1. These are two second appeals which arise out of the decree passed in Suit No. 212 of 1950 which was modified in Appeal No. 233 of 1951 of the file of the District Courb at Kolha-pur.
2. Pandurang and Shankar were two brothers. Pandurang died in April 1949 leaving him surviving his widow Laxmibai. Laxmibai filed Suit No. 212 of 1950 in the Court of the Second Joint Civil Judge, Junior Division, at Kolhapur, for par-tition find separate possession of her one-half share in the suit properties alleging that the suit properties were originally joint family properties, but in June 1946 her husband' Panduvang and the defendant had decided to effect a partition and in fact the house at Kolhapur was partitioned and the lands at Shiye were thereafter jointly leased by Pandurang and the defendant and the rent was shared in equal proportion by them till the death of Pandurang on 1-4-1949. The plaintiff, therefore, claimed possession of her half share in the house as well as the lands by partition by metes and bounds.
3. The defendant by his written statement contended that there was no partition as alleged by the plaintiff. He pleaded that he and Pandu-rang were living and messing separate for the sake of convenience as the plaintiff and the defendant's wife were unable to live harmoniously in the same house.
4. The learned trial Judge held that the plaintiff failed to prove the partition alleged by her; and on that view of the case he dismisses the plaintiff's suit. An appeal was preferred to the District Court against the decree passed by the trial Court. In appeal the learned District Judge held that there was partition with regard to the house at Kolhapur between the two brothers Fandurang and Shankar.
He held, however, that there was no severance of the joint family status between the two brothers with regard to the two lands at Shiye. The learned appellate Judge accordingly modified the decree passed by the trial Court and awarded to the plaintiff a half share in the house at Kolhapur and dismissed! her claim for a half share in the lands.
5. The plaintiff and the defendant felt aggrieved by the decree passed by the District Court Trie defendant has filed Second Appeal No. 339 of 1953 against the decree of the District Court in so far as it awards to the plaintiff a half share in the house at Kolhapur. The plaintiff has filed Second Appeal No. 349 of 1953 in so far as the District Court's decree denies to her a 1/2 share in the two lands at Shiye.
6. Now the learned District Judge has, on a consideration of the evidence and relying upon a postcard Ex. 24, come to the conclusion that there was a division of the Kolhapur house between the two brothers prior to March 1S4G. It was conceded by the defendant that he and Pandurang were living and messing separately. The plaintiff deposed that there was a division between the two brothers and her statement was. supported by inferences which arose from the letters written by the defendant, and especially Ex. 24.
The learned appellate Judge held relying upon that evidence that there was partition between defendant and Pandurang. That conclusion of the learned appellate Judge is based upon appreciation of evidence and is binding upon this Court in. second appeal. The defence raised by the defendant, therefore, fails.
In Second Appeal No. 339 of 1953 the only question raised by the defendant related to the partition between him and Pancluraiig. As the finding of the District Court in that behalf is binding upon this Court the appeal filed by the defendant must fail. Second Appeal No. 339 of 1953 is accordingly ordered to be dismissed with cost.
7. The learned Appellate Judge held that even though Pandurang and the defendant had divided the house they continued to be joint in respect of the lands at Shiye. The attention of the learned Appellate Judge it appears was invited to Section 328(2) of Sir Dlnshaw Mulla's Hindu Law Edn. 11. at page 433. He referred to the first sentence in that section in support of his conclusion that Pandurang and the defendant had put an end to the joint family status qua the house and not the lands.
That there may be a partition between members of a joint family which is partial cannot be denied. But as observed by Sir Dinshaw Mulla in the same paragraph
'where there is evidence to show that the parties intended to sever, then the family status is put an end to, and with regard to any portion of the property which remained undivided the presumption would be that the members of the family would hold it as tenants-in-common unless and until a special agreement to hold as Joint tenants is proved''.
That statement of the law is based upon the decision in 'Dagadu Govinda v. Sakhubai Nana', AIR 1924 Bom 31 (A) where this Court held that
'where coparceners in the joint Hindu family come to a partition and divide the joint property with the exception of a portion thereof they are, in the absence of indication to the contrary, ten-ants-in-common with reference to the excepted property'.
It is evident that partition of some property in the joint family raises a presumption that the partition is complete; and it is for the party alleging that the partition was not complete to prove that some property was intended to be kept joint. As I have pointed out earlier, the defendant contended that there was no partition between the two brothers. it was not his case that there was partition between the two brothers which was partial in the sense that part of the joint family property only was intended to be divided and the remaining property was intended to be kept as joint family property.
The learned District Judge in the Court below did not refer to the rule that where there is evidence of intention to sever the joint family there is a presumption that the severance is complete. He appears to have been of the view that it was for the plaintiff to establish that in order to obtain a share in-the Shiye lands that Fandurang and the defendant intended to put an end to the joint family status in respect of these lands.
In so holding the learned Appellate Judge was in my judgment in error. The defendant led no evidence to show that the presumption arising in favour of a complete partition stood rebutted. The plaintiff is, therefore, in my view entitled to a decree for partition even in respect of two lands at Shiye.
8. The Second Appeal No. 349 of 1953 will, therefore, be allowed and the decree passed by the District Court will be modified and it will be declared that the plaintiff is entitled to a half share in the house at Kolhapur and the two lands at Shiye. The rest of the plaintiff's claim will be dismissed.
The partition of the house will be made bythe Commissioner. The partition of the two lands. at Shiye, which are agricultural lands will be effected by the Collector. The plaintiff will be entitled to her costs in the trial Court and of appeal No. 233 of 1951 in the District Court and inthis appeal from the defendant.
9. Orders accordingly.