BHAGWAN DAYAL SINCE DECEASED AND THEREAFTER HIS HEIRS AND LEGAL REPRESENTATIVES BANSGOPAL DUBEY Vs. REOTI DEVI DECEASED AND AFTER HER DEATH MST DAYAVATI HER DAUGHTER

JUDGEMENT

(1.) THE following Judgment of the court was delivered by

(2.) THIS is an appeal by certificate granted by the High court at Allahabad against its judgment dated 7/05/1954 setting aside the decree made by the Civil Judge, Agra, in a suit filed by the appellant for a declaration that the properties more particularly mentioned in Schedules B, C and D annexed to the plaint, were his absolute properties.

(3.) BRIEFLY stated, the findings of Agarwala, J., are as follows: (1) The evidence on the record is not sufficient to establish partition in the family. (2) Though as a matter of law two or more members of a larger Hindu family not belonging to the same branch can form a smaller joint family and acquire properties with all the attributes of a joint Hindu 'family property, in the instant case the evidence does not establish that Kashi Ram,, Raghubar Dayal and Bhagwan Dayal constituted such a unit and acquired the properties; the properties were the self-acquired properties of Kashi Ram, but were bequeathed 'by him 'in equal shares to Raghubar Dayal and Bhagwan Dayal, and after his death they held those properties and those acquired subsequently only as co-tenants and not as members of a joint Hindu family. (3) The finding of the Revenue court in Suit No. 15 of 1939 does not operate as. res judicata in respect of any properties in the suit. In the result, the learned Judge held that the properties described in Schedules B, C and D were owned by the plaintiff and the defendant in equal shares.