1. This appeal arises out of a suit for partition of a house instituted by the appellant, Gauri Shankar, on the strength of a sale deed executed in his favour by defendant 2, Mt. Savitri. It was for partition of a half share out of one-third said to have been owned by Peare Lal and Gopal Das. Mt Savitri is Peare Lal's widow. Defendant 1, Gopal Das, defended the suit on the ground that Peare Lal died joint with him and the property in suit passed by right of survivorship to him. The important question to be decided therefore was whether Peare Lal died joint or separate from Gopal Das. It further appears that Savitri 4 years prior to the execution of the sale deed in favour of the plaintiff executed a document in favour of Gopal Das by which she professed to hand over the property, namely, her husband's half share, in suit to Gopal Das on his undertaking to pay her husband's debt and to maintain her. That document was registered in Kumbhakonam, whereas the property in dispute is situated in the District of Bulandshahr. It was held that the registration was invalid. The Court below however held that in spite of want of registration Section 53-A, T.P. Act, cured the defect.
2. The Courts below have agreed in dismissing the suit, holding that Peare Lal died joint with Gopal Das. In this Court it is contended that the learned Judge in the Court below approached the question of joint ness or separation from a wrong point of view and therefore committed an error and the finding is not binding on this Court and that the rule of law indicated in Section 53-A, T.P. Act, did not apply to the case. As regards the second point it has been held in Kanji and Moolji Bros. v. Shunmugam Pillai A.I.R. 1932 Mad. 734, that Section 53-A has no retrospective effect. I take the same view as in that case.
3. The only question then remains whether Peare Lal and Gopal Das were joint when the former died. It appears that it was not proved that Peare Lal and Gopal Das had any ancestral property in their hands. The mere fact that the two brothers lived together and acquired the property by a joint sale deed will not prove such jointness as would result in the application of law of survivorship, unless it was also proved that the two brothers had thrown their acquisitions into a joint stock so as to constitute a joint Hindu family. The Court below should have had this view of the law before it in examining the evidence on the record. The next matter for consideration is that having accepted the document dated 29th September 1924 from Savitri, the defendant subscribed to the statement of Savitri that her husband owned the property separately. The document could not be dismissed by a simple statement that it recorded Savitri's one-sided statement. The defendant relied on the document in his written statement and therefore the document contains as much an admission of himself as of Savitri. The Court below should have approached the case with this position in view. There remained some oral evidence for the consideration of the Court below. As the question of jointness and separation was approached from a wrong point of view, it is desirable that a fresh finding should be called for. As the appeal does not succeed on a preliminary point, I do not think that I should set aside the whole decree and send back the case for a retrial. The question of jointness and separation must be reconsidered. If the finding be in favour of the plaintiff, the question will still remain whether the house is too small for a proper partition and whether having regard to Section 4, Partition Act, the plaintiff should be allowed to be bought off by the defendants. This point has not been considered by the lower appellate Court.
4. Accordingly I remit the following issues for decision : (1) Whether having regard to the observations contained above in this judgment, Peare Lal and Gopal Das were members of a joint Hindu family and the half share of Peare Lal passed by right of survivorship to Gopal Das on Peare Lal's death? (2) Whether the house in suit is too small to be partitioned and whether in that case it should be sold and the value divided between the plaintiff and Gopal Das or whether some other suitable order and what order should be passed? (3) Whether Section 4, Partition Act, of 1903, is applicable to the case and, if so, whether the plaintiff's share in the property should be allowed to be purchased by the defendants? I allow two months' time for return of the findings. No additional evidence will be adduced. The usual ten days will be allowed for filing objections.