Bhashyam Ayyangar, J.
1. The question and the only question which arises in this second appeal is whether, under the Mitakshara law, a divided brother of a Sudra A, who died without leaving legitimate male issue, is entitled to succeed to A's estate in preference to A'a grandson, the legitimate son of A's predeceased illegitimate son. Neither side relies upon any usage or custom having the force of law and the question has to be decided as an abstract question of Hindu Law. There is no direct authority either in the Hindu Law texts or in judicial decisions, applicable to the case. The question, therefore, has to be answered with reference to established principles and the analogies which have heretofore prevailed in like cases.
2. The author of the Mitakshara defines the rights of an illegitimate son in chapter I, section XII. He lays down that a son be gotton by a Sudra on a female slave can be given a share by the father's choice; but that after the death of the father leaving legitimate male issue, they must allow their illegitimate brother half a share. But if the father died without leaving legitimate male issue but leaving a daughter or daughter's son, the illegitimate son takes half a share along with the daughter or daughter's son as the case may be. But in default of a daughter or daughter's son the illegitimate son takes the whole estate.
3. The rights of an illegitimate son in the paternal estate when the father has died a separated householder have now been clearly defined by judicial decisions. If the father left legitimate sons, the illegitimate son is a co-sharer with them, the extent of his share being one-half of what it would be if he were a legitimate son, and he can enforce a partition of his share Thangam Pillai v. Suppa Pillai I.L.R. 12 Mad. 401 and Karuppannan Chetti v. Bulokam Chetti I.L.R. 23 Mad. 16 though he cannot, like a legitimate son, claim a share as against his father, during the father's lifetime, even in respect of ancestral property. If the father left a widow, daughter or daughter's son, but no legitimate male issue, the illegitimate son succeeds as a co-heir with the widow, daughter or daughter's son as the case may be, and as sole heir, in default of any other heir down to a daughter's son. It is also tolerably well established that an illegitimate son, though he may succeed as heir to his paternal and maternal estate, has no claim to inherit to collaterals Shome Shankar Rajendra Varere v. Rajesar Swami Jangam I.L.R. 21 All. 99 and Krishnayyan v. Muttusami I.L.R. 7 Mad. 407.
4. The argument chiefly urged on behalf of the appellant is that inasmuch as the illegitimate son of his divided brother predeceased the father and had no right to enforce partition as against the father, his son, the respondent, cannot claim under his father and that therefore he, the appellant, is entitled to succeed as his brother's heir and that the respondent, as the grandson by an illegitimate son, cannot claim directly as the heir of his grandfather. In support of this contention reliance is chiefly placed upon the decisions of this Court that an illegitimate son has no claim by survivorship against the undivided co-parceners of his father and therefore cannot sue them for a partition after the death of his father Krishnayyan v. Muttusami I.L.R. 7 Mad. 407 Banoji v. Kandoji I.L.R. 8 Mad. 557 Parvathi v. Thirumalai I.L.R. 10 Mad. 334 The effect of these decisions is that it is only when the father dies a separated householder that an illegitimate son is entitled to inherit to his separate estate, but that when the father dies an 'avibhakta' (undivided from his brothers or other collaterals) he is entitled only to maintenance. The principle of these decisions is explained as follows in Thangam Pillai v. Suppa Pillai I.L.R. 12 Mad. 401 'But these decisions proceeded on the view that he had no claim by survivorship against his father's co-parceners by jus representation is and that he was neither a co-heir with his father, nor a sapinda in relation to his father's co-pareeners.' I may here refer to a subsequent R decision of the Privy Council Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Man Singh I.L.R. 18 Calc. 151 wherein it is distinctly laid down, following the decision of the Bombay High Court in Sadu v. Baiza I.L.R. 4 Bom. 37 and affirming the decision of the Calcutta High Court in Jogando Bhuputi v. Nittyanund Man Singh I.L.R. 11 Calc. 702 that though an illegitimate son acquires no right by birth, in the same way as a legitimate son, and therefore cannot claim a share as against his father, yet that on the death of the father the legitimate and illegitimate sons hold the property as members of a joint Hindu family, with right of survivorship and that on the death of either without male issue the survivor takes the entire estate. If the legitimate son dies without male issue the illegitimate son becomes entitled to the whole estate. If the illegitimate son predecease the legitimate son, leaving male issue, and the legitimate son afterwards dies without leaving male issue, the whole property will devolve by survivorship on the issue of the illegitimate son. This must be the necessary result if, as affirmed by the Privy Council, the legitimate and illegitimate sons on the death of the father, hold the family property as members of a joint family.
5. This decision in no way affects the course of decisions in this Presidency, as to the rights of illegitimate sons in the separate estate of their father and inasmuch as the appellant's brother died a separated householder and the appellant claims only as his divided brother, it is unnecessary to consider whether the decisions of this Court Krishnayyan v. Muttusami I.L.R. 7 Mad. 407 Ranoji v. Kandoji I.L.R. 8 Mad. 557 Parvathi v. Thirumalai I.L.R. 10 Mad. 334 above referred to are in any way affected and if so to what extent, by this decision of the Privy Council.
6. Assuming, as explained in Thangam Pillai v. Suppa Pillai I.L.R. 12 Mad. 401 that, by reason of his illegitimacy, an illegitimate son cannot claim his father's share as against his father's co-parcener by jus representation is, that principle will not be applicable to a legitimate son representing his father though the father was the illegitimate son of the grandfather. If a Sudra dies, leaving a legitimate son and a grandson or great grandson by a predeceased illegitimate son, can it be contended that the legitimate son is not bound to allow half a share to the son or grandson of his deceased illegitimate brother just as he would be if the illegitimate son did not predecease the father? If the grandson, as representing his father though not claiming under him, would be entitled as against his uncle to claim his father's share it can hardly be maintained, though his father predeceased the grandfather, that he cannot claim the grandfather's estate as against the grandfather's divided brother. 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 if he had not so died. This is the view maintained by Messrs. West and Bubler in their treatise on Hindu Law (3rd edition, pages 72, 82, 83, 390) and also by Mr. Jolly in his work on Hindu Law (pages 185, 186), and I fully concur in that opinion. The expression 'legitimate son' (i e., son of a wedded wife) in the text of Mitaksbara 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 famale 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 legtimate descendants. It may be doubtful whether the illegitimate issue of the illegitimate son can, on the principle of jus representation is, represent the illegitimate son, if before the inheritance opened, the latter predeceased his father. But it is unnecessary to consider that question as the respondent is the legitimate son of his father.
7. In my opinion, therefore, the second appeal fails and should be dismissed with costs.
8. I concur.