JUDGMENT
Kanhaiya Singh, J.
1. This is an appeal by the plaintiff from the decree of the Additional Subordinate Judge of Darbhanga dated 23rd December, 1955, dismissing her suit for partition. The following genealogical table will show the relationship between the parties and help in appreciating the facts of the case :
PRASAD CHOUDHARY
______________|_________
| |
Badri Dilan
___|______ |
| | Jivan (deft. 1)
Balgobind Pearey ___|______
Window-Banarasi | |
P.W.10 Nand Lal Ramsiristha
| Deft. 2 Deft. 3
Ramkhelawan | |
daughter-Savitry Devi | Shiva Lall
Plaintiff | Deft. 6
__________|_______
| |
Rambharosh Ramnandan
Deft. 4. (Deft. 5)It will appear from the above that Prasad Chaudhary was the common ancestor of the family of the defendants and the father of the plaintiff. According to the plaintiff, Prasad died before the survey and settlement operation. Shortly after His death, his two sons, Badri and Dilan, separated from each other, both in mess and management. Badri also died before the survey operation. In the survey record of rights, the family properties were recorded in the names of Balgovind. Pearey and Dilan. Balgovind predeceased Pearey and had no issue. Pearey also died subsequently leaving him surviving his only son Ramkhelawan.
The latter also died leaving no heir, except his daughter Srimati Savitri Devi, who is the plaintiff. The plaintiffs case was that although Badri and Dilan separated from each other, there was no partition of the joint family properties by metes and bounds, and ‘Badri and Dilan cultivated the family properties separately by mutual arrangement for the sake of convenience. On these allegations, the plaintiff prayed for partition of the joint family properties, as mentioned in Schedule I, by metes and bounds and for allotment to her a separate takhta of eight annas share.
The properties mentioned in Schedule II to the plaint also consisted of joint family properties. Since, however, there are other cosharers and the share, of the plaintiff was small, as indicated in the said Schedule of the different properties, the plaintiff did not seek partition of Schedule II properties and prayed that her shares in those properties only may be declared.
2. The defendants who were all descendants of Dilan denied separation in the family. They denied that Badri and Dilan had separated from each other. They denied further that the plaintiff was the daughter of Ramkhelawan. They alleged that
Ramkhelawan died issueless. They asserted that the family is and has all along been joint, and there was no separation at any stage, and Ramkhelawan, the husband of the plaintiff, died in a state of jointness with the defendants and by survivorship all the Family properties devolved upon them. They also challenged the correctness of the genealogy set up by the plaintiff and alleged that certain other members had been omitted.
3. The learned Additional Subordinate Judge held that the plaintiff was the daughter of Ramkhelawan and that the genealogy as given by the plaintiff was correct. He further held that there was no separation between Badri and Dilan and that the family was all along joint and that on the death of Ramkhelawan, the entire joint family properties devolved upon the defendants by survivorship. He accordingly dismissed her suit.
4. The correctness of the finding of the learned Additional Subordinate Judge that the plaintiff is the daughter of Ramkhelawan and the genealogy as set up by the plaintiff is correct has hot been challenged. It must be held, therefore, that the plaintiff is the daughter of Ramkhelawan and if there was separation in the family, the plaintiff was indeed entitled to eight annas share in the joint family properties, namely, the share which her father had therein. She will also be entitled to allotment of a separate takhta in respect of her share. The important question that falls for determination is whether there was separation between Badri and Dilan.
5. It is well established law that those who alleged that the members of a joint Hindu family had separated must prove, unless it is admitted, that there was a separation at some material time. The presumption, until the contrary is proved, is that the family continues joint. It is well to remember that according to the plaintiff the separation between Badri and Dilan took place before the survey and settlement operations and that though partition by metes and bounds was not effected, both the brothers cultivated the joint family properties separately for the sake of convenience according to their respective shares. In order to prove separation the plaintiff has examined P. Ws. 2. 6, 8, 9, 10, 12, 13 and 15. (After reviewing the evidence his Lordship continued;)
Their, evidence, therefore, falls short of establishing separation between Badri and Dilan. It is this separation which the plaintiff had to establish.
6. On the other hand, the defendants have examined D. Ws. I, 2, 4, 5, 6, 7, 8, 9, 10, 11, 13 and 14. They all speak unanimously that there was no separation in the family of Prasad Chaudhary and, that all the members lived jointly and further that Ramkhelawan died in a state of joint-ness with the defendants. (His Lordship reviewed the evidence and proceeded:)
After a proper appraisal and due scrutiny of the evidence adduced by both the parties, I think the evidence adduced by the defendants to prove jointness is overwhelming and quite credible and must be preferred to the evidence adduced by the plaintiff.
7. Learned counsel appearing, for the appellant contended that the members of both the branches were dealing separately and purchasing lands in their names and that this fact, in his opinion, constituted valid; evidence of separation. He referred to four sale-deeds, exhibits 2, 2(A), 2(b) and 2(c) standing in the name of Balgovind. It is in the evidence that at one time Balgovind was a karta of the family. Great emphasis was laid by learned counsel on the sale-deeds, exhibit 2(a), whose certified copy has been produced by the defendants and is exhibit B. One of the plots conveyed to Balgovind under this sale-deed is plot 9242.
The boundaries of this plot given in the sale deed shows that on the south it is bounded by the land of Dilan. It shows that when this sale deed was taken Dilan was alive. He was then the eldest male member and naturally the karta. This description is not inconsistent with the jointness of the family. When the joint family was purchasing the land in the name of one of the junior members and when the family had land on the boundaries of one of the plots conveyed thereunder, there is nothing improbable nor inconsistent with the jointness to describe the boundary in the name of the karta of the family, namely, Dilan. I do not, therefore, think that this description of the boundary in any way conflicts with the jointness or shows even indirectly separation between Badri and Dilan.
Apart from this, separate acquisitions by separate coparceners of a joint Mitakshara family are not evidence of separation and are perfectly consistent with the jointness of the family. The law governing a joint Mitakshara family does not discountenance either separate acquisitions or separate business by different members of the joint family. In this particular case, since the original sale deeds which are exhibits B series have been produced by the defendants. The plaintiff has produced only certified copies of the sale deeds.
The plaintiff explained the production of the original sale deeds by the defendants by saying that there was a theft in her house and all of the deeds and papers standing in the name of Balgovind were carried away by Ram Siristha Chaudhary (Defendant No. 3). D. Ws. 2 and 14 have emphatically denied the occurrence of theft. Now, there is no evidence that any such theft took place. No information was given to the police, nor was any complaint lodged. Nobody saw the actual commission of theft.
They were in the custody of the plaintiff (P. W. 8), and from her custody defendant No. 3 took them away stealthily. She sent information to hat husband, who was then at his house. Still, no step was taken against defendant No. 3. The learned Additional Subordinate Judge is right in holding that the introduction of the Story of theft is an after-thought to explain away the production, of the original sale deeds by the defendants. For these reasons, these sale deeds do not afford any evidence of separation. The circumstances attending them rather point to the contrary.
8. Learned counsel for the appellant further referred to the chaukidari receipts, exhibits 3 series, some of which stand in the name of Balgovind, some in the name of Pearey, some in the name of Banarsi, Kuer and some in the name pi Mahendra Thakur. He contended that these chaukidari receipts show separate residence. He also referred to the record of the sugar factory showing the name of the person who had supplied sugarcane. They are exhibits 5 series. In all of them the name of Pearey Choudhary has been mentioned.
The contention is that Pearey was having separate cultivation and supplying sugarcane to the factory. It was further pointed out that Pearey had obtained license to cure tobacco (exhibit 6). None of these documents, in my opinion, is conclusive on the point. Separate residence does not indicate severance of the joint status. Apart from this, chaukidari rent receipts do not necessarily show that they have been paying chaukidari tax separately. Furthermore, these chaukilari receipts, as rightly held by the learned Additional Subordinate Judge, appear to be spurious.
The connected documents with respect to the payment of chaukidari tax should have been proved to show the genuineness of the payment. Further, it should have been shown that the defendants had also been separately assessed with chaukidari tax. The chaukidari receipts, therefore, are of little weight in determining the question of separation or jointness. Similarly the supply of sugarcane by Pearey and obtaining by him of license to cure tobacco do not necessarily indicate separation and they are consistent with the jointness of the family. These documents, in my opinion, do not prove separation at all.
9. Learned counsel laid great stress upon the survey record of rights (khatian)?, exhibits 7 and 7(c) which showed that Dilan was recorded in the khatians along with Balgovind and Pearey and further “that Dilan had half share and Balgovind and Pearey had the remaining half. On the strength of these entries in the survey records of rights, learned counsel urged that the definition of shares indicated separation. He referred to two decisions of the Privy Council in Anurago Kuer v. Darshan Raut, 19 Pat IT 131: (AIR 1938 PC 65), and Inder Kuer v. Pirthipal Kuer, AIR 1945 PC 128.
In the first case their Lordships of the Privy Council have laid down that it is a well-settled rule of the Hindu Law, as followed by the Mitakshara School, that the partition of the joint estate consists in defining the shares of the coparceners in the joint family property and that it is not necessary that there should be an actual division of the property by metes and bounds. They have further observed that the definition of shares may be proved inter alia by an entry in the record-of-rights showing the chare of each member of the family.
They have laid down that such an entry will be evidence of the severance of the Joint status. Similarly, in the case of Inder Kuer. AIR 1945 PC 128, their Lordships of the Privy Council have laid down that once the shares are defined there is a severance of joint status. It is true that for partition physical division of property, is not necessary, and once the shares have been defined, it will amount to disruption of the joint states. But, at the same time mention of separate shares of different branches in the survey record-of-rights does not indicate at all that there was definition of the shares in the sense that severance of joint status had taken place.
In all cases, the shares of different branches of the joint Mitakshara family are indicated in the survey record-of-rights, and the khatian, therefore, cannot be regarded as a document evidencing definition of shares. The definition of shares must be brought about with an intention to separate, and mere mention of the shares of different branches in the revenue records does not indicate that the shares have been defined with the necessary consequence of the severance of, the joint status. Their Lordships of the Privy Council have explained on more occasions than one the significance of the definition of shares in the revenue and village papers. In 1896 Six John Edge, Chief Justice, made the following significant observations in Gajendar Singh v. Sardar Singh, ILR 18 All 176 :
“A definition of shares in revenue and village papers affords, by itself, but a very slight indication of an actual separation in a Hindu family, and certainly in no case that has ever come before us could we have regarded such a definition of shares standing alone as sufficient evidence upon which to find, contrary to the presumption in law as to jointure; that the family to which such definition referred had separated.”
This pronouncement of the learned Chief Justice was approved without qualification by their Lordships of the Privy Council in Nagesar Baksh Singh v. Mt. Ganesha, 47 Ind App 57: (AIR 1920 PC 46). Their Lordships observed that the statements of principles are sound as applied not only in Allahabad, but in India as a whole. These principles of law were further reiterated by their Lordships of the Judicial Committee in Mt. Bhagwani Kunwar v. Mohan Singh, 29 Cal WN 1037 : (AIR 1.925 PC 132).
They have further laid down in that case that the collector’s book is kept for purposes of revenue and not for purposes of title, and consequently the fact of a person’s name being entered in the Collector’s book as occupant of land does not necessarily of itself establish that person’s title or defeat the title of any other person. Their Lordships have further made clear that the same observation applies to entries of the names of persons in settlement khewats as the names of co-sharers in a mauza.
It is thus clear beyond doubt” that a mere definition of shares in revenue and village papers would not, by itself, be conclusive evidence, even that an actual partition was then intended. In order to establish separation, it must further be proved that such definition of shares was with a view to obtain partition. In absence of such evidence, mere definition of share by itself affords as very slight indication of actual separation and is insufficient to displace the presumption of jointness.
In my opinion, the khatians in this case, therefore, do not afford any evidence of separation between Badri and Dilan, It is really difficult to believe that in spite of separation the lands continued to be cultivated separately by mutual agreement for nearly fifty years. These khatians, therefore, are of no assistance to the plaintiff and do not support the contention of the learned counsel.
10. The above survey of the evidence, both oral and documentary, leads inevitably to the conclusion that there was no separation in the family
of Prasad Choudhary and that the family continued
to be joint and all the family properties were jointly
Cultivated and on the death of Ramkhelawan, the
entire joint family properties were jointly cultivated,
and on the death of Ramakhelawan, the entire joint
family properties devolved on the defendants by survivorship. The plaintiff is, therefore, not entitled to
any share in the said properties.
11. In the result this appeal is dismissed with
costs.