SANO DEVI Vs. RAJO DEVI

JUDGEMENT

(1.) BOTH these appeals have been preferred by two sets of defendants in T.S. No. 17 of 1964/32 of 1969 in which judgment was passed on 30th of September, 1972 by the 1st Additional Sub-ordinate Judge, Monghyer. The appellant in F.A. No. 31 of 1973 happened to be the defendant 1st set while the appellant in F.A. No. 43 of 1973 was defendant No. 7 in the suit.

(2.) THE plaintiffs in the suit were Smt. Rajo Devi and Smt. Malti Devi. Smt. Rajo Devi claimed herself to be the wife of late Shivcharan Singh (deceased). THE Genealogical table has been given at the foot of the plaint in Schedule-A, according to which, one Din Dayal Singh was the common ancestor of the parties. He had three sons, namely, Churaman Singh, Tengar Singh and Makhan Singh. Tenger Singh died issueless leaving behind his brothers Churaman and Makhan Singh. Churaman has three sons, Elaichi Singh, Kedar Singh and Ashrfi Singh. THE Branch of Churaman Singh separated from the Branch of Makhan Singh, prior to the survey operation. Makhan Singh left behind two sons, namely, Ram Charan Singh and Shivcharan Singh who were joint and members of a Joint Hindu Mitakshara family. THE elder brother happened to be the Karta of the family. He was original defendant No. 1 who subsequently died and his wife was added as defendant in his place. He had three sons Garibdas Singh, Banshi Singh and Ram Lakhan Singh. Garibdas had a son Ram Swarath Singh. Banshidas had his sons Ram Padarath Singh ' and Nunulal Singh. Ram Lakhan was the youngest of the three brothers. THE details of property are in Schedule-B of the plaint and the plaintiffs claimed half share in the property and prayed for a decree for partition declaring half share in the suit property in favour of the plaintiffs and further prayed for appointment of a pleader Commissioner to prepare the necessary Takthabandi to be allotted to the plaintiffs and the defendants separately.

(3.) BY producing these documents, the defendants tried to show that since long, the branches of deceased Shivcharan Singh and his brother Ramcharan Singh were having separate transactions and, therefore, it has been contended that these documents go to show that the branches of Shivcharan and Ramcharan were not joint; rather, they were separate in mess and business. It has also been tried to show that after the death of Shivcharan, his son Lakho had also some separate transactions. On the other hand, by producing the documents the plaintiffs have tried to show that there are sufficient materials to show that both the branches were common and it has also been alleged on behalf of plaintiffs during evidence that this Lakho Singh, defendant No. 7 of the second set, actually happened to be the son of Ramcharan who has been described as Ram Lakhan Singh in the Genealogical Table and it has been alleged that this Ramlakhan Singh has been set up as Lakho Singh and a false plea with deliberate intention to deprive the plaintiffs of their share has been taken that Shivcharan actually left behind a son, namely, Lakho Singh. It has been contended on behalf of plaintiffs that since Ram Charan Singh and Shivcharan Singh were full brothers, there was presumption in favour of their jointness and since a plea of partition has been taken on behalf of defendants, it was their duty to prove this partition which the defendants have not been able to prove. It was also contended on behalf of the plaintiffs that there are sufficient materials in the original evidence of witnesses that Shivcharan had actually legally married plaintiff No. 1 and out of this legal wedlock, the plaintiff No. 2 was born. Therefore, it was contended on behalf of plaintiffs that since partition could not be proved by the defendants and since the plaintiff No. 1 has been proved to be the legally-married wife of Shivcharan and plaintiff No. 2 has been proved to be the daughter of Shivcharan and plaintiff No. 1, they are entitled to the share of Shivcharan after his death and because there was no partition in the family, the plaintiffs continued to be jointly in possession of the property in suit with Ramcharan and his branch and, therefore, the suit was fit to be decreed.