1. The appellant is the son of the late Zamindar of Bodinayakanur who died on the 15th of December 1888. The principal question which we have to decide is whether his mother Karuppayee the 4th defendant in the suit, was married to the Zamindar or not. The Subordinate Judge has found that she was not married, and I concur in that conclusion. It is conceded that there were no marriage ceremonies performed; it is conceded that there are ceremonies ordinarily in use in Kumbala caste to which the Zamindar belonged. The lady was a lady of a different caste, of the Marava caste--the daughter--so far as we know--of an agriculturist who lived in the town of Bodinayakanur. It is conceded that there is a secondary form of marriage which in Ramasami Kamaya Naik v. Sundaralingasami Kamaya Naik I.L.R. (1893) M. 422, was found to be a legal marriage in this caste in the Saptur Zamindary and it is conceded that that form of marriage was not made use of on the occasion of the union of the Zamindar and the 4th defendant. What is alleged is that there was a marriage by mutual consent of both parties. The lady said that she would not go and live with the Zamindar if he did not make her his wife, and the Zamindar agreed to take her as a wife. Now it was suggested and a finding was called for on the point whether by the custom of the caste to which the Zamindar belonged such an agreement amounts to a lawful marriage. The Subordinate Judge has found against the existence of the custom and we are not asked to reverse that finding. So we have it, that there is no custom of the caste by which marriage by mutual consent is marriage; and we are driven to look in the law laid down in shastras for some form of marriage by mutual consent which might be applied to this case. But it is necessary first to find that the agreement alleged by the lady is proved, and I am unable to differ from the Subordinate Judge's finding that that agreement is not proved. Immediately after the Zamindar's death steps were taken by the Collector of the District, as is usually the case on such occasions, to ascertain facts in relation to succession and so forth of the Zamindary. On that occasion as Exhibit I shows this lady, the 4th defendant, made no claim of any sort to be the wife of the Zamindar. The Tahsildar in the Deputy Collector's presence took a statement from her, in which she did not say she was the Zamindar's wife, and before the Collector she made no claim of any sort to succession on behalf of her son. Now it seems to me that that could hardly have been her attitude at that time if, as a matter of fact, some years before, she had insisted on being made a wife before she would consent to enter the palace at all. Consequently it seems to me that Exhibit I and also Exhibit II, in which she did not hesitate to describe herself not as a wife but as bhogastree are strongly against the alleged argument. No doubt it is suggested that the term 'Bhogastree' found in Exhibit II may be used to devote a married woman or wife and that was so in the Saptur Zamindary case, Ramasamy Kamaya Naik v. Sundaralingasami Kamaya Naik I.L.R. (1893) M. 422. But here it seems to me that, the lady's own evidence shows that she did not regard bhogastree as meaning a wife. She would resent being called bhogastree. It is pretty clear that at the time of the Zamindar's death she made no claim of any sort to be his wife.
2. [His Lordship next proceeded to consider the evidence as to the agreement pleaded and held that it was not proved.]
3. That being so it is unnecessary to say whether I should have to hold that the Gandharva marriage by mutual consent would be a legal marriage between the Zamindar and the 4th defendant. There was no such marriage. The lady was taken into the palace under circumstances which have not been proved by any direct evidence, unless I accept the defence evidence that she was abducted without the knowledge of her family, but it is unnecessary for me to say anything about that.
4. The lady not being married the case of her son, the plaintiff, must be treated upon the footing that he was the illegitimate son of a continuous concubine of the Zamindar.
5. Then we come to another question of fact which has to be decided and that is whether the family of the Zamindar was divided or not. It is perhaps really not necessary to decide it because if the family were divided then it seems to me on the decision in Parvathi v. Thirumalai I.L.R. (1886) M. 334 the plaintiff would be excluded by the widow, and if the family were undivided then it seems to me our decision must be that the plaintiff would be excluded by the 5th defendant. However the Subordinate Judge has gone into the question and it may be desirable to decide it on the evidence. I am of opinion that it has been rightly decided by the Subordinate Judge that division is not made out. But before I go on to say anything about this evidence I ought to refer to some evidence on this question of marriage, which I forgot to deal with just now, some circumstantial evidence relied upon by the plaintiff. Once we find that the terms of the agreement are not proved by the direct evidence and that there is no custom in the caste of marriage by mere consent, the circumstantial evidence cannot go far to prove such a marriage in this case. The evidence is evidence of treatment of the 4th defendant and her son mostly during the life of the Zamindar, and might no doubt, standing alone be used as an indication of a legally valid marriage in due form. But we know that there was no marriage in due form, that is, in any of the customary forms in the caste and the evidence of treatment could only go to show that the Zamindar and his people believed that his union with the 4th defendant was a valid marriage. Considered in that light the evidence of treatment is really of no great value in this case. But I may say generally that I agree in the finding of the Subordinate Judge that it does not show what it is intended to show. The plaintiff could show no more than that he was treated with affection and his mother was treated with affection and consideration by the Zamindar during his life time, and there is nothing incompatible in this evidence with the position of the lady as a favoured concubine and the mother of the Zamindar's only son. Two circumstances to which the Subordinate Judge refers circumstances which occurred after the death of the Zamindar the alleged putting of new cloths upon the 5th defendant immediately after the Zamindar's death and the throwing of earth upon the grave by the plaintiff might point to the recognition of the 4th defendant by the family as the widow of the Zamindar, but upon these points there is a conflict of evidence and it is not satisfactorily proved that either of those things was done, and even the circumstantial evidence is not at all in plaintiff's favour. We find that in the Zamindary accounts the lady is referred to simply by her name 'Karuppayee' and not with any of the courtesy titles which the Subordinate Judge points out are usually accorded in the Zamindary documents to the wives of the Zamindars. So the circumstances are not in her favour; and on the whole as I have said I can attach little value to this evidence as evidence of the agreement which forms the only marriage alleged. <
6. Now to return to the question of division, it is not alleged that any partition of the property was made at any particular time. All that was alleged are certain circumstances such as separate residence and separate holding of property by different branches of the family. The branches lived in different houses but in the same compound. That, I think is not evidence of division. Then it is said that they owned separate properties of the Zamindar, but all what that means, so far as I understand the evidence is that some members of the family held under the Court of Wards or under the Zamindar portions of the pannai lands not as having been divided into shares as their own property but as lessees. That could hardly prove division. There are two Judgments in suits to which the 1st defendant was a party and in which she alleged division and the Judge then held that the Zamindar was divided from his uncles. It was to the interest of the 1st defendant to allege it then and I do not think those Judgments are of any very great value in this case. On the other hand there is exhibit 42 which shows that there was no division at its date, viz., the 1st November 1862. One member of the family, Vadamalai Muthu Naiker was living separately and the others were all living together as one family. That was in 1862 and there is no evidence of any partition thereafter. Surely if there had been a partition among the various branches of the Bodinayakanur Zamin family after 1862, there must have been some record of it. Then it is said that allowances which had been given by the Zamindar to members of the family were withheld by him in some cases. There is evidence suggesting that the Zamindar was displeased with his relations and he might have withheld the allowances on that account and the fact that they did not go into court and sue for them, seems hardly to justify the conclusion that there must have been a division long before; though it may be some evidence in favour of it, it is not enough to turn the scale in the plaintiff's favour. And further supposing that the evidence of separate holding of lands is taken in favour of the plaintiff as showing division of those lands, though I think that is not so, here even then that would not be enough to show that as regards the Zamindary itself there was a division. There is certainly no evidence that the Zamindary was made to form a share of the family property before that time and was allotted to any one branch of the family or that in any way there was a separation in regard to the enjoyment of the Zamindary among the co-parceners. The Subordinate Judge has examined the documentary evidence and has come to the conclusion that there was no division. His judgment is full on the subject and it is not necessary that I should discuss those documents in detail. Once it is shown and I think it is shown by Exhibit 42 that there was no division in 1862, it seems to me that much stronger evidence than we have in this case is wanted to show that a division was made between the co-parceners after that time.
7. Holding then, with the Subordinate Judge that there was no division, it remains to be seen, what is the position of the plaintiff as the illegitimate son of the Zamindar in an undivided family. Now there is a decision in Parvathi v. Thirumalai I.L.R. (1886) M. 334, which is directly in point. There it was held that in the case of impartible property the widow excludes the illegitimate son and where the property is separate property both the widow and the illegitimate son would be entitled to have a share in each property. Now the contention on behalf of the appellant was that that decision was shaken by the decision of the Privy Council in Jogendra Bhupati v. Nityanand I.L.R. 17 C. 151. In a later case in this Court, no doubt it was said that that decision was somewhat shaken inasmuch as it expressed some doubt as to the correctness of the decision in Jogendra Bhupati v. Nityanand I.L.R. 11 C. 702 which was upheld by the Privy Council. That it has actually been overruled is certainly not the case and in this Court in Karuppa Goundan v. Kumarasatni Goundan I.L.R.(1901) M. 419 it was pointed out that the Privy Council case might properly be confined to its own facts viz., the case of the succession of an illegitimate son to the share of his legitimate half-brother. There was a legitimate son and an illegitimate son of the same father and the Privy Council held that they were co-parceners. But in Karuppa Goundan v. Kumarasami Goundan I.L.R. (1901) M. 419 it was pointed out that that decision stopped there and need not be extended so as to involve a co-parcenary with the other collateral relations. Now Karuppa Goundan v. Kumarasami Goundan I.L.R. (1901) M. 429 is a case which is binding on us, and if I may say so, it seems to me, that it is a proper interpretation of the Privy council decision and that their Lordships did not intend to decide anything that was unnecessary for the purpose of deciding the question before them. Then we have some decisions of this Court as regards collaterals, that the illegitimate son is not entitled to succession in competition with them. There is the case to which I have referred and Gopalasami Chetti v. Arunachelam Chetti I.L.R. (1903) M. 32 which no doubt are cases of partible property. But I shall show at once that that can make no difference. So far as joint family property goes in this Presidency the decision in the Privy Council case does not prevent us from following the decisions of this Court that an illegitimate son is excluded by his father's co-parceners. 'Now Mr. Rangachariar contends that we ought not to treat the property as joint property, but that since the decision in Sartaj Kuari's case I.L.R. (1887) A. 272, an impartible Zamindari has come to be held to be the separate property of the Zamindar, and we must so treat it that the Zamindari in this case descends by lineal primogeniture, and the plaintiff, though illegitimate is a son, and it is only in the absence of sons that we need look for any other heir; and that on these grounds we ought to decide that the son is entitled to succeed to his father in preference to the widow or co-parceners. But the rule, as I understand it, when we have to look for the heir to an impartible Zamindary is to see what the law of succession would be if the property were partible with reference to the nature of the property, as ancestral or separate and choose the successor accordingly and if the successor would be the whole joint family select one of the members by applying the rule of primogeniture or whatever it be applicable to the particular case. Now if that is so, no decision has been cited to us which shows that it is not, if we are to have regard to the nature of the property and see what would happen in the case of partible property, then there can be no doubt according to the decisions of this Court, that the plaintiff is excluded by his father's co-parceners. All the cases which have been cited to us by Mr. Rangachariar as showing that there is no co-parcenary properly speaking in a case where the property is impartible as indicating that we ought to treat this as the separate property of the Zamindar do not, in any way deal with or depart from the rule which is to be adopted in looking for a successor to the Zamindari. There is, it may be, no real, at any rate, no effective coparcenary in the case of impartible estate, no effective interest in any collateral member of the family during the lifetime of the Zamindar. That may be the effect of the cases, but they do not, in any way, interfere with the rule that, when you have to look for a successor you should find a person to succeed who would be one of the co-parceners, if the property were partible. Now if this property were partible and the family joint the 5th defendant would succeed. If it were separate property, the 1st defendant would succeed; Parvathi v. Thirumalai I.L.R. (1886) M. 334. Consequently without going into all the cases which were cited there is really no doubt that the plaintiff must as the illegitimate son of the Zamindar be excluded from succession by the 5th defendant. The suit must fail so far as that goes.
8. There is another question. There was a question raised, whether the plaintiff is bound by a release executed by his mother Exhibit II. That is a question raised on behalf of the respondent in bar of the plaintiff's claim to the Zamindary. It is only necessary to discuss the question of release in view of another question, whether he may be entitled to share in certain property which is alleged not to form part of the impartible Zamindary. The release was made by the plaintiff's mother, the 4th defendant, on his behalf during his minority and by it she gave up all claims to the Zamindary and all the properties forming part thereof. She gave it up on his behalf in consideration of the allotment to him of certain land, a small amount of property compared with the Zamindari. It is not shown that the lady had any independent advice in the matter, It was suggested that there was one person the defence witness No. 20 who was her adviser--but he does not say so and there is no suggestion that she had any other. On the other hand, we have it, the persons who drew up the document are persons employed by the 1st defendant. So that it seems to me that it is very difficult to agree with the Subordinate Judge that this was a bona fide settlement by the family of family disputes or matters about which there were likely to be disputes. I think it will have to be held that the act of the 4th defendant was not binding upon her son and that the release is not a bar to the claim made by him to the Zamindary.
9. The remaining question is whether there is any property left by the Zamindar which is not part of the Zamindary. If so it seems to me on the decisions of this Court that the plaintiff, the illegitimate son of the Zemindar, is entitled to share it with the first defendant. We should have to find that it is separate property of the Zamindar and not property of the joint family and that it was not incorporated in the Zamindary at the time of the Zamindar's death. Now in the plaint in the suit the plaintiff did not claim a share. He claimed the whole and did not add an alternative prayer that if he is not found entitled to succeed to the Zamindary, he might be given a decree for a share in the property which did not not form part of the impartible Zemindary and on this ground the Subordinate Judge held that he could not be allowed a share by the decree in this suit. I think that that is not right. There is really no reason why the plaintiff should not be now given his share if he is found entitled to it. A more difficult question to my mind is whether he has any title. That was not made an issue until after the close of the evidence and during the argument. But the question was raised before that at any rate ; the question was raised whether there was any property which does not form part of the impartible Zemindari. On this point the parties put in statements but no issue was framed at that time. It is not easy to say definitely that evidence was not let in on this question, or that any evidence which could have been let in was excluded. But at the same time, in as much as there was no issue before the evidence was closed, I think it difficult--it is unsatisfactory to make an attempt to decide a question so large as this upon evidence which, it is not clear, was all the evidence which would have been available on the issue. Consequently, I think it will be necessary to admit further evidence upon this question.
10. A further question arises whether if the plaintiff can be given a share he is not bound to bring in all the property which has been allotted for him under the release and of which he is in possession. That question depends somewhat upon evidence as to whether that property was allotted to him by the release or had been given to his mother for him by the Zamindar and if the latter on the circumstances under which it was given. In considering the issues which I propose to send down, the Subordinate Judge can deal with this matter. Having given the matter the best consideration I can, I think it is desirable to have the assistance of the Subordinate Judge upon it and he will be requested to record findings upon two issues, namely (1) Whether any of the property in suit and if so what property is the separate property of the Zamindar and not part of the impartible Zamindari and if so (2) To what share (if any) is the plaintiff entitled in it or any part of it.
11. I think that fresh evidence may be called as to the questions of fact which arise on those two issues. Two months time will have to be allowed for finding and 7 days for objections.
Abdur Rahim, J.
12. I have arrived at the same conclusion. This suit was instituted by the plaintiff who is the appellant before us, in the Court of the Subordinate Judge of Madura West to recover the Zamindari of Bodinayakanur. His claim is that he is the son of the late Zamindar who died in 1888 and as such entitled to the property.
13. One of the principal questions that are raised by the appeal is whether the Plaintiff is the son of the Zamindar as claimed by him-It is alleged that his mother the 4th defendant in the suit was married to the late Zamindar in the Gandharva form of marriage and it is urged that this form of marriage is valid, according to Hindu Law, in the Kumbala caste to which the Zamindar belonged. The Subordinate Judge in a very full and exhaustive Judgment has found that the plaintiff, is in fact, the son of the late Zamindar, but he says that he is his illegitimate son as there was no marriage between the fourth defendant and the Zamindar. There can be no doubt on the facts that the Plaintiff's mother was introduced into the palace of the Zamindar while she was very young and that she lived with him till he died and the plaintiff was born to her. The form of marriage which is alleged t o have been gone through according to the plaintiff was this; both the parties, that is, the Zamindar and the fourth defendant, who is of the Maravar caste and humble extraction agreed that they would live as husband and wife, that the latter should be regarded as the legal wife of the Zamindar; and that she accordingly lived with Zamindar in the capacity of a wife. As regards the agreement under which the fourth defendant came to live with the Zamindar, I think the judgment of the learned Subordinate Judge is right, that, in fact, there was no agreement on the part of the Zamindar to accept the fourth defendant as his wife and that she lived with him merely as a concubine. The learned Vakil for the appellant has challenged this conclusion mainly upon certain circumstances which, he says furnish strong evidence that the fourth defendant must have been living in the palace as a wife and not as the Zamindar's concubine. All those circumstances are carefully considered by the learned Subordinate Judge and I think that neither any one of them in particular nor all of them taken together are such as can be said to be less consistent with the plaintiff's mother consenting to live with the Zamindar as his concubine rather than as his wife. No doubt the late Zamindar treated the fourth defendant so far as it appears from the evidence with affection. He apparently took her about the temples and wherever he went on journeys. He gave her accommodation in a part of the palace where his own mother used to live or some other female relations of his had their quarters. The plaintiff's mother was also allowed a separate cooking establishment and at the plaintiff's birth certain ceremonies were performed. It also appears that in a certain photograph which was taken of some members of the Zamindar's family the plaintiff, who at the time was quite a child was included in the group. On the other hand, there is a very significant circumstance which goes against the case of the plaintiff. The plaintiff's mother is described in the accounts of the Zamindari merely as ' Karuppayee,' that is, by her bare name without any such title as is customarily given to ladies of the Zamindar's family. The plaintiff himself is described merely as ' Tambi.' The Subordinate Judge, in my opinion, rightly relies on this fact as showing that, although the plaintiff's mother enjoyed the protection and affection of the Zamindar, she was not regarded by him or by his officials as his legitimate wife. Also as regards the oral evidence which is adduced in support of the arrangement put forward by the plaintiffs, I think the Subordinate Judge has taken the right view. This evidence consists of the testimony of a number of persons who cannot be said to be disinterested and certainly are not people who can be implicitly relied upon to speak the truth. The Subordinate Judge rightly remarks that the fact that the fourth defendant's mother and other female relations of hers did not accompany her to the palace at the time she was first taken there, must be taken as considerably discounting the evidence of the witnesses who were cited to prove the alleged arrangement. On the other hand, there is evidence of certain witnesses for the defendant including her pleader, that at or about the time the fourth defendant was taken to the place there was a criminal complaint lodged by certain relations of her charging the Zamindar with abduction. The case apparently came to nothing as the inquiry showed that the fourth defendant went to the palace willingly and there was no abduction. But what is absolutely conclusive against the case of the plaintiff is the conduct of the fourth defendant herself on the Zamindar's death. There was an inquiry held by the collector as to who were the heirs of the Zamindar and the fourth defendant did not, at the time, put forward any claim on behalf of herself as his married wife, or on behalf of her son as the heir of the Zamindar. It is inconceivable that if she was conscious that she occupied the status of a legal wife she would not have asserted the position at once. On the other hand, in the statements that were taken at the time the fourth defendant is described as bhogastree: Admittedly, this description is not ordinarily applied to the wives of Zamindars. No doubt Mr. Rangacharry contends that 'Bhogastree' may simply mean an inferior sort of wife, but the evidence of the 4th defendant herself or the point rather tends to support the case of the defence that 'Bhogastree' means only a concubine and not a wife. It was really not until the institution of this suit, which, it may be mentioned is financed by a. number of strangers, that a claim was put forward by the fourth defendant that she was married to the late Zamindar and the plaintiff was his legitimate son. I, therefore, agree with the Subordinate Judge that the arrangement alleged by plaintiff, under which his mother lived in the palace has not been proved.
14. This is sufficient to conclude the case of the plaintiff so far as the question of legitimacy is concerned. But there is a further question which has been discussed by the Subordinate Judge and which has also been argued before us namely, that even if the alleged arrangement were proved, it would not, in law, amount to a valid marriage. It is not necessary to discuss this question at any length, but having heard the matter fully discussed at the bar, I wish to express my clear opinion that the arrangement set up by the plaintiff, even if proved would not amount to a valid marriage in Hindu Law. I do not desire to consider the question whether the Gandharva form of marriage requires any right or ceremony or not. My opinion is that if this amounts to Gandharva form of marriage it has not been shown that such marriages are valid in the caste to which the late Zamindar belonged. It may be that the ancient Hindu Law texts allowed much greater latitude to Sudras in the matter of marriage than to the higher castes, or rather to the Brahmin and that perhaps among the Kshatriyas the Gandharva form of marriage has, even within recent times, been recognized as prevalent in some parts of India. But if this form of marriage were valid among the Sudras or rather in the caste to which the late Zamindar belonged, I should have expected some evidence to be forthcoming as to its being in vogue among them. Mr. Rangachary, did not refer to any such evidence and as a matter of fact, the evidence so far as it goes, shows that the Gandharva form of marriage has long ceased to be practised even if it ever prevailed, in the Kumbala caste. He admitted that there was a regular form of marriage, or rather two forms of marriage, one of a superior and the other of an inferior character, prevalent in the Kambala caste. Supposing therefore for argument's sake, that the Gandharva form of marriage would according to the ancient texts, be permissible among the Sudras, I am of opinion that, so far as this caste is concerned, it must upon the evidence in the case, be held to be obsolete and no longer recognized as valid. Mr. Rangacharry has strongly Contended that if ancient Hindu Law texts sanction this form marriage, we must hold that it is valid. But I am not inclined to accept that position. If I find that a certain caste among the Hindus has long given up this form of marriage and this is shown by their consistently adopting other more regular forms, I do not think that we are still obliged to recognize its validity in that caste.
15. The position, therefore, is this; The plaintiff is the illegitimate son of the last Zamindar : the question remains whether as such he is not entitled to succeed to the Zamindari in preference to the first defendant, the widow of the Zamindar, or the fifth defendant, his cousin. With reference to this matter we have to ascertain whether the family of the late Zamindar was divided or not. Upon this point the Subordinate Judge has discussed the evidence at great length, and I have no hesitation in saying that his conclusion that the family remained joint must be accepted.
16. Mr. Rangachariar does not allege that there was any formal division at any particular time but he only points out, certain circumstances from which he asks us to conclude that there must have been a division of the family. The circumstances he relies on are, mainly, that since about 1884 some members of the Zamindar's family, the uncles and cousins of the Zamindar, held separate properties and had separate dealings in respect of those properties and with the exception of one uncle, the others have not been receiving any allowance or maintenance. He also relies upon certain observations In the judgment in a suit between one Kulasekara, an uncle of the Zamindar and the present first defendant, to the effect that the plaintiff therein was divided from the Zamindar. But none of those circumstances, to my mind, really compel us to come to the conclusion that the family was divided. It is perfectly clear from the documents exhibited in the case, that up to at least 1862 all the members of the family lived together, though not in the same building, in the same compound. They received allowance and were treated in every other respect as members of the co-parcenary. Even the Court of Wards, when it had the management of this estate, treated the family as joint, and if there had been a separation after 1884 or 1862, surely there would have been evidence forthcoming as to that. In the absence of that evidence, from the mere fact that some of the members of the family had separate property or cultivated some family lands, it does not follow that there was any alteration in the joint status of the family so far as the Zamindari is concerned. The discontinuance of allowances to some of the coparceners since 1884 was apparently due to the fact that they had quarreled with the Zamindar. As regards the observation in the judgment to which I have referred, not much importance can be attached to it as the question of division or non-division was not in issue in that suit. If therefore the Zamindar and his uncles and cousins were members of one joint Hindu family, then I think it must be held that the plaintiff has no title to the Zamindari as against the fifth defendant. It is argued on behalf of the appellant that according to established law, the holder of an impartible Zamindari has absolute power of disposition over it and therefore we must treat the question of succession on the basis of the Zamindari being the separate property of the Zamindar., I do not think that that conclusion at all follows. All the decided cases lay down that, for the purpose of finding out the heir to an impartible Zamindari, where the Zemindar was a member of an undivided family we have to look to the co-parcenery. That is to say, we have to see who would be entitled to the property if it were the case of an ordinary partible joint family property. It may be that for purposes of enjoyment and disposition by the Zamindar for the time being the Zamindari stands to a great extent, on the same footing as the private property of the Zamindar, but with that we have nothing to do. We have before us only the question of succession and for that purpose we must treat the Zamindari as ordinary joint family property if the Zamindar remained undivided from his co-parceners. Then the question arises, can the plaintiff be said to be a coparcener just as a legitimate son would be and as such entitled to succeed to the Zamindari which is descendible by the rule of primogeniture. Upon that point the weight of authority is against the plaintiff at any rate so far as this Presidency is concerned. The illegitimate son of a sudra is no doubt not one of the twelve kinds of sons mentioned in the Mitakshara, Chapter I, section II. He is not a sapinda of his natural father and cannot demand a share in the family property during his father's life time. In the Mitakshara Chapter I, section 12 his case is treated as a special case and all that that section lays down is briefly this. The father may if he chooses, give a share to his illegitimate son; on his death the illegitimate son is entitled to half the share of the legitimate son, he is also entitled to a share along with the daughter's son; and it has been ruled that upon a proper interpretation of the text the illegitimate son does not exclude the widow or the daughter. I think the text clearly indicates that the illegitimate son is not a member of the co-parcenary to which his putative father belonged. Much reliance is however placed upon the ruling of the Privy Council in Jogendra Bhupati v. Nityanand I.L.R. (1890) C. 151, but all that this decision lays down is that where a man has left a legitimate son and an illegitimate son, and on the death of the legitimate son the illegitimate son succeeds to him by survivorship, because as I understand the decision the text of the Mitakshara already alluded to, gives him a share along with the legitimate son of his natural father and thus a co-parcenary is thereby created between these two. It has also been decided that if the legitimate son dies leaving a son of his own, that son will take his father's share. But I find no warrant for extending the scope of the Privy Council ruling so as to hold that an illegitimate son is a co-parcener along with his father's uncles and cousins. On the other hand, in a series of cases in this Court it has been held that the text of the Mitakshara relating to the illegitimate sons of Sudras only applies to separate property and not to property which belongs to a co-partenary See Krishnayyan v. Muthusami I.L.R. (1883) M. 407 Ranoji v. Kandoji I.L.R. (1884) M. 557, Parvathi v. Thirumalai I.L.R. (1886) M. 334, Karuppa Gounden v. Kumarasami Goundan I.L.R. (1902) M. 429 and Gopalasami Chetti v. Arunachallam Chetty I.L.R. (1904) M. 32. Of these cases Parvathi v.Thirumalai (1886) I.L. 10 M. 334 which relates to impartible estate is directly in point.
17. I am, therefore, of opinion that the plaintiff is not entitled to succeed to the Zamindari as against the fifth defendant. Nor in my opinion, can he oust the widow if the Zamindari were, in fact, the separate property of the Zamindar. He clearly occupies an inferior status, not only in comparison with the legitimate son, but also the widow, the daughter and the daughter's son, even if it can be said that he is entitled to an equal share with these persons.
18. On all these points therefore the plaintiff's case fails.
19. I may mention that the Subordinate Judge has also found that the plaintiff is debarred from claiming the Zamindari by reason of a release executed by his mother, the fourth defendant, by which she relinquished on behalf of her son and herself, all rights in the Zamindari in consideration of having received certain properties from the first defendant. But I am unable to agree with the learned judge on this point. When the fourth defendant purported on behalf of her minor son, to relinquish his claim to the Zamindari, which is of considerable value on receipt of comparatively insignificant properties, it does not appear that she obtained any legal advice as to the right of the plaintiff to the Zamindari. There was no active dispute or question raised as to the plaintiff's title to the Zamindari and in my opinion it would be going too far to say, that the arrangement can be upheld as a proper family arrangement. I think a release of this nature is beyond the power of a guardian and cannot be upheld unless it is proved that it was executed after careful consideration of the minor's claims.
20. The only other point which we are asked to decide in the appeal is whether the plaintiff is entitled in this suit to obtain his share in the separate properties of the Zamindar supposing he left any. The suit as instituted was one for recovery of the Zamindary and other properties forming part of the Zamindari and no partition was asked for in the plaint of any properties which might be found to be the private property of the Zamindar. It, however, appears, that during the progress of the suit,an issue was raised as to what were the private properties of the Zamindar, though even then the question was not distinctly raised as to the right of the plaintiff to a share in those properties. But apparently the question was argued and the Subordinate Judge failed to go into the matter only because this was a suit in ejectment, and he was of opinion that the plaintiff could not get any relief in respect of the private property of the Zamindar in this suit. I do not appreciate the difficulty in giving relief to the plaintiff with respect to the separate property of the Zamindar. It is not shown that all the parties who would be interested in the decision of such a question are not before the Court. The state of the record, as it stands at present, is no t however very satisfactory and I agree with my learned brother that we could not arrive at a satisfactory conclusion without having a proper finding of the Subordinate Judge on the point.
21. For the reasons, I agree in the order proposed.
22. [The Court then proceeded to consider the memo of objections which raised questions as to the genuineness of the will set up by the first respondent, the widow excluding the plaintiff from the separate property of the Zamindar and as to the family custom-Ed.]
23. (After finding against the genuineness of the will on the evidence proceeds.) The other point raises the question of custom-the question whether by the custom of the Kumbaia caste an illegitimate son takes nothing of his father's estate or of the family property. The issue (21st issue) was framed at a late stage of the case after the defence evidence had been recorded. For our purpose the evidence must be strong enough to show that the plaintiff is excluded by custom, not from the Zamindari only but also from the partible property which belonged to the Zamindar. The Subordinate Judge has dealt with all the instances on which reliance was placed to make out this custom. In most of them he has disbelieved the evidence of some persons on the ground that they came to Court without summons, of others, that they are relations of the 1st defendant, of others that they are men of straw. It has not been suggested to us that his appreciation of the evidence is not justified; thus a very large number of the instances to which he refers in paragraph 90 of his Judgment are instances which though he does not clearly say so, in paragraph 91 he holds are not proved and I think we must agree with him. Then he points out that most of these cases are cases in which the illegitimate sons were provided during the lifetime of their father with allotments for themselves; assuming these cases to be true although it might be that the allotment might not in law prevent them from coming down upon their father's estate for a share after his death, still those are not cases in which the custom is distinctly proved because it may be that the sons were satisfied, with what was given them; that does not prove the custom set up. That leaves only a few cases which I have said for the mo it part are discredited on the ground that the witnesses could not be believed. There is one instance the Sub-Judge does not seem to disbelieve, that spoken to by the defence 8th witness--he speaks of an illegitimate son not getting any property but that would be only one instance and would hardly be sufficient to prove a custom. There is another, the 46th witness, an illegitimate son; he says that his father's widow made provision for his maintenance only, but this I find is one of the cases the Subordinate Judge has disbelieved on the ground that the witness attended the court without summons. There are not I think any other cases of which it can be said that they are clearly cases in which illegitimate sons by reason of a custom have been excluded from inheritance of property which must have devolved on them under the ordinary law.
24. This as to the oral evidence. Then there are two judgments against the custom, judgments in which the custom was alleged but held to be not proved and there is Ex. XXIV of 1849 in which a Zamindar alleged that by the custom of his caste illegitimate sons were not entitled to succeed to a Zamindari. That is a document which might be valuable if necessary to exclude the plaintiff from the Zamindari, but it is not of any value as we are dealing with the custom in reference to partible property. Considering the Subordinate Judge has disbelieved most of the evidence he is right in holding that the evidence is not distinct, clear and sufficient to make out the custom. And as a matter of fact the custom set up in the written statement was not so general a custom as it was necessary to prove to enable the defendant to exclude the plaintiff from succeeding to the separate property. It is only a custom having reference to the Zamindari-that was the custom which was set up in the written statement of the first defendant but even that custom was not at first made the subject of a distinct issue. It may be that the 17th issue was intended to include it as the evidence the Subordinate Judge has considered was let in by the first defendant before the 21st issue was framed, but it is not quite clear to me that the question was properly raised in the suit. Assuming it was, I am prepared to hold that the Subordinate Judge was right in holding the custom was not made out.
25. The effect, then, of my findings on these two questions raised by the first defendant is that the finding which we agreed to call for will have to be furnished by the Subordinate Judge.
Abdur Rahim, J.
26. I entirely agree that the memorandum of objections fails on the two points raised by it and I have nothing to add to the Judgment which has been delivered.