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Ram Saran Garain v. Tek Chand Garain
Case Summary — Extracted from Provided Opinion
Factual and Procedural Background
This suit was instituted by Ram Saran Garain seeking a declaration of his title to, and partition of, immoveable property described in the plaint as belonging to a joint Hindu family governed by the Mitakshara school. The plaint described the family as consisting of the plaintiff and his five brothers, who were alleged to be sons of Tek Chand Garain (defendant No. 1) by Mussamut Marno (defendant No. 4), together with Dharam Singh (another son of Tek Chand by another wife) and Tek Chand himself.
The principal defendant, Dharam Singh, denied that Ram Saran was Tek Chand's son and contended that Ram Saran was the son of Budhoo Danook — Mussamut Marno's prior husband — and that she later lived under the protection of Tek Chand. The initial primary issue was whether Ram Saran was the legitimate son of Tek Chand and thus entitled to claim partition.
At a late stage the plaintiff advanced an alternative case: even if there was no marriage between Mussamut Marno and Tek Chand, he claimed to be an illegitimate son of Tek Chand and, because the family was Sudra, that he was entitled to claim partition as a dasiputra (a son begotten by a Sudra on a female slave) under the Mitakshara. The trial judge (the Subordinate Judge) amended the issues to permit consideration of that alternative plea.
The Subordinate Judge found there was no marriage between Mussamut Marno and Tek Chand, concluded the plaintiff was not a lawful son of Tek Chand and further found the plaintiff did not qualify as a dasiputra under the Mitakshara; accordingly he dismissed the plaintiff's suit. The plaintiff appealed to the High Court.
Subsequent procedural developments recorded in the opinion: after the appeal was filed Tek Chand died and Dharam Singh was substituted as his legal representative; Dharam Singh later died and his sons were substituted in his place.
Legal Issues Presented
- Whether Ram Saran Garain is the legitimate son of Tek Chand Garain (i.e., whether a marriage existed between Mussamut Marno and Tek Chand).
- If there was no marriage, whether Ram Saran is an illegitimate son of Tek Chand and, if so, whether he is entitled to a share of the family property under Mitakshara rules governing a "son begotten by a Sudra on a female slave" (dasiputra).
- Whether any rights (if established) are affected by the father's prior alienation of the property by an ekrarnamah executed in 1891 in favour of Dharam Singh and registered under the Land Registration Act.
Arguments of the Parties
Appellant's Arguments (Ram Saran / his counsel)
- Initial pleaded case: Ram Saran was the legitimate son of Tek Chand and therefore entitled to partition.
- Alternative case (advanced later): even if there was no lawful marriage, Ram Saran is an illegitimate son of Tek Chand and, because the family is Sudra, he should be treated as a dasiputra and entitled to participate in the family property under the Mitakshara.
- Legal contention advanced by the appellant's counsel: the Mitakshara texts should not be confined strictly to the offspring of a female slave properly so-called, but should be extended to include the offspring of a kept woman or continuous concubine; reliance was placed on translations of Dayabhaga verses (as given by Colebrooke) and on certain decisions favourable to the appellant's theory.
Respondents' Arguments
- The principal defendant (Dharam Singh) denied the plaintiff's paternity, asserting that Ram Saran was the son of Budhoo Danook (Mussamut Marno's earlier husband) and that Mussamut Marno subsequently lived under Tek Chand's protection.
- Implicitly, respondents relied on the trial court's findings (no marriage, plaintiff not lawful son) and the legal position under Mitakshara that a dasiputra must be a son begotten by a Sudra on a female slave as that term was understood in the relevant authorities.
- Respondents relied on the fact that Tek Chand executed an ekrarnamah in 1891 transferring his entire interest in the property to Dharam Singh which had been registered and resulted in Dharam Singh obtaining possession — a transfer which, if not impeached, precluded any claim by the plaintiff based on the father's choice during his lifetime.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kirpal Narain Tewari v. Sukurmoni (1891) I.L.R. 19 Cal. 91 | Explains why a son begotten by a Sudra on a female slave (dasiputra) was entitled to participate — historical role of slaves in family; also examined the scope of the term and refused to apply some Bombay/Madras authority. | The Court relied on the analysis in this case to require proof that the illegitimate son was born of a female slave as described historically; the Court followed its reasoning in declining to extend Mitakshara protection to the plaintiff here. |
| Narain Dhara v. Rakhal Gain (1875) I.L.R. 1 Cal. 1 | Considered translations of Dayabhaga verses and discussed Inderun Valungypuly Taver; examined whether certain translations supported extending dasiputra concept. | The Court referred to its examination in this earlier case and concluded that the translations (as accepted by the Court previously) do not support the appellant's contention that the Mitakshara should include kept women/continuous concubines within "dasi" for these purposes. |
| Inderun Valungypuly Taver v. Ramasawmy Pandia Taver (1869) 13 Moore's I.A. 141; 3 B.L.R.P.C. 1 | Bombay/Privy Council-era authority relied upon for a broader treatment of offspring of kept women/concubines in inheritance questions. | The Court noted that this case was fully discussed in Narain Dhara and Kirpal Narain Tewari. It observed that the Privy Council was not intended to lay down that an illegitimate son of a Sudra is always entitled to inherit; the decision's context and regional practice mattered. |
| Rahi v. Govinda valad Teja (1875) I.L.R. 1 Bom. 97 | Bombay Presidency decisions treating offspring of a kept woman or continuous concubine as equated with a dasiputra for inheritance among Sudras. | The Court explained that Bombay decisions proceeded upon a local theory that offspring of a kept woman/continuous concubine should be treated on the same level as a dasiputra. The Court declined to follow those decisions for the present controversy. |
| Sadu v. Baiza (1878) I.L.R. 4 Bom. 37 | Another Bombay decision in the line treating the offspring of a kept woman/continuous concubine as equivalent to a dasiputra for succession. | The Court noted these Bombay cases but did not accept their approach for deciding the present case under Mitakshara as applied in this jurisdiction. |
| Jogendro Bhupati Hurrochundra v. Nityanand Man Singh (1890) I.L.R. 18 Cal. 151; L.R. 17 I.A. 128 | Addressed whether ordinary rules of survivorship in joint family applied to legitimate and illegitimate sons of a Sudra; dealt with post-death distribution and survivorship. | The Court observed that the Cuttack decision did not discuss the precise issue here (i.e., whether an illegitimate son is entitled as dasiputra) and thus did not assist the appellant on that point. The Court cited it for the limited proposition that an illegitimate son does not acquire a joint interest at birth and survivorship rules may apply after the father's death. |
| Madras and Allahabad reported cases (various) | Some Madras decisions interpreted "dasi" to include a woman kept as a continuous concubine; some Allahabad cases appear to follow that approach. | The Court explicitly declined to follow the Madras/Bombay/Allahabad lines of decisions in resolving the present issue, citing reasons given in Kirpal Narain Tewari. |
Court's Reasoning and Analysis
The Court proceeded in a structured way, addressing each central issue in turn and applying textual exposition of the Mitakshara and prior authorities as recorded in the judgment.
-
Legitimacy/marriage issue:
- The Court examined the evidence concerning whether Mussamut Marno and Tek Chand had been validly married. The Court agreed with the Subordinate Judge that there was no marriage between them.
- One factor noted by the Court was that the two parties belonged to very different sects of the Kurmi caste who, according to the evidence, did not customarily intermarry or even take food cooked by each other; on the whole the Court found marriage improbable and accepted the trial judge's conclusion.
- It followed that the plaintiff could not succeed as a lawfully begotten (legitimate) son of Tek Chand.
-
Whether plaintiff is an illegitimate son entitled to succeed (dasiputra question):
- The Court accepted that the plaintiff had advanced, at a late stage, an alternative case that he was illegitimate but begotten by Tek Chand. On the evidence the Court was not prepared to adopt the trial judge's finding (that plaintiff was begotten by Budhoo Danook) and was instead inclined to think the plaintiff may have been born of Tek Chand.
- Even accepting that inclination, the Court analysed the Mitakshara (Ch. 1, Sec. 12) which treats a son begotten by a Sudra on a female slave (dasiputra). The relevant verses were quoted showing that (a) during the father's lifetime the dasiputra takes a share only by the father's choice, and (b) after the father's death he may take a moiety of a share if there are sons of a wedded wife, otherwise he may take the whole estate subject to certain caveats.
- The Court required that a claimant seeking to rely on this rule show that he was born of a female slave in one of the historical categories recognized in the authorities. It noted earlier judicial exposition (Kirpal Narain Tewari) explaining the historical reasons why a slave's children were treated in that way and that a kept woman or concubine occupied a different position.
- The Court observed the appellant had not shown that his mother was a female slave of the kinds described in the classical authorities and therefore had not brought himself within the Mitakshara description of a dasiputra.
- The appellant's reliance on broader translations of Dayabhaga verses (per Colebrooke) was considered; the Court referenced its prior assessments (Narain Dhara, Kirpal Narain Tewari) and concluded the translations, as correctly rendered, do not support the appellant's contention. The Court therefore declined to adopt the broader reading urged by appellant's counsel.
- The Court also considered the comparative authorities from Bombay, Madras and Allahabad which in some decisions treated offspring of a kept woman/continuous concubine as equivalent to a dasiputra; it declined to follow those lines for the reasons given in Kirpal Narain Tewari and related earlier decisions.
- Accordingly, on the substantive point of entitlement under Mitakshara, the Court concluded the plaintiff had not established that he fell within the description of a son begotten by a Sudra on a female slave and thus was not entitled to succeed on that basis.
-
Effect of father's prior alienation (ekrarnamah) and timing:
- The Court identified a further, independent bar to the plaintiff's claim. The Mitakshara permits the dasiputra to take a share during the father's lifetime only by the father's choice. The record showed that in 1891 the father (Tek Chand) executed an ekrarnamah (dated 30 October 1891) transferring his entire interest in favour of Dharam Singh, and Dharam Singh's name was registered under the Land Registration Act; Dharam Singh had taken possession accordingly.
- Because the father had parted with his interest before the suit was instituted (the suit date was 29 April 1896), he was not in a position to exercise any choice to give the plaintiff a share during his lifetime. The plaintiff, therefore, could not rely on a father's choice to obtain a share at the time of suit.
- The Court reiterated the principle that an illegitimate son (dasiputra) does not acquire the same position as a lawfully begotten son at birth and does not acquire a joint interest in ancestral property by birth; his ability to claim is contingent and, in particular circumstances, depends on the father's choice during his lifetime or on the position after the father's death.
- Because the father had alienated his interest during his lifetime and the plaintiff had not impeached the validity or authenticity of the ekrarnamah, the property had passed to Dharam Singh (or his heirs) and the plaintiff could not claim partition from them. The plaintiff had not sought to set aside that transfer, and without doing so he could not obtain relief.
Holding and Implications
APPEAL DISMISSED WITH COSTS
Direct consequences:
- The plaintiff's appeal was dismissed and he was denied partition or declaration of title on the bases advanced in the plaint and the late alternative case.
- The court held (i) the plaintiff failed to establish legitimate sonship (no marriage), (ii) even if he were illegitimate and begotten by Tek Chand, he had not shown he was a dasiputra as required by the Mitakshara, and (iii) in any event the father's ekrarnamah of 30 October 1891 had transferred the father's interest to Dharam Singh before the suit was instituted and the plaintiff did not impeach that transfer — thus he could not claim partition from Dharam Singh or his heirs.
- The ekrarnamah and the registered transfer were left intact by the judgment insofar as the plaintiff did not challenge them; the plaintiff's inability to obtain relief was materially founded on that unchallenged alienation.
Wider implications: The Court relied on prior authorities to construe the scope of "dasiputra" under Mitakshara and expressly declined to follow certain Bombay, Madras and Allahabad lines of decisions in this context. The opinion resolves the dispute on the particular facts and legal arguments before it and does not purport to establish a new general precedent beyond its application to the facts and authorities cited.
This summary is strictly confined to and based only on material contained in the provided opinion text.
1. This appeal arises out of a suit instituted by one Ram Saran Garain for declaration of his title to, and partition of certain immoveable property described in the plaint as the property of a joint Hindu family governed by the Mitakshara School of Law. The family according to the plaint consists of the plaintiff and his five brothers, being the sons of the defendant No. 1, Tek Chand Garain, by Mussamut Marno the defendant No. 4; of Dharam Singh, also a son of Tek Chand Garain by another wife Mussamut Dhano; and of Tek Chand Garain himself.
2. The position of the plaintiff Ram Saran Garain as the son of Tek Chand Garain is denied, the case of the principal defendant Dharam Singh being that Ram Saran was the son of a man by the name of Budhoo Danook to whom Mussamut Marno had been many years ago married, but that she subsequently deserted him and lived under the protection of his father, the defendant No. 1.
3. The first question that was raised in this case was whether Ram Saran Garain was the legitimate son of Tek Chand Garain, and as such entitled to claim partition of Tek Chand Garain's property.
4. In the course of the suit, however, rather at a late stage of it the plaintiff put forward an alternative case, that case being that, even supposing there was no marriage between his mother, Mussamut Marno, and Tek Chand Garain, yet he was the illegitimate son of that person, and as such entitled to claim partition, the family being a Sudra family. Thereupon, the issue that was originally framed by the Subordinate Judge was amended so as to allow the further question that was raised by the plaintiff to be discussed.
5. The Subordinate Judge, upon a consideration of the evidence that was adduced before him, held that there was no marriage as was alleged by the plaintiff between his mother, Mussamut Marno, and Tek Chand Garain, and, therefore, he (the plaintiff) was not the legitimate son of that individual. He was further of opinion, as it seems to us from his judgment, that Mussamut Marno was the wife of Budhoo Danook; that the plaintiff was not a son begotten by Tek Chand Garain; and that Mussamut Marno lived under the protection of Tek Chand Garain after the plaintiff was born. Then, upon an examination of the Mitakshara Law on the subject, the Subordinate Judge was of opinion that the plaintiff, in any view of the matter, was not entitled to succeed, because he was not a "dasiputra" of Tek Chand Garain as defined by the Mitakshara. The result was that he dismissed the suit of the plaintiff.
6. Against this judgment the plaintiff has appealed to this Court.
7. We may here mention that after the appeal had been preferred Tek Chand Garain died, and his son Dharam Singh was subsituted in his place as his legal representative. It further appears that Dharam Singh also is dead, and in his place have been substituted his sons as his legal representatives.
8. The first question that has been discussed before us is whether the plaintiff is the legitimate son of Tek Chand Garain. The solution of this question necessarily depends upon a consideration of another question, namely whether there was a marriage between his mother Mussamut Marno and Tek Chand Garain. We have considered the evidence on this part of the case, and we may say we are at one with the Subordinate Judge when he finds that there was no marriage between those two parties. It appears to us, having regard to the fact that they belonged to very different sects of the Kurmi caste, between whom it is not customary, as the evidence distinctly shows, to intermarry, may not even to take food cooked by each other, that it is extremely improbable hat there should have been such a marriage as the plaintiff alleges. We do not propose to discuss the evidence, but we may say that upon the whole of the facts appearing upon this record, we are clearly of opinion that there was no marriage; and it follows from this that the plaintiff cannot succeed as the lawfully begotten son of Tek Chand Garain.
9. The next question for consideration is whether, supposing there was no marriage between Mussamut Marno and Tek Chand Garain, the plaintiff is the illegitimate son of Tek Chand Garain and entitled to succeed in this suit for partition. The Subordinate Judge, as we have already noticed, seems to have held, upon the evidence adduced on behalf of the defendant, that the plaintiff was begotten by one Budhoo Danook, to whom Mussamut Marno had been married before she came to live. under the protection of Tek Chand Garain. Upon an examination, however, of the whole of the evidence that has been adduced in this case, we are not quite prepared to take the same view as the Subordinate Judge has taken in this matter. We are rather inclined to think that Mussamut Marno came to live under the protection of Tek Chand Garain at a very young age, and that in all likelihood the plaintiff was born of his loins.
10. But, then, the question arises whether supposing the plaintiff to be an illegitimate son of Tek Chand, he is entitled to succeed in this action. Ch. 1, Section 12, of the Mitakshara, deals with a son begotten by a Sudra on a female slave. Verse 1 of that section quotes the text of Yajuyawalkya upon the subject, which is as follows: "Even a son begotten by a Sudra on a female slave (dasiputra) may take a share by the father's choice. But if the father be dead, the brethren should make him partaker of the moiety of a share; and one who has no brothers may inherit the whole property in default of daughter's sons." Verse 2 runs as follows: "The son begotten by a Sudra on a female slave obtains share by the father's choice, or at his pleasure. 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; that is, let them give him half (as much as is the amount of one brother's) allottment. However, should there be no sons of a wedded wife, the son of the female slave takes the whole estate, provided there be no daughters of a wife nor sons of daughters. But if there be such, the son of the female slave participates for half a share only.
11. The text of Yajuyawalkya quoted by the Mitakshara allows a son begotten by a Sudra on a female slave to take a share by the fathers's choice; and the question here arises whether the plaintiff is a son begotten by Tek Chand Garain on a female slave within the meaning of the said text. The reason why in the days when... Yajuyawalkya, Manu, and other sages gave their laws, the son of a Sudra by a female slave was declared entitled to participate in the property of the father, was explained by a Division Bench of this Court (Tottenham and Ghose, JJ.) in the case of Kirpal Narain Tewari v. Sukurmoni (1891) I.L.R. 19 Cal. 91 and it was this: "When slavery existed in India, a slave occupied the position of a member of the family; he, like the wife and son, was incapable of owning any property, and whatever he earned belonged to the master" (see "Tagore Law Lectures by Krishna Kamal Bhuttacharjee, and the Slokas from Manu quoted therein at pages 3--5). "But," as also observed in the same case, "the like reason would not exist in the ease of a concubine who is not a slave-girl, her position is wholly different indeed." "There were," as stated in that case, "in ancient times fifteen descriptions of slaves. We mean fifteen different ways in which a person might become a slave to another (see Shama Charan's Vyavastha Darpana, third edition, 1883, page 27, and Macnaghten's Hindu Law, Vol. II, p. 273); and it would be necessary to show, when a right of succession is claimed by an illegitimate son, that he was born of a female slave of one or other of those descriptions." and we might here observe that the plaintiff in this case has not shown that he was born of a female slave of one or other of those descriptions.
12. The learned Vakil for the plaintiff-appellant has, however contended that the texts in the Mitakshara should not be taken to be restricted to the son of a female slave, properly so-called; but that they include the offspring of a kept woman or continuous concubine, and he has relied upon certain texts of the Dayabhaga on the same subject as translated by Colebrooke, as also on certain decisions which we shall presently notice.
13. As regards the texts of the Dayabhaga (Ch. IX, verses 29, 30 and 31, the translation as given by Colebrooke to verses 29 and 31, if taken to be altogether correct, would no doubt, to some extent at least, support the contention of the appellant; but the translation of those verses was examined by this Court in two different cases, viz., the case of Narain Dhara v. Rakhal Gain (1875) I.L.R. 1 Cal. 1 and the case of Kirpal Narain Tewari v. Sukurmoni (1891) I.L.R. 19 Cal. 91 to which we have already referred, and we are unable to say that the translations of verses 29 and 31 as were accepted by this Court in those cases are incorrect. The said verses, if correctly rendered, do not support the contention of the appellant.
14. Then as to the cases quoted by the learned Vakil for the appellant in support of his contention: of these the cases principally relied upon are that of Inderun Valungypuly Taver v. Ramasawmy Pandia Taver (1869) 13 Moore's I.A. 141; 3 B.L.R.P.C. 1; Rahi v. Govinda valad Teja (1875) I.L.R. 1 Bom. 97; and Sadu v. Baiza (1878) I.L.R. 4 Bom. 37. The case Inderun Valungypuly Taver v. Ramasawmy Pandia Taver was fully discussed by this Court in the case of Narain Dhara v. Rakhal Gain (1875) I.L.R. 1 Cal. 1, as also in the case of Kirpal Narain Tewari v. Sukurmoni (1891) I.L.R. 19 Cal. 91; and we may say that we do not understand the Privy Council to have intended to lay it down that an illegitimate son of a Sudra is in all cases entitled to inherit, as regards the Bombay cases, they were also discussed in the case of Kirpal Narain Tewari v. Sukurmoni (1891) I.L.R. 19 Cal. 91 and it will be observed that in the Bombay Presidency, amongst Sudras, the legitimate offspring of a kept woman or continuous concubine is regarded as "on the same level as to inheritance as the dasiputra or son of a female slave by a Sudra;" and it was on this basis, as we understand, that the Bombay cases were decided but we are not aware that in this Presidency the illegitimate offspring of a continuous concubine is regarded as occupying the same position as to inheritance as the son of a slave-girl by a Sudra. The learned Vakil for the appellant, however, called our attention to a case in Bengal, and that is the case of Jogendro Bhupati Hurrochundra v. Nityanand Man Singh (1890) I.L.R. 18 Cal. 151; L.R. 17 I.A. 128. But in that case, which was from Cuttack, the question now raised between the parties was not raised or discussed; and the only question that was then discussed was whether, in the case of a legitimate son and an illegitimate son of a Sudra, being members of a joint family, the ordinary rule of survivorship incidental to family co-parcenary applied; and it was held that it did apply. In this view of the matter, that case does not help the appellant.
15. Certain cases in the Allahabad and Madras Series of the Indian Law Reports were also quoted before us. So far as the Madras cases are concerned, it will be observed that the Court proceeded upon the interpretation of the word "dasi" as occurring in verse 1, Ch. 12, of the Mistakshara; and, they understood the word to include a woman kept as a continuous concubine. This is not exactly the view that has been taken by the Bombay High Court, for that Court proceeds upon the theory that the offspring of a kept woman or continuous concubine should be regarded as on the same level as a dasiputra or the son of a female slave. However that may be, for the reasons this Court gave in the case of Kirpal Narain Tewari v. Sukurmoni (1891) I.L.R. 19 Cal. 91 we are unable to follow the Bombay and Madras cases as also the cases in Allahabad, which seem to have followed those cases, in determining the question which has been raised in this case.
16. We are of opinion that the plaintiff has not made out that he falls within the description of a son begotten by a Sudra on a female slave, within the meaning of the Mitakshara.
17. But apart from this consideration, there is another difficulty in the way of the plaintiff's succeeding in this case. It will be observed upon the texts of the Mitakshara that in the lifetime of the father, it is only by his (the father's) choice that a son begotten by a Sudra on a female slave may take a share of the family property. On a reference to the record of this case it will be found that the father had, in the year 1891, by an ekrarnamah executed by him on the 30th October of that year parted with his entire property in favour of Dharam Singh, his legitimate son; and it appears that in accordance with this ekrarnamah, Dharam Singh's name was registered in the Collectorate under the Land Registration Act, and to all intents and purposes he seems to have obtained possession of the said property. So that on the date when the suit was brought, namely, on the 29th April 1896, the father had parted with his interest in the said property, and it is obvious that he was not in a position to exercise his choice as to giving any share to the plaintiff.
18. We desire here to observe that an illegitimate son of a Sudra begotten on a female slave does not occupy the same position as a son lawfully begotten. He does not, at bis birth, acquire a joint interest with his father in the ancestral family property. It is only after the father's death that, according to verse 2, he may claim a share in the family property and during his father's lifetime he may take a share by the father's choice (see in this connection the case of Jogendro Bhupati Hurrochundra v. Nithyanand Man Sing (1890) I.L.R. 18 Cal. 151 (155) at p. 155 of the report). The father, then, having already parted with his interest in favour of Dharam Singh, the plaintiff is not entitled to claim any partition in this case. If we have to decide the case with reference to the rights of the parties at the time of the institution of the suit, it seems to be obvious that the plaintiff cannot insist upon a partition in this case.
19. But then it has been said by the learned Vakil for the appellant, that the father being now dead, and the estate being in the hands of Dharam Singh or his heirs, the plaintiff, as an illegitimate son, is entitled to claim a moiety of the estate, though he might nob have been. entitled to do so during the father's lifetime. To this the answer is simple. The father had already parted with his interest in the property in favour of his legitimate son, as he was free to do the plaintiff or his brothers having acquired no interest in the property by birth, and as such being not entitled to restrain the father from alienating it. The estate having then passed away from the father during his lifetime, the plaintiff is not now in a position, notwithstanding his death, to claim any share from the hands of Dharam Singh or his heirs. The plaintiff, it will be observed, while claiming a partition, did not seek to impeach the authenticity or the validity of the ekrarnamah by the father under which the property passed to Dharam Singh, and it seems to us that unless the ekrarnamah is put out of the way, the plaintiff is not entitled to any relief.
20. On all these grounds, we think that this appeal must be dismissed with costs.
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