S. Barman, J.
1. The question,--whether, in the circumstances of the case, there was partition by severance of status, though not by metes and bounds,--is the only point involved in this second appeal filed by the plaintiff and defendants 1, 2, 5 to 8 against a reversing decision of the learned subordinate Judge, Puri, whereby he set aside a decision of the learned Munsif, Navagarh, and decreed the plaintiffs suit for partition for his one-third share in the property.
2. A geneological table, showing the relationship of the parties,--other than the outsider purchasers from the members of the joint family, who are also defendants in the suit,-- is set out asfollows:
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Bhagwan Hadu Ladu (died 1944)
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Banchhanidhi | __________|____________
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| Jema (D.3) Asali (D.4)
(D. 1) (D. 2)
(D. 5) (D. 2)
(D. 6) (D. 7)The facts are few and simple. The plaintiff Banchhanidhi filed a suit for partition of the family properties belonging to the three branches as shown above. The plaintiff claims half share in the suit properties, on the allegation that Ladu, the third brother died in 1944 without any male issue; accordingly, Ladu's share survived to the other two branches of Bhagawan and Hadu; that of the three brothers (Bhagawan, Hadu and Ladu) Ladu died in jointness; accordingly, the plaintiff Banchhanidhi claimed half of the entire share of Ladu. The plaintiff's case, shortly stated, is this: the defendants 1 and 2 (sons of Hadu) had made alienations to third parties; defendants 3 and 4 (daughters of Ladu) had also made alienations to certain purchasers defendants 10 to 13; that the alienations, made by Ladu's daughters defendants 3 and 4, are not binding on the joint family, because the daughters had no interest in their father Ladu's property; with regard to the alienations made by defendants 1 and 2, the plaintiff's case is that they wrongfully claimed some of the properties as self-acquired properties'.
The alleged cause of action for the suit was that Ladu's daughters, by force, had taken possession of certain properties, and entries were caused to be made in the records in their names in respect of the properties; the plaintiff thereupon, filed the suit, in which his first prayer was for partition of the properties, the plaintiff for himself claiming one-third share interest in the joint family properties: in the alternative, he prayed that, in case Ladu's daughters defendants 3 and 4 are found by the court, according to justice and equity, to have no interest in the suit properties, then he prayed for partition claiming half share in the properties.
3. The common defence,--taken by Ladu's daughters defendants 3 and 4 and the purchasers from them defendants 10 to 13,--was that, although there was no complete partition by metes and bounds there was severance of status of the joint family 20 years ago, so as to entitle Ladu's daughters defendants 3 and 4 to the properties which, they, in their own right, had sold to defendant purchasers 10 to 13. The defence pf the second branch (Hadu's branch) of the family, namely, of defendants 1, 2, 5, 6 and 7 is that the Kha schedule properties were self-acquired and not available for partition.
The trial court found that there was no partition by metes and bounds; that Ladu died in jointness: that the sales by Ladu's daughters are without legal necessity; that Ladu's share survived to the other two branches of the family, and accordingly the plaintiff, representing his father Bhagawan's branch of the family, had acquired eight annas interest; with regard to Kha schedule properties it was found that they were not self-acquired by Hadu's branch and therefore they belonged to the joint family; with regard to the sales by Ladu's daughters defendants 3 and 4 to their purchasers defendants 10 to 13, it was held that the sales were without legal necessity and accordingly not binding on the plaintiff; that the alienations by defendants 1 and 2 to their sons are benami, and so the properties purported to have been so alienated are available for partition; accordingly the suit was decreed for partition with the declaration that the plaintiff was entitled to eight annas share in the joint family properties.
Ladu's daughters defendants 3 and 4 and their purchasers defendants 10 to 13 preferred an appeal against the said decision of the trial court; there was no appeal preferred by defendants 1 and 2. The learned lower appellate Court found that although there was no partition by metes and bounds, but there was proof of severance of status as established by circumstantial and also documentary evidence: that Ladu's daughters defendants 3 and 4, inherited Ladu's share; the plaintiff, accordingly, was entitled to one-third share in the joint family properties; that the defendants 1 and 2 not having filed any appeal, the finding of the trial Court with regard to Kha schedule properties that they are not self-acquired is final; with regard to the alienations by defendants 1 and 2, the finding of the trial court that they are benami was confirmed; the alienations by defendants 3 and 4 to the purchasers are binding on the plaintiff; accordingly, in modification of the trial court's decision, the learned lower appellate court granted a preliminary decree for partition of the suit properties into three equal shares, the plaintiff's share being declared one-third therein. Hence this second appeal.
4. The only point for consideration, is whether finding of the learned lower appellate court, that there was partition of the family by severance of status, is correct. Mr. B.K. Pal, learned Counsel for the appellants representing the first and second branch of the family,--contended that the only defence being that there was partition by metes and bounds and both the courts having disbelieved the defence witnesses on the point, the Court cannot make a third case that there was severance of status, established by circumstantial evidence. The decision of the lower appellate court on the point was mainly based on two documents namely, Ext. A-5 and Ext. 1.
Now, Ext A is a sale deed dated June 10, 1949 by defendant No. 1 Padmanava, in favour of his sons, on the basis that he had certain share in the property. The appellants' stand is that both the Courts below having found it to be benami transaction, this document should be discarded altogether. In support of this contention Mr. Pal relied on a decision of the Privy Council in Ramanna v. Jagannadha Rao, AIR 1941 PC 48 where it was held that the reference to their interest, as represented by fractional share by coparceners in a deed embodying a sham agreement of sale where one of them purports to transfer his share to the other merely for the purpose of pretence,--cannot have the effect of changing the undivided status of the parties contrary to their intention to remain joint and undivided. The Privy Council case was in the context of a deed of sale where one of the coparceners purported to sell his one-tenth interest therein to his brother.
It was laid down by their Lordships to the effect that the crux of the question is whether or not there was intention on the part of the coparceners to remain joint and undivided: if such ah intention can be gathered from facts and surrounding circumstances, then undoubtedly any such transaction,--of the nature of a sale deed in the Privy Council case or Ext. A-5 sale deed in the present case both for the purpose of pretence,--cannot have the effect of changing the undivided status of the parties, contrary to their intention to remain joint and undivided. This, therefore, leads to the consideration of the very root of the matter--whether such intention on the part of the coparceners to separate was established by facts and circumstances in the present case. In the absence of documentary evidence, the conduct of the parties has to be looked into to gather the presence orabsence of such intention on the part of the coparceners to separate.
In the present case, what rightly weighed with the learned lower appellate Court is the circumstance that the plaintiff himself made his case claiming one-third share which is the first prayer in his plaint on the basis of severance of status of the family; it is thus significant that the plaintiff's primary claim is for one-third share on the basis of notional partition by severance of status; his secondary claim was for half share in the properties in the alternative. That apart, the statements in the body of the plaint itself, clearly show that the plaintiff primarily based his claim on severance of status of the Family.
Then, the other document, on which the applicants rely, is Ext. 1. The position that there was a severance of status of the joint family is quite clear from the proceedings before the Revenue Court in the Mutation case which started with a petition dated June 26, 1947 (Ext. 1) by defendant No. 2 Ramchandra claiming to be the adopted son of Ladu; the stand on alleged adoption, however, was disallowed by the Revenue Authorities, as appears from Ext. C--mutation order dated August 8, 1948 in favour of defendants 3 and 4 in the Mutation case No. 2158 of 1947-48, clearly finding that Ladu was separate in mess and property, and as such the question of survivorship to the other two branches did not arise. It also appears that Ex. N, order dated November 29, 1948 of the District Magistrate, Navagarh, made in Misc. Appeal No. 41 of 1948-49, arising out of a petition for revision of the said previous order dated August 9, 1948,--also confirms the position that there was severance of status of the joint family.
Furthermore, Ext. H--Rayati Patta in favour of defendant No. 9 Madhab Jena also confirms the aforesaid position with regard to the severance of the joint family. That apart, the rent receipts Ext. B series,--showing payment of rent separately covering a period of continuously from 1950 until the suit was filed in 1954,--also indicate the severance of the joint family. The further striking feature is that the alienation by the members of the family were being made from as early as 1948 inasmuch as defendant No. 1 by a sale deed dated May 17, 1948 (Ext. K) sold certain properties to defendant No. 8; thereafter defendants 3 and 4 also alienated in favour of defendants 9, 10 and 11 certain properties by sale deed Exts-A, A-3 and A-4 all dated August 18, 1948; thereafter the defendants 3 and 4 again sold to defendant Nos. 12 and 13 certain properties by sale deed Exts. A-l and A-2 both dated August 30, 1948. It is significant that no objection was ever taken by the appellants to the said alienations, until six years thereafter when the present suit was filed.
In my opinion, subsequent conduct of the parties is evidence of the real position; if the appellant's case that there was no partition even by severance of status, then certainly the normal reaction to all these successive alienations of the properties by members of the family, would be to immediately to protest to such alienations. There is, however, no evidence of even such a protestfrom any quarter, far from going to court-which they did not until six years thereafter in 1954 by way of the present suit. Besides, Ladu's daughters defendants 3 and 4 are in possession of the remaining disputed lands which have not been sold; and they, who both are married, are still in possession of their father's house.
The cumulative effect of all these pieces of evidence, taken together, leads to the only inference that there was a clear intention on the part of the family members of having separated long before and it was on that basis that the members of the family behaved and dealt with the properties of the family. Indeed, the structure of the plaintiff's suit itself shows, as appears particularly from paragraphs 1, 4, 13 and 15 of the plaint, that the basis of the suit was on the position that the family was divided in status. It is clear that the appellant's idea is to oust the daughters of Ladu defendants 3 and 4 from the same.
5. Though, the general principle is that a, Hindu family is presumed to be joint unless the contrary is proved, yet where it is admitted that the coparceners dealt with the properties on the basis that they separated themselves from the joint family, there is no presumption that rest of the coparceners continued to be joint. In the ultimate analysis, it would be a question of fact to deter-mine, in each case, upon the evidence relating to the intention of the parties, whether there was a separation, amongst the coparceners or they remain-ed united, and the burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claimed relief. Thus, in the present case, the onus falls on the plaintiff to show that his uncle Ladu was joint until he died. If Ladu had, in fact, died in jointness, the plaintiffs case in the plaint would have been specific, pointed and categorical, namely, that Ladu died in jointness and that the plaintiff succeeded to his share by survivorship.
6. Thus, having considered the entire aspect of the case in the light of the evidence adduced, I am of opinion that there was a notional partition of the joint family by severance of status, and accordingly I agree with the finding of the learned lower appellate Court.
7. In view of this my decision on merits, I do not think it necessary to express any opinion on the point,--raised by Mr. Muralidhar Mohanty, learned counsel for the respondents,--that this appeal is not maintainable, for the ground that,--the court below having granted one of the two alternative reliefs, prayed for by the plaintiff,--it is not open to the plaintiff to file an appeal against such a decision to get half share which he claimed in the alternative.
8. My attention was drawn to an order made by the court in this Second appeal wherein it appears that defendant No. 9, who is respondent No. 16, died during the pendency of the first appeal before the lower appellate Court; so the question whether the first appeal abated was left to be considered during the hearing of this appeal; and the legal representatives of the deceased defendant were allowed to be substituted. The question of abatement was not pressed in this Second appeal.
9. In conclusion, therefore, the decision of thelearned lower appellate Court is upheld and thisappeal is dismissed but without costs of this Court.