V SUBRAMANIA IYER Vs. RATHNAVELU CHETTY

JUDGEMENT

(1.) The question has been dealt with so very fully by Sadasiva Aiyar, J., in the Order of Reference and in the judgment to be delivered by Kumaraswami Sastri, J., that. I shall state my reasons for concurring in the answer proposed by them very shortly. Manu only mentions the right of a Sudra father to give his illegitimate son a share if he chooses, but at the date of Yagnavalkya the illegitimate son was recognised as one of his father s nearest heirs. In the few Slokas(114 to 149) upon which this part of the Mitakshara is a commentary, Yagnavalkya deals first with partition during the father s life-time, and then with partition by the brothers after the father s death. Next he enumerates the twelve classes of sons who are to inherit to the father, each class excluding the subsequent classes and all other heirs. " A legitimate (aurasa) son is one born of a lawfully wedded (dharma) wife. Equal with him is the son of an appointed daughter." (Sloka 128). This is the son of a daughter without brothers who had been appointed by the father to remain in his own gotra and to bear sons who were to be regarded as his sons, a possibility which occasioned the numerous warning in the texts against marrying a girl without brothers. These are the first two classes of sons. It is immediately after the enumeration of the twelve classes of sons, and before dealing with the other heirs who are to take " in default of male issue," that Yagnavalkya treats of the rights of the Sudra s illegitimate son as regards partition and succession. On partition during the father s life his share was to be at the father s discretion which was still wide in those times. After the father s death, he was entitled to share with the legitimate brothers, but only to half a share. " If there be no brothers nor daughter s sons, he then takes the whole"-Sloka 134. This would be perfectly logical, if by daughter s sons were meant the sons of the appointed daughter who were equal to the aurasa sons, and I cannot help thinking this was originally so, an inference which is supported by the fact that Medhatithi, as interpreted by Dr. Jolly in his History of the Hindu Law, p. 187, puts the daughter s sons here on the same footing as legitimate sons as regards their shares of inheritance. But, as has been pointed out, the words for daughter s sons used by Yagnavalkya include as well daughter s sons generally who would have no claim to come in preference to the other sons. When we come to the Mitakshara some six hundred years later according to some estimates we find the daughters mentioned as well as the daughter s sons. Much later the Dattaka Chandrika includes the widow; and it is now settled that in the absence of legitimate sons the illegitimate son only takes half if there are widows, daughter or daughter s sons. This looks as if there had been an advancement of these three classes to take along with the illegitimate son. Simultaneously the artificial sons became obsolete with the exception of the dattaka who was admitted to rank with an aurasa son. But, however this may be, it does not affect the fact that from the time of Yagnavalkya 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 son given in adoption. No doubt the general principle was that the inheritance went to the next sapinda, and that though the relation of sapindaship depended on community of particles it existed at any rate among the higher castes in later times only between persons who were born of a regular marriage, but the texts show an exception to the rule in the case of the illegitimate sons of Sudras who were excluded from the sacramental forms of marriage. This being so, and the illegitimate son being heir to the father, I can see no reason why the father also should not on the usual principle be heir to the illegitimate son in the case put in the order of reference. This view also seems to me to be in accordance with the decision of the Bombay High Court in Sadu v. Baiza and Genu (1878) I.L.R. 4 B. 37, which was accepted and acted on by the Privy Council in Joginclro Bhupati Hurrochundra Mahapatra v. Nityanand Man Sing (1890) I.L.R. 18 Cal. 151, that an illegitimate son of a Sudra was a member of the family and a co-parcener of his legitimate brother to whose share he succeeded by virtue of the co- parcenership in preference to the brother s widow. It was held that the legitimate brother would take the illegitimate brother s share in the same way. If this be so, it seems to me to involve a fortiori that there is no sufficient reason for refusing to allow the father to succeed to the illegitimate son according to the ordinary rule just as the illegitimate son succeeds to the father. My answer is in the affirmative. Oldfield, J.

(2.) I concur in the answer proposed, because such concurrence is in my opinion entailed by the decision in Jogendro Bhupati v. Nityanand (1890) I.L.R. 18 Cal. 151. For the language used in that decision and in Sadu v. Baiza (1878) I.L.R. 4 B. 37 the judgment in which was apparently endorsed by their Lordships of the Privy Council without reservation, appears to me to entail that a co-parcenary exists between the legitimate and illegitimate sons in virtue of a relationship and not as specially created by the recognition of the latter in the texts for special purposes which they specify, and subject to special limitations, which those purpose simply. 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 not at present material; and consequently of his father as connected with him by the ordinary paternal relationship. From such a relationship the father s right to inherit, from him follows.

(3.) As this ground of decision is adequate, I refrain from discussion of the texts or discussion of the reasoning employed in the three cases, which have for many years been accepted as stating the law in this Presidency, Krishnayyan v. Muttusami (1883) I.L.R. 7 M. 407, Ronoji v. Kandoji (1885) I.L.R. 8 M. 557, and Parvathi v. Thirumalai (1887) I.L.R. 10M. 334. I moreover offer no opinion regarding the possibility of reconciling our conclusion in the present case with the well settled course of decisions, by which the illegitimate son s right of succession to collaterals is at present negatived. Kumaraswami Sastri, J.