JUDGMENT Banerji and Aikman, JJ.
1. The appellant brought the suit out of which this appeal has arisen for recovery of certain sums of money and for possession of a grove and some moveable property alleged to have formed the separate estate of Raja Lingraj, a legitimate son of the ex-king of Coorg.
2. Raja Lingraj died on the 16th of January 1874, leaving two widows, Rani Deo Amma and Rani Chin Amma. The latter died shortly afterwards. The former took possession of her husband's estate, and continued in possession till her death on the 21st of May 1891. She devised the estate by will to the predecessor in title of the defendant, who has obtained probate of the will.
3. The property claimed consists of Government Promissory Notes for Rs. 31,000 in deposit in the Bank of Bengal at Benares, Rs. 20,000 deposited with the Maharaja of Vizianagram, withdrawn by the defendant, articles of furniture of the value of Rs. 1,000, and a grove valued at Rs. 1,000.
4. The plaintiff is one of the sons of the ex-king of Coorg by a lady alleged by the defendant to have been one of the'concubines of the king. The plaintiff, however, claims to be of legitimate descent and to be a half-brother of the deceased Raja Lingraj, and as such his legal heir under the Hindu law. As the parties are admittedly Sudras governed by the Mitakshara law, it is further claimed on behalf of the plaintiff that even if he is illegitimate he is entitled to inherit the estate of Raja Lingraj as a collateral heir.
5. The claim was resisted on two grounds; first, that the plaintiff being an illegitimate son of his father could not, under the Hindu law, inherit the separate estate of a legitimate son of his father; and, secondly, that the money and moveable property claimed did not form part of Raja Lingraj's estate, but belonged solely to Rani Deo Amma.
6. The lower Court has dismissed the claim on the first of the above grounds, and has expressed no opinion as to the other.
7. The learned advocate for the plaintiff who has preferred this appeal has frankly conceded that he is unable to support the plea of legitimacy. It appears that the ex-king of Coorg died in England, and upon his death a suit was filed in regard to his estate in the Court of Chanoery. That Court declared the present plaintiff and other sons of the king similarly circumstanced to be illegitimate sons, and made a decree dividing the estate between them and Raja Lingraj, the legitimate son. There oan be no question therefore that the plaintiff is an illegitimate son of his father.
8. It has been held in this Court in Sarasuti v. Mannu (1879) I.L.R. 2 All. 134, that the son of a continuous concubine is a dasi putra (son begotten on a female slave), to whom the rule of succession laid down in chapter I, section XII of the Mitakshara applies. The plaintiff is therefore a dasi putra within the meaning of section XII.
9. It is stated by the author of the Mitakshara in j 1 of that section that Yajnavalkya " delivered a speoial rule concerning the partition of a Sudra's goods"in the following terms:--"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 brother may inherit the whole property in default of daughter's sons." (vv. 134 and 135). According to this rule, which is interpreted by the author of the Mitakshara in § 2, an illegitimate son of a Sudra inherits a part of his father's estate jointly with the legitimate son of his father, and it is by virtue of this rule that the plaintiff obtained a share out of his father's estate under the decree of the Court of Chancery. It has been held by their Lordships of the Privy Council in Jogendra Bhupati Hurro Chundra Mahapatra v. Nityanand Man Singh (1890) I.L.R. 18 Cal. 151, affirming the decision of the Calcutta High Court in the same case, and approving the judgment of the Bombay High Court in Sadu v. Baiza (1878) I.L.R. 4 Bom. 37, that where property was jointly inherited from their father by the son of a wedded wife and an illegitimate son, and was held jointly by them, the rule of survivorship applies, and upon the death of the legitimate son the property goes to the illegitimate son by right of survivorship. Had the property claimed in this suit been property which the plaintiff and the1 deceased Raja Lingraj had inherited jointly from their father and held as undivided property, we should have been bound to hold, upon the ruling of their Lordships of the Privy Council, that the plaintiff was entitled to it. The property in dispute in this case is, however, admitted to be the separate property of Lingraj, and the plaintiff claims it, not by right of succession to his father or by right of survivorship, but as heir to his legitimate brother, the deceased Lingraj. We have therefore to determine whether the plaintiff is, under the Mitakshara law, an heir to Raja Lingraj.
10. The special rule of succession of illegitimate sons among Sudras be which we have referred above, appears in chapter I of the Mitakshara, which deals with unobstructed heritage, that is, lineal inheritance. The plaintiff's claim is based upon the right of collateral inheritance, which is treated of in chapter II. In § 2, section I of that chapter, the order of succession on failure of sons " principal and secondary,"is thus stated:--"The wife and the daughters, also both parents, brothers likewise and their sons, gentiles, cognates, a pupil and a fellow student; on failure of the first among these the next in order is indeed heir to the estate of one who departed for heaven leaving no male issue. This rule extends to all (persons and) classes." No mention whatever is made in this chapter of illegitimate sons or persons who are entitled to inherit collaterally. On the contrary, we have in the 11th section of chapter I a text of Manu, that an illegitimate son, that is, the son of an unmarried woman, is not a collateral heir. With reference to the different classes of sons, it is laid down in that chapter as follows:
Section 30. Manu having premised two sets of six sons, declares the first six to be heirs and kinsmen and the last to be not heirs, but kinsmen. The true legitimate issue, the son of a wife, a son given, and one made by adoption, a son of concealed origin and one rejected (by his parents) are the six heirs and kinsmen. The son of an unmarried woman, the son of a pregnant bride, a son bought, a son by a twice married woman, and a son self-given, and a son by a Sudra woman are six, not heirs, but kinsmen.
Section 31. That must be expounded as signifying that the first six may take the heritage of their father's collateral kinsmen (sapindas and samanodacas) if there be no nearer heir, but not so the last six.
11. This is a distinct authority for holding that the illegitimate son is not a collateral heir. By an exceptional rule laid down in section XII of chapter I of the Mitakshara on the authority of Yajnavalkya he takes only his father's estate by right of inheritance, and according to their Lordships of the Privy Council he does so by right of survivorship also. But there is no authority for holding that he succeeds to the estate of collaterals as heir. Had it been intended to confer on him the right of collateral succession in the same way that the right of lineal succession has been bestowed on him, we should have expected a similar rule in chapter II, as an exception to the general rule, in the case of Sudras. The enumeration of heirs in that chapter is no doubt not exhaustive, but the rule which guides collateral succession is based on the text of Manu that; "to the nearest sapinda the inheritance next belongs." As sapinda relationship pre-supposes a lawful marriage, an illegitimate son cannot come within the category of sapindas so as to have a right of succession collaterally. He cannot be ranked as a brother within the meaning of section IV or of § 2 of section I. The brothers referred to in chapter I, Section XII § 2, are sons of the wedded wife of a Sudra. The brothers referred to in the first portion of 5 1 are also brothers of the same description. (See Virmitrodaya, Sarkar's Translation, p. 130). In the last clause of that placitum it is no doubt said that the son of a female slave " who has no 'brothers' may inherit the whole property in default of daughter's sons "; but there the word seems to have been used in its usual signification, an illegitimate son of the father being in one sense the brother of a legitimate son. As such brother he succeeds to the father lineally and by survivorship under the exceptional rule laid down in Section XII, but there is no authority for holding that he can succeed collaterally to the separate estate of his legitimate brother. The authority of Manu and the author of the Mitakshara is, as has been pointed out above, the other way. To the same effect is the opinion of writers on Hindu law. In W.H. Macnaghten's Principles and Precedents of Hindu Law it is stated, at p. 15, that there is "no law admitting the son of a Sudra by a female slave to share the estate of collaterals. West and Buhler express the opinion that " illegitimates inherit collaterally only by caste custom " (p. 83) and Mayne in his Hindu Law and Usage says, in paragraph 508, that " illegitimate sons can only take to their father's estate. They have no claim to inherit to collaterals." The authority of decided cases, such as we have on the subject, is also to [the same effect. In Nissar Murtojah v. Kuwar Dhunwunt Roy (1863) Marshall, p. 609, and in Krishnayyan v. Muttusami (1883) I.L.R. 7 Mad. 407, it was held that illegitimate sons cannot succeed collaterally, and we have not been referred to any authority in which a contrary view was adopted. The learned Counsel for the appellant has urged that the decision of the Privy Council in the case to which we have referred above must be held to be conclusive on the point and to have finally decided it in favour of the appellant's contention. As we have pointed out above, all that their Lordships held was that an illegitimate son succeeds by right of survivorship to the paternal estate which jointly passed to him and his legitimate brother. The question of collateral succession was neither raised nor considered, nor was it decided, So far as the illegitimate son's right of survivorship goes, the ruling of their Lordships must be regarded as conclusive. But the question which we have to decide in this case was not raised before their Lordships and was not decided. In the case of Sadu v. Baiza (l878) I.L.R. 4 Bom., 37, Nanabhai Haridas, J., advisedly abstained from deciding that question. We see no reason therefore to extend the operation of the ruling of the Privy Council beyond what was actually decided in the case with which their Lordships were dealing. In Sadu v. Baiza, Sir Michael Westeopp, C.J., observed that a legitimate son and an illegitimate son who had jointly inherited the estate of their father should be regarded as joint tenants and not as tenants in common, and that therefore the rule of survivorship would apply to them. This view, it seems, was approved by the Lords of the Privy Council. In a case like this where the legitimate son and the illegitimate son were separate that rule can have no application, It does not follow from the fact that a person is entitled to succeed by right of survivorship that he is an heir and may inherit collaterally also, although the converse proposition may be true.
12. The learned advocate for the appellant referred us to a passage on p. 944 of Sarvadhikari's Tagore Lectures on the Hindu Law of Inheritance, where the author expresses the opinion that the son of a dasi should " by all the analogies of Hindu law and the plain rules of equity and justice" be declared entitled to the property of collaterals. The analogy to which he refers is that of an adopted son; but it must be observed that by an express text of Manu an adopted son is declared " entitled to take the heritage of his father's collateral kinsmen." (See Mitakshara, Chapter I, Section XII, § § 30 and 31), For the above reasons we are of opinion that the plaintiff appellant has been rightly held not to be the heir of Raja Lingraj, deceased, and his suit has been properly dismissed. We dismiss the appeal with costs.