1. The question of law rained in this second appeal on the facts found by the lower Courts is whether an illegitimate son of a Sudra can inherit the separate property of his father's legitimate son as a brother.
2. The facts are that one Ganpatrao had a son Daulatrao by his first wife, two sons Eaojirao and Balvantrao by his second wife, and an illegitimate son Dhakojirao by a kept mistress. Daulatrao was a separated member of the family and had acquired the property in suit; he died without an issue. The plaintiff claims his Sai property under a sale deed passed in his favour by the sons of 5 Raojirao, Balvantrao having died without any male issue. The defendant claims it under a sale deed by Dhakojirao. The contest between the two purchasers depends upon the rights of their respective vendors to inherit Daulatrao's property according to the Hindu law. The parties, whose right of inheritance we are concerned with, are Sudras. Both the lower Courts have decided against the defendant, who now appeals to this Court and raises the question stated above.
3. The point was not argued in the lower Courts, and the reported decisions are clearly against the contention. See Ravji valad Mahadu v. Hakuji valad Kaloji I.L.R. (1909) 34 Bom. 321 : 12 Bom. L.R. 204; Shome Shanhar Rajendra Varere v. Rajesar Swami Jangam I.L.R.(1898) All. 99, and Ramalinga Muppan v. Pavadai Goundan I.L.R(1901) Mad. 519. It is argued, however, that the ratio decidendi in Hubramania Ayyar v. Rathnavehv Chetty I.L.R (1916). 41 Mad. 44, is not consistent with the view that an illegitimate son is excluded from all collateral succession and that the decision in Sadu v. Baiza and Genu I.L.R (1878) 4 Bom. 37, approved by their Lordships of the Privy Council in Raja Joyendra Bhupati Hurri Chundun Mahapatra v. Nityanand Mansingh , has not been considered in the case of Ravji v. Sahuji. It is urged that it is not possible to reconcile the view that a father is an heir to his illegitimate son and the express provision that an illegitimate son in the case of Sudras is entitled to share the property of his father with the other legitimate sons with the conclusion that the illegitimate son is excluded from all collateral succession in the family of his putative father. I have carefully considered these decisions and the provisions in the Mitakshara and the Mayukha bearing on this point. Personally I do not think that the two conclusions are irreconcilable. The question of collateral succession has been fully dealt with by Banerji J. in Shotne Shankar Rajendra Varere v. Rajeaar Sivami Jangam and I do not think that any further discussion of the texts can serve any useful purpose. Bhashyam Ayyangart J. in Ramalinga Muppan v. Pavadai Goundan thought that it was tolerably well established that an illegitimate son, though he might succeed as heir to his paternal and maternal estate, had no claim to inherit to collaterals. Though the case of Sadu v. Baiza has not been referred to in the case of Bavji v. Sakuji and Ganu it is clear on the facts of that case that the point as to collateral succession did not arise for decision. Nanabhai Haridas J. observes at p. 46 of the report as follows:-'Whether he can as a brother inherit anything from them or not, is a question upon which we are not called upon to pronounce any opinion in this case, for the plaintiff' here does not claim any self-acquired property of Mahadu; nor are we called upon to express any opinion upon the other question, whether he can inherit anything from collaterals.' The judgments in Subramanid Ayyar v. Eathnavdti Chetty, particularly the judgments of Sadashiva Ayyar J. and Kumarswami Sastriyar J., show that the point for decision in that case was quite different, and that the decision as to the right of the putative father to succeed to his illegitimate son did not necessarily conflict with the view accepted by that Court in other cases as to the exclusion of an illegitimate son from collateral succession.
4. The current of decisions is strong and uniform and it would require very clear texts to induce any Court to reconsider the point. There is no such express text in favour of allowing an illegitimate son a right to collateral succession. On the contrary I think that the decisions are fully justified by the Mitakshara and the Mayukha. The well-known verses which lay down the order of succession in the case of obstructed heritage are applicable to 'all classes (see Mibakshara, Chap. II, Section 1, pi. 1 and 2; Stokes' Hindu Law Books, p. 477) while the rule allowing the illegitimate sons to share the father's property with his legitimate sons is a special rule applicable to Sudras only. It seems to me very difficult to interpret the word ezkrj% (brothers) used in the text relating to succession as including illegitimate sons of the father in the case of Sudras and excluding them in the case of other classes. Neither Vijnaneswara nor Nilkantha in expounding the text has suggested such an interpretation : and according to all recognised rules of construction such an interpretation does not appear to me to be correct. The fact that the same word is used in the immediately preceding text specially relating to Sudras and in the commentary thereon with reference to illegitimate sons in relation to the legitimate sons of the same father does not appear to me to afford a sufficient basis for interpreting the same word in two different senses when applied to different classes in one and the same text expressly relating 'to all classes.
5. Besides a dasiputra does not get the full share which an aurasa Bon can get: and this differential treatment accorded to him by a special text cannot be applied to the case of collateral succession. At least there is no express text for it; and it would be extending the application of a special rule for Sudras beyond the limits mentioned in the text, if illegitimate sons were treated on the same footing as legitimate half brothers as to the order of succession and the extent of the shares.
6. I think that the view accepted in these decisions as to illegitimate sons not being entitled to collateral succession among Sudras is correct.
7. I would, therefore, dismiss 'the appeal and confirm the decree of the lower appellate Court with costs.
8. I concur.