JUDGMENT
Bhashyam Aiyangar, J.
1. The question and the only question which arises in this second appeal is whether, under the Mitakshara Law a divided brother of a Sudra A, who died without leaving legitimate mate issue is entitled to succeed to A’s estate in preference to A’s grandson, the legitimate son of A’s predeceased illegitimate son. Neither side relies upon any usage or custom having the force of law and the question has ‘td be decided as an abstract question of Hindu Law. There is no direct authority, either in the Hindu Law texts or in judicial decisions, applicable to the case. The question, therefore, has to be answered with reference to established principles and the analogies which have heretofore prevailed in like cases.
2. The author of the Mitakshara defines the rights of an illegitimate son in Ch. I, Section 12. He lays down that a son begotten by a Sudra on a female slave can be given a share by the father’s choice; but that after the death of the father leaving legitimate male issue, they must allow their illegitimate brother half a share. But if the father died without leaving legitimate male issue but leaving a daughter or daughter’s son, the illegitimate son takes half a share along with the daughter or daughter’s son as the case may be. But in default of a daughter or daughter’s son the illegitimate son takes the whole estate.
3. The rights of an illegitimate son in the paternal estate when the father has died a separated house-holder have now been clearly defined by judicial decisions. If the father left legitimate sons the illegitimate son is a co-sharer with them, the extent of his share being one-half of what it would be if he were a legitimate son ; and he can enforce a partition of his share (Thangam Pillai v. Suppa Pillai I.L.R. 12 M. 401 and Karuppanna Chetti v. Bulokam Chetti I.L.R., 23 M. 16 though, he cannot, like a legitimate son, claim a share as against his father, during the father’s lifetime, even in respect of ancestral property. If the father left a widow, daughter or daughter’s son but no legitimate male issue, the illegitimate son succeeds as a co-heir with the widow, daughtor or daughter’s son as the case may be, and as sole heir, in default of any other heir down to a daughter’s son. It is also tolerably well established that an illegitimate son though he may succeed as heir to his paternal and maternal estate, has no claim to inherit to collaterals Shome Shankar Rajendra Varere v. Rajesarswammi Jangam, I.L.R., 21A, 99 Krishnayyan v. Muthusami I.L.R., 7 M. 407. The point chiefly argued on behalf of the appellant is that inasmuch as the illegitimate son of his divided brother predeceased the father and had no right to enforce partition against the father, his son the respondent cannot claim under his father and that therefore he, the appellant, is entitled to succeed to his brother’s heir and that the respondent as the grandson by an illegitimate son cannot claim directly as the heir of his grandfather. In support of this contention reliance is chiefly placed upon the decisions of this court that an illegitimate son has no claim by survivorship against the undivided co-parcerners of his father and therefore cannot sue them for a partition after the death of his father Krishnayyan v. Muthusami I.L.R., 7 M. 407 ; Ranaji v. Kandoji I.L.R., 8 M. 557; Parvati v. Tirumalai I.L.R., 10 M. 334. 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 ‘avibhaktu’ (undivided from his brothers or other collaterals) he is entitled only to maintenance. The principle of these decisions is explained as follows in Thangam Pillai v. Suppa Pillai, I.L.R., 12 M., 401.–” But these decisions proceeded on the view that he had no claim by survivorship against his father’s co-parceners by jus representation’s and that, he was neither a co-heir with his father, nor a sapinda in relation to his father’s co-parceners.” I may here refer to a subsequent decision of the Privy Council. (Jogendra, Bhupati v. Nittyananda Man Singh L.R. 17, I.A. 128; Jogendre Bhupati Hurochandra Mahapatra v. Nityanand Man Singh I.L.R., 18 C., 151 wherein it is distinctly laid down, following the decision of the Bombay High Court in Sadu v. Baiza I.L.R., 4 B. 37 and affirming the decision of the Calcutta High Court Jogendro Bhuputi v. Nityananda Man Singh I.L.R., 11 C. 702 that though an illegitimate son acquires no right by birth, in the same way as a legitimate sgn, and therefore cannot claim a share as against his father, yet that on the death of the father the legitimate and illegitimate sons hold the property as members of a joint Hindu family with right of survivorship and that on the death of either without male issue the survivor takes the entire estate. If the legitimate son dies without male issue, the illegitimate son becomes entitled to the whole estate. If the illegitimate son predecease the legitimate son, leaving male issue and the legitimate son afterwards dies without leaving male issue, the whole property will devolve by survivorship on the issue of the illegitimate son. This mast be the necessary result if, as affirmed by the Privy Council, the legitimate and illegitimate sons, on the death of the father, hold the family property as members of a joint family.
4. This decision in no way affects the course of decisions in this Presidency as to the rights of illegitimate sons in the Separate estate of their father and inasmuch as the appellant’s brother died a separated householder and the appellant claims only as his divided brother, it is unnecessary to consider whether the decisions of this court reported in I.L.R. 7 M., 407 ; 8 M. 557 and 10 M. 334 above referred to are in any way affected, and if so to what extent, by this decision of the Privy Council.
5. Assuming as explained in Thangam Pillai v. Suppa Pillui I.L.R. 12 M. 401 that, by reason of his illegitimacy, an illegitimate son cannot claim his father’s share as against his father’s coparcener by jus-representations that principle will not be applicable to a legitimate son representing his father though the father was the illegitimate son of the grandfather. If, a Sudra dies, leaving a legitimate son and grandson or great-grandson by a predeceased illegitimate son can it be contended that the legitimate son is not bound to allow half a share to the son or grandson of his deceased illegitimate brother just as he would be if the illegitimate son did not predecease the father? If the grandson, as representing his father, though not claiming under him, would be entitled as against his uncle to claim his father’s share, it can hardly be maintained, though his father predeceased the grand-father, that he cannot claim the grand-father’s estate as against the grandfather’s divided brother. An illegitimate son’s right of inheritance to his father’s property or at least to a part of it, is not contingent but absolute as in the case of a legitimate son, since if he has legitimate half-brothers or other heirs of his father down to a daughter’s son, he gets a half share and in the absence of such heir, the whole estate. The Sudra’s illegitimate son is, therefore, in a position more analagous to that of a legitimate son than to that of other relations whose right of inheritance is liable to obstruction. The principles, therefore, applicable to the succession of sons and grandsons of legitimate sons may by analogy be applied to the sons and grandsons of an illegitimate son viz, that they should be considered capable of representing the illegitimate son and in case he dies before his father, of taking the share which would have fallen to him if he had not so died. This is the view maintained by Messrs. West and Butler in their treatise on Hindu law 3rd Edn. pp. 72, 82, 83, 390 and also by Dr. Jolby in his work on Hindu Law (pp. 185, 186) and I fully concur in that opinion. The expression ‘legitimate son’ (i.e. son of a wedded wife) in the text of Mitakshara which entitles an illegitimate son to half a share when there are legitimate sons, evidently includes a grandson and great-grandson and similarly the expression illegitimate son, (i.e. a son begotten by a Sudra on a female slave) occurring in the same tenet, applies not only to the illegitimate son, but also to the grandson and great-grandson by the illegitimate son, at any rate, when they are his legitimate descendants. It may be doubttul whether the illegitimate issue of the illegitimate son can on the principle of jus-representationis represent the illegitimate son, if before the inheritance opened, the latter predeceased his father. But it is unnecessary to consider that question as the respondent is the legitimate son of his father.
6. In my opinion, therefore, the second appeal fails and should be dismissed with costs.
Benson, J.
7. I concur.