This is a plaintiffs' appeal arising out of a suit for declaration of title, and in the alternative for possession. The plaintiffs are the grandsons of one Fakire, who was the first cousin of Sardar Singh deceased, whose grandsons are the contesting defendants. On the death of Sardar Singh, which took place in 1907 it is an admitted fact that the name of his widow, Musammat Mathura Kunwar, was recorded over the semindari property and the sir plots standing in his name. The plaintiff, however, alleged that he and his brother Fakire and the third brother Dunyapat, who had died previously, were all members of a joint Hindu family, and that the name of Musammat Mathura Kunwar was recorded fictitiously for her conflation that, as a matter of fact, the plaintiffs have remained in actual possession of the property all along. Musammat Mathura Kunwar died in 1923 and on her death, her daughter's sons succeeded in getting their names entered in the revenue papers in spite of the opposition of the present plaintiffs, hence the present suit.
The defendants contested the claim pleading that there had been a separation of the three branches of the family before the Settlement of 1871, and that in any case on the date when Sardar Singh died he was a separated Hindu and his widow succeeded to the estate, and after her death the defendants became the heirs. The learned Subordinate Judge has found the issue in favour of the defendants and has dismissed the suit.
There can be no doubt that the presumption of jointness was, to start with, in favour of the plaintiffs. They were the nephews of Sardar Singh and their father Fakire Ram was his first cousin. There was, therefore the presumption that they were joint. The burden lay on the defendants to rebut that presumption. On behalf of the defendants both documentary and oral evidence was led The Settlement Khewat of 1871 showed that the names of the brothers Dunyapat and Fakire Etm and their own nephew Sardar Singh were separately recorded against various khatas, and that in some khatas even the sceares of these were denned. The khewat also shows that in defining the shares the two brothers were not always given equal shares, aad that in some cases Sardar Singh's name was altogether omitted and in others Sardar Singh's name alone was entered. The learned Subordinate Judge has relied very strongly on this piece of evidence, and has considered that the inequality of the shares of Sardar Singh, Fakire Ram and Dunyapat was a very strong circumstance in favour of proof of the separation in the family. Similarly there was one khatauni of the time of the settlement produced which showed that Dunyapat was recorded as the tenant of one plot and Fakire Ram was recorded as the tenant of another plot. The name of Sardar Singh was not recorded against any plot at all. The second set of papers produced by the defendants consists of Khataunis for 1319 and 1320 Faslis which show that the name of Musammat Mathura Kunwar is recorded against some plots exclusively and is recorded jointly with those of Suraj Prasad and others against some other plots.' Those very khataunis also show that the names of other widows in the family of Suraj Prasad are also recorded jointly with them, e.g., the names of Musammat Sheo Kunwar and Musammat Dhiraj Kunwar, widows of the deceased members of Suraj Prasad's family. The names of these widows are recorded against a very large number of plots. So far as the documentary evidence is concerned, we are of opinion that the learned Subordinate Judge has attached undue weight to the entries in these papers. In view of the pronouncement of their Lordships of the Privy Council in the case of Bhagwani Kunwar v. Mohan Singh we must hold that neither the denning of shares nor even the inequality of shares recorded in the names of the various members of the family is at all astrongpiece of evidence sufficient to rebut the presumption of jointness. In the above-mentioned case at page 598Page of 23 A. L. J.--[Ed], their Lordships quoted in ex-tenso the entries in the Khewat of 1873 showing that at some places a share was recorded as being owned by a single man and at other places unequal shares were recorded in the names of the members of different branches, and in all cases there was a specification ai shares, Having quoted the entries their Lordships remarked that 'they do not draw from the above entries or from any other similar entries whioh were made in the Revenue Settlement of 1873 to which they ware referred any inference that one member has separated from his cousin or there had been any separation in the joint family.' Their Lordships remarked that a definition of shares in the revenue and village papers by itself afforded a very slight indication of an actual separation in a joint family, and was insufficient to prove, contrary to the presumption of law, that the family to which the entries referred had separated. We are accordingly bound to hold that these entries are not of sufficient weight to overturn the presumption.
In our opinion this ruling of their Lordships would apply with equal force to the khataunis. Furthermore, the mere fact that one member of the family is recorded as tenant of one plot and another member as tenant of another plot does not by any means suggest that the family was separate.