1. This is an appeal from a decision of the District Judge of Chingleput on appeal from the decision of the District Munsif of Poonamallee in a suit brought by an illegitimate son against the legitimate sons of his father, making the father also a defendant, claiming a share of the family property on partition. The lower Appellate Court has given him a decree on the footing that the father tacitly consented to his having a share and that therefore he is entitled to a half share with his legitimate brothers. The legitimate sons appealed to this Court relying on the fact, which has not been disputed before us, that a prior suit had been instituted by one of the legitimate sons to which the present claimant was not made a party and in which the plaintiff sought for partition against his father, that in that suit the father pleaded that he had other legitimate sons of whom the present plaintiff was one, and that therefore they were necessary parties to the suit. It appears that that suit was compromised and partition made, in which the claimant was given no share.
2. Mr, Muthukrishna Aiyar on their behalf now contends that whatever are the rights of an illegitimate son against his father and whatever they are against his father's legitimate sons after his father's death, once there has been a partition there remained no right to him to claim a share against the sons. We have been taken through a long series of authorities beginning with Krishnayyan v. Muthusami I.L.R. (1883) 7 M. 407 which have decided the true position of illegitimate son of a sudra by a permanently kept concubine under Hindu Law. The broad result of these cases is that an illegitimate son, can under the text in the Mitakshara take a share equal to that of a legitimate son at his father's choice, and after his father's death can demand of the legitimate sons a share equal to half of that of a legitimate son. This power of the father and right of the illegitimite son is treated by the eminent Judges who have considered these cases as being an exception to the strict rule of Hindu Law under which no person other than a co-parcener is entitled to a shire. It is explained in some of the cases as being really only a sort of capitalised maintenance and that this is the true view of it whether the share is given by the father at his choice or whether under the later text it is claimed against the legitimate sons after the father's death. We do not think it necessary to discuss the principle behind this right. It is sufficient for us that it is, definitely and clearly laid down in the Mitakshara and has been fully recognised by eminent Judges like the late Mr. Justice Muthusami Aiyar. We take it, therefore, that where a father and his sons are in possession of family property and there are no other co-parceners of the same degree with the father then, as to that joint family property, the right to a full share or possibly less can be given by the father. And it seems to us to follow from this that where the father and his sons have separated there is no longer the material on which this claim can operate and that therefore the son's share of the property after partition cannot be made liable to this claim. For this latter proposition there is direct authority of the High Court of Calcutta in a case reported in Bam Saran Gerain v. Tekchand Gerain I.L.R. (1900) C. 191 and we can only say that judging the matter in the light of what we regard as the true inferences to be drawn from the decisions of this Court, we entirely agree with the view taken by the High Court of Calcutta.
3. For the respondents three points have been taken, First of all, it has been urged that the written statement of the father in the previous suit amounts to a choice within the meaning of the text in the Mitakshara. We have allowed this statement to be filed in this Court and marked as Exhibit B--and have examined it carefully. It is in fact an allegation that the sons are legitimate and that they are therefore necessary parties to the suit, and does not purport to make any choice, because the conditions for a choice were not before the father; secondly, it could not operate as a choice because the father had no right to raise any question in that suit other than the question whether there were other persons entitled to be made parties. That suit as we have pointed out, ended in a compromise in which the illegitimate sons were ignored. We cannot therefore treat anything in the written statement in that suit as indicating a choice by the father. The next point taken is that the language of the text of the Mitakshara must be read as meaning that wherever the father wishes that his sons, whether legitimate or illegitimate, should be given a share they shall be entitled to that share. Bearing in mind that this right to a share is admittedly an exception to the principles of Hindu Law, we do not feel at liberty to do anything more than construe this text strictly and we have the authority of Judges of this Court for saying that that is the proper manner in which to approach the text. We must therefore confine it to the exact conditions which are stated in the text itself, and, in that view, it is impossible to say that a consent of the father given in circumstances where the choice does not arise and where he has no power to dissent can come within the language of the text. The last point taken is that an illegitimate son has a right under the Hindu Law to a share, which right arises to him at birth, and that the father's choice is only limited to this, namely, that the father can say whether he shall take a whole share or something less. It is conceded by the respondent that this view has never even been considered as possible by any of the Benches of this Court that have had this matter under careful scrutiny since the time of Krishnayyan v. Muthusami I.L.R. (1883) M. 407. The sole basis for this argument is the decision of the Privy Council in the case reported in Jogendro v. Nityanand I.L.R. (1890) C. 151 in which the Privy Council held that where the property was in the hands of a legitimate and an illegitimate son and the legitimate son died, the illegitimate son could take the legitimate son's share by survivorship, the estate being impartible. This decision has been considered in two cases, Karuppa Gounden v. Kumarasami Gounden I.L.R. (1901) M. 429 and Visvanathaswami v. Kamu Ammal (1912) 24 M.L.J. 271 and it cannot be denied that this Court has found some difficulty in ascertaining the principle on which that decision was founded. It must of course be loyally followed wherever that position has to be dealt with. But this Court has steadily refused to extend its application beyond that position or to deduce from it propositions which are at variance with the decisions of this Court. We are asked to say that that decision can only be founded on the proposition that an illegitimate son takes his share at birth. Not only do their Lordships not say that, but they definitely negative that proposition the language being ' it cannot be said that at his birth he acquired any right to share in the estate in the same way as a legitimate son would do' so that, whatever be the principle which their Lordships apply for the purpose of their decision in that case, it was not the principle of the illegitimate son being a co-parcener at birth.
4. It follows, therefore, that so far from assisting the respondent in his argument, this dictum is a direct authority against him. The respondent wished to invite our attention to the text of Mitakshara and found some arguments on the position in which this text is found. Both my learned brother and myself feel that we are not at liberty to reopen this question. It has, as I have said, been exhaustively considered by eminent Hindu Judges of this Court for 40 years and we do not feel in the slightest degree entitled and I may say speaking for myself, competent to review their decisions. We must, therefore, accept the law as laid down in those cases and, as it necessarily follows from those decisions and from the view which we take following the case in Ram Saran Gerain v. Tekchand Gerain I.L.R. (1900) C. 194 that the claim must fail, this appeal will be allowed, and the decree of the District Judge will be reversed and that of the District Munsif restored, with costs throughout.
5. The memorandum of objections is dismissed with costs.
6. I agree.