DURGA DEI Vs. BALMAKUND

JUDGEMENT

(1.) THIS appeal arises under the following circumstances: One Kishan Prasad was at the time of his death possessed of considerable movable and immovable property. He had two sons, namely, Banke Bihari, who predeceased his father, and Ram Ratan. Banke Bihari left two sons, namely, Lal Bihari and Chhail Bihari. The plaintiff, Musammat Durga Dei, is the widow of Lal Bihari, who is dead. Lal Bihari had a son named Kishna Murari, who is also dead. In the year 1896, the there surviving members of the family, namely, Ram Ratan and his nephews Lal Bihari and Chhail Bihari, entered into an agreement whereby they left it to arbitrators to divide the assets of Kishan Prasad in any way they might think fit. It would appear that Ram Ratan was desirous of having a definite share allotted to him and of separating from his nephews. An arbitration award was drawn up whereby the immovable property was divided into two shares and one share allotted to Ram Ratan and the other share to the two brothers, Lal Bihari and Chhail Bihari. Neither in the agreement to refer the matter to arbitration nor in the award is there any indication that Lal Bihari and Chhail Bihari ever desired or intended that shares in severalty should be allotted to them. In the award they are treated as the members of one branch of the family and one share is allotted to them as such, (the other share being allotted to their uncle, Ram Ratan, who represented the other branch of the family. On the death of Lal Bihari, Chhail Bihari was recorded as the owner of the property allotted to the two brothers and he purported to deal with it as owner and executed a mortgage in favour of one Balmakund. Balmakund instituted a suit on foot of his mortgage and obtained a decree for sale. Thereupon the plaintiff, the widow of Lal Bihari, claimed Lal Bihari's share of the property as heir of her deceased son and objected to the execution of the decree as against that share. Her objection was disallowed and thereupon the suit out of which this appeal has arisen was brought by her for a declaration of her title to the share which, she alleges, her husband possessed in the property. Both the lower Courts have dismissed the claim, holding that Chhail Bihari and Lal Bihari were joint owners of the property allotted to them by the award and that upon the death of Lal Bihari, Chhail Bihari became absolutely entitled to it by survivorship. It is contended before us, on the strength of recent rulings of the Privy Council, that there was a separation of the joint family property on the occasion of the division of the property, and that Ram Ratan, the uncle, having become separate and having had a definite share of the joint property allotted to him, it must be presumed that Lal Bihari and Chhail Bihari became tenants in common of the share which was allotted to them by the award, and were not joint tenants. Their Lordships of the Privy Council in the case of Balkishen Das V/s. Ram Narain Sahu (1903) I. L R., 30 Calc., 738, decided that where an ikrarnama executed by the members of a joint family stated in unambiguous terms that defined shares in the whole of the joint property had been allotted to the several co-parceners, notwithstanding that liberty was given by it to any of the parties either to live together as members of the joint family as before or to separate his own business, the effect of the deed was to cause a separation in estate and interest between all the co-parceners. In that case, it will be observed that the ikrarnama in unambiguous terms stated that definite shares in the entire family property had been allotted to the several co-parceners. THIS is unlike the award and agreement which is relied upon in the present case as establishing a separation in interest between the two brothers Lal Bihari and Chhail Bihari. Here the agreement did not provide that definite shares should be given to them. The arbitrators were to allot the property between them and their uncle as they might think fit. In the award definite shares were not given to them, but one share was given to both. In view of this and of the evidence which shows that Lal Bihari and Chhail Bihari continued as joint tenants up to the death of Lal Bihari, we are satisfied that there never was an agreement between the two brothers to becomeseparate. We think that the view taken by the Courts below was therefore correct. We accordingly dismiss the appeal. The appellant must pay the costs of the respondent, Balmakund, the original defendant in the suit. The other respondent must abide his own costs.