T B K VISWANATHASWAMI NAICKER Vs. KAMULAMMAL

JUDGEMENT

(1.) The 1st question to be decided is whether the plaintiff as the illegitimate son of his deceased father is entitled to share equally with his widow the 1st defendant or whether he is only entitled to half of her share i.e., to 1/3 rd of the properties. In a series of cases in Madras beginning with Banoji v. Kandoji (1880) I.L.R. 8 M. p. 557, it has been held that an illegitimate son succeeding to his deceased father along with a widow, daughter or daughter s son is entitled to half of the properties and not merely to one-third Pravathi v. Tirumalai (1886) I.L.R. 10 M. p. 334 at p. 343, Ghinnammal v. Varadarajulu (1892) I.L.R. 15 M. 307, and Meenakshi v. Appakntti (1909) I.L.R. 33 M. 226 S.C. 20 M.L.J. 359 In Bahi v. Govindu (1875) I.L.R. 1 B. 97, Chief Justice Westropp elaborately reviewed all the texts of Hindu law dealing with the rights of an illegitimate son and came to the conclusion (as we understand the judgment) that the illegitimate son was entitled to a half share of the properties and in Seshagiri v. Girewa (1889) I.L.R. 14 B. 282, Sargent, C.J. who delivered the judgment of the Court, took the same view and understood the decision in Rahi v. Govindu (1875) I.L.R. 1 B. 97, as laying down the same rule. The learned vakil for the respondent invited us to construe for ourselves the original text of Mitakshara which he says is clearly in his favour. He also cited the commentary of Apwarka on the text of Yagnavalkya and the commentary of Medafciiithi, the well-known commentator of Manu on the same text. He further contended that all the text book writers on Hindu lav who knew Sanskrit have construed the passage of the Mitakshara in the way he construes it. Much may no doubt be said in favour of this construction. But the decisions of this Court are not based merely on the interpretation of the text of the Mitakshar. In Banoji v. Kandoji (1880) I.L.R. 8 M. p. 557, in which the position of an illegitimate son was fully considered, reliance was placed on a passage from the Dattaka Chandrik which states in clear terms that the illegitimate son shares equally with the widow, daughter and daughter s son. It was this very passage of the Dattaka Chandrika which was relied on as authority for not excluding the widow from the succession when there is an illegitimate son, whereas the Mitakshara omits the widow from the category of persons who are not excluded by the illegitimate son. The Dayabhaga which gives the illegitimate son an equal share with the daughter and daughter s son was also referred to.

(2.) In this state of things, we are not prepared to depart from the course of decisions in this Court which hold that the plaintiff is entitle to share equally with the widow.

(3.) The next question is whether the last Zemindar s stepbrother Vadamalai was disqualified by reason of insanity from sharing with his brother their father s separate property. Vadamalai, it should be mentioned, who was elder than the Zamindar but was the son of a junior wife, did not press his claim to succeed to the Zemindary in preference to his brother, nor did he after the brother s death claim the Zemindary against the widow. As regards the 1st point the respondents explain that according to the custom of Kumbala Zemindars the son by the senior wife succeeds to the Zemindary. As regards the separate property left by their father it is urged that there was no need for a partition as Vadamalai lived with" his brother the late Zemindar in the palace, and after his death, went on living with his widow, the 1st defendant, whose sister s daughter he had married. These facts, it is suggested explain his conduct in not having put forward a claim to the Zemindary after his brother s death and at the time of the compromise between the widow and the more distant (reversioners). The mere fact that Vadamalai did not press his claim to the Zemindary is not in our opinion, sufficient proof of insanity. On the other hand we have the fact that he gave evidence in Court in Original Suit No. 15 of 1891 and though subjected to a lengthy examination gave rational answers, and that he married and had issue. On the whole we think the evidence does not establish that Vadamalai was disqualified from inheriting. It follows, therefore, that the late Zemindar s share in his father s separate properties on his death passed by survivorship to Vadamalai and that the plaintiff has no claim to them. On this ground his claim to the properties mentioned in Ex. ZZZZZ also fails.