Judgement

Appeal (No. 45 of 1919) from a judgment and decree of the High Court (October 25, 1915) varying a decree of the Subordinate Judge of Madura (October 14, 1905).

The suit related to the estate of the zamindar of Bodinaickenur, a sudra, who died in 1888? and was brought by the first respondent (since deceased) against the appellant (since deceased), who was the widow of the zamindar, his daughter, and other collateral relations, all of whom were defendants and respondents to the appeal. The zamindar left no legitimate sons.

Both Courts in India had found that the plaintiff was illegitimate and had rejected his claim to the impartible zamindari. The trial judge, upon a remand, had found that the estate of the deceased included much property which was his self-acquired property; he held that the plaintiff was entitled to one-third of that property, and the widow to two-thirds. Upon appeal to the High Court the decree was varied, it being held that the illegitimate son and the widow were each entitled to a half of the self-acquired property. The litigation involved other points, but upon the present appeal the only substantial question was which of those views .was right.

The learned judges of the High Court (Miller and Abdur Rahim JJ.) in dealing with the question in point said as follows " The first question to be decided is whether the plaintiff as the illegitimate son of his deceased father is entitled to share equally with his widow, the first defendant, or whether he is only entitled to half of her share, i.e., to one-third of the properties. In a series of cases in Madras beginning with Ranoji v. Kandoji (( 1885) I. L. R. 8 M. 557.) it has been held that an illegitimate son succeeding to his deceased father along with a widow, daughter, or daughters son, is entitled to half of the properties and not merely to one-third Parvathi v. Thirumalai (( 1887) I. L. R. 10 M. 334, 343.); Chinnammal v. Varadarajulu (( 1892) I. L. R. 15 M. 307.) ; Meenakshi Anni v. Appakutti. (( 1909) I.

L. R. 33 M. 226.) In Rahi v. Govinda (( 1875) I. L. R. 1 B. 97.) Westropp C.J. elaborately reviewed all the texts of Hindu law dealing with the rights of an illegitimate son and came to the conclusion (as we understand the judgment) that the illegitimate son was entitled to a half share of the properties; and in Seshagiri v. Girewa (( 1889) I. L. R. 14 B. 282.), Sargent C.J., who delivered the judgment of the Court, took the same view and understood the decision in Rahi v. Govinda (( 1875)

I. L. R. 1 B. 97.) as laying down the same " rule. The learned vakil for the respondent invited us to construe for ourselves the original text of the Mitakshara which he says is clearly in his favour. He also cited the commentary of Apararka on the text of Yajnavalkya and the commentary of Medatithi, the well known commentator of Manu, on the same text. He further contended that all the text-book writers on Hindu law who knew Sanskrit have construed the passage of the Mitakshara in the way he construes it. Much may no doubt be said in favour of this construction. But the decisions of this Court are not based merely on the interpretation of the text of the Mitakshara. In Ranoji v. Kandoji (( 1885)

I. L. R. 8 M. 557.), in which the position of an illegitimate son was fully considered, reliance was placed on a passage from the Dattaka Chandrika which states in clear terms that the illegitimate son shares equally with the widow, daughter, and daughters son. It was this very passage of the Dattaka Chandrika which was relied on as authority for not excluding the widow from the succession when there is an illegitimate son, whereas the Mitakshara omits the widow from the category of persons who are not excluded by the illegitimate son. The Dayabhaga which gives the illegitimate son an equal share with the daughter and daughters son was also referred to. In this state of things, we are not prepared to depart from the course of decisions in this Court which hold that th