Patna High Court
Manickchand Sao And Ors. vs Bhagwan Das And Ors. on 16 December, 1963
Equivalent citations: AIR1964PAT353, AIR 1964 PATNA 353
JUDGMENT Tarkeshwar Nath, J.
1. This appeal is by defendants 1 to 3. The minor plaintiff instituted a suit giving rise to this appeal through his mother Mostt. Jichhia as his guardian for partition of his half share in the properties described in the plaint. According to him, one Balchand Sao had two sons, Nemchand Sao and Lachhman Sao. Nemchand left two sons, namely, Chamari Sao and Hira Lal Sao. Lachhman Sao left no issue and similar was the position with Hira Lal Sao. Chamari Sao left two sons, Ramdhani Sao and Mohan Chand Sao. Mossammat Sahodri was the widow of Ramdhani, Mossammat Kausaliya Devi (Defendant 2) is the widow of Mohan Chand Sao who died on 22-3-1947. Mohanchand had one son Manick Chand Sao (defendant 1) and a daughter Shanti Devi' (defendant No. 3) through his married wife (defendant 2). Mohanchand kept in his house Mostt. Jichhia, the mother of the plaintiff, as concubine and the plaintiff was a 'dasiputra' of Mohanchand. During the life-time of Mohan Chand Sao, Ramdhani Sao and others died one after another and Mohan Chand got all the properties by survivorship and he came in possession of all the properties belonging to this family. Mohan Chand died leaving behind the plaintiff and defendants 1 to 3 and they cams in possession of all the properties. Mohan Chand was a 'teli', that is, 'Sudra', and the plaintiff being the 'dasiputra' had half share in all the properties of Mohanchand.
Mohan Chand during his lifa time gave some properties about 10 years ago to Jichhia, the mother of the plaintiff, and the plaintiff, and they came in possession of that property. The plaintiff had sold some of the properties, but the plaintiff and these defendants were jointly in, possession of the remaining properties. The plaintiff felt considerable difficulty in living jointly and hence he requested the defendants several times to divide the properties, but they paid no heed to it. In these circumstances, the plaintiff instituted this suit on 11-1-1958 for partition of his half share in the properties in suit. Defendants 4 to 13 were added subsequently as they happened to be the transferees in respect of some of the properties in suit and this step was taken on the objections raised by the other defendants.
2. Defendants 1 to 3 filed a written statement contesting the plaintiff's title and possession. According to them, Mosstt. Jichhia was never a concubine of Mohan Chand Sao and the plaintiff was not the son of Mohan Chand. Mosstt Jichhia was a goalin by caste, previously she was married to Chhotan Gope but she left her husband and lived as concubine of Chamari Gope. Later on, she became a concubine of Nathuni Singh and she was living with him. The plaintiff was the son of Nathuni Singh. Mohan Chand was suffering from tuberculosis five or six years before his death and he was confined to bed for two years before his death. In those circumstances, the plaintiff could not be his son and in fact plaintiff was born after the death of Mohan Chand. Mohan Chand was no doubt the absolute owner of all the properties, but after his death defendant 1 along with his mother came in possession of those properties. Mohan Chand had only two issues, defendants 1 and 3. Neither Mohan Chand kept Mostt. Jichhia, the mother of the plaintiff, as his concubine nor plaintiff was the 'dasiputra' of Mohan Chand. Mohan Chand was no doubt a 'teli' by caste, but he was a Vaisya and not a Sudra. Mohan Chand was neither entitled to give any property nor did he give any to the plaintiff and his mother. Some of the properties had been sold to strangers and the vendees were in possession of those properties.
The defendants denied the existence of some of that moveables which were sought to be partitioned. Most. Jichhia was in search of a business and as she had no place to live, these defendants took pity on her and gave a portion of their house to her in the year 1949 on a monthly rent of Rs. 2/-. In a supplementary written statement, they further indicated that defendants 1 and 2 had sold some portion of the house No. 455 to certain persons and the vendees were in possession thereof. Defendants 5 to 7 as well filed a written statement supporting the case of the other defendants and according to them as well, neither Mostt. Jichhia was the concubine of Mohan Chand nor the plaintiff was the son of Mohan Chand. They alleged to have purchased certain properties from defendants 1 and 2 by various sale deeds and they asserted their possession in respect of those properties.
3. The two main issues in the suit were as follows:
3. "is plaintiff son of Mohan Chand from the womb of Mosst. Jichhia Plaintiff's mother) ? Was Mosstt. Jichhia concubine of Mohan Chand?
4. Is plaintiff entitled to partition of the suit properties? If so, for what share?"
4. The Additional Subordinate Judge held that the plaintiff was son of Mohan Chand from the womb of Mostt. Jichhia and she was a concubine, of Mohan Chand. He found that telis were Sudras as alleged by the plaintiff and not Vaisyas as contended by the defendants. He thus held that the, plaintiff was entitled to get his 1/4th share partitioned in the family properties and, according to him, the transfers having taken place after the birth of the plaintiff, his title was not affected by those transfers. Accordingly, he decreed the suit in part for partition of the plaintiff's 1/4th share by metes and bounds and a preliminary decree was drawn up in these terms. Being aggrieved by this decree, defendants 1 to 3 have preferred this appeal.
5. Learned counsel for the appellants has, in the first instance assailed the finding of the trial Court regarding Mostt. Jichhia being a concubine of Mohanchand. He contended that the evidence adduced on behalf of the plaintiff cannot lead to that conclusion and if that was so, the plaintiff was not entitled to any share to the properties left by Mohan Chand. The status of an illegitimate son in order to get a share in the properties of his father has been dealt with by Dinshah Mulla in the principles of Hindu Law, 12th edition, page 118, in the following manner:
"Illegitimate sons:-- The illegitimate sons of a Brahman, Kshatriya, or Vaisya are entitled to maintenance, and not to any share) of the inheritance. See Mitakshara Ch. I, C. 12, V. 3.
The illegimate son of a sudra, however, is entitled to a share of the inheritance provided (1) he is the son (putra) of a dasi, that is, a Hindu concubine in the continuous and exclusive keeping of his father at the time of his birth and (2) he is not the fruit of an adulterous, or incestuous intercourse."
Reference may be made to Rajani Nath Das v. Nitai Chandra Dey, I L R 48 Cal 643 : (AIR 1921 Cat 820) (F B) and Rahi v. Govind, ILR 1 Bombay 97. Learned counsel for the appellants could not contest this proposition of law, but his grievance was that the onus in this case lay on the plaintiff to prove that his mother Mostt. Jichhia was in the continuous and exclusive keeping of Mohan Chand Sao and the Plaintiff had failed to discharge that onus. The evidence on the plaintiff's side, according to learned counsel, was not at all sufficient for holding that Mostt. Jichhia was the concubine of Mohanchand. The plaintiff had adduced oral evidence in this connection.
Ramsaran Sao (P.W. 1) was a resident of one of the quarters in the town of Bihar and he knew Mohan Chand and Mosst. Jichia. There were 50 or 60 houses between his house and that of Mohan Chand. He stated in examination-in-chief that Mosst. Jichhia was the concubine of Mohan Chand and the latter got a son Bhagwan Das (plaintiff) through Mosst. Jichhia. He further stated that Mosst. Jichhia was always residing with Mohan Chand. He could not give boundary of the residential house of Mohan Chand and he admitted that he had neither any occasion to go inside that house nor he had seen ladies of Mohan Chand's family. His information about the concubinage was based on what he had learnt on enquiry from Jichhia herself and that was about 25 years ago. He did not make any enquiry as to whether plaintiff was born of Mohanchand. Jichhia has deposed in this case, but she did not say that Ramsaran Sao (P.W. 1) had made any enquiry from her about her being a concubine of Mohan Chand. This witness not having gone inside the house oi Mohan Chand and not having seen the ladies of Mohan Chand's family, he cannot be held to be competent to know whether Jichhia was a concubine of Mohan Chand. He did not get summons and Jichhia called him to depose. In a case of this kind where the. Court has to ascertain the question of concubinage the decision of which depends here entirely on the oral evidence, it has to be seen as to whether these witnesses were competent to support the plaintiff's case.
Learned counsel for the plaintiff-respondent placed great reliance on the evidence of Chulli Ram (P.W. 2) who deposed in examination-in-chief that Mosst. Jichhia was a concubine of Mohan Chand and she got a son from Mohan Chand. His house was near the 'gola' belonging to Mohan Chand. It appears from his cross-examination that he did not know as to when Jichhia came in keeping of Mohan Chand, but he added that he saw her in keeping of Mohan Chand for the last 20 years. No one told him that Jichhia was a concubine of Mohan Chand. He was not a member of Mohan Chand's family and he has not indicated as to how he came to know that Jichhia was a concubine of Mohan Chand. He did net know whether Mosst. Sahodri was the widow of Ramdhani (brother of Mohan Chand). He could not say whether Mohan Chand had one married wife or more. Similarly, he did not know how many issues the married wife of Mohan Chand had, or how many issues Jichhia had. Jichhia was not on visiting terms with him. He used to sell clothes by hawking and he had no concern with the family of the defendants. His statements in cross-examination indicate? that he was completely ignoramus about the other members of the family of Mohan Chand. He further said in examination-in-chief that Jichhia resided in the house of one Kishun on rent and he did not know as to where she was residing at the time of his deposition. The witness did not say that he ever saw Mohan Chand talking with Jichhia or both sitting together or living in one room. It is thus difficult to accept his testimony that Jichhia was a concubine of Mohan Chand.
Kishun Gope (P.W. 3) also stated that Jichhia was in the keeping of Mohan Chand. But he, also had no occasion to go inside the house of Mohan Chand and he was not on inviting terms with Mohan Chand. He never enquired from Jichhia as to whose concubine' she was and whose son was plaintiff. This witness as well had no special means of knowledge about the connections of Jichhia with Mohan Chand. Panchoo Ram (P.VV.4) had heard that Jichhia was concubine of Mohan Chand, but he could not remember as to from whom he had learnt about Jichhia, He had never any talk with her. The evidence of this witness also suffers from the same infirmity. Jichhia has figured as P.W. 5 and she supported her case. She said that she was the concubine of Mohan Chand and she lived with him. Her evidence is that she was residing in the residential house of Mohan Chand, but two years ago she shifted to another house given to her by Mohan Chand during his lifetime. She could not give the total number of rooms in the two storeys of the house of Mohanchand and her evidence is that she took help of students for giving details of the properties in the plaint. It appears from her evidence that she used to work as a labourer and sometimes she slept in the houses where she used to work. She was working as a carrier and carried loads as well. Defendants wanted to make out that Jichhia was living in the house of Mohan Chand, but if she worked as a labourer and she occasionally lived in the houses where she was working as a labourer, that would not mean that she lived there as concubine of someone.
In a case of this kind where she has instituted the present suit as guardian of the minor plaintiff alleging that she was the concubine of Mohan Chand, it will not be safe to rely on her testimony alone for holding that she was the concubine of Mohan Chand. Her evidence must be held to be interested and without independent corroboration thereof it cannot be relied upon. This view is in consonance with the decision in the case of Thakur Prasad v. Mt. Godavari Devi, AIR 1951 Pat 514. The position thus is that the evidence adduced on behalf of the plaintiff is not at all sufficient for holding that Jichhia was the concubine of Mohan Chand.
6. Learned counsel for the plaintiff-respondent laid great stress on the entries in the birth register (Ex. 4) of Bihar Municipality. The entries indicate that on 12-8-1945 Mohanchand got a male issue and an entry to this, effect was made on 28-8-1945 at the instance of one Gandauri Singh. This birth register was maintained in the Bihar Municipality in accordance with the provisions of Section 344 of the Bihar and Orissa Municipal Act. That section refers to the Bengal Births and Deaths Registration Act, 1873, Section 7 of which provides that the father or mother of every child born within an area shall within eight days next after the day of every such birth, give information regarding birth, either personally or In writing, to the registrar of the district, or by means of the chaukidar or other village-watchman or other person as provided in the last preceding section. Learned counsel for the appellants pointed out that it was not known is to how was Gandauri Singh related, he was not examined and the information about the birth was not given within eight days of the birth. On these grounds, he contended that the entries were not admissible.
It is true that the information was not given within eight days of the birth, but on that account it cannot be held that the entries were not admissible, inasmuch as these entries can safely come within the purview of Section 35 of the Evidence Act. The birth register was maintained by a public servant in the discharge of his official duty and it cannot be ignored. The entries no doubt indicate that a son was born to Mohanchand in August 1945. Learned counsel for the plaintiff further pointed out that according to the written statement of the defendants, only one son and one daughter were born to Mohanchand from his legally married wife (defendant 2) and, therefore, the entry with regard to the son born on 12-8-1945 must refer io the present plaintiff Bhagwan Das.
Kausaliya Devi (defendant 2) was examined on commission and she made out that she had two sons and one daughter, out of whom one son died two months after his birth. In this manner, she tried to explain the entry marked exhibit 4. Learned counsel for the plaintiff submitted that there being no mention of another son in the written statement, the explanation of defendant 2 should not be accepted as it was a subsequent development in her case. It is true that the defendants did not make out in their written statement that Mohanchand had another son as well, but even then this entry would not be of much help to the plaintiff. At the highest it indicates that a son was born to Mohanchand and even if the entry relates to the present plaintiff, the plaintiff cannot succeed unless it is established that his mother lichhia was in the continuous and exclusive concubinage of Mohanchand, the evidence of which is not acceptable as already indicated. Learned counsel for the plaintiff referred to a sale deed dated 5-1-1948 (Ex. 3) executed by Jichhia for self and as guardian of Bhagwan Das, minor son of Mohanchand, in favour of a third person, but this self-serving statement by Jichhia cannot be of any assistance to the plaintiff. The order (Ex. 5) of the Chairman directing mutation of the name of Jichhia along with that of Manikchand in respect of holding No. 455/A is not at all decisive with regard to the point in issue.
7. The actings and dealings of Mohanchand during his lifetime also have an important bearing on the question as to whether he had kept Jichhia as his concubine and whether plaintiff was his son. The plaintiff was alleged to have been born in August 1945, but in the two documents (Ext. I and H) dated 9th and 11th September 1945 respectively executed by Mohanchand, there is no reference about the existence either of a concubine or the plaintiff as a son of Mohanchand. The first one is a deed of absolute sale by Mohanchand for self and as guardian of Manikchand, his minor son (defendant 1), and the second one is a deed of settlement by Mohanchand for self and as guardian of Manikchand. The plaintiffs case is that Mohanchand had "great affection and love for his concubine and his illegitimate son, (the present plaintiff). But if it was so, it was expected that Mohanchand during his lifetime would have made some provision for them, but the written proof thereof is completely lacking in the present case.
8. The learned Additional Subordinate Judge was impressed with the evidence of the plaintiff's witnesses, but he erred in not considering properly their competency to depose regarding concubinage. On a review of the evidence, I am of the view that the plaintiff has failed to establish that his mother Jichhia was in the continuous and exclusive concubinage of Mohanchand and that he (plaintiff) was a dasiputra of Mohanchand.
9. The defendants set the a case that the plaintiff was the son, of one Nathuni Singh, Jichhia was not the concubine of Mohanchand and they adduced oral evidence in this connection. Rameshwar Ram (D.W, 1) had purchased a house from one of the defendants two and a half years ago and he could not say whether plaintiff was born or not when Mohanchand died. He made no enquiry as to whose son the plaintiff was. Parmeshwar Mahto (D.W. 2) also seemed to be interested as his father (defendant 7) had purchased tenancy lands from defendant 1. There was a case of dacoity against Bandhu Gope (D.W. 4), but he said that he was acquitted. Akalu Sao (D.W. 5) could not say about the residence of Nathuni Singh. Similarly, he could not say as to who told him that the plaintiff was the son of Nathuni Singh. Bansi Lal (D.W. 7) happened to be a relation of Mohanchand and he deposed that Mohanchand never kept any concubine, Jichhia never lived in the house of Mohanchand according to him: and the plaintiff was not the son of Mohanchand. Kailash tall (D.W. 8) stated that plaintiff's mother was married to Chamari Gope and this was her first marriage. The defendants' case, however, was that plaintiff's mother was married with Chhotan Gope and as such, the Court has rightly not relied on his testimony.
Daro Lall (D.W. 11) was the Munib of Mohanchand since 1326 fasli and he worked for 17 years in that capacity. His version is that Jichhia was not the concubine of Mohanchand. Sheoratan Pandey (D.W. 12) came to depose as a family priest of Mohanchand and he never saw Jichhia living in the house of Mohanchand. According to him, Mohanchand had no concubine. Manikchand (defendant 1) figured as D.W. 13 and he made out that Jichhia was living with Nathuni Singh as his concubine. The learned Additional Subordinate Judge observed that most of the witnesses for the defendants were either their caste men or their relations and hence he did not chooss to rely on their statements. He rightly noted that neither Chhotan nor Chamari was examined by the defendants. The evidence of the witnesses who came to depose that Jichhia was the concubine of Nathuni Singh is not up to the mark, but, in any event, the question as to whether the plaintiff was the son of Nathuni Singh need not be gone into, inasmuch as the main issue which arose for determination was as to whether Jichhia was the concubine of Mohanchand and plaintiff was the latter's son from the womb of Jichhia.
10. Learned counsel for the appellants further assailed another finding of the trial Court and urged that Mohanchand being a teli was a Vaisya and not a, Sudra. He commented on the evidence of the priest Upendra Nath Pathak (P.W. 7) who had read the Shastras and whose version was that the telis were Sudras. Learned counsel relied mainly on the evidence of D.W. 12, according to whom the telis were Vaisyas. Lachhmichand (D. W. 14) was said to be a respectable witness who supported the case of the "defendants that the telis were Vaisyas, but he admitted in cross-examination that sagai marriage was prevalent in his caste (teli). Bansi Lal (D. W. 7) also was a teli and he had learnt from his priest that he was a Vaisya. Ganga Bishun (D. W. 9) deposed that the telis were called Telkar Vaisya and there was an all India Association of the telis having its office bearers. The witness was a member of that Association and the telis were Vaisyas.
Learned counsel referred to Volume II of the Tribes and Castes of Bengal by H. H. Risley. The learned author noted at page 305 that telis were a large oil-pressing and trading caste of Bengal, Behar and Orissa, and their original profession was oil-pressing, and the caste may be regarded as a functional group recruited from the respectable middle class of Hindu society. Oil was used by all Hindus for domestic and ceremonial purposes and its manufacture could only be carried on by men whose social purity was beyond dispute. It further appears from a passage at page 309 that the social standing of the telis differed in different parts of the country and for different sub-castes. "In Behar the entire caste seems to stand on this lower level, and no Brahman will take water from their hands".
Mr. S.N. Dutta for the plaintiff, however, referred to another book, Hindu Castes and Sects by Dr. Jogendra Nath Bhattacharya, and the learned author mentioned in Chapter II at page 262 that "the Telis of Bengal are, as stated in a previous chapter, included among Nava Sayakas, and regarded as clean Sudras." With regard to the observations of Mr. Risley, referred to above, Dr. Bhattacharya said that it was difficult for an English author to give a correct view of the mechanism of our society and the fact was that ghi and oil were not contaminated or rendered unfit for a Hindu's use by the touch of even the lowest castes. In view of the finding that Jichhia was not the concubine of Mohanchand and the plaintiff was not the dasiputra of Mohanchand, it is not necessary to express any opinion on the question as to whether Telis were Sirdrss or Vaisyas.
11. Another question canvassed before us was as to what would be the share of the plaintiff in the properties sought to be partitioned. Learned counsel for the appellants pointed cut that according to the evidence, Ramdhani died sometime in 1945 or 1946 and hence his widow Mostt. Sahodri was entitled to the share of her husband, namely, 8 annas, in the properties belonging jointly to Mohanchand and Ramdhani. He then pointed out that Mostt. Sahodri died during the pendency of the suit and her share would devolve on her heirs according to the provisions of the Hindu Succession Act, His contention was that the question as to who were the heirs of Mostt Sahodri was not raised and, in any event, the plaintiff was not entitled to any share in the properties belonging to Mostt. Sahodri. According to him, the plaintiff, even if an illegitimate son, would be entitled to only half of what he would have got if he was a legitimate son. This question as well is academic and it need not be gone into in view of the finding that the plaintiff was not the 'dasiputra' of Mohanchand.
12. The learned Additional Subordinate Judge appears to have granted a decree with regard to the partition of the movables as well, but he has not at all discussed as to whether any movable property existed and if so what was its extent. Learned counsel for the plaintiff was extremely fair in accepting the position that he could not support the decree of the trial Court, so far it related to the partition of the movable properties. The position in the present case is that the plaintiff has failed to establish that he was the dasiputra of Mohanchand and thus he is not entitled to get any relief in the present action.
13. In the result, the appeal is allowed, the judgment and decree of the trial Court are set aside and the plaintiff's suit is dismissed with costs throughout payable to defendants 1 to 3.
Mahapatra, J.
14. I agree.