RASHI MENDLI Vs. SUNDAR MENDLI

JUDGEMENT

(1.) The present appeal arises out of a suit brought by the plaintiff to recover possession of certain lands to which he claimed title by survivorship. It appears that the family to which the plaintiff belongs originally consisted of three uterine brothers and three, step-brothers. The uterine brothers were Khedu, father of the plaintiff, Ratan and Badan and the three step- brothers were Rashi, Firinghi and Burla. There was a partition of the family property about 12 or 14 years ago between these six brothers and, according to the statement made in the judgment of the Court of first instance, the property was divided into six different shares, the area and boundaries of each share being set out in the award of partition. After this partition, the uncles of the plaintiff, namely, Ratan and Badan, who at the time of the partition are said to have been mere boys, continued to live with their brother Khedu. After sometime, Khedu died and the plaintiff, his son, continued to live with his uncles Ratan and Badan. During this time, these persons messed together and the profits of their property were collected jointly. Afterwards, Ratan and Badan died and the plaintiff claims title to the lands ia suit as the nearest relation of these two persons on the ground that, after the separation of the family, there had been a reunion amongst the three uterine brothers and that he is entitled to succeed by survivorship as a member of the joint family with Ratan and Badan in preference to the step-brothers.

(2.) The Court of first instance found that the plaintiff had failed to establish that there had been any reunion of the family after the partition and that, therefore, the suit must fail. On appeal, the lower appellate Court has come to a different conclusion and has given the plaintiff a decree.

(3.) The main question that we have to determine in this appeal is whether the conclusions of the lower appellate Court are based on findings and inferences of law which are correct. The learned Subordinate Judge has come to the conclusion that there was a reunion apparently on two findings of fact. The first is that, after the partition, the three brothers Khedu, Ratan and Badan continued to live together as was quite natural, Ratan and Badan being then minors and not in a position to mess or to manage their property separately. On this finding that the two minors lived with their brother and that their property was managed jointly, the learned Subordinate Judge comes to the conclusion that there was a reunion o the members of this branch of the family. He also states as a fact, though it is suggested by the learned pleader for the respondent that it is a finding of fact that the separation was only into two shares, each share being allotted to each, set of brothers. This statement from the description of the partition award in the judgment of the Court of first instance appears to as to be incorrect. If it is a finding, it is not supported, so far as we can ascertain, by any substantial ground. As a statement of fact, it appears to be contrary to what was the real state of affairs. On this statement, we think no argument whatever can be based and it is for us to determine whether the conclusion which the learned Judge has drawn from the facts which he finds is a correct conclusion in law. The finding is that, after the partition, the two minor brothers continued to live with their elder brother, as was only natural and the elder brother managed the properties of all three. From these facts, he concludes that there was a reunion of the family. In our opinion, this conclusion is not sound in law.