ANANDIBAI RAM PAL Vs. HARI SUBA PAI

JUDGEMENT

(1.) The facts found by the lower appellate Court are shortly these: Upendra, Waman, Rampal (defendants Nos. 3, 4 and 5 respectively), Hari, Keshav and Shri nivas were members of a joint Hindu family. The first three of them separated from the rest under a deed of partition in 1888 (Exhibit 44), the last three continuing joint as before.

(2.) On these facts the lower Court has found that the last three persons either continued as before to be coparceners or that they "(if the legal fiction is to be employed) must be held as having immediately reunited with each other after executing Exhibit 44."

(3.) The legal correctness of the latter view as to reunion is challenged by the learned pleader for the appellant on the authority of the Privy Council judgment in Balabux Ladhuram v. Rukhmabai (1903) L.R. 80 L.A. 180. There it was held "that there is no presumption, when one co-parcener separates from the others that the latter remained united," but that the agreement to remain united or to reunite "must be proved like any other fact." It is contended that in the present case there is no finding by the appellate Court as to an agreement to reunite and that there is no evidence of such agreement. The answer to that contention is simple. The evidence is that the coparceners agreed to effect not a complete but partial disruption of the co-parcenery, that, in other words, three of them separated from the rest and also inter se and that the latter agreed to continue joint. The Courts below have found accordingly. The finding satisfies the law enunciated by the Judicial Committee of the Privy Council in the case cited.