Under Smriti Law:
According to a text of Manu. “Even a son begotten by a Sudra on a dasi may take a share by the father’s choice. But if the father be dead, brothers should make him partaker of the moiety of a share (i.e. half-share) and one who has no brothers may inherit the whole property in default of daughter’s sons”.
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The Mitakshara explains the position of the illegitimate son as follows:
ADVERTISEMENTS:
1. Among the regenerate classes the illegitimate son is entitled only to maintenance.
2. Among Sudras, on the death of the putative father leaving legitimate sons, the illegitimate son should be allotted half of the amount of one brother’s allotment. Even if there are no legitimate sons, where there are daughters, or daughter’s sons he takes only a half share.
3. When there are no legitimate sons, daughters or daughter’s sons, the illegitimate son takes the entire property.
It may be observed that the Mitakshara does not say anything about a competition between the illegitimate son and the widow of the putative father. But the Privy Council held in Kamalammal v. Viswanathaswami, 46 Mad. 167 (PC), that in such a case also the illegitimate son takes a half-share only.
ADVERTISEMENTS:
This is correct because the widow is a nearer heir than the daughter and daughter’s sons and so the position of the illegitimate son cannot be higher in the presence of the widow than what it is in the presence of the daughter or daughter’s son. As the Privy Council observed: “It would serve no useful purpose to speculate why she was not mentioned in the text”.
If the widow and the illegitimate son of the deceased each takes a half- share, and subsequently the widow who had taken a limited estate dies the illegitimate son succeeds to that half-share also. This was decided by the Supreme Court in Singhai Ajit Kumar v. Vjayar Singh, 1961 (2) SCJ 680.
In Kamalammal v. Viswanathaswami, 46 Mad. 167 (PC), the Privy Council held that the illegitimate son takes 1/2 of what he would have taken if he had been a legitimate son. This is also the view of the Supreme Court in Gur Narain v. Gur Tahal Das, AIR 1952 SC 225: 1952 (3) SCR 869. It may be noted that the illegitimate son whose share is thus recognised is the son by a Dasi i.e. a permanently and exclusively kept concubine. She may be a Brahmin Woman. Mongal Chandra v. Dhirendra, AIR 1976 Cal. 129.
Under the Act:
Under the Hindu Succession Act, 1956s. 3 (i) (j) provide that the relationship contemplated by the Act is only legitimate relationship. So the illegitimate son has no place in the scheme of inheritance to his putative father.
ADVERTISEMENTS:
This is so irrespective of the caste to which the putative father belongs. As a result of this, uniformity is produced, though the rights of the illegitimate son have been adversely affected to some extent thereby. Daddo V Atmaram v. Raghunath, AIR 1979 Bom. 176.