- (1.) JUDGEMENT On a difference of opinion this case has been referred to me. The question that was framed by the Supreme Court and which was ultimately directed by the High Court to be referred was- "Whether on the materials on record the Board of Revenue could say that there was evidence to show that there was no partition of the family in point of fact?
(2.) THE words underlined (here in ) are mainly responsible for the difference of opinion. These words have been interpreted by the learned Chief Justice to mean that the High Court was only required to determine the factual position as to whether there was any material for the Board of Revenue to hold that there was no separation in fact between the members of that family, and the legal position of partition under the Hindu Law was intended by the Supreme Court to be completely ignored. The existence of the following circumstances (1) the absence of any necessity for separation, common management of property by one person as before the alleged partition and the joint realisation of the income, were held to be "material" by the learned Chief Justice, for the Board of Revenues conclusion that the co-parceners were living jointly and not separately in point of fact. The question referred was accordingly answered in the affirmative.
(3.) IF the question could have been said not to tie the hands of the High Court only to ascertaining the position in fact as to partition, then manifestly, there was no doubt in the mind of the learned Chief Justice, and if I may say so with respect, rightly, that the decree of the Civil Court declaring that the family had partitioned would undoubtedly constitute a partition according to the Hindu Law and it was pointed out that "partition is the legal effect of certain acts : it is a conception and not a tangible thing. Whether there is partition or not is to be inferred in accordance with certain legal principles from certain circumstances.";