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PETITIONER: SINGHAL AJIT KUMAR & ANOTHER

       Vs.

RESPONDENT: UJAYARSINGH AND OTHERS

DATE OF JUDGMENT: 16/03/1961

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. DAYAL, RAGHUBAR

CITATION:  1961 AIR 1334            1962 SCR  (1) 347

ACT: Hindu   Law-Sudras-Inheritence-Self-acquired   Property   of father-Illegitimate  son  and widow  inheriting  half  share each--Widow  dying-Illegitimate son, if entitled to  succeed to widow’s half.

HEADNOTE: A  Sudra Hindu died leaving two widows and  an  illegitimate son  by a continuously and exclusively kept concubine.   The son  succeeded  to  a moiety of the estate  and  the  widows succeeded  to  the other moiety.  The  widows  died  without leaving  any daughter or daughter’s son.   The  reversioners filed a suit for recovery of possession of the estate.   The illegitimate  son contended that on the death of his  father he  was  entitled to succeed to half the  estate  the  other going  to the widows and that on the death of the widows  he was entitled to the half share held by them. Held, that the illegitimate son succeeded to half the estate upon the death of the father and succeeded to the other half on  the  death of the widows.  An illegitimate son  has  the status of a son under the Hindu Law; but he has no rights by birth  and  cannot  claim  partition  during  his   father’s lifetime.  On the father’s death he takes his father’s self- acquired property along with the legitimate son and in  case the  legitimate  son dies, he takes the entire  property  by survivorship.   If there is no legitimate son, he  would  be entitled  only  to  a  half share when  there  is  a  widow, daughter ox daughter’s son of the last male holder.  In  the absence of any one of these three heirs, he succeeds to  the entire  state.   If the widow succeeds to half  the  estate, upon her death succession again opens to half the estate  of the last male 348 holder  held  by her and the illegitimate son, who  has  the status  of  a son, has a preferential claim over  all  other reversioners. Raja jogendra Bhupati Hurri Chundun Mahapatra v.  Nityarnund Mansingh,   (1890)   L.R.  17  I.A.   128,   Kamulammal   v. Visvanathaswami   Naicker,  (1922)  L.R.  50  I.A.  32   and Vallaiyappa  Chetty v. Natarajan, (1931) I.L.R. 55  Mad.  1, referred to. Karuppayee  Ammal v. Ramaswami, (1932) I.L.R. 55  Mad.  856,

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distinguished. Bhagwantrao v. Punjaram, I.L.R. 1938 Nag. 255, approved.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 462 of 1957. Appeal  by special leave from the judgment and decree  dated April  18,1952,  of the former Nagpur High  Court  in  First Appeal No. 88 of 1942. C.B. Agarwala and K. P. Gupta, for the appellant No. 1. Har Dayal Hardy and N. N. Keswani, for respondent No. 1. 1961.  March 16.  The Judgment of the Court was delivered by SUBBA  RAO,  J.-This  appeal by special  leave  is  directed against the judgment and decree of the High of Judicature at Nagpur  confirming  the  judgment  of  the  2nd   Additional District  Judge,  Jabalpur in Civil Suit No.  9-A  of  1942, filed  by  respondents  2 to 7 herein  claiming  to  be  the reversioners  of  the estate of one  Raja  Ajitsingh.   Ajit Singh  was  the  Raja  of Saliya  Estate  consisting  of  73 villages  and other property situate in Jabalpur and  Saugor Districts.   Ajit  Singh died on January  2,  1910,  leaving behind him two widows named Rani Khuman Kuar and Rani  Anant Kuar and an illegitimate son named Ramraghuraj Singh.   Rani Anant Kuar died in or about 1914 and Rani Khuman Kuar passed away  on  February 1, 1922.  After the death  of  Raja  Ajit Singh,  the Estate was taken over by the Court of  Wards  on behalf  of the widows in the year 1913 and remained  in  its possession  till  March 27, 1923.  After the death  of  Rani Khuman  Kuar,  the local Government  issued  a  notification recognizing  Ramraghuraj  Singh  as  the  successor  to  the Estate; but, for one reason or other, the 349 Court of Wards continued to manage the Estate on his  behalf from  September 23, 1923.  Ramraghuraj Singh died  on  April 23, 1932, and on his death the, first respondent, the son of Ramraghuraj Singh, was, declared as the ward of the Court of Wards  which  continued to manage the Estate on  his  behalf Respondents  2 to 6, claiming to be the reversioners to  the Estate  of Raja Ajit Singh, filed a suit on June  15,  1935, for recovery of possession of the Estate.  Appellants 1  and 2  are  alleged  to be the assignees pendente  lite  of  the interest of the alleged reversioners. The plaintiffs averred that RamraLhurai Singh was the son of one  Jhutti by her husband one Sukhai and that as Raja  Ajit Singh  had  no issue, he and the Ranies treated the  boy  as their son, that the Lodhi community to which Raja Ajit Singh belonged was not a sudra caste and that, therefore, even  if Ramraghuraj  Singh  was the illegitimate son  of  Raja  Ajit Singh, he was not entitled to a share, and that in any  view half of the share of the widows in the Estate would devolve, on their death, on the reversioners to the exclusion of  the illegitimate son.  They further pleaded that the  possession of  the Court of Wards of the entire Estate from January  2, 1910  to February 1, 1922, was adverse to  the  illegitimate son  and, therefore, he lost his title, if any, to the  said Estate.  The case of the first respondent was that Raja Ajit Singh  belonged to the sudra caste, that  Ramraghuraj  Singh was  the  son  of  the  said  Raja  by  a  continuously  and exclusively kept concubine named Raj Dulari, that the widows never  questioned the right of Ramraghuraj Singh to a  share in the property of Raja Ajit Singh, that therefore there was no scope for the plea of adverse possession, and that, after the  death  of the widows, the succession to the  Estate  of Raja Ajit Singh in respect of one half share opened out  and

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the  illegitimate son, he being the nearest heir,  succeeded to that share also. The trial court as well as the High Court concurrently  gave the following findings: (1) Raja Ajit Singh belonged to  the sudra  caste;  (2) Raja Raghuraj Singh was the son  of  Raja Ajit Singh by a continuously and 350 exclusively  kept  concubine  by name Raj  Dulari,  who  had passed  into  the coneubinage of Raja Ajit Singh  after  the death  of her husband; (3) as the illegitimate son  of  Raja Ajit  Singh, Ramraghuraj Singh succeeded to a moiety of  the Estate  of  his putative father and the two widows  of  Raja Ajit Singh succeeded to the other moiety of his Estate;  (4) as there was no daughter or daughter’s son, after the  death of  the widows, Ramraghuraj Singh, being the sole  surviving heir  of  his  putative father, inherited a  moiety  of  the Estate  which was held by the widows during their  lifetime; (5)  Ramraghuraj Singh was all along in joint possession  of the Estate with the widows, and, although the Court of Wards had assumed superintendence on behalf of the Ranies, he  was not out of possession during their lifetime and as such  his title  could not be extinguished by adverse possession;  (6) the  plaintiffs’ suit was barred under s. 26 of the  Central Provinces Court of Wards Act; and (7) the plaintiffs’  claim was barred by limitation. While the trial court held that it had not been  established that  the  plaintiffs  were the reversioners  of  Raja  Ajit Singh, the High Court held that it had been proved.  In  the result  the trial court dismissed the suit and,  on  appeal, the High Court confirmed it. The  2nd appellant died and his legal  representatives  were not  brought  on  record and the appeal so far  as  the  2nd appellant is concerned has abated.  The 1st appellant  alone proceeded with the appeal. It  is  the  usual  practice of this  Court  to  accept  the concurrent  findings  of  the courts below.   There  are  no exceptional circumstances in this case, at any rate none was brought to our notice, to compel us to depart from the usual practice.   We, therefore, accept the  concurrent  findings, namely, that Raja Ajit Singh was a member of the sudra caste and that Ramraghuraj Singh was the son of Raja Ajit Singh by a  continuously  and exclusively kept  concubine  named  Raj Dulari,  who passed into his concubinage after the death  of her husband. The  main question that arises in this appeal is whether  an illegitimate  son  of  a  sudra  vis-a-vis  his-selfacquired property, after having succeeded to a half 351 share  of his putative father’s estate, will be entitled  to succeed to the other half share got by the widow, after  the succession  opened out to his putative father  on  the death of the said widow.  The answer to the question depends  upon the  content of the right of an illegitimate son to  succeed to  the self-acquired property of his putative father.   The source  of  his  right is found in the  relevant  Hindu  Law texts.   Mitakshara in explanation of the texts of Manu  and Yajnavalkya says in Chapter 1, s. 12, in the following three verses thus:               "1.  The author next delivers a  special  rule               concerning  the partition of a Sudra’s  goods.               ’Even  a son begotten by a Sudra on  a  female               slave may take a share by the father’s choice.               But,  if  the  father be  dead,  the  brethren               should  make him partaker of the moiety  of  a               share:  and  one,  who has  no  brothers,  may

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             inherit  the  whole property,  in  default  of               daughter’s sons’.               2.The son, begotten by a Sudra on a female               slave, obtains a share by the father’s choice,               or at his pleasure.  But, after the demise  of               the father, if there be sons of a wedded wife,               let these brothers allow the son of the female               slave  to participate for half a  share:  that               is,  let them give him half as much as is  the               amount  of one brother’s allotment.   However,               should there be no sons of a wedded wife,  the               son  of  the  female  slave  takes  the  whole               estate,  provided there be no daughters  of  a               wife, nor sons of daughters.  But, if there be               such the son of the female slave  participates               for half a share only.               3.From  the  mention of a  Sudra  in  this               place  it follows that the son begotten  by  a               man  of a regenerate tribe on a female  slave,               does  not obtain a share even by the  father’s               choice, nor the whole estate after his demise.               But,  if  he be docile, he receives  a  simple               maintenance."               No  mention of a widow is found in  the  above               verses,  but in Dattaka Chandrika, the  author               says in V. 30,31 thus:               "If  any, even in the series of heirs down  to               the               352               daughter’s  son,  exist, the son by  a  female               slave  does not take the whole estate, but  on               the contrary shares equally with such heir." The leading decision on the rights of an illegitimate son is that  of  the Judicial Committee in  Raja  Jogendra  Bhupati Hurri  Chundun Mahapatra v. Nityanund Mansingh (1).   There, one  Raja  died leaving behind him a legitimate son  and  an illegitimate  son.  On the death of the legitimate son,  who had succeeded to the Raja, it was held that the illegitimate son  succeeded  to him by survivorship.  Sir  Richard  Couch cited two verses from Mitakshara Chapter 1, section 12.   We have  already  extracted the said verses.   Commenting  upon these verses, the learned Judge observed at P.    132 thus:               "Now  it  is observable that the  first  verse               shews  that during the lifetime of the  father               the law leaves the son to take a share by  his               father’s choice, and it cannot be said that at               his  birth he acquires any right to  share  in               the estate in the same way as a legitimate son               would  do.   But the language  there  is  very               distinct, that "if the father be dead the bre-               thren  should make him partaker of the  moiety               of a share".  So in the second verse the words               are  that  the brothers are to  allow  him  to               participate  for  half a share, and  later  on               there is the same expression: "The son of  the               female  slave  participates for half  a  share               only"." On  that interpretation, he accepted the view of the  Bombay High  Court  and  held  that  an  illegitimate  son  and   a legitimate  son, being members of an undivided Hindu  family governed   by  Mitakshara,  the  illegitimate  son   becomes entitled  to  the whole of the immoveable  property  of  the family  if the legitimate son dies without any  male  issue. The  Judicial  Committee again considered the  right  of  an illegitimate  son in Kamulammal v.  Visvanathaswami  Naicker

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(2).   There  it was held that in a  competition  between  a widow  and  an  illegitimate  son to  the  property  of  his putative father, the illegitimate son takes half of the (1) (1890) L.R. 17 I.A. 128. (2) (1922) L.R. 50 I.A. 32. 353 property and the widow the other half.  Sir Lawrence Jenkins observed at p. 37 thus:               "Here the contest is between the  illegitimate               son and the widow, and though the widow is not               named in the text it is well settled that as a               preferential heir to the daughter’s son she is               included  among  those  who  share  with   the               illegitimate son, and it would serve no useful               purpose to speculate why she was not mentioned               in the text." The  status of the illegitimate son was subject  of  further scrutiny  by  the  Privy Council in  Vellaiyappa  Chetty  v. Natarajan  (1).  There the question arose in the context  of an  illegitimate  son’s right to maintenance  from  a  joint family  property after the death of his father who  left  no separate property.  The Judicial Committee held that he  was entitled as a member of the family to maintenance out of the joint  family property in the hands of the collaterals  with whom the father was joint.  In dealing with the question  of status  of an illegitimate son, Sir Dinshah Mulla,  speaking for  the  Court, after considering the  relevant  Hindu  Law texts and decisions, arrived at the following conclusion  at p. 15:               "On a consideration of the texts and the cases               on the subject their Lordships are of  opinion               that  the  illegitimate son of a  Sudra  by  a               continuous concubine has the status of a  son,               and  that he is a member of the  family;  that               the  share of inheritance given to him is  not               merely   in  lieu  of  maintenance,   but   in               recognition    of    his    status    as     a               son;.................. It  is  not  necessary  to  multiply  decisions.   The   law pertaining  to the right of inheritance of  an  illegitimate son to his putative father’s; self-acquired property may  be stated,  thus: An illegitimate son has the status of  a  son under  the Hindu Law and he is a member of the family.   But his  rights are limited compared to those of a son  born  in wedlock.  He has no right by birth and, therefore, he cannot demand  partition during his father’s lifetime.  During  the lifetime of his father, the law allows the illegitimate  son to take (1)  (1931) I.L. R. 55 Mad. 1. 45 354 only  such  share as his father may give him.   But  on  his father’s death, he takes his father’s self-acquired property along with the legitimate son and in case the legitimate son dies, he takes the entire property by survivorship.  Even if there  is no legitimate son, the illegitimate son  would  be entitled to a moiety only of his father’s estate when  there is  a  widow, daughter or daughter’s son of  the  last  male holder.   In the absence of any one of the three  heirs,  he succeeds  to  the  entire estate of his  father.   From  the premises it follows that an illegitimate son, except to  the extent  circumscribed  by  the.  Hindu Law  texts,  has  the status of a son and is heir to the self-acquired property of his  putative father.  If that be his undoubted right  under the  Hindu Law, on what principle can he be deprived of  his

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right  of  succession to the other moiety  of  his  father’s property after the death of the widow?  Under the Hindu Law, the death of the widow opens inheritance to the reversioners and  the  nearest heir at the time to the  last  full  owner becomes entitled to possession.  When the succession  opens, in  a  competition  between an illegitimate  son  and  other reversioners,  the  illegitimate son is certainly  a  nearer heir  to the last male holder than the  other  reversioners. If he was the nearest heir only yielding half a share to the widow  at the time of the death of his putative father,  how does  he cease to be one by the intervention of the  widow’s estate?   As  on the death of the widow the  estate  reverts back to the last male holder, the succession shall be traced to  him,  and,  if so traced, the  illegitimate  son  has  a preferential claim over all other reversioners.  In  Mayne’s Hindu Law, 11th edn., this position has been controverted in the following manner at p. 637:               "The  illegitimate Bon, though he inherits  on               the  death of his putative father, along  with               or   in  default  of  male  issue,  widow   or               daughter,  cannot  come in as  a  reversionary               heir on the death of the widow or daughter, as               he  is  undoubtedly neither a  sagotra  nor  a               bhinnagotra  sapinda of the last,  male-holder               within the text of Manu." We regret our inability to accept this proposition. 355 for, if accepted, we would be speaking in two voices.   Once it  is  established that for the purpose  of  succession  an illegitimate son of a Sudra has the status of a son and that he  is entitled to succeed to his putative  father’s  entire self-acquired  property  in  the absence of  a  son,  widow, daughter  or daughter’s son and to a share along with  them, we cannot see any escape from the consequential and  logical position  that he shall be entitled to succeed to the  other half  share when succession opens after the  widow’s  death. The intervention of the widow only postpones the opening  of succession to the extent of half share but it cannot  divert the  succession through a different channel, for she  cannot constitute  herself  a new stock of  descent.   The  opinion expressed in Mayne’s Hindu Law is sought to be supported  by the  author  by reference to a decision of the  Madras  High Court in Karuppayee Ammal v. Ramaswami (1).  But a reference to  that  judgment shows that no such proposition  has  been laid  down therein.  There the facts were that on the  death of  a  sudra, the last male owner of an  estate,  his  widow succeeded  to a moiety thereof and his illegitimate  son  to the  other moiety; the widow then died leaving behind her  a son  of the daughter of the last male owner and the  illegi- timate son above mentioned.  The Madras High Court held that the  daughter’s  son  was entitled to the  moiety  that  had vested  in  the  widow  and the  illegitimate  son  was  not entitled  to  any  portion thereof.   The  reason  for  that conclusion is found at p. 868 and it is:               "The  principle  underlying  the  doctrine  of               reverter  referred to is that the  last  male-               holder’s  estate is inherited by  females  who               have no free right of alienation and who  hold               a  peculiar  kind of  estate  called  "woman’s               estate"  and on whose death the then  heir  of               the  last  male-holder succeeds  to  the  last               male-holder’s  estate.  From its very  nature,               the doctrine could not apply legitimately to a               case  where  the  last  male-holder’s   estate               vested  on his death not in a female heir  but

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             in  a  male heir also.  In such  a  case,  the               doctrine as such would not strictly apply, nor               has  it been, so far as we are aware,  applied               to such a case." (1)  (1932) I.L.R. 55 Mad. 856. 356 The  reason of the decision is therefore clear and  that  is when  a daughter’s son succeeds to an estate, there   is  no further  scope  for  the  application  of  the  doctrine  of reverter.   The  learned  Judges  expressly  left  open  the present  question when they said, "We are not now  concerned with the question as to what would become of the property if the  last of the daughters died without leaving  a  daughter son,   in  such  circumstances".   This   decision   cannot, therefore, be invoked in support of the contention that in a case where the doctrine of reverter applies the illegitimate son  is  excluded from succession.  On the other  hand,  the Nagpur  High  Court in Bhagwantrao v. Punjaram  (1)  rightly came  to the conclusion that where on a partition between  a legitimate and an illegitimate son, the widow was allotted a share,  on her death the illegitimate son was entitled to  a share  in  the property.  We, therefore, hold  that  on  the death of the widow, the illegitimate son, the father of  the first  respondent herein, succeeded to the other half  share of the estate of his putative father Raja Ajit Singh. It  is. next contended that the widows acquired an  absolute interest  in  the  estate of Raja.  Ajit  Singh  by  adverse possession  and, therefore, the property would devolve;  not on  Raja Ajit Singh’s heirs but on the heirs of the  widows. On the question of adverse possession also, both the  courts below have held against the appellant.  But learned  counsel argued that in the circumstances of this case the said find- ing was a mixed question of fact and law.  It was said  that the  courts below missed the point that the Court of  Wards, representing  the  widows,  held  the  Estate  adversely  to Ramraghuraj  Singh  in  respect  of  his  half  share   and, therefore,  the fact that during its management  the  widows did not deny the title of Ramraghuraj Singh or the fact that they  admitted  his title could not affect the  question  of adverse  possession.  Assuming that learned counsel for  the appellant was correct in his contention, we fail to see  how the  said legal position would advance the appellants  case, for the Court of Wards admittedly managed only the (1)  I.L.R. 1938 Nag. 255. 357 widows’  limited  estate  and  it is not  the  case  of  the appellant that the Court of Wards acquired on behalf of  the widows an absolute interest in respect of the half share  of Ramraghuraj  Singh in the suit properties.   The  plaintiffs themselves  claimed to hereversioners of Raja Ajit Singh  on the  ground that the succession to him opened out  when  the widows  died; and if their contention be  accepted,  namely, that the widows acquired an absolute interest in half of the property, they would be non-suited in respect thereof on the simple  ground  that  their  suit was  not  to  recover  the property  as  the  heirs of the widows.   But,  as  we  have pointed  out,  the  widows would have acquired  a  title  by adverse  possession in respect of the share  of  Ramraghuraj Singh  only in their capacity as owners of a limited  estate i.e., in regard to their half share they held it as  widow’s estate and in respect of the other half-share of Ramraghuraj Singh  they  acquired a right by adverse possession  only  a limited  estate  therein.   The result would  be,  when  the widows died the succession to the estate of Raja Ajit  Singh would  open  out and the illegitimate son,  as  the  nearest

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heir,  would succeed to the entire estate.   We,  therefore, reject this contention. In  the  result,  the appeal fails and  is  dismissed.   The respondent  will not get any costs as the Advocate  for  the respondent  is  absent in ’the Court when  the  judgment  is being delivered.                                     Appeal dismissed. 358