Judgement

Appeal (No. 106 of 1922) from a decree of the Chief Court (July 2, 1917) reversing a decree of the District Judge of Delhi (May 15, 1914).

The appeal arose out of a partition suit brought by the appellant. The defendants by their written statement pleaded that the plaintiff and themselves were separate and not joint.

The relationship of the parties appears from the pedigree in the judgment of the Judicial Committee, and the facts material to this report are there stated.

The District Judge made a decree in favour of the plaintiff. On appeal to the Chief Court that decree was reversed, it being found on the facts that the plaintiff and the defendants were separate and not joint.

1923. Dec. 13. Sir George Lowndes K.C. and E. B. Raikes for the appellant.

Dunne K.C. and Wallace for the respondents.

1924. Jan. 22. The judgment of their Lordships was delivered by

SIR JOHN EDGE. This is an appeal by the plaintiff from a decree, dated July 2, 1917, of the Chief Court of the Punjab, which reversed a decree, dated May 15, 1914, of the District Judge of Delhi, and dismissed the suit. The suit is for the partition of property alleged by the plaintiff to be joint property of the parties.

The parties are Hindus of the Bakkal Aggarwall caste, and are subject to the law of the Mitakshara. The following pedigree shows how the parties are related to each other —

Jodh Raj Died 1903.

| = Indri. | |

Brij Mohan | Murli Dahr Chait Ram

Died 1905. Died 1908. Defendant.

= Basanti.

|

| Hari

Banwari Lal. Bakhsh.

Died 1903. Born 1903.

Plaintiff.

Jau Narain and Bishan Dayal had daughters, to whom it is not necessary to refer.

The plaint in this suit, dated November 21, 1910, was presented to the Court of the District Judge of Delhi by Hari Bakhsh, a minor, by his guardian and next friend, Musammat Basanti, who is his mother. The defendants to the suit are Babu Lal and his son, Chait Ram.

The case of the plaintiff was that he and the defendants are the surviving male members of a joint Hindu family possessed of joint property, to a half-share of which he claimed to be entitled on partition, and he claimed to be entitled to a decree for partition and for accounts, and other reliefs. The District Judge of Delhi gave the plaintiff the decree which he claimed. The Chief Court of the Punjab, on July 2, 1917, in appeal, dismissed the suit. On an application for review the Chief Court varied its decree dismissing the suit by granting the plaintiff a decree for partition of the Maliwara house and a declaration that the Katra Ashrafi house at Delhi is the property of the family, and that the plaintiff has equal rights in it with the defendant, Babu Lal. To the application for review the two defendants were respondents, and it does not appear why the declaration was not made against Chait Ram as well as against Babu Lal.

The case of the defendants was a denial that they and the plaintiff were members of a joint family, and a denial that the property which the plaintiff claimed to have partitioned was joint family property. Several defences were set up. The defendants alleged that Bishan Dayal and his sons formed a separate joint family, and that they, after 1903, had separated from each other and had partitioned the property to which they were entitled ; they further alleged that Sri Ram had adopted Chait Ram as his son. Their Lordships will at once deal with these allegations before proceeding to consider what was the main and substantial defence, if proved, to the suit, which was that in a separation and partition of 1903, in which Jai Narain and his branch ad separated from Sanahi Ram and his branch, Jai Narain and his sons had between themselves separated, and he had partitioned between his son Bishan Dayal on the one side and his sons Sri Ram and Babu Lal on the other side, the property which had fallen to him, Jai Narain, and his branch in the partition with Sanahi Lal.

The District Judge found that there was absolutely no proof of the alleged partiti