SHAMLAL SINGH Vs. HIRU SINGH

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff, who is now the appellant before us, was seeking partition of certain properties which were family properties belonging to the plaintiff's father, Ramgopal Singh and after his death, to the plaintiff and his two brothers. The defendant is the half brother of the plaintiff and the plaintiff's case was that he and the defendant Hiru Singh together with another brother Kissen Singh formed a joint undivided Hindu family, Kissen Singh was the full brother of Hiru Singh those two being the sons of the second wife of Ramgopal. Ramgopal died on 11 June 1928, and Kissen Singh on 11th November 1928. The only point which was argued in the suit is the question whether or not the three brothers, Sham Singh, Hiru Singh and Kissen Singh, formed a joint undivided Hindu family at the time of the death of Kissen Singh, that is to say, on 11 November 1928. The plaintiff's father, Ramgopal had five brothers and in the year 1926 a suit was brought by the sons of one of these brothers against Ramgopal and his three sons for partition of what was alleged to be the family property. In that suit Kissen Singh was represented by a guardian-ad- litem as he was under age. That suit was still pending at the time when Ramgopal died on 11 June 1928. On 3 September 1928, there was a consent decree made in that suit and that consent decree embodied certain terms of settlement which had been arrived at between the parties to the suit of 1926. The case in the Court below and in this Court really falls to be determined by reference to the terms of settlement embodied in the consent decree of 3rd September 1928, and the matter which we have to decide is confined to a very small compass, by reason of the fact that it has been conceded on behalf of the defendant- respondent in this appeal that the family of Ramgopal including of course the plaintiff and the defendant and Kissen Singh did constitute a joint, undivided Hindu family up to the time when the consent decree was made on 3 September 1928, and it has further been conceded on behalf of the defendant that no alteration was made after the passing of the consent decree as regards the manner and method of living of the family of Sham Singh, Hiru Singh and Kissen Singh up to the time of the death of the latter on 11 November 1928 or, indeed, as between Sham Singh and Hiru Singh upto the time when the present suit was instituted on 11th January 1930.

(2.) The plaintiff's case, therefore, as argued before us is a simple one, for he says that the family of Ramgopal was and remained throughout a joint undivided Hindu family. In those circumstances the plaintiff upon a partition as between himself and Hiru Singh is entitled to one-half of the joint family properties. It was admitted in the Court below and it has been categorically admitted before us that if the plaintiff and the defendant do constitute a joint Hindu family then the position is that each of the brothers Sham Singh and Hiru Singh is entitled to one-half of the family properties. If on the other hand, by reason of any event which has happened, Shamlal and Hiru Singh ceased to be a joint Hindu family and became separate in estate, then the plaintiff would only be entitled to one-third of the family property and the defendant Hiru Singh, as the full brother of the deceased Kissen Singh, as such, his heir, would be entitled to two-thirds of the family property. There is therefore no dispute whatever as to the effect of the decision of the Court concerning the question whether this family was joint or was not joint at the time when this suit was brought.

(3.) By reason of the admissions on the questions of fact which I have already indicated, all we are concerned with is to consider and give our opinion as to what was the effect of the terms of settlement arrived at between the parties in the 1926 suit and embodied in the consent decree of 3 September 1928. The only clauses in the terms of settlement which are material for our present purpose are Cl Section 26 and 32. The rest of the provisions of the terms of settlement have only been referred to in an endeavour on the part of the appellant and the respondent before us to bring some light to bear upon the real meaning of Clause 26. Having regard to the admissions which were made on behalf of the defendant-respondent concerning the continuity, so far as externals are concerned, of the joint undivided Hindu family with which we are concerned, the burden of establishing that the status of the parties was altered by the terms of the consent decree of 3 September 1930, falls on the defendant-respondent and he has to satisfy us, on the provisions of Clause 26, that there was manifested on the part of the sons of Ramgopal a definite, clear and unequivocal intention to change their status and to bring about what is frequently called a disruption of the joint undivided Hindu family which upto that time, they undoubtedly were. Clause 26 reads as follows: "The sons of Ramgopal Singh are entitled to the following properties and income thereof will be divided by them equally." Then follows a list or catalogue of various properties. In Clause 27 it is stated: "The defendant, Sham Singh, alone is entitled to the following properties." There was mention of one bigha of land with garden and pucca building near Darjipar's Lane, Gowari Krishnanagore.