KRISHNAPPA Vs. KASHINATH

JUDGEMENT

(1.) JACKSON , A.J.C. 1. This appeal, like First Appeal No. 2-B of 1927, arises from a suit for partition of the Nim Jagir village of mouza Pardi. In it I have to consider the other half share of the village in which the appellant, Krishnappa, claims to have a quarter share, that is, two annas of the whole village. It is not disputed that he and his uncle Vishwanath are, together entitled to four anna share. The question is whether that four anna share is to be divided between them equally or whether the appellant Erishnappa is to get one anna and Vishwanath three annas.

(2.) THERE were four brothers, Ramji, Harba, Manappa and Mahadappa, who owned the half share in mouza Pardi. They also own fields in mouza Wai. In 1896 Harba and his branch separated from the rest of the family and the fields at Wai were divided between all four branches. The other three branches went to live at Pardi and there they appear to have lived and managed their affairs as a joint family. In 1903 Manappa died and his branch became extinct. Before his death he executed a will, Ex. 7 D-4, dated 21st August 1903, in which he bequeathed his two anna share in Pardi and his other property to Vishwanath, the son of his brother Ramji. Krishnappa, the appellant, is the son of Sonba, Vishwanath's brother. His claim is that, though the will of Manappa was inoperative as Manappa was a member of a joint family, it proves a family settlement by which Vishwanath was to get Manappa's interest in the family property leaving his brother Sonba, the appellant's father, to succeed to the whole interest of Ramji. Viswa-nath's case is that he is entitled to two annas under the will of Manappa and to one anna as the son of Bamji. The lower Court has found in favour of Vishwanath.

(3.) WHEN Harba's branch separated and the fields at Wai were divided it was clearly necessary to ascertain the share to which each branch was entitled. The presumption then would be in favour of a partition between all the branches of the family. Nevertheless it is open to the appellant to contend that there was an agreement between the three branches that went to live at Pardi to remain united. It is not a question, as the lower Court supposes, of pleading and proving reunion. What the appellant pleaded was that the three branches in question did not separate. There is no evidence of any specific agreement to remain united, but there is, I think, good evidence to show that they did so remain.