- (1.) These are two appeals arising out of a suit for partition. Second Civil Appeal No. 190 of 1946 is an appeal against the preliminary decree while Second civil Appeal No. 403 of 1948 is directed against the final decree. The appeals are filed by the defendants. The appellants, Tulshi and Ram Lal died during the pendency of the appeal (Second civil Appeal No. 190 of 1946) and were substituted by their legal representatives.
(2.) THE facts will appear clear from the following short pedigree, which is not disputed. The simple case laid in the plaint was that the parties are members of a joint Hindu family governed by the Mitakshara and the property in list A attached to the plaint was the joint family property of the parties and had been acquired out of family funds in which the plaintiffs claimed one -third share. The plaintiffs were not willing to leave their share joint and asked for possession by partition to the extent of their one -third share. The suit was filed in February 1945. In defence the joint family and joint family property were denied. It was alleged that the parties had been separate from a long time. The claim of the plaintiffs to each item of the properties in list A was denied. These properties will be dealt with in detail in their proper place.
(3.) THE trial Court framed issues. On the main question in the case, the Court held that the property did not form part of the joint family property of the parties and that there had been a partition long ago in which Udit and Buddhu had separated. The plaintiffs were accordingly held to have no share in the properties in suit. The plea of jurisdiction, which was the subject -matter of issue 3, was not pressed by the defendants at the time of the arguments. The suit was consequently dismissed. The lower appellate Court found, after a consideration of the entire evidence, that the plaintiffs remained joint even after the partition of Udit and Buddhu with their uncles, the two defendants. As regards the various items of property, the Court found that there was no evidence to show that items 3 and 6 were purchased out of joint family funds and dismissed the suit in respect of these items; but in respect of the other items of list A it was found that they were the joint family properties of the parties and the plaintiffs were entitled to one -third share in those properties. The question of jurisdiction did not figure in the lower appellate Court.;