Judgement

Consolidated Appeals from a judgment and two decrees of the High Court (January 7, 1910) reversing a judgment and two decrees of the Additional Subordinate Judge of Monghyr (January 22, 1909).

The chief question for determination in the appeals was whether the appellants (plaintiffs) had established that a separation took place between them and the respondents respective predecessors in interest, two brothers members of a joint Hindu family governed by the Mitakshara school of Hindu law, so as to bar the title of the respondents to the property in suit. The property was an ancestral impartible estate the succession to which was governed by the rule of primogeniture subject to the right of the younger sonsto receive maintenance. In 1879 Ranjit Narayan Singh, the then holder, executed in favour of his brother Bhupat Narayan Singh a mokurari patta of two mauzas and of four bighas of kamat land in another mauza as a grant for his maintenance. By the terms of the mokurari

0 Law Rep. 42 Ind. App. 192 ( 1914- 1915) Thakurani Tara Kumari V. C haturbhuj Narayan Singh

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patta the grant was inalienable, but the grantee did in fact execute mortgages from time to time to raise money for his needs. After this grant Bhupat Narayan, under circumstances which appear , from the judgment of their Lordships, separated himself from his brother in food and worship. Ranjit Narayan Singh was succeeded in the gaddi by his son, who died in 1903 leaving a widow, the appellant Thakurani Tara Kumari. She and the respondent Chaturbhuj Narayan Singh, the son of Bhupat, both applied to be registered as owner of the estate, the application of the latter being granted and the decision confirmed by the Revenue Courts.

The appellant Tara Kumari sold a half-share in the estate to Maharajah Sir Raveneswar Pershad Singh, the appellant in the second appeal, for Rs.50,000, of which Rs.47,699 were applied by the purchaser, under the terms of the sale, to the discharge of mortgages upon the estate.

In August, 1907, the appellant instituted the present suits against the respondents, Chaturbhuj and his sons. In each of the suits the claim was substantially for a declaration that the appellant Tara Kumari had succeeded to the estate upon the decease of her husband and that the respondent Chaturbhuj had no title. The Maharajah in his plaint prayed in the alternative for relief on the basis of having discharged the mortgages above referred to.

The Additional Subordinate Judge, by his judgment delivered on January 22, 1909, decreed both suits. He held that although the mokurari grant alone did not effect a separation; the other facts taken in conjunction with that grant constituted a complete separation between the brothers.

The High Court (Brett and Sharfuddin JJ.), by its judgment delivered on January 7, 1910, reversed this decision. The learned judges while accepting all the facts as found by the Subordinate Judge disagreed with his conclusions thereon; they held that a complete separation between the brothers had not been established and that, therefore, the estate must follow the ordinary line of inheritance to joint property under the Mitakshara law subject to the rule of primogeniture. The suits were accordingly dismissed.

Sir R. Finlay, K.C., and Lowndes, for the appellants. The facts establish that there was a complete separation between the brothers. Although the maintenance grant by itself did not constitute a separation, the whole facts taken together do so. The property consequently was separate property of the first appellants husband, and she is entitled to a widows estate therein. If it was decided in Laliteshwar Singh v. Rameshwar Singh (( 1909) I. L. R. 36 Calc. 481.) as a general proposition that no separation is possible in the case of an impartible estate, that decision is erroneous.

[De Gruyther, K.C. The respondent does not rely upon that decision as being applicable to the present appeal.]

The authorities clearly establish that a joint Hind