N.K. Das, J.
1. Plaintiff is the appellant against a reversing judgment in a suit for partition of his one-third share in the homestead left by one Chakradhar Naik in holding No. 313 measuring about Ac. 0.06 1/2 dec. and for delivery of possession of the same.
The admitted genealogy is given below.
| | | |
Bridhar Giridhari Gopi Nidhi
| | | |
Anadi (Plff.) Sanatan (D.5) _________________________________________________ Chakradhar
| | | |
Kunja Bhalga Jaiga Fagn
(dead) | (D. 1) |
| dead Farika (D. 4)
(D. 2) Prahallad=Rani (widow of Fagn)
| Gandharb (D. 3)
DilDei (D. 1) (ka) Raga (D.1) (kha).
2. From the genealogy stated below, it would appear that Madhab had four sons, namely, Sridhar, Giridhari, Gopi and Nidhi. Nidhi's son Chakradhar is unheard of for more than seven years. The dispute is in respect of his share in the properties. Plaintiff is the son of Sridhar. Giridhari's son is defendant No. 5 Gopi's son Jaiga was original defendant No. 1 and after his death defendants Nos. 1, 1 (ka) and 1 (kha) represent his line.
3. Plaintiffs case is that in 1923 there was a partition between the four sons of Madhab. The suit plots (Plots Nos. 1111 and 1167) came to the share of Gopi and Nidhi. During the current settlement the suit land was recorded jointly in thenames of Bhaiga, Jaiga (original defendant No. 1), Fagu and Chakradhar. There was mutual partition between the heirs of Gopi and Nidhi in which western portion of the suit land was possessed by Chakradhar and eastern portion was possessed by heirs of Gopi. Since more than seven years Chakradhar is unheard of and hence he is presumed to be dead, After statutory death of Chakradhar, the plaintiff is entitled to get one-third share in the homestead of Chakradhar. Defendants Nos. 1 to 4 have sold Ac. 0.05 decimals out of the disputed land to defendants Nos. 6 to 8 which is in excess of their share. Hence the suit.
Defendants Nos. 2 to 4 and 6 to 8 filed a joint written statement. Their case is that since long Sridhar and Giridhari were separate and there was no partition between Gopi and Nidhi. Chakradhar is not unheard of since more than seven years, plaintiff and defendant No. 5 were never in possession of the suit land. Defendants have acquired title by adverse possession.
4. The trial court held that the plaintiff and defendant No. 5 have got right, title and interest over the suit property; the plaintiff is not in possession of the suit property; defendants Nos. 2 to 4 have not perfected their title by adverse possession; Chakradhar is unheard of for more than seven years and, as such, plaintiff and defendant No. 5 each are entitled to one-third share and defendants Nos. 2 to 4 are entitled to one-third share in the suit property.
5. The first appellate court has held that there was no partition by metes and bounds between Gopi or Nidhi or Gopi's son and Nidhi's son and Chakradhar. The parties were in amicable possession of different portions according to convenience. So also Gopi's son and Chakradhar were in joint possession and enjoyment of the land which has been sold by defendants Nos. 2 to 4. From the evidence of witnesses of the plaintiff, it is to be held that none of them saw any partition deed evidencing partition between Gopi and Nidhi or Gopi's share or Chakra-dhar's share. As Gopi was living in one house and Nidhi was living in another house it cannot be said that there was any partition. Chakradhar and Giridhari were separate from each other and they were also separate from Gopi and Nidhi. Gopi and Nidhi were joint though they were putting up in different houses. Plaintiff and defendant' No. 5 have notbeen able to establish that there was separation between the four branches. Chakradhar's share will devolve on the heirs of Gopi as coparceners and plaintiff and defendant No. 5 will not be entitled to any share.
6. There is no dispute that Chakradhar was unheard of for more than seven years and the dispute rests on the question as to who would inherit his share in the suit property. Both the courts below have concurrently held that the defendants have not proved the case of adverse possession and that there has been no partition in the family even though the parties were in amicable possession according to convenience. These are findings of fact and cannot be challenged. Chakradhar is unheard of since more than seven years. Admittedly also no coparceners existed between the branches of Sridhar Gopi, Giridhari and Nidhi. The appellate court has come to the conclusion that Giridhari and Sridhar had separated from Gopi and Chakradhar and that Gopi and Chakradhar were living jointly. He came to the conclusion that Gopi's heirs will be deemed to be coparceners of Chakradhar. This finding is ab-solutelv wrong. Once disruption of a joint family status takes place, no longer the coparcenary exists. There is a divi-sion of status and the shares are ascertained. It has been held in a recent decision Kalyani (dead) bv L. Rs. v. Nara-vanan. AIR 1980 SC 1173, that where one of the five sons is separated unless the reunion is pleaded, other four sons cannot constitute a corporate body like a coparcenary by agreement or even by subsequent conduct of remaining together enjoying the property together. In this suit the defendants have not taken the plea of reunion nor there is any issue of reunion. Once there was a disruption of the joint status, the entire coparcenary comes to an and and the shares of different branches are ascertained. Even if Gopi and his heirs were living with Cha-kradhar they could not form a coparcenary nor there was any reunion. After' the statutory death of Chakradhar, each branch having a defined share in the pro-perty will be entitled to get the same, namely, Sridhars branch, Giridhari's branch and Gopi's branch. The shares should be stirpes (vide Mulla's Hindu Law, 14th Edition 895. Illustration No, 6). In view of the aforesaid position of law, the decision of the lower appellate courtis not tenable and the appeal should be allowed.
7. In the result, the Second Appeal is allowed and the judgment and the decree of the lower appellate court are set aside and the decision of the trial court is upheld. In the circumstances of the case, I make no order as to cost of this Second Appeal,