Partition of joint family properties - Presumption of entire partition - Partition of houses - Partition of sahans, angans, khands, and dalan.

Narayan, J.

1. This is a plaintiffs appeal arising out of a suit for partition. One Bisun Singh had three sons, Kishun Singh, Narain Singh and Bharath Singh. Plaintiff 1 is the son of Kishun Singh, and plaintiffs 2 and 3 are the sons of plaintiff 1. Defendant 12 is the only surviving representative of the branch of Bharath Singh, he being Bharatha grandson. Defendant 4 is the widow of Narain Singh and defendants 1, 2 and 3 are the sons of Narain Singh. The other defendants are the grandsons of Narain Singh. The plaintiffs case is that the family is still joint, that Narain was the karta of the family till his death which took place in the year 1938, and that after his death, defendant 1 has been the karta. It is further alleged that Narain was in Government service and acquired properties in the name of his wife bat with funds belonging to the joint family and that as such the properties standing in the name of defendant 4 are liable to be partitioned.

2. The defendants main contentions are that there was a partition of the joint family properties in the year 1337, which corresponds to the English calendar year 1929, and that the properties standing in the name of defendant 4 are per khas properties with which the family has no concern. Some orchards and homestead lands are still admitted to be joint.

3. The learned Subordinate Judge has dismissed the suit, his finding being that the properties standing in the name of defendant 4 are per khas properties and that there was a partition of the joint family properties in the year 1331.

4. Mr. Harinandan Singh, who represented the appellants before us, has not challenged the findings of the Court below that there was a partition of the joint family properties in the year 1337 and that the properties standing in the name of defendant 4 are her personal properties with which the joint family has got no concern. But he has pressed for a partition of the properties, which have been shown in Schedule C of the written statement, as still joint between the parties. Among the properties mentioned in Schedule C of the written statement are a phulwati having an area of .51 acres and two orchards, the area of one of which is .31 acres and of the other .10 acres. There is no reason why these properties should not be partitioned, and Mr. Da on behalf of the respondents has agreed to the partition of these properties. The controversy now narrows down to this as to whether the houses and the homestead lands should be partitioned or not. They are all described in Schedule C of the written statement, and along with the written statement the defendants have filed a map indicating the rooms in the possession of the different branches of the family and the joint aahan and khand lands. The argument of Mr. Singh has been that there was no partition of the houses and the homestead lands and that in this suit a partition of these properties should be ordered. We find it very difficult to agree with Mr. Singh that there was no partition of the houses. It would appear from a perusal of the plaint and the evidence adduced by the plaintiffs that the main contention of the plaintiffs in this suit has been that they are entitled to a share in the properties, standing in the name of defendant 4. If the plaintiffs allegation on the most important question of fact involved in this case has been found to be untrue it is difficult to hold that though there was a partition of all the properties, specially the bakaat and the kast lands, there has been no partition of the houses up till now. The principle is that whenever a partial partition is proved or admitted to have taken place, the presumption arises that there has been an entire partition with reference to all the rights and all the properties. It was held by a Division Bench of this Court in : Mukhram Rai V/s. Chandradeep Rai, A. I. R. (23) 1936 Pat. 68 : (159 I. C. 453), that where parties have been in possession of and exercising rights of ownership o