Kamleshri Prasad Singh and Another vs Raghubans Prasad Singh and Sirjug Prasad Singh and Others

Roe, J.—This appeal arises out of a suit for partition. The pedigree of the family is given in the plaint. It is descended from Brij Lal Singh and the property to be divided is the ancestral property of Brij Lal Singh together with four villages subsequently acquired, namely, Pandarak, Surajpore, Rasulpore and Bhagwanpore Bansi or Barauni. In the course of the trial the plaintiff sought for and obtained leave to add to the properties to be partitioned a number of debts which were alleged to be due to the joint family.

The parties are the descendants of the four sons of Brij Lal Singh, the plaintiff and the defendants Nos. 1 and 2 being descended from the third son Parshan Singh, the defendants Nos. 3 and 4 from the eldest son Rang Lal Singh, the defendants Nos. 5 and 6 from the second son, and the defendants Nos. 8 to 13 from the youngest son.

In the Court of first instance it was alleged that there had already been a partition of the whole estate and that, therefore, the suit should be dismissed. This issue was found against the defendants. The defendants Nos. 1, 2, 5,6 and 7 do not appeal, the defendants Nos. 3 and 4 appeal and the defendants Nos. 8 to 13 have filed a cross-appeal. In the argument before us "no attempt was made to contest the learned Subordinate Judge''s finding that no valid partition of the family property had taken place.

The points for consideration are only (1) whether the defendants Nos. 3 and 4 being the elder branch are entitled to Jethansi or an eldest son''s share; (2) whether the four villages I have named were a part of the joint family estate or the self-acquired property of Rang Lal Singh, the grandfather of defendants Nos, 3 and 4; and thirdly, whether a number of bonds standing in the name of Gita Prasad Singh and his sons represent loans made from the private purse of Gita Prasad, or from the joint family estate. The learned Subordinate Judge decided all these issues against the appellants. Upon the question of the eldest son''s share the learned Subordinate Judge has dealt only with the oral evidence, and that evidence he has dealt with in a somewhat summary fashion. The documentary evidence shows that upon a reference to arbitration of a dispute with regard to the whole family property made in the year 1905 one of the arbitrators, Deokinandan Singh, drew up a statement of the rights of the parties and in it distinctly recorded a finding that the elder branch was entitled to 5/21sts of the family property, the remaining branches being entitled only to 4/21sts. Heading the evidence of Jhumak Singh, the plaintiff''s witness No. 5, it is clear that he himself and another of the arbitrators acquiesced in the finding recorded by Deokinandan Singh. Deokinandan Singh himself gave evidence on behalf of the plaintiff and says that his decision regarding Jethansi was most probably based on the oral evidence on behalf of the parties. In 1908 a petition was filed by Sarjug Prasad Singh representing as the genealogical table shows, the branch to which the plaintiff himself belongs, in proceedings regarding the registration of the four villages under dispute upon the second point raised in this Court. In this petition it is distinctly admitted that the eldest branch is entitled to a Jethansi share. The second witness for Gita Prasad Singh''s branch, Bajrang Prasad, states that up to 60 years ago Jethansi custom was recognised in the family. Seeing that there has admittedly been no partition since the separation from his brothers of Brij Lal Singh who is the great-grandfather of the majority of the parties, we may assume that there has been no partition for sixty years, and that, therefore, it is impossible for the custom of Jethansi, if it existed 60 years ago, to have now died out. The evidence, which I have quoted, coupled with the oral evidence of the witnesses called by the defendants Nos. 3 and 4 seems to me conclusive proof of the custom alleged by the defendants Nos. 3 and 4, and I '' would order that a partition of the Immovable property be made on the basis of a division of the property into 21 parts, of which the defendants No''s. 3 and 4 will receive five parts, the remaining branches four parts each; the plaintiff''s branch being again sub-divided into two equal shares of two annas each to the plaintiff of the one part and the defendants Nos. 1 and 2 of the second part.

I can see no reason to disturb the finding of the learned Subordinate Judge that the villages in dispute were acquired from joint funds. Mr. P.R. Das admits that if the burden of proof is on him to show from what means the acquisition was made, his evidence does not support the burden of proof upon him. He suggests, however, that on the basis of the decision in the cage of Bodh Singh Doodhooria v. Guneshchunder Sen 19 W.R 356 : 12 B.L.R. 317 : 3 Sar. P.C.J. 253 there is no burden of proof on him at all, since it is shown by the arbitrators'' award and by the evidence on both sides that the family has for a very long time had separate accounts and have issued loans from their separate private funds. The ruling in question is based, I take it, upon the principle that where all the family has been dealing in Immovable property as self-acquired property, the presumption that all Immovable property acquired in the name of any member of the family is joint property at once disappears. There is nothing upon the record to show that any other branch of the family has been making private acquisitions of Immovable property. The evidence with regard to separate transactions is limited to the issue of loans upon simple bonds. No case has been cited of separate acquisitions of Immovable property by any of the junior branches. It is admitted that Rang Lal Singh, in whose name these properties were bought, was at the time of the purchase the Karta of the family. I am of opinion that his descendants were required to show by definite evidence that he acquired these properties from private funds and not from funds which were in his hands as the head of the family. It being admitted that they have failed to show this, the learned Subordinate Judge''s decision upon this point must be upheld.

The learned Subordinate Judge has dealt with the question of the ownership of the bands standing in the name of Gita Prasad in even more summary fashion than that in which he disposed of the other points in dispute. It is quite clear from the evidence of the plaintiff''s witness at page 19 and from the award of Daoktnandan Singh at page 29 that from 1314 onwards Gita Prasad was the manager of such business as remained joint after the reference of the family disputes to arbitration in 1905. Deokinandan Singh himself admits in his evidence at page 17 that when he went into the accounts with the intention of settling the disputes, he found that there were 142 debtors of the joint family on bonds and bahi khatas. His award shows that with regard to one of these bonds at least the consideration had not been advanced by Gita Prasad alone. It also appears from that award that there was considerable confusion regarding the realisation of the various debts, each member of the family playing for his own hand. The presumption is that the head of the family in collecting the moneys, due upon these bonds was collecting on behalf of the joint family; and if he re-issued the moneys collected on fresh loans, the presumption would again be that he issued them the benefit of the joint family and not for his private benefit. It is impossible for us upon the materials before us to come to a definite finding with regard to each of the loans shown in the schedule. We must, therefore, direct that further proceedings be taken in the lower Court with regard to the loans standing in the names of Gita Prasad and the members of his branch and claimed by him as his exclusive property. This enquiry will take the form of a taking, of an account. A Commissioner will be appointed to examine the accounts of Gita Prasad and to ascertain what has been the subsequent history of the bonds outstanding in 1905, and, having ascertained, firstly, what sums have been realised and not re-issued, and secondly, what sums have been realised and reissued, he will apportion the bonds, which have been the fruit of'' previous realisations or renewals of loans previously issued when the family was joint, among the four branches in equal shares. It is clear upon the evidence that there is no Jethansi custom with regard to moveable property. He will also apportion Gita Prasad''s liability upon the sums realised from previous loans and not re-issued.

The appeal should be decreed in part. The Immovable property, including the four villages regarding which there is a dispute, will be divided as indicated in the body of the judgment and an account will be taken of the money-lending business of Gita Prasad''s branch and an adjudication made thereon on the terms above recorded. I would note that the cross-appeal of Gita Prasad is not pressed. We are asked only to say that the Commissioner in making the partitions of the Immovable property will have regard to the general rule of partition, that all specific plots or villages held in severalty by any member of the family will, as far as possible, be allotted to his share on partition. Having regard to the result of this appeal we make no order as to costs either in this Court or in the Court below.

Coutts, J.

I agree.