HARISINGJI CHANDRASINGJI Vs. AJITSINGJI CHANDRASINGJI

JUDGEMENT

(1.) THE appellants in these two appeals are illegitimate sons of Sardar Chandrasinghji Himatsinghji, who was the Thakore of Matar estate, which is a talukdari estate in Amod taluka in Broach District. He was a Rajput by caste. THE respondent is the eldest legitimate son of Sardar Chandrasinghji, and succeeded to the estate on the latter's death on July 10, 1939. By custom the estate is impartible, and succession to it is governed by the rule of primogeniture. In 1943 the two appellants filed two separate suits claiming maintenance from the respondent. THEy stated in their plaints that their mother was in the continuous and exclusive keeping of Chandrasinghji, that there was a custom prevalent in Gujarat and in the Broach District according to which the junior members of the family and illegitimate sons were entitled to maitenance, and that they had, therefore, a right to recover maintenance from the estate, both according to custom and also according to law. THE defendant disputed these statements. THE trial Judge found that the mother of the appellants -plaintiffs was in the continuous and exclusive keeping of Chandrasinghji, and that apart from the talukdari estate, Chandrasinghji had left no separate property of his own. He also held that the appellants had not proved the custom as regards the right of illegitimate sons to claim maintenance from the estate. THEse findings have not been disputed in appeal. THE trial Judge also came to the conclusion that as the estate was impartible, and as no custom giving a right to illegitimate sons to receive maintenance from it had been proved, the plaintiffs were not entiled to any relief. He, therefore, dismissed their suits. THE plaintiffs have appealed.

(2.) THE position of an illegitimate son rests upon two texts, as pointed out at p. 646 in Mayne's treatise on Hindu Law and Usage, 1938 Edition. According to Manu, A son begotten by a man of the servile class on his female slave, or on the female slave of his male slave, may take a share of the heritage, if permitted (by the other sons.) Yajnavalkya has enlarged the rule as follows : Even a son besrotten by a Sudra on a female slave (dasipuira) may take a share by the father's choice. But, if the father be dead, the brethren should make him partaker of the moiety of a share; and one who has no brothers may inherit the whole property in default of daughter's sons. This is cited as the first verse in Mitakshara, c. I. Section 12.In explanation of these texts, Vijnanesvara says in the second verse, THE son, begotten by a Sudra on a female slave, obtains a share by the father's choice, or at his pleasure. But, after (the demise of) the father, if there be sons of a wedded wife, let these brothers allow the son of the female slave to participate for half a share : that is let them give him half (as much as is the amount of one brother's allotment, However, should there be no sons of. a wedded wife, the son of the female slave takes the whole estate, provided there be no daughters of a wife, nor sons of daughters. ' But, if there be such, the son of a female slave participates for half a share only. THE third verse in Section 12 of the Mitakshara is as follows: From the mention of a Sudra 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 choice. But, if he be docile, he receives a simple maintenance. THE last verse is obviously based on the conclusion drawn by the learned author from the position assigned to an illegitimate son of a sudra by the texts. Mitra Misra in the Viramitrodaya (c. II, pt. II, Section 23, Shastri's translation, Ed. Calcutta 1879, p. 130) has interpreted the texts thus: From the use of the term 'a person of the servile class' in Yajnavalkya's text, it appears that one begotten by a twice horn person on a female slave cannot, notwithstanding the desires of the father, get a share or a half -share after his death; the taking of his entire property is out of the question : but he is entitled only to maintenance, provided he be not disobedient.

(3.) IT has been held in various cases decided by the Madras High Court that the texts cited above refer to the estate of a separated house holder, that is to the separate property of father (see Ranoji v. Kandoji (1885) I. L. R. 8 Mad. 557 Parvathi v. Thirumalai (1887) I. L. R. 10 Mad. 334 Ramalinga Muppan v. Pavadai Goundan (1901) I. L. R. 25 Mad. 519 and Gopalasami Chetti v. Arunachelam Chetti (1903) I. L. R. 27 Mad. 32) After referring to these cases, Sir Dinshah Mulla in his judgment in Vellaiyappa Chetty v. Natarajan (1931) L. R. 38 I. A. 402, 407 has stated that verses 1 and 2 inc. I, Section 12 of the Mitakshara, which relate to a Sudra son make no mention of maintenance where the father has left no property to which the son can succeed, and that cases in which the maintenance is claimed out of joint family property must, therefore, be considered outside the texts. Following these decisions Mr. Justice Broom field in Hiralal Lax -mandas v. Meghraj Bhikchand [1938] Bom. 779, 789 : s. c. 40 Bom. L. R. 937 has stated that it is now settled law that the texts apply only in the case of separate property of the father. Nevertheless maintenance to illegitimate sons out of joint family property in the hands of the surviving members of the joint family has been awarded in several cases: see Hargobind Kuari v. Dharam Singh (1884) I. L. R. 6 All. 329; Ananthaya v. Vishnu (1893) I. L. R. 17 Mad. 160; Gopalasami Chetti v. Arunacfielam Chetti (1903) I. L. R. 27 Mad. 32; Subramania Muddy v. Valu (1930) I. L. R. 84 Mad. 68; Vellaiyappa Chetty v. Natarajan; Vellaiyappa Chetty v. Natarajan and Hiralal Laxmandas v. Meghraj Bhikchand. Maintenance out of joint family property has been awarded on the recognised principle of Hindu law that where a person is excluded from inheritance to property or from a share on partition of joint family property, he is entitled to maintenance out of that property (see Vellaiyappa Chetty v. Natarajan, p. 407 ). In Vellaiyappa Chetty V. Natarajan (1926) I. L. R. 50 Mad. 340 Mr. Justice Krishnan has summed up the position thus (p. 346) : . . . the authorities are quite clear that when the illegitimate son cannot ask for a share, he is entitled to get maintenance from his putative father's joint family estate even in ths hands of his coparceners. The decision in this case was affirmed by the Privy Council in Vellaiyappa Chetty v. Natarajan (1931) L. R. 58 I. A. 402 : s. c. 33 Bom. L. R. 1526.