The presumption is in favour of Hindu brothers constituting a joint family. The burden of proving severance of the joint Hindu family lies on the person alleging it.

Headnote:
JOINT HINDU FAMILY - DISRUPTION - BURDEN OF PROOF - ADMISSIONS - USE AS EVIDENCE - LIMITATION - ADVERSE POSSESSION.
Fact of the Case:

The plaintiffs, Bharat Singh and Kirpa Ram, were the sons of Ram Narain. They had another brother Maha Chand, whose widow was Bhagiriti, the defendant. The plaintiffs alleged that they and Maha Chand constituted a joint Hindu family, that Maha Chand died as a member of the joint Hindu family and that thereafter Maha Chand s widow lived with the plaintiffs who continued to be the owners and possessors of the property in suit, the widow being entitled to maintenance only. They also alleged that it was by mistake that the defendant s name was mutated in the village records in place of Maha Chand, who died on September 16, 1925. They further alleged that the defendant lost her right to maintenance due to her leading an unchaste life. This contention, however, was not accepted by the Courts below and is not now for consideration.
Finding of the Court:

The trial Court held that the parties were governed by the Hindu law unmodified by the custom, that the joint Hindu family constituted by the plaintiffs and their brother Maha Chand was never disrupted and that Maha Chand died as a member of the joint Hindu family, that the property in suit was co-parcenery property in the hands of the three brothers, that the entry of the defendant s name in the Jamabandi was wrongly made and that the suit was instituted within time as the earliest the defendant asserted her claim to the land in suit was in 1950. The trial Court therefore granted the plaintiffs a decree for declaration in the following terms: "1. That the entries in the revenue papers showing the defendant as owner of one-third share in the suit land are wrong and are not binding on the plaintiffs. 2. That the property in dispute vests in the plaintiffs as coparceners. 3. That the defendant s only right in the suit property is one of maintenance and she is not entitled to alienate it in any way: The plaintiffs suit for declaration that the defendant has lost her right of maintenance in the suit property by unchastity is dismissed ............. ." The defendant appealed to the High Court. It was not contended on her behalf that the land was ancestral and had descended from Ram Narain to the plaintiffs and Maha Chand. What was urged before the High Court was that the entry in Maha Chand s name as owner of one-third share in the Jamabandi and similar entry in defendant s name after the death of Maha Chand was correct as irrespective of the fact whether the family was originally a joint Hindu family or not the joint Hindu family stood disrupted by the conduct of the parties and therefore there was no question of the plaintiffs getting the entire property by survivorship. Reliance was placed on the entries in the revenue records with respect to Maha Chand and the defendant after him owning one-third share in those properties and about her possession upto 1946-47 and on the defendant s being impleaded in several suits by the plaintiffs as a co-plaintiff and in one suit as a defendant. The High Court considered this evidence sufficient to prove disruption of the joint family as the mutation entries in the revenue records could not have been obtained by the defendant surreptitiously or without the knowledge and consent of the plaintiffs and as none of the plaintiffs objected to her being entered as a co-sharer with them after the death of Maha Chand which showed that there was no joint Hindu family at the time of the death of Maha Chand. The High Court also relied on the fact that the plaintiffs had impleaded the defendant as a plaintiff or defendant in the various suits, as Bharat Singh refused or did not care to give an explanation why the defendant had been throughout shown as a co-sharer in those proceedings when actually she was not a co-sharer and was merely entitled to maintenance. The High Court did not use the admissions of Bhagirathi, defendant, in certain documents about the existence of the joint Hindu family or a joint Hindu family firm as she, when in the witness box, was not confronted with those admissions and as those documents, if read as a whole, did not contain any admissions on behalf of Bhagirathi that there was any joint family still in existence. The High Court summed up its view on the question of disruption in the family thus: "These revenue entries normally do not furnish a very strong evidence of severance of a joint Hindu family but subsequent conduct of the plaintiffs, as detailed above, leaves no manner of doubt that there did not exist any Joint Hindu Family after the demise of Ram Narain and that Mst. Bhagirathi was rightly shown as a co-sharer in the revenue records." The High Court considered the case to have been instituted after the expiry of the period of limitation but did not base its decision on this finding. The High Court, accordingly allowed the appeal and set aside the decree of the trial Court in favour of the plaintiffs.
Issues: 1. Whether the plaintiffs and Maha Chand constituted a joint Hindu family at the time of the latter s death? 2. Whether the entries in the Jamabandi showing Bhagirti as the owner of one-third share are wrong? 3. Whether the suit is barred by limitation?
Ratio Decidendi: 1. The presumption is in favour of Hindu brothers constituting a joint family. The burden of proving severance of the joint Hindu family lies on the person alleging it. 2. The mere fact of mutation entry being made in favour of Bhagirti on the death of Maha Chand is no clear indication that there was no joint Hindu family of the plaintiffs and Maha Chand at the time of the latter s death. 3. The admissions of Bhagirti in the plaints of suits instituted by her and in the agreement executed by her and Giani Ram for referring the dispute in Giani Ram s suit for arbitration are admissible evidence against her, even though she was not confronted with those statements when she entered the witness box. 4. The suit is not barred by limitation as there is no evidence to establish that the respondent, prior to 1950, asserted that she had any right adverse to the plaintiffs over the property in suit or that she acted in any manner which would amount to an ouster of the plaintiffs.
Final Decision: The appeal was allowed, the decree of the Court below was set aside and the decree of the trial Court was restored. The respondent was directed to pay the costs of the appellants in the High Court and this Court.

Judgement

RAGHUBAR DAYAL, J. : This appeal on certificate, is against the judgment and decree of the Punjab High Court reversing the decree of the trial Court and dismissing the suit of the plaintiffs for a declaration that the entry in the name of the defendant in the Jamabandi papers of certain villages was incorrect.

2. The plaintiffs, Bharat Singh and Kirpa Ram, are the sons of Ram Narain. They had another brother Maha Chand, whose widow is Bhagiriti, the defendant. The plaintiffs alleged that they and Maha Chand constituted a joint Hindu family, that Maha Chand died as a member of the joint Hindu family and that thereafter Maha Chand s widow lived with the plaintiffs who continued to be the owners and possessors of the property in suit, the widow being entitled to maintenance only. They also alleged that it was by mistake that the defendant s name was mutated in the village records in place of Maha Chand, who died on September 16, 1925. They further alleged that the defendant lost her right to maintenance due to her leading an unchaste life. This contention, however, was not accepted by the Courts below and in no more for consideration. It was on the other allegations that the plaintiffs claimed a declaration that the entry of the defendant s name in the column of ownership in the Jamabandi papers was wrong, that they were the owners and possessors of the property in suit and that the defendant had no right therein. They also claimed a permanent injunction against the defendant restraining her from alienating or leasing any of the properties in favour of any person or causing interference of any in the possession of the plaintiffs.

3. The defendant contested the suit alleging that her husband Maha Chand, along with the plaintiffs, did not constitute a joint Hindu family at the time of his death, that he was separate from the plaintiffs and that he was living separate from them, that the property in suit was neither ancestral property nor the property of the joint Hindu family, that the plaintiffs and Maha Chand were owners of agricultural land as co-shares out of which one-third share belonged to Maha Chand and that therefore the entry in her favour in the Jamabandi papers was correct. She also claimed right to Maha Chand s share on the basis of custom. This contention, however, was not accepted by the Courts below and is not now open for consideration. Bhagirti further contended that the suit was not within time as she had become owner and possessor of the land in suit in 1925. The suit was brought in 1951

4. By their replication, the plaintiffs stated that Maha Chand had never become separate from them and that the defendant was not in possession of the property in suit, the possession being with the plaintiffs or their tenants or lessees.

5. The trial Court held that the parties were governed by the Hindu law unmodified by the custom, that the joint Hindu family constituted by the plaintiffs and their brother Maha Chand was never disrupted and that Maha Chand died as a member of the joint Hindu family, that the property in suit was co-parcenery property in the hands of the three brothers, that the entry of the defendant s name in the Jamabandi was wrongly made and that the suit was instituted within time as the earliest the defendant asserted her claim to the land in suit was in 1950. The trial Court therefore granted the plaintiffs a decree for declaration in the following terms:

"1. That the entries in the revenue papers showing the defendant as owner of one-third share in the suit land are wrong and are not binding on the plaintiffs.

2. That the property in dispute vests in the plaintiffs as coparceners.

3. That the defendant s only right in the suit property is one of maintenance and she is not entitled to alienate it in any way:

The plaintiffs are further granted a permanent injunction restraining the defendant form alienating the suit property in any way and from causing interference in the plaintiffs possession of the

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