An illegitimate son of a deceased Hindu belonging to the Sudra class is entitled to a share in the properties obtained by his legitimate half brother in a partition suit, even if the father died undivided with his brothers.

RAMACHANDRA IYER, J. :- This appeal is directed against the judgment of Ramaswami Gounder J. granting a preliminary decree for partition in C. S. No. 608 of 1949. Defendants 1 and 2 are the appellants. The appeal involves the determination of the question whether a legitimate son of a deceased Hindu belonging to the Sudra class who obtained certain properties on partition from his fathers collaterals would be bound to share it with his illegitimate half brother. One Tirumalai Chetti and his brothers formed members of a joint Hindu family. One of the brothers, Chinnappa Chetti died issueless in 1931. Raghava Chetti, the son of Tirumalai Chetti, predeceased his father, leaving behind him his widow, Kamakshi Ammal and a son, Dorai Babu.

During his lifetime, Tirumalai kept a concubine, Janaki, through whom he had an illegitimate son, Gopalakrishna Chetti. Tirumalai died in 1944, undivided from his brothers. He was survived by his widow, Mylai Ammal, daughter-in-law, Kamakshi, and his grandson, Dorai Babu. Besides these, his two undivided brothers and his illegitimate son, Gopalakrishna, were in existence at the time of his death. The family of Tirumalai Chetti and the parties to the litigation can be conveniently seen from the geneology set out below :

2. Soon after Tirumalai Chettis death, his grandson, Dorai Babu, and daughter-in-law, Kamakshi Ammal, instituted C. S. No. 134 of 1945 on the original side of this court for partition of the family properties. The surviving brothers and their sons were impleaded as parties to the action, Gopalakrishna Chetti, who claimed to be the legitimate son of Tirumalai Chetti, was impleaded as the 6th defendant to the suit. Although the substantial plea of Gopalakrishna Chetti in that suit was that his mother was legally married to Tirumalai Chetti, there was an alternative plea that, at any rate, she should be held to have been his continuously kept concubine, and that he, as an illegitimate son, would be entitled to a share in the family properties.

Rajamannar J. (as he then was) negatived the claim of Gopalakrishna Chetti, that he was the legitimate son of the deceased, Tirumalai Chetti. The learned Judge, however, accepted the alternative plea of fact that he was an illegitimate son of the deceased born of his permanently and exclusively kept concubine. On these findings, the learned Judge negatived Gopalakrishna Chettis claim to a share in the family properties, but awarded maintenance. A preliminary decree for partition followed, Dorai Babu getting a share as the grandson of the deceased and Mylai Ammal getting a share under the Hindu Womens Rights to Property Act; and there was also a decree for maintenance in favour of Gopalakrishna Chetti. An appeal was filed by Gopalakrishna under Clause 15 of the Letters Patent against the judgment of the learned Judge (O. S. A. No. 26 of 1946).

Horwill and Rajagopalan JJ. who heard the appeal, confirmed the findings of the learned trial Judge that Gopalakrishna Chetti was the illegitimate son of Tirumalai Chetti born through his continuously kept concubine, but negatived his right to a share in the suit properties. The learned Judges made it clear in their judgment that they were basing their judgment on the footing that the claim of the illegitimate son claiming a share was directed against the collateral members of the family, and not one directed solely to obtain a share of what his legitimate half brothers son Dorai Babu obtained in the partition suit. In other words, they negatived the claim of Gopalakrishna Chetti to a share as such in the properties of the family, of which Tirumalai Chetti was an undivided member. The judgment on appeal is reported in Gopalakrishna Chetty v. Dorai Babu, 1948-2 Mad LJ 221 : (AIR 1949 Mad 296).

3. Soon after the disposal of the appeal, Gopalakrishna Chetti instituted O. S. No. 608 of 1949, out of which this appeal arises, for partition of the properties obtained by Dorai Babu in C. S. No. 134 of 1945. Sche