JUDGMENT

Mookerjee, Actg. C.J.

1. This Reference has been made in connection with a suit for recovery of possession of land upon declaration of title. The subject-matter of the litigation is a holding which belonged at one time to an agriculturist, Panchanan Das by name. A widow Rupa Dasi, who had a son Rajani Nath Das (the first Defendant) by her deceased husband, came to live with Panchanan Das as his mistress. They lived together for many years and the second Defendant, Hari Mohan Das, is their illegitimate son. Panchanan Das died in 1911. The Plaintiffs, who are the landlords, instituted the present suit on the 8th April, 1915, for recovery of possession of the holding on the ground that, as Panchanan Das had left no legal heir, the land had reverted to them. The parties were not agreed as to the status of the tenant; the Plaintiffs asserted that Panchanan Das was an under-raiyat, while the Defendants maintained that he was a raiyat. The Courts below did not determine this question, but held that, if the holding were assumed to have belonged to an occupancy raiyat, his right of occupancy was, u/s 26 of the Bengal Tenancy Act, extinguished upon his death, as he left no legal heir; in other words, that the second Defendant, as the illegitimate son of Panchanan Das, could not be deemed to be his heir-at-law under the Bengal school of Hindu law. This conclusion was founded upon the decision in Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1, which was followed in Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. 91. It was not disputed before the Division Bench that if these cases were correctly decided, the decree of the District Judge could not be successfully assailed. Mr. Gupta, who argued the case on behalf of the Appellants, however, invited the Court to examine the correctness of these decisions which were based on the assumption that a passage in the Dayabhaga (Ch. IX, para. 29) was inaccurately rendered by Colebrooke. Mr. Gupta contended that there was really no foundation for this view. He also drew attention to the fact that in Bombay, Madras and Allahabad, it had been held that an illegitimate son of a Sudra by a continuous and exclusive concubine or mistress is an heir under the respective school of Hindu law which prevails in each of those jurisdictions; and for this purpose he referred to the judgment in Chatturbhuj Patnaik v. Krishna Chandra Patnaik (1912) 17 C.W.N. 442, where the earlier cases are mentioned. Amongst later decisions to the same effect, reference was made to Gangabai Peerappa v. Bandu ILR (1915) Bom. 369, Soundararajan v. Arunachalam Chetty ILR (1915) Mad. 136, Subramania Ayyar v. Rathnavelu Chetty ILR (1917) Mad. 44, which, it was said, were all supported by the opinion of the Judicial Committee in Jogendro Bhupati Hurrochundra Mahapatra v. Nityanand Man Sing ILR (1890) Cal. 151 : L.R. 17 IndAp 128.

2. Mr. Gupta further urged that on a correct interpretation of the texts, it would be found that there was no real difference on this question between the Bengal school and the other schools of Hindu law. He finally pointed out that the decisions in Narain Dhara v. Rakhal Gain ILR (1875) Cal. 1 and Kirpal Narain Tewari v. Sukurmoni ILR (1891) Cal. 91, have been frequently doubted by text-writers. The Division Bench, without pronouncing a final opinion on the question raised, thought that there was considerable force in these contentions and accordingly referred the following question for decision by a Full Bench:

Whether, under the Bengal school of Hindu law, the illegitimate son of a Sudra by a continuous and exclusive concubine is an heir to his putative father?

3. The Division Bench observed that in the case before them, no question arose as to preferential right, in the event of competition between such a son and a legitimate heir.

4. As the point referred arose in an Appeal from Appellate Decree, the whole appeal was, under rules of Court, referred to the Full Bench.

5. The solution of the question refe