GOVINDARAJULU ALIAS JAYARAMAN Vs. BALU AMMAL

JUDGEMENT

(1.) This appeal raises an interesting question of Hindu law. The facts are not now in dispute. The properties in suit belonged to one Kandaswami. He had a son Nataraja, but this son predeceased Kandaswami. Kandaswami died on 28 1-1945 leaving behind him three daughters the plaintiff and defendants 1 and

(2.) The fourth defendant who is the appellant in this Letters Patent Appeal, it has now been definitely found, is the illegitimate son of Nataraja by his permanently kept concubine. The suit was laid by one of the daughters of Kandaswami for recovery of possession of a third share of the properties which were admittedly the self-acquired properties of Kandaswami, defendants 1 and 2, the other daughters, practically supported the claim of the plaintiff. Defendant 4 claimed that he was entitled to the properties in the right of his father, Nataraja, on the ground that he was entitled to represent the father and share the inheritance. The District Munsif and the Subordinate Judge on appeal held that the fourth defendant was entitled to a half share in the properties, and a preliminary decree for partition of the properties was passed declaring the right of the plaintiff and defendants 1 and 2 to 1/6th share each, and that defendant 4 was entitled to a half share in the properties. The properties were directed to be divided by metes and bounds. Against the decision of the Subordinate Judge there was a second appeal to this Court by the plaintiff claiming that she was entitled to 1/3rd share and not to 1/6th share. There was a memorandum of cross objections by defendant 4 who claimed that he was entitled to all the properties and not merely to a half share, The second appeal was heard by Rajagopalan J. who held that defendant 4 was not entitled to any share at all as he was not entitled to represent his father, Nataraja, and allowed the appeal of the plaintiff and dismissed the cross objections filed by defendant 4. 2. In this Letters Patent Appeal by defendant 4, the fourth defendant claimed that he was entitled to the entirety of the properties on the ground of representation. He claims this right on the analogy of the legitimate son, grandson, and great grandson to take the inheritance in respect of self-acquired or separate properties of the father on the principle of representation.

(3.) The rights of a dasiputra or son by a female slave in the case of Sudras are based on a special text of Hindu law contained in Section 12 of chap. I of Mitakshara. This section occurs in Mitakshara after the rights of the sons by birth and by adoption have been stated in Section 3 of the same chapter in which the rights of the principal and secondary sons have been discussed by Vignaneswara, and it precedes chap. II where in Section 1 of that chapter the order of succession to the property of a person dying soilless is enumerated. It begins by stating: