Decided on July 21,1950

Munshi Ram And Ors. Appellant
Thakar Dass And Ors. Respondents


Chopra, J. - (1.) THIS appeal is directed against an appellate decree of the Dist. J. Nabha, dismissing applts. suit for partition decreed by the trial Sub -Judge. The parties to the case are descendants of one Kaka Earn who had three sons Ram Parahad, Ralla Ram & Guli Mal. Rala Ram died during the life time of Kaka Ram leaving no direct descendant. Ram Parshad also died leaving his only son Chuhia Mal who with his sons Thakar Dass & Jawahar Lal, are marshalled as defts. in the suit brought by Guli Mal & his sons Sadhu Ram & Munshi Ram. The family originally belonged to village Samandgarh Chhanna in Patiala State. Some times before 1959 Kaka Ram shifted to Nabha with his grand -son Chuhia Mal & started residing there permanently. Kaka Ram died some where in the year 1962; Chuhia Mal & his sons carried on business in the name of firm Kaka Ram Chuhia Mal & acquired certain shops & other immovable property in Nabha. Guli Mal & his sons continued living in the village & remained in possession of the property there. Sometimes after they also shifted to Nabha & started living there in a house purchased by them. They started a firm known as Sadhu Rum Munshi Ram & carried on business in Nabha. On 21 -8 -2001 they instituted the present suit for partition of the immovable property in possession of Chuhia Mal & his sons in Nabha & also for rendition of accounts of the firm Kaka Mal Chuhia Mal, with the allegations that the parties formed a joint Hindu family, that the business carried on & the property possessed by the defts. belonged to this family, & that they had one half share in them. The defts. pleaded a disruption of the joint family in the year 1959 & alleged that since then the two families were living separately, carried on separate business. & acquired separate properties. A deed of relinquishment dated 30 -12 -1959 was relied upon to prove separation & to prove that Guli Mal pltf. relinquished his rights in Kaka Mal's haveli in Nabha by accepting in its place the property in village Chhanna.
(2.) THE trial Ct. raised several issues & finally decreed the suit. The pltfs. were found to be entitled to one -half share in the Haveli, the firm Kaka Ram Chuhia Mal, & also in the property acquired by that firm. A comr. was appointed to take accounts of the firm & to find out of which the properties were acquired out of its funds. It may here be mentioned that the pltfs. did not specify the properties they claimed to be joint, nor did they give them in any separate list. A close reading of the plaint, however, shows that their main ground was the haveli purchased by Kaka Mal though it was incidentally mentioned that they had also a share in all the subsequent acquisitions made by the defts. The Ct. failed in its duty not to call for a list of the property which the pltfs. claimed to be joint or to record their statements to specify it. They were required to pay ad valorem court fee on half of the market value of the haveli which the Ct. took as the only property in dispute. It should not have been left for the Comr. to enquire as to which of the properties were joint but the Ct. should have decided it before giving the preliminary decree. The first appellate Ct. upset the findings of the trial Ct. & came to the conclusion that the family had disrupted & that the pltfs had no share in the Haveli or in the firm. This is pltfs. appeal.
(3.) THE main question that falls for decision is whether the parties still form a joint family as alleged by the pltfs. Mr. Atmaram relying upon the general presumption of jointness of a Hindu family contends that it was for the defts. to prove that it had separated Reference has also been made to some oral evidence which is to the effect that the family was still joint. It is urged that separation had not been proved & that the facts relied upon by the Dist. J. were not sufficient to rebut the strong presumption of jointness. He supports the finding of the Dist. J. that the relinquishment dead could not be treated as legal evidence in the case.;

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