There is no legal presumption of jointness in a Hindu family after one coparcener separates, and the continuance of the jointness between the remaining coparceners will have to be proved.

Mahapatra, J.

1. The appellants instituted a suit on the 1st October, 1956, for partition of their eight annas share in the properties described in Schedule 4 of the plaint. Schedule 1 showed the ancestral properties, Schedule 2 the acquired properties and Schedule 3 the joint family properties that were alleged to have been allotted to one coparcener Baldeo Singh (defendant No. 7) at the time of his separation from the joint family and later gifted to his daughter. The plaintiffs claimed that the other three members of the joint family after the separation of Baldeo continued joint as before and remained in joint possession of the rest of the joint family properties, described in Schedule 4. A genealogy was given from which it appears that one Suchit Singh had six sons, of whom two died issueless. The remaining four sons were Ramautar, Gopinath, Baldeo and Gaya. Plaintiff No. 1 is the son of Ramautar; and the other plaintiffs are the two sons and two grandsons of plaintiff No. 1. Baldeo Singh has one daughter Chulhan Kuer, who is impleaded as defendant No. 8. Defendants Nos. 1 to 6 are the sons and grandsons of Gaya Singh. He died on the 23rd October, 1949. His widow is Mosammat Ramnak Kuer (defendant No. 3a). The plaintiffs stated that Baldeo separated from the joint family about twelve

years ago near about 1943; and after that, while the other brothers continued as before, Gaya Singh died in a state of jointness leaving his widow and sons and his two surviving brothers. In a state of jointness, Gopinath also died on the 6th October, 1953, without leaving any issue. His wife predeceased him long before. Ramautar, father of plaintiff No. 1, had also died beforehand. Thus, on Gopinaths death in October. 1953, Jaigobind Singh, plaintiff No. 1, son of Ramaular, and the descendants of Gaya Singh remained in possession of the joint family properties, which are described in Schedule 4 of the plaint. Baldeo Singh (defendant No. 7), however, claiming to have succeeded to the estate of Gopinath Singh, executed a deed of gift in respect of that in favour of Brij Bihari Singh (defendant No. 1) on the 5th of October, 1955. Before that he had executed another deed of gift in favour of his daughter (defendant No. 8) in respect of a major portion of the properties with which he had separated from the joint family (Schedule 3). After taking the deed of gift from Baldeo Singh, defendant No. 1, and his brothers claimed exclusive right over those properties against the plaintiffs which ultimately led to the present suit. The plaintiffs claimed that as the two branches of Ramautar and Gaya Singh were in possession of the Schedule 4 properties, being the surviving coparceners, they asked for partition of half share in that.

2. The suit was resisted by the defendants. Their case was that in 1350 Fasli, corresponding to 1943, there was separation between Gopinath, Baldeo, Gaya and Jaigobind; and the joint family properties, ancestral and acquired, were divided between them in equal shares. But soon after, Gopinath, who had no issue and whose wife had predeceased him already, lived in joint mess with Gaya Singh and there was joint cultivation of the lands that fell to his share and that of Gaya Singh. Since Gopinath died in 1953 in a state of separation, Baldeo Singh, the nearest heir to him, succeeded to his properties; and in that respect he also made a gift in favour of defendant No. 1 on the 5th March, 1955, by a registered instrument. Baldeo (defendant No. 7) himself filed a written statement on the same line, but he filed a second written statement at a later stage in which he lent support to the plaintiffs case and disputed the story of complete partition or separation between the four branches of Ramautar, Gopinath, Baldeo and Gaya Singh. He asserted, like the plaintiffs, that he alone had separated with one-fourth share of the joint family properties and the rest continued joint as before.

On these pleadings the parties went to tria