1. An interesting question of Hindu law arises for determination in this appeal viz.:
Is a Shudra illegitimate son (dasiputra) or daughter entitled to succeed to the estate of his or her putative father by way of intestate succession opening after the coming into force of the Hindu Succession Act, 1956?
2. The facts are few and also simple. One Atmaram Patil died on September 8, 1960, leaving behind him, his widow Tanubai, defendant No. 3, his two sons Dadoo and Yashwant, defendants Nos. 1 and 2 respectively and his daughter Hirabai, defendant No. 4, Plaintiff No. 3 Krishnabai claimed herself to be also the lawfully wedded wife of thesaid Atmaram and plaintiffs Nos. 1 and 2 Raghunath and Shivaji respectively claimed to be the legitimate sons of Atmaram, being born of the aforesaid Krishnabai, plaintiff No. 3, and plaintiff No. 4 claimed to be the granddaughter of Atmaram being the daughter of the predeceased legitimate daughter of Atmaram through Krishnabai, plaintiff No. 3. On the ground that they were entitled to a half share in the suit properties, the plaintiffs filed the present suit mainly against defendants Nos. 1 to 4 for partition and possession of their said share. Defendants Nos. 5, 6 and 7 were made parties to this suit on the ground that they were co-sharers in the suit agricultural lands. The suit claim was admitted by these co-sharers, defendants Nos. 5 to 7. The main contesting defendants were defendants Nos. 1 to 4 who contended inter alia that Atmaram had only one wife, viz., Tanubai, defendant No. 3, that plaintiff No. 3 Krishnabai was not the lawfully wedded wife but the keep of Atmaram, that plaintiffs Nos. 1 and 2 were the illegitimate children of Atmaram by his said keep Krishnabai and plaintiff No. 4, the grand-daughter of Atmaram, was the child of his predeceased illegitimate daughter born of Krishnabai. Such being their status, the plaintiffs were, according to these defendants, not entitled to any share in the suit properties and their suit was consequently liable to be dismissed.
3. On the material issue whether Krishnabai was the legally wedded wife of Atmaram, the trial Court negatived her claim. In consequence, plaintiffs Nos. 1 and 2 born of Krishnabai were held not to be the legitimate sons of Atmaram and his predeceased daughter was held not to be his legitimate daughter. It was, therefore, held that the plaintiffs, in these circumstances, were not entitled to any share in the suit properties. Their suit was consequently dismissed. This dismissal was challenged by the plaintiffs by an appeal to the District Court. The learned Assistant Judge hearing the said appeal concurred with the trial Court that Krishnabai was not the legally married wife of Atmaram and consequently, children born of her were not legitimate. On this finding, the appeal was liable-to be dismissed. However, the learned Assistant Judge observed in paragraph 13 of his judgment as follows :--
'Having held thus (i. e. plaintiff No. 3 Krishnabai was not the legally married wife of Atmaram), I find that even then the plaintiffs are entitled to 1/4th share of the property of Atmaram. It is to be noted that plaintiffs Nos. 1 and 2 were born before 1942 and therefore the old Hindu Law asregards succession will apply to them. Under the Hindu Succession Act which came into force in 1956, there being no provision for the succession of illegitimate sons, the old Act as regards succession will apply. This being so, I find that the learned lower Court made a mistake in not granting a decree for 1/4th share to the plaintiffs Nos. 1 and 2 being the illegitimate sons of Atmaram. It is not disputed that the family belongs to Marathas and admittedly Marathas are Shudras and therefore inheritance as applicable to Shudras will be applicable to this case.'
4. In this view of the matter, the learned Assistant Judge partly allowed the appeal holding that plaintiffs Nos. 1 and 2 were entitled to 1/4th share in the properties of Atmaram. Consequential directions regarding partition accordingly were also issued. The said decree is challenged in this appeal by the original defendants Nos. 1 to 4.
5. When the appeal first reached hearing on February 9, 1978, the respondents, particularly respondents Nos. 1 to 4 (original Plaintiffs) though served had not chosen to appear either in person or through an Advocate of this Court, However, as I was prima facie not inclined to agree with the decree passed by the learned Assistant Judge, I requested Mr. V. V. Divekar, the learned Advocate, to assist the Court as amicus curiae on behalf of the plaintiffs. And in order to enable him to prepare the matter, I also adjourned the hearing of the appeal till today. When the appeal reached today, I heard Mr. K. Section Badthi, the learned Advocate for the contesting defendants, in support of the appeal and Mr. V. V. Divekar, the learned Advocate amicus curiae lor the plaintiffs.
6. At the outset, I find that the learned Assistant Judge has erred in applying to this case the old Hindu law of succession on the ground that plaintiffs Nos. 1 and 2 were born prior to 1942. This, in my view, is an altogether wrong test to apply. Succession is governed by the law in force at the time it opens and succession opens at the time of death of the person whose estate is in question. In this case, Atmaram, whose estate is in dispute, died on September 8, 1966, Succession to his estate would, therefore, open on that date and would consequently be governed by the law in force at that time. The finding to the contrary of the learned Assistant Judge is, therefore, liable to be set aside and the question of succession arising herein will have to be determined by reference to the law in force on September 8, 1986, when Atmaram died.
7. Now, the general principle of Hindu Law has been to limit heirship to legitimate issues and to regulate succession through legal wedlock and legal descent. An illegitimate son of a Shudra was, however, entitled to a share in the estate of his putative father. A special exception, though inconsistent with Hindu dharma on which Hindu law in general rested, was thus made in his favour. After quoting the text of Yajnavalkya in that behalf, Mitakshara in para 2 of Section 12 of Chapter I interprets this special rule concerning the partition of a Shudra's estate as follows :
'The son begotten by a shudra 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.' Affirming the said proposition, the Privy Council in Vellaiyappa v. Natarajan held as follows :--
'On a consideration of the texts and the cases on the subject their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son;' This statement of the law was approved by the Supreme Court in Gur Narain Das v. Gur Tahal Das, : 1SCR869 , and further supplemented by three other well-settled principles viz (at p. 227):
'1. The illegitimate son does not acquire by birth any interest in his father's estate and he cannot therefore demand partition against his father during the latter's lifetime.
2. On his father's death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son(s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s).
3. On a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he was a legitimate son.' This legal position was further reiterated by the Supreme Court in Singhai Ajit Kumar v. Ujayar Singh, : 1SCR347
'An illegitimate son of a Sudra vis-a-vis his self-acquired property, after having succeeded to a half share of his putative father'sestate, will be entitled to succeed to the other half share got by the widow, after the succession opened out to his putative rather on the death of the said widow.' As there appeared to be some doubt whether the aforesaid legal position relating to a Shudra illegitimate son's right of succession vis-a-vis his putative father's separate property would apply also to the ancestral property in the hands of his father, a second appeal on this question was referred to a Division Bench of this Court and the Division Bench hearing the said appeal laid down thus the law in that behalf :
'Under Hindu Law an illegitimate son (dasiputra) of a Shudra can claim against a legitimate son of his father partition of property which was ancestral in his father's hands.' (Rajaram Sadashiv v. Bala Nisbat, : AIR1972Bom164 . The settled position thus emerging was that a Shudra illegitimate son was entitled to succeed to the estate, both separate and ancestral, in the hands of his putative father. That, however, cannot, by itself, help the plaintiffs in the present case because here succession opened not prior to the coming into force of the Hindu Succession Act as in the cases aforesaid but in 1966 long after the said Act came into force. The effect of the said Act on the earlier law will, therefore, have to be considered.
8. The question then is what is the correct legal position relating to the right of an illegitimate Shudra to his putative father's estate, succession to which has opened after the coming into force of the Hindu Succession Act Is it the same as before or is it any different? Resolving this question correctly perforce necessitates reference to the relevant provisions of the Hindu Succession Act (hereinafter deferred to as 'the Act') which has brought about certain fundamental and far-reaching changes in matters of inheritance and succession among Hindus. The effect of this Act is, indeed, commanding and all-pervasive in matters expressly dealt with therein. The Act supersedes all previous law contrary thereto or inconsistent therewith. The very declared object of the Act is:
'.... to amend and codify the law relating to intestate succession among Hindus'' thus making this statutory treatise exclusive, if not also exhaustive, in all matters for which provision is made therein. It is unquestionably a vital piece-of legislation and a vigorous step-forward in the right direction, laying down a more just and equitable scheme and system of Inheritance and succession thanever before. As observed in Mulla's Hindu Law, 14th Edition, at page 826: 'Even if it (the Act) seems to break violently with the past it has to be conceded that it is characteristic of the age which is one of great ideals and fast changing social, economic and political theories.'
9. Coming then to the relevant provisions of the Act, one finds, vide Section 2 thereof, that it applies to Hindus, Buddhists, Jains and Sikhs including their children, legitimate and illegitimate,. The Act, therefore, would clearly apply to the plaintiffs herein. Turning next to Section 4, one finds that it gives overriding effect to the provisions of the Act abrogating, save as otherwise expressly provided therein, any text, rule or interpretation of Hindu law or any custom, usage as part of that law in force immediately before the commencement of the Act as also abrogating any other law in force immediately before the commencement of the Act in so far as it is inconsistent with any of the provisions contained in the Act. The consolidated effect of the aforesaid is that any part of Hindu Law, not expressly saved by any of the provisions of the Act, ceases to operate. And when one turns to the other provisions of the Act, one finds that there is no express provision saving that part of Hindu law under which an illegitimate Shudra could succeed to the estate of his putative father. The result, therefore, is that his right of succession, if the said succession opened after the Act came into force, would be governed by the provisions of the Act itself and no longer by the law prior thereto.
10. Turning once again to the Act, the next relevant provision arising for consideration in this appeal is Section 8 thereof along with the Schedule. Section 8 lays down the general rules of succession in the case of males and provides that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter IT of the Act and in the order laid down in the said section. By virtue of clause (a) of Section 8, the property of a male Hindu dying intestate would devolve upon the heirs, being the relatives specified fn Class I of the Schedule. And referring to Class I of the said Schedule, one finds therein mentioned at Its very outset:
'son; daughter; widow;'
and a little further:
daughter of predeceased daughter;'' Therefore, reading together Clause (a) of Section 8 along with Class I of the Schedule to the Act, the result is that the property of Atmaram in this case would devolve upon his heirs viz., his sons, daughters, widow, theybeing the relatives specified in Class I of the said Schedule, However, plaintiff No. 3 Krishnabai, having been held by the Courts below not to be the lawfully wedded wife of Atmaram, cannot get the status of his widow and would, therefore, stand excluded from succession to his estate. Plaintiffs Nos. 1 and 2, the sons of Atmaram, and plaintiff No. 4, the daughter of the predeceased daughter of Atmaram, would, however, prima faice seem to be entitled, along with the other heirs, to succeed to his estate.
11. The contention, however, On behalf of the contesting defendants is that the words:
'son; daughter;. .. .daughter of apredeceased daughter'
in Class I of the Schedule to the Act mean only legitimate son, legitimate daughter and daughter of a predeceased legitimate daughter. The contention further is that plaintiffs Nos. 1 and 2 being the illegitimate sons of Atmaram and plaintiff No. 4 being the daughter of the predeceased illegitimate daughter of Atmaram, would, therefore, not be entitled to succeed to his estate. In my view, these contentions are sound in law and deserve to be upheld.
12. It is in this context relevant to note that clause (a) of Section 8 of the Act, while referring to the heirs entitled to succeed, mentions them as 'the relatives'. And the definition Section 3 of the Act lays down in clause (j) of its Sub-section (1) that:
' 'related' means related by legitimatekinship :'
with an equally important proviso there below as follows:
'Provided that illegitimate children shall be deemed to he related to then mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another; and any word expressing relationship or denoting a relative shall be construed accordingly.'
In the case of Rama Ananda v. Appa Bhima, : AIR1969Bom205 , a Division Bench of this Court referring to the aforesaid provision observed at p. 775 (of Bom LR): (at p. 208 of AIR) as follows :
''Related' means, according to the definition in Section 3(1)(j) of the Act, 'related by legitimate kinship'. It is not suggested, nor is it anybody's case that petitioner's relationship with the deceased female Hindu is anything but legitimate. But the proviso added to this definition makes it clear beyond possibility of any doubt that even illegitimate children are to be deemed to be 'related' totheir mother and to one another for the purposes of the Act. The proviso further says that any word expressing relationship or denoting a relative shall be construed accordingly.'
13. To be a 'relative' under the Act, there must, therefore, be a legitimate kinship, a legitimate relationship thus positively excluding from its concept an illegitimate kinship or relationship. Legitimacy is thus made the explicit pre-condition of that relationship which alone can constitute the foundation of one's right under the Act to succeed to the estate of a male Hindu dying intestate. The proviso aforesaid makes the position more clear by enacting that illegitimate children shall be deemed to be related to their mother and to one another thus conferring a fictional status of legitimacy upon illegitimate children vis-a-vis their mother and one another. But for the said fiction, therefore, illegitimate children for the purposes of the Act would not be 'related' even to their mother and/or to one another. The said proviso thus carves out an express exception to the general scheme of legitimate kinship or relationship under the Act. And being an exception, it must be kept within its own limits. An exception, like an exemption, must be strictly construed; its ambit cannot be extended beyond its plain meaning.
14. The upshot, therefore, is that the Act does not expressly equate illegitimate children to legitimate children. In matters of inheritance and succession under the Act, the two do not stand on par but stand apart. The Act in terms separates and distinguishes the two and excludes the illegitimates from any right to intestate succession except to the extent expressly enacted in the proviso to Section 3(1)(f). The transmission favours the legitimates and virtually ignores the illegitimates. There is, thus, also an absence of mutual heritable relationship between legitimate and illegitimate children. Whereas, a legitimate child is heritably related to both the parents, viz. the father and the mother, an illegitimate child is not so heritably related to the father and is only by a fiction made heritably related to the mother. Therefore, for the purposes of succession to the property of a male Hindu dying intestate, the Act clearly intends only a legitimate relationship with the father unlike with the mother with whom a special fictional legitimacy and consequent heritability flowing therefrom is established.
15. In a Full Bench decision, the Madras High Court in Narayani Ammal v. Govindaswami, : AIR1975Mad275 (FB), has, nodoubt, held that the term 'daughter' included an illegitimate daughter and that a legitimate son cannot exclude an illegitimate daughter. That, however, was a decision^ under the old Hindu law and with reference to succession to the stridhana property of a female Hindu which is distinct and different from succession to the property of a male Hindu dying intestate after the coming into force of the Hindu Succession Act as in the present case. Moreover, the transmission of succession to the stridhana of a female Hindu vis-a-vis her stridhana heirs is different and based on different incidents and principles than the mode of succession to the property of a male Hindu dying intestate. The said ruling is, therefore, clearly distinguishable and cannot apply to the impugned intestate succession in the present case.
16. In this view of the matter and considering the scheme reflected by Sections 3(1)(j), 4 and 8 of the Act, it is not possible to include illegitimate children within the meaning of the words 'son', 'daughter' and 'daughter of a predeceased daughter' in Class I of the Schedule to the Act. If so, illegitimate children cannot invoke in their favour the general rules of succession embodied in Section 8 in respect of property of a male Hindu dying intestate. Conclusion consequently follows that even a Shudra illegitimate son or daughter is not entitled to succeed to the estate of his or her putative father by way of intestate succession opening after the coming into force of the Hindu Succession Act, 1956. The learned Assistant Judge was, therefore, wrong in law in holding that plaintiffs Nos. 1 and 2 have 1/4th share in the suit property and in decreeing partition and possession thereof accordingly.
17. It is indeed unfortunate that an otherwise dynamic legislation should have extinguished the intestate succession rights of illegitimate sons of Shudras heretofore enjoyed by them unperturbed over the centuries. One hopes for the time when the resultant injustice stands remedied. Till then, however, the law as in force has to prevail and must be given effect to.
18. In the result, this appeal succeeds. The decree passed by the learned Assistant Judge is set aside and that passed by the trial Court dismissing the suit is restored. As the plaintiffs have not appeared in this appeal, there will be no order as to costs.
19. This Court records its appreciation of the services rendered by the learned Advocate Mr. V. V. Divekar appearing amicuscuriae for the original plaintiffs in this appeal.
20. Appeal allowed.