JAITRAM Vs. NAROTTAM

JUDGEMENT

(1.) GAMBHIR had two sons, Thakurram and Lahuri, and Thakurram had two sons Sardharam and Adli. This suit was filed on 5th November 1925, by a son of Adli, six grandsons of Adli and a daughter-in-law of Adli Mt. Bindramati against the descendants of Lahuri and Sardharam, for a declaration that they were not bound by the agreement dated 29th December 1923, and for being put in joint possession of the villages Malda, Gundru, Turridih, Nagridih and Barekel to the extent of their four-annas share. Defendants 5 to 8 are the great-grandsons of Lahuri and defendant 9 is Lahuri's grandson. They stated that a partition had taken place between Thakurram and Lahuri about 50 years ago and that in that partition Thakurram was given five villages Kaitha, Pison, Deogaon, Basin and Marghati, and the other five villages were given to Lahuri. This statement was adopted by defendants 1 to 3 and defendant 11 also. The learned Additional District Judge held that there was a partition 50 years ago, in which Kaitha, Pisod, Deogaon, Basin and Marghati fell to the share of Thakurram, that the agreement Ex. 1 D 1 was not executed by the plaintiffs under fraud, that Ex. 1 D 1 was invalid for want of registration, that the defendants have made improvements in the villages which fell to their share, and dismissed the plaintiffs' suit

(2.) THE appellants in this appeal pressed the following two points: (1) There was no partition 50 years ago as alleged by the respondents. (2) The document Ex. 1 D 1 was obtained by making fraudulent misrepresentation.

(3.) IT is an admitted fact that the two branches, that is, Thakurram's descendants and Lahuri's descendants have been residing separately, messing separately and managing the villages separately for a very long time. The partition having, taken place more than 50 years ago, it was impossible to adduce direct evidence to prove the partition. There is no doubt that the parties have been living separately for a long time and the fact to be found is, whether this separation was on account of partition or not. Cessor of commensality is an element which may properly be considered in determining the question whether there has been a partition of the joint family property but it is not conclusive: Mt. Anundee Koonwur v. Khedoo Lal [1871] 14 M.I. A. 412. As pointed out by Sir Andrew Scoble in Ganesh Dutt Thakoor v. Jewach Thakoorain [1904] 31 Cal. 262, it is necessary to consider whether the evidence in other respects, supports or negatives the theory that the cessor in this case was adopted with a view to partition in the legal sense of the word. The following facts tend to corroborate the defendants' plea of partition: (1) Payment of land revenue separately by the defendants for the five villages in their possession. (2) Improvements effected at considerable cost by the defendants in their villages. (3) Mutation effected in the names of females, after the death of their husbands.