Jadavbai Lakhichand vs Multanchand Harakhchand

Norman Macleod, Kt., C.J.—One Hasraj had four sons, Fulchand, Lakhi-chand, Harakehand and Chunilal. Fulchand passed a Farkhafc in 1904 to his father, which was in effect a partition deed. In 1907, the remaining three sous also passed Farkhats to their father, which were in effect documents of partition. Chunilal died about 1907 leaving no heirs and we are not concerned with his estate. Harakehand died in 1912 leaving his son, the plaintiff. Fulchand died in 1916 leaving a widow. Then Hasraj died in February 1918 and Lakhichand died on March 22, 1918, leaving a widow.

Plaintiff claimed that he was entitled to the suit property on the ground that he remained joint with his grand-father after His father Harakehand had separated. He made an alternative claim that if he did not remain joint with Harakchaml, lie was entitled to the property left by Hasraj because he inherited it with his uncle Lakhichand and he became entitled to the whole by survivorship on Lakhichand''s death.

The plaintiff has succeeded in the lower Court. We do not think that on the facts the learned Judge realised the true legal position. Fulchaud separated in 1904. The Judge held that he re-united with Hasraj sometime before 1907, because in the Farkhat passed by Harakchand to his father, Fulchand was a party and Harakchand said''that Hasraj and Fulchand were joint. It is an undoubted fact that Fulchand became separated in 1904, and therefore in my opinion a mere statement by Harakchand that in 1907 Fulchand and Hasraj were joint was not by itself sufficient to prove re-union. It might be a strong corroboration of any direct evidence that Fulchand and Hasraj reunited. Therefore Tulchand''s widow is entitled to the property, if any, which Fulchand received when he separated. If the widow demands it there must be an enquiry whether any of the suit property belonged to Fulchand.

With regard to the plaintiff we cannot say that there is any evidence that when his father separated in 1907, he remained joint with his grandfather. In ordinary cases of partition between a Hindu father and his sons, the grandsons, though no doubt they take an interest in the family property as from their birth, can only derive that interest through their fathers, with whom the presumption is that they remain joint after partition,

There is a distinction between a release and a partition. It may well be said that a father has no right to release his son''s interest in the family property while the grandfather is alive. But it has happened in this case that Harakchand obtained his share in the joint firmly property and was released of his liability for certain debts. Therefore it is clear there was a partition and his son must abide by it unless it can be set aside on the ground of fraud or for other good cause. Therefore when Hasraj died his property went to his son Lakhichand and his grandson the plaintiff aa his co-heirs. The plaintiff has next contended relying on para 31 of Mulla''s Hindu Law that according to the Mitakshara such co-heirs will take as co-parceners, and therefore on the death of Lakhichand plaintiff would be entitled to the property as against his widow. But Mr. Mulla is referring to sens in a joint Hindu family who inherit the self-acquired property of their father. In that case they take it as co-parceners and if they continue as a joint, family such property would go by survivorship. It is different, however, when the family is already separated. Then the heirs take the property as tenants-in-common. Therefore we allow the appeal to this extent as far as the widow of Fulchand defendant No. 1 is concerned. She will be entitled to such part of the suit property which she can prove was taken by Fulchand in 1904. The second defendant will be entitled to half the property left by Hasraj to which her husband Lakhichand became heir, and the plaintiff will be entitled to the other half.

We, therefore, send back the case to the trial Court for proper enquiries to be conducted in accordance with our judgment.

All coats to come out of the estate in both the Courts.