MT. SHRAWAN DULYA Vs. SURAJPRASAD

JUDGEMENT

(1.) THE judgment of the lower Court contains a genealogical tree in which all the descendants of Ramprasad are included. But the point at issue will be more clearly apprehended if attention is confined to certain of the descendants of Ramprasad. Laxmandas, Mojilal and Murli were three sons of Ramprasad: Mannalal who represented the branch of Laxmandas separated from the other descendants: he filed a partition suit in 1911 and obtained a decree in 1916. Mojilal had three sons: the plaintiffs represent one of the sons, while defendants 1 to 4 represent the other two. Murli had a son Guttu, whose widow Mt. Shrawan Dulya is defendant 5 and has filed this appeal.

(2.) THE trial Court has held that the members of the family other than Mannalal did not separate inter se. Shrawan Dulya, as the widow of one coparcener, is thus entitled only to maintenance.

(3.) THE main argument of the appellant's Counsel is that the institution of the partition suit by Mnnalal, representative of the branch of Laxmandas, caused the representatives of the branch of Mojilal to become separate from the representatives of the branch of Murli: even if the suit resulted in a decree which divided the share of Mannalal from that of the other members, but did not divide the shares of the other members inter se, it was necessary for the other members to prove reunion. Reliance is placed on the dictum of their Lordships of the Privy Council in Balabux v. Rukhmabai [1903] 30 Cal. 725: It appears to their Lordships that there is no presumption when one coparcener separates from the others, that the latter remain united. In man cases it may be necessary, in order to ascertain the share of the outgoing member, to fix the shares which the other coparceners are or would be entitled to, and in this sense the separation of one is said to be a virtual separation of all. And their Lordships think that an agreement amongst the remaining members of a joint family to remain united or to reunite must be proved like any other fact.