Ramachandra Iyer, J.

This appeal is directed against the judgment of Ramaswami Goundar, J., granting a preliminary decree for partition In C.S. No. 608 of 1949. Defendants 1 and 2 are the appellants. The appeal involves the determination of the question whether a legitimate son of a deceased Hindu belonging to the Sudra class who obtained certain properties on partition from his fathers collaterals would be bound to share it with his illegitimate half brother. One Tirumalai Chetti and his brothers formed members of a joint Hindu family. One of the brothers, Chinnappa Chetti died issueless in 193

1. Raghava Chetti, the son of Tirumalai Chetti, predeceased his father, leaving behind him his widow, Kamakshi Ammal and a son, Dorai Babu. During his lifetime, Tirumalai kept a concubine, Janaki, through whom he had in illegitimate son, Gopalakrishna Chetti. Tirumalai died in 1944, undivided from his brothers. He was survived by his widow, Mylai Ammal, daughter-in-law, Kamakshi, and his grandson, Dorai Babu. Besides these, his two undivided brothers and his illegitimate son, Gopalakrishna, were in existence at the time of his death. The family of Tirumalai Chetti and the parties to the litigation can be conveniently seen from the geneology set out below:

DIAGRAM

Soon after Tirumalai Chettis death, his grandson, Dorai Babu, and daughter-in-law, Kamakshi Ammal, instituted C.S. No. 134 of 1945 on the Original Side of this Court for partition of the family properties. The surviving brothers and their sons were impleaded as parties to the action. Gopalakrishna Chetti, Who claimed to be the legitimate son of Tirumalai Chetti, was impleaded as the 6th defendant to the suit. Although the substantial plea of Gopalakrishna Chetti in that suit was that his mother was legally married to Tirumalai Chetti, there was an alternative plea that, at any rate, she should be held to have been his continuously kept concubine, and that he, as an illegitimate son, would be entitled to a share in the family properties. Rajamannar, J., (as he then was) negatived the claim of Gopalakrishna Chetti, that he was the legitimate son of the deceased, Tirumalai Chetti. The learned Judge, however, accepted the alternative plea of fact that he was an illegitimate son of the deceased born of his permanently and exclusively kept concubine. On these findings, the learned Judge negatived Gopalakrishna Chettis claim to a share, in the family properties, but awarded maintenance. A preliminary decree for partition followed, Dorai Babu getting a share as the grandson of the deceased and Mylai Ammal Getting a share under the. Hindu Womens Rights to Property Act; and there was also a decree for maintenance in favour, of, Gopalakrishna Chetti. An appeal was filed by Gopalakrishna under Cl. 15 of the Letters Patent against the judgment of the learned Judge (O.S.A. No. 26 of 1946), Horwill and Rajagopalan, JJ. who heard the appeal, confirmed the findings of the learned trial Judge that Gopalakrishna Chetti was the illegitimate son of Tirumalai Chetti born through his continuously kept concubine, but negatived his right to a share in the suit properties. The learned Judges made it clear in their judgment that they were basing their judgment on the footing that the claim of the illegitimate son claiming a share was directed against the collateral members of the family, and not one directed solely to obtain a share of what his legitimate half brothers son Dorai Babu obained in the partition suit. In other words, they negatived the claim of Gopalakrishna Chetti to a share as such in the properties of the family, of which Tirumalai Chetti was an undivided, member. The judgment On appeal is reported in Gopalakrishna v. Dorai Babu (1948)2 M.L.J. 221 = 61 L.W. 556.

Soon after the disposal of the appeal Gopalakrishna Chetti instituted O.S. No. 608 of 1949, out of which this appeal arises, for partition of the properties obtained by Dorai Babu in C.S. No. 134 of 194

5. Schedules 1 and 2 to the suit relate to the properties respectively allotted to Dorai Babu and to Mylai Ammal, the widow of Tirumalai Chetti. The suit was contested principally on the ground that Gopalakrishna Chetti would not be entitled to a share in the properties, in which Tirumalai Chetti at the time of his death had only an interest as a coparcener in a joint family, consisting of himself and his brothers. There was also a plea that the claim for partition was barred by res judicata by reason of the decision in C.S. No. 134 of 1945.

We have already referred to the fact that the learned Judges, who disposed of the appeal, construed the claim of the illegitimate son as one for a share of the coparcenary properties of the entire family, and not as a claim that he was entitled to a share in the properties which the grandson of his putative father obtained after partition. Ramaswami Goundar, J. held that there was no substance in the plea of res judicata advanced on behalf of the contesting defendants. On the main question, the learned Judge accepted the contentions urged on behalf of the illegitimate son, and held that he would be entitled to share in the properties obtained at partition by the legitimate branch. The learned Judge passed a preliminary decree for partition, granting Gopalakrishna Chetti one-sixth share in the suit properties.

It is not disputed that, if the plaintiff Gopalakrishna were held entitled to partition, his share would be one-sixth. Nor was the conclusion arrived at by the learned trial Judge on the plea of res judicata challenged before us. The only question then is whether the plaintiff would be entitled to a share allotted to defendants 1 and 3 in C.S. No. 134 of 1945 as the illegitimate son of Tirumalai Chetti.

The rights of an illegitimate son under the Hindu Law are fairly well settled. A son born to a person belonging to the fourth class in the Hindu Society by his concubine who had been continuously and exclusively kept by him till at least the time of birth of that son, such concubinage being neither adulterous nor incestuous, would be entitled to inherit to his putative father along with his legitimate son, or failing legitimate son with his widow, daughter or daughters son. If there were none of these, the illegitimate son would take the estate in preference to the other heirs. Such an illegitimate son has the status of a son, and is a member of the family. But he does not, by that reason, acquire, on his birth, an interest in the property of his putative father. He has no right in regard to the property, so long as the latter is alive. He could not, therefore, enforce a partition against his father during his; lifetime. But this does not preclude the father, by his own volition, giving him a share. Indeed, if the father has legitimate as well as illegitimate sons, he could, at a partition, give his s illegitimate son an equal share with his legitimate son. But, on the death of the father, the illegimate son gets a right to a share, and, if there is a legitimate son, he would be a coparcener with him with rights of survivorship inter se , in regard to the property of the father, self-acquired or separate. This rule would apply even to a case where the; father dies leaving ancestral property, so long as there are no other coparceners of the same degree as the father interested in such property, that is to say, where the property, though ancestral, belongs only to the joint family of the father, and his legitimate sons. Vide Raju Thambiran v. Arunagiri Thambiran 64 M.L.J. 500=37 L.W. 462., and Sham Rao Fakir Rao v. Munna Bai A.I.R. 1949 Nag. 43.The decision of the Supreme Court in Gurunarayan Das v. Guru Tahal Das 1952-S.C.R. 869 = 65 L.W. 642., was also a case of ancestral but separate property of the father.

This extract is taken from R. Dorai Babu Chetti v. T. Gopalakrishna Chetty, (1960) 73 LW 385 , at page 388 :

But where the putative father, be he a manager or only a mere coparcener, of a joint family which comprises his father, brothers or other collaterals, dies, the illegitimate son would not be entitled to a share in the joint property, though he might be entitled to maintenance. Vide Vellayyappa Chetti v. Nataraja 58 Mad. 1 [LQ/MadHC/1934/177] .=40 L.W. 469.The same would be the case, where the putative father dies-undivided with his collaterals, leaving an illegitimate son or sons along with a legitimate son or sons, whether by birth or adoption. The existence of a legitimate son does not improve the position of the illegitimate son, who not having any legal relationship with the other collaterals could not be held to be a member, of the coparcenary. Not being a member of the coparcenary, it follows that he would have no right in the property belonging to it. Nor could he compel his legitimate brothers to effect a partition in the main family. Vide Gopalaswami Chetti v. Arunachala Chetti 27 Mad. 32., and the decision between the parties hereto in O.S.A. No. 26 of 1946, Gopalakrishna Chetti v. Dorai Babu (1948)

2. M.L.J. 221=61 L.W. 566.

But the question in the present case is not whether the illegitimate son could enforce his rights against collateral members of a joint family, of which his putative father died a member, but whether in a case where his legitimate half brother had divided himself from the main family and obtained a share in the properties representing the branch of his father (though after his lifetime) would be bound to share the same with the illegitimate son of his father.

The position and rights of an illegitimate son of a Sudra by an exclusively kept concubine rests solely on certain texts of Hindu Law which recognise and give certain limited rights. Inheritance depends on the existence of a legal relationship. There being no Such relationship, his rights would be entirely regulated by the texts. Being a special rule of inheritance, it is but legitimate that it should be confined within strict limits, in order that the rule might not be extended beyond what is absolutely within the terms of the rule. But, at the same time, any rights which might be created in an illegitimate son under those texts cannot be defeated on a priori reasoning or on supposed theories or logical extensions of the same.

Manu permits the allotment of a share to an illegitimate son begotten by a Sudra, if permitted, evidently meaning if permitted by the father. Yagnavalkya, however, gives him a mote substantial right. In view of the contentions braised before us, it is necessary to refer to the text of Yajnavalkya, and also the commentary in Mitakshara in regard thereto.

HINDI

Colebrookes translation of the text runs:

Even a son begotten by a Sudra on a female slave may get a share by the fathers choice; but if the father be dead, the (legitimate) brother should make him partaker of half a share; one who has no (legitimate) brother may take the whole, in default of (heirs down to) the son of daughters. Yajnavalkya, 173.

In the Mitakshara, S. 12, entitled as Rights of a son by a female slave, in the case of a Sudras estate, deals with that subject. Rule 1 reproduces Yajnavalkyas text as a special rule concerning the distribution of the estate of a Sudra. Rule 2 states:

HINDI

A son begotten by a Sudra on a female slave, obtains a share by choice (Kamataha) i.e., by the option of the father. But, after (the death of) the father, if there be sons of a wedded wife, then these brothers should make that son of the female slave, a half sharer, i.e., they should give him a half from their own allotment. However, should there be no sons of a wedded wife, the sons of the female slave shall take the whole estate, provided there be no daughters of a wedded wife, nor their sons. But if there be such, the sons of the female slave participate for half share only.

The learned Counsel for the appellant contended that the text of Yajnavalkya could be read as giving rights to an illegitimate son in his putative fathers estate only in a case where the father happened to be the patriarchal head of a family. Where however the father was a member along with others than his own son, i.e., where there were in the family other coparceners, of a higher or equal degree, the text would not apply, as he could not then be said to be a separated householder and could not exercise the rights of a pater familias . Reliance was placed in this connection on a passage in Maynes Hindu Law and Usage, 11th Edn. at page 526, which states:

According to the decisions, it is only when the father dies a separated hoseholder that an illegitimate son is entitled to inherit his estate but when a father dies an avibhakta, that is, undivided from his lineal ancestors, brothers or other collaterals, he can claim no share in the joint family property. For, the text laying down the special rule of inheritance provides that in the absence of legitimate brothers, the illegitimate son may inherit the whole property in default of the daughters son of the deceased a clear indication that the Sudra father therein contemplated was one that was divided from his ancestors or/and collaterals. It may therefore be taken as settled that when the father dies a member of an undivided family leaving legitimate and illegitimate sons, the latter are not entitled to claim a partition as against the fathers coparceners.

The text of Yajnavalkya contemplates a father effecting a partition in which he could give a full share at his choice to the illegitimate son. This is possible only when the father is capable of effecting a partition, i.e., when he is the head of the family, the other members being his sons. The text again states that the illegitimate son would, in the absence of a legitimate son, take a share equally with the widow, daughter or daughters son. Inheritance to the widow, daughter etc., would arise only w hen there are no other collateral members of the family claiming joint rights. To put it in the picturesque language adopted by the learned Counsel, Yajnavalkyas text provides for an illegitimate sons right only in a case where the father is the apex of a pyramidal family.

In Krishnayyan v. Muthusami 7 Mad. 407., the claim of an illegitimate son of a deceased coparcener to take the undivided interest of his father who died leaving his brother, was negatived. The decision in Ranoji v. Kandoji 8 Mad. 557., held that the illegitimate son of a Sudra cannot recover from the undivided brothers of his father a share in the family estate. In Thangam Pillai v. Suppa Pillai 12 Mad. 401., the decision proceeded on the view that the illegitimate son had no claim by survivorship against his fathers coparceners by jus representationis and that he was neither a co-heir with his father nor a sapinda in relation to his fathers coparceners. It was, therefore, contended that the right of an illegitimate son cannot spring into existence, unless there was material on which that right could operate, i.e., either a separate property of the father or ancestral property over which he, as a father, could have a right of effecting partition between the sons. We are of opinion that the contention is sound.

But that conclusion is not sufficient to dispose of the question that arises in this appeal. Where the Hindu father is a member of a joint family along with his brothers or other collaterals and he dies leaving a legitimate son, his right in the family property does not survive to the collaterals, but would pass on to his legitimate son. In Mayne on Hindu Law and Usage, 11th Sin. at page 523, the right of representation of the son is thus stated:

Under Mitakshara Law, the right to a share passes by survivorship among the remaining coparceners, subject to the rule that where any deceased coparcener leaves male issue, they represent the rights of their ancestor to a partition.

In the foot-note in the same page reference is made to the texts of Yajnavalkya, Brihaspati and Kautilya to the effect that allotment of shares is according to fathers i.e., per stirpes . The question of survivorship, therefore, would arise only when the person dies without male issues, that is to say, if a man has no male issue, his own brother, who forms members of the joint family with him, would take his property by survivorship,, but where he, in addition to his brother, left behind him a legitimate son, his entire right in the joint family property would devolve on his legitimate son. In Majanatha v. Narayana 5 Mad. 36

2. at 36

5. the learned Judge observed thus:

The shares of coparceners in each branch may increase or decrease according as the existing coparceners die or new coparceners are born, and when the joint family consists of several benches and one of those branches becomes extinct the interest of that branch may also survive to the other. But so long as neither branch is extinct, the right of survivorship has no influence upon the shares of the coparceners who belong to branch a different to that to which the deceased coparceners belonged. Take for e xample the case of two brothers, one of whom has two sons and the other has three sons. If either of the brother dies, the share of the other branch would still be a moiety. If both brothers die, each branch will still take a half share. If one brother and two out of his three sons die, the surviving son would take the moiety of his own branch, whilst the two sons in the other branch would take each only a quarter share. So long as there are coparceners in each branch, the operation of the right of survivorship is precluded by the right of representation.

On the principle thus stated there would be no survivorship in favour of the collaterals, so long as the right of representation existed. We have already referred to the decision in Thangam Pillai v. Suppa Pillai 12 Mad. 40

1. that the denial of the right to an illegitimate son in the coparcenary property was by reason of the fact, that he not being a representative of the father could not prevent the right of survivorship in favour of his fathers coparceners. That disability cannot exist where there has been no survivorship. It follows that there was no survivorship of the interest of Tirumalai Chetti in favour of his brothers. Those rights completely vested in his grandson, Dorai Babu.

It was then contended that, when Dorai Babu obtained a share at partition in C.S. No. 134 of 1945, what he got was his own share, as a member of coparcenary with the surviving brothers of Tirumalai Chetti, land that the illegitimate brother of his father could have no right therein. It is, however, not correct to treat what Dorai Babu obtained in partition as his separate property. That the property, which a Hindu coparcener obtains at a family partition would be only joint family property and not separate property, is now well settled. Vide Umayal Achi v. Lakshmi Achi (1945) 1 M.L.J. 108. and Subramaniam v. Kalyana Ram Iyer (1957) 1 M.L.J. 2

5. and we cannot accept the contention to the contrary urged on behalf of the appellant.

Mr. K.V. Venkatasubramania Iyer next contended that the existence of any rights of an illegitimate son has to be judged solely on the basis of the time factor, viz., whether at the time of the fathers death there was property on which his rights could operate and that if there was no property over which the father could be said to have a right to effect a partition between his sons, the illegitimate son would have no rights; any subsequent acquisition by the legitimate son of his share from the other members of the family would not add to the rights of the illegitimate son or enable him to treat the property so obtained by his legitimate half-brother as the separate property of his putative father. The learned Counsel placed considerable emphasis upon the words (mrithe pithare), in the text of Yajnavalkya which is used as a locative absolute. That would mean at the time of the fathers death. It was said that the translation by Colebrooke of Yajnavalkyas text did not bring out fully the intent and limitations of the original text and that on a strict construction of the text of Yajnavalkya, the material or property on which the illegitimate sons right of inheritance could operate should have existed at the time of the fathers death. That would mean that the father could have left at the time of his death separate property or ancestral property which belonged to his branch of the family alone. A mere interest of the father in the coparcenary with his brothers etc., would not be such property and that subsequent allotment in a partition to the legitimate son would not improve the position of the illegitimate son, whose rights are regulated by what was available at his fathers death. The grammatical construction of the text of Yajnavalkya is, however, not supported by the Mitakshara where Verse 2 of Chapter 12 states HINDI (Pithur Oordhwam) that is, after the death of the father. The translation by Colebrooke of the Yajnavalkya text is in accordance with the interpretation in Mitakshara. That apart, it has been held that in deciding the rights of the illegitimate son, a literal interpretation of the text could not always be adopted. In Nachamuni Mudali v. Parthasarathi Mudali 33 M.L.J. 203., there was an anterior partition between the father and his legitimate son, ignoring the rights of the illegitimate son. Sometime after the partition, the illegitimate son claimed a share in the properties obtained by the legitimate son. The putative father supported him in his claim. The text, if interpreted literally, would perhaps justify the claim, as the fathers choice was then exercised in his favour. The learned Judges negatived the claim on the ground that such a literal interpretation could not be justified and that the power of the father to give a share to his illegitimate son could be exercised only at the time of partition with his legitimate son and not thereafter. It cannot, therefore, be held that the texts of Yajnavalkya negatived the right of an illegitimate son-in the property which his legitimate half brother acquired by way of partition, after his fathers death by reason only of the fact that such property was obtained later. On the other hand, the text enjoins the legitimate brother to give a share to his illegitimate brother.

It has then to be considered what the precise status of an illegitimate son is with his half brother. In Sadu v. Baiza arid Genu 4 Bom. 37 at 46., Nanabhai Haridas, J. observed:

While admitting, therefore, that the position of a dasiputra in a Sudra family does differ in important particulars from that of an aurasaputra , I am not prepared to allow that the former is not a member of the family at all, nor that he is not a coparcener, and not, therefore, entitled to succeed by right or survivorship. His legal status as a son is unquestionably recognised, and accordingly he inherits from his father even before the latters widow and if there are aurasaputras of his father, he succeeds to the fathers estate jointly with them. He is clearly, therefore, their coparcener. That he is their brother, not only in the popular, but also in the legal, acceptation of the term, is evident from the Mitakshara, Chapter II, S. 12, (1) and (2) where they are spoken of both by Yajnavalkya and Vijnaneshwara as his brother and brothers (bhratarah).

In Jogendra Bhuputi v. Nityanand Mansing 11 Cal. 70

2. the position that an illegitimate son was a coparcener of his legitimate brother was accepted. The learned Judges distinguished the decision in Krishnayyan v. Muthusami 7 Mad. 40

7. as one where the question was whether the illegitimate son could represent his father as regards grandfathers estate so as to exclude the right by survivor ship which would otherwise accrue to the fathers brother, and held that the principle would not apply where the question was between the illegitimate son and his legitimate half brother. The decision in that case was affirmed by the Privy Council in Jogendra Bhupathi Hari Chunder Mahapatra v. Nityanand Mansing 17 I.A. 128. The subject matter of dispute in Jogendras case 17 I.A. 128. was succession to an impartible Raj. In an impartible estate though it is treated as joint family property for the purpose of succession, the right to partition or joint enjoyment are from the very nature of the property incapable of existence, the property being treated as coparcenary property for the purpose of determining the successor on the death of the previous holder by applying the rule of survivorship. When the legitimate son succeeded his father to the Raj, it cannot be said that he took it as either the separate property of the father, or as property in which his illegitimate brother had an interest on the death of his father. The Privy Council held that the illegitimate son was entitled to succeed to the impartible Raj on the death of his legitimate half brothers. In the course of the judgment, Sir Richard Couch, referring to the text on the subject, observed that the language in the second verse of Yajnavalkya was very distinct when it stated if the father be dead the brethren should make him partaker of the moiety of a share. The right of the illegitimate son in that case was held to accrue on the date of the death of his legitimate brother, and it was not negatived on any theory that such rights should exist on the date of the death of the father and could not accrue on a later date.

The learned Counsel for the appellant referred us to certain decisions as supporting the contention that; the subsequent partion by the legitimate son with his fathers collaterals would not add to the rights of the illegitimate son if they did not exist on the date of the death of their father. In Gopalswami Chetti v. Arunachala Chetti 27 Mad. 32., the adopted son predeceased to continue to remain in the joint family with his uncle. The illegitimate son sued for partition, but his claim was negatived, as his father died undivided with his own father and brother. The presence of the adopted son was held not to make any difference. In that case the adopted son did not want partition and the question did not arise whether if he had done so, he should partake what he obtained in partition along with his illegitimate half brother. The question that arose in Nagarathinammal v. Chinnu Sah 53 M.L.J. 861., was similar, and the learned Judges followed the earlier decision. That those decisions could only apply where the claim by the illegitimate son was to obtain partition from his fathers collaterals and that the matter would be different where the claim was made as against the legitimate half brother after he secured his share from his collaterals, is noticed by the learned Judges who disposed of O.S.A. No. 26 of 194

6. Vide Gopalakrishna Chetti v. Dorai Babu (1948) 2 M.L.J. 221=61 L.W. 566.

Ramaswami Goundar, J., was of the opinion that words separate estate of the father referred to in the judgment of the Supreme Court in Gurnarain Das v. Gur Tahaldas 1952 S.C.R. 869=65 L.W. 64

2. would include a case where the estate might become separated from the collaterals either during the fathers lifetime or after his death by a suit for separation by the legitimate son against the collaterals. In Guru Narain Das v. Gur Tahal Das 1952 S.C.R. 869=65 L.W. 642., the learned Judges accepted the finding of the High Court that the father of the illegitimate son was divided from his brother and his property was separate property. We, however, prefer not to express any opinion as to whether the learned Judges intended to lay down that separate property of the father would include property which his son obtained after his death by partition from his uncles. Even assuming that their Lordships of the Supreme Court did not so lay down, as it was not necessary for the case before them, we have come to the conclusion that where a legitimate son has obtained property by way of partition of the joint family property, which he held along with his collaterals, such property would be ancestral property in his hands, obtained by virtue of the right which he possessed to represent his father. Such property would be held in coparcenary by him with his illegitimate half brother, notwithstanding the fact that the father died undivided with his brothers. The text of Yajnavalkya casts an obligation on the legitimate son, after the death of the father, to give the illegitimate son a share in the property. Such an obligation would exist not merely with regard to property left as the separate property (ancestral or otherwise) by the father, but also with respect to one got by the legitimate son by way of partition from the coparcenary of which the father died a member. We have already held that what the son gets at the partition is by virtue of a representation of his father, and, though he obtained such property by virtue of his rights in the coparcenary, it would not be his separate property. A claim to a share in such property would be within the ambit of the rights given to the illegitimate son under the texts.

We agree with the conclusion arrived at by Ramaswami Goundar, J., and dismiss this appeal with costs.