Harnarayan Pande vs Suresh Pande and others

Das, J.—This appeal arises out of a suit instituted by the appellant for partition of joint family properties. The defence, which has succeeded in the Court below, is that there was a previous partition and that the plaintiff is not entitled to a fresh partition of the properties. No documentary evidence was adduced in the case ; but the learned Subordinate Judge has relied upon the testimony of one or two of the witnesses produced on behalf of the defendants and has found in favour of the case set up by the defendants. The learned Subordinate Judge attached considerable value to the fact that, admittedly, there has been a cessor of commensality. The view of the learned Subordinate Judge may be stated in his own words. He says as follows :

It is not the case of the plaintiff that the parties have been joint in every respect. He admits separation in mess, whereas the defendants plead complete separation, so it is for the plaintiff more or loss to show that the parties have been joint.

With this conclusion I am unable to agree. The cessor of commensality is no doubt one of the matters to be taken into consideration by the Court when the question in debate before the Court is whether the parties are joint or separate, but it by no means concluder the question. As this case must go back to the learned Subordinate Judge, it is desirable ho state that the question whether parties are joint or separate is ultimately a question of fact to be determined on the evidence produced before the Court. In this case it is admitted trail there is a nucleus of joint family properties. That being so, the initial onus is upon the party who asserts that there was a separation and it is for the party asserting the separation to prove that the separation did in fact take place. As it is pointed out in Mayne''s Hindu Law, numerous circumstances may be

set out as being more or less conclusive of a partition having taken place, such as separate food, dwelling or (sic) separate enjoyment of the property ; income (sic) expenditure (sic) transactions with each other and the like

" But " as Mr. Mayne points out, all these circumstances are merely evidence and not conclusive evidence, of the fact of partition." To quote again the words of Mr. Mayne :

Partition is a new status, and when it is brought about by consensus of the members of a co-parcenary they must intend that their condition an co-parceners shall cease. It is not sufficient that they should alter the mode of holding their property. They must alter, and intend to alter, their title to it. They must cease to be joint owners and become separate owners. And as, on the one hand, the mere cessor of commensality and Joint worship, the existence of separate transactions, the division of income, or the holding of land in separate portions, or a mere definition of shares in revenue and village papers do not establish partition, unless such steps were taken with a view to partition ; so, on the other hand, if a division in status has in fact been effected between the members of the family, it is not necessary that they should proceed to a physical separation of the particular pieces of their property.

(Mayne on Hindu Law and Usage, Ninth Edition, page 717). But it has been pointed out in more than one case that where there are dealings between the parties; themselves, that circumstance may be taken as very strong evidence in favour of the view that there has been a partition.

In this case, the dispute between the parties arose during the Survey proceedings and a petition of compromise was filed before the Settlement Officer which settled all the disputes of the parties so far as the immoveable properties were concerned. That petition runs as follows: "Your petitioners submit that there was a dispute between us" all the names are mentioned-- "which has been compromised in the presence of the punches......that both parties should receive half and half of all the ancestral properties, zamindari, kashtgari, etc., over which we, the parties, have possession and occupation and with respect to which the names of us, the parties, have already been (sic) ; and that the names of Mahadeva Pande, son of Nandkeshwar Pande, Tapesar Pande, son of Abhinm Pande and Suresh Pande, son of Ram Yad Pande, be recorded with respect to three-fourths, in equal shares, and the name of Har Narayan Pande, son of Gopi Pande, be recorded with respect to one-fourth of the zamindari bearing tauji No. 4964, in which rive-annas four-pies share has been recently purchased. The (sic) of the punches are affixed blow. Therefore, these few words have seen written in the form of Sulaknama, to that the same may be of use when necessary." Now the properties to which this petition refers, are properties entered in Schedule I and properties Nos. 1 and 2 in Schedule II of the (sic) of compromise. It seems to me that, so far as these properties are concerned, there has been a complete settlement between the parties ; and the learned Subordinate Judge should have given effect to this petition of compromise. Mr. Naresh Chaudra Sinha states that the Record-of-Rights was, as a matter of fact, prepared on the basis of this petition of compromise. If that be so, and we have no reason to doubt that that is so, the plaintiff is still entitled to a partition by metes and bounds of those properties ; and we are assured that there are some properties which have been recorded in the joint names of the plaintiff and the defendants, So far as tauji No. 4964 is concerned, the interest of the parties is clearly specified in the petition of compromise and the plaintiff is clearly entitled to a partition by metes and bounds of this property. So far as property No. 3 in Schedule No. II is concerned, it is pointed out that a stranger is interested in this property and it cannot, therefore, be partitioned by metes and bounds. With regard to the properties in Schedule No. I, the partition will be on the basis of the Record-of-Rights which we accept as correctly defining the rights of the parties.

I now come to the zarpeshgi bonds which are set forth in Schedule II of the plaint. The right of the plaintiff to have a partition of these bonds must depend upon the question whether the parties are joint or separate. I have already said that the learned Subordinate Judge was not correct in placing the whole onus upon the plaintiff. We think that this question must be again determined by the learned Subordinate Judge. If he comes to the conclusion that the parties are joint, he must direct an enquiry in order to ascertain what the joint family properties consist of, and he must give a share in these joint family properties to the plaintiff. This enquiry must be in respect of the zarpeshgi bonds set out in Schedule 1 and the properties sot out in Schedule III and IV of the plaint.

I would accordingly allow this appeal set aside the decision of the learned Subordinate Judge and remand the case to him for disposal according to the directions given in this judgment Costs will abide the result and will be disposed of by the learned Subordinate Judge.

Ross, J.

I agree.