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 plaintiff, 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 plaintiff’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 his 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 Jai Narayan Das and Gurnarayan Das were also dasiputras of Nandkishore by another concubine.

The suit was contested mainly by the first defendant, Gurnarayan 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 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 joint Hindu family with the plaintiff and Shibtahl 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 dismissed 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 his brother, Nandkishore. The High Court reversed the decision of the trial Court and held (1) that the parties were Sudras and not Dwijas, (2) that Budparkash died in a state of separation from his. brother, Nandkishore, and (3) that no suit for declaration of title was necessary and the plaintiff’s failure to pay sufficient court-fee should not stand in the way of suitable relief being granted to him. Both the High Court and the trial Court found that defen

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