1. The plaintiff sued to recover by partition one-ninth share in the plaint property together with mesne profits and costs.
2. The original Court, namely, the Court of the Second Class Subordinate Judge of Vita, allowed the plaintiff's claim but awarded one-twelfth share instead of one-ninth and also directed that it should be by equitable partition, that is, the property already gifted to the plaintiff and his two brothers should be taken into account.
3. On appeal, the District Court of Satara dismissed the suit on the ground that the plaintiff was not entitled to claim partition. The plaintiff has appealed, as also his two brothers, original defendants Nos. 1 and 2.
4. The material facts are that one Satu, a Shudra, had three sons by his married wife and three surviving sons by his mistress Rakhma. In 1903 he executed a gift deed, Exhibit 46 in the case, in favour of Rakhma and the illegitimate sons conveying two lands and a house. Satu died in 1913, and the present suit was brought in 1925 by Sakharam, one of the three illegitimate sons, to recover his share in the property held by the legitimate sons of Satu who are defendants in the suit. He made his own brothers also defendants Nos. 1 and 2.
5. The defence was that as the father had already given certain property to the illegitimate sons under a gift deed, Exhibit 46, they were not entitled to claim partition. The status of the plaintiff and his two brothers as Dasiputras though disputed at first was conceded in the first appellate Court and it was agreed that they were entitled as illegitimate sons to share in the father's property with the legitimate sons if that claim had not been disposed of in some other way.
6. The texts applicable to the present case have been set out in the judgment of the District Judge and they are as follows:-
(1) Even a son begotten by a Shudra 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.
(2) The sons begotten by a Shudra on a female slave obtain 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 sons of the female slave to participate half a share.
7. The gift deed on which reliance has been placed by the legitimate sons recites that Rakhma was the donor's kept mistress and had remained with him for twenty-two or twenty-three years; that she had four sons and two daughters one of whom he had got married according to custom and the other he intended to get married, He further stated that Rakhma had stayed with him ashis wife and served him in a satisfactory manner and he had full confidence that she would continue to doso thereafter ; and that knowing that he would have to make provision for her maintenance and for the permanent maintenance of the said four sons, and in the expectation that Rakhma would remain with him and serve him throughout her life, he gifted a portion of what is described as the self-acquired property to the mistress and the four sons. He inserted a clause that they should not give away or sell the property to any one and added that it was to remain with them and their children for ever and that neither the donor himself nor his legitimate sons had any claim on the property so given.
8. The learned Subordinate Judge considered that this did not amount to effecting a partition and giving a share to the illegitimate eons ' according to his choice,' He was unable to accept the argument of the pleader for the defendants that Satu intend ed by the gift deed that his illegitimate sons should not claim any partition from his legitimate family in future. The learned District Judge, however, came to the conclusion that what the father did was to give a part of his property as absolute owners to the illegitimate sons, and that as according to the texts it was at the pleasure of the father to give any share he chose to them, this transaction was as a matter of fact the giving of a share in the property. On a full consideration of the document itself as well as the surrounding circumstances it appears to me that the conclusion of the learned Subordinate Judge on the point was correct. It does not appear to have been the intention of Satu in passing this deed of gift to extinguish any further claims of his illegitimate sons by giving them their share and effecting a partition between him and his illegitimate family. On the contrary his expectation was that his relations with Rakhma would continue the same as before and that she would continue to live with him. The gift deed, it is to be noted, is not merely to the sons but also to the mistress and it is expressly given by way of maintenance. He also acknowledges in that document his liability towards the daughters, one of whom he said that he bad got settled in life, and about the other he intended to do likewise. He expressly described the property gifted as his self acquired property and it does not matter whether the description was correct or not. It clearly left his ancestral property out of account, and there is nothing to show that even if by law the illegitimate sons had any claim to share in that ancestral property after Satu's death, Satu intended to extinguish such claim. It is true that it is at the choice of the father to give as much or as little share to his illegitimate sons. But the mere fact that he gives something to them is not sufficient to enable the Court to hold that he gave that property as a share when the express words of the document negative any such idea. There was nothing to prevent the donor from saying : I give this property in order to separate the interests of my illegitimate family from those of the legitimate family; or that they will have no further claim on the remaining property. If he had said something to that effect it might have been possible to hold with the District Judge that the claims of the illegitimate family on the property of the deceased had been effectively severed by this document. But all that he says is that the legitimate family will have no claim on the property so gifted away. It was perfectly easy for him to add if he had intended such a result, that the plaintiff and his brothers would have no further claim on the property in the hand of his legitimate children.
9. It is true that under the Hindu law the illegitimate children of a Shudra have a somewhat inferior position to that of the legitimate children, but it has been established that on the death of she father the illegitimate children form a coparcenery with the legitimate children. That has been held in Sadu v. Baiza and Genu I.L.R. (1878) Bom. 37 It is stated in the judgment of Nanabhai Haridas J. that the legal status of a dasiputra was unquestionably recognised, and that accordingly he inherited to the father's estate jointly with the legitimate sons and he was clearly their coparcener. Similarly it is observed by WestroppC. J. (p. 54):-
Then, if there were a son or sons of the wedded wife, and there had not been any partition on the life time of the father, the son of the female slave wouldbecome entitled to half the share of a son by the wedded wife....
10. And the full bench further held on the basis of a coparcenary coming into existence between the illegitimate and legitimate children that the ordinary right of survivorship would also apply in favour of the illegitimate children. It is, therefore, not easy to understand why the mere giving of anything by way of gift or maintenance to an illegitimate son should be taken as effecting complete extinction of his rights or as effecting a partition between the son and the father. The inferiority of the position does not, in my opinion, imply such a result, The inferiority that the law has so far recognized lies in the fact that his share is to be reduced to a half; but the fact that unless he has been given a share before the father's death the right of claiming a share exists is now undisputed. If theshare is given by the father it may be as much or as little as he chooses. But if the father dies without giving anything by way of a share on partition and effecting a severance between himself and his illegitimate son, then the illegitimate son becomes a co-parcener with the legitimate sons and has a right as coparcener, the only limitation being that he would get a half share.
11. The learned District Judge has gone into a consideration of the question whether the plaintiff and his brothers were living separately from the defendants and found that they were living separately. He used that as an argument for holding that no co-parcenery existed between the illegitimate and legitimate sons after Satu's death. But the fact that two families from two different women, one a wife and the other a mistress, were living separately could not be held to prevent aco-parcenery arising between the two families by operation of law unless it is shown that partition had taken place. The living in separate houses is only an arrangement made in the interests of convenience and harmony in those circumstances. There is no allegation of a partition in the present case apart from the inference that we are asked to draw from the deed of gift, Exhibit 46. As I have already pointed out there is nothing in the deed of gift to support the view that it operated as a partition between the father and his sons. It clearly purports to be merely a provision for maintenance of the mistress as well as her minor sons, and the liability to get the daughter married is recognized by the donor as still remaining with him. The property so given to them for maintenance appears to have been only a small portion of his total property, and as he was on very affectionate terms withRakhma and her children, there is no reason to suppose that he intended this gift to be in liquidation of all their claims to his other property which they might have had under the law. It seems rather to have been a measure to ensure that Rakhma and her children should not be absolutely stranded in any case.
12. Reference has been made to the case of Ram Sarain Garain v. Tek Chand Garain I.L.R. (1900) Cal. 194 but the facts of the case were different and have no application to the present case. There the father had transferred the property to the name of his legitimate son and the illegitimate son claimed it from him. The answer to that of course was that the father was free to do as he chose in the matter, and he having given the property to the legitimate son it was not open to the illegitimateson to claim a partition therein. I, therefore, hold that the learned District Judge was not right in coming to the conclusion that the illegitimate sons could not claim partition in the present case.
13. As regards the quantum of the share, it has now been conceded by the learned advocate for the appellants that the view of the Subordinate Judge could not be challenged and that according to the law as laid down in Kamulammal v. Visvanathaswami Naicker I.L.R. (1922) Mad 167 : 25 Bom. L.R.577 the share of the plaintiff would be one-twelfth and not one-ninth as claimed by him.
14. The result is that the appeal must be allowed, the decree of the lower appellate Court must be set aside and the decree of the learned Subordinate Judge restored with costs in both the appellate Courts. The order as to costs of cross-objections in the first appellate Court being borne by the present appellants will, however, stand, as they failed on their claim to one-ninth share,
15. I agree.