RATHINASABAPATHI ODAYAR DECLARED MAJOR Vs. GOPALA ODAYAR

JUDGEMENT

(1.) The plaintiff is the illegitimate son of one Venkataramana Odayar, a Sudra. Defendants 1 and 2 are the sons and the 3 defendant the widow of Panchapakesa Odayar, the brother of Venkataramana Odayar. Defendants 4 and 5 are Venkataramana Odayar's widows. 2nd defendant has been adopted into a different family. Venkataramana Odayar was at the time of his death a member of a joint family consisting of himself and his brother, Panchapakesa Odayar. The plaintiff has brought this suit for a half share of the family property and in the alternative for suitable maintenance and other reliefs. The Lower Court negativing his claim to partition of the family properties has given a decree for maintenance with some minor reliefs. Defendants 1 and 3 have preferred this appeal and the plaintiff has preferred a memorandum of objections.

(2.) As the main question in the appeal is as regards the plaintiff's right to partition of the suit property, we allowed Mr. T. R. Venkatarama Sastri, who appears for the plaintiff, to open the case. His contention is that the illegitimate son of a Sudra is entitled to his putative father's share even if the latter was undivided from his brother or brother's sons at the time of his death. This point is covered by ample authorities in Krishnayyan V/s. Muttusami (1883) I.L.R. 7 M. 407, Ranoji V/s. Kandoji (1885) I.L.R. 8 M. 557, Parvathi V/s. Thirumalai (1887) I.L.R. 10 M. 334, Karuppa Goundan V/s. Kumarasami Goundan (1901) I.L.R. 25 M. 429, Gopalasami Chetti V/s. Arunachalam Chetti (1903) I.L.R. 27 M. 32, Visvanathaswamy Naicker V/s. Kamu Ammal (1912) 24 M.L.J. 271 and Nagarathnammal V/s. Chinnu Sah . In all these cases, it was held that the illegitimate son of a Sudra or Dasiputra was not entitled to a share in the family property, if his putative father at the time of his death was not separated from his brothers or brothers sons. Mr. Venkatarama Sastri attacks the correctness of these decisions and relies in support of his contention upon some observations of Sadasiva Aiyar, and Sir Kumaraswami Sastri, JJ., in Subramania Aiyar V/s. Rathnavelu Chetty (1917) I.L.R. 41 M. 44 : 33 M.L.J. 224 (F.B.) and urges that the decisions require reconsideration and asks us to refer the question to a Full Bench. As the question raised is of considerable importance and as the observations of the two learned Judges to some extent support the respondent's contention we have allowed both the appellant and the respondents counsel to argue the point with reference to the original authorities.

(3.) The law applicable to the illegitimate son of a Sudra, for the purpose of this case, may be summarised as follows : (1) It is well settled that an illegitimate son of a Sudra or Dasiputra is entitled to an equal share with the legitimate son of the putative father if partition takes place during the lifetime of the father and half the share of the legitimate son if partition takes place after the death of the father. The illegitimate son of a Dwija or one of the regenerated classes is entitled to maintenance only. There are positive texts in the law books as regards this and the Courts following them decided that he is only entitled to maintenance. (2) It is likewise well settled that, if the putative father leaves no legitimate male issue but a widow, daughter or daughter's son, the illegitimate son takes half the father's estate and the widow, daughter or daughter's son takes the other half. (3) It is also well settled that, if the father dies leaving neither wife nor daughter, nor daughter's son, the illegitimate son takes the whole of the father's estate. (4) It is also well settled that the illegitimate son of a Sudra cannot succeed to his father's collaterals but can succeed to his father's legitimate son, if he and the legitimate son lived as members of a co-parcenary. (5) The putative father of an illegitimate son can succeed to him if he leaves neither wife nor lineal descendants.