JAIGOBIND SINGH Vs. BRIJ BIHARI SINGH

JUDGEMENT

(1.) The appellants instituted a suit on the 1st October, 1956, for partition of their eight annas share in the properties described in Schedule 4 of the plaint. Schedule 1 showed the ancestral properties, Schedule 2 the acquired properties and Schedule 3 the joint family properties that were alleged to have been allotted to one coparcener Baldeo Singh (defendant No. 7) at the time of his separation from the joint family and later gifted to his daughter. The plaintiffs claimed that the other three members of the joint family after the separation of Baldeo continued joint as before and remained in joint possession of the rest of the joint family properties, described in Schedule 4. A genealogy was given from which it appears that one Suchit Singh had six sons, of whom two died issueless. The remaining four sons were Ramautar, Gopinath, Baldeo and Gaya. Plaintiff No. 1 is the son of Ramautar; and the other plaintiffs are the two sons and two grandsons of plaintiff No. 1. Baldeo Singh has one daughter Chulhan Kuer, who is impleaded as defendant No. 8. Defendants Nos. 1 to 6 are the sons and grandsons of Gaya Singh. He died on the 23rd October, 1949. His widow is Mosammat Ramnak Kuer (defendant No. 3a). The plaintiffs stated that Baldeo separated from the joint family about twelve years ago near about 1943; and after that, while the other brothers continued as before, Gaya Singh died in a state of jointness leaving his widow and sons and his two surviving brothers. In a state of jointness, Gopinath also died on the 6th October, 1953, without leaving any issue. His wife predeceased him long before. Ramautar, father of plaintiff No. 1, had also died beforehand. Thus, on Gopinath's death in October. 1953, Jaigobind Singh, plaintiff No. 1, son of Ramaular, and the descendants of Gaya Singh remained in possession of the joint family properties, which are described in Schedule 4 of the plaint. Baldeo Singh (defendant No. 7), however, claiming to have succeeded to the estate of Gopinath Singh, executed a deed of gift in respect of that in favour of Brij Bihari Singh (defendant No. 1) on the 5th of October, 1955. Before that he had executed another deed of gift in favour of his daughter (defendant No. 8) in respect of a major portion of the properties with which he had separated from the joint family (Schedule 3). After taking the deed of gift from Baldeo Singh, defendant No. 1, and his brothers claimed exclusive right over those properties against the plaintiffs which ultimately led to the present suit. The plaintiffs claimed that as the two branches of Ramautar and Gaya Singh were in possession of the Schedule 4 properties, being the surviving coparceners, they asked for partition of half share in that.

(2.) The suit was resisted by the defendants. Their case was that in 1350 Fasli, corresponding to 1943, there was separation between Gopinath, Baldeo, Gaya and Jaigobind; and the joint family properties, ancestral and acquired, were divided between them in equal shares. But soon after, Gopinath, who had no issue and whose wife had predeceased him already, lived in joint mess with Gaya Singh and there was joint cultivation of the lands that fell to his share and that of Gaya Singh. Since Gopinath died in 1953 in a state of separation, Baldeo Singh, the nearest heir to him, succeeded to his properties; and in that respect he also made a gift in favour of defendant No. 1 on the 5th March, 1955, by a registered instrument. Baldeo (defendant No. 7) himself filed a written statement on the same line, but he filed a second written statement at a later stage in which he lent support to the plaintiff's case and disputed the story of complete partition or separation between the four branches of Ramautar, Gopinath, Baldeo and Gaya Singh. He asserted, like the plaintiffs, that he alone had separated with one-fourth share of the joint family properties and the rest continued joint as before. On these pleadings the parties went to trial. The main issue for decision was if Gopinath died in a state of jointness or separation. If he died in a state of separation, then undoubtedly Baldeo Singh was entitled to succeed to his estate and the gift made by him of that cannot be challenged by the plaintiffs. But if Gopinath died in a state of jointness, Baldeo Singh could not have any title to transfer that to defendant No. 1 by gift. In other words, the court was to find whether there was a complete partition (or separation) as alleged by the contesting defendants between the four branches in 1943 or only one of them, Baldeo Singh, separated leaving the rest to continue as members of the joint family as before. The defendants no doubt also raised other pleas such as limitation, fraud in respect of the deed of gift executed by Baldeo Singh (Ext. B(1) ) in favour of defendant No. 8, but they were all negatived by the court. The defendant's case that there was a complete partition between the four branches toy metes and bounds was not accepted by the trial judge, but he, however, held that there was separation between the four branches; and in that view, Gopinath died in a state of separation and was succeeded by Baldeo Singh alone. The plea of Baldeo Singh's partition with one-fourth of the joint family properties was not accepted but he was held to be entitled to one-fourth share like the other three branches in all the properties of the joint family described in Schedules 1 and 2 of the plaint, and, therefore, the suit was decreed in the following manner; the plaintiffs to get one-fourth share, defendants 1 to 6, one-fourth share, Baldeo Singh (defendant No. 7) with his daughter (defendant No. 8), one-fourth share and the remaining one-fourth share, which was of Gopinath Singh and inherited by Baldeo Singh and gifted to Brij Bihari (defendant No. 1) would go to the donee. The plaintiffs felt aggrieved by this judgment and decree and came in appeal here.

(3.) Learned counsel challenged the finding about the separation between the four branches. He insisted upon the plaintiff's case that in 1943 Baldeo Singh (defendant No. 7) alone had separated from the joint family and took out one-fourth share of the properties of the family. The defendants' version also includes the separation of Baldeo with a specific share of the properties of the joint family. Exhibit B(1) is a registered deed of gift executed by Baldeo Singh on the 14th August, 1950, in respect of a large portion of such divided properly in favour of his only daughter, defendant No. 8. The description of the properties in Exhibit B(1) shows specific portions of different plots which comprised the joint family estate. So, the common case is that Baldeo Singh was separate with his one-fourth share. It is not possible, however, to find out which properties other than those covered by Exhibit B(1) were given to Baldeo Singh. In his evidence he has said that he kept a portion and gave the rest to his daughter. Schedule 3 of the plaint only gives the properties which Baldeo Singh had conveyed to his daughter. In paragraph 8 of the plaint was stated that Baldeo Singh had given in mortgage a part of the properties which were allotted to him and the rest he gave to his daughter by way of gift. The total of the properties given in Schedule 4 of the plaint which, according to the plaintiffs, are the remaining properties of the joint family after separation of Baldeo Singh, indicates that the one-fourth share would have been near about 10 acres. The land given under Exhibit B(1) measured 7.64 acres. Neither the plaintiffs nor defendant No. 7 nor any of the contesting defendants have given a complete schedule of the properties which allegedly were given to Baldeo Singh on partition. Thus, though separation of Baldeo Singh is admitted by all the sides, it will not be possible, on the evidence on record, to hold which specific properties were actually allotted to him besides those mentioned in Exhibit B(1). It would be, therefore, necessary, in case a decree for partition of the properties belonging to the erstwhile joint family is passed, to include in that partition the one-fourth share that belonged to Baldeo Singh.