1. This was a suit for partition brought by one Radhabai, daughter of a Hindu by name Krishnarao. Defendant No. 1 is a purchaser from Narayan who was defendant No. 5. This Narayan was Krishnarao's brother and died after the decision of the suit in the trial Court.
2. Hari, Mahadev, Narayan and Krishnarao, were four brotherers. At one time they formed a joint Hindu family governed by the Mitakshara School, They had income from a jahagir and they owned other properties too. It is admitted by both the parties to this suit that the suit lands are ancestral properties. The four brothers effected a partition of. the jahagir income amongst themselves long time back and as a consequence each one of them got a two annas share which was separately paid to them. In course of time, Hari separated first in respect of the rest of the property and later on Mahadev separated. The question in this case is whether Narayan and Krishnarao held the property in suit as joint tenants so that on the death of Krishnaro in 1918 the whole property would be governed by the rule of survivorship and vest in Narayan.
3. It is important to note that in the Record of Rights Narayan and Krishnarao were regarded as holders of eight annas share each in respect of the suit lands. After the death of Krishnarao in 1918, the name of Yamunabai, Krishnarao's widow, was entered in his place in the Record of Rights as the holder of eight annas share. No doubt, Narayan and Krishnarao were described as joint holders in the Record of Rights, but it is important to note that Narayan was senior to Krishnarao, and if the property had descended by survivorship, Yamunabai's name would not appear at all.
4. There were various circumstances alleged and proved on either side, and the Court of first instance considered them fully and came to the conclusion that Krishnarao and Narayan continued joint till the death of the former and were not separated in interest as alleged by the plaintiff. As a result of this finding the suit came to be dismissed.
5. On appeal, the learned District Judge felt it necessary to revalue the entire evidence for reasons which will soon be mentioned and while proceeding to draw his conclusion from the evidence, the learned Judge made a special reference to the entries from the Record of Rights, discussed the oral evidence, and ultimately came to the conclusion that the finding of the trial Court was wrong and allowed the appeal.
6. Were it not for the contention which has been raised at the bar in connection with the decision in the case of Dagadu Govind v. Sakhubai ILR(1923) 47 Bom. 773, 25 Bom. L.R. 806, on which the learned District Judge relied, the point in this case would have been a simple point of fact as remarked by the Privy Council in Palani Ammal v. Muthuvenkatachala (1924) 27 Bom. L. R 733.. But Mr. Rele for the appellant argued that the learned District Judge went wrong in placing reliance upon the decision in Dagadu Govind v. Sahhubai, to the exclusion of various other rulings amongst which he mentioned the Privy Council decision in Palani Ammal v. Muthuvenhatachala and the rulings in Babanna v. Parana : (1926)28BOMLR1446 and Bhimabai v. Gurunathgouda : AIR1928Bom367 . On a consideration of all these rulings, I find that the rulings are all reconcilable and there is no error of law in the judgment of the District Court. It is clear that, according to Hindu law, a partition between coparceners may be partial either in respect of property or in respect of the persons making it. In the case where all coparceners effect a separation of some of the joint property, the principle to be applied is the one in Dagadu Govind v. Sahhubai ILR (1923) 47 Bom. 773, 25 Bom. L.R. 806 and in Beni Parshad v. Mst. Gurdevi ILR (1923) Lah. 252 and the principle would be that where ' coparceners in a joint Hindu family come to partition and divide the joint property with the exception of a portion of it, they are, in the absence of any indication to the contrary, tenants-in-common with reference to the excepted property unless and until a special agreement to hold as joint tenants is proved. But where the partition is partial not in respect of the property but in respect of the persons making it, so that, where some of the various joint tenants separate from the rest, it has been held by a long current of authorities that the remaining coparceners without any special agreement amongst themselves may continue to be co-parcenars and enjoy as members of a joint family the remaining property and the question whether or not they continue to be joint or separate is to be determined on the evidence in each case : see Babanna v. Parava : (1926)28BOMLR1446 and Bhimabai v. Gurunathgovda : AIR1928Bom367 .
7. This is a case in which, as stated above, all the four brothers effected a partition of a portion of the joint family property and as to the property that remained in course of time two of the four brothers separated. It is thus clear that this is a case in which on the facts as stated above, the principle in both the sets of rulings will be applicable. It seems that the trial Court bad not paid regard to the principle laid down in the case of Dagadw Govind v. Sakhubai, for it remarks in paragraph 8 that on the partition of the jahagir income the ancestral land remained joint. Having reagard to these circumstances, I do not think that the learned District Judge was wrong in remarking that the learned Subordinate Judge of the first Court had taken no notice of the ruling in Dagadv Govind v. Sakhubai.
8. Mr. Rele contended that the revaluation of the entire evidence by the learned District Judge was halting in its result because the learned District Judge did not take into consideration the rulings in Babanna v. Parava and Bhunabai v. Gurwnathgouda, mentioned above. I do not think that the judgment of the District Court requires to be disturbed on this ground. The learned District Judge did go into the evidence to decide the point whether Narayan and Krishnarao were joint.
9. In order that a point of some importance to the parties to this litigation should be fully considered, I allowed the appeal to be argued on facts and I have gone into the whole available evidence in order to satisfy myself as to which of the two discordent views of the lower Courts is correct. I can do that under Section 103 of the Code of Civil Procedure and on consideration of the evidence I am entirely in agreement with the finding recorded by the lower appellate Court. The only things which could be said in favour of the present appellant are : (1) that Krishnarao allowed a decree to be passed against him and Narayan in respect of the mortgage bond passed exclusively by Narayan; (2) that the assessment of the suit lands was recovered out of moneys that were paid over to Narayan in connection with, his jahagir income ; and (3) that the presence of the word in the extract from the Record of Rights is probably suggestive of the view that the brothers were joint. Other points of fact were also argued, but I am referring only to those that are very pertinent.
10. As to the first of the three points mentioned above, I say that there may be some reasons why Krishnarao submitted to that course, and Krishnarao being dead the present plaintiff is not expected to give us any useful information on the point. Narayan, Who should have been able to give information on the point, did not care to go into the witness-box or get himself examined by obtaining a commission. Not only Narayan did not care to place before the Court all the facts which must be within his knowledge, but defendant No. 1, who was really the contesting defendant and stood to lose the case if his contentious were not accepted, did not care to secure the necessary information by obtaining it from Narayan by either citing him as a witness or getting an order to examine him on commission. This circumstance has a great significance-if we look to the decision of their Lordships of the Privy Council in Gurbaksh Singh v. Gurdial Singh : (1927)29BOMLR1392 , and the remarks at page 1398 may be usefully referred to. It is the bounden duty of a party, personally knowing the facts and circumstances, to give evidence on his own behalf and to submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case. Under these circumstances it cannot be said that the mere passing of a decree against Narayan and Krishnarao can be said to be a significant fact. The same can be said about the point of payment of assessment mentioned above, and as to the description in the Record of Eights I feel myself more in favour of noting, what I have already stated above, that having regard to the way in which things ordinarily go on in a Hindu joint family, the appearance of the name Yamunabai, the widow of Krishnarao, is destructive of the theory of survivorship and promotes the case of separation.
11. After referring to these points urged in favour of the appellant, I need only refer to one or two circumstances which also militate against the view advanced on behalf of the appellant. Thus, we find that when Krishnarao died, he had left some moneys in the Postal Savings Bank and that amount was recovered after his death by his widow in spite of Narayan's endeavour to the contrary. Then we have the fact that Krishnarao had a separate money-lending business.
12. The effect of all these facts and circumstances points in my view to the conclusion that Narayan and Krishnarao could not be said to be joint tenants with the result that on Kishnarao's death, Narayan, the last survivor, became entitled to the whole property in suit.
13. I should have mentioned that the Mukhtyar of Narayan was examined in the case at Exhibit 26. He said that he was not able to say what Krishnarao and Narayan did about the income of the suit lands. This is a point on which the Mukhtyar should have been well informed because on the date on which he was examined, Narayan was certainly alive. A statement of this nature is not calculated to further the cause of a master who himself stays away from Court.
14. For these reasons I confirm the decree of the lower appellate Court and dismiss the appeal with costs.