Judgement

Appeal (No. 119 of 1920) from a judgment and decree of the Court of the Judicial Commissioner (September 6, 1917) reversing a decree of the Additional District Judge of East Berar, Amraoti.

The suit was brought in 1914 by respondents Nos. 1 to 6, to recover possession of immovable properties in Berar. They alleged that they had formed a joint Hindu family with one Nain Singh, who died in 1906, and that a purported sale of the properties in 1902 by Nain Singh to the deceased appellant, Syed Kasam, was " for bogus consideration," and they claimed the lands as their joint and ancestral family properties. The remaining appellants, and the respondents other Nos. 1 to 6, held from the deceased appellant. The deceased appellant by his defence denied that the consideration was bogus, and alleged that Nain Singh had separated ten years before the date of the sale. He further alleged that after the sale he entered into possession jointly with the other co-sharers ; that in 1907 a settlement and division was made between the plaintiffs and himself, and that since he had been in separate possession and enjoyment of the properties.

The facts appear from the judgment of the Judicial Committee.

The Additional District Judge dismissed the suit. He found on the issues framed as follows that the sale was not 11 bogus " ; that Nain Singh was not separated ten years prior to the sale as alleged ; that between 1903 and 1907 the purchaser was in joint possession, inasmuch as he took possession of certain fields " just as other members were separately cultivating" ; that there had been in 1907-8 a settlement and division between the purchaser and the members of the family.

On appeal to the Court of the Judicial Commissioner the decree was set aside, and a decree made that the plaintiffs be put into possession upon paying Rs.5000 to the purchaser, the deceased appellant. The learned Additional Judicial Commissioner who heard the appeal found that the separation alleged by the defendants to have taken place about 1892 had not been proved. He said that before him it had been attempted to raise a new point—namely, that the reference to arbitration in 1905 effected a separation—but he was not prepared to allow the defendants to raise that new plea upon appeal. Upon the evidence he found that the alleged division in 1907-8 was not proved, and that only Rs.5000 of the Rs.20,000 stated as the consideration for the sale, and admitted to be the value of the property, had been paid. He discussed whether in those circumstances the purchaser had an equity to enforce a partition. After referring to the decision of the Board in Sahu Ram Chandra v. Bhup Singh (( 1917) L.

R. 44 I. A. 176.) he said " The case was from Allahabad where alienation by a coparcener of his own share is not recognized any more than it is recognized in Bengal. I do not however understand their Lordships to overrule the Bombay and Madras rulings which have been followed by this Court, which recognize an equity to enforce a partition in favour of a bona fide transferee for value. But as pointed out in the recent judgment we must henceforth bear in mind that this is only an exception which must not be carried beyond the limits already recognized." He held that upon the facts in the present case there was no such equity ; he made a decree, as above stated, for possession upon repayment of Rs.5000 to the purchaser, and after the defendants had removed the existing crops.

1922. March 9, 24. De Gruyther K.C. and Parikh for the representatives of the deceased appellant. There was a separation in 1905. The evidence shows that he claimed his share of the ancestral property, and that thereupon the members of the family entered into the agreement of December, 1905, appointing an arbitrator to divide the property. That claim by itself, or when coupled with the agreement, was an unequivocal expression of an intention to separate, and thus put an end to the joint status of the family Girja Bai v.