An illegitimate son has rights to ancestral property after the father's death, and the legitimate sons must give him his due share.

Curgenven, J.

1. The learned Subordinate Judge has decided this case against the plaintiff upon a preliminary point and it is unfortunate that the argument ,upon this point proceeded ex-parte, because the consequence was that a clear current of decisions contrary to the position taken up by the Lower Court was not brought to its notice. This suit was brought by the illegitimate son of a Sudra against the legitimate sons and other descendants for partition of the family property, and the preliminary question which arose was whether in the circumstances of the case, there being no collaterals involved, such a suit would lie. The Lower Court has referred only to two cases and there is an essential distinction between those cases and the present case, namely, that they both related to families in which collaterals existed. Gopalasami Chetti v. Arunachelam Chetti I.L.R. (1903) Mad. 32 accordingly is no authority for the proposition which the preliminary issue raises in this case, nor is Natarajan v. Muthiah AIR1926Mad261 which followed that case and which was taken to the Privy Council as Vellaiyappa Chetty v. Natarajan I.L.R. 55 Mad. 1 : 61 M.L.J. 522 . But if the learned Subordinate Judge had observed that Ranoji v. Kandoji I.L.R. (1885) Mad. 557 was cited in Gopalasami Chetti v. Arunachelam Chetti I.L.R. (1903) M. 32 and had carefully perused that earlier case he would have discovered certain propositions which would have made him hesitate to decide the matter as he did. In that case, to which the learned Judge Muthuswami Iyer, J., was a party, the fact is recognised that an illegitimate son does not become a coparcener by birth. But a consideration of the texts shows that where the father "has died vibakta or separated, there can be no question that the right of the illegitimate son extends not only to his fathers acquisitions but to ancestral property which may have come to the fathers hands." (Page 561.) On the next following-page it is expressly stated that the claim of the illegitimate son to a half of the sons share, which claim he could make if there were no collaterals, cannot be sustained against the undivided brothers of the father, and on page 563 an. attempt is made to show why this should be so, namely, "that the property of a father separated from his brothers may well be subject to discharge an obligation to which it would not have been subject in the hands of unseparated brothers". The Lower Court has adopted the view that it would only be the fathers self-acquired property which would be liable to a claim of this description, but the whole course of authority not only of this Court but in Bombay and in Calcutta is contrary to that position. To take the earliest Bombay case, which was a Full Bench case, Sadu v. Baisa I.L.R. (1878) Bom. 37 , it was held that on the death of the father an illegitimate son and a legitimate son form a coparcenary between them and take the estate jointly as such with rights of survivorship, although the illegitimate son would only take a half of what he would have been entitled to if legitimate. This case was followed recently in Sakharam v. Shamrao A.I.R. 1932 Bom. 234, a case which is especially instructive here because there the father had already given his self-acquired property to the illegitimate son and after the fathers death the illegitimate son sued the legitimate son for a share in the family property. Accordingly that was a case which dealt specifically with the right to a share in the family property. In Jogendro Bhupati Hurrochundra v. Nityanand Man Sing I.L.R. 18 Cal. 151, a Privy Council case, the same theoretical principles are recognised, following the text of the Mitakshara, that an illegitimate son has no right by birth but receives what he does according to his fathers pleasure; but that after the death of the father he becomes a coparcener and that the legitimate brothers have to give him his due share. In this Court the case of a family with no collateral