# Gur Narain Das and Another v. Gur Taha/ Das Qnd Others

- **Citation:** [1952] 1 S.C.R. 869
- **Court:** Supreme Court of India
- **Decided:** 1952
- **Case number:** Civil Appeal No. 104 of 1950
- **Bench:** SAIYID F AZL Au, VIVIAN Bos.F
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gur-narain-das-and-another-v-gur-taha-das-qnd-others-73
- **Pages:** 9

## Headnote

Hindu
law-Illegitimate son
of Sudra-Right to demand
partition of separate pr'Jperty of father.
Under Hindu law, though an illegimate son of . a Sudm
cannot enforce
partition
during
his
father's lifetime,
he
can
enforce partition after his father's death if the father was sepante from
hirs collaterals and has
~~ft separate property and
legitimate sons.
CIVIL
APPELLATE
JuRISDICTION : Civil Appeal
No.
104 of 1950.
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.
7-9 S.C. India/71
v.
Shri Badrinath
Temple·
Committee.
Mu~berjea 7.
1952
May 16.
1952
Gur Narain Das
and Another
v.
Gur Taha/ Das
Qnd Others.
Fazl Ali J.
870
SUPREME COURT REPORTS
[1952]
1952. May · 16. The Judgment of the Court was
delivered by
FAZL 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
Nandkishore Das. Nandkishore Das had several sons,
the plaintiffs, 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 of Nandkishore Das.
Another person, Kuldip Das, who was the daughter's
son of Nandkishore's
brother, Budparkash Das,
intervened in the suit after its institution and was impleaded as the fifth defendant. After the death of the
second defendant, Jai Narayan Das, his wife, Surat
Kuer, was brought on record.
The plaintilf's
case was that Budparkash Das and
Nandkishore Das formed a joint Hindu family,
and
that Budparkash Das died without any male issue in
a state of jointness with llis brother, Nandkishore,
with the result that the entire joint family
property
devolved on him. Subsequently, disputes 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
dasiputras of Nandkishore Das
by
a concubine, and
J ai Narayan Das and Gurnarayan Das were also dasiputras of Nandkishore by another concubine.
The suit was contested mainly by the first defendant
Gu.rnarayan 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
'
S.C.R.
SUPREME COURT REPORTS
871
in possession of the properties of which he claimed
partition, 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 jont Hindu family with the plaintiff
and Shibtahf 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
defendant No. 5, Kuldip Das, pleaded to the same effect
and further alleged that Budparkash Das was separate
from Nandkishore 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 su

## Text

•
'
S.C.R.
SUPREME COURT REPORTS
869
1952
the Sri Badrinath Temple Act. The other prayer of
the plaintiffs is rejected.
As the appeal succeeds in part and as it raised questions of general
importance
with
regard to which
there were longstanding disputes
between the parties,
we ... think that the proper order should be to direct
each party to bear his own costs in all the Courts.
The costs
of
the
defendant shall come out of the
temple funds.
Nar Hari Sastri
and Others
r· '
Appeal allowed zn part.
Agent for the appellants : . C. P. Lal.
Agent for the respondent : S. S. Sukla.
GUR NARAIN DAS AND ANOTHER
v.
GUR TAHAL DAS AND OTHERS
[ SAIYID F AZL Au and VIVIAN Bos.F. JJ.]
Hindu
law-Illegitimate son
of Sudra-Right to demand
partition of separate pr'Jperty of father.
Under Hindu law, though an illegimate son of . a Sudm
cannot enforce
partition
during
his
father's lifetime,
he
can
enforce partition after his father's death if the father was sepante from
hirs collaterals and has
~~ft separate property and
legitimate sons.
CIVIL
APPELLATE
JuRISDICTION : Civil Appeal
No.
104 of 1950.
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.
7-9 S.C. India/71
v.
Shri Badrinath
Temple·
Committee.
Mu~berjea 7.
1952
May 16.
1952
Gur Narain Das
and Another
v.
Gur Taha/ Das
Qnd Others.
Fazl Ali J.
870
SUPREME COURT REPORTS
[1952]
1952. May · 16. The Judgment of the Court was
delivered by
FAZL 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
Nandkishore Das. Nandkishore Das had several sons,
the plaintiffs, 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 of Nandkishore Das.
Another person, Kuldip Das, who was the daughter's
son of Nandkishore's
brother, Budparkash Das,
intervened in the suit after its institution and was impleaded as the fifth defendant. After the death of the
second defendant, Jai Narayan Das, his wife, Surat
Kuer, was brought on record.
The plaintilf's
case was that Budparkash Das and
Nandkishore Das formed a joint Hindu family,
and
that Budparkash Das died without any male issue in
a state of jointness with llis brother, Nandkishore,
with the result that the entire joint family
property
devolved on him. Subsequently, disputes 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
dasiputras of Nandkishore Das
by
a concubine, and
J ai Narayan Das and Gurnarayan Das were also dasiputras of Nandkishore by another concubine.
The suit was contested mainly by the first defendant
Gu.rnarayan 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
'
S.C.R.
SUPREME COURT REPORTS
871
in possession of the properties of which he claimed
partition, 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 jont Hindu family with the plaintiff
and Shibtahf 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
defendant No. 5, Kuldip Das, pleaded to the same effect
and further alleged that Budparkash Das was separate
from Nandkishore 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
dism~ssed 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 separate, ( 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
finding that
Budparkash was joint with hi:s brother,
Nandlcishore.
The High Court reversed the deci§jon of the trial court
and held (1) that the parli.es were
Sudras and not
Dwijas, (2} that Eudpark.ash died in a state of separation from his brother, Nandkishore, and (3) that no
suit for
declaration of title was necessary and the
plainti'ff•s failure to• pay sufficient court-fee should
not
stand in the
way of suitable
relief being granted to
""· him. B0th the High C0urt and the t~ial court found
that defendants Nos. 1 and1 Z, Gumarayan
Das
and
1952
Gur Narain D11s
and Anot.,,t!f"
v.
G#f' Tahal Du
and Oth~f'I.
Fazl Ali J.
1952
Gur Narain Das
and Another
.v.
Gur Tahal · Dti.f
and Others,
.Fazl Ali/.
872
SUPREME COURT REPORTS
[1952]
Jai Narayan Das, were the legitimate 1;ons of Nandkishore Das. On the
above findings,
the High Court
passed a preliminary
decree directing
that
separate
allotments of the
properties should be made to the
plaintiff and the defendants excepting Shibtahl Das.
It was contended before us on behal.f of the
first
appellant 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 welle$iablished !practice of this court of not
disturbing
concurrent finding 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 overlooked 1he 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 Dai; 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 inclined 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 fol:'.owing 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 Exhibii: 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. S has also filed
some
;
·.s.C.R.
SUPREME COURT REPORTS
873
. · 1952
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 Gur Narain Das
the defendants' family,
but also
that
grains and . and Another
. money were offered to him from time to time. But
. v.
none of these
documents
clearly show
that
there · Gur Tahal Das
. had been partition between Budparkash
and
Nand-
, .and Others.
kishme or that the
defendant
No. 5 ever came
in
possession
over
any
property,
as
being
the
heir of Budparkash. 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. Gl and
G2).
I am not prepared to agree with the learned
pleader on thi:s 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 ori 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
N andkishore from time to time. The trial judge has
also observed that the khatyans, exhibits G 1 arid G 2
record the defined shares of the two brothers, 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
. Fazl Ali/.
1952
Gur Narain Das
and Another.
v.
Gur Taha! Oas
•nd Others.
Faz! Ali/.
874
SUPREME COURT REPORTS
[1952]
F 2, have been correctly not:cd 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 find•
ings of the trial judge and the High Court.
In one of
these letters exhibit
A-10, Nandkishore
Das
wntmg
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 an(1ther :letter, exhibit A-12,
which
was
written by
Nandkishore
to
Kuldip on
the
15th 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
prOiper 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 defendant No. 5, who have stated from their
personal knowledge that the two brothers lived in
separate houses, were separate in mess and the produce
..
-
S.C.R.
SUPREME COURT REPORTS
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.
1952
Gur Narain Du
1md Anotl11:r
The third contention urged on behalf of the appelT.
1
1
h
.
h th
th
l . 'ff Gur Tahal Da;
ants re ates to
t e questlon w e er
e p amu
and Others
is entitled
only to
maintenance or to a share in the
·
properties left by Nandkishore Das.
The rights of an
Fa~l Ali /.
illegitimate son of a Sudra are considered in Mitakshara,
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 conclusions 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
1s
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
copatcener 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 thi:rdly, that on a partition 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.
(I) A.LR. 1931 P.C. 294.
1952
Gu,r Narai~ Dai
·and Another
v •.
Gur Tahal Das ·
and Others •.
Fazz'Ali /.
876.
SUPREME COURT REPORTS
[1952]
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, kt 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 legitimate 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
L,
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 behaif 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· an.cl ·proved, which is not the case
here, is enti.tled 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
wrfrten statement :
· "8. That this defendant
holds moiety share in
jagir and bsht 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 . · · · sniafiest
house
divided into 2 havelis.
'
I -'
:S.C.R.
SUPREME COURT REPORTS
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 entided 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.
THE STATE OF BOMBAY
ti.
VIRKUMAR GULABCHAND SHAH
[SAIYID FAzL Au and VIVIAN BosE JJ.]
Essential Supplies (Temporary Powers) Act (XX/V of 1946),
. ss. 2(a), 17(2)-Spices (Forward Contracts Prohibition) Order, 1946,
· els. 2, 3-Turmeric, whether "foodstuff"-Meaning of "foodstuff".
~
The term "foodstuff" is
ambiguous.
In one sense it has a
narrow meaning and is limited to articles which are eaten as
food
for
purposes
of nutrition and
nourishment and so would
• excl?de
condiments and
spices
such
as yeast, salt,
pepper,
bakmg powder and turmeric. In a wider sense it includes every-
. thing that goes into the preparation of food proper
(as under-
~ · stood in the narrow sense) to make it more
palatable
and
· digestible.
Whether the term is used in a particular statute in
i its wider or narrower sense cannot be answered in the abstract
1952
Gur Narain Das
and Anothdv.
Gur Tahal Das
and Others.
Fazl Ali/.
1952.
May, 27.