Narayan and others vs Mahadeorao

T.P. Naik, J.

The judgment in this appeal shall also govern second appeals Nos. 440 of 1964, 441 of 1964 and 803 of 1965.

One Vithobaji died leaving five sons and a widow, namely, Mahadeo Rao, Khushal Rao, Ganpat Rao, Sham Rao, and Vasant Rao and Savitribai.

Mahadeo Rao filed a suit for possession of the suit property against the Defendants who are the purchasers of the same property from the other brothers and the mother of the Plaintiff and who had also been put in its possession by their vendors. The suit was based on the allegation that the suit property was the joint family property of the Plaintiff, his brothers and mother, and that its sale by some of the members of the joint family, which was neither for legal necessity nor for any benefit to the estate, was not binding on the Plaintiff. He, therefore, claimed possession of the suit land from the Defendant-purchasers.

The defence inter alia was that the sale was for legal necessity as also for the benefit to the estate. In the alternative it was pleaded that on the date of the sale by the brothers and mother of the Plaintiff there was no joint Hindu family consisting of the Plaintiff and his brothers and mother because in the written statement filed by Khushal Rao in Civil suit No. 33-A of 1959 in the Court of the Civil Judge, Class II, Sausar, he had made an unequivocal declaration to separate from the joint family which had the effect of disrupting it as from that date, i.e. from 17-12-1959.

On appeal it was held (sic) statement of Khushal Rao in his written statement in civil suit (sic) did not constitute a clear and (sic) intension to separate (sic) was no severance of the status of the joint Hindu family consisting of the plantiff and his brother and mother to decree for possession was according passed.

The trial Court dismissed the Plaintiff''s suit holding inter alia that though there was no legal necessity for the sale, there was no joint Hindu family with the Plaintiff as one of its member when the sale in question was held and as there was thus no coparcenary on the date of the suit, the suit claiming exclusive possession of the suit property from the Defendant-purchasers was liable to be dismissed. It was held that the written statement dated 17-12-1959 filed by Khushal Rao in Civil Suit No. 33-A of l959 had the effect of disrupting the joint family.

The Defendant-purchasers have come up in appeal.

Similarly, in second appeal No. 803 of 1965 the Defendant-purchaser (sic) had purchased the property comprised in the suit from the (sic) and mother of the Plaintiff and it had been held by the lower appellate Court the the sale was neither for legal neither for legal necessity nor for the benefit (sic) the family. It was also held negativing the defence of the Defendant. Purchaser (sic)mat the statement of Khushal Rao in his written statement in (sic) suit No. 33 A of 1959 did not have the effect of severing the joint statusof the joint Hindu family. As the suit for possession of the suit (sic) by the plantiff-respondent Mahadev-Rao had been decrred (sic) purchaser has come up in second appeal. This is second appeal No. (sic) of 1965.

(sic).............................................(sic)

Second appeals nos. of 440 of 1964 and 441 of 1964 are by the Plaintiff-appellant Mehade Rao had been decreed, the Defendant purchaser has come up in second appeal. This is second appeal No. 503 (sic)of 1965.appeal. This is'' second appeal Plaintiff Mahadeo Rao had been dismissed on the ground that the statement of Khushal Rao in his written statement in Civil Suit No. 33-A of 1959 had the effect of disrupting the joint Hindu family so that the suit of the Plaintiff for exclusive possession of the suit property could not secceed.

All the appeals thus involve a common question whether the statement of Khushal Rao in his written statement in civil suit No. 33-A of 1959 had the effect of disrupting the joint family of Mahadeo Rao and his brothers and widowed mother.

The aforesaid statement of Khushal Rao was made in the following circumstances. The brothers and mother of Mahadeo Rao had transferred a joint family issue to one Govind Rao in 1944. Mahadeo Rao therefore find a suit against Govind Rao in the Court of Civil Judge, Class II, Saindar, for commission that the suit house. The suit was decreed by the High Court with the condition that the execution of the decree shall be stayed till Govind Rao filed his suit for partition of the joint family property for which three months'' time was granted to him. Govind Rao filed his suit, Civil Suit No. 33-A of 1959, for a general partition against Mahadeo Rao, his brothers and mother. In that suit Khushal Rao filed his written statement (Exh.D-2) on 17-12-1959, and Ganpat Rao and Sham Rao filed their written statement (Exh. 10-3)(sic) on 14-3-1960. The contention of the Defendant-purchasers in these appeals is that these statements had the effect of severing the joint status of the joint Hindu family.

The relevant statements of Khushal Rao in Exh.D-2 are as follows:-

The Defendant No. 1 Khushalrao had no objection if the house is allotted to his Plaintiff''s share in the partition.

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This Defendant does not deny the claim of the Plaintiff and he has no objection if a decree for partition of joint family properties of the Defendants is passed." Similarly, the relevant statements of Ganpatrao and Shamrao in Exh. D-3 are as follows:-

These Defendants have no objection if the house is allotted to the share of Khushalrao so as to give an equitable relief to the Plaintiff.

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These Defendants do not deny the claim of the Plaintiff and they have no objection if a decree for partition of joint family properties is passed and the equitable relief as sought by the Plaintiff is given to him.

Partition is a severance of joint status and as such is a matter of individual volition. Once the decision has been unequivocally expressed and clearly intimated to his co-sharers, his right to obtain and possess the share to which he admittedly has a title is unimpeachable. Girja Bai v. Sadashiv Dhundiraj AIR 1916 P.C. 104=43 I.A. 151=12 NLR 113 P.C. All that is necessary, therefore, to constitute a partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. There should, however, be an intimation, indication or representation of such intention to the other members or the Karta though what form this intimation should take would depend on the circumstances of each case because uncommunicated intention may be no more than entertaining in one''s mind the intention to separate which is not enough. See Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, .

The institution of suit for partition by a member of joint family is an unequivocal intimation of his intention to separate and there consequently is a severance of his joint status from the date when it is instituted: Suraj Narain v. Ikbal Narain 40 I.A. 40, Girja Bai v. Sadashiv Dhundiraj (supra) and Kawal Nain v. Prabhulal AIR 1917 P.C. 139=44 I.A. 159. But if the suit is withdrawn before trial, the Plaintiff not desiring separation, there is no severance of joint status: Kedar nath v. Ratan Singh 37 I.A. 161, and AIR 1925 49 (Privy Council) . To explain the apparent contradiction in the aforesaid statements of the Judicial Committee, a Division Bench of this Court in Shankersingh v. Gulabchand 1945 NLJ 172=A.I.R 1945 Nag. 138=I.L.R. 1945 Nag. 444, has said that the question of intention must be judged by looking to the man''s conduct as a whole and not merely to some isolated incident like the filing of a plaint. As stated by the Supreme Court in Mst. Rukhmabai Vs. Lala Laxminarayan and Others, .

Though, prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose.

In AIR 1936 264 (Privy Council) , the Judicial Committee observed:

It sometimes happens that persons make statements which serve their purpose, or proceed upon ignorance of the true position; and it is not their statements, but their relations with the estate, which should be taken into consideration in determining the issue.

(sic).................................................(sic)

(sic) (sic) member of a joint family (sic) interests by expressing an unequivocal intention to do so and evidencing it. by an appropriate overt act;

(2) Whether such an intention has been expressed is a question of fact;

(3) if it is expressed in an appropriate way, then the severance is effected then and these; but

(4) the effect of this can be nullified provided all interested consent. The consent can either be express or it can be inferred from the circumstances.

Now, if we examine the facts of our cases in the light of the prin-(sic) above, we find that the statements had been made by Khushal Rao, Ganpat Rao and Sham Rao not as Plaintiffs claiming a partition but as'' (sic) in a suit filed by one Govind Rao, a stranger-purchaser, from one of the members of the joint family for partition. No doubt, in a (sic) suit even the Defendants are deemed to be in the position of Plaintiffs (sic) the fact remains that the statement was not one claiming partition (sic) not objecting to the partition. Such statement, in my opinion, cannot be called unequivocal declaration of the intention of Khushal Rao, Ganpat (sic) shamrao to partition the family property. Then again it is apparent (sic) the plaint was returned to the Plaintiff Govind Rao for presentation, in finder(sic) Court, the suit was not pressed either by Govind Rao or by the members joint family whose property was sought to be partitioned. The statements were thus not unequivocal declarations of intention to separate of Khushal Rao, Ganpat Rao and Shamrao, but were made as defences to a suit for partition and their subsequent conduct in not pursuing the matter shows that they themselves had no unequivocal intention to separate either These is also the fact that the members of the family, continued (sic) did not by any overt act confirm their intention to separate (sic) intention ever. Their relation to the estate(sic) which remainded joint and was treated by them as joint family property belies the coftifoatiott(sic) that the statements were their unequivocal declaration of their intension to separate by disrupting the joint family. I may here also note that there is no satisfactory evidence that these declarations were made known to the other member of the joint family. The mere fact that these statements were made suit to which all the members of joint family were party-Defendants cannot be conclusive of the question unless it were shown that they, (sic) proceedings, were served with the copies of the statements (sic) otherwise informed of them. I do not agree with the observation of (sic) district Judge that as the declarations were made in written statement in Civil Suit No. 33-A of 1959 in which all the brothers and mother were. (sic) defendant, it would be reasonable to hold that the declarations were made to other member

In the result, second appeals Nos. 440 of 1964 and 441 of 1964 are (sic) with costs and second appeals Nos. 803 of 1965 and 819 of 1965 are dismissed with costs, subject to this that in each case the decree shall he that the defendant-purchaser shall deliver possession of the whole of (sic) property to the Plaintiff, leaving the Defendant-purchasers to work out their sights in a suit for general partition, The execation of the decree shall how (sic) be stayed for three months in each case to enable the defendan to purcha-sers to file a suit for general partition and if the suit is filed the stay shall continue till the final decision of the suit, but if no such suit is brought within the period, then the stay of execution shall stand vacated without further reference to this Bench.