1. This appeal raises the question whether an illegitimate son (dasiputra) of a Hindu Shudra can claim against a legitimate son of his father partition of property which was ancestral in his father's hands.
2.The facts in so far as they are material for this appeal are as under One Babaji Wani, a Shudra, died in 1915 leaving him surviving his widow Tara, a son Shankar by her, and two illegitimate sons and a daughter by his mistress Savu, namely Bala the plaintiff Satappa defendant No.1 and Kondibai, Babaji also left lands and other immovable properties which were ancestral in his hands. After Babaji's death the plaintiff along with Shankar and other members of the family formed a joint Hindu family and Shankar as the Karta thereof managed the joint family property. Shankar died leaving three sons, viz., Dadu, Sadashiv - defendant No.2, and Madhav - defendant No.3, Dadu managed the joint family property till 1949 when he died leaving his widow Hirabai and a minor son Ananda -defendant No.4. Since then defendant No.2 was in management of the joint family property. The plaintiff demanded partition and separate possession of his share in the said property but as defendant No.1 and others refused to do so he filed on April 11, 1961 the present suit against the defendants for partition and possession of his one-sixth share in the joint family property. Defendants contested the suit, inter alia, on the ground that the plaintiff as the illegitimate son (Dasiputra) could not claim partition or any interest in the suit property which was ancestral in the hands of Babaji. The trial Court upheld defendants' above contention and dismissed the suit. On appeal by the plaintiff the learned Assistant Judge considered the ratio of the Nagpur case in Shamrao Fakirro Hatkar v. Mt. Munnabai Fakirrao ; as binding on him and held that the plaintiff was entitled to partition of the ancestral property and decreed partition and possession of plaintiff's share in the said property. Defendants Nos. 2 to 5 have preferred this appeal against the said decision.
3.Mr. Hombalkar, the learned Advocate for the appellants contends that the right of an illegitimate son of a Shudra to claim a share in his father's property extends only to his self - acquired or separate property and not to property which was ancestral in his hands. He submits that there is no text of smriti or Mitakshara or any direct authority of this Court or of the Supreme Court applicable to the case and that the decisions of other High Courts taking a contrary view. apart from being not binding on this Court, should not be followed as they are contrary to the view of the relevant text taken by this Court in Hiralal v. Meghraj 40 Bom LR 937 : AIR 1938 Bom 433. On the other hand Mr. Abhyankar for the respondent disputes the correctness of the above contentions and supports the decisions of the lower appellate Court.
4.Now, the source of right of inheritance and partition of an illegitimate son is a verse of Yagnavalkya as expounded in the Mitakshara. The relevant text of Mitakshara, i.e., Chapter 1, Section 12, as translated by Colebrooke, is as follows :-
'1. The authority next delivers a special rule concerning the partition of a Sudhra's goods. Even a son begotten by a Sudra on a female slave may take a share by the father's choice. But, if the father be dead, the brethren should make him partaker of the moiety of a share ; and one, who has no bother, may inherit the whole property, in default of daughter's sons.'
'2. The son, begotten by a Sudra 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.
However should there be no sons of a wedded wife, the son of the female slave takes the whole estate, provided there be no daughters of a wife nor sons of daughters. But, there be such, the son of the female slave participates for half a share only.'
'3. From the mention of a Sudra in this place (it follows that) as son begotten by a man of a regenerate tribe on a female slave does not obtain a share even by the father's choice, nor the whole estate after his demise. But if he be docile, he, receives a simple maintenance.' (Stoke's Hindu Law Books page 426) (vide also page 72 Book I of the Digest Hindu Law by West and Bubler).
5.There are decisions by the Privy Council and Courts in India on the interpretation of the above text and it is necessary to refer to some of these authorities cited at the Bar by the parties. The first case in order of date is a Full Bench decision of this Court in Sadu v. Baiza. ilr(1880) 4 Bom 37 . In this case the legal status of an illegitimate son of a Shudra as a son was recognised and it was held that after the death of his father such a son along with a legitimate son succeeded as a coparcener with right of survivorship to the property in his father's hand, he, however, taking only half a share. Mr. Hombalkar contends that in that case the point was not raised whether an illegitimate son can succeed to ancestral property in his father's hands and there is nothing in the full Bench judgment delivered by Westropp C.J. to indicate that the suit property was ancestral and not self acquired in the hands of the putative father and, therefore, the case does not half the present plaintiff. Now it is true that the issue was not raised and it seems that in the said judgment it is nowhere stated that the suit property was ancestral property in father's hands. But from the statement of facts given at page 38 it appears that when after his father's death the plaintiff, started living separately from his brother, the legitimate son, the latter had allowed the plaintiff five compartments of the family house and 7 1/2 bighas of ancestral land under an agreement in writing. This shows that the estate left by the father comprised property which was ancestral in his hands and thus though the question which arises here was not judicially decided, the actual decision was that the plaintiff as an illegitimate son succeeded as a coparcener to the suit property which was ancestral in his father's hands. In the next case of Raja Jogendra Bhupati v. Nityanand Mansingh (1890) 17 Ind App 128 the Rajah who had succeeded to an impartible Raj as the only legitimate son of the last holder died without leaving any male issue, and the plaintiff, who was an illegitimate son of the same father filled the suit to establish his title to the Raj. The Privy Council approved Sadu's case and held that the plaintiff was entitled by right of survivorship to succeed to the impartible Raj. It is apparent from the fact of this case that the property in the hands of the deceased Raja Sadu's case the question was not raised whether the plaintiff could succeed to property which was ancestral in father's hands. It would be observed that if in the Privy Council case the right of an illegitimate son extended to ancestral property of the nature of impartible Raj, the rule will apply with greater force to ordinary property as in the present case.
6.The next important case is the Privy Council case of Vellaiyappa Chetty v. Natarajan . The main question that arose for determination in that case was whether the plaintiffs who were illegitimate sons of a Sudra by a concubine were entitled after their putative father's death to maintenance out of the joint family property in the hands of their father's uncles and uncle's sons as his surviving coparceners. The father died joint in estate with his said collateral coparceners leaving considerable joint family property but no separate property of his own. The learned Single Judge of the Madras High Court decreed plaintiff's claim for maintenance for life, and on appeal the Division Bench of the High Court confirmed the decree. From that decree the defendants collaterals of plaintiff's father, filed an appeal to the Privy Council, Sir Dinsha Mulla who delivered the judgment of the board pointed out that there was no text of Smriti or Mitakshara which covered the point in question but relying on the principle of Hindu Law that where a person is excluded from inheritance to property or from a share on partition of joint family property he is entitled to maintenance out of that property and on certain Indian cases on the subject held that an illegitimate son of Shudra by a continuous concubine has the status of a son and 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, and therefore the plaintiffs were entitled to maintenance out of the joint family property. In the course of judgment, His Lordship after referring to the three verses in Mitakshara quoted above said : (1528)
'It has been held in India that the text of Yagnavalkya cited in verse 1 and the commentary on the text refer to the estate of a separated householder. The view so taken has not been contested before their Lordships.'
7.In support of the above rule, His Lordship cited four Madras High Court cases, the first of which is Ranoji v. Kandoji ILR(1885) 8 Mad 557 . Now, in ILR(1885) 8 Mad 557, the facts were as follows : - two of the three brothers of Shudra caste who formed a joint hindu family died leaving legitimate sons and the third an illegitimate son, and the latter brought a suit for partition of joint family estate against his father's brothers' sons. Muttu Sami Ayyar J, held that the illegitimate son was not entitled to a share but only to maintenance on the ground that all the texts dealing with the right of a illegitimate son to succeed and claim share on partition related to the estate of separate householders. The learned Judge further observed : (p. 561)
'Where his (illegitimate son's) father has died 'Vibhakta' or separated, there can be no question that the right of the illegitimate son extends not only to his father's acquisitions, but to ancestral property which may have come to the father's hands.'
Now the Privy Council no doubt overruled the view expressed by Muttu Sami Iyyar, J., that the share of inheritance given to an illegitimate son was in lieu of maintenance and held that he had the status of a son though with limited rights as compared with a legitimate son. But what is of importance to note that is that His Lordship cited with approval Ranoji's case in support of the view that the Text of Mitakshara quoted above referees to the estate of a separated householder ; and such estate, as pointed out by Muttu Sami Ayyer, J., comprised not only fathers's self acquired or separate property but only ancestral property which came to this hands. Thus it would be seen that the estate of a separated householder in which an illegitimate son is entitled to have a share includes ancestral property, or as a matter of fact, any other joint family property, come to his father's share at the time of separating from his collateral coparceners. Further on principle it can make no difference if the father got ancestral property by way of his share in partition or he succeeded to it as sole surviving co-parcener.
8.Now, the rule or law based upon the Privy Council case of Vellaiyappa Chetty is stated in Mulla's Hindu Law (1970) Reprint, 13th Edition, d. 365 paragraph 362) as follows :-
' If the father was joint at his death with his collaterals, e.g., his brothers or their sons, or his uncles or his sons, the illegitimate son is not entitled to demand a partition of the joint family property, but he is entitled as a member of the family to maintenance out of such property provided his father left no separate estate.'
9.Mr. Hombalkar seized upon the expression 'his uncles or his sons' in the above proposition and contends that the words 'or his sons' therein mean father's sons as the words 'his uncles' mean father's uncles, he therefore argues that as in the present case Babaji, was joint at the time of his death with his legitimate son Shankar the plaintiff is not entitled to demand partition of the ancestral property in the hands of Babaji but is merely entitled to maintenance out of such property. There is no merit whatsoever in this argument. On a plain reading of the said proposition it is obvious that the example of a father dying undivided with 'his uncle or his sons:' is given as an illustration of the father being joint with his collaterals, and therefore, the words 'his sons' therein appear to be used in the sense of 'their sons', i.e., uncles sons. In this connection it will be recalled that in the Privy Council case of Vellaiyappa Chetty plaintiff's father had died joint with his (father's) uncles and uncles' (chair ) sons Further none of the other cases cited in the paragraph 303 deal with a father of an illegitimate son dying joint only with his legitimate son or sons and the Illustrate son therefore (held to be) being barred from demanding a partition of ancestral or other joint family property in his father's hands. Thus there is no basis for defendant's above argument.
10.Mr. Hombalkar also sought to derive support from the observations made by Mr Justice Broomfield and Mr. Justice Macklin in the Division Bench case of this court in Hiralal v. Meghraj. In that case the plaintiff, an illegitimate son of a Jain father, filed the suit for maintenance against his father's brother on whom his father's interest in the survivorship. The trial Court decreed plaintiffs claim, and the appeal filed by the defendant to this Court was dismissed. It would have been seen from the above facts that the claim for maintenance in the suit was by a Jain, a member of a regenerate class. In the course of Judgment Macklin J observed that the statement of law as to the right of an illegitimate son of a Shudra in Mitakshara Cha. I Section 12 referred to father's separate property (page 949). Broomfield, J. also said that the said texts apply proprio vigore only in the case of separate property (P.943), (under linings by us). Mr. Hombalkar relying upon the said words 'separate property' in the judgments argues that they mean only self-acquired property as distinguished from ancestral property in the hands of putative father. This argument is devoid of any substance. Both the learned judges have referred to the case of Vellaiyappa Chetty in support of their statements. Now, in the passage quoted from the said case, the Privy Council said that the text of a 'separated householder' It is thus evident that both the learned Judges used the expression 'separate property' of a father in the sense of property of a father who had 'separated' from other collateral coparceners and not as meaning the self-acquired property of the father.
11.Next, our attention was invited to two Supreme Court cases. viz. Gur Narain Das v. Gur Tahal Das. : 1SCR869 and Singhai Ajit Kumar v. Ujavar Singh : 1SCR347 . In the first case the material facts were these: One Ramlu, a Shudra had 2 sons, Budprakash and Nandkishore.. After the death of Ranlu, Budprasad died leaving one Kuldeep, his daughter's son, as his heir. Then died Nandkishore leaving his widow and two legitimate sons and two illegitimate sons. The plaintiff an illegitimate son of Nandkishore, brought a suit against the widow and other sons of Nandkishore for partition of the property left by Nandkishore. He contended that Budprakash and Nandkishore formed a joint Hindu family and Budprakash died without any male issue in a state of jointness with Nandkishore and thereupon the entire joint family properly devolved on Nandkishore by survivorship and claimed his share therein by partition. Kuldeep, who was joined as party defendant to the suit contended that Budparkash had separated from Nandkishore and as Budparkash's heir he was entitled to a moiety in the family property. The Supreme Court (Fazalalli and Bose,JJ.) held that Budparkash had separated in status from Nandkishore each of them having a moiety of the joint family property and following the rule laid down in Vellaiyappa Chetty's case held that the plaintiff succeeded as a coparcener to one-half share of Nandkishore in the joint family property. From the above facts it is apparent that after the severance of joint family status between Budparkash and Nandkishore, the latter's moiety in the joint family property formed his estate to which the plaintiff succeeded as a coparcener with the legitimate sons of his father Nandkishore. In that case the point that arises before us was not disputed because it seems to have been thought that in view of the earlier decisions in Sadu v. Baiza, Jogendra Bhupati v. Nityanand Mansingh and Vellaiyappa Chetty v. Natrajan it was settled at least inferentially, that an illegitimate son of a father's property even though it may be ancestral in his hands. We may incidentally note that in this case also the expression ' separate estate of plaintiff's father' in paragraph 8 of the judgment is used in the sense of property belonging to the father who had separated in status from his collateral - coparceners.
12 .In the other Supreme Court case of Singhai Ajit Kumar, the property to which the illegitimate son claimed to succeed was self-acquired property of the deceased father and it has therefore, no bearing on the point.
13. Mr. Abhyankar for the respondent - plaintiff relied upon a decision of this court in Sakharam Satu v. Shamrao Maruti AIR 1932 Bom 234, and two decisions of Madras and Andhra Pradesh High Courts respectively in Raju Thambiran v. Arunagiri Thambiran. AIR 1933 Mad 397 and China Apparao v. Narasimha Rao AIR 1962 AP 515. In the Bombay case the facts were : One Satu, a Shudra, died in 1913 leaving three sons by a married wife and three illegitimate sons by his mistress Rakhma. In 1903, prior to his death Satu had executed a gift deed in favour of Rakhma and his illegitimate son conveying two lands and a house described as his self-acquired property. Sakharam, an illegitimate son, filed the suit in 1925 against the legitimate sons of Satu to recover his share in the property held by them. The trial court decreed the suit but on an appeal by the defendants the District Court set aside the decree and dismissed the suit holding that the transaction of gift was as a matter of fact a giving of share in the property by Satu, and, therefore, the plaintiff was not entitled to claim partition. On appeal by the plaintiff the Division Bench of this court on a consideration of the gift-deed itself and other surrounding circumstances reversed the finding of the District court and held that by making the said gift Satu did not intend to extinguish any further claim of his illegitimate sons to the property and restored the trial court's decree. Now, from a perusal of the judgment it appears that the suit property was ancestral in the hands of plaintiff's father Satu. however, it is to be noticed that in the District Court the defendants - legitimate sons, conceded that the plaintiff and his two brothers were 'dasiputra' and also agreed that they were entitled as illegitimate sons to the share in the father's property if the claim had not been disposed of in some other way. Thus it is clear that the parties had not joined an issue on the point whether an illegitimate son is entitled to claim partition of ancestral property in the hands of his father, but the controversy centred only round the question whether by the gift transaction the father had during his lifetime given a share of property to his illegitimate sons. Having regard to the concession made by the defendants the Division Bench case cannot be said to be an authority for the right of an illegitimate son to have a share in property which was ancestral in his father's hands.
14. .As regards the other two cases of Raju Thambiran v. Arunagiri Thambiran and China Apparao v. Narasimha they are no doubt direct authorities on the point before us., In these cases it was held that an illegitimate son of a Shudra is entitled to claim partition of property irrespective of the fact whether the property left by the father was ancestral or self acquired. We may, however, point out that in Raju Thambiran's case the Madras High Court, besides relying on its earlier case of Ranoji v. Kandoji also relied on two Bombay cases of Sadu v. Baiza and Sakharam v. Shamrao. However as already seen in neither of these two cases the question here directly arose but the right of an illegitimate son to a share in ancestral property was not questioned.
15 .It now remains to refer to the Nagpur case of Shamrao v. Munnabai, which the lower appellate court followed as binding upon it. In that case the facts were as follows: One Fakirrao, a Shudra, died leaving two sons, i.e., the original minor plaintiff an illegitimate son by his mistress, and Shamrao a legitimate son. After his father's death the plaintiff filed the suit against shamrao for partition and possession of his share of the property left by Fakirrao. The plaintiff succeeded in both the lower courts and Shamrao's appeal to the High Court was also dismissed by Mr. Justice Bose (as he then was). In that case there was no dispute that the suit property was ancestral in the hands of Fakirrao who at the time of his death was joint in estate only with Shamrao or that after Fakirrao's death a new coparcenery consisting of the plaintiff and Shamrao was created. But the question directly arose : what property this coparcenery can claim to hold the father's self-acquired property - the property which was ancestral in the father's hand - or both (See para 18 at page 45) Bose, J. on a construction of the text of Mitakshare, i.e., chapter I, Section 12, verse 2, in the light of J.R.Gharpure's Treatise on the Mitakshare held that every member of the fresh 0 coparcenery created after father's death obtains right in all the family property including that which was ancestral. The learned Judge also based his decision on the rulings in Satu v. Baiza and Jogendra Bhupati v. Nityanand. Now, Mr. Hombalkar is right in his contention that this authority was not binding on the learned appellate Judge, as assumed by him. However, a decision of another High Court deserves respect and that too by an eminent Judge has great persuasive value. Mr. Hombalkar, however, pointed out that in the Nagpur case there is no reference to Vellaiyappa Chetty's case and he says that the interpretation of the said verse 2 by Bose. J goes beyond the ruling in that case. Now as mentioned earlier the Privy Council in that case held that the text of Yagnavalkya regarding the right of an illegitimate son relates to the estate of a separated householder. But it would have been seen that in the Nagpur case there was no question of the father having died undivided with any collateral coparcener and the learned Judge was dealing only with a case of fresh coparcenery consisting of a legitimate son or sons and an illegitimate son or sons after their father's death which could happen if the father was at the time of death either separated from his collateral coparceners or was a sole surviving coparcener. Thus, so far as the present point is concerned decision, was in consonance with the above rule in Vellaiyappa Chetty's case and with the decisions in Satu v. Baiza, Jogendra Bhupati v. Nityanand Mansingh.
16. .From the foregoing review of, the case law it would have been seen that it is well settled proposition that an illegitimate son of a Shudra is entitled to succeed to his separated father's property, whether ancestral or separate in his hands. The appeal, therefore, fails and is dismissed with costs.
17. Appeal dismissed