Raju Thambiran vs Arunagiri Thambiran and Others

Curgenven, J.—The learned Subordinate Judge has decided this case against the plaintiff upon a preliminary point and it is unfortunate that

the argument ,upon this point proceeded ex-parte, because the consequence was that a clear current of decisions contrary to the position taken up

by the Lower Court was not brought to its notice. This suit was brought by the illegitimate son of a Sudra against the legitimate sons and other

descendants for partition of the family property, and the preliminary question which arose was whether in the circumstances of the case, there being

no collaterals involved, such a suit would lie. The Lower Court has referred only to two cases and there is an essential distinction between those

cases and the present case, namely, that they both related to families in which collaterals existed. Gopalasami Chetti v. Arunachelam Chetti ILR

(1903) Mad. 32 accordingly is no authority for the proposition which the preliminary issue raises in this case, nor is Natarajan and Others Vs.

P.M.A. Muthiah Chetty and Others, which followed that case and which was taken to the Privy Council as (1931) L.R. 58 I.A. 402 (Privy

Council) . But if the learned Subordinate Judge had observed that Ranoji v. Kandoji ILR (1885) Mad. 557 was cited in Gopalasami Chetti v.

Arunachelam Chetti ILR (1903) M. 32 and had carefully perused that earlier case he would have discovered certain propositions which would

have made him hesitate to decide the matter as he did. In that case, to which the learned Judge Muthuswami Iyer, J., was a party, the fact is

recognised that an illegitimate son does not become a coparcener by birth. But a consideration of the texts shows that where the father ""has died

''vibakta'' or separated, there can be no question that the right of the illegitimate son extends not only to his father''s acquisitions but to ancestral

property which may have come to the father''s hands."" (Page 561.) On the next following-page it is expressly stated that the claim of the illegitimate

son to a half of the son''s share, which claim he could make if there were no collaterals, cannot be sustained against the undivided brothers of the

father, and on page 563 an. attempt is made to show why this should be so, namely, ""that the property of a father separated from his brothers may

well be subject to discharge an obligation to which it would not have been subject in the hands of unseparated brothers"". The Lower Court has

adopted the view that it would only be the father''s self-acquired property which would be liable to a claim of this description, but the whole course

of authority not only of this Court but in Bombay and in Calcutta is contrary to that position. To take the earliest Bombay case, which was a Full

Bench case, Sadu v. Baisa ILR (1878) Bom. 37 , it was held that on the death of the father an illegitimate son and a legitimate son form a

coparcenary between them and take the estate jointly as such with rights of survivorship, although the illegitimate son would only take a half of

what he would have been entitled to if legitimate. This case was followed recently in Sakharam v. Shamrao AIR 1932 Bom. 234, a case which is

especially instructive here because there the father had already given his self-acquired property to the illegitimate son and after the father''s death

the illegitimate son sued the legitimate son for a share in the family property. Accordingly that was a case which dealt specifically with the right to a

share in the family property. In (1891) ILR 18 151 (Privy Council) , a Privy Council case, the same theoretical principles are recognised, following

the text of the Mitakshara, that an illegitimate son has no right by birth but receives what he does according to his father''s pleasure; but that after

the death of the father he becomes a coparcener and that the legitimate brothers have to give him his due share. In this Court the case of a family

with no collaterals, has been directly dealt with in Thangam Pillai v. Suppa Pillai ILR (1888) Mad. 401 and there again we find it laid down that the

text states that when the father is alive, the illegitimate son takes his share by his (the father''s) choice, but directs that after the father''s death his

legitimate sons should give him a moiety of a son''s share, and again ""It was nowhere held that he was entitled to the share allotted to him only by

the choice of his legitimate brother, and that he could not recover that share by insisting on partition."" In Karuppannan Chetti v. Bulokam Chetti

ILR (1899) Mad. 16 it is expressly stated that the text which forms the authority upon this point does not refer alone to the self-acquired property

of the father. There are a number of other cases in which the law has been stated in similar terms. We need only refer to Ramalinga Muppan v.

Pavadai Goundan ILR (1901) Mad. 519 : 11 M.L.J. 399 and Annayan v. Chinnan ILR (1909) Mad. 366 : 20 M.L.J. 355 and we do not think

that any views contrary to this consistent body of opinion can be extracted from the Privy Council judgment in (1931) L.R. 58 I.A. 402 (Privy

Council) . In fact it embodies a survey of the law laid down by the Judges of this and the other Courts in India and clearly agreed with the

conclusions so arrived at. We must accordingly allow this appeal, set aside the decree of the Lower Court, answer the issue (No. I-e) in favour of

the plaintiff and remand the suit for disposal upon the remaining issues. The contesting respondents (defendants 1 to 3) will pay the appellant''s

costs in this appeal. Costs in the Court below will abide the result.