KALIRAM KUNBI Vs. BAJILAL

JUDGEMENT

(1.) I am asked in this second appeal to infer and hold in view of the finding of the lower appellate Court to the effect that Bajilal was living separately and messing separately from his father and brothers for several years during the father's lifetime; that he was 'separated from', and the other brothers were 'joint with', the father at the time of the latter's death. But it is laid down in several cases that mere cesser of commensality and residence is not sufficient to constitute 'separation' in the eye of the law. There must be separation of interest, or, in other words, there must be a disruption of the joint family status; and this could be only by a partition, either made by the father in his own life time of co-parcenary property, or even of his own separate or self-acquisitions, or by the sons in their capacity as co-owners, after their father's death. Here, admittedly, no such partition has taken place either during the father's lifetime, or after his death. The personal law of the Hindus has no doubt to be administered in dealing with cases of inheritance to occupancy tenancy holdings; but it does not follow that the rule of Hindu Law that a 'joint' son excludes a 'separated' son must hold good even where the separation consists only in mess and residence and not in estate. It is no doubt the privilege of a Hindu father, at any time to separate his sons, or any of them, from himself, and, from his other sons, and to allot to them or him, as the case may be, a share or shares in order that they or he shall be separate thereafter, from himself and from one another; but there is no presumption that he had done so in every case. The question has to be decided on the facts of each case. Here the so-called separation stopped with separating Bajilal in mess and. residence only. No doubt Bajilal asserted that he was assigned the plot in dispute as his own separate share, but on the evidence it has been held that he failed to prove that it was assigned to him exclusively as his own share. In short there was no such separation or disruption of the interest of Bajilal or of the family property, as to constitute him a separated son of Mansa. I. am not therefore prepared to accept the contention of the learned pleader for the appellant based on the rulings of this Court reported in Chudaman Singh v. Sakharam [1900] 13 C.P.L.R. 137; Atmaram v. Lola [1911] 7 N.L.R. 36 and Yenka v. Dharma [1913] 9 N.L.R. 150; that the other five sons of Mansa had a preferential right to succeed to his occupancy holding to the exclusion of Bajilal.

(2.) THE cases in which the joint or re-united son or member was allowed to exclude the separated son or member were cases wherein either coparcenary property was involved or the separate or self-acquisitions of the father were voluntarily treated by the father as joint property and partitioned as such by him amongst his sons, and the separated son having been given his share by the father during his own lifetime, had no longer any claim to the rest of the property which he allotted to the rest of the sons or retained for them and himself jointly. Admittedly nothing of this kind has happened in this case, nor has Bajilal done anything to lose his right of inheritance. It is not the appellant's case that he is excluded from inheritance on any other ground. It therefore follows that Bajilal was legally entitled to succeed equally with the rest of the sons to his father's tenancy land in. suit.

(3.) AS the surrender has not given to the plaintiff a right to disturb the defendant in the enjoyment of the six acres in dispute until partition, and it has not been shown that his possession over it was wrongful, the appeal must fail and is dismissed with costs. The decree will embody the declaration made in para" graph 2 above.