MUSAMMAT PARBATI Vs. MAHARAJ SINGH

JUDGEMENT

(1.) THIS appeal appears to us to be concluded by a finding of fact of the lower appellate Court that Baldeo Prasad and Prem Narayan, along with Maharaj Singh, formed a joint Plindu family. THIS finding is based upon ample evidence and behind it we cannot go in second appeal. It is contended before us that the learned District Judge misapprehended the law and disregarded the decision of their Lordships of the Privy Council in thecaseof BaVi Bux V/s. Rukhmabai 30 C. 725 : I.A. 130 : 7 C.W.N. 642 : 5 Bom. L.R. 462 : 5 Bom. L.R. 462. Ganga Prasad, Durga Prasad and Pyari Lal, being the three sons of one Manni Prasad, formed a joint Hindu family. About 20 years ago, Durga Prasad separated from his brothers but the evidence shows that after this separation the two brothers Ganga Prasad and Pyari Lai remained joint; and that after them their sons, namely, Maharaj Singh, Baldeo Prasad and Prem Narain, remained joint. In the case which we have cited their Lordships of the Privy Council lay down the rule that there is no presumption that when one co-parcener separates from the others that the latter remain united; that where it is necessary in order to ascertain the share of the out-going co-parcener to fix the share which the others are or would be entitled to, the separation of one may be said to be the virtual separation of all, and that an agreement amongst the remaining co-parceners to remain united, or to reunite, must be proved like any other fact. In this case, it has been proved to the satisfaction of the Courts below that after the separation of Durga Prasad, the other members of the family agreed to remain reunited. THIS is the only question which was pressed in appeal before the lower appellate Court. The learned Vakil for the appellant seeks to rely upon several grounds of appeal, which were abandoned before that Court. Ho cannot be allowed to do so. We dismiss the appeal with costs including fees in this Court on the higher scale.