Decided on August 07,1958


Referred Judgements :-



G.MEHROTRA,J. - (1.)THIS is an application under Rule 38 of the rules for the Administration of Justice and Police in the Khasi and Jaintia Hills. Debi Singh Bhujil, - -opposite party No. 1 brought a suit claiming partition and separate possession of the disputed properties. The trial court ordered partition of the half share of the landed and other immoveable properties of the Gurkha Dairy Firm as described in schedule of the plaint and also decreed the suit of the plaintiff for declaration of his half share of the income and profits of the business known as Gurkha Dairy from January, 1943 to the date of its closure.
(2.)ACCORDING to the plaintiffs case, applicant Tek Bahadur Bhujil and Dhanbir Bhujil were brothers and the opposite party Beli Bhujelini was their mother. The Gurkha Dairy at Mawprem was acquired by the joint family in the name of the defendant No. 1 as he was the eldest son. Some other business was also started by the family such as Indian Sweetmeat House and Delkhosh Cabin at Police Bazar in the name of pro forma defendant No. 2. On 31st December, 1942, all the three brothers, with the consent of their mother, entered into an agreement under which the land and houses and business at Mawprem was to be enjoyed by the plaintiff -respondent No. 1 and the applicant jointly half and half and the business at Police Bazar was given to defendant No. 2.
The mother was also given the right to enjoy the house property in Shillong Cantonment No. 5 Jhalupara Bazar. That was the first property purchased by the family in the name of the mother. After this deed, the plaintiff -respondent's case wag that the present applicant started to grudge the plaintiff -respondents interference in the management of the business. The plaintiff then asked him to partition the half share of the suit property and business and to render account to him, but he failed to do so and thus the suit had to be filed. The defendant -appellant denied the claim of the plaintiff. His contention was that he and Dhanbir Bhujil were inhabitants of West Nepal. Their father died in 1916. Thereafter, the applicant with his mother, sister and the pro forma defendant, his brother came to Shillong in 1920. He sold away all the properties belonging to himself and his brother and with the sale proceeds thereof started one small 'pan' shop. The appellant then joined the Gurkha Rifles as Sepoy and went to Malakand. The pay of the appellant was drawn by the mother at Shillong. In September, 1922 he returned to Shillong and found his mother living with one Rabilal. This man had already his married wife in Nepal and out of the said wed -lock, the plaintiff -respondent was born. When the married wife of Rabilal came back, he left for Nepal with her and the mother of the appellant was left alone. The appellant then left the service, married at Shillong, and started the dairy business at Police Bazar with his own money. With the earning of the business, he purchased properties in Shillong. He removed his dairy business in the year 1937 from Police Bazar and named it as Shillong Gurkha Dairy which he has been all along managing as his own personal business and has been paying income -tax.

The applicant in substance denied the claim of the plaintiff and asserted that the business was his personal property and that there was no family property which could be partitioned. The deed relied upon by the plaintiff was denied by him. The trial court - -the Assistant to the Deputy Commissioner Shillong, decreed the suit. On appeal the decision of the trial court was affirmed by Sri Lyngdoh, exercising the powers of the Deputy Commissioner, United Khasi and Jaintia Hills, Shillong. Against this order of Sri Lyngdoh, the present application has been filed and the decision is challenged on various grounds of law and facts.

(3.)THE first contention raised is that Sri Lyngdoh had no jurisdiction to hear and decide the appeal inasmuch as he cannot be invested with the powers of the Deputy Commissioner under the rules Framed for administration of justice and police in the Khasi and Jaintia Hills - -hereinafter called as the rules. Secondly, it was contended that the document of 1942 was not a family settlement and thus cannot create any interest in the property in favour of the plaintiff.
It was further contended with regard to this document that it was neither a family arrangement nor was it binding and admissible in evidence as it was not registered. It was also lastly contended that there was no joint family and that there was no coparceners consisting of the appellant, his brother and the plaintiff -respondent and thus the plaintiff had no right to ask for partition.

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