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PETITIONER:

GUR NARAIN DAS AND ANOTHER

Vs.

RESPONDENT:

GUR TAHAL DAS AND OTHERS

DATE OF JUDGMENT:

16/05/1952

BENCH:

FAZAL ALI, SAIYID

BENCH:

FAZAL ALI, SAIYID

BOSE, VIVIAN

CITATION:

1952 AIR 225 1952 SCR 869

CITATOR INFO :

R 1965 SC1970 (3)

ACT:

Hindu law--Illegitimate son of Sudra--Right to demand

partition of separate property of father.

HEADNOTE:

Under Hindu law, though an illegitimate son of a Sudra

cannot enforce partition during his father's lifetime, he

can enforce partition after his father's death if the father

was separate from his collaterals and has left separate

property and legitimate sons.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 104 of

1050.

Appeal from a judgment and decree dated the 9th April,

1947, of the High Court of Judicature at Patna (Manohar Lal

and Mukherjee JJ.) in First Appeal No. 68 of 1944 arising

out of judgment and decree dated the 23rd December, 1943, of

the Court of the First Additional Subordinate Judge, Gaya,

in Suit No. 4 of 1941.

Gurbachan Singh (Manohar Lal Sachdev, with him) for the

appellants.

S.B. Jathar for the legal representative of respondent

No. 4.

870

1952. May 16. The Judgment of the Court was delivered

by.

FAZAL ALI J.--This appeal arises out of a suit for

partition which was dismissed by the trial court but was

decreed by the High Court of Patna on appeal. The material

facts of the case are briefly as follows:-

One Rambilas Das had 2 sons, Budparkash Das and Nandki-

shore Das Nandkishore Das had several sons, the plaintiff,

Gurtahl Das being one of his illegitimate sons. The present

suit was brought by Gurtahl Das against 4 persons, namely,

Gurnarayan Das and Jai Narayan Das, sons of Nandkishore Das,

Shibtahl Das, who was alleged to be one of the illegitimate

sons of Nandkishore Das, and Mst. Rambholi Kuer, wife of

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Nanaksharan Das, one of the sons off Nandkishore Das. Anoth-

er person, Kuldip Das, who was the daughter's son of Nandki-

shore's brother, Budparkash Das, intervened in the suit

after its institution and was impleaded as the fifth defend-

ant. After the death of the second defendant, Jai Narayan

Das, his wife, Surat Kuer, was brought on record.

The plaintiff's case was that Budparkash Das and Nandki-

shoreDas formed a joint Hindu .family, and that Budparkash

Das died without any male issue in a state of jointness with

his brother, Nandkishore, with the result that the entire

joint family property devolved on him. Subsequently, dis-

putes arose regarding the management and enjoyment of the

properties among the plaintiff and the defendants, which

compelled the plaintiff to institute the present suit for

partition. The plaintiff alleged that the parties were

Sudras and belonged to the Nanak Shai sect of Fakirs, and

that he and the third defendant, Shibtahl Das, were dasipu-

tras of Nandkishore Das by a concubine, and Jai Narayan Das

and Gurnarayan Das were also dasiputras of Nandkishore by

another concubine.

The suit was contested mainly by the first defendant,

Gurnarayan Das, and Mst. Surat Kuer, on the following pleas

:--firstly, that the suit was not maintainable as a suit for

partition, because the plaintiff was never

871

in possession of the properties of which he claimed parti-

tion, secondly that the family of the defendants were not

Sudras but Dwijas and an illegitimate son could not sue for

partition, thirdly that the defendants did not form a joint

Hindu family with the plaintiff and Shibtahl Das, fourthly

that Mst. Rambholi Kuer was not the widow of Nanaksharan

Das, and fifthly that the plaintiff and Shibtahl Das were

not sons of Nandkishore Das. The case of Mst. Rambholi Kuer

was that the parties were Dwijas and not Sudras, and defend-

ant No. 5, Kuldip Das, pleaded to the same effect and fur-

ther alleged that Budparkash Das was separate from Nandki-

shore Das, that although they did not divide the properties

by metes and bounds, they used to divide the produce half

and half, and that he was in possession of his share of the

properties as the daughter's son of Budparkash Das and they

could not be made the subject of partition. Shibtahl Das

supported the claim of the plaintiff.

The trial court dismissed the suit, holding, among other

things, (1) that the plaintiff not being in joint possession

of any of the properties, the suit for partition was not

maintainable, (2) that the parties were Sudras, (3) that

Budparkash Das and Nandkishore Das were joint and not sepa-

rate, (4) that the plaintiff had no cause of action, and (5)

that Shibtahl Das had not proved that he was the son of

Nandkishore. Against the decision of the trial court, the

plaintiff preferred an appeal to the High Court at Patna,

and Kuldip Das filed a cross-objection contesting the find-

ing that Budparkash was joint with his brother, Nandkishore.

The High Court reversed the decision of the trial court and

held (1)that the parties were Sudras and not Dwijas, (2)

that Budparkash died in a state of separation from his

brother, Nandkishore, and (3) that no suit for declaration

of title was necessary and the plaintiff's failure to pay

sufficient court-fee should not stand in the way of suitable

relief being granted to him. Both the High Court and the

trial court found that defendants Nos. 1 and 2, Gurnarayan

Das and

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872

Jai Narayan Das were the legitimate sons of Nand kishore

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Das. On the above findings, the High Court passed a prelimi-

nary decree directing that separate allotments of the

properties should be made to the plaintiff and the defend-

ants excepting Shibtahl Das.

It was contended before us on behalf of the first appel-

lant that the finding of the courts below that the parties

were Sudras was not correct and should be set aside. This

contention must however fail, since we find no good

reason for departing from the wellestablished practice of

this court of not disturbing concurrent findings of the

trial court and the first appellate court. In the present

case, the finding that the parties are Sudras is largely

based on the oral evidence, and the learned Judges of the

High Court in arriving at their conclusion have not over-

looked the tests which have been laid down in a series of

authoritative decisions for determining the question whether

a person belongs to the regenerate community or to the Sudra

community.

The next question which was very seriously debated

before us was whether Budparkash Das and Nandkishore Das

were joint or separate. On this question, the two courts

below have expressed conflicting views, but on a careful

consideration of the evidence before us, we are in-

clined to agree with the learned Judges of the High Court,

who after reviewing the entire evidence have come to the

conclusion that Budparkash Das died in a state of separation

from Nandkishore. It will be material to quote here the

following extract from the judgment of the trial judge in

which he sums up the evidence on this question :-

"From the oral evidence on the record, this much is

quite clear that Budparkash lived in a separate house and

used to get crops. This defendant (defendant No. 5, Kuldip

Das) has also filed Exhibit B(2) chaukidari receipt for 1936

(Register No. 283) and Exhibit C 1 (copy of Assessment

Register showing No. 284 in the name of Budparkash) which

may go to show that possibly Budparkash was paying separate

chowkidari tax,-The defendant No. 5 has also filed some

873

letters marked A-1, A-5, A-4, A-6, A-10 and A-12, which not

only show that this defendant is related to the defendants'

family, but also that grains and money were offered to him

from time to time. But none of these documents clearly

show that there had been partition between Budparkash and

Nandkishore or that the defendant No. 5 ever came in

possession over any property, as being the heir of Bud-

parkash. Of course there is some oral evidence to support

him. But I do not think, on considering and weighing the

evidence that separation of Budparkash from Nandkishore has

been proved. The learned pleader for the defendant No, 5 has

urged that the circumstances considered in the light of the

ruling reported in Behar Report, Vol. 4 (1937-38) Privy

Council at p. 302, would support the defendant's case as

there was defined share of Budparkash and Nandkishore in the

Khatyan (exts. G1 and G2). I am not prepared to agree with

the learned pleader on this point, as there is not a scrap

of paper to show that Budparkash or even after him Kuldip

Das separately appropriated the usufruct of any property, or

ever Budparkash showed any intention of separation, I expect

that if Budparkash had separated, at least on his death the

defendant No. 5 would have maintained an account book of his

income from the properties in dispute, specially as he lived

at a distant place. He does not appear to have ever cared

to look after the property or demand accounts from his

alleged co-sharers."

This summary of the evidence shows firstly, that the two

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brothers lived in separate houses, secondly, that they paid

separate chaukidari taxes, and thirdly, that Budparkash used

to get grains and money from Nandkishore from time to time.

The trial judge has also observed that the khatyans, exhib-

its G 1 and G 2 record the defined shares of the two broth-

ers, but the printed record shows that exhibits G 1 and G 2

are mere rent-receipts. As the khatyan was not printed, we

sent for the original record and found that the entries in

the khatyan, which are exhibits F 1 and

874

F 2, have been correctly noted in the judgment of the trial

court. It seems to us therefore that the findings which we

have set out give greater support to the oral evidence

adduced on behalf of defendant No. 5 than to the evidence

adduced by the other parties, and that being so, we think

that the finding of the High Court must be upheld. We were

greatly impressed by several letters of exhibit-A series,

which have been found to be genuine by both the courts

below. The genuineness of the letters was attacked before

us, but we find no good reason for reversing the findings of

the trial judge and the High Court. In one of these let-

ters, exhibit A-10, Nandkishore Das writing to Kuldip on the

12th June, 1934, states that he was sending 25 maunds of

rice, 7 maunds of khesari and rupees seventy-five and then

adds: "I have got with me all the accounts written,

which will be explained when you will come and you

will render a just account of your share when you come".

In another letter, exhibit A-12, which was written by

Nandkishore to Kuldip on the I5th October, 1936, the former

states: "I wrote to you several times to adjust account of

your share, but you did not do so up till now. I write to

you to come and examine the account of your share. I have

not got money now. If you have got time, then come for a

day and have the account adjusted and take what may be found

due to you". It seems to us that if the parties were really

joint in the legal sense of the term, there was no question

of examining the accounts and adjusting them, and there

would have been no reference to the share of Kuldip in the

produce or the money collected. The proper conclusion to be

arrived at is, as the witnesses for defendant No. 5 have

stated, that though there was no partition by metes and

bounds, the two brothers were divided in status and enjoyed

the usufruct of the properties according to their respective

shares. Several witnesses were examined on behalf of de-

fendant No. 5, who have stated from their personal knowledge

that the two brothers lived in separate houses, were sepa-

rate in mess and the produce

875

was divided between them half and half. It seems to us that

the finding of the High Court as to the separation of the

two brothers must be upheld.

The third contention urged on behalf of the appellants

relates to the question whether the plaintiff is entitled

only to maintenance or to a share in the properties left by

Nandkishore Das. The rights of an illegitimate son of a

Sudra are considered in Mitaksbara Ch. 1, S. 12, which is

headed "Rights of a son by a female slave, in the case of a

Sudra's estate". This text was fully considered by the

Privy Council in Vellaiyappa v. Natarajan(1) and the conclu-

sions derived therefrom were summarized as follows :--

"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;

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that where the father has left no separate property and no

legitimate son, but was joint with his collaterals, the

illegitimate son is not entitled to demand a partition of

the joint family property in their hands, but is entitled as

a member of the family to maintenance out of that property."

This statement of the law, with which we agree, may be

supplemented by three other well-settled principles, these

being firstly, that the illegitimate son does not acquire by

birth any interest in his father's estate and he cannot

therefore demand partition against his father during the

latter's lifetime; secondly, that on his father's death, the

illegitimate son succeeds as a coparcener to the separate

estate of the father along with the legitimate son(s) with a

right of survivorship and is entitled to enforce partition

against the legitimate son(s); and thirdly, that on a parti-

tion between a legitimate and an illegitimate son, the

illegitimate son takes only one-half of What he would have

taken if he was a legitimate son.

(1) A.I.R. 1931 P.C. 294.

876

It seems to us that the second proposition enunciated

above follows from the following passage in the Mitakshara

text :--

"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."

If therefore the illegitimate son is a coparcener with

the legitimate son of his father, it must necessarily follow

that he is entitled to demand partition against the legiti-

mate son. There can be no doubt that though the illegitimate

son cannot enforce partition during the father's lifetime

and though he is not entitled to demand partition where the

father has left no separate property and no legitimate son

but was joint with his collaterals, he can enforce partition

in a case like the present, where the father was separate

from his collaterals and has left separate property and

legitimate

sons.

The last point put forward on behalf of the appellants

was that the plaintiff not being in possession of the

properties which are the subject of the suit, he cannot

maintain a suit for partition. This contention cannot

prevail, because the plaintiff is undoubtedly a cosharer in

the properties and unless exclusion and ouster are pleaded

and proved, which is not the case here, is entitled to

partition.

Thus, all the points urged on behalf of the appellants

fail, but, in one respect, the decree of the High Court must

be modified. To appreciate this, reference will have to be

made to the following statements made by defendant No. 5 in

paragraphs 8 and 11 of his written statement:

"8. That this defendant holds moiety share in jagir and

kasht lands. Mahanth Budh Parkash Das was living separately

in the northern house allotted to him and the southern

portion was allotted to the thakhta of Nandkishore Das, the

smallest house divided into 2 havelis.

877

11. That this defendant has nothing to do with the eight

annas interest in the properties given in schedule under

than C and D relating to jagir and kasht lands, which

rightfully belonged to Nandkishore Das and has no concern

with the properties noted in those schedules."

Paragraph 11 is rather ambiguously worded, but it was

conceded before us by the counsel for defendant No. 5 that

the latter had no claim to any interest in the properties

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set out in schedules other than schedules C and D. Such

being the purport of paragraphs 8 and 11, the decree should

provide that defendant No. 5 will be entitled only to a

share in the properties set out in schedules C and D and

will have no share in the properties set out in the other

schedules. Subject to this modification, the decree of the

High Court is affirmed, and this appeal is dismissed. There

will be no order as to costs.

Appeal dismissed.

Agent for the appellants: Naunit Lal.

Agent for the legal representative of 4th respondent: R.N.

Sachthey.