PORMESHWAR DUBEY Vs. GOBIND DUBEY

JUDGEMENT

(1.) This is an appeal by the defendants against the judgment of the learned Subordinate Judge of Mozafferpore, dated the 31st of January 1913.

(2.) The plaintiffs brought the present suit for partition. The defence was that a partition took place between the parties in the year 1305.

(3.) The learned Judge found that there was no such partition. The defendants called a considerable body of evidence to prove the story set up by them. The learned Judge, however, remarked "The story of division and separation in 1305 is, therefore, a myth...I entirely disbelieve the witnesses examined by the defendants and find that there was no partition in 1305." The defendants have asked us to dissent from this finding of fact by the learned Judge. In the first place it seems highly improbable that the partition, if there had been one, could have taken place as long ago as the year 1305. No reason is given why a partition should have taken place at that date. There is no document from which it could be inferred that a partition took place as long ago as the year 1305. The story set up by the plaintiffs that the plaintiff No. 1 separated in mess from the defendants in 1309 has been accepted by the Judge and so far as I could gather from the learned Vakil of the defendants-appellants, he only faintly challenged the fact that the separation in mess took place in 1309, But he asked us to use the separation in mess in 1309 as proof or at any rate very strong evidence of a partition. The case of the defendants is not, however, that there was a partition in 1809 and they must stand or fall by the case they put forward in their oral evidence. The defendants have kept back the books of account. These books would be of the greatest value if they had been produced. Take for instance the question as to the expenses of marrying the daughters of the plaintiff No. 1. The case of the defendants was that the plaintiff No. 1 had raised a loan to marry his third daughter. The answer of the plaintiff No. 1 was that it was true that he borrowed money to marry his third daughter, but that his other two daughters were married at the expense of the family in 1305 and 1309. This, if true, shows that there could not have been a partition in 1305. The defendants by the production of the books of account could easily have shown whether or not the statement of the plaintiff No. 1 was correct.