1. The suit out of which this appeal arises is for partition and separate possession of the plaint property to the extent of the plaintiffs' share, which they originally claimed was two-third but which they now admit is only two-fifth. They claim as reversioners to Sadasheo, the common ancestor of the plaintiffs and the first three defendants. The following genealogical tree will explain the relationship between them.
2. Sadasheo had four illegitimate sons who represent the plaintiffs' branch of the family. Plaintiff 1 Punjaram was one of them, and the other plaintiffs are the sons of the other three. Sadasheo also adopted a son Ramrao who represents the defendants' branch. He was the father of defendants 2 and 3 and grand-father (father's father) of the third. The illegitimate sons are the issue of a mistress and as the parties are Sudras they were admittedly entitled to a share on the death of the father, and their rights to this Ware upheld in a previous litigation. In the year the illegitimate sons sued Ramrao and Sadasheo's widow Laxmlbai, Sadasheo being then dead, for partition. Their right to partition was disputed, but the parties agreed among themselves that if their right was upheld then the shares should be as follows: the four illegitimate sons should be given 8-annas, the adopted son Ramrao 4-annas and the widow Laxmibai 4-annas. Of course, this distribution was not in accordance with the rule laid down by their Lordships of the Privy Council in 46 Mad 167 AIR 1923 PC 8 , 71 IC 643 , 46 Mad 167 , 50 IA 32 (PC); the illegitimate sons obtained much more than they were legally entitled to. The division was evidently made in accordance with the law as it was then understood, but that does not matter any longer. The parties agreed to it and their agreement reached finality in the shape of a decree long ago. In 1908 Laxmibai sued her adopted son Ramrao and his illegitimate brothers for demarcation and separate possession of the share given her under the above decree. As a result, she was given a 4-annas malguzari share in mauza Pipalgaon and a 1-anna malguzari share in mauza Sirpur with some home farm land. She was still dissatisfied and on 8th September 1909 she exchanged the 4-annas of mauza Pipalgaon and her home farm lands appertaining to it for another 1-anna share in mauza Sirpur and some more home farm lands in that village. This was under a private arrangement between Ramrao and herself. Some years later on 19th March 1920 there was a partition between Ram rao and his sons in which Gopalrao the father of defendant 1 obtained a 2-annas share in Pipalgaon. This is admittedly part of the 4-annas which had originally been assigned to Laxmibai. After this followed a series of transfers by Gopalrao of portions of this 2-annas share to defendants 9 and 10. They have been given in detail in the lower Court and need not be repeated here. Laxmibai died on 13th September 1926 and the plaintiffs claim a two-fifth share in the property which was assigned to her at the partition as regards the exchange with Ramrao, they contend that she obtained only a life-interest and bo was not entitled to enter into any arrangement with respect to the property assigned to her, which would enure beyond her life. Consequently the assignment to Gopalrao and his alienations to defendants 9 and 10 do not bind them.
3. It is evident from Ex. P. 1 the judgment of the Judicial Commissioner's Court in the previous suit of 1902, that the 4 annas share then assigned to Laxmibai was the usual share to which a mother is entitled under the Mitakshara on a partition between the sons. Of course, the extent of the share she obtained was less than she was legally entitled to but as everybody was then agreed on that point, this cannot be regarded as altering the nature of her interest in it. What is important is that she obtained what she actually got in this capacity. The plaintiffs argue that what the mother gets in these circumstances is given in lieu of her right to maintenance and consequently is carved out of an estate which has already vested in the sons: therefore the property must revert to the estate from which it was taken, i.e the estate of the sons, legitimate and illegitimate. Some support is to be found for this position in Edn. 8 of Mulla's Hindu Law, para 128(2), page 163. The learned author observes that the estate in such a case passes not to her stridhana heirs but “to the sons or grandsons out of whose portion it was taken out”. This was also the view of Kinkhede A.J.C in 23 NLR 184 AIR 1926 Nag 453 , 95 IC 734 , 23 NLR 184 at page 191 and is the view taken in Trevelyan's Hindu Law, Edn. 3, page 365, and apparently also in Cour's Hindu Code, Edn. 3, page 1427. We do not read the Privy Council decision upon which these views are based in that way. In 34 All 234 (1912) 34 All 234 , 14 IC 1000 , 39 IA 121 (PC) at page 242 their Lordships observe that there are two possible alternatives:
If the share given to a widow on partition is given to her as substitute for that to which she would be entitled upon inheritance, then, according to the foregoing authorities, it would seem reasonable that it should follow the same rule of decent and revert on her death to her husband's heirs. If, on the other hand, it is given to hex by way of provision for her maintenance, it seems equally reasonable that when the necessity or her maintenance has ceased, the property shall, revert to the state from which it was taken.
4. It is true, the result would have been the same in the case before their Lordships whichever point of view was adopted, but their Lordships had to decide the principle upon which they were to proceed and so continued:
Their Lordships do not feel justified in putting property acquired by a widow on a partition of the joint estate, upon a footing different from that on which property coming to her by way of inheritance has been placed…. The principle upon which the cases relating to inheritance have been derided appears to be safe guide in dealing also with cases of partition.
5. In an earlier portion of their judgment, (at page 241) they point out that the property which the widow inherits from her husband passes on her death “to the next heirs of her deceased husband”. Golap ebandra Sarkar Sastri in the Edn. 7 of his learned work on Hindu Law at pages 532 and 789 argues that such a share cannot be in lieu of maintenance, for, when the estate is very large the mother would get property far in excess of what would be necessary for that purpose and when very small far too little. It is true the learned author had originally based his opinion upon the old Allahabad view which was reversed by their Lordships of the Privy Council but it has not been altered in the latest edition of his work and be far as these observations are concerned they seem to be sound. In any case their Lordships relied on the fact that for William Maonagbten in his Principles and Precedents of Hindu Law puts partition on the same footing as inheritance, as far as the rights of a widow are concerned. It is immaterial whether this is unsupported by the Mitaksbara or not (see West and Buhler's Hindu Law, Edn. 3, Vol. 2, page 323). Their Lordships have decided it is the law and in our opinion have placed such property in the same category as property inherited from the husband. It follows descent must be traced from Sadasheo.
6. The next point is more difficult. The defendants argue that illegitimate sons obtain their rights because of a special text and that but for it they would have no right at all. Consequently, once they have been given a share on partition they have obtained all they are entitled to under the special text and so are not entitled to inherit again under the ordinary Hindu law. This view was applied by the Madras High Court in 65 Mad 856 AIR 1932 Mad 440 , 137 IC 645 , 55 Mad 856 , 62 MLJ 698 where the learned Judges held the doctrine of reverter did not apply in the case of an illegitimate son. As against this is the view that they are sons and have always been looked upon as sons, and but for the stricter notions of marriage which gradually crept into the Hindu law would have shared in the patrimony like any other son. The text relating to the illegitimate son is therefore a text of curtailment, cutting down what was once his undoubted right and consequently must be strictly construed and cannot be applied beyond its own express provisions. Some justification for this view is to be found in 57 All 85. AIR 1935 All 329 , 153 IC 1078 , 57 All 85 , 1935 ALJ 150
7. There can be no doubt that the Hindu law on the point is in a confused state, and that whichever view is taken, anomalies will arise. We therefore deem it ad viz. able to review briefly such portions of the law as are now beyond dispute before examining the merits of these two conflicting positions. Their Lordships have settled at least these two points in 18 Cal 151 (1891) 18 Cal 151 , 17 IA 128 , 5 Sar 596 (PC) at page 155. First that the illegitimate son does not acquire by birth a right to share in the estate in the same way as a legitimate son; and second, that after the father's death a coparcenary is created between the legitimate and the illegitimate sons entitling them to retain the whole estate between them if they do not want to partition, and entitling them to succeed to each other by survivor ship. The illegitimate son thus excludes the widow of the legitimate son and takes the whole estate to himself on the death of the legitimate son when there has been no partition. Their Lordships quoted with approval a sentence from the judgment of Haridas, J. in 4 Bom 37 (1879) 4 Bom 37 (FB) at page 47 where he says:
I would therefore hold that the plaintiff and Mahadu, being male members of an undivided Hindu family governed by the Mitakehara law, etc.
8. So it is now clear that whatever may be the position of the illegitimate son before the father's death, after it he becomes a member of the coparcenary; a member with curtailed rights, it is true, but nevertheless a member. Haridas, J. was even more emphatic in another part of the same judgment and their Lordships while accepting his conclusions and actually quoting some of his words did not disapprove of this passage:
I am not prepared to allow that the former (i.e the illegitimate son) is not a coparcener, and not therefore entitled to succeed by right of survivor ship. His legal status as a son is unquestionably reoognized and accordingly he inherits from his father even before the latter's widow; and if there are auras patras of his father he succeeds to the father's estate jointly with them. He is dearly therefore their coparoener… he is their brother, not only in the popular, but also in the legal, acceptation of the term.
9. The learned Judge meets the argument that the illegitimate son is not included in the enumeration of heirs given in the Mitakshara Chap. 2, S. 2, placitum 2 by pointing out that plaoitum only lays down the order of succession on the failure of sons and consequently can have no application where there are sons legitimate and otherwise.
10. We turn next to more debatable ground. A Pall Bench of the Madras High Court has held in 41 Mad 44 AIR 1918 Mad 1346 , 42 IC 556 , 41 Mad 44 , 33 MLJ 224 (FB) that the putative father of an illegitimate son succeeds to the illegitimate son. The Judges were unanimous and the ground of their decisions was that the illegitimate son is an undoubted heir to the father and consequently by the rule of mutuality the father must succeed to the son. Wallis C.J pointed out that the illegitimate son was recognized as one of the father's nearest heirs at the date of Yajnavalkya though his right was only to a half.
From the time of Yajnavalkya onwards, the illegitimate son has been an heir to his father and an heir of a very high rank excluding all the subsequent classes of sons which at that time included even the dattaka or sons given in adoption.
11. Oldfield, J. considered that the, decision of the Judicial Committee in the case quoted above established that:
A coparcanary exists between the legitimate and illegitimate sons in virtue of a relationship and not as spclally created by the recognition of the latter in the texts for special purposes which the; specify, and subject to special limitations, which those purposes imply. Such relationship can be traced only through the affiliation of both sons to their common father; and the result, which must be accepted, is the recognition of the illegitimate son as a son in the most comprehensive sense, subject only to certain disabilities.
12. Kumaraswami Sastriyar, J. said:
The fact that a special text was necessary to give him a favourable position cannot in my opinion be treated as showing an intention to exclude him from the category of sons whom the Smriti writers mention as capable of inheriting to their father.
13. Another very learned Hindu Judge, Bhashyam Ayyangar, J. was of the same opinion in 25 Mad 519 (1902) 25 Mad 519 , 11 MLJ 399 at p. 524:
The Sudra's illegitimate son is therefore in a position more analogous to that of a legitimate son than to that of other relations whose right of inheritance is liable to obstruction.
14. These views appear to follow logically from the ground on which the Judicial Committee based their decision and unquestionably from the decision of Haridas, J. in the Bombay case. As opposed to this however there is a large body of authority which holds that the illegitimate son does not succeed to collaterals. It is not an undisputed view. Many eminent Hindu law scholars are against it: See Sarvadhikari's Principles of Hindu Law, Edn. 2, p. 826 and Kumaraswami Sastri, J. in 49 Mad 116 AIR 1926 Mad 84 , 92 IC 928 , 49 Mad 116 , 49 MLJ 568 at p. 154. But they are all agreed that however much this rule may be opposed to principle, it is perhaps too late to question the long series of decisions on the point. However, it is possible to distinguish them. The rule is based on a text of Manu as interpreted by commentators and is reproduced in Ch. 1, S. 11, placita 30 and 31 of the Mitakshara. But these very placita show clearly that the illegitimate son is a kinsman and a blood relation. What they say is that Manu provided two sets of six sons. The first six he declared to be heirs and kinsmen and the next six, which include “the son of an unmarried woman”, as not heirs but kinsmen. Then the commentator proceeds:
That must be expounded as signifying that the first six may take the heritage of their father's collateral kinsmen (sapindas and samanodakas) If there be no nearer heir; but not so the last six. However, consanguinity and the performance of the duty of offering libations of water and so forth on account of relationship near or remote belong to both alike.
15. It is true the learned Judges in 21 All 99 (1898) 21 All 99 , 1898 AWN 170 at pp. 103 and 104 say that sapinda relationship presupposes a lawful marriage, but we agree with Sadasiva Ayyar, J. in 41 Mad 44 AIR 1918 Mad 1346 , 42 IC 556 , 41 Mad 44 , 33 MLJ 224 (FB) at p. 56 that there is nothing to support this view and the quotation just cited appears to us to indicate the contrary. Their Lordships of the Privy Council decided in 37 All 604 AIR 1915 PC 70 , 30 IC 529 , 42 IA 208 , 37 All 604 (PC) at p. 623 that although under the Mitakshara the right of inheritance arises from sapinda relationship, or community of blood, in judging of the nearness of blood-relationship or propinquity among the gotrajas, the test to be applied to discover the preferential heir is the capacity to offer oblations.
16. It follows that one must be a blood gelation before the oblation can be offered and vice versa. Therefore, since the Mitak shara recognizes the illegitimate son's right to offer libations of water and so forth on the ground of consanguinity and relationship, it is clear his sapinda relationship to his father and brothers is accepted. Of course it is anomalous in such a view to out him off from succession to collate, rules, but as Sadashiva Ayyar, J. says in the case just cited: “This is one of the anomalies of the Hindu law which do not rest upon any principle but only upon texts.”
17. It is to be observed that Bipin Krishna Bose A.J.C, in construing a similar text which deals with the sister in the chapter on inheritance, decided that she succeeded as an heir and participated in the inheritance. Ch. 1, S. 7, placitum 6, says, with respect to the sister, that she “participates” in the inheritance. The corresponding section dealing with the illegitimate son is S. 12, placitum 1. It says that “the father being dead, the brothers should make him partaker of the moiety of a share”. The language, therefore, is the same and was presumably used in the same sense; at any rate it ought to be construed as such. The Allahabad High Court have extended this principle to the extent of allowing a mother to succeed to her illegitimate son even among the re-generate classes: 57 All 85. AIR 1935 All 329 , 153 IC 1078 , 57 All 85 , 1935 ALJ 150 Put very briefly their line of reasoning is this: under the old Mitakshara law, the son who is bow looked upon as illegitimate would not have been regarded as illegitimate at all and so would undoubtedly have succeeded. His position has been curtailed front time to time by various texts: he is not now entitled to claim a share and the relationship between him and the regenerate father is no longer recognized, but the same cannot be said of the mother. Therefore in the absence of a text taking it away, his right to inherit to her is still intact. Then the learned Judges applied the rule of mutuality and eventually decided that the mother could succeed to her illegitimate son.
18. This is also the view in these Provinces. In 16 NLR 221 AIR 1920 Nag 196 , 56 IC 952 , 16 NLR 221 Macnair A.J.C held that an illegitimate daughter not born of an adulterous intercourse inherits the property of her mother if there are no preferential heirs, whether the mother is twice, born or a Sudra. The same view is taken in 21 Mad 40 (1898) 21 Mad 40 and in 45 Bom 557. AIR 1921 Bom 137 , 59 IC 561 , 45 Bom 557 , 22 Bom LR 1306 But there are two cases which require consideration. They are 34 Bom 553 (1910) 34 Bom 553 , 7 IC 459 , 12 Bom LR 545 and 38 Mad 1144. AIR 1915 Mad 63 , 25 IC 957 , 38 Mad 1144 , 27 MLJ 353 They hold that in a competition between a legitimate and an illegitimate child with respect to the mother's stridhana, the former excludes the latter. The reason given for this in the Bombay case is that the law of inheritance presupposes a lawful marriage. We have already pointed out that there is in our view nothing to support this. But apart from that, the opinion recorded there is obiter, for the learned Judges came to the conclusion that in the case before them marriage had to be presumed and rested their decision on that fact. The consequence was that this difficult problem was not carefully considered and disposed of in a Short paragraph.
19. The same cannot be said of the Madras case. But there also, the learned Judges have taken a view which we have already discussed and find ourselves unable to accept. The competition there was between a legitimate son and two illegitimate daughters, and the decision is founded on the assumption that illegitimate children have no status at all and no rights except those conferred by special texts. There is no text dealing with the illegitimate daughter, so they held she is excluded from the inheritance. This is an understandable position, though, as we have said, we prefar another view, but in our opinion the weakness of the decision lies in two points. The learned Judges did not dissent from the cases which decide that the illegitimate child succeeds in the absence of nearer heirs. They merely endeavoured to distinguish them, and the reason they give is that the illegitimate child succeeds in such a case on the ground that in the absence of preferential heirs, and if the Crown does not intervene, they guceeed as blood relations.
20. But that is precisely the view which is negatived in the body of the ruling. The illegitimate daughters were excluded because they were not regarded as ‘daughters’ within the meaning of the texts. The other point is this. The learned Judges distinguish the Calcutta rulings which favour the illegitimate child on the ground that Calcutta Judges are influenced by the theory which prevails in Bengal that the offering of oblations has to be taken into account in determining heirship, and that does not affect the Mitakshara where the rules of inheritance are based on community of blood. But this is exactly what their Lordships of the Privy Council have overruled in 37 All 604 AIR 1915 PC 70 , 30 IC 529 , 42 IA 208 , 37 All 604 (PC) at p. 623 to which we have already referred therefore, though with the utmost respect, we disagree with the ratio decided of this decision, especially as Seshagiri Aiyar J., who delivered the main judgment, went to the length of saying that he thought that even the text which allows the illegitimate son of a Sudra half a share should now be regarded as obsolete.
21. Turning next to the ruling which at first sight appears to be on the other side, 55 Mad 856, AIR 1932 Mad 440 , 137 IC 645 , 55 Mad 856 , 62 MLJ 698 it deals with a special situation. The father on his death left & widow and an illegitimate son who of course succeeded to the estate half and half. When the widow died there was a daughter's son and the question was whether he got the entire moiety which had vested in the widow or only half of it. Now the text says:
However, should there be no sons of a wedded wife the son of the female slave tabes the whole estate provided there be no daughters of a wife nor sons of daughters. But if there be such the eon of the female slave participates for half a share only.
22. It is therefore understandable that this text should be construed as meaning that the illegitimate son can only get half so long as there is a daughter or a daughter's son, and that consequently there can be to reverter so long as daughter's sons exist. But this would be because of the text and not because he is not an heir to his putative father or because he is not a member of the family. The learned Judges do not refer at all to the mass of authority which we have just analysed, We are consequently unable to accept the decision as authority for anything but the point it actually decides. The result is that we are left with the position that the illegitimate on is the father's heir and except in so far as his rights have been curtailed by express texts, he must be treated as such. We do not deny that this leads to anomalous results. It is anomalous to find for instance that if Ramrao had been a daughter, his sons would have got more than they do now. But the Hindu law is full of anomalies and any other result would lead to equally anomalous situations. All we can do is to administer the law as we find it and interpret it as logically as we can in the circumstances. In the beginning, the plaintiffs claimed ⅔rd of the 1 annas which went to Laxmibai at the partition, but the first Court decreed only 2/5th and there was no appeal against that 2/5th is all that they could have obtained under the law, but the difficulty arises about the extent of the property which comprised Laxmibai's 4 annas share. As we have said the plaint claims a share in all the property which was originally allotted to Laxmibai as a result of her suit in 1908. But, as we have also pointed out, she exchanged some of it for other portions of the family property in Ramrao's possession in 1909. There is no suggestion that the exchange was an unfair one, and it was obviously more convenient for her to manage a compact estate in one village instead of properties scattered over two. This arrangement did not affect the plaintiffs or any property allotted to their share. So we are of opinion that her share must be regarded as having consisted of the properties which were in her possession after the exchange in 1909 and not those allotted to her in 1908. Any other conclusion would be unfair to defendants 9 and 10 who are subsequent transferees from Gopalrao. It would also be unfair to defendant 1, for the transferees from his father will naturally claim compensation if their property is taken from them. On the other hand, it would not affect the plaintiffs in any way. The partition must in our opinion, be looked upon as a whole as if it had extended over the years 1908 and 1909 and the situation regarded as if the subsequent arrangement under which Ramrao and Laxmibai exchanged portions of the properties originally allotted to them was part and parcel of the partition proceedings. Consequently the plaintiffs' suit fails with respect to the properties which were assigned to Ramrao by Laxmibai under the exchange of 1909, and we leave them to such remedies as they may have, if any, with respect to the property which Ramrao handed over to Laxmibai. That property has not been included in this suit and so we are finable to deal with it here. The appeal thus succeeds with respect to the property which Ramrao obtained by exchange from Laxmibai on 8th September 1909 and fails as regards the rest. The decrees of the lower Courts will consequently be modified by excluding this property from the decree and dismissing the plaintiffs' claim with respect to it.
23. As regards costs, the plaintiffs claimed ⅔rd when they were only entitled to 2/5th, that is, they claimed 4/15th more than they were entitled to. Therefore in the first Court they will be allowed 11/15th of the costs proportional to the property with respect to which they now succeed. The defendants will be allowed 4/15th of the costs on that portion. As regards the rest of the property with respect to which the plaintiffs' case has been dismissed, the plaintiffs will pay the defendants such costs as are apportion able to that part of the claim. With respect to the costs here and in the lower Appellate Court, defendants 9 and 10 appealed as regards the ⅔rd the plaintiffs had originally claimed, although only 2/5th had actually been decreed. Therefore they appealed unnecessarily as regards 4/16th. They will therefore receive 11/15th of the costs apportion able to the property in respect of which the plaintiffs' claim has been dismissed, and pay the plaintiffs 4/15th of that amount. As regards the rest of the property with respect to which the appeal has failed, they will pay the plaintiffs such costs as are apportion able to that part of the claim.
D.S/R.K
24. Appeal partly allowed.