BAL MUKANDJI MAHARAJ Vs. GOKARAN SINGH

JUDGEMENT

(1.) This is a second appeal by the plaintiff. A suit was instituted in the Revenue Court under Section 226, Agra Tenancy Act of 1926 by Rani Roop Kunwar for the recovery for profits for the years 1341, 1342 and 1343 Fasli of her share of property of Mohal Bhup Singh Kabza No. 1 in village Rachhoha against Diwan Gokaran Singh son of Diwan Chet Singh, the lambardar of the Mohal. The defence raised on behalf of Diwan Gokaran Singh was that the husband of the plaintiff, namely, Th. Thamman Singh died in a state of jointness with the defendant, and the property in suit being joint ancestral property, the plaintiff could not succeed to it, and the property devolved on Diwan Gokaran Singh by a right of survivorship under the rules of the Mitakshara law. The Revenue Court framed an issue, namely, whether the family ceased to be a joint family about 20 years ago in the life-time of Th. Thamman Singh, and the Revenue Court referred that issue to the Civil Court for a finding. When the issue was received by the Munsif of Fatehabad at Agra for determination, the learned Munsif considered that the main question for decision was whether Th. Thamman Singh had separated from his brothers and nephews prior to his death, and whether there did occur a disruption in the joint status of the family prior to Th. Thamman Singh's death. The learned Munsif gave a finding on 14-10-1941, holding that the plaintiff's theory of disruption and separation, as alleged by her, was correct. The Revenue Court accepted that finding, and after a determination of the other issues, granted the plaintiff a decree in the sum of Rs. 472/14/3 with proportionate costs and interest. Diwan Gokaram Singh, the defendant, preferred an appeal against that decision. During the pendency of that appeal (Revenue Appeal No. 9 of 1946 of the Court of Civil Judge, Agra) Rani Roop Kunwar died. In her place were substituted Sri Balmukundji Mahraj, as her legal representative under a will alleged to have been made by Rani Roop Kunwar in his favour and also Kunwar Yatendra Singh, the brother of Diwan Gokaran Singh as a pro forma party. The Civil Judge of Agra, by his decision dated 18-9-1948, reversed the finding of the learned Munsif by holding that there was no separation or partition in this family, & that the two brothers, namely, Th. Thamman Singh and Diwan Chet Singh, so far as the property in village Rachhoha was concerned, had continued to form a joint Hindu family. The learned Civil Judge accordingly allowed the appeal and dismissed the suit. In Second Appeal the only point that has been argued before me by learned counsel for the appellant is that the view of the lower appellate Court in coming to the conclusion that there was no separation in the family, was incorrect.

(2.) For purposes of this case we may trace the pedigree of the parties from Diwan Bhup Singh. He had two sons, namely, Rai Bahadur Chet Singh and Th. Thamman, Singh, Chet Singh's sons are Diwan Gokaran Singh, the appellant and Kr. Yatendra Singh pro forma respondent. Rani Roop Kunwar, the plaintiff was the widow of Th. Thamman Singh, Diwan Bhup Singh died long ago. Diwan Chet Singh, the father of Diwan Gokaran Singh died on 1-9-1920. Th. Thamman Singh died on 29-9-1934. The family held an impartible estate known as the Parna Estate governed by the rule of primogeniture where the eldest of the issues of the last holder of the estate succeeds to him as the absolute owner thereof, and the junior members of that family have only a right of maintenance from the estate. Diwan Bhup Singh was such an absolute owner of that estate under that rule. After his death his eldest son, Diwan Chet Singh, the father of the defendant became the owner of the estate. His younger brother Th. Thamman Singh acquired only a right of maintenance from that estate and was not entitled to the estate itself. This impartible estate was assessed to a land revenue of about Rs. 9000/- a year. The amount of maintenance allowance which Th. Thamman Singh was entitled to get from the estate, was Rs. 240/- per year. Th. Thamman Singh, after completing his education entered the Provincial Executive Service somewhere in the year 1906, as a Deputy Collector, and at the time of his death, he rose to the position of a confirmed Collector and Magistrate. The dispute in this case does not relate to any part of the impartible estate of Parna. It relates to a property which was divisible among Diwan Chet Singh and Th. Thamman Singh. This property situate in village Rachhoha, had been acquired by Diwan Bhup Singh as joint family property and after his death it was in the hands of his sons Diwan Chet Singh and Th. Thamman Singh. If Diwan Chet Singh and Th. Thamman Singh constituted a joint family along with the sons of Diwan Chet Singh, and if the status of the family continued to be joint till the death of Th. Thamman Singh, then after the death of Th. Thamman Singh the sons of Diwan Chet Singh, viz., Diwan Gokaran Singh and Kunwar Yatendra Singh would become the owners of the property by survivorship. If on the other hand, Th. Thamman Singh died in a state of separation then on his death his share in the property would go by succession to his widow Rani Rup Kunwar, and would not pass on to Diwan Gokaran Singh and Kunwar Yatendra Singh by survivorship.

(3.) Ordinarily under the Hindu law the presumption is that a family continues to be joint till the contrary is proved. But this presumption, as has been repeatedly pointed out by their Lordships of the Privy Council, varies in the case of brothers and cousins. The presumption 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. The question came to be considered by a learned Judge of this Court in -- 'Kundan Lal v. Raj Behari Lal', AIR 1929 All 513 (A) where at p. 517 of the report it was observed: