MUSAMMAT GIRJA BAI Vs. SADASHIV DHUNDIRAJ

JUDGEMENT

(1.) This appeal from two judgments and decrees of the Judicial Commissioner s Court in the Central Provinces of India arises out of a suit brought by one Harihar since deceased, on the 21st October, 1908, in the Court of the District Judge of Nagpur. The object of the suit was to obtain a declaration of his right to a one-third share in certain movable and immovable properties, which till then had been held as appertaining to a joint undivided Hindu family, of which he had been a member, a decree for partition, and other ancillary reliefs.

(2.) Harihar died on the 17th June, 1909, during the pendency of his suit, and the question in the case is whether at the time of his death he was separated from the joint family. If he was, his share would be inherited by his widow Girja Bai, the appellant; if not, the defendants, respondents in this appeal, would take it by survivorship.

(3.) The facts of the case are simple, and may be stated briefly. Bapuji, the common ancestor, left several sons, among them Harihar, the plaintiff in this suit; two, Damoodur and Balaji, died many years ago without any issue. Atmaram, the eldest, who became the manager of the family on Bapuji s death, died in 1899, leaving Dhundiraj, the first defendant, the son of his brother Ram Chunder, whom he had taken in adoption. Dhundiraj became the manager after Atmaram s death, and acted as such when this suit was instituted. He has since died and he is now represented by his son Sadashiv. Ram Chunder died in 1902, leaving Nilkantha, his son, and two grandsons, all of whom are defendants in this action. Jageswar, another brother, died in 1906 without leaving any male issue. Thus, on the 21st October, 1908, when he brought his suit, Harihar was entitled to a one-third share of the joint property. It is alleged in the plaint that after Atmaram s death " dissensions arose in the joint and undivided family," and in consequence thereof two shops were set up at Pgrseoni, their place of residence, one in the name of Harihar, the other in that of Dhundiraj, and separate bahi-khattas ( account-hooks ) were opened in their respective names. The plaintiff further alleged that for " these reasons" he did not wish to continue as a member of the joint family; that he had communicated his intention to the defendants; and had, on the 1st October, 1908, served a registered notice on the first defendant, " the manager of the joint family," and " as the defendants were collusively putting off partition and evading to give him his share he was obliged to bring this suit." The cause of action was stated to have arisen on the Ist October, 1908, when he demanded partition and his one-third share.