Judgement

RAGHUBAR DAYAL, J. : This appeal, on certificate issued by the Assam High Court, is by Tek Bahadur Bhujil, brother of Dhanbir Bhujil, respondent No. 2, and uterine brother of Debi Singh Bhujil, respondent No. 1. Their mother was Beli Bhujilini, respondent No. 3, since deceased.

2. Respondent No. 1 instituted a suit on September 3, 1946, against the other three aforesaid persons, in the Court of the Assistant Political Officer, Khasi States, Shillong, for partition of his half-share in the property mentioned in Schedule A to the plaint, as well as his half-share of the business known as Gurkha Dairy at Mawprem, for separate possession of his such half-share by metes and bounds and for his half-share in the income of profits of the business since January, 1, 1943 to the date of the decree. He alleged in the plaint that he, Tek Bahadur and Dhanbir Bhujil were brothers and belonged to the same joint family centering round their common mother, defendant No. 3, who had come from Nepal about 26 years earlier. It was further alleged that the property in suit and the dairy business were acquired by the family in the name of Tek Bahadur, the eldest brother. Two other business were subsequently started. They were the Indian Sweet-meat House and the Dilkhosh Cabin, at Police Bazaar, Shillong. These businesses were in the name of Dhanbir Bhujil. It was stated that on December 31, 1942, the brothers decided with the consent of the mother to enjoy the properties and the businesses in a certain specified manner. The plaintiff and Tek Bahadur were to enjoy half and half the landed property and the dairy business, while Dhanbir was to enjoy the other two businesses. The mother was to enjoy the house property in Shillong Cantonment which had been purchased in her name. It may be mentioned that Dhanbir Bhujil and Beli Bhujilini were pro forma defendants and the real relief was claimed against Tek Bahadur, appellant.

3. The appellant contested the suit on various grounds, including the one that all the properties were self-acquired properties of his and that nobody else had any right, title or claim in them. The allegations in the plaint were not admitted and it was specifically stated:

".........the mother was never or is the head of the family as alleged nor were the properties acquired by the family in the name of the defendant No. 1 as alleged in para 2 of the plaint."

Of the issues framed, two issues were:

"(1) Whether the properties in suit are joint properties of the plaintiff and defendant 1, to the suit, or the self-acquired property of defendant 1 alone?

(2) Whether there was any division of the properties with separate possession and enjoyment as alleged?"

The trial Court decreed the suit against defendant No. 1 holding that the properties in suit were joint properties of the plaintiff and defendant No. 1 and that there had been a division of the family properties with separate possession and enjoyment by the parties as alleged by the plaintiff.

4. Tek Bahadur, appellant, preferred an appeal to the Deputy Commissioner of United Khasi Jaintia Hills at Shillong. The appeal was dismissed. Tek Bahadur then went up in revision to the High Court of Judicature in Assam, under R. 36 of the Rules for the Administration of Justice and Police in the Khasi and Jaintia Hills, as adopted and modified by the Assam Autonomous Districts (Administration of Justice) Regulation, 1952, as applied to the Administered Areas of Shillong. The High Court rejected the petition stating that it had no force.

5. In support of the alleged division of properties in 1942, the plaintiff-respondent relied on the agreement, Exhibit 3, which incorporates the statements of the three brothers and concludes with the expression:

"We the three brothers having agreed over the above statement and having made our own statements in the presence of the Punch called by us and signed and kept a copy of each of this document as proof of it. The witnesses in this matter as scheduled are