Wanchoo, C. J. - (1.) THIS is an appeal by Radhakishan against the judgment and decree of the Civil Judge, Churu. dismissing the suit brought by the plaintiff appellant for partition of his one-third share in the family property.
(2.) THE case of the plaintiff was that he had separated from his father Gajanand and his brother Satnarain on the 19th of November, 1939, though the property of the family still remained undivided by metes and bounds. THE plaintiff went on to say that while he was in Calcutta his father Gajanand executed a deed of partition on the 30th January, 1948. By that deed, his father, according to the plaintiff's version, gave to himself almost one-half of the ancestral property, and left the other half to be divided between the plaintiff and Satnarain. Consequently, the plaintiff filed the present suit for his one-third share in the joint family property claiming, that as there had already been severance of status as far back as 1939, his father was not entitled to make the partition which he did on the 30th January, 1948. To this suit Gajanand Satnarain and Rukmanand, to whom Gajanand had sold certain properties which he had taken in his share by the partition of January, 1948, were originally parties. Kamladevi, step-mother the plaintiff, and wife of Gajanand, was also made a party on the objection of the defendants, and no her own application that she was interested in the property as partition was being, claimed. The main defence was that there was no partition in November, 1939. and that the father was entitled to make the partition of January, 1948, and that that partition was fair and impartial, and should therefore be upheld. So far as the claim of Mst. Kamladevi was concerned she claimed one-fourth share in the joint family property. Her claim was resisted by the plaintiff on the ground that there was some custom, with which we shall deal later, excluding her from inheritance. The Civil Judge framed as many as 10 issues, the most important of which was issue No. 1, namely "is the family of the plaintiff and the defendants 1 and 2 not joint from 19th November, 1939". It came to the conclusion that there was no severance of status in November, 1939. " It then went on to uphold the partition made on the 30th January 1948. It also held that Mst. Kamladevi had a right to a share, and dismissed the suit even though the father in the partition of January, 1948, had not assigned a separate share to Satnarain. The main question, which has been pressed before us, is that there was severance of status between the plaintiff and defendants Nos. 1 and 2, namely Gajanand and Satnarain, and therefore it was not open to Gajanand to make a partition in January, 1948, as he did, and that the plaintiff was not bound by that partition. The plaintiff in this connection relied on two documents and certain oral evidence. The documents are (i) a notification in gazette, dated 6th January, 1940, Ex. P4, and (ii) Ex P. 18. In the notification, the plaintiff has notified the fact that he separated from his father on the 19th November, 1939, and that he would no longer be bound by any transfer of joint family property by his father so far as his one-third share in the property was concerned. Ex. P 18 is a document executed by Gajanand defendant. It has been proved by the evidence of Satnarain defendant. That document also says that the plaintiff has separated from Gajanand and Satnarain, and that actual division by metes and bounds would take place when Satnarain becomes major. Ex. P-18 has however been attacked by Rukmanand, the purchaser from Gajanand, on the ground that it is not a genuine document and was manufactured after the suit had been filed. He relies in this connection on the fact that this document was not specifically mentioned in the plaint, though the gazette notification was mentioned, and also on the fact that it was produced about two months after the suit had been filed. Considering the relations between the plaintiff and Gajanand, we are not prepared to believe that Gajanand would oblige the plaintiff by forging this document after the suit had been filed. The mere fact that this document was not referred to in the plaint would not necessarily mean that it was manufactured later in the peculiar circumstances of the relationship between the father and son in this case. We have, therefore, no hesitation in accepting Ex. P. 18 as a genuine document which was executed, when it says it was i. e. on the 1lth December, 1939. In the face of these two documents it is, in our opinion, idle to say that there was no severance of status in this family in November, 1939. The law is well-settled that it is not necessary that there should be division by metes and bounds before one member of a joint Hindu family separates from the others. Severance of status takes place on an unequivocal declaration of intention to do so, and information of it to the other members of the family. (See Mst. Girja Bai vs. Sadashiv Dhundiraj (1) ). These two documents together clearly show that there was severance of status. The lower court relied on Bankey Behari Lal vs. Brij Behari Lal (2) to hold that these documents did not indicate a severance of status. The facts of that case are, in our opinion, clearly distinguishable. In that case, one of the members of a joint Hindu family had given notice demanding partition. A day or two later, he had been persuaded by other members of the family to give up his demand, and continued thereafter to remain joint with the others, In those circumstances, it was held that the notice demanding separation did not amount to separating the status of that member from others. In this case, we find that both Radhakishan and his father Gajanand have categorically stated that they actually separated on the 19th of November, 1939. We are unable to find any later conduct which takes away from the unequivocalness of this declaration. Under these circumstances, it is not necessary for us to refer to the various letters which have passed between the father and son. It is enough to say that in none of them do we find any intention either to reunite, or any indication that the unequivocal declaration of intention, which took place on the 19th November, 1939, and which is evidenced by Exs. P. 4 and P. 18, was ever given up. We, therefore, hold that the lower court was wrong in deciding that there was no severance of status in November, 1939. We hold that there was such severance of status. The result of this finding is that the findings on other issues by the trial court must be set aside. The second and fourth issue dealt with the partition deed of 30th January, 1948. In view of the fact that there was partition in 1939, the father had no longer any authority to divide the family in the manner in which he did on the 30th January, 1948. The second and fourth issues therefore must be decided in favour of the plaintiff. The only other issue, which calls for decision, is issue No. 10 relating to Mst. Kamladevi. She claims her' share in the property in the event of partition between the father and sons. The law as to the right of the wife to claim partition in the event of a division between her husband and her sons is summarised at page 412 in Principles of Hindu Law by D. F. Mulla, 11th Edn , paragraph 315. The learned author observes that 'a wife cannot hereself demand a partition, but if a partition does take place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband. ' This is then in brief the right of the wife and Mst. Kamladevi claims that she should be given here share equal to that of a son as the court is going to order partition. Her claim is resisted by Radhakishan on the ground that there is some custom which excludes her. She was not made a party in the beginning by the plaintiff. Later he was ordered by the court to make her a party, and he did so. After making her a party, a paragraph was added in the plaint denying her right in these words - "she has no share in the disputed property and she is not entitled to any share, in any property in any Manner as there is no custom or usage (Niyom) prevalent in Bikaner State or Rajputana, or in the community of the parties entitling her to get a share. " We are of opinion that the manner in which this plea was taken was all wrong. The parties are Hindus and are governed by the Hindu Law. We have already set out what are the rights of a Hindu wife when there is a division between her husband and her sons. If any Hindu wants that those rights should be cut down, it is for him to allege a definite custom cutting down those rights. It is not necessary for a Hindu wife, who claims partition in circumstances like the present, to prove that there is a custom entitling her to a share, because she is entitled to that share by the law. When evidence came to be given, it was not certain what was the custom on which the plaintiff was relying to enclude Mst. Kamla Devi. We asked learned counsel for the plaintiff in this case to state the custom on which he relied, and which derogated from the Hindu law in order to exclude Mst Kamla Devi. Learned counsel stated that in Ratangarh, or in the Bikaner State, or among the Agarwals there was a custom excluding a wife from a share in the family property on division between her husband and her sons. Learned counsel also urged that evidence had been produced by the plaintiff to prove this custom. We have been taken through the evidence of fun witness in this connection, and we may say at once that we are quite unconvinced by that evidence, and are not prepared to hold that any such custom of exclusion has-been proved. We may very briefly refer to the evidence of these witnesses. The first witness is Dwarmal P. W. 2. He admitted in cross-examination that he had no knowledge of any custom. The next witness is Babulal P. W. 3. He also admitted in cross-examination that he was only speaking about his own family and not about any body else. The third witness was Ramu Sunar P. W. 4. He only gave evidence about the right of the grand-mother, and his statement is therefore useless. The next witness is Malchand P. W. 5. He says that there was partition in his family when his father and mother were alive, and Ms mother was given no share. He has not, however, stated, in examination-inchief that here was any custom excluding a wife from a share. In cross-examination, he said that his mother did not demand any share and added that there was no custom entitling the mother to any share. We are not prepared to accept this sort of slipshod evidence in proof of a custom of such far-reaching importance as will deprive a large number of women in Ratangarh and Bikaner division of their rights under the Hindu law. The next witness is Ganenshmal He has not said a word in his examination-in-chief about the existence of any custom. He also admitted that in the partition that took place he was given his share while his father and other brothers remained joint. Further, in cross-examination he has said that case to the extent of seven to eight thousand rupees remained with his mother. This witness is, in our opinion, quite useless for proving the existence of any custom on which learned counsel realise. The next witness is Rughnath P. W. 7. He speaks of a partition after the death of his father, and says that no share was given to his mother. In the first place, he has not said that there is a custom of exclusion of the wife when there is division between her husband and her sons. In cross-examination he admitted that his mother did not demand any share. We are of opinion that his evidence also is valueless to establish the custom which the plaintiff wants us to accept. The next witness is Baijnath. He belongs to this family also. He stated that in his caste and in his family there was exclusion of the mother. As an example, he gave his own case. But we find that in his case he alone was separated, and his father, mother and brothers remained joint. In these circumstances, his evidence is also of a vary weak kind. The next witness is Mohanlal He has certainly set out the custom very carefully, and if his evidence alone can be accepted, we would certainly be prepared to hold that such a custom has been established. But that is a gentleman who is obviously a liar. He was prosecuted under sec. 193 1. P. C, and when asked as to the result of the prosecution he said that he did not know it. If he had been acquitted, he would have certainly said that he had been acquitted. Under the circumstances the fact of his being convicted becomes patent, and we are not prepared to rely on the testimony of such a witness. The next witness is Nathmal P. W. 10. In his examination-in-chief, he certainly said that in his family no share was allotted to the mother. He was questioned about two instances in cross-examination, namely about Anandram and Puranmal. He said that he did not know if in Anandram's case equal share was given to the wife and the mother on division. As to Purnmal, he admitted that he had heard that Purnmal had given a share to his mother and grand-mother at the time of partition. We think that his evidence is also of a very week kind, and does not go to prove the custom which the plaintiff desires to uphold.
(3.) THE last witness in Nauranglal, He says that he did not given any share to his wife when there was a division between him and his sons: but in cross-examination he had to admit that he gave cash to his wife. If the wife receives cash it immaterial whether she gets a share in the property on division of the joint, family property or not. All that is necessary is that the wife should also get something. Then last of all, there is the statement of the plaintiff himself and it is remarkable that he also has not stated positively what the custom is. All that he says is that the step mother does not get any right among Agarwals and she only gets maintenance. This is not the custom with which we are concerned What we have to find is what the right of the wife is in case of division between her husband and her sons, and not the right of the step-mother. Taking all this evidence together we are of opinion the it is very insufficient to prove a custom derogating from the rule of Hindulaw. The custom, therefore, excluding the wife in case of partition between her husband and her sons has not been estahlished. Mst. Kamladevi would' therefore be entitled to one-fourth share in the circumstances of this case. " The result is that the appeal must be allowed, and the suit for parti ton in favour of Radhakishan for one-fourth share of the whole property be decreed. In order to safeguard the interest of the purchaser from Gajanand the share of Radhakishan would be given from the property which has not been sold to Rukmanand Mst. Kamladevi also wants her share to be divided, and she will be entiled to one-fourth share of the whole property. This will also come out of the property not sold to Rukmanand. In making the partition a commissioner should be appointed by the trial court. He will take into accused any Stridhan given to Mst. Kamladevi by her husband or the faher-inlaw. The Commissioner will value the poperies independently and will not be bound by the valuation put either by the plaintiff or by Gajanand in the partition deed of January, 1948 or by any finding given by the trial court with respect to the value of the property. The appeal is therefore allowed, and a preliminary decree passed in the terms given above. The appellant will get costs of this Court and of the trial court up to now against defendants 1, 2 and 3. All the defendants will bear their own costs. . ;