DURGA DUTT JOSHI Vs. GANESH DUTT JOSHI

JUDGEMENT

(1.) This appeal arises out of a suit for partition and the facts shortly are these. Ganesh Dat, one of the plaintiffs, is the son of one Pandit Baldeo Dat Joshi, deceased; and the other plaintiff, Kashi Dat, is his son. The defendant, Durga Dat, is the brother of Ganesh Dat. Baldeo Dat died about 26 years ago, leaving his wife and two sons him surviving. Ganesh Dat was at this time about 25 years of age, while Durga Dat was a lad of about 7 years. Ganesh Dat devoted himself to the study of astrology, and with a view to uninterrupted study he in the life-time of his father withdrew to and lived in seclution in a garden house of the Maharaja of Dumraon, leaving his mother, his wife and his brother, in the ancestral house of the family. After his father's death, he lived for several years in the same garden house but some years ago he built a new house and has been living in that house apart from the other members of the family ever since. Ganesh Dat became a distinguished astrologer and attracted the attention of noteable Indian gentlemen, amongst others, Their Highnesses the Maharajas of Benares and Vizianagram and the Raja of Sarguja and others. For his services to his clients as an astrologer, he received considerable sums of money which were invested in various ways. The ancestral property of the family has never been partitioned, and the suit out of which this appeal has arisen was instituted by Ganesh Dat and his son for partition of that property. The property so sought to be partitioned included a sum of Rs. 5,530 deposited by Baldeo Dat in the kothi of Babu Sita Ram Kesho Ram and also a sum of Rs. 940 in deposit in the same kothi, alleged to represent money deposited by Ganesh Dat on account of income of the village of Kodupur. The defendant in his written statement alleged that the money deposited in the kothi of Babu Sita Ram Kesho Ram did not belong to Baldeo Dat but formed part of the estate of his mother, and that she, before her death, made an oral Will and thereby gave the money in question to the defendant's wife and gave ornaments, equal in value, to the sum so deposited to the wife of Ganesh Dat. He further alleged that Ganesh Dat and he were not separate in food but that on the contrary up to the month of Bhadon, Sambat 1964, he and the plaintiff remained joint: and the business carried on by them was carried on as a joint family business, Ganesh Dat doing all the work as Manager of the family. He claimed that the moneys received by Ganesh Dat as a return for his services as astrologer and the property acquired with such moneys, foimett joint family property and should be brought into hotch pot in the partition sought to be effected. In a schedule to the written statement a large quantity of property is specified which the defendant alleges formed part of the joint family property.

(2.) The Court below held that the sum deposited in the kothi of Babu Sita Ram Kesho Ram was ancestral property and that the defendant's allegation that it was his mother's stridhan was without foundation. It also held that no Will was made by the defendant's mother as alleged, and that the allegation that the defendant's mother gave the money in deposit to the defendant's wife and jewellery to Ganesh Dat's wife was a made-up story. It also held that the old ancestral house and the profits of the alluvion lands, deposited with Sita Ram and Kesho Ram, were partible as joint family property; As to the properties claimed by the defendant to be ancestral, the Court below held that, as to some of them, they never existed, and as to those that existed they were acquired after the death of Baldeo Dat by the plaintiff, Ganesh Dat, alone. As to-this last mentioned property, the Court found that it was acquired by Ganesh Dat by his own intellectual exertions and as the reward of his services as an astrologer. It held that it was fully established beyond possibility of contradiction that Ganesh Dat did not have in his possession any of the ancestral properties, nor their income, nor the profits of them. That the principal of the money deposited with Sita Ram Kesho Ram was still on deposit and the interest was from time to time taken and appropriated by the defendant and his mother and plaintiff never touched it. The Court below further found that as to three houses, which the defendant claimed to be joint family property, they were acquired by Ganesh Dat after the death of his father and that he paid the consideration for them out of his own earnings and that the defendant had no right to claim any share in those houses. A decree for partition was accordingly given for the property found to be joint ancestral property.

(3.) The defendant has preferred this appeal and the main grounds of appeal relied upon before us are that the family was a joint family up to Bhadon, Sambat 1964, and that all acquisitions made by Ganesh Dat formed part of the joint family property, that there was a nucleus of family property, and with its aid, it should be held, the disputed properties representing the earnings of Ganesh Dat were acquired.