Gopalasami Chetti vs Arunachelam Chetti and Another

The Plaintiff, claiming as the illegitimate son of one Chidambaram Chetti deceased, has brought the suit for his share in his father''s estate or in

the alternative for maintenance, against the first Defendant, the adopted son, and the second Defendant, the brother''s son, of Chidambaram Chetti.

The Defendants denied inter alia that the Plaintiff was the illegitimate son of Chidambaram Chetti and contended that, even if the Plaintiff were his

illegitimate son, he could not inherit to his father as his mother was a married woman; that Chidambaram Chetti left no separate or self-acquired

property, and that, even if the said Chidambaram Chetti was entitled to a share in the property acquired in trade by his father and brother-on the

footing that it was joint family property-such share on his death in 1888 passed by survivorship to his father and brother; and that the Plaintiff

cannot therefore claim any share in such property.

The Subordinate Judge found that the Plaintiff''s mother was not a married woman, that she was continuously kept by Chidambaram Chetti as a

concubine, and that the Plaintiff was his illegitimate son by such connection, but dismissed the Plaintiff''s suit on the ground that the Plaintiff was

estopped from maintaining it by reason of an arrangement made by Chidambaram Chetti in his lifetime, in accordance with which the Plaintiff''s

mother, subsequent to Chidambaram Chetti''s death, relinquished all her claims on receipt of a sum of Rs. 2,200 from the second Defendant''s

father. It is impossible to uphold the decision of the Subordinate Judge on this point. A reference to paragraph 2 of the first Defendant''s written

statement in which the said arrangement is alluded to and to exhibit II-the receipt given by the Plaintiff''s mother for the said amount-clearly shows

that no arrangement or settlement was made as regards the Plaintiff''s right to a share as to maintenance, that the Plaintiff''s mother gave an

acquittance only in respect of her own claims referred to in exhibit II, and that the transaction was not one in which she professed to act as the

Plaintiff''s guardian during his minority or to affect any right or claim which he might have.

The Respondents'' pleader sought to support the decree appealed against by impugning the finding of the Subordinate Judge as to the Plaintiff''s

status as the illegitimate son of Chidambaram Chetti and by contending that Chidambaram Chetti having died undivided from his father and brother,

the Plaintiff cannot claim any share in the joint property of such family notwithstanding the existence of the first Defendant, the adopted son of

Chidambaram Chetti.

We agree with the Subordinate Judge that the marriage of the Plaintiff''s mother with one Kuppusami has not been proved, and that the Plaintiff

is Chidambaram Chetti''s illegitimate son entitled to rights of inheritance in respect of his father''s estate, if any. The onus of establishing that he is

the son of Chidambaram Chetti, is clearly on the Plaintiff and he cannot by simply proving that his mother was the Chetti''s concubine shift the onus

on to the other side to disprove his paternity. The legal presumption as to paternity raised by Section 112 of the Indian Evidence Act is applicable

only to the offspring of a married couple. A person claiming as an illegitimate son must establish his alleged paternity like any other disputed

question of relationship and can, of course, rely upon statements of deceased persons u/s 32, Clause 5, for opinion expressed by conduct u/s 50 of

the Evidence Act and also upon such presumptions of fact as may be warranted by the evidence.

4.1 Their Lordships then dealt fully with the evidence on which they found that Plaintiff was the illegitimate son of the late Chidambaram Chetti, and

continued.

The Plaintiff would therefore certainly be entitled to a share in the estate of Chidambaram Chetti, had the latter left any separate or self-acquired

property as alleged in the plaint. This, however, the Plaintiff has entirely failed to establish. The family consisted of Arunachelam Chetti and his two

sons Chidambaram Chetti and (his brother) Muthuraman Chetti (father of the second Defendant). The family is not shown to have had any

ancestral property, but it acquired property by trade in which the father and the two sons were jointly engaged. There being no indication of an

intention to the contrary it must be presumed that the property thus acquired was held by the members of the family as joint property with the

incident of the right of survivorship. Chidambaram Chetti having predeceased his father and brother, it has now been clearly established by

decisions (Krishnayyan v. Muttusami ILR 7 Mad. 407, Ranoji v. Kandoji ILR 8 Mad. 557 and Parvathi v. Thirumalai ILR 10 Mad. 334 that the

Plaintiff can claim no share as against his grandfather and uncle, and being illegitimate he cannot ''represent'' his father in the undivided family. As

stated in the judgment of this Court in Ramalinga Muppan v. Pavadai Goundan I.L.E. 25 Mad. 519 at p. 522, ""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 lineal ancestors, brothers or other collaterals) he can claim no share in the joint family property. It is true

that in none of the reported cases on the point did there exist, as in the present case, 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 sons 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 edition, volume I, page 72). But if he was not

so divided the text cannot apply, though he may have left legitimate sons along with the illegitimate son. The only point decided in Ramalinga

Muppan v. Pavadai Goundan ILR 25 Mad. 519 at p. 522 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 father and inherit

the whole estate of his grandfather in preference to the divided brothers of the grandfather; and this does not in any way militate against the above

principle.

It was also suggested and argued that though Chidambaram Chetti predeceased his father Arunachelam Chetti, the latter, being himself a

separated householder and the pater familias of the joint family, could allot a share, by his choice to the Plaintiff and that therefore on his death

without making such allotment, the first and second Defendants as the legitimate grandsons of Arunachelam Chetti should make the Plaintiff

''partaker'' of the moiety of a share. However plausible this argument may be, it is impossible to maintain this position both because the word

''father'' in the text cannot grammatically include'' grandfather'' and because the context relating to daughter''s son shows that it cannot apply to the

grandfather.

The Plaintiff''s claim, therefore, for a share in the joint family property entirely fails.

As regards his alternative claim for maintenance, the issues proceed on the footing that the Plaintiff is entitled to maintenance unless such claim

be barred by Section 43, Code of Civil Procedure, or the Plaintiff be estopped from maintaining the suit (vide issues Nos. 6, 7,8 and 16); and the

only questions for decision are, what rate of maintenance should be decreed and whether past maintenance should also be awarded. In determining

the rate of maintenance, an illegitimate member of a family who is not entitled to inherit can be allowed only a compassionate rate of maintenance

and he cannot claim maintenance on the same principles and on the same scale as disqualified heirs and females who have become members of the

family by marriage. In fixing, however, the compassionate rate of maintenance for the Plaintiff, regard, no doubt, should be had to the interest of his

deceased father in the joint family property and the position of his mother''s family"". We think that Rs. 25 per mensem during his life (from date of

suit) will be a fair amount to be awarded under the circumstances and there is no reason to disallow to the Plaintiff arrears of maintenance at the

same rate for the period of nine years prior to the suit, as claimed by him (Raja Yarlagadda Mallikarjuna Prasada Nayadu v. Raja Yarlagadda

Durga Prasada Nayadu ILR 24 Mad. 147 at p. 154).

The Plaintiff having succeeded only in part, and the Defendants having unsuccessfully impugned Plaintiff''s status as the illegitimate son of

Chidambaram Chetti, each party will bear his own costs throughout.