1. HEARD learned advocate Mr. R.A. Mishra appearing on behalf of appellant and learned a TRANSFER OF PROPERTY ACT, 1882dvocate Mr. R.C. Jani appearing on behalf of respondents.

2. IN this second appeal, substantial question of law has been raised by appellant which is as under : Can the motherwise partition be relied upon for the purpose of coming to the conclusion that no joint family properties existed on the date of the suit for which partition could be effected that the partition that took place was acted upon ?

The facts leading to present second appeal in short are as under :

3.1 The appellant instituted Regular Civil Suit No.212 of 1979 in the Court of Civil Judge (J.D.) at Vijapur contending inter alia that suit properties situated in sim of village Gerita and Ubkahal and houses situated in 'gamthan' of village Gerita as stated in Para 3(B) of plaint are ancestral properties of ancestor of original defendant Nos.1 to 11 and plaintiff present appellant. The deceased father of appellant Baldevji and uncle Kanaji were cultivating Survey No.37 and 1/2 land of Survey No.518, one bigha land of Survey No.127 and they wanted to dispose of 1/2 land of Survey No.518. But, they were restrained by defendant Nos.1 to 4 and so sale transaction was post-poned and on inquiry, it was found that there are many other fields of their ancestor and hence, a letter was written to defendant No.3 for furnishing information regarding ancestral properties, but, an evasive reply was given and, therefore, suit for possession of 1/28th share in ancestral property filed by present appellant for partition of suit property and for possession.

3.2 According to appellant, defendant Nos.1 to 4 illegally and unauthorisedly sold some of fields as stated in Para 5AA of the plaint. The said transaction is not binding to appellant. The defendant Nos.1 to 4 resisted the suit and issued have been framed by trial Court at Ex.57. The trial Court passed judgment and order and decreed suit in favour of present appellant. Being aggrieved by said judgment and decree, defendant Nos.1 to 4 and other defendants filed an appeal being Regular Civil Appeal No.309 of 1982. This appeal was heard and decided vide judgment and order dated 20th January 1986 which was allowed in favour of defendants.

3. LEARNED advocate Mr. R.A. Mishra relied upon decisions of Apex Court in case of Kalyani (dead) by L.Rs. V/s. Narayanand and Others reported in AIR 1980 SC 1173 and in case of Dal Chand V/s. Babu Ram and Others reported in AIR 1981 (All.) 335. He submitted that wife-wise partition is not permissible under Hindu Law, even though, these judgments were referred and relied upon by appellant before below Courts, but, same has not been properly appreciated by lower appellate Court. Therefore, relevant paragraphs of aforesaid two decisions are quoted as under : In case of Kalyani (dead) by L.Rs. V/s. Narayanand and Others reported in AIR 1980 SC 1173, - Para 27 to 31 :

27. In Boddu Venkatakrishna Rao and Ors. v. Boddu Satyavathi and Ors., the following passage in Mulla's Transfer of Property Act (Fifth Edn.), was approved: "The principle of joint tenancy appears to be unknown to Hindu law, except in the case of coparcenary between the members of an undivided family."

28. Once disruption of joint family status takes place as Lord Westbury puts it in Appovier's case, (supra) it covers both a division of right and division of property. If a document clearly shows the division of rights and status its legal construction and effect cannot be altered by evidence of subsequent conduct of parties.

29. Now, in this case Ext. P-1 itself specifies the share of each member separately. There is no concept known to Hindu law that there could be a branch of a family wife-wise. To illustrate, if a Hindu father has two wives and he has three male children by the first wife and two by the second, each wife constituting a branch with her children of the family is a concept foreign to Hindu law. Theref