati Hurochandra Mahapatra V/s. Nityanand Man Singh I.L.R., 18 C., 151 wherein it is distinctly laid down, following the decision of the Bombay High Court in Sadu V/s. Baiza I.L.R., 4 B. 37 and affirming the decision of the Calcutta High Court Jogendro Bhuputi V/s. Nityananda Man Singh I.L.R., 11 C. 702 that though an illegitimate son acquires no right by birth, in the same way as a legitimate sgn, and therefore cannot claim a share as against his father, yet that on the death of the father the legitimate and illegitimate sons hold the property as members of a joint Hindu family with right of survivorship and that on the death of either without male issue the survivor takes the entire estate. If the legitimate son dies without male issue, the illegitimate son becomes entitled to the whole estate. If the illegitimate son predecease the legitimate son, leaving male issue and the legitimate son afterwards dies without leaving male issue, the whole property will devolve by survivorship on the issue of the illegitimate son. This mast be the necessary result if, as affirmed by the Privy Council, the legitimate and illegitimate sons, on the death of the father, hold the family property as members of a joint family.;

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