The execution of sale deeds by coparceners does not necessarily constitute a severance of status or an agreement to define their shares unless there is an unequivocal expression of such intention in the documents.

Judgement

MOHAPATRA, J. :- This second appeal is against the confirming judgment dated 30-1-48 of Sri C.C. Coari, District Judge of Cuttack, in M.A. 124 of 1946. It is defendant 1 who is the appellant in this second appeal.

2. The plaintiff (Narasingha Chandra Panda), Dibyasingha (the deceased husband of defendant 2) and Babaji were three brothers. Babaji died long ago leaving no heirs. Dibyasingha died on 20-4-34. Defendant 2, the widow of Dibyasingha, executed a deed of sale in favour of defendant 1, the appellant, on 16-2-44. The plaintiffs present suit is on the allegation that Dibyasingha died in a state of jointness with him, and as such, plaintiff is the sole surviving coparcener, and defendant 2 had no right, title or interest whatsoever in respect of the property to execute a valid deed of transfer in favour of defendant 1. So he prays for declaration of title and for confirmation of possession, or in the alternative, for recovery of possession.

3. The defence is that there was separation in status between the plaintiff and his deceased brother Dibyasingha; as such, defendant 2 could execute a valid deed of transfer in favour of the appellant.

4. Both the Courts below have come to a concurrent finding that in fact there was no severance of interest between the plaintiff and Dibyasingha during the life time of the latter. The Courts below, to come to such a conclusion, have relied on the position that only one assessment of Chowkidari tax has been made and that is in the name of the plaintiff as appears from Exs.1(Ka) and 8 series. The plaintiff also has been paying rent in respect of the entire family land in his own name. The plaintiff alone has been assessed for paying water-rate tax in the year 1938-39. They have further relied upon sale-deed (Ex.5 dated 7-3-32), simple bond (Ex.4 dated 2-8-33) and mortgage bond (Ex.4(a) dated 15-5-33), executed by both the brothers Narasingha and Dibyasingha describing them therein as members of a joint Hindu coparcenary.

5. The defence had relied very much in the Courts below upon two sale-deeds (Exs.B and A). Exhibit B is dated 27-5-28, executed by Dibyasingha in respect of his eight annas share and in the recitals he excludes the share of the other brother. Exhibit A is dated 28-5-30, executed by Narasingha in favour of the same person reciting therein that as he had purchased the share of the other brother by a previous deed he is executing the sale deed in respect of the balance of eight annas share in the property. The plaintiff explains that on account of his absence at Calcutta and on account of the reason that money was necessary for urgent family necessities to perform the marriage of a sister, Dibyasingha executed the first sale-deed; and as the vendee declined to have one sale-deed from one of the brothers for the entire plot that necessitated the execution of two sale-deeds, and so he had to execute a separate deed in the year 1930. This explanation was accepted by both the Courts below.

6. Mr. De, appearing on behalf of the appellant, relies very much upon the two deeds in support of his argument that the two brothers, by executing two deeds, have defined their shares which appears from the recitals of the documents themselves and that the Courts below are wrong in taking into consideration their subsequent conduct or any explanation for executing such deeds. He relies upon a decision of their Lordships of the Privy Council, reported in - Harkishan Singh v. Partap Singh, AIR 1938 PC 189 (A). Their Lordships at page 190 observe :

"Once the shares are defined, there is a severance of the joint status.

X x x x

The defining of shares may be expressed by an agreement between them containing a declaration of their shares in the estate. Even an agreement between the members of a joint family, whereby they appoint arbitrators for dividing the joint family property among them, amounts to a severance of the joint status of the family from the date of the agreement. x x x x x Nor can th