JOALA PRASAD SINGH Vs. MTCHANDERJOT KUER

JUDGEMENT

(1.) During the pendency of a partition suit instituted on 27 February 1931, by Gobind Saran, the deceased husband of defendant 1, against his elder brother, defendant 2, and the latter's son, defendant 3, Gobind incurred debts to obtain funds for the litigation and to pay for medical attendance necessitated by an accident which occurred to him. For these debts and for a further advance of Rs. 289 he executed, on 5 June 1931, a handnote for a thousand rupees bearing interest at two per cent, per mensem. The partition suit was dismissed for default on 21 November 1931. Gobind Saran died on 15 January 1934. Defendant 2 thereon obtained registration of his own name in place of defendant 1 in the Land Registration Department in respect of the property for which Gobind had been registered, alleging that Gobind had died in a state of jointness with himself and his son, defendant 3. On 22 May, 1934, plaintiffs instituted the present suit on the handnote to recover a sum of Rs. 1710-10-0 alleging that Gobind was separate from defendants 2 and 3 and that his widow, defendant 1, was his heir. The first Court dismissed the suit holding that Gobind was joint with defendants 2 and 3.

(2.) In appeal to the Subordinate Judge of Muzaffarpur, the plaintiffs contended that the institution of the suit for partition effected a disruption of the joint family. The Appellate Court held that, in the circumstances of the case, the institution of the partition suit did not evidence an unequivocal intention on Gobind's part to separate from his brother and nephew. The suit was accordingly dismissed. The circumstances referred to by the Appellate Court were that at the time of the institution of the suit Gobind was under the influence of profligate persons who were bent on his ruination and in effect that the institution of the suit for partition was their act rather than the act of Gobind himself.

(3.) In second appeal it is contended by the plaintiffs-appellants that the Court was going beyond its jurisdiction in considering the motive which led Gobind to institute the partition suit and that the decisions of the Privy Council are conclusive on the question that the institution of a suit for partition is sufficient to effect the separation in status of the plaintiff from the other members of the joint family. The decisions referred to are Appovier V/s. Rama Subba Aiyan (1866) 11 M.I.A. 75, Girija Bai V/s. Sadashiv Dhundiraj A.I.R.1916. P.C. 104, Kawal Nain V/s. Budh Singh A.I.R.1917. P.C. 39 and Syed Kasam V/s. Jorawar Singh A.I.R1922. P.C. 353.