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Hindu law–Illegitimate son of Sudra–Right to demand partition of separate property of father. =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. =1952 AIR 225, 1952SCR 869, , ,

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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 lawIllegitimate 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
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
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
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;
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
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.

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