http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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 113 872 Jai  Narayan  Das were the legitimate sons of  Nand  kishore

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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.