1. This is an appeal by the sixth defendant against the preliminary decree in the suit for partition of the family properties instituted by the plaintiff and tried on the original side by Rajamannar, J.
2. Tirumalai Chetti, the first and second defendants and Chinnadorai were the sons of one Ramiah Chetti. Chinnadorai died issueless in 1931. Tirumalai died in 1944. Both were undivided in status from their brothers at the time of their death. The plaintiff is the grandson of Tirumalai and the son of Raghava Chetti was pre-deceased Tirumalai. The plaintiff claimed that he along with the first and second defendants and their sons, the third and fourth defendants, constituted a coparcenary. The fifth defendant is the widow of Tirumalai. The sixth defendant is the son of Janaki, who he claimed, was the lawfully wedded second wife of Tirumalai; the sixth defendant was their legitimate son. The alternative claim of the sixth defendant in the suit was on the basis, that he was a dasiputra and that Janaki was a continuously kept concubine of Tirumalai. The parties were all sudras.
3. The learned trial Judge found that Janaki was not the lawfully wedded wife of Tirumalai, but that she was only the concubine of Tirumalai, and that the sixth defendant was their son. The correctness of this finding was challenged in the memorandum of appeal, but that finding was amply supported by the evidence on record. D.W. 2, a cousin of Tirumalai, called by the sixth defendant, stated quite unequivocally that Janaki was not married to Tiruraalai but that she was only his concubine. Even apart from the statements of Tirumalai himself embodied in Exs. P. 1 and P. 2 the testimony of D.W. 2 should suffice to negative the plea of the sixth defendant that his mother was the lawfully wedded wife of Tirumalai and that he was Tirumalai's legitimate son.
4. The alternative basis for the claim put forward in the suit by the sixth defendant for a share in the properties of the family, of which the plaintiff and defendants 1, 2, 3 and 4 were co-parceners, was that the sixth defendant was the illegitimate son of Tirumalai, born of Janaki, the permanently kept woman, of Tirumalai. In paragraph 3 of the plaint the plaintiff averred:
As the said deceased Tirumalai Chetti left no separate property of his, and all thee properties are joint family properties and as he had also left his undivided brothers, the sixth defendant even if he is proved to be validly an illegitimate son of the deceased-is not entitled to enforce a partition, but at best entitled to maintenance only.
5. The sixth defendant's answer to this was in paragraph 5 of his written statement. He claimed that, even if he was only an illegitimate son of Tirumalai, he would still be entitled 'to a share in the properties of the said Tirumalai Chetti' and 'not merely entitled to maintenance therefrom as alleged in the plaint.' Issue 4 in the suit ran :
Is the sixth defendant a legitimate son of the late Tirumalai Chetti? If not, is he the son through a permanently and exclusively kept concubine? If so, is he entitled to any share or other right in the joint family?
6. The only witnesses examined before the preliminary decree was issued, were D.Ws. 1 and 2. The trial at this stage appears to have come to an end rather abruptly when D.W. 2, who was in the box, gave up the case pleaded by the sixth defendant, that the sixth defendant's mother Janaki was the lawfully wedded, wife of Tirumalai. The only record, of what happened in the trial Court that is available to us is what the learned trial Judge himself has embodied in his judgment. The plaintiff's counsel in the trial Court referred, to Pachai Pillai v. Gopala Pillai (1921) 42 M.L.J. 276. The learned trial Judge observed.
It was there held that before the illegitimate sons of a Sudra can succeed to his estate, they must shew that connection between their parents was not adulterous. This may be so; but in this case, admittedly, the sixth defendant is not entitled, to any right, of inheritance; all that he can claim is a right to maintenance and so far as his right to maintenance is concerned, it is well-established law that even an offspring by adulterous find incestuous intercourse is entitled to maintenance from the father's estate as well as from the estate of the coparcenary of which the father was a member.
7. The learned trial Judge apparently decided that it was unnecessary to go into the question, whether it had been proved that the union between Janaki and Tirumalai was neither adulterous or incestuous.
8. In this appeal the sixth defendant reiterated his claim, that even as the illegitimate son of Tirumalai and Janaki, he was entitled to a share in the property of the family of which his father had been a member.
9. The questions that remain for determination are (1) Is he sixth defendant the illegitimate son of Tirumalai by his permanently kept woman? and (2) Is the sixth defendant entitled to a share in the properties involved in this suit, or is he only entitled to maintenance therefrom?
10. No serious attempt was made by the respondent in the appeal to challenge the correctness of the finding of the learned trial Judge, amply supported by the evidence on record, that the sixth defendant was the illegitimate son of Tirumalai, and that his mother, Janaki, was the permanently kept concubine of Tirumalai.
11. Point No. 2:-Mr. Rajagopalan, learned Counsel for the plaintiff, had the advantage of representing the plaintiff, both in the trial Court and before us in appeal. He contended that, as the sixth defendant abandoned his claim to a share in the properties of the family after the examination of D.W. 2 in the trial Court and limited his (sixth defendant's) claim at that stage to maintenance from the properties of the family, the sixth defendant was not entitled at this stage in appeal to revive his claim to a share in the family properties. The appellant's advocate urged that no stage in the trial Court-did, the sixth defendant abandon his claim to a share in the properties of the family. It should be quite obvious from the wording of issue 4 that at least upto that stage there was no abandonment of a claim to a share in the properties. Even apart from the fact, that no affidavits were filed by either side to indicate what precisely happened in the trial Court we can only look to the record in this case to find out what did happen, and as we have pointed out, the only record that can help us to determine that question is the statement of the learned trial Judge himself in the judgment. Unfortunately that statement does not by itself establish that there was a specific abandonment by the sixth defendant of his claim to a share in the properties of the family. It is on that basis we have to proceed in investigating now on the evidence on record whether the sixth defendant's claim to a share is well-founded.
12. No doubt it is well settled that, before an illegitimate son of a Sudra can establish a claim to a share in the properties of his putative father, it must be shown that the son was born of a union neither adulterous nor incestuous. See Pachai Pillai v. Gopala Pillai (1921) 42 M.L.J. 276 in which the learned Judges followed a decision of the Pull Bench in Soundararajan v. Arunachalam Chetti (1915) 29 M.L.J. 793 : I.L.R. 39 Mad. 136; but, were the claim of the illegitimate son limited only to maintenance, there should be no need to prove that the union between his mother and his putative father was neither adulterous nor incestuous.
13. The learned Counsel for the plaintiff-respondent contended that the burden lay upon the sixth defendant, who claimed a share in the properties, to establish that the union between Janaki and Tirumalai was neither adulterous nor incestuous. In Packed Pillai v. Gopal Pillai (1921) 42 M.L.J. 276 there was no occasion for the learned Judges to go into the question of the burden of proof; nor was there any oceasion to go into that question in Soundararajan v. Arunachalam Chetti (1915) 29 M.L.J. 793 : I.L.R. 39 Mad. 136. The question of burden of proof came up specifically for decision in Palani Animal v. Kuppusami Goundaw (1921) 13 L.W. 511 Sadasiva Aiyar, J. after pointing out that adultery was an offence punishable under the Penal Code in India, observed that, as the law always presumed innocence both in civil and. criminal cases, the presumption was that the connection was not adulterous. It therefore rested on the person who pleaded that the connection was adulterous to prove it. There was no such specific plea in the plaint; certainly there was no proof. No doubt, incest as such is not on a par with adultery under the Criminal law of India; there can be no question of presumption. In Palani Ammal v. Kuppusami Goundan (1921) 13 L.W. 511 Sadasiva Aiyar, J., pointed that no question of incost could arise there as the parties belonged to different sub-sects. In the present suit Tirumalai Chetti was described as a Telugu Chetty. In the particulars furnished by the sixth defendant on a call from the plaintiff Janaki was shown as a widow born of Yadava parents. The sixth defendant's claim was not specifically contradicted by the plaintiff or by any of the other parties to the suit at any stage in the trial Court, nor was any evidence offered to prove that that claim of the sixth defendant was not true. On the material on record we have no hesitation in coming to the conclusion, that no question of incest could arise in this case. To sum up there was no proof that the union between Tirumalai and Janaki was adulterous; there was no proof that it was incestuous.
14. In deciding whether the sixth defendant is entitled to a share in the properties of the family, the real question for determination is, whether, after the death of Tirumalai, a Sudra father, the sixth defendant, his illegitimate son born of a permanently kept concubine, the union not having been adulterous or incestuous is entitled to a share in the properties of the family of which Tirumalai was an undivided (avibhaJda) co-parcener when he died. That question we have no hesitation in answering in the negative.
15. The question is really concluded by the authority. In Rathnasabapathi Odayar v. Gopala Odayar (1928) 56 M.L.J. 673 Devadoss J., observed at page 708
After a, careful and anxious consideration of the original texts and the decided cases I hold that the illegitimate son of a Sudra does not acquire by birth an interest, in the property of his putative father's father and therefore cannot get the father's share if the putative father dies undivided from his brother or brother's sons or other collaterals.
16. It should, however, be remembered that in that case the claim was by an illegitimate son, who figured as the plaintiff, for partition of the properties of the family of which his putative father had been an undivided member. It should also be noted that the putative father of the claimant in that suit had no legitimate son.
17. That the presence of a legitimate son should not make any real difference in principle was what was held in the earlier case in. Gopalaswami Chetti v. Arunachalam Chetti I.L.R. (1903) Mad. 32. In that case the illegitimate son of a deceased Chetti. sued the adopted son and the brother of his late father for a share in his father's estate, and in the alternative for maintenance. The Court held that the claim for a share must fail as it was not shown that the deceased had left any separate or self-acquired property. It was also held that inasmuch as the plaintiff's father had predeceased his father and brother, the plaintiff could claim no share as against his grandfather and uncle; and, as he was illegitimate, he could not represent his father in the undivided family. The learned Judges observed at page 35 :
It is true that in none of the reported cases on the point did there exist, as in the present ease, along with the illegitimate son, a legitimate son, by birth or adoption--of the deceased 'Avibhakta' or undivided father. 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, provides 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.
18. It is no doubt true that both in Gopalaswami Chetti v. Arunachalam Chetti I.L.R. (1903) Mad. 32 and in Rathnasabapathi Odayar v. Gopala Odayar (1928) 56 M.L.J. 673 as well as in Nagaratnammal v. Chinnusah : (1927)53MLJ861 the claim for partition was put forward by an illegitimate son who figured as the plaintiff in the suit. This is a suit by one of the co-parceners of the family for partition. The learned advocate for plaintiff-respondent pointed out that every claimant in such a suit for partition was in the position of a plaintiff. Whether a claimant figured as plaintiff or as defendant in a suit for partition could make no real difference. The real question for determination in this appeal is whether the sixth defendant is entitled to a share in the properties of the family of which his putative father, Tirumalai, was an undivided member.
19. The learned advocate for the appellant referred us to Jogendra Bhupati Hurrochandra Mahapatra v. Nityanand Man Singh (1990) L.R. 17 IndAp 128 : I.L.R. 18 Cal. 151. Their Lordships of the Privy Council who decided that case approved of the decision in Sadu v. Baiza I.L.R. (1878) Bom. 37. Their Lordships held that under the Mitakshara, among Sudras, where a father left a son by a wedded wife and an illegitimate son, the ordinary rule of survivorship incidental to a family coparcenary applied; and the illegitimate son having survived the legitimate, was entitled by survivorship to succeed to the family estate on the death of his brother without male issue. That, however, is not sufficient to hold that an illegitimate son in the position of the sixth defendant is a co-parcener with his putative father and with the latter's collaterals, that is, a coparcener in every sense of the term. No question of collaterals arose either in Jogendra Bhupati Hurrochandra Mahapatra v. Nityanand Man Singh (1990) L.R. 17 IndAp 128 : I.L.R. 18 Cal. 151 or in Sadu v. Baiza I.L.R. (1878) Bom. 37. In. Rathnasabapathi Odayar v. Gopala Odayar (1928) 56 M.L.J. 673, Devadoss, J., pointed out that in Karuppa Goundan v. Kumar asami Goundan I.L.R. (1901) Mad. 429 the learned Judges were not prepared to extend the principle laid down in Jogendra's case (1990) L.R. 17 IndAp 128 : I.L.R. 18 Cal. 151 to the case of collaterals in the face of the rulings of this Court in Krishnayya v. Muthuswami (1883) I.L.R. 7 Mad. 407 and Ranoji v. Kandoji I.L.R. (1885) Mad. 557. Again at page 698, the learned Judge pointed out that in Viswanathaswami Naicker v. Kamu Animal (1912) 24 M.L.J. 271 Miller and Rahim, JJ., were not prepared to hold that the illegitimate son was a coparcener with his father's collaterals. At page 695, Devadoss, J., summed up the position.
The illegitimate son of a Sudra is not a coparcener with his father though he may be a coparcener with his father's legitimate son. In order to get a share of the grandfather's property along with the father's brother or brother's sons, he must have acquired by birth an interest in the grandfather's property.
20. With these observations we respectfully agree.
21. The position was made even? more clear in Vellayyappa Chetti v. Nata-rajan : (1931)61MLJ52 . At page 15, their Lordships of the Privy Council observed,
On a consideration of the texts and the cases on the subject their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son; that where the father has left no separate property and no legitimate son, but was joint with his collaterals, as in the present case, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but he is entitled as a member of the family to maintenance out of that property; that his position in this respect is analogous to that of widows and disqualified heirs to whom the law allows maintenance because of their exclusion from inheritance and from a share on partition.
22. As we have already pointed out, the presence of a legitimate son of the putative father aurasa or adopted, should make no real difference in principle.
23. In a clear exposition of the law on the subject in Mayne's Hindu Law and Usage, the learned author observed at page 649.
An illegitimate son is not a coparcener with his father or his coparceners or even with his own legitimate brothers in respect of the joint family estate. It is settled that the text of Yagnavalkya declaring the rights of an illegitimate son refers only to estate of a separate householder. But when a legitimate son and an illegitimate son succeed to their father's separate estate, they take as coparceners with mutual rights of survivorship.
24. We hold that though the sixth defendant is the dasiputra of Tirumalai, born of a union which was neither adulterous nor incestuous, the sixth defendant is not entitled to a share in the properties of the family of which Tirumalai was an undivided member at the time of his death. It was quite possibly the realization of this position in law that impelled the sixth defendant's-counsel in the trial Court to press the claim for maintenance, though, as we have already observed, there was no clear and unequivocal indication that the claim for a share in the properties of the family was specifically abandoned.
25. The learned advocate for the appellant urged that, whether or not the sixth defendant could claim a share in the properties which belonged to the coparcenary, which on the eve of the suit for partition consisted only of the plaintiff and defendants 1 to 4, the sixth defendant could claim a share in whatever share was allotted to the plaintiff, who could and did represent Tirumalai's branch of the family. As we have already pointed out, the specific claim that the sixth defendant put forward in paragraph 5 of his written statement was to a share in the properties of his putative father Tirumalai Chetti. The learned trial Judge was not called upon to investigate the question, whether, if the plaintiff succeeded in getting his share of the properties in the coparcenary of which the plaintiff was a member the sixth defendant as the illegitimate son of Tirumalai Chetti could claim a share in the properties allotted to the plaintiff in this suit. Virtually, what the sixth defendant claimed in this suit was a share in the properties of the coparcenary. His claim was not to what was Tirumalai's property but for a share in what could have been Tirumalai Chetti's property, had Tirumalai Chetti been divided in status from his brothers.
26. To sum up, we have no hesitation in negativing the claim of the sixth defendant to a share as such in the properties of the family of which Tirumalai Chetti was an undivided member.
27. As the illegitimate son of Tirumalai Chetti the sixth defendant was rightly allowed maintenance by the learned trial Judge. The quantum of maintenance was left over for determination at the stage of the final decree and we are not concerned with that now.
28. The appeal fails and and is dismissed with costs--one set of advocate's fees to be apportioned between the contesting respondents.