Case: Gur Narain Das And Another Vs. Gur Tahal Das And Others

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 letters, Exhibit A-10 Nandkishore Das writing to Kuldip on the 12/06/1934, 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 15/10/1936, 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 taken 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 defendant No. 5, who have stated from their personal knowledge that the 2 brothers lived in separate houses, were separate in mess and the produce was divided between them half and half. It seems to us that the finding of the High Court as to the separation of the 2 brothers must be upheld.8. 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 Mitakshara, Ch. 1, S. 12, which is headed "Rights of a son by a female slave, in the case of a Sudras estate". This text was fully considered by the Privy Council in VELLAIYAPPA v. NATARAJAN 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 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 statements 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 fathers estate and he cannot therefore demand partition against his father during the latters lifetime, secondly that on his fathers 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 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.9. 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 legitimate son. There can be no doubt that though the illegitimate son cannot enforce partition during the fathers lifetime and though he is no 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.10. 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 co-sharer in the properties and unless exclusion and ouster are pleaded and proved, which is not the case here, is entitled to partition.11. 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 the defendant No. 5 in paragraph 3 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 Dass, the smallest house divided into 2 havelis. 1

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]This contention must however fail, since we find no good reason for departing from the well-established 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 sudracontention must however fail, since we find no good reason for departing from the well-established 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 sudraproper 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 2 brothers lived in separate houses, were separate in mess and the produce was divided between them half and half. It seems to us that the finding of the High Court as to the separation of the 2 brothers must berights of an 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 Sudras estate". This text was fully considered by the Privy Council in VELLAIYAPPA v. NATARAJAN 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 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 statements 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 fathers estate and he cannot therefore demand partition against his father during the latters lifetime, secondly that on his fathers 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 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.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 legitimate son. There can be no doubt that though the illegitimate son cannot enforce partition during the fathers lifetime and though he is no 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 legitimatecontention cannot prevail, because the plaintiff is undoubtedly a co-sharer in the properties and unless exclusion and ouster are pleaded and proved, which is not the case here, is entitled to partition.11. 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 the defendant No. 5 in paragraph 3 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 Dass, the smallest house divided into 2 havelis.