- (1.) THE subject matter of this second appeal preferred by the defendants in a suit for partition instituted by Ramgopal and his brother Shyamsunder in respect of a house situated in the city of Jaipur.
(2.) THE following pedegree table would show the relationship of the parties: Rameshwar Balmukan Sheolal Nathuram Gopinath Ramchandra Vamanlal Kishanlal Nathulal Ramgopal P. No. 1 Shyamsunder P. No. 2 Laxminarain Sitaram D. 2 Gokul D. 2 Shri Ram D. 3 Narain D. N. 4 Satyanarain D. No. 6 Gopilal D. No. 5 The plaintiffs case is that no partition took place with respect to the house in question which is the ancestral properties of the parties though the plaintiffs and have been occupying spcific apartments in the house in question for the sake of convenience. They therefore prayed for partition of the house by metes and bounds. The defendants Sitaram and others who are in the line of Nathulal pleaded that there had been a partition of the house in question between the ancestors of the parties long back and that the plaintiffs and the defendants had been in separate possession of the house which had fallen to their shares. After recording the evidence produced by the parties the learned Civil Judge, Jaipur City decreed the plaintiffs suit for partition and declared that the plaintiffs are entitled to half share in it and so also the defendants. It was further declared that the defendants No. 1 to 3 would be entitled to l/8th share each and the son of Laxminarain would get 1/8 share, Aggrieved by the judgement and decree by the learned Civil Judge the defendants filed appeal in the Court of the District Judge, Jaipur City, who affirmed the jugdment and decree by the trial court and dismissed the appeal. Consequently, the defendants have come in second appeal to this Court. It may be stated here that during the pendency of this appeal the plaintiff-respondent No. 1 Ramgopal died and his sister Smt. Suraj Bai has been substituted gas his legal representative. The only point for determination is whether the courts below were justified in holding that the house in question continues to be joint and that there had been no partition of the same between the ancestors of the plaintiffs and the defendants? Learned counsel for the appellants urged that the learned District Judge has erred in placing reliance on the affidavit dated 3-2-1948 (Ex. D. W. l/c. 1) alleged to have been submitted by the plaintiff Ramgopal and the defendant Sitaram before the City Survey authority. He has argued that Ex. 3 relied upon by the lower courts for holding that in 1925 A. D. the ancestors of the parties, namely Bavan and Ramchander were joint is inadmissible and has not been correctly interpreted. Lastly learned counsel has argued that the courts below have not correctly appreciated the legal position as to the circumstances in which inference should be drawn that a Hindu family continues to be joint. On the other hand, learned counsel for the respondents has urged that mere cesser of commensalities is not a conclusive proof of partition. It is submitted that there are no additional facts and circumstances in the present case which may go to show that there has been partition of the house in question. Learned counsel for both the parties relied on a number of authorities in support of their respective submissions. The law is well established that in absence proof of division there Is a presumption that a joint family continues to be joint. The strength of the presumption necessarily varies in every case. The presumption is the strongest in the case of father and sons. It is stronger in the case of brother than in the case of cousins and the further we go from the founder of the family the presumption becomes weaker and weaker. No doubt the presumption that a Hindu family continues to be count is available when the question arises whether a specific property which was admittedly joint at one time has continued to be joint or it has ceased to be joint by virtue of a separation. If a joint family possesses property which was admittedly joint, presumption would be that the property continues to be joint and the burden would lie on the member, who claims it as his separate property to prove that there was a partition and that he got it on such partition. The presumption is peculiarly stronge in the case brothers, but almost nil in the case of third and fourth cousins. In Yellappa vs. Tippanna (1) their Lordships were pleased to observe as follows - "the strength of the presumption necessarily varies in every case. The presumption of union is stronger in the of bothers than in the case of cousins, and the further you go from the founder of the family the presumption becomes weaker and weaker. " Their Lordships further quoted the following statement of law made by Mr. Justice West in 10 B. H. C. Report 444 - "the state of things shown to have existed is presumed to have continued, until contrary be shown. But it is not inconsistent with this doctrine, and is, indeed, obvious that, as the course of nature itself brings about inevitable changes in a family, the presumption is one which grows weaker at each stage of descent from the common ancestor. Brothers are for the most part united; second cousins are generally separated. After a considerable lapse of time testimony of the precise terms on which a partition was effected and of precise time at which it was made, will, in most cases, be wanting. The presumption that the old state of things continued, is at some point, met by presumption that the present state of things had a legal origin, and it cannot be said that the Hindu law, in the form in which it has come down to this generation, looks on all separation of families with disfavour. " As would be clear from the pedegree table extracted above the parties are removed five degrees from the common ancestor Ramsewak. Consequently, for the present it will be sufficient to state that no presumption of the families of the par-ties being joint arises in this case. As regards the evidence of partition and burden of proof also the legal position is clear. Mulla in his Book on Hindu Law 1970 Edition has observed as follows at page 379, para 327: - "4. The last case is of the kind dealt with by the Privy Council in Gunesh Dutt vs. Jowatch (1904)31 Cal. 262), that is, the case where there is no writing at all. In such a case, when the question arises as to whether there has been a partition or not, the intention of the parties as to separation can only be inferred from their acts. The question is one of fact to be decided with due regard to the cumulative effect of all the facts and circumstances and primarily the burden of showing that there has been a partition is on the person setting it up. "in case of old transactions when no contemporaneous documents are maintained and when most or the active participants in the transactions have passed away though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps in the evidence more readily by reasonable inference from the evidence on record than in a case where the evidence is not obliterated or lost by passage of time (Bhagwan Dayal vs. Raoti Devi - 1962 S. C. J 343 ). In Ganesh Dutt Thakooor vs. Jesach Thakoorani, their Lordships said that the cesser of commonality is an element which may properly be considered in determining the question whether there has been a partition of joint family property, but it is not conclusive. It is, therefore, necessary to consider whether the evidence in other respects supported the theory that the cesser in this case was adopted with a view to partition in the legal sense of the word. In the present case there is no denying the fact that there was cesser of commonality. The question in whether it was only for the sake of convenience or was adopted with a view to partition? It is urged by a the learned counsel for the appellants that the plaintiffs and defendants had made repairs and alterations in the apartments in their respective possession, and that they had separate electric and water connections It is also contended that the parties had been assessed to house tax separately.
(3.) SO far as the question of house tax in concerned no receipt has been produced, but it does appear from certified copy of the order of Revising Authority of the Municipal Council, Jaipur dated 22-1-1955 that the parties had been shown as co-owners in the house and house tax was assessed separately with respect to the apart-ments in their respective possession In case of the plaintiffs Ramgopal & Shyamsunder it was assessed at Rs. 5/6/- and in case of the defendants it was assessed at Rs. 10/13/-Thus the total tax assessed on the house in dispute was Rs. 16/3/ -. The method of assessment adopted by the Revising Authority goes to show that the parties were in exclusive possession of the house, and were not living jointly. Then there is Ex. 6. a permission granted by the Municipal Committee. Jaipur to Nanulal and Kishen Lal allowing them to do repairs to the latrine in their house by plastering the same with lime. This document does not throw any light on the question whether the house had been partitioned or continued to be joint inasmuch as the latrine was, according to the defendants, being treated as common even after partition. It is however, admitted by both the parties that except the house in question there is nothing joint between the parties. Their business and assets were admittedly separate It is also true that the defendants are not able to precisely fix the time when the alleged partition took place. There is admittedly no instrument or any other documentary evidence to show that the partition had taken place by metes and bounds, among the ancestors of the parties. But this much is clear from the statements of D. W. 1 Sitaram, I ). W. 6 Motilal and D. W. Keshorlal that the plaintiffs' father Kishanlal and Nathulal father of defendants Nos. 1 to 3 had been living separately Sitaram has of course stated that partition had taken place between the ancestors of the parties 3 or 4 generations ago and that during his childhood his mother and Kishenlal's wife used to quarrel and prohibit each other from tresspassing on each other's roof From the evidence on record the following facts and circumstances do emerge: (1) That the parties have been residing separately and are in exclusive possession of specific portions of the house. (2) They have separate electric and water connections. (3) Their business in separate, and so liso all their assets and liabilities. (4) They are distant cousins inasmuch as they arc removed from the common ancestor by 5 degrees. From the aforesaid circumstances, in my opinion, there follows an irresistible conclusion that there was in fact a virtual or defecto partition. The intention of the parties is manifested by their sole and independent enjoyment of the apartments in their possession. The learned District Judge by placing reliance on the so called affidavit Ex. D. W. 1/cl and the entry of the City Survey Department of the former State of Jaipur Ex. 3 came to the conclusion that the defendants' theory that partition of the house had taken place between the parties stood negatived by the aforesaid documents This was, in my opinion, not a correct conclusion. So far as Ex 3 is concerned in the column of 'owners' there are two names mentioned Bavan and Ramchander and the house has been mentioned as a three storeyed one. The number of members in Bavan's family has been mentioned as five and that in Ramchander's family as two. This document definitely gives an indication that Bavan and Ramchander were separate in mess and residence and did not constitute a joint Hindu family. The document does not throw any light whether the house had been partitioned or not, but it helps the defendants to this extent that Bavan and Ramchander who were the grandfathers of the plaintiffs and defendants Nos. 1 to 3 respectively were residing separately. From this it would not be unreasonable to conclude that the old state of things viz. jointness of the two families had discontinued. As regards the so called affidavit Ex. D. W. 1/c. 1, it may be noted that it is not sworn by either of the signatories namely Ramgopal and Sitaram. It appears to be a joint written statement of Ramgopal and Sitaram wherein it has been mentioned that both of them have not equal shares in the house in question, and that it was not partitioned, but in the very next sentence it is mentioned that the parties are in possession of their respective shares. The plaintiffs as well as the courts below have attached too much importance to the words "no partition had taken place". But the effect of these words is nullified by the subsequent sentence in which it is stated that the parties are in possession of their own houses meaning thereby shares. It also appears that the learned District Judge has misread the statement of Bhonrilal (P. W. 1) in this connection. Bhonrilal has nowhere stated that the affidavit had been signed by Sitaram in his presence. On the other hand, P. W. 1 Bhonrilal has stated that Ramgopal and Sitaram had brought this document signed by them, and had admitted their signatures before him. There is nothing in the statement of Bhonrilal that Sitaram had admitted the correctness of the contents of this affidavit before him or that he had read it over to him In my opinion, no importance can be attached, to such a joint statement. Apart from that as already stated above the contents of this document do not necessarily lead to an inference that there was any admission on the part of Sitaram that the house in question had never been partitioned, ;