RAGHUNATH Vs. MT. YAMUNABAI

JUDGEMENT

(1.) JACKSON , A.J.C. 1. This appeal arises from a suit by one member of a Hindu family against the widow of another member for possession of property now in her possession. Harbaji, the grandfather of the plaintiff Raghunath and of the deceased Gulab, husband of the defendant, had three sons, Sara'wan, the father of Gulab, Parashram and Jhyango, the father of Raghunath. It has been held by both the lower Courts that these four separated from each other in 1903 and that the defendant Mt. Yamuna is entitled to the property of her husband Gulab, The plaintiff's case is that Parashram alone separated from the other three members of the family in 1903 and that the other three either remained united or reunited and that the plaintiff in either ease is entitled to all the property that belonged to the members of the family that did not separate. The plaintiff relies on certain statements made in mutation proceedings after the death of Sarawan in 1912 by Harbaji Parashram and Bhagirathi, Sarawan'a widow (Exs, P. 7, P. 8 and P. 9) in which they say that Parashram has been separated in mess and estate for the last 9 years from which it is inferred that only Parashram separated. On the other hand, there are statements made by Jhyango and Harbaji in other mutation proceedings on the same occasion (Exs. D. 16 and D. 17) in which they say that all the property had been divided, although they admit that Harbaji, Sarawan and Jhyango continued living together. He also relies on certain exhibits e.g., Ex. P. 14 and P. 15, which are copies of plaints filed in 1921 and 1923, in which Gulabrao and Raghunath and the widow of Sarawan, Bhagirathi, have sued as members of a joint family and on the fact that there have been joint purchases and other transactions by the members of the family excluding Parashram and his branch.

(2.) AS regards the finding that all the members of the family separated, I find myself unable to interfere; there is oral evidence which the lower Courts have believed, namely, that of Ganpat (D.W. 1) and Amrit (D.W. 1), which shows a complete separation of all members of the family. It is also a fact that at the partition four shares were defined in the landed property and the partition is mentioned in the Eecord-of-Eights and the fields are recorded in the names of the persons to whose share they fell. It is pointed out that in Nageshar Bakhsh Singh v. Ganesha A.I.R. 1920 P.C. 46 the Privy Council have laid down that a definition of shares in revenue and village papers affords by itself but a very slight indication of an actual separation and is not sufficient to rebut the ordinary presumption of jointness; but that ruling can have no application to the facts of the present case. It is not merely on the entries in the revenue records that the defendant relies. As I have laid, there is also oral evidence and there is at least the admitted fact that a partial partition did take place.

(3.) THERE is one piece of evidence which goes to show that the family was not really reunited and that is Ex. D, 4l, a partition deed between the plaintiff and the defendant, It is urged on behalf of the plaintiff that this deed could only have been executed if the family had been joint; but it is clear that it would not have been executed at all if the family had been joint, because in that case she would have been entitled only to maintenance. The reason why this partition deed was necessary, even though the family was not joint, is that it relates to property acquired after the partition which the members of the family would hold as tenants-in-common. I hold that Harbaji Sarawan and Jhyango did not remain united and did not re-unite on or after the partition of 1903 and I dismiss the appeal with coats.