Gur Narain Das And Another vs Gur Tahal Das And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 104 of 1050

Decision Date: 16 May 1952

Coram: Saiyid Fazal Ali, Vivian Bose

In this matter, the Supreme Court of India rendered its judgment on 16 May 1952. The case was titled Gur Narain Das and Another versus Gur Tahal Das and Others. The bench that heard the appeal comprised Justice Saiyid Fazal Ali and Justice Vivian Bose. The petitioners were named as Gur Narain Das and another individual, while the respondents were identified as Gur Tahal Das and others. The judgment was recorded under the citation 1952 AIR 225 and 1952 SCR 869. According to the citation information, the legal issue concerned a provision of Hindu law relating to an illegitimate son of a Sudra and his right to demand partition of his father’s separate property. The headnote summarized the Court’s position by stating that, although an illegitimate son of a Sudra could not seek partition during his father’s lifetime, he was permitted to do so after the father’s death if the father had been separate from his collaterals, had left separate property, and had legitimate sons. The appeal was listed as Civil Appeal No. 104 of 1050, originating from a judgment and decree dated 9 April 1947 issued by the High Court of Judicature at Patna (judges Manohar Lal and Mukherjee). That judgment itself arose from a first appeal dated 23 December 1943, which was rendered by the Court of the First Additional Subordinate Judge, Gaya, in Suit No. 4 of 1941. Counsel for the appellants appeared as the representative, while counsel for the legal representative of respondent No. 4 was also present.

The substantive dispute stemmed from a suit for partition that the trial court had dismissed but which the Patna High Court subsequently upheld on appeal. The factual background was as follows: a man named Rambilas Das had two sons, Budparkash Das and Nandkishore Das. Nandkishore Das fathered several children, among whom the plaintiff, Gurtahl Das, was described as an illegitimate son. The plaintiff instituted the suit against four defendants: Gurnarayan Das and Jai Narayan Das, who were acknowledged sons of Nandkishore Das; Shibtahl Das, who was alleged to be another illegitimate son of Nandkishore Das; and Mrs. Rambholi Kuer, who was the wife of Nanaksharan Das, a son of Nandkishore Das. During the pendency of the suit, a fifth person, Kuldip Das, entered the proceedings as an intervenor. He was identified as the son of the daughter of Budparkash Das, who was Nandkishore’s brother. After the death of the second defendant, Jai Narayan Das, his widow, Surat Kuer, was also brought on record. The plaintiff’s case asserted that Budparkash Das and Nandkishore Das had formed a joint Hindu family, and that Budparkash Das died without any male issue while still in a state of jointness with his brother Nandkishore Das. Consequently, the plaintiff argued, the entire joint family property should have devolved upon Nandkishore Das. Disagreements subsequently emerged regarding the management and enjoyment of the property among the plaintiff and the defendants, prompting the plaintiff to file the present suit for partition. In support of his claim, the plaintiff alleged that all parties belonged to the Sudra caste and were members of the Nanak Shai sect of Fakirs.

The plaintiff alleged that he and the third defendant, Shibtahl Das, were the illegitimate sons (dasiputras) of Nandkishore Das by a concubine, and that Jai Narayan Das as well as Gurnarayan Das were also dasiputras of Nandkishore Das by a different concubine. The suit was principally opposed by the first defendant, Gurnarayan Das, together with Mst. Surat Kuer. They advanced five principal objections. First, they contended that the suit could not be entertained as a suit for partition because the plaintiff had never been in possession of the lands over which he claimed a division. Second, they argued that the defendants’ family belonged to the Dwijas and not to the Sudras, and that an illegitimate son was barred from instituting a partition suit. Third, they maintained that the defendants did not constitute a joint Hindu family with the plaintiff and Shibtahl Das. Fourth, they asserted that Mst. Rambholi Kuer was not the widow of Nanaksharan Das. Fifth, they denied that the plaintiff and Shibtahl Das were sons of Nandkishore Das. In addition, Mst. Rambholi Kuer advanced the position that the parties were Dwijas and not Sudras. Defendant No. 5, Kuldip Das, echoed this view and further alleged that Budparkash Das was separate from Nandkishore Das, that although the properties had not been formally divided by metes and bounds, the produce had been shared equally, and that he, being the daughter’s son of Budparkash Das, was in possession of his share and could not be subjected to partition. Shibtahl Das, on the other hand, supported the plaintiff’s claim.

The trial court dismissed the suit, holding that (1) the plaintiff’s lack of joint possession of any of the properties rendered a partition suit untenable, (2) the parties were Sudras, (3) Budparkash Das and Nandkishore Das were joint and not separate, (4) the plaintiff had no cause of action, and (5) Shibtahl Das had failed to prove his descent from Nandkishore Das. The plaintiff appealed this decision to the High Court at Patna, while Kuldip Das filed a cross-objection challenging the finding that Budparkash Das was joint with his brother Nandkishore. The High Court reversed the trial court’s judgment and held that (1) the parties were Sudras and not Dwijas, (2) Budparkash Das died in a state of separation from his brother Nandkishore, and (3) a suit for declaration of title was unnecessary and the plaintiff’s deficiency in court-fee should not prevent the grant of appropriate relief. Both the High Court and the trial court concluded that defendants No. 1 and No. 2, Gurnarayan Das and Jai Narayan Das, were the legitimate sons of Nandkishore Das. Based on these findings, the High Court issued a preliminary decree directing that separate allotments of the property be made to the plaintiff and the defendants, expressly excluding Shibtahl Das. Before this Court, counsel for the first appellant contended that the lower courts’ finding that the parties were Sudras was erroneous and should be overturned.

In this case, the Court observed that the contention that the finding of Sudra status was incorrect could not succeed, because there was no satisfactory reason to disturb the well-established practice of not overturning concurrent findings of the trial court and the first appellate court. The Court noted that the determination that the parties belonged to the Sudra community was principally based on oral evidence, and that the learned Judges of the High Court, in reaching their conclusion, had not ignored the tests laid down in a series of authoritative decisions for ascertaining whether a person belonged to the regenerated community or to the Sudra community. The next issue that was examined carefully was whether Budparkash Das and Nand Kishore Das were joint owners or possessed separate interests. The two lower courts had expressed differing views on this point, but after a meticulous consideration of the evidence before the Court, the judges were inclined to agree with the High Court’s assessment. The High Court, having reviewed the entire evidentiary material, concluded that Budparkash Das died while he was in a state of separation from his brother Nand Kishore. To illustrate the reasoning, the Court quoted a substantial passage from the trial judge’s summation of the evidence on this question. The trial judge stated that oral testimony clearly showed that Budparkash lived in a separate house and received crops. The defendant, identified as Kuldip Das, had produced Exhibit B-2, a chaukidari receipt dated 1936 (Register No. 283), and Exhibit C-1, a copy of an assessment register (No. 284) in Budparkash’s name, which possibly indicated that Budparkash paid a separate chaukidari tax. The defendant also submitted several letters labeled A-1, A-5, A-4, A-6, A-10 and A-12, which demonstrated his relationship to the family and showed that grains and money were occasionally offered to him. However, none of these documents unequivocally proved that a partition had occurred between Budparkash and Nand Kishore, nor did they show that the defendant had taken possession of any property as Budparkash’s heir. Although some oral evidence supported the defendant’s case, the trial judge, after weighing all the material, concluded that the separation of Budparkash from Nand Kishore had not been proven. The defendant’s counsel argued that the circumstances, when viewed in light of the ruling reported in the Behar Report, Vol. 4 (1937-38) of the Privy Council at page 302, would favor the defendant because a defined share of Budparkash and Nand Kishore was recorded in the Khatyan (exhibits G1 and G2). The trial judge disagreed, noting that there was not even a scrap of paper showing that Budparkash, or subsequently Kuldip Das, had separately appropriated the usufruct of any property or that Budparkash had ever manifested an intention to separate. Consequently, the Court found that the evidence did not substantiate a legal separation between the brothers at the time of Budparkash’s death.

The Court noted that if the brothers had been truly separated, the surviving brother, identified as defendant No. 5, would have kept a detailed account book of the income he derived from the disputed lands, especially because he resided at a considerable distance from the property. The Court found that defendant No. 5 never seemed to take an active interest in the management of the lands, nor did he ever demand financial statements from those whom he claimed to be co-sharers. From the material presented, the Court summarized three factual points: first, the two brothers occupied different houses; second, each brother paid his own chaukidari (village watch) taxes; and third, Budparkash regularly received grains and cash from Nandkishore on various occasions. The trial judge had also recorded that the khatyans—exhibits G-1 and G-2—showed the specific shares allotted to each brother, but the printed version of these exhibits turned out to be merely rent-receipt forms. Because the original khatyan entries were not reproduced in print, the Court ordered the production of the original documents and discovered that the authentic entries, presented as exhibits F-1 and F-2, had been accurately reflected in the trial judge’s judgment. Consequently, the Court concluded that the findings it set out gave greater weight to the oral testimony supporting defendant No. 5 than to the evidence offered by the other parties, and therefore the High Court’s determination should be affirmed. The Court was particularly struck by several letters from the exhibit-A series, which both the trial court and the High Court had authenticated as genuine. Although the authenticity of these letters was contested before the Court, no satisfactory reason was found to overturn the lower courts’ findings. In letter A-10, dated 12 June 1934, Nandkishore Das wrote to Kuldip, stating that he was sending twenty-five maunds of rice, seven maunds of khesari and rupees seventy-five, and added that he possessed written accounts that would be explained when Kuldip arrived, allowing him to receive a fair settlement of his share. In another correspondence, letter A-12 dated 15 October 1936, Nandkishore again addressed Kuldip, alleging that he had repeatedly asked Kuldip to settle the account of his share, which Kuldip had refused to do. Nandkishore invited Kuldip to come and inspect the accounts, noting that he presently held no money but urging Kuldip to visit for a day so that the accounts could be balanced and any dues paid. The Court observed that if the brothers had truly been joint owners in the legal sense, there would have been no need to examine or adjust accounts, nor any reference to Kuldip’s share of produce or money. Accordingly, the Court accepted the conclusion drawn from the testimony of witnesses for defendant No. 5: although there was no formal partition marked by precise boundaries, the two brothers were effectively divided in status and enjoyed the usufruct of the properties according to their respective shares.

The Court observed that the two brothers had been divided in status and each had enjoyed the usufruct of the property in proportion to his respective share. On behalf of defendant No 5, several witnesses were examined and each testified, from personal knowledge, that the brothers resided in separate houses, kept separate households, and divided the produce of the property equally, each receiving one half. The Court found that these testimonies supported the High Court’s finding of a factual separation between the brothers and therefore affirmed that finding. The third issue raised by the appellants concerned whether the plaintiff was entitled solely to maintenance or also to a share in the estate left by the late Nandkishore Das. The Court turned to the legal position of an illegitimate son of a Sudra as laid down in Mitakshara Chapter 1, Section 12, which is titled “Rights of a son by a female slave, in the case of a Sudra’s estate.” The Privy Council, in Vellaiyappa v. Natarajan (1), had examined this passage and summarized the principle as follows: an illegitimate son born of a continuous concubine possesses the status of a son and is a member of the family; the inheritance share allotted to him is intended not merely as maintenance but as recognition of his sonly status; and where the father has died without separate property and without legitimate male issue, yet was a joint member with his collaterals, the illegitimate son may not demand a partition of the joint family property but is entitled, as a family member, to receive maintenance from that property. The Court agreed with this statement of law and added three further well-settled principles. First, an illegitimate son acquires no proprietary interest in his father’s estate by birth and consequently cannot demand partition against his father while the father is alive. Second, upon the father’s death the illegitimate son becomes a coparcener of the father’s separate estate together with any legitimate sons, enjoys a right of survivorship, and may enforce partition against the legitimate sons. Third, when partition is effected between a legitimate and an illegitimate son, the illegitimate son is entitled to only half of the share that a legitimate son would obtain. The Court noted that the second proposition is directly supported by a passage in the Mitakshara text stating that after the father’s demise, if there are sons of a wedded wife, the brothers must allow the son of the female slave to participate for half a share. Accordingly, if the illegitimate son is a coparcener alongside the legitimate son, he is necessarily entitled to demand partition against the legitimate son, even though the illegitimate son cannot enforce partition during the father’s lifetime.

The Court observed that an illegitimate son cannot claim partition while the father is alive, as a general principle. However, when the father possessed separate property and left legitimate sons, the illegitimate son is permitted to seek partition of the father’s separate estate. The appellants argued that the plaintiff, not being in possession of the disputed properties, lacked standing to maintain a partition suit. The Court rejected this contention, holding that the plaintiff is undeniably a co-sharer in the properties and, absent a pleading and proof of exclusion or ouster, is entitled to partition. Consequently, the Court found that all the points raised by the appellants failed, although a modification of the High Court decree was required in one respect. To determine the necessary modification, the Court examined statements made by defendant No. 5 in paragraphs 8 and 11 of his written statement. Paragraph 8 stated that the defendant holds a moiety share in the jagir and kasht lands. It also described that Mahanth Budh Parkash Das lived separately in the northern house allotted to him, while the southern portion was allotted to the thakhta of Nandkishore Das, whose smallest house was divided into two havelis. Paragraph 11 asserted that the defendant had no interest in the eight-anna share of the properties listed in schedules C and D, which pertained to jagir and kasht lands and rightfully belonged to Nandkishore Das. It further claimed that the defendant had no concern with the properties noted in those schedules. Although paragraph 11 was wordingly ambiguous, counsel for defendant No. 5 conceded before the Court that the defendant claimed no interest in any property except those specified in schedules C and D. Accordingly, the Court held that the decree should be altered to grant defendant No. 5 a share only in the properties set out in schedules C and D, while denying him any share in the properties listed in the remaining schedules. Subject to this modification, the Court affirmed the decree of the High Court, dismissed the appeal, and ordered that no costs be awarded. The appeal was dismissed, and the agents for the parties were recorded as Naunit Lal for the appellants and R.N. Sachthey for the legal representative of the fourth respondent.