A.N. GROVER, J.
1. This is an appeal from a judgment of the Andhra Pradesh High Court. The following genealogical table showing the relationship of the parties and other persons so far as relevant for the purpose of this appeal is as follows:
“RAJA NANAK BAKSH
Raja Behari Pershad (died in 1906)
daughter died in 1932 married in 1890 Raja Kundanlal d. 21-10-1950
son Raja Karan Pershad Drowpadi Devi
married to Barkat Rai
No. 2, died
son Chandra Rekha (daughter) adopted on 23-4-1959
(Plaintiff), died on
Prior to the year 1900 certain disputes arose between Raja Behari Pershad and Maharaja Kishen Pershad. These disputes were settled by the Firman of the Nizam. The Jagir villages of Raja Behari Pershad were handed over to Maharaja Kishen Pershad for management. The Maharaja was made responsible for payment of Rs 30,000 yearly in three instalments to Raja Behari Pershad. Raja Behari Pershad continued to receive this amount till his death in the year 1906. After his death Maharaja Kishen Pershad wanted to reduce the annual amount of payment to the heirs of Raja Behari Pershad to Rs 15,000. The matter went to the Nizam again who directed on March 21, 1914, that the full amount of Rs 30,000 was to be paid to the heirs of Raja Behari Pershad. On January 27, 1910, Raja Kundan Pershad who had married Rani Rukimini Bibi the only daughter of Raja Behari Pershad purchased, by means of a sale deed executed by Mohammed Hussain, 66 Bighas of land situate in Hyderabad city for Rs 13.20 of the Mehboobia currency (equivalent to approximately Rs 1000 of Indian currency). On October 16, 1920, he sold to one Waman Ramchandran Naik, 16 Bighas of land out of 66 Bighas of land for a consideration of Rs 24,000 Osmania currency. From 1921 to 1929 the property known as “Kundan Bagh” was constructed. In the present appeal we are only concerned with that property which is mentioned in Schedule A of the plaint. Rani Rukimini Bibi died in the year 1932. In 1938 Jitender Pershad the son of Raja Karan Pershad the appellant married Kunwar Rani the present respondent.
2. It appears that after the death of Raja Kundan Lal disputes arose between the father and son, namely, Raja Karan Pershad and Jitender Pershad. On January 5, 1959, Jitender Pershad filed a suit impleading his father Raja Karan Pershad and his mother Smt Brij Rani for partition and separate possession of half share in the properties mentioned in Schedules A, B, C and D to the plaint. According to his pleadings he along with his father Raja Karan Pershad constituted a Hindu undivided coparcenary family. He claimed that he was entitled to half share in all the family properties. In the written statement it was pleaded by Raja Karan Pershad Defendant 1 with regard to Schedule A property that during the lifetime of his mother Rukimini Bibi and after her death Raja Kundan Lal was drawing the monies payable by Maharaja Kishen Pershad to the heirs of Raja Behari Pershad and spending the same with their consent. It was from these monies that the land had been acquired during the minority of Defendant 1. Raja Kundan Lal had no source of income of his own and the construction of the bungalow, out-houses and other appurtenant buildings known as “Kundan Bagh” was started during the minority of Defendant 1 on the land. The income or the amounts, aid under the Nizam's Firman were utilised in the construction of these buildings. It was claimed that the dealings relating to the aforesaid property were in the name of Raja Kundan Lal because originally the sale deed had been got executed in his name. It was thus asserted that the Schedule A property was not joint family property and had been acquired and built upon with the monies belonging to Rani Rukimini Bibi and after her death the first defendant became the sole owner thereof. The second defendant, namely, the mother of the plaintiff adopted the written statement of her husband Defendant 1.
3. The trial court held that Raja Kundan Lal had no independent source of income and the Jagir income was the exclusive property of Rani Rukmini Bibi. The properties acquired by Raja Kundan Lal in these circumstances must be deemed to be the properties of Rukmini Bibi. It was also held that there was no evidence that Raja Kundan Lal left any nucleus of joint family properties. The trial court came to the conclusion that the property in dispute in Schedule A was not coparcenary property and the suit was dismissed. On appeal the High Court reserved the decision of the trial court in respect of properties covered by Schedule A. It was held that Raja Kundan Lal had independent source of income for acquiring the land and had sufficient amounts to construct on that land. As Defendant 2 had not claimed any share in partition the High Court ordered that the plaintiff would be entitled to half share in the Schedule A properties.
4. A direction was also made for rendition of accounts relating to profits in respect of those properties. It may be mentioned that during the pendency of the litigation Defendant 2 and the plaintiff died on February 9, 1964 and February 2, 1965, respectively.
5. The argument raised on behalf of the appellant before us was essentially based on the admitted and proved facts that the Jagir money which was payable under the Firman of Nizam was to be paid only to the daughter of Raja Behari Pershad and after her death to her heirs.
6. Raja Kundan Lal belonged to the Punjab and evidence was led to show that he did not have any property of his own nor was he doing any business from which it followed that he could not possess even Rs 13.20 of the Mehboobia currency for acquiring the land in the year 1910 and for putting up construction on it subsequently from 1921 to 1929. He was stated to be a mere Khana-Damad or the Gharjamai and although the various documents were in his name the source of money was the payment made by Raja Kishan Pershad pursuant to the Firman to Rani Rukimini Bibi and to her heirs, namely, Defendant 1 after her death. On behalf of the plaintiff, however, evidence was led according to which a fairly large amount had been paid to Raja Kundan Lal as “Var Dakshina” at the time of his marriage. It was common ground that the custom of giving clothes, Jewels and cash to the bridegroom existed in the community to which the parties belonged. Rai Barkat Rai, PW 5, who was referred in 1906 to Drowpadi Devi the daughter of Raja Kundan Lal deposed that Raja Kundan Lal was doing business of his own also. But it is unnecessary to decide whether his version on this point should be believed. We are unable to accept that Raja Kundan Lal could not have possessed even a paultry sum of Rs 13.20 when he purchased 66 Bighas of land with it. He must have received a substantial amount of presents at the time of his marriage and even thereafter it stands to reason that his wife Rani Rukimini Bibi must have been making either presents or gifts to him in some form or the other. Defendant 1 himself admitted that even the brothers of Raja Kundan Lal who had come over to live with him were being paid monthly allowance by Raja Behari Pershad. Rai Barkat Rai, PW 5, stated that Raja Kundan Lal was getting an allowance from Raja Behari Pershad and according to his information it amounted to Rs 400 per month. Even if this figure be not accepted as correct as PW 5, had no personal knowledge thereof it can well be believed that Raja Behari Pershad must have been giving a personal allowance to Raja Kundan Lal, his son-in-law, when such allowances were being given even to his brothers. The land which was acquired in 1966 as also the entire subsequent dealings with the properties in Schedule A show that Raja Kundan Lal was the owner. Once it is held that Raja Kundan Lal was in a position to acquire 66 Bighas of land for Rs 13.20 Mehboobia currency with his own money the position becomes fairly simple. As stated before he sold in October, 1920, a portion of the land for Rs 24,000. This amount could thus well be utilised by him during the period 1921 to 1929 when the buildings wore constructed. The High Court relied on the gift deed Ext. A-12, dated December 17, 1936, by which Raja Kundan Lal gifted a portion of the Kundan Bagh in favour of his daughter Drowpadi Devi. The recitals in that document also show that the property was the self-acquired property of Kundan Lal. It is needless to discuss other evidence to which the High Court referred for reaching the conclusion that the items mentioned in Schedule A were the self-acquired properties of Raja Kundan Lal. We have ourselves persued the evidence to which our attention was invited by the learned Counsel for the appellant and we are satisfied that, from the entire facts and circumstances as also the documentary and other evidence, Raja Kundan Lal was the owner of Schedule A properties. The evidence which was led by Defendant 1 was hardly sufficient to discharge the burden which lay upon him in the circumstances of the present case to establish that these properties belonged to him exclusively and did not form a part of the joint family estate.
7. It was contended before the High Court that even if the plaintiff was entitled to a share such share would come to 1 /3 only and not half. The High Court did not accept that contention because there was nothing in the written statement of Defendant 2 to suggest that she was also claiming a share in the joint family properties. We do not consider that would be the correct approach. There was a disruption of the coparcenary as soon as Jitender Pershad instituted the suit for partition. Defendant 2 became entitled to 1/3 share and merely because she did not ask for any share specifically in her written statement she could not be denied her share on partition taking place in the absence of any proof that there had been abandonment or waiver on her part of her rights and interests. It is very doubtful if such abandonment or waiver can be inferred merely by not asking specifically for a share. It must be remembered that in her written statement Defendant 2 had fully supported the case of Defendant 1. It was immaterial if she did not say that she should be given her share if the Court granted a decree for possession by partition to the plaintiff. It would further appear that after the enactment of the Hindu Succession Act, 1956, the interest of Defendant 2 became absolute under the provisions of Section 14(1) of that Act once the shares became ascertainable by severance of the joint family status on institution of the suit by the plaintiff. She could not lose her absolute rights in her share by an omission to make a specific claim to it in the written statement which she filed in the present suit. In this view of the matter it is not disputed that the plaintiff would be entitled only to 1/3 share in the Schedule A properties.
8. In the result the appeal succeeds to the extent that the decree granted by the High Court shall stand modified by the share granted to the respondent being altered from half to 1/3. In all other respects the appeal shall stand dismissed. The respondent will be entitled to proportionate costs in this Court.