GOURHARI SUBHASUNDAR Vs. SHYAMA SUNDARI SUBHASUNDAR

JUDGEMENT

(1.) This is an appeal by defendants 1, 2 and 4, and is directed against a preliminary decree for partition passed by the Subordinate Judge of Dacca on 28 January 1930. The property which forms the subject matter of the partition suit belonged to one Keru Subhasundar who died in 1319 B. S. leaving behind him five sons Gourbari, defendant 1, Hari Charan, defendant 2, Abhoy, who is now dead, the husband of the plaintiff, Naba Kishore, defendant 3 and Nagarbashi, defendant 4 as well as his widow who is now dead. Keru rose to a position of affluence from a very humble position and left fairly considerable properties. The plaintiff who demanded a partition from the other cosharers did not find any response to her demands and has instituted the present suit for partition of immovable properties which were left by her father-in-law, Keru. The substantial defence to the suit, which was made by defendants 1, 2 and 4 who filed a joint written defence is that there had been a previous partition amongst all the five sons of Keru in 1321 B. S. As a result of that partition the mother who under the Hindu. Law was entitled to a share was given only 1 ? pakhis of land and that in 1325 B. S. that property of the mother was also partitioned amongst the five brothers when there was a sort of re-adjustment. The Subordinate Judge has negatived this defence. Amongst other defences to the suit it is necessary to notice the defence that some of the properties were self acquired properties of defendants 1, 2 and 4. In particular it is said that the properties which formed Dags Nos. 2327 and 2328 of the Cadastral Survey were really acquired by some of the answering defendants under a deed of gift and that these were not joint properties which could form the subject of the partition suit.

(2.) It was also said with regard to another plot, namely plot No. 684, that this was originally family property but it subsequently passed out of the family and was afterwards purchased with their own funds by defendants 1, 2 and 4. With regard to some other plots, namely plots Nos 1493, 1495,1393 and 412 the defence relies on its self acquisition by the answering defendants. The main question which has been in controversy before us in the present appeal is as to whether the suit should not be dismissed on the ground that there had already been a previous and amicable partition as alleged by the defendants. The plaintiff's husband and the other defendants admittedly formed at one time members of the joint family governed by the Dayabhaga School of the Hindu law and any one setting up a previous partition must prove that there had been such a partition. In other words the burden of proof is on himself of establishing that there has been a disruption of the joint family. It has however been contended on behalf of the appellants who are defendants 1, 2 and 4 that the Subordinate Judge has committed an error in law in casting the onus on the defendants of establishing this previous amicable partition as by reason of the pleadings in the plaint there has been an admission on behalf of the plaintiff that at least one of the brothers had separated from the rest.

(3.) The pleadings if properly looked into only state this: that one of the brothers, defendant 2, proposed to have his share in the immoveable property and the money lending business amicably partitioned and that the plaintiff also proposed to have her share in the immoveable and the money lending business amicably made over to her; but this was not done and defendant 2 took some lands out of the joint immoveable properties without the consent of the plaintiff. It is an ordinary rule that any statement in the pleading must be taken as a whole and it is not permissible for the Court to dissect that pleading. In effect the plaintiff while admitting that there had been a separation of some lands with reference to defendant 2, states that there has been no legal partition or a partition which really binds her. In these circumstances it appears to us that the Subordinate Judge has rightly cast the onus on the defendants of establishing the amicable partition alleged by them. Even on the footing that there has been an admission that one brother has separated from the rest it does not appear to us, as at present inclined, that that would make any change in the rule regarding the burden of proof. But we may state that it is not necessary to finally decide the question as our decision will depend on the weight to be attached to the evidence which has been given on both sides. As Mr. Sen appearing for the appellants argued the question of onus at considerable length we might say a few words with reference to that question as it appears to us at the present moment, and that is on the assumption that one of the brothers has separated from the rest.