Satyanarayana Rao, J.
1. This appeal raises an interesting question of Hindu law. The facts are not now in dispute. The properties in suit belonged to one Kandaswami. He had a son Nataraja, but this son predeceased Kandaswami. Kandaswami died on 28 1-1945 leaving behind him three daughters the plaintiff and defendants 1 and 2. The fourth defendant who is the appellant in this Letters Patent Appeal, it has now been definitely found, is the illegitimate son of Nataraja by his permanently kept concubine. The suit was laid by one of the daughters of Kandaswami for recovery of possession of a third share of the properties which were admittedly the self-acquired properties of Kandaswami, defendants 1 and 2, the other daughters, practically supported the claim of the plaintiff. Defendant 4 claimed that he was entitled to the properties in the right of his father, Nataraja, on the ground that he was entitled to represent the father and share the inheritance. The District Munsif and the Subordinate Judge on appeal held that the fourth defendant was entitled to a half share in the properties, and a preliminary decree for partition of the properties was passed declaring the right of the plaintiff and defendants 1 and 2 to 1/6th share each, and that defendant 4 was entitled to a half share in the properties. The properties were directed to be divided by metes and bounds.
Against the decision of the Subordinate Judge there was a second appeal to this Court by the plaintiff claiming that she was entitled to 1/3rd share and not to 1/6th share. There was a memorandum of cross objections by defendant 4 who claimed that he was entitled to all the properties and not merely to a half share, The second appeal was heard by Rajagopalan J. who held that defendant 4 was not entitled to any share at all as he was not entitled to represent his father, Nataraja, and allowed the appeal of the plaintiff and dismissed the cross objections filed by defendant 4.
2. In this Letters Patent Appeal by defendant 4, the fourth defendant claimed that he was entitled to the entirety of the properties on the ground of representation. He claims this right on the analogy of the legitimate son, grandson, and great grandson to take the inheritance in respect of self-acquired or separate properties of the father on the principle of representation.
3. The rights of a dasiputra or son by a female slave in the case of Sudras are based on a special text of Hindu law contained in Section 12 of chap. I of Mitakshara. This section occurs in Mitakshara after the rights of the sons by birth and by adoption have been stated in Section 3 of the same chapter in which the rights of the principal and secondary sons have been discussed by Vignaneswara, and it precedes chap. II where in Section 1 of that chapter the order of succession to the property of a person dying soilless is enumerated. It begins by stating:
'That sons, principal and secondary, take the heritage as has been shown. The order of succession among all on failure of them is next declared.'
The rights of sons enumerated in Section 3 of chap. I and the order of succession laid down in Section 1 of Chap. II apply to both regenerate classes as well as Sudras. But Section 13 has application only to a son by a female slave of a Sudra, for it the case of regenerate classes dasiputras are not entitled to any share in the inheritance bat are entitled only to maintenance. The text itself has been quoted in the Privy Council decision in Vellaiyappa Chetti v. Natarajan, 55 Mad. 1 and it is unnecessary to extract the same in this judgment.
4. It has now been settled that this text applies to the estate of a separated householder; in other words, if a person who is a Sudra becomes separated from his other coparceners and leaves a separate estate or leaves his self-acquired estate, then the text would apply, but not otherwise. It has also been settled, and the text expressly states so that during the father's lifetime tbe illegitimate son has no claim against the father's estate, unless the father chooses to give a share in the property but it is different if the father dies. In that event, the illegitimate son is entitled to a half share in competition with the legitimate sons. If there are no legitimate sons, the illegitimate son takes the whole estate provided there are no legitimate daughters or sons of daughters. If there are daughters or daughters' sons, the illegitimate son takes only a half share. If the father dies leaving a legitimate son and an illegitimate son, though the shares are unequal, the legitimate son and the illegitimate son take the property in coparcenary with a right of survivorship inter se. This has been settled by the Privy Council in Jogendro v. Nityanand, 18 Cal. 151 approving the view of Nanabhai Haridas J. in Sadu v. Baiza 4 Bom. 37 . Though the learned Judge applied the principle of survivorship applicable to property held in coparcenary to property which devolved under the text on legitimate and illegitimate sons, it was held that they do not take the property in severally as tenants-in-common but as joint tenants with a right of survivorship. The Privy Council in Vellaiyappa Chetti v. Natarajan, 55 Mad. 1 pointed out that the share allotted to a Sudra's son under the text was not in lieu of maintenance as was once thought in this Court, but that an illegitimate son had the status of a son and that he was a member of the family though with limited eights in the property is competition with a legitimate son. If the property left is neither the separate nor the self-acquired property of the father, bat is joint family property held by the father in coparcenary with others, it is decided in Vellaiyappa Chetti v. Natarajan, 55 Mad. 1 that the illegitimate son of even a Sudra by a continuously kept concubine would be entitled only to maintenance. There is undoubtedly, as has been held by the Full Bench in Subramania Aiyar v. Ratnavelu Chetti, 41 Mad. 44 a mutual right of inheritance between the putative father and tbe illegitimate son, and in the Full Bench judgment a plea was passionately put forward by the learned Juges to liberalise the rights of a dasiputra as far as possible.
5. The above principles of law are wall settled, and the problem that arises for consideration is whether the principle of representation recognised under Hindu Law of the son, grandson and great grandson taking the self-acquired or the separate property of the father together can be extended to the case of an illegitimate son of a legitimate son. The converse of the proposition that the legitimate son of an illegitimate son is entitled to succeed to the share of the illegitimate son even if he had predeceased the father has been established by the decision in Ramalinga Mupan v. Pavadai Goundan 95 Mad. 519 which was approved in later cases including the decision of the Privy Council in Vellaiyappa Chetti v. Natarajan, 55 Mad. 1. On behalf of the appellant strong reliance was placed upon this decision, and he pressed that the doctrine therein enunciated should be extended to the present case, and a right of representation as in the case of legitimate issue should be recognised.
6. I had occasion to examine the basis of the doctrine of representation of the son, grandson, and great grandson to succeed to the self-acquired property of the father in A. S. No. 243 of 1947. From the discussion in that case it will be seen that the property is taken by the three compact issues as one unit and they take it as aprathibandha or unobstructed heritage, or according to the strict theory of Mitakshara even in the self-acquired property of the father, the son, the grandson and the great grandson acquire a right of representation. They do not succeed to the property as sapratibandha or obstructed heritage. It was pointed out by Muthuswami Aiyar J. in Muthuvaduganatha Thevar v. Periasami, 16 Mad. 11 that to the rule of Manu that to the nearest sapinda the inheritance belongs, the case of sons, grandsons and great grandsons is an exception, and sapinda relationship also confers equal spiritual benefit on the propositus, though the propinquity or the blood relationship is not the same. The right of representation therefore is founded on the right by birth, on propinquity and also on the efficacy to confer spiritual benefit upon the propositus. This right has never been recognised in the case of an illegitimate son to any degree, and it is settled law that during the lifetime of the father an illegitimate son acquires not a scintilla of interest, notional or otherwise, in the property of the father. During the lifetime of the father by his choice and pleasure any property may be given by him to the illegitimate son. The right of the illegitimate son under the text does not crystallise and does not take definite shape until the death of the father. The blood relationship contemplated by Mitakshara is the legitimate blood relationship which also carries with it the consequence of conferring spiritual benefit upon the propositus. It is difficult to hold that an illegitimate son occupies a similar position like a legitimate son. No doubt the Privy Council in Vellaiyappa Chetti v. Natarajan, 55 Mad. 1 treated the illegitimate son as member of the family and as having the status of son. It does not mean that but for the text the illegitimate son would have legitimate blood relationship like that of an aurasa son and would be capable of conferring spiritual benefit upon the propositus. All that their Lordships of the Judicial Committee were laying down in that case was that the right of the illegitimate son to a share in the property was not in recognition of a right to maintenance from and on 6 of the property but by virtue of his peculiar status as a son recognised under the text. It may be that Yajnavalkya and Vijnaneswara thought that at that time the marriage tie in the case of Sudras was not so strict and was very often difficult of proof, and it may be for that reason that a definite share is the property was given in the case of a dasiputra of a Sudra. In Krishna Yachendra v. Rajeswara Rao, I. L. R. (1942) Mad. 419 the Judicial Committee definitely ruled that an illegitimate son is not an aurasa son, as that word is used in Hindu law, and this their Lordships observed, was elementary. Their Lordships pointed out :
'Aurasa baa always been used to import the highest class of son--the son begotten by the man himself on his lawful wife; of lower kinds once recognised, several were not sons in any physical sense e.g. the putrika putra or son of an appointed daughter,'
This dasiputra is not included among the 12 sons enumerated in Section 2 of Chap. II of Mitakshara. The position of dasiputra therefore is a peculiar one, and but for the special text he would not be entitled to any share in the property. The general principle of Hindu law is always to confer heirship upon the legitimate issue and not upon the illegitimate issue. The only exception is tbe one created in favour of dasiputra in the case of Sudras, which is a special exception made and recognised by the text. On principle therefore it seems to be difficult to extend the principle of representation to the case of illegitimate sons and elevate them to the status of an aurasa son with all the rights incidental to that status as aurasa son. Courts have always held against the extension of the doctrine of Hindu law as in tbe case of sapindaship. See Meenakshi Ammal v. Ramaswami Josier, 1937 Mad. L. Jour 28 a decision of Varadachariar J. affirmed on appeal in Meenakshi Ammal v. Murugayya Mooppanar, 1940 Mad. L. Jour. 288. The illegitimate son has no right to succeed to any property by collateral Succession, and this is consistent only with tbe view that he is not a son for all purposes. See Veeraraghavayya v. Srinivasa Rao, 1945 Mad. L. Jour. 288 .
7. It now remains to consider the decision of Ramalinga Mupan v. Pavadai Goundan. 26 Mad. 619 on which strong reliance was placed by the learned advocate for the appellant. In that case the plaintiff and one Banga Muppna were divided brothers of Sudra caste. Banga Muppna had two illegitimate sons by a permanently kept concubine. The illegitimate sons, however, predeceased Banga Muppan leaving legitimate sons. Banga Muppan then died, and the divided brother of Banga Muppan, the plaintiff, sued to recover the property of Banga Muppan as his heir from the grandsons of Banga Muppan. It was held that the legitimate sons of the illegitimate sons of Banga Muppan were entitled to succeed to tbe property. Bhashyam Aiyangar J. who delivered the judgment of the Court examined the cases before tbe decision of the Privy Council in Jogendra Bupati's case, 18 Cal. 151 and thereafter, and held that the grandsons of Banga Muppas were entitled to succeed. One thing may be observed that in that case the right of representation wag claimed by a legitimate son of an illegitimate son. If the illegitimate son owned property, and he became the propositus, his legitimate sons and grandsons and great grandsons would ordinarily under Hindu law be entitled to take as one unit, as the right of representation of legitimate sons, grandsons and great grandsons is recognised under Hindu law.
It may therefore, be conceded that the principle of representation is rightly applied in that case. But the real difficulty in understanding that judgment is when the learned Judge says that 'an illegitimate son's right of inheritance to his father's property, or at least to a part of it is not contingent but absolute, as in the case of a legitimate son, Since if he has legitimate half brothers or other heirs of his father down to a daughter's son, he gets a half share and in the absence of such heir, the whole estate. The Sudra's illegitimate son is therefore in a position more analogous to that of a legitimate son than to that of other relations whose right of inheritance is liable to obstruction. The principles, therefore, applicable to the succession of sons and grandsons of legitimate sons may by analogy be applied to the sons and grandsons of an illegitimate son, viz. that they should be considered capable of representing the illegitimate son and in case he dies before his father, of taking the share which would have fallen to him it he had not so died.' If the illegitimate son as in that case predeceased the father and during the father's lifetime, according to the texts, he had no right in the property, it is difficult to agree with the learned Judge that the right of the illegitimate son is absolute and is not contingent. If he predeceased the father, he gets nothing in the property, and he left nothing for the illegitimate sons of his to succeed to. Even in the case of a legitimate son, if he predeceased the father without leaving a son or grandson his widow would succeed to nothing. As a legitimate son, though in theory, has a right by birth even in the self-acquired property of the father, in effect it he does not survive the father he succeeds to nothing. One need not quarrel therefore when the learned Judge applied the principle of representation in the case of a legitimate son of an illegitimate son, but serious exception has to be taken to the statement of the learned Judge when he observed that the illegitimate son's right was not contingent but absolute. Further, it is unnecessary to canvass the correctness of that decision, as it has been accepted as laying down good law in subsequent decisions including that of the Privy Council in Vellaiyappa Chetti v. Natarajan, 55 Mad. 1. There is no question of logically extending the principle of that case to the present case, as we are not dealing with a claim of a legitimate son in respect of an illegitimate son's property, but we are dealing with a case of an illegitimate son claiming to succeed a legitimate son who predeceased the father and basing his right under the text of Hindu law. The illegitimate grandson of Kandaswami, i. e., defendant, 4 cannot be considered as coming within the purview of the test which speaks of an illegitimate son and not an illegitimate grandson. There is no principle, nor is there any authority in support of the extension for which the appellant contends.
8. Our attention was drawn to the case of the Nagpur High Court in Bhagwant Rao v. Punjaram, I.L.R. (1938) Nag 255 which seems to lay down that the method of approach in the case of the rights of a dasiputra is first to assume that the dasiputra has got rights in the property and then to see whether there is any express text of Hindu law which outs down those rights. In my opinion, this is putting the cart before the horse, and the dasiputra is nowhere but for the special text of Mitakshara. It is not as if that under ordinary Hindu law he has got a right, and that this text attempt to restrict or define such a right.
9. In the present case the property of Kandaswami is the self-acquired property, and Nataraja had no interest in that property during Kandaswami's lifetime, though Nataraja and Kandaswami were undivided. It cannot be said that because of the death of Nataraja the illegitimate son of Nataraja lost rights in the property as was held by Rajagopalan J. However, it is unnecessary to rest the decision on that aspect of the matter as I am satisfied that there is no scope for applying the principle of Ramalinga Mupan v. Pavadai Goundan, 25 Mad 519 to the present case. The decision of the learned Judge is therefore correct, and the Letters Patent Appeal fails and is dismissed with costs.
10. There is a memorandum of objections, which relates to the rights of defendants 1 and 2. The first Court granted a decree in their favour for 1/6th share each. They did not appeal, nor did they file any cross objections at any stage, and even before the learned Judge who disposed of the second appeal, the appeal was by the plaintiff alone and was restricted to her one-third share. The power of this Court to act under Order 41, Rule 33 Civil P. C. was not invoked. It is now claimed in the memorandum of objections that in view of the conclusion reached that the fourth defendant has no right in the property the share of defendants 1 and 2 should be increased by amending the decree and Substituting one third for one-sixth even in their case. Defendants 1 and 2 remained ex parte throughout, and they did not move their little finger to have the decree modified. It is therefore difficult now at this stage of the Letters Patent Appeal to invoke the power under Order 41, Rule 83 and modify the decree. The decree cannot therefore be modified.
11. The memorandum of objections is dismissed, but there will be no order as to costs.
12. Raghava Rao J.:-- I agree in the judgment just delivered and the decree proposed by my learned brother. I wish to add a separate judgment of my own in view of the consideration that the main question raised by this appeal is one of some importance in Hindu law which is bare of direct authority and involves examination of principle as well as of analogous authority which is by no means clear or consistent. The question is whether the appellant, defendant 4, in the original suit by name one Govindaraju is entitled as the dasiputra or illegitimate son of a legitimate son of one Kandaswami, a Sudra, by name Natarajan, who predeceased his father, Kandaswami, to succeed to the separate estate of Kandaswami as against the daughters of Kandaswami, plaintiff and defendants 1 and 2. The question has been answered by the learned District Munsif of Mayuram who tried the original cause and by the learned Subordinate Judge of Mayuram in first appeal by awarding to defendant 4 a half of the estate and leaving the other half to the plaintiff and defendants 1 and 2. In second appeal to this Court, the question has been answered by Rajagopalan J. by denying defendant 4's right to succeed altogether.
13. It is common ground between counsel before us in this Letters Patent Appeal that defendant 4 has either the whole right to the exclusion of the plaintiff and defendants 1 and 2 or none at all by way of inheritance to Kandaswami.
14. Mr. Kuppuswami Aiyar in his well-prepared and well presented argument for the appellant relies on jus representations and the analogy of Ramalinga Muppan v. Pavadai Goundan, 25 Mad. 519 in which it has been given effect to. That ruling is that of a Bench consisting of Benson and Bhashyam Aiyangar JJ. of whom the latter delivered the judgment of the Court. It is contended by counsel before us that as in that case the legitimate son of an illegitimate son of the propositus who predeceased the propositus wag held entitled to succeed as against the divided brother of the propositus on the ground of representation of the illegitimate son by his legitimate son, so here the illegitimate son of the legitimate son of the propositas who predeceased the propositus must be held entitled to succeed as against the daughters of the propositas on the ground of representation of the legitimate son by his illegitimate son.
15. The passage from the decision cited which is relied upon is at p. 524 of the report and may so far as material be reproduced here. It consists of three sentences:
1. 'An illegitimate son's right of inheritance to his father's property, or at least to a pact of it, is not contingent but absolute as if the case of a legitimate son.....
2. The Sudra's illegitimate son is in a position more analogous to that of a legitimate son than to that of other relations whose right of inheritance is liable to obstruction.
3. The principles therefore applicable to the succession of sons and grandsons of legitimate sons may by analogy be applied to the sons and grandsons of an illegitimate son, viz. that they should be considered capable of representing the illegitimates on and in case he dies before his father, of taking the share which would hare fallen to him if he had not so died.'
As to the first of the sentences quoted, it seems to me pertinent to observe that no right of inheritance, be it of the legitimate son or illegitimate, can be anything but a spes successions. It is not a contingent, much less an absolute right. With reference to the second sentence it may, generally speaking, be accepted as correct in view of the Privy Council ruling in Vellaiyappa Chetti v. Natarajan, 55 Mad. 1 holding that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and in view of their Lordships' observations at p. 14 explicitly approving the sentence in question in Ramalinga Muppan v. Pavadai Goundan, 25 Mad. 519 as well as Kumaraswami Sastri J.'s opinion to a similar effect expressed in Subramania Iyer v. Ratnavelu Chetti, 41 Mad. 44 At the same time I cannot by any means regard an illegitimate son as one kind of aurasa son in the classi6oation of the Hindu law-givers as contended by Mr. Kuppuawami Aiyar. The gulf of distinction between the two, which is by no means narrow, has been emphasised by the Privy Council in Rajavelugoti Sarvajne Kumara Krishnamachendra v. Rajeswara Rao, I.L.R. (1942) Mad. 419 and cannot in this connection be ignored or overlooked. As regards the last sentence of the locus citatus from Ramalinga Mupan v. Pavadai Goundan, 25 Mad. 519 I can only say, as a matter of strict logic, non sequitur from the previous two sentences. Nor is there any approval of this observation as such in the Privy Council decision in Vellaiyappa Chetty v. Natarajana, 55 Mad. 1. At the same time there is nothing opposed to first principle in the view expressed by the learned Judges, and in the absence of any precedent covering the situation, the analogical reasoning resorted to by them may well stand justified. The question, however, is whether that analogical reasoning applied by the learned Judges to the case before them should be extended by further analogy to the case before us which is different in its facts from that case. There, it was the legitimate son of an illegitimate son, whose right of succession was in question. Here, it is the case of the illegitimate son of a legitimate son, whose right of succession is in question. My sentiment, frankly speaking, is against the exclusion of the daughter by the illegitimate son of the legitimate son of the propositua, and I am not prepared to extend the ruling in Ramalinga Mupan v. Pavadai Goundan, 25 Mad. 519 to a case not covered by its facts. I am of course bound so long as that ruling stands unreversed, to follow it in a case ad idem with it on facts. Indeed I may say I find nothing in the actual decision itself which offends my sentiment or reason.
16. No case is binding authority after all except for what it actually decides, as observed by Lord Halsbury in Quinn v. Leatham, (1901) A.O. 495. It is true that in considering the binding force of the judgment in a decided case sought to be used as precedent, regard must be had to what is called the ratio decidendi. The ratio decidendi which ought to be neither unduly whittled down nor unduly extended consists of the enunciation of the reason or principle upon which the question before the Court has been actually determined. All that Ramalinga Mupan v. Pavadai Goundan, 25 Mad. 519 lays down in the sentence of the judgment now under discussion is nothing more than that the principles applicable to the succession of sons and grandsons of legitimate sons may by analogy be applied to the sons and grandsons of an illegitimate son, viz., that they should be considered capable of representing the illegitimate son, and in case he dies before his father, of taking the share which would have fallen to him, if he had not so died. Tbe question before the Court in Ramalinga Mupan v. Pavadai Goundan, 25 Mad. 519 is not the game as the question before us, and that question which related to the succession of sons and grandsons of an illegitimate son was decided by means of the reason or principle derived by the Court by analogy from rules applicable to the succession of sons and grandsons of legitimate sons. It is to my mind perfectly clear on the facts of that case that Bhashyam Aiyangar J. in referring to the sons and grandsons of an illegitimate son in relation to the question before the Court there, was thinking of the legitimate sons and grandsons of an illegitimate son. It is to my mind, to say the least, extremely doubtful, applying the rule of construction that the same words in the same sentence or in the same context occurring in two different places must bear the same meaning unless an intention to tbe contrary is made out, whether in referring to the sons and grandsons of legitimate sons by way of analogy. His Lordship was ever thinking of illegitimate sons and grandsons of legitimate sons. His Lordship was evidently rather having in mind only the legitimate sons and grandsons of legitimate sons, and the ratio decidendi of that case cannot, in my opinion, by reasonably clear or certain implication, cover the case, such as the present one, of the illegitimate son of a legitimate son. As observed in foot-note (1) at p. 252 of Halsbury's Laws ofEngland, and Edn., Vol. 19.
''The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law (Salmond's Jurisprudence, 2nd Edn. Section 67) and which, when it is clear what it was, is binding; but If it is not clear, it is not pare of a tribunal's duty to spell out with difficulty a ratio decidendi in order to be bound by it.
17. I am not at all satisfied that had the present question arisen before His Lordship, His Lordship would have-necessarily, if at all, decided it in the manner contended for by the appellant. I am not in the circumstances prepared to accept the argument of Mr. Kuppuswami Aiyar so far as it is founded on Ramalinga Mupan v. Pavidai Goundan, 25 Mad. 519.
18. I may also observe that while upholding the right of the legitimate son of an illegitimate son of the propositus to exclude the divided brother of the propositus, Bhashyam Aiyangar J. in Ramalinga Mupan v. Pavadai Goundan, 35 Mad. 519 expresses a doubt at the end of the judgment whether the illegitimate son of an illegitimate son of the propositus could do so. His Lordship remarks :
''The expression 'legitimate son' (i. e. son of a wedded wife) in the text of Mitakshara which entitles an illegitimate son to a half share when there are legitimate sons, evidently, includes a grandson and great-grandson and similarly the expression 'illegitimate son' (i. e., a son begotten by a Sudra on a female slave) occurring in the same text, applies not only to the illegitimate son, but also to the grandson and great grandson by the illegitimate son, at any rate when they are his legitimate descendants. It may be doubtful whether the illegitimate issue of the illegitimate son can, on the principle of jus representationis, represent the illegitimate son, if before the inheritance opened, the latter predeceased his father.'
By parity of reasoning may not one feel doubtful whether the illegitimate son of a legitimate son can avail himself of jus representations where the latter predeceased the propositus Does it not look as if Bhashyam Aiyangar J. in referring to the grandson and great grandson included in the expression 'legitimate son' occurring in tbe text of Mitakshara is thinking of the legitimate grandson and legitimate great grandson ?
19. It will be seen too from the foregoing quotation that the analogical reasoning employed by Bhashyam Aiyangar J. is not by any means arbitrarily a priori. It is founded on what the learned Judge considers to be the correct interpretation of the expression 'illegitimate son' occurring it) the text of Mitakshara referred to, that expression must in the view of the learned Judge, be construed in the same manner as the expression 'legitimate son' occurring in the same text. If 'son' in the context of the compound 'legitimate son' includes 'grand son' and 'great grandson' there is no reason, according to the learned Judge, why it should not do so, in the context of the compound 'illegitimate son' whatever the doubt about the illegitimate son or grandson of the illegitimate son.
20. I may observe too that the application of jus representations to the illegitimate son of a legitimate son lands us in an anomaly if not an absurdity. Supposing an illegitimate son of X had to share the latter's property with the latter's legitimate son, he could only get a half of what he would have got, had he been a legitimate son. If, on the other hand the illegitimate son of X is to share with another legitimate son, he would by tbe theory of representation get as much as his father would have got, had be not predeceased X. The anomaly thus results that a remoter illegitimate lineal male descendant of X would get more than a nearer illegitimate lineal male descendant in such a situation. Mr. Kuppuswami Aiyar next relies on a later decision of the same Bench which has decided Ramalinga Mupan v. Pavadai Goundan, 25 Mad. 619 which is reported as Gopalasami Chetti v. Arunachellam Chetti, 27 Mad. 32 as emphasising the applicability of the doctrine of representation to a case of the illegitimate son of a legitimate son like the present. In this later case the property of which a share was sought by the illegitimate son of the legitimate son of a certain X was the joint property subject to the incident of survivorship, which belonged to X, and his two legitimate sons of whom the father of the plaintiff who had predeceased X was one. The defendants in the suit for partition were X, his surviving son and an adopted son of the plaintiff's putative father. The Suit having been dismissed by the trial Court, it was contended on behalf of the plaintiff in appeal, placing reliance on Ramalinga Mupan v. Pavadai Goundan, 35 Mad 519 that the jus representations given effect to in that case could be applied to the case before the Court. The learned Judges first clear the ground by declaring their adherence to the law as laid down in Krishnayyan v. Muttuswami, 7 Mad. 407 Ranoji v. Kandoji, 8 Mad. 557 and Parvathi v. Thirumalai, 10 Mad. 334 that an illegitimate son could claim no share in the property which had survived to his coparceners inasmuch as he could not claim to represent his putative father in the undivided family, and that it is only when a father dies a separated house-holder that an illegitimate son is entitled to inherit his separate estate. This the learned Judges did, because they had in their earlier decision in Ramalinga Mupan v. Pavadai Goundan, 25 Mad. 519 made an observation to the effect that it was unnecessary to consider in that case, i.e., Ramalinga Mupan v. Pavadai Goundan, 25 Mad. 619 whether and if so how far the decisions in Krishnayyan v. Muttuswami, 7 Mad. 407 Ranoji v. Kandoji, 6 Mad. 557 and Parvathi v. Thirumalai, 10 Had. 334 stood affected in their soundness by the decision of the Privy Council in Jogendro v. Nityanand, 18 Cal. 151. Then referring to the peculiar feature distinguishing the case before them from the decisions in Krishnayyan v. Muttuswami, 7 Mad. 407 Ranoji v. Kandoji, 8 Mad. 557 and Parvathi v. Thirumalai, 10 Mad.334 in that unlike in those decisions there existed in the case before the Court along with the illegitimate son the adopted son also of the pre-deceased son of X, the learned Judges proceed to observe thus:
'But that circumstance cannot make any difference in principle inasmuch as the special rule of Inheritance in favour of the illegitimate son of a Sudra, along with his legitimate brothers, provided that, in the absence of legitimate brothers, the illegitimate son may inherit the whole property in default of daughter's son of the deceased. This clearly shows that the Sudra father therein contemplated is one that was divided from his ancestors and collaterals (see West and Buhler, 3rd Edn. Vol. I page 72). Bat if he was not so divided the text cannot, apply, though be may have left legitimate sons along With the illegitimate son.'
After so observing the learned Judges wind up the discussion by commenting thus on Ramalinga Mupan v. Pavadai Goundan, 35 Mad. 519 : 'The only point decided in Ramalinga Mupan, v. Pavadai Goundan, 25 Mad. 519 is that, if the illegitimate son of a separated Sudra predeceases his father, leaving him surviving his (the illegitimate son's) legitimate son and then the father dies, the illegitimate son's legitimate son will 'represent' his lather and inherit the whole estate of his grandfather in preference to the divided brothers of the grandfathers; and this does not in any way militate against the above principle.'
It will be seen from the elaborate treatment which I have accorded to Gopalasami Chetti v. Arunachellam Chetti, 27 Mad. 32 that far from supporting the learned counsel for the appellant before its in his attempt to extend the operation of Ramalinga Mupan v. Pavadai Goundan, 26 Mad. 519 that decision indicates the true scope and effect of the earlier ruling beyond which it ought not to be extended. It is true that, as urged by Mr. Kuppuswami Aiyar, had the learned Judges meant to negative the doctrine of representation of a legitimate son by his illegitimate son altogether, they could have said so simpliciter and disposed of the case on that basis. But then, to say, as Mr. Kuppuswami Aiyar seeks to do, that the disability of the illegitimate son to represent his putative father in the undivided family of the latter and his coparceners which Gopalaswami Chetti v. Arunnachalam, 27 Mad. 32 declares, implies a competency on the part of such illegitimate son to represent his putative father in relation to the separate estate of the grandfather is, in my opinion, to read more into the decision in Gopalasami Chetti v. Arunachellam Chetti, 27 Mad. 33 then is wanted by its peculiar facts which bear no parallel to those of the present case or by the principles of law which it lays down. The case in Ramalinga Mupan v. Pavadai Goundan, 25 Mad. 619 has certainly given effect to the doctrine of representation in the circumstances of that case. That does not mean that that right should, as claimed by Mr. Kuppuswami Aiyar, be applied to the present case. The extension attempted does not stand established by the principles of the decisions cited by him. Nor does the observation of Spencer Offg. C. J. in the Maharaja of Kolhapur v. Sundaram Aiyar, 48 Mad. 1 of the report that 'the doctrine of representation applies to the illegitimate sons as well as to the legitimate sons' take counsel any farther than the decisions in Gopalasami Chetti v. Arunachellam Chetti. 27 Mad. 32 and Ramalinga Mupan v. Pavadai Goundan, 25 Mad. 519 cited by His Lordship in support of the observation.
21. The right of representation in the case of legitimate sons and grandsons of legitimate sons of the propositus is traceable to the unobstructed (apratibandha) character of the heritage, be such heritage the self-acquired and separate or ancestral property of the propositus, the only difference between the two cases being that in the latter there is an interdict on the power of alienation of the father, unlike in the former. Such right involves further that as ruled in Marudayi v. Doraisami, 80 Mad. 348 following the classical exposition of the doctrine by Muthuswami Aiyar J. in Muttuvadugunatha Tevar v. Periasami, 16 Mad. 11 a divided son as nearest sapinda does not exclude but shares with a divided grandson or great grandson of the propositus, the sharing in such a case being per stripes by way of an exception to the rule of Hindu law by which the inheritance devolves on the nearest sapinda. To introduce into the scheme of succession of the Mitakshara beyond the limits now recognised an extended right of representation bringing in illegitimate lineal male descendants of the propositua is to further countenance not merely a violation of the spirit of sanctity which the ancient Hindu law-givers and members of the Hindu society generally have always attached to marriage as a sacrament but also a breach of the principle of legitimate blood relationship with the consequent advantage of spiritual benefit to the propositus which underlies such scheme of succession. I do not regret I cannot countenance such a violation and such a breach even amongst the Sudras beyond the limits warranted by binding precedent. A levelling up rather than a levelling down of class distinctions is what the Hindu Society needs today; and I for one cannot, indeed, unless compelled, be a party to interpreting and applying judicial decisions in a manner calculated to widen rather than narrow down existing distinctions.
22. The property in the present case was the separate property of Kandaswami. His son Nataraja, the putative father of defendant 4 did not survive Kandaswami in order to succeed to it in whole or in part or transmit it to defendant 4. If defendant 4 is to succeed to Kandaswami, he can do so, only if by reason of his having survived Kandaswami, Kandaswami is to be regarded as not having died aputra within the meaning of Yajnavalkya's text cited in para. 2 of Section 1 of chap. II of the Mitakshara. The text which consists of two slokas is, as translated by Colebrooke, as follows:
'The wife, and the daughters also, both parents, brothers likewise, and their sons, gentiles, cognates, a pupil and a fellow student; on failure of the first among these, the next in order is indeed heir to the estate of one who departs for heaven leaving no male issue. This rule extends to all classes,'
Referring to the test this is what the Privy Council says in Buddha Singh v. Laltu Singh, 97 All. 601
'Mr. Mandlik's rendering of these two slokas of Yajnavalkya is more literal and is as follows ; 'The wife, daughters, both parents, brothers and likewise their sons, Gotrajas (gentiles) : Bandhus (cognates); a pupil and a fellow student. Of these, the nest following on failure of the preceding in order is heir to the estate of one who has departed for heaven, for leaving no putra. This rule extends to all (males whether belonging or not to the four) classes.'
'The compound word aputra occurring in Yajvalakya text has been rendered by Mr. Colebroke as 'leaving no male issue'; by Mr. Mandlik as 'leaving no putra.' He was evidently anxious to avoid any English synonym, as the word putra here, according to all the commentators, conveys a larger meaning than is usually implied by the term 'son,' The Viramitrodaya says clearly that the word 'sonless which is the literal equivalent of aputra, signifies 'in default of son, grandson and great grandson' that, in other words, it comprehends three degree in the direct line of descent.'
23. The question then is whether the existence of defendant 4 at the time of Kandaswami's death did not make of Kandaswami an aputra. It is significant to notice in this connection what the Mitakshara says in paras. 1 and 3 respectively preceding and succeeding para, 3 in which Yajnavalkya's text is set forth in para, 1 as found in Setlur'a Collection of Hindu law books on inheritance translated into English it is stated thus:
'That sons, principal End secondary, take the heritage, has been shown. The order of succession among all on failure of them is nest declared.'
In para 3 again, as found in the same work, it is stated thus :
'He, who has no son of any of the twelve descriptions above stated (Chapter I, Section 11) is one having 'NO male issue of a man, thus leaving no male progeny and departing for another world, the heir or successor, is that person, among such as are found here enumerated, who is next in order, on failure of the first mentioned respectively.'
The twelve descriptions of sons set forth in chap. I, Section 11 of the Mitakshara do not include the son of a Sudra by a female slave as such, whose rights are specially dealt with in Section 12 of chap I. It is only if a man has a son of any of those twelve descriptions that according to Vijnaneswara he can be said to be one having male issue, so as to exclude the operation of the rule of succession of Yajnavalkya set forth in para. 2 of Section 1 of Chap. II. That rule of succession which in terms has application to all Classes, i. e., to the three regenerate classes as well as the Sudra class cannot, reasonably speaking, be taken to contemplate and has not therefore been taken by Vijnaneswara, as appears from para. 3 of Section 1 of Chap. II, to contemplate an illegitimate son who as such is not recognised except in the fourth class i. e., of Sudras and that too under special texts contained in a separate section, i. e., Section 12 of chap. I of the Mitakshara.
24. In this view of Yajnavalkya's text as interpreted by Vijnaneswara, I am supported by a Bench decision of this Court reported in Thangavelu v. Court of Wards, I.L.R. (1947) Mad. 334 where at p. 342 of the report, delivering the judgment of the Court consisting of himself and Bell J, Patanjali Sastri J. observes thus:
'It is pertinent here to point out that the illegitimate son is not included among the twelve categories of sons enumerated by Yajnavalkya in verses 128-132 but is separately mentioned in a special text. In commenting on verses 135 and 136 which prescribe the order of succession to the estate of a 'sonless' person (aputrasya) the Mitakshara observes:
'A sonless person is he who has no son of any of the aforesaid twelve categories.' It will thus be seen that the illegitimate son is not among the principal and secondary sons to whom the heirs enumerated in Chap. II are postponed, but stands apart with his rights, such as they are, defined by a special text.'
I may observe further that although twelve kinds of sons are mentioned by the early Smriti writers and dealt with in detail in Chap. I of the Mitakshara there are really only two kinds now recognised the aurasa son and the dattaka son, in addition to the kritima son in Mithila and the son of the appointed daughter among the Nambudiries of Malabar. The rest have long since be. come obsolete, and, as pointed out in the 10th Edn. in Mayne's Treatise on Hindu law and Usage by S. Srinivasa Aiyangar at p. 126,
'In ancient Hindu law, sonship was founded upon marriage or, where a substitute for the son was required, on adoption. A discussion of the marriage law itself will show that from the Vedic times marriage has throughout been a sacrament and a permanent union.'
An illegitimate son is not, according to Hindu law, a son at all except in the case of Sudras, and his rights are not by any means those of an aurasa son or a dattaka son but such as are defined and limited by special texts.
25. This point of view as to the basis of the rights of an illegitimate son is sought to be assailed by Mr. Kuppuswami Aiyar by relying on a passage in Bhagwant Rao v. Punjaram, I.L.R.(1938) Nag. 255 of the report. Before quoting the observation and dealing with it, it is well that I state that that case is about and what the decision therein is. The question in that case arose with reference to the right of succession of an illegitimate son of a certain Sadasheo and the legitimate sons of other illegitimate sons of Sadasheo in respect of property which at an arrangement between the widow of Sadasheo and his adopted son happened to have been allotted to the widow. There had been, before such allotment, a partition of the estate of Sadasheo between his illegitimate sons and his adopted son. Out of what the adopted son got at the partition, he gave a portion to his adoptive mother by means of the arrangement referred to. The adoptive mother having died, the surviving illegitimate son of Sadasheo and the legitimate sons of the deceased illegitimate sons of Sadasheo claimed along with the sons and a grandson of the adopted son a right of reverter in respect of the property allotted to tbe widow. The Court (Sir Gilbert Stone C. J. and Bose J.) held that the illegitimacy of one of the plaintiffs and of the fathers of the other plaintiffs did not exclude them from succession to the property in suit. Whether this decision is right or wrong does not fall for decision here. In so far as the decision dissents from a ruling of this Court in Karuppai Ammal v. Ramaswami, 55 Mad. 856 it cannot be good authority for this Court. It has in fact been thus referred to and criticised by late Mr. Srinivasa Aiyangar in his edition of Mayne's. Treatise of Hindu law and Usage at p. 651:
'Where a widow who has taken a share of the inheritance dies, her share descends to her daughter or daughter's son as the case may be and an illegitimate son is not entitled to any part of it. This is distinguished, if not doubted by the Nagpur High Court in Bhagwant Rao v. Punja Rao, I.L.R.(1938) Nag. 255 where on a partition between the legitimate and illegitimate sons, the widow was allotted a share and on her death, the illegitimate son was held entitled to a share in that property. The decision of the Madras High Court in Karuppai Ammal v. Ramaswami, 55 Mad. 856 appears to be right upon the express texts of the Mitakshara read with the Dattaka Chandrika (V. 30-31). The illegitimate son, though he inherits on the death of his putative father, along with or in default of male issue, widow or daughter, cannot come in as a reversionary heir on the death of the widow or daughter, as he is undoubtedly neither a sagotra nor a bhinnagotra sapinda of the last male holder within the text of Mann.'
26. I am inclined to think that this criticism is well-founded. I may also point out that in the Nagpur decision the learned Judges disapproved of a decision of this Court in Meenakshi v. Muniandi Panikkan, 38 Mad. 1144. There the plaintiff, a daughter of a certain woman by her paramour claimed to succeed to her stridhanam estate as against her legitimate son. The Court rejected the plaintiff's claim holding that except in the case of Sudras among whom illegitimate sons have a right of succession, illegitimate children are not heirs under the Hindu law established under the Mitakshara system to succeed to the property of any kind left by either of their parents. Here again, we in this Court are bound by the decision in Meenakshi v. Muniandi Panikkan, 38 Mad. 1144 although the same has been criticised in the Nagpur ruling.
27. The validity of the actual decision in the Nagpur cage, I.L.R.(1938) Nag. 255 is not however what matters for the moment. It is the observation therein which counsel relies upon that calls for consideration. It is as follows :
'The defendants argue that illegitimate sons obtain their rights because of a special test and that but for it they would have no right at all. Consequently, once they have been given a share on partition they have obtained all they are entitled to under the special text and so are not entitled to inherit again under the ordinary Hindu law. This view was applied by the Madras High Court in Karuppai Ammal v. Ramaswami, 55 Mad. 856 where the learned Judges held that the doctrine of reverter did not apply in the case of an illegitimate son.
As against this is the view that they are sons and have always been looked upon as sons, and but for the stricter notions of marriage which gradually crept into the Hindu law would have shared in the patrimony like any other son. The text relating to the illegitimate son is, therefore, a text of curtailment, cutting down what was once his undoubted right and consequently must be strictly construed and cannot be applied beyond its express provisions.'
28. The Nagpur Judges are not in my opinion, justified in this view of the text in the Mitakshara which deals with the rights of an illegitimate son of a Sudra. Whatever tbe original position of the illegitimate son in the Hindu society of ancient days, the rights which he can at the present day assert in areas governed by the Mitakshara school are only those conferred by the special text of Yajnavalkya understood in the light of Vijnaneswara's commentary as accepted fey Courts. Such rights cannot be enlarged by reference to his original position in the Hindu society according to notions of marriage that may have been possibly prevailed. Apart from the case in Thangavelu v. Court of Wards, I.L.R. (1947) Mad. 334 to which I have already referred there are other decisions of this Court binding upon us which have dealt with the rights of an illegitimate son as strictly depending upon and limited by special texts. In Meenakshi Ammal v. Ramaswami Josier, (1937) 1 Mad. L. Jour 28 decided by Varadachariar J. suits were brought by the illegitimate daughters of a daughter for possession of their grand mother's properties which were resisted by the defendants who claimed through M's sister's son's son. The question arose whether the plaintiffs could succeed when there were legitimate though more distant heirs in existence, The question was answered in the negative and it was held that the defendants would exclude the claims of the daughter's illegitimate daughters. The learned Judge observes in his judgment as follows:
'The parties are governed by the ordinary Hindu Jaw and not by any rule of custom as in the case of dancing girls. The general principle of the Hindu Jaw is undoubtedly to limit heirship to legitimate issue but in the case of illegitimate sans amongst Sudras a special exception has been made by the texts. One should ordinarily have thought (on the analogy of the principle ex pressio unius) that this itself is a clear indication against recognising similar exceptions by way of analogy. The decision in Subramania Aiyar v. Ratnavelu Chetti, 41 Mad. 44 proceeds on the footing that as the special test relating to the illegitimate son must proceed on the footing of a recognition of sapindaship between the illegitimate son and his putative father, the latter may welt be held to be a sapinda of the illegitimate son and as such entitled to inherit his property. There is no scope for the extension of this reasoning by analogy. Similarly the recognition of a right of Inheritance as between the mother and the illegitimate daughter (Dundapp v. Bhimawa, 45 Bom 557) will not warrant an extension of sapindaship to other relations because in that very case the learned Judges were not prepared to postulate sapindaship between the putative father and the illegitimate daughter. The opening sentence in page 763 of Ghose's Hindu law (3rd Edn.) restricts the illegitimate child's inheritance to the mothers property.'
This decision was affirmed on appeal under the Letters Patent by a Bench of this Court consisting of Leach C. J. and Krishnaswami Aiyangar J. The decision on appeal is reported in Meenakshi Ammal v. Murugappa Moopanar, 1940 Mad. L Jour 288. Leach C. J. observes at page 290 of the Report :
'Before the ordinary rules of succession can be departed from in favour of illegitimate offspring there mutt be express authority to be found in the ancient texts or some statutory provision.'
Krishnaswami Aiyangar J. at p. 292 remarks :
'I can find no warrant for holding that as a general rule the system of succession under the Mitakshara law is based on a relationship other than a relationship through valid marriage and legitimate descent. A qualified right in favour of the illegitimate sons amongst Sudras, by choice of the father as it has been described, has been recognised bat this is in the nature of an exception and must accordingly be kept within the limits of the exception itself. It is true that an illegitimate daughter has been held to be entitled to inherit to the stridhanam properly of her mother. This right will however be found on examination to be based not upon any ancient texts or rule of law but upon custom and analogy,'
These decisions afford us a mode of approach to the decision of the case before us much sounder, in my opinion and at any rate, more binding on us than the perspective afforded by the observations in the Nagpur decision.
29. I need only add in conclusion that possibly the point of view of the Nagpur High Court may be more apposite to the case of an adopted son than to the case of an illegitimate son. There are special texts in the case of an adopted son which limit his right; but barring such specified in. stances of curtailed right, in all other respects, an adapted son occupies the same position and has the same rights and privileges in the family of the adopter as the legitimate son. That is because the theory of adoption depends upon the principle of complete severance of the child adopted from the family in which he is born but in respect of the paternal and the maternal line and his complete substitution into the adopter's family as if he were born in it. This view of the adopted son's rights in no way offends the sacramental notions of Hindu marriage and introduces no breach into the foundations of the system of succession under the Mitakshara law which, as observed by Krishnaswami Aiyangar J in Meenakshi Ammal v. Murugappa Muppanar, 1940 Mad. L Jour 288 is based on relationship through valid marriage and legitimate descent. In the case of the adopted son, there must he special texts to curtail the rights of the natural born son which inhere in him as a result of the adoption. In the case of an illegitimate son on the other hand, there must he special texts to confer upon him any right that may be claimed by him as a son, or some principle recognised by the Hindu law by reference to which the claim can be sustained. In the case in Vellaiyappa Chetti v. Natarajan, 55 Mad 1 where the status of a son has been recognised by the Privy Council in favour of an illegitimate son of a Sudra, the question arose with reference to a right of maintenance against the ancestral property of the father in the hands of his collaterals as members of an undivided family, which was claimed by the illegitimate son. The Privy Council in decreeing the maintenance claim observes at p. 7 of the report thus :
''The father having died undivided in the present case, and the text being silent as to maintenance, the case stands outside the text. But this, in their Lordships' opinion, is not sufficient to cause the rejection of the plaintiffs' claim if it can be sustained on some principle recognised by the Hindu law. The High Court have held that there is such a principle, that principle being that where under the Hindu taw 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 that the present is such a case.'
The Privy Council here accept the principle on which the High Court acted, and it is clear to my mind that, had they not found that principle available they could not have decreed the maintenance claim. It follows that there must therefore be either special texts or principles of the kind which the Privy Council applied in Vellaiyappa Chetti v. Natarajana, 55 Mad. 1 in order to support any claim of an illegitimate son.
30. There being no such special texts or principles to warrant the claim of the appellant before us in the present case, the appeal must, in my opinion, fail. The only principle relied on is jus representations, which, as shown in the foregoing, is unavailable in the present case.