NARAYAN LAL GUPTA Vs. CHULHAN LAL GUPTA

JUDGEMENT

(1.) This appeal is directed against the preliminary decree in a suit for partition. The parties litigants are members of a family of Gayals and are descended from one Sankar Lal who died on the 13th September 1886. Sankar Lal had three sons, Madho Lal, Narayan Lal and Gobind Lal. Of these, Madho Lal, who died in the life-time of his father on the 11th November 1881, left a widow and an infant son, Chulhan Lal, who is the plaintiff-respondent before this Court. The defendants are Narayan Lal and Gobind Lal. Of these, Narayan Lal died during the pendency of this litigation in the Court below on the 1st. March 1910. Thereupon his sons, Gopal Lal and Damodar Lal, were brought on the record as his representatives-in-interest.

(2.) The case for the plaintiff is that the properties mentioned in the schedule are joint family properties and he is entitled to a one-third share in all of them. The defence substantially is that although the family was joint up to the year 1891, there was a separation at that time, when the mother of the plaintiff left the family house with jewellery and other valuables worth twenty thousand rupees. The defence in substance, therefore, is that in 1891, on account of a family quarrel, the mother of the plaintiff abandoned, on his behalf, his interest in the family properties, and that it is not open to the plaintiff to repudiate this transaction. The defendants also plead, in the alternative, that if the alleged separation is not established, specific properties mentioned in the schedule to the written statement have been acquired by them separately and are not in any event liable or subject to partition. The learned Subordinate Judge has over-ruled the contentions of the defendants and made a preliminary decree in favour of the plaintiff.

(3.) The defendants have now appealed to this Court, and on their behalf the decision of the Subordinate Judge has been assailed on five grounds, namely, first, that upon the evidence it ought to have been held that the dissolution of the joint family had taken place in 1891; secondly, that if the family was found to be joint at the date of the institution of the suit, the house known as 34 Deo Chawra ought to have been treated as separate property of the first defendant; thirdly, that the Subordinate Judge has erroneously directed a partition of the books in which the names of the pilgrims have been recorded from generation to generation; fourthly, that a horse and carriage have been erroneously found by the Subordinate Judge to be joint family property, whereas they were given to the first defendant by his maternal grandfather, and fifthly, that the ornaments in the possession of the defendants have been erroneously treated as joint family properties liable to be partitioned, whereas it ought to have been held that they were articles which had been pledged with the second defendant by the owners and were not liable to be partitioned.