KAILASHI Vs. SHANKAR

JUDGEMENT

(1.) This appeal has arisen out of a suit for partition filed by Kailashi, son of Ram Chander, minor, under the guardianship of his mother, Mt. Ram Dulari, against the defendants, Shankar and Ram Dayal, brothers of Ram Chander: and uncles of the minor. Plaintiff's case was that his grandfather, Bhagwanta, died in the year 1937 and his father, Ram Chander, died in the year 1920 and that Bhagwanta with his sons and grandson formed a joint Hindu family. If the family was joint plaintiff's share on partition on the date of suit was one-third, according to Hindu law. The plaintiff claimed partition of his one-third share and further claimed mesne profits from August 1937 when the plaintiff was excluded from the enjoyment of the property. Defendants case was that Bhagwanta did not inherit any property from his father and whatever property was acquired by him was his self-acquired property. The defendants further alleged that certain items included in the plaint were the personal property of the defendants, and that as regards the property that belonged to Bhagwanta he had left a will dated 19 May 1936 under which the plaintiff was entirely excluded and the entire property came to the defendants. The defendants further pleaded that about seventeen or eighteen years before the suit there was a partition between Bhagwanta and his three sons and Ram Chander was given property worth about Rs. 2000 and was separated. The reason given for this partition was that Mt. Dulari was not of good character. The defendants also pleaded that for the. last twenty-five years the defendants had been carrying on the business of purchasing and selling mules and Bhagwanta had no concern with this business nor had the plaintiff any connexion with it. The lower Court has held in favour of the defendants that Ram Chander had separated from the family and had died as a separated member. That the property was the self- acquired property of Bhagwanta, that he had before his death given away this property under his will, which was a perfectly valid document that no part of the property was thus divisible and that the plaintiff's suit must fail.

(2.) The plaintiff has filed this appeal against the decree of the lower Court. It has been argued before us that the alleged separation of Ram Chander is not proved and that most of the documents relied on by the Court below for its finding, on the question of separation, were not admissible in evidence. Learned Counsel for the appellant has pointed out that the cause of separation has been variously given by the defendants from time to time. In the written statement, para. 12, the cause of separation was given as the immorality of Ram Dulari, while Ram Dayal, defendant, in his deposition stated that Ram Chander separated from the family two years before his death as he did not wish to take part in the mule transport business. Kundan, another witness for the defendant stated that Bhagwanta had said that his son did not want to live with him and that was the reason why he was giving him his share and allowing him to separate. The oral evidence of separation consists of the evidence of Ram Dayal, defendant, who has stated that when Ram Chander wanted to separate as he did not want to take part in the mule transport business, there was a panchayat called by Bhagwanta and a house and tonga and Rs. 500 in cash and ornaments worth about Rs. 800 to Rs. 1000 were given by Bhagwanta to Ram Chander as his share. Kundan and Badal are the two other witnesses to this panchayat and separation. It is pointed out that there was no written document executed and there is no contemporaneous document to show that there was a partition. The evidence of partition is, however, to some extent supported by the evidence of Raghubar Dayal, a witness for the plaintiff, who stated in his examination-in-chief that Ram Chander had lived separate from the other members of the family for some time though he added that he did not hear of any partition. As regards the reason for partition, we cannot attach much importance to the discrepancy in the evidence of the witnesses. The reasons may have been more than one and each witness was emphasising the reason that he may have thought was the real cause. After all the witnesses were now deposing to an incident which took place more than twenty years ago.

(3.) Great reliance was placed by the learned Judge on a notice supposed to have been sent by Pandit Dwarka Nath Raina, Vakil, on behalf of Mt. Dullo, widow of Ram Chander. This notice, however, cannot be used as evidence against the plaintiff. This notice purports to have been sent by Pandit Dwarka Nath Raina on instructions from Mt. Dullo. No evidence has been given of any such instructions having been given by Mt. Dullo. All that the defendants have proved by the production of Om Narain is that he has proved the signature of Dwarka Nath Raina. Even if it be assumed that this notice was sent under instructions given by Mt. Dullo and the facts recited in this notice were the facts that Mt. Dullo gave to the learned vakil, it may be used to contradict Mt. Dulari's evidence and to show that she was not a reliable witness, it cannot be used as substantive evidence against the plaintiff to prove that the family was really separate. It was suggested by learned Counsel for the defendants that it must be deemed that Mt. Dullo sent this notice on behalf of the minor. The notice itself does not purport to be on behalf of the minor, but even if it were so, the admission could not be used against the minor as substantive evidence of the partition under Section 18, Evidence Act.