JUDGMENT
Subba Rao, J.
1. This second appeal arises out of O. S. No. 285 of 1944, a suit filed by the appellant for partition of the joint family properties. The plaintiff, first, third and sixth defendants are brothers. The third defendant’s sons are defendants 4 and 5. The sixth defendant’s sons are defendants 7 and 8. The 2nd defendant Soundararajulu Naidu is the son of the first defendant’s concubine one Dhanammal. Defendants 7 and 8 filed O. S. No. 318 of 1935 against the other members of the family for partition of the family properties and obtained a decree. To that suit defendants 1, 3 and 6 and the plaintiff were made parties. The plaint schedule properties in the present suit were the properties covered by Exs. II, XI and B in the earlier suit. Defendants 7 and 8 filed an application for appointment of a commissioner for dividing the properties. The plaintiff filed a counter claiming to be in possession of his share. But the court refused to accede to his request at that stage.
The present suit is therefore filed for partition and separate possession of the Plaintiff’s share. Though the plaint schedule consisted of 5 items, in this appeal we are concerned only with items 1 to 4 of the plaint schedule. Items 1 and 2 have been in the possession of the 2nd defendant for over the statutory period. Item 3 likewise has been in the possession of the 2nd defendant’s mother Dhanammal for over the statutory period. The learned District Munsif found that Dhanammal and Soundararajulu Naidu acquired rights to the said items by adverse possession. But in regard to item 4 the learned District Munsif gave a decree to the plaintiff for an 1/4th share in the said item. But in the appeal the learned Subordinate judge held that the plaintiff would not be entitled to a share even in respect of that item as his claim for a share was negatived by the court in the final decree proceedings in the former suit. The plaintiff has therefore preferred the above second appeal.
2. The learned counsel for the appellant fairly conceded that he has no case in respect of item 3 and so too the learned counsel for respondents in respect of item 4. The dispute therefore centres round items 1 and 2 of the plaint schedule. As aforesaid, Soundararajulu Naidu is the illegitimate son of the first defendant by his concubine Dhanammal. There is no finding in this case whether Soundararjulu Naidu is the illegitimate son by a continuously kept concubine, though the indications are that Dhanammal was the continuously kept concubine of the first defendant. The learned counsel for the appellant argued that among Sudras an illegitimate son is a member of his father’s family and therefore his possession must be deemed to be the possession of his father and if that is the legal position no question of adverse possession would arise.
To put in other words his contention is that Soundararajulu Naidu being a member of the first defendant’s family, if the first defendant’s possession cannot be adverse, the 2nd defendant’s possession also cannot be adverse to the coparcenary of which the 1st defendant is a member. I have already pointed out that the foundation for this argument has not been laid in the courts below. Even on the assumption that the 2nd defendant is the illegitimate son of the 1st defendant by his continuously kept concubine, I find it very difficult to equate his possession with that of his putative father. Learned counsel relied upon the decision of the Judicial Committee in — ‘Vellaiappa Chetti v. Nataraja’, 55 Mad HP. C.) where their Lordships of tile Judicial Committee held that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and, if his father had died leaving no legitimate son and no separate property, the illegitimate son, though not entitled to a partition, is entitled as a member of the family to maintenance out of joint family property in the hands of the collaterals with whom the father was joint.
It is true that the illegitimate son of Sudra is a member of his family but it is equally settled law that he is not a member of the coparcenary. He does not also acquire a right by birth. He is not in Joint possession with the father. He cannot claim partition. From the aforesaid principles it follows that the possession of an Illegitimate son cannot be deeded to be possession on behalf of the family consisting of himself and his father. The learned Subordinate Judge on a consideration of the entire evidence held that the illegitimate son was in actual possession of the suit items 1 and 2 for over the statutory period in his own right and had thereby acquired a right by adverse possession. The finding Is really one of fact.
3. In the result, the second appeal is allowed in
respect of item
4. The parties will bear their own
costs in this appeal. In other respects the second
appeal is dismissed. No leave.
