GUR NARAIN DAS AND ANOTHER versus GUR TAHAL DAS AND OTHERS

Citation: [1952] 1 S.C.R. 869 · Decided: 16-05-1952 · Supreme Court of India · Bench: SIR SYED FAZL ALI

Judgment (excerpt)

• 
' 
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 ques-
tions 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 sepa-
nte 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 respond-
ent 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, 
in-
tervened in the suit after its institution and was im-
pleaded 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 regard-
ing the management and enjoyment of the properties 
among the plaintiff and the defendants, which compell-
ed the plaintiff to institute the present suit for parti-
tion. 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 dasi-
putras of Nandkishore by another concubine. 
The suit was contested mainly by the first defendant 
Gu.rnarayan Das and Mst. Surat Kuer,. on the follow-
ing pleas :-firstly, that the suit was not maintainable 
as a suit for partition, because the plaintiff was never 
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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 sa

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