C.M. Lodha, J.
1. The subject matter of this second appeal preferred by the, defendants is suit for partition instituted by Ramgopal and his brother Shyam Sunder in respect of a house situated in the city of Jaipur.
The following pedigree table would show the relationship between the parties:
Kishanlal | Nathulal
| | |
Ramgopa Shyamsunder |
P. No. 1 P. No. 2 |
Laxminarain Sitaram Grokul
| D. 1 D. 2 Shri Ram
Narain Satyanarayan Gopilal
D. No. 4 D. No. 6 D. No. 5
3. The plaintiff's case is that no partition took place with respect to the house in question which is the ancestral property of the parties though the plaintiffs and the defendants have been occupying specific apartments in the house in question for the sake of convenience. They therefore prayed for partition of the house by metes and bounds.
4. The defendants Sitaram and others, who are in the line of Nathulal pleaded that there had been a partition of the house in question between the ancestors of the parties long back and that the plaintiffs and the defendants had been in separate and exclusive possession of the portions of the house which had fallen to their shares.
5. After recording the evidence produced by the parties the learned Civil Judge, Jaipur City decreed the plaintiff's suit for partition and declared that the plaintiffs' are entitled to half share in it and so also the defendants. It was further declared that the defendants Nos. 1 to 3 would be entitled to 1/8th share and the defendants Nos. 4, 5 and 6, who are the sons of Laxminarain would each get 1/8th share.
6. Aggrieved by the judgment and decree by the learned Civil Judge the defendants filed appeal in the Court of the District Judge, Jaipur City, who affirmed the judgment and decree by the trial court and dismissed the appeal. Consequently, the defendants have come in second appeal to this court. It may be stated here that during the pendency of this appeal the plaintiff-respondent No. 1 Ramgopal died and his sister Smt. Suraj Bai has been substituted as his legal representative.
7. The only point for determination is whether the courts below were justified in holding that the house in the question continues to be joint and that there had been no partition of the same between the ancestors of the plaintiffs and the defendants?
8. Learned Counsel for the appellants urged that the learned District Judge has erred in placing reliance on the affidavit dated 3-2-1943 (Ex. D, W. 1/C. 1) alleged to have been submitted by the plaintiff Ramgopal and the defendant Sitaram before the city survey authority. He has argued that Ex. 3 relied upon by the lower courts for bolding that in 1925 A.D. the ancestors of the parties, namely Bavan and Ramchandra were joint is inadmissible and has tot been correctly interpreted. Lastly, the learned Counsel has argued that the courts below have not currently appreciated the legal position as to the circumstances in which inference should be drawn that a Hindu family continues to be joint. On the other hand, learned Counsel for the respondents has urged that mere ceaser of commensality is not a conclusive proof of partition. It is submitted that there are no additional facts and circumstances in the present case which may go to show that there was a partition of the house in question. Learned Counsel for both the parties relied on a number of authorities in support of their respective submissions.
9. The law is well established that in absence of proof of division there is a presumption that a joint family continues to be joint. The strength of the presumption necessarily varies in every case. The presumption is the strongest in the case of father and sons. It is stronger in the case of brothers than in the case of cousins and the farther we go from the founder of the family the presumption becomes weaker and weaker. No doubt the presumption that a Hindu family continues to be joint is available when the question arise whether specific property which was admittedly joint at one time has continued to be joint or it bas ceased to be joint by virtue of a separation. If a joint family possesses property which was admittedly joint, the presumption would be that the property continues to be joint, and the burden would lie on the member, who claims it as his separate property to prove that there was a partition and that he got it on such partition. The presumption is peculiarly strong in the case of brothers, but almost nil in the case of third and fourth cousins. In Yellapa Ramappa v. Tispanna AIR 1929 PC 8 their Lordships were pleased to observe as follows:
The strength of the presumption necessarily varies in every case. The presumption of union is stronger in the case of brothers than in the case of cousins, and the farther you go from the founder of the family the presumption becomes weaker and weaker.
Their Lordships further quoted the following statement of law made by Mr. Justice West in 10 B. H. C. Reports 444:
The State of things shown to have existed is presumed to have continued, until the contrary be shown. But it is not inconsistent with this doctrine, and is, indeed, obvious that, as the course of nature itself brings about inevitable changes in a family, the presumption is one which grows weaker at each stage of descent from the common ancestor. Brothers are for the most part united; second cousins are generally separated. After a considerable lapse of time, testimony of the precise terms on which a partition was effected, and of the precise time at which it was made, will, in most cases, be wanting. The presumption that the old state of things continued, is at some point, met by the presumption that the present state of things had a legal origin, and it cannot be said that the Hindu law, in the form in which it has come down to this generation, looks on all separation of families with disfavour.
10. As would be clear from the pedigree table extracted above the parties are removed five degrees from the common ancestor Ramsewak. Consequently, for the present it will be sufficient to state that no presumption of the families of the parties being joint arises in this case.
11. As regards the evidence of partition and burden of proof also the legal position is clear. Mulla in his book on Hindu Law 1970 Edition has observed as follows at page 379, para 327:
4. The last case is of the kind dealt with by the Privy Council in Ganesh Dutt v. Jewatch (1904) 31 Cal. 262, that is, the case where there is no writing at all. In such a case, when the question arises as to whether there has been a partition or not, the intention of the parties as to separation can only be inferred from their acts. The question is one of the fact to be decided with due regard to the cumulative effect of all the facts and circumstances and primarily the burden of showing that there has been a partition is out the person setting it up.
In case of old transanctions when no contemporeneous documents are maintained and when most of the active participants in the transactions have passed away though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps in the evidence more readily by reasonable inference from the evidence on record than in a case where the evidence is not obliterated or lost by passage of time Bhagwan Dayal v. Reoti Devi 1962 S.C.J. 348.
12.In Ganesh Duttji Thakoor v. Jewach Thakoorani, their Lordships said that the ceaser of commensality is an element which may properly be considered in determining the question whether there has been a partition of joint family property, but it is not conclusive. It is, therefore, necessary to consider whether the evidence in other respects supported the theory that the ceaser is this case was adopted with a view to partition in the legal sense of the word.
13. In the present case there is no denying the fact that there was ceaser of commensality. The question is whether it was only for the sake of convenience or was adopted with a view to partition? It is urged by the learned Counsel for the appellants that the plaintiffs and the defendants had made repairs and alterations in the apartments in their respective possession, and that they had separate electric and water connections. It is also contended that the parties had been assessed to house tax separately.
14. So far as the question of house tax is concerned, no receipt has been produced, but it does not appear from certified copy of the order of the Revising Authority of the Municipal Council, Jaipur dated 22. 1.1955 that the parties had been shown as co-owners in the house and house tax was assessed separately with respect to the apartments in their respective possession. In case of the plaintiffs Ramgopal & Shyamsunder it was assessed at Rs. 5/6/-and in the case of the defendants it was assessed at Rs. 10/13/-. Thus the total tax assessed on the house in dispute was Rs. 16/3/-. The method of, assessment adopted by the Revising Authority goes to show that the parties were in exclusive possession of the apartments in the house, and were not living jointly. Then there is Ex. 6, a permission granted by the Municipal Committee', Jaipur to Nathulal and Kishenlal allowing them to do repairs-to the latrine; in their house by plastering the same with lime. This document does not throw any light on the question whether the house had been petitioner continued to be joint inasmuch as the latrine was, according to the defendants being treated as common even after partition. It is, however, admitted by both the parties that except the house in question there as nothing joint between the parties. Their business and assets were admittedly separate. It is also true that the defendants are not able to precisely fix the time when the alleged partition took place. There is admittedly no instrument or any other documentary evidence to show that the partition had taken place by matter and bounds, among the ancestors of the parties. But this much is clear from the statements of D.W. 1 Sitaram, D.W. 6 Motilal and D.W. 7 Kesarlal that the plaintiff's father Kishenlal & Nathulal father of defs. No. 1 to 3 had been living separately. Sitaram has of course stated that partition had taken place between the ancestors of the parties 3 or 4 generations ago & that during his childhood his mother Kishenlal's wife used to quarrel and prohibited each other from trespassing to each other's roof.
15. From the evidence on record the following facts and circumstances do emerge:
(1) That the parties have been residing separately and are in exclusive possession of specific portions of the house.
(2) They have separate electric and water connections.
(3) Their business is separate, and so also all their assets and liabilities.
(4) They are distant cousins inasmuch as they are removed from the common ancestor by 5 degrees.
16. From the aforesaid circumstances, in my opinion, there follows an irresistible conclusion that there was in fact a virtual or defacto partition. The intention of the parties is manifested by their sole and independent enjoyment of the apartments in their possession.
17. The learned District Judge by placing reliance on the so called affidavit Ex. D.W. 1C/. 1 and the entry of the City Survey Department of the former State of Jaipur Ex. 3 came to the conclusion that the defendant's theory that partition of the house had taken place between the parties stood negatived by the aforesaid documents. This was, in my opinion, not a correct conclusion. So far as Ex. 3 is concerned in the column of 'owners' there are two names mentioned Bavan and Ramchandar and the house has been mentioned as a three storeyed one. The number of members in Bavan's family has been mentioned as five and that in Ramchandar's family as two. This document definitely gives an indication that Bavan and Ramchandar were separate in mess and residence and did nit constitute a joint Hindu family. The document does not throw any light whether the house had been partitioned or not, but it helps the defendants to this extent that Bavan and Ramchandar who were the grandfathers of the plaintiffs and defendants Nos. 1 to 3 respectively were residing separately. From this it would not be unreasonable to conclude that the old state of things viz. joint-ness of the two families had discontinued.
18. As regards the so called affidavit Ex. D.W. 1/C. 1, it may be noted that it is not sworn by either of the signatories namely Ramgopal and Sitaram. It appears to be a joint written statement of Ramgopal and Sitaram wherein' it has been mentioned that both of them have not equal shares in the house in question, and that it was partitioned, but in the very next sentence it is mentioned that the parties are in possession of their respective shares. The plaintiffs as well as the courts below have attached too much importance to the words 'no partition had taken place'. Bat the effect of these words is nullified by the subsequent sentence in which it is stated that the parties are in possession of their own house meaning thereby shares It also appears that the learned District Judge has misread the statement of Bhonrilal (P.W. 1) in this connection. Bhonrilal has nowhere stated that the affidavit had been signed by Sitaram in his presence. On the other hand, P.W. 1 Bhonri Lal has stated that Ramgopal and Sitaram had brought this document signed by them, and had admitted their signatures before him. There is nothing in the statement of Bhonrilal that Sitaram had admitted the correctness of the contents of this affidavit before him or that, he had read it over to him. In my opinion, no importance can be attached to such a joint statement. Apart from that as already stated above the contents or this document do not necessarily lead to an inference that there was any admission on the part of Sitaram that the house in question had never been partitioned.
19. There is yet another aspect of the case, and it is this that the plaintiff's suit for partition was resisted not by Sitaram alone but by five other defendants, and therefore Sitaram's admission, even if it is construed as one, cannot bind the other defendants, In this view of the matter, I find it difficult to agree with the learned District Judge that the theory of partition as set up by the defendants is negatived by Ex. 3 and Ex. E.D.W. 1/C. 1.
20. Learned Counsel for the respondents relied upon Vankatapathi v. Vankatanarasimha AIR 1936 PC 264, Appavu v. Manickam AIR 1946 Mad. 118, Lalchandbohra v. Chinnavadu AIR 1963 AP 31 and Savitri Devi v. Jiwan AIR 1960 Patna 548 in support of his contention that here ceaser of commensality would not necessarily lead to the conclusion that partition had taken place between the parties. The petition of law as propounded in these cases, in my opinion, does not admit of any doubt. This is what was of served even by the Privy Council in Budh Mal v. Bhagwan Das and Anr. AIR XVIII Cal. 302, Ganesh Dutt Thakoor v. Jewatch Thakoorani ILR 31 Cal. 262, and Inder Kuer v. Pirthipal Kuer AIR 1945 PC 128. A perusal of the cases relied upon the learned Counsel for the respondents gees to show that subsequent to the ceaser of commensality there were such clear acts of the parties, which left no manner of doubt that ceaser of commensality was merely by way of conveniences, & as a matter of fact no partition had taken place. However in the present case nothing has been brought on the record to show that after ceaser of commensality the parties had so conducted themselves as to lead to an inference that they were still joint. On the other hand the ceaser of commensality taken along with the other circumstances enumerated above lead me to the conclusion that partition had taken place an one the ancestors of the parties with respect to the house in question since long and their separate and exclusive possession over specific apartments in the house is explicable on that hypothesis alone.
21. The result is that in disagreement with the courts below I find that the plaintiff's suit for partition of the house in question should not have been decreed. Accordingly I allow this appeal, set aside the judgments and decrees of the courts below and hereby dismiss the plaintiff's suit. In the circumstances of the case, I leave the parties to bear their own costs through out.
22. Learned Counsel for the respondents Paays for leave to appeal to Division Bench. Leave is refused.