DARSHAN SINGH Vs. PARBHU SINGH

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a suit for partition. The parties are relations, as will appear from the genealogical table set forth below:

(2.) The story, with which the plaintiff came to Court, was briefly this: Chaura Singh and his sons were members of a joint Hindu family and the family continued as such even after his death. Sheoraj Singh and Mathura Singh also died in a state of joint-ness. Kehri Singh, according to the plaint, died in 1902, the materials on the record establish his death between 1900 and 1901. Chaura Singh, the story goes on, carried on a good deal of cultivation, money-lending business on a large scale and left considerable cash, cultivatory holdings, groves and a large amount of outstanding debt and considerable acquisitions were made out of the joint ancestral fund in the names of different members. The partition of the family property, the story proceeds, took place between the branches of Mathura Singh and Sheoraj Singh in 1924. There was no separation inter se between the members of each branch. Sheoraj Singh, Kedar Singh, Zabar Singh and Hazari Singh, the plaint continues, died in a state of jointness and, in 1918 Zabar, as the managing member of the joint family, executed, with the consent of the other members, a deed of wakf, with respect to some property and cash of the joint family and dedicated it to Sri Thakur Sita Ram Sadha Krishna installed in the temple of Mauza Rahnas, the home of the parties.

(3.) In other words, the plaintiff's case is that the family was, on the date of the suit, a joint family. It is on these allegations that the plaintiff claims partition and separate possession of his one-third share. The defence of Kamod Singh, Darshan Singh and Sheo Chandra Maul Singh is substantially the same. While admitting the pedigree and the dates of deaths, they alleged that Chaura Singh was a man of very ordinary status. He used to maintain himself by cultivation as a sub-tenant. He had no occupancy holding, nor did he do the business of money-lending, nor did he, at his death, leave any amount in cash, or cultivatory holding, or grove, or zamindari property, or outstanding debt. Each of the sons of Chaura Singh, after attaining majority, started cultivation on a small scale separately from him and each of them was separate. Sheoraj Singh, it was also pleaded, was not financially well off and Zabar, Hazari and Kamod, on attaining discretion, took up their abode and carried on their business separately and, in proof thereof, they executed an agreement, dated 2 October, 1904. The waqf of 17 December 1917 was executed by Zabar in respect of his separate property. Another document, an agreement, of 4 October 1933, was also pleaded in which the plaintiff was alleged to have admitted separation. It was also pleaded that the parties are the exclusive owners of the property standing against their names. Of the issues framed by the learned Civil Judge, the following were the two material ones: (1) Whether defendant 1 and Hazari Singh and Zabar Singh were joint with or separate from one another? (2) Whether the properties in suit are joint family properties belonging to the parties? The learned Civil Judge condemned the agreement of 2 October, 1904, as a fictitious document, concocted for the purpose of the case. He found that the waqf deed of 17 December 1917, though genuine, was no proof of separation, it, on the other hand, evidenced jointness. The agreement of 4 October 1933, could not lend itself to any decisive inference. He found that the parties lived jointly and has thus summed up his conclusions: After considering the entire evidence of the parties and all the circumstances and probabilities for and against the parties, I am of opinion, that Kamod Singh, defendant 1, and Zabar Singh were joint with plaintiff and were not separate and that the properties in suit are joint family properties belonging to the parties and I find accordingly.