Singhal Ajit Kumar & ANR Vs.
Ujayar Singh & Ors  INSC 102 (16 March 1961)
CITATION: 1961 AIR 1334 1962 SCR (1) 347
Property of father-Illegitimate son and widow inheriting half share each--Widow
dying-Illegitimate son, if entitled to succeed to widow's half.
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 selfacquired
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, distinguished.
Bhagwantrao v. Punjaram, I.L.R. 1938 Nag.
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
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
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
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
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 concubine age 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 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 brethren 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 (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
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 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
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
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
illegitimate 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 maleholder'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 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 finding 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 he reversionary 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 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.