Ramachandra Iyer, J.
1. After taking over the Sivagiri Estate (which was an impartible estate) under the provisions of Act XXVI of 1948, the Government deposited a sum of Rs. 7,899 as an interim payment for fasli 1365. The deposit was made on 16th March, 1957. At the time when estate was taken over, that is, on 3rd January, 1951, the principal landholder, namely, the Zamindar was 'one Varaguna Pandian. The right to the compensation amount will be governed by Section 45 of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Act XXVI of 1948). Under that section the compensation amount is first to be paid to the creditors of the impartible estate; of the balance, not exceeding 1 /5th is to be allotted to the maintenance holders, the remainder being divided amongst the sharers, as if they owned such amount as members of a joint Hindu family. The sharers would be (as defined in Section 45(3) of the Act) the Zamindar, his legitimate sons, grandsons and great grandsons in the male line. On the date of the notification Varaguna Pandian had three sons, two by his first wife and one by his second wife. Subsequent to that date, another son was born to him through his 2nd wife. Besides these, he had two illegitimate sons born through a continuously kept concubine, Chellappappal. The illegitimate sons were in existence on the date of the notification. The following genealogy can be usefully referred to, to elucidate the matter in controversy.
2. The compensation amount will, therefore, have to be divided between Varaguna Pandian, the principal landholder, his three sons who alone were in existence on the date of notification (leaving out of account for the present purpose the two sons of the first son who had also been born by then and who would be also sharers) and the persons who had claims for maintenance from the impartible estate. The latter category of persons, namely, the maintenance-holders, would be entitled to a fifth share in the amount. Out of the balance, Varaguna Pandian and his three sons would each take 1/4th with the result that the former would be entitled to have 1/5th share in the compensation amount. Varaguna Pandian died on 16th August, 1955. His interest would devolve on or vest in his coparceners or heirs, as the case may be (that is, whether his interest is considered as coparcenery or separate property). The two sons of Varaguna Pandian born of his first wife had assigned their interest in the compensation amount to V.S. Subramania Iyer and V. Muthuswami Iyer.
3. In O.P. No. 382 of 1957, the 2nd widow and her son, Kutti Raja who was born after the date of the notification, applied to the Tribunal for payment of Varaguna Pandian's share on the ground that they would be exclusively entitled thereto, along with the other widow, they being entitled to 3/4th and the senior widow 1/4th of the share of the deceased. A similar application was filed by the other widow, namely, the first wife of the deceased Zamindar, claiming 1/4th of the 1/5th share that belonged to Varaguna Pandian. To none of these applications, were the illegitimate sons of Varaguna Pandian made parties. The applications were, however, contested by the assignees of the first two sons. The Tribunal held that the 1 /5th share of Varaguna Pandian would be taken by the two widows, each of them being entitled, to 1/4th share, the remaining half of a share being taken by Kutti Raja, the son born after the date of the notification. S.T.A. Nos. 20 and 21 of 1957 arise out of the order in the said applications, filed by the assignees of the first two sons of the deceased Zamindar.
4. O.P. No. 824 of 1957 was an application filed by the two illegitimate sons, namely, Chella Durai and Sami Durai, to the Tribunal claiming that they would be entitled to 1/3rd share of Varaguna Pandian in the interim compensation amount.
5. Their claim was opposed by the second wife of the late Zamindar and her two sons. The Tribunal held that the three sons of the Zamindar, who were alive on. the date of the notification, should be considered as divided sons by reason of Section 45(6) of the Act, and that they would not be entitled to any rights in preference to the undivided son, Kutti Raja, and the two widows. The Tribunal further held that the two illegitimate sons would be entitled to the share to which they would be entitled under the Hindu Law : What they claimed was 1/3 of Varaguna Pandian's 1/5th share. 'The 2nd wife of the Zamindar and her two sons (who will be referred to as the appellants) have filed S.T.A. No. 32 of 1959 against the order of the Tribunal in O.P. No. 824 of 1957, claiming that the illegitimate sons of Varaguna Pandian would have no share in the compensation amount, including the interim payments.
6. It is not disputed that 1/5th share of the compensation amount would go to the maintenance-holder, 3/5th to the three sons of the Zamindar who were in existence on the date of the notification, and that the other 5th which represented the share of Varaguna Pandian would be taken by those on whom his interest in the compensation amount would devolve under the law, there having been no testamentary disposition by him. The question in the appeal is who are the persons that would be entitled to take 1/5th share of Varaguna Pandian and in what proportion.
7. The Tribunal held that the three sons who were in existence on the date of the notification should be held to be divided sons as and from the date thereof with their father by reason of Section 45(6) of the Act, and that the 4th son, Kutti Raja, being undivided would take the property by survivorship, subject to the right of the two widows under the Hindu Women's Right to Property Act, 1937, and that of the two illegitimate sons.
8. The contention on behalf of the appellants is that the illegitimate sons would have no such right. On behalf of the assignees of the first two sons, it is claimed that the notification would not have the effect of disrupting the joint family, that all the sons of the deceased Zamindar should be held to have continued as members of a joint Hindu family, and that, notwithstanding the fact the first three sons had taken their respective shares in the compensation, they, as undivided sons, would be entitled to take along with the rest Varaguna Pandian's share. This claim is contested by the appellants as well as the illegitimate sons.
9. It is first necessary to dispose of an argument: raised on behalf of the appellants that, as the illegitimate sons would not be entitled to any share in the compensation amount under the provisions of Section 45, they would have no right to Varaguna Pandian's share on his death.
10. Section 45, so far it is relevant for the presentcase, runs as follows:
(1) In the case of an impartible estate which had to be regarded as the property of a joint Hindu family for the purpose of ascertaining the succession thereto immediately before the notified date, the following provisions shall apply;
(2) The Tribunal shall determine the aggregate compensation payable to all the following persons, considered as a single group:
(a) the principal landholder and his legitimate sons, grandsons and great grandsons in the male line living or in the womb on the notified date, including sons, grandsons and great grandsons adopted before' such date (who are hereinafter called 'sharer') and
(b) other persons who, immediately before the notified date, were entitled to' maintenance out of the estate and its income either under Section 9 or 12 of the Madras Impartible Estates Act, 1904, or under any decree or order of a Court, award, or other instrument in writing or contract or family arrangement which is binding on the principal landholder (who are hereinafter called 'maintenance-holders')...
(6) The balance of the aggregate compensation shall be divided among the shares, as if they owned such balance as a joint Hindu family and a partition thereof had been effected among them on the notified date.
11. It is contended that the impartible estate having been taken over by the Government, free from all encumbrances, the only right in the erstwhile landholder being what is provided for under the Act, the persons who will be entitled to share the compensation money would be those mentioned in Section 45. And, as Section 4.5, does not recognise an illegitimate son as a sharer, he would not be entitled to any portion of the compensation amount. The argument proceeds on a fallacy. The question now before us does not relate to the distribution of the compensation a mount as such. There is no doubt that the right to the compensation amount will vest only amongst sharers, that is, the principal landholder and his legitimate sons, etc., as if there had been partition on the date of the notification. But once it has so vested, each one of the sharers would be entitled to what he obtained as his property, whether it be regarded a joint family property between himself and his sons, or as his separate property. When, therefore, one of the sharers died after the notified date, the distribution of his share of compensation amount could not be under the provisions of the Act. The Act does not provide for it, but it will be under the ordinary law governing testamentary disposition or succession, as the case may be. In the instant case, under the provisions of Section 45, one fifth of the compensation amount would belong to Varaguna Pandian, as if there was a partition between him and his three legitimate sons on the notified date. When he died in 1955, that. share would devolve according to the Hindu Law, the course of devolution varying, as the property is viewed either as separate or joint family property.
12. It is not disputed that, if the property is considered the separate property of Varaguna Pandian, the illegitimate sons would be entitled to a share. Even if that property were held to be joint family property as between Varaguna Pandian and Kutti Raja, the illegitimate sons would be entitled to a share. In Mulla's Principles of Hindu Law (12th Edition), dealing with the right of an illegimate son, it is stated at page' 484:
On the father's death, however, he succeeds to his estate as a coparcener with the legitimate son of his father, with a right of survivorship, and he is entitled to enforce a partition against the legitimate son.
13. In Raja Jogendra v. Nityanand there was an ancestral impartible estate. The Zamindar, who belonged to Sudra community, died leaving a legitimate son as well as an illegitimate son. On the death of the Zamindar, his legitimate son succeeded. But he died issueless. The question arose whether his father's illegitimate son could succeed to the impartible estate. The Privy Council held that the illegitimate son having survived the legitimate son would be entitled as a coparcener to succeed to the family estate, which was an impartible estate, on the death of his brother without male issue. In Sham Rao v. Munnabai I.L.R. (1948) Nag. 678 it was held that a dasipulra of a deceased Sudra Hindu could claim partition as against the legitimate son of his father (his half brother) in respect of the property which was ancestral in his father's hands. Gur Narain Das v. Gur Tahel Das : 1SCR869 related to the succession to the separate property of a deceased Sudra. The Supreme Court held that, on the death of the father, the illegitimate son succeeded as a coparcener to the separate estate of his father along with the legitimate son with a right of survivorship inter se and would be entitled to enforce partition as against the legitimate son. Vellaiyappa Chetty v. Natarajan (1931) 61 M.L.J. 522 : L.R. 58 IndAp 402 : I.L.R. 55 Mad. 1 related to a case where the father was himself a member of joint Hindu family. The question arose whether his illegitimate son would have any rights as against the other collateral members of the joint family, of which his putative father died as a member. It was held that, where the father left no separate property and died joint with collaterals, the illegitimate son would not be entitled to demand a partition as against those collaterals.
14. But where the father died having been joint with his sons, the joint family consisting of himself and his sons or his other descendants, and there is no question of a collateral branch being joint or where the father left separate property, the illegitimate sons would be entitled to share along with the legitimate son. Therefore, it would make no difference whether the 1/5th share in the compensation amount to which Varaguna Pandian was entitled, be regarded as his separate property or joint family asset as between him and his undivided sons. In either case the illegitimate sons would be entitled to their proper share on his death.
15. It was contended on behalf of the assignees of the two sons that Section 45(6) would not have the effect of dividing the members of the joint family, and that, therefore, all the legitimate sons of the deceased Zamindar would be entitled to share what was left by him, namely, his interest in the compensation amount. If that contention were to be accepted, the share of each of the two illegitimate sons would be only 1/14th of 1 /5th. It is now well-settled that the junior members of an impartible Zamindary are not coparceners and have no right in the impartible estate, except the chance of succeeding by survivorship to the estate after the death of the holder. Under the Madras Impartible Estates Act, there is a restraint upon the holder of the impartible estate for the time being from alienating the property. Except for that statutory restriction, the general law is that the holder of an impartible estate can deal with it by way of alienation or otherwise. He is also held to be the absolute owner of income from the estate. But where the holder of the estate died, succession to the impartible estate would be regulated by the rule of survivorship by treating the impartible estate as if it were joint family property. The impartible estate is, therefore, recognised as joint family property only for ascertaining who should succeed on the death of a holder.
16. It was contended that the share that was given to the sons under Section 45(6) was compensation of their chance of succession to the estate and not as a share in any joint family asset, and that, therefore, it could not be held that by reason of Section 4.5 (6) there has been a partition between Varaguna Pandian and his sons.
17. The question whether the share of compensation which the sons of a proprietor obtained under Section 4.5 (6) is a share of joint family property, and whether by reason of the statute there has been a partition between the proprietor and his sons, has to be decided on the terms of the statute. Section 3 (b) vests the entire estate, free from all encumbrances, in the Government, on a notification being made under the Act. Section 66 repeals the provisions of the Impartible Estates Act. so far as the estate is concerned from the date when the Act came into force. The repeal of the Impartible Estates Act in regard to the estate does not mean that all the members of the joint family (that is even collaterals) would be entitled to a share in the comper.sation amount. Under Section 3 (e) of the Act, the principal or any other landholder or any other persons whose rights stand transferred and determined under the provisions of the Act shall be entitled only to such rights and privileges as are conferred on him by the Act. Section 45 regulates the rights of various members of the family on the taking over of an impartible estate. Section 45(6) creates a right to the compensation amount in the sharers, namely, the principal landholder, his legitimate sons, grandsons, etc. No other person barring the maintenance-holders) has any right to the compensation amount. In Ranga Rao v. State of Madras : AIR1953Mad185 a brother of the holder of an impartible estate taken over under the Act by the Government claimed the compensation amount as partible property. The learned Judges negatived the claim. Section 4.5 (6) states that the compensation amount would be divisible between the sharers, as if there is a partition on the notified date.. Therefore, whatever might be the rights of the principal landholder or his sons in the impartible estate before the date of the notification, the compensation amount is treated as (1) property owned by the sharers as if they constituted members of the joint Hindu family and (2) the share of each of the sharers determined as if there had been partition between them on the notified date. In other words, two results follow from the statutory provision; (i) That the compensation amount is joint family property of the sharers and (2) that there had been a partition of that asset on the date of notification between them.
18. Section 45 which enacts a fiction cannot, however, be extended so as to effect a division between the members of the family in regard to other properties, for neither the status of the family nor its other properties are within its operation.
19. It was contended on behalf of the assignees that there could be no partition without a division in status. Reference was made to the decision of the Privy Council in Girija Bai v. Sadashiva Dhundiraj (1916) 31 M.LJ. 455 : L.R. 43 IndAp 151 : I.L.R. 43 Cal. 1031 (P.C.) in support of the contention that every partition should be the result of a division in status, and that as there had been no such division in status with respect to the compensation amount, provision of Section 45(6) could not be read as effecting a partition in regard to the compensation amount.
20. That however is not the way to approach the case. The statute which gives right to compensation amount treats it as a joint family property and also treats it as if there has been a partition of that property on the date of the notification. The statute creates a legal fiction for the purpose of compensating those persons, who, but for the Act would be entitled to certain rights in the impartible estate. So far as the principal landholder was concerned, his estate was taken over. So far as the sons and grandsons are concerned their chance of succession to the estate and their rights to maintenance have disappeared. In providing compensation for those persons, the statute creates a fiction by treating the compensation amount as joint family property. While that fiction could not be extended so as to hold that there was a partition in the family of the sharers, its operation could not be belittled either, by holding that it has not done what it purported to achieve. Therefore, so far as the compensation amount, is concerned, the sharers should be deemed to have been divided, but in regard to their other coparcenary properties, they would continue to be as before, that is, undivided.
21. The position, then, will be analogous to a case where members of a family are divided in regard to certain items of property, but continue to remain in undivided status in regard to others. It has been held that it is open to the members of a joint family to sever their interest in respect of a part of the joint estate, while retaining their status as a joint family and holding the rest as the property of the undivided family. The consequence in such a case would be that the character of the undivided family property will be taken away in regard to that part of the estate which was the subject-matter of division, while as regards the rest, the members would retain their joint status. See Approviyer v. Ram Subba Aryan 11 M.I.A. 75 and Ramalinga v. Narayana Annavi (1922) 43 M.L.J. 428 : L.R. 49 IndAp 168 : I.LR.45 Mad. 489 : A.I.R. 1922 P.C. 201. the relevant passage not being reported in the authorised reports). In such a case, the devolution on the death of a member quoad the undivided property would be by the rule of survivorship, and quoad the divided property, by succession. In our opinion, that rule would apply to the present case on the footing, that by reason of Section 45(6) there has been partition quoad the compensation amount, though there was no partition in regard to other properties. The devolution or succession to the share obtained in such a partition would be on the basis of its being a divided item of property. Therefore, the -1/5th share of the compensation amount, to which Vara-guna Pandian, the deceased Zamindar, became entitled under the provisions of Section 45(6), should be held to be divided property in his hands, and the persons entitled to take it on his death would be, his undivided son, namely Kutti Raja, his two widows and his two illegitimate sons, the other sons being treated as divided in respect of that item of property. The first three sons of Varaguna Pandian will have no interest in the 1/5th share, to which, the deceased Zamindar became entitled under the provisions of Section 45(6).
22. On behalf of the appellants, it was contended that by reason of Section 3 of the Hindu Women's. Rights to Property Act (XVIII of 1937) the illegitimate sons would have no rights in the property of Varaguna Pandian which should be deemed to be the joint family property as between him and his 4th son. Section 3 of Act XVIII of 1937 states as follows:
When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other School of Hindu Law or by customary law dies intestate leaving separate property, his widow or if there is more than one widow all his widows together, shall, subject to the provisions of Sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son:
Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such pre-deccased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such pre deceased son:
Provided further that the same provision shall apply mutatis mutandis to the widow of a pre-decea-sed son of a pre-deceased son.
(2) When a Hindu governed by any Schools of Hindu Law other than the Dayabaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had.
23. It is contended that under Section 3(2) the widow would represent the same interest as that of her husband, that as the illegitimate sons would not be entitled to any share or interest in the property during the lifetime of their putative father except at his choice, a similar disability would affect their claim during the lifetime of the widow. It was further contended that as the personality of the husband is deemed to inhere in the widow, the widow would take all the interest of her husband and there would be nothing left for the illegitimate sons to take.
24. That contention cannot be accepted. It is well known that the Hindu Women's Rights to Property Act, 1937, was intended to give better rights to women and to the extent of securing them those rights certain inroads were made in the law of succession and joint family. But that cannot mean that other heirs, namely, an illegitimate son who had certain rights of inheritance as a son lost such rights on the passing of that enactment. In Ramaiyya v. Motiyya (1951) 2 M.L.J. 314 : I.L.R. (1952) Mad. 187 it was held that that enactment had not the effect of abrogating the other rules of Hindu Law. In Alamelu Ammal v. Chellammal (1959) 1 M.L.J. 269 it was held that there was nothing in the enactment or in its intendment to create further inroads into the joint family or coparcenary property other than what was necessary for the purpose of giving certain rights in the property to the widow of the deceased person. We cannot accept the contention that the effect of Section 3(2) of the Act was to disinherit an illegitimate son. The provision in Section 3(1) which relates to separate property does not lead to any such conclusion. The purpose of Section 3(2) is to only confer on the widow the same share as that of her husband where partition is sought to be effected between her and her sons. The illegitimate son is. in the position of a son, though the share to which he is entitled at partition would be half of what he would get if he were the legitimate son. Vide Vellayappa Chettiar v.. Natarajan (1931) 61 M.L.J. 522 : L.R. 58 IndAp 402 : I.L.R. 55 Mad. 1 (P.C.). In a case where a person died a member of a coparcenary with his collaterals, the widow alone would get her husband's share but the illegitimate son would not. That is because the illegitimate son is not a coparcener with the collaterals while the widow who suffered under a similar disability before, got her rights secured under the statute. That question however does not arise here, for the property left by Varaguna Pandian would only be the joint family property of himself and his undivided son. In our opinion, the illegitimate son would' be entitled to share in the inheritance along with the widows and the undivided son.
25. The question, then is the quantum of share to which each of the parties would be entitled. It has been held that, after the death of the father, both the legitimate and illegitimate sons take as coparceners, but the latter in a partition would get only half of what he would be entitled to had he been legitimate. The widow would be entitled to a share equal to that of the legitimate son. Therefore, the 1/5th share which belonged to Varaguna Pandian will be taken by his two widows, his undivided son, Kutti Raja, and the two illegitimate sons. The Tribunal has divided that property equally between the three groups. In this, they were not correct. The share of each of the illegitimate sons would be half of what he would get had he been a legitimate son. It should, therefore, be held that each of them would be entitled only 1/8th share in the interest of Varaguna Pandian in the compensation amount and both of them together will be entitled to 1/4th and not 1/3rd (Vide the illustration given at page 119 in Principles of Hindu Law, by Mulla). The remaining 3/4A will be divided between the widows and Kutti Raja, the undivided son, so that each of the widows would get 3/16th share and Kutti Raja 3/8th share of the 1/5th share of the compensation amount which the deceased Zamindar possessed.
26. The order of the Tribunal will be modified accordingly, and the case remanded to the tribunal for working out the reliefs to which the parties would be entitled. No order as to costs.