JUDGMENT : This is defendant's second appeal arising out of a suit filed by the respondent plaintiff against the defendant for declaration of his right of ownership of eight annas share in the three Zamindari properties situated in District Morena. The Subordinate Judge, Morena decreed the suit and this decree was upheld by the District Judge Morena. It is common ground that Maharaj Singh and Harbaksh Singh were real brothers, Harbaksh Singh had two sons Narendrapalsingh and Bhikam Singh. The plaintiff Yogendra Singh is the son of Narendrapal Singh and the defendant Brajraj Singh is the son of Bhikam Singh. The plaintiff alleged that his father had died when the plaintiff was a minor and his uncle Bhikam Singh, as Manager of the Joint Hindu family managed the properties and during the minority of the plaintiff his uncle got his sole name recorded in the record of rights as owner of the zamindari properties in villages Babadipura, (sic) Tonga and Bilgaon Kwary (sic). Bhikam Singh died on 4th February 1940 and his son the defendant applied for mutation of his name in stead of Bhikam Singh. The plaintiff then also applied for mutation as he also considered himself to be the owner of the property. This dispute led him to file this suit which had been decreed by the Courts below. 2. The defendant resisted the suit on several grounds but the main ground is that Narendrapal Singh, the plaintiff's father, had gone away to another family as an adopted son of Maharaj Singh and therefore the defendant thinks that he cannot get anything out of the Joint Family property as Narendrapal Singh had severed his relation with the joint family. It was also contended by the defendant that the Zamindari properties in village Babadipura, Tonga and Bilgaon Kwary were purchased by his father Bhikam Singh with his separate money during the period 1926 to 1928. The decision of the present case hinges on the question whether Narendrapal Singh had gone out of the family or not? It will be sufficient to observe here that no adoption deed had been produced before the Courts below and no evidence has been adduced to prove the adoption i.e. to prove the ceremony of giving and taking in adoption. The only thing produced is a copy dated 7th October 1918 purported to be by Mt.
It will be sufficient to observe here that no adoption deed had been produced before the Courts below and no evidence has been adduced to prove the adoption i.e. to prove the ceremony of giving and taking in adoption. The only thing produced is a copy dated 7th October 1918 purported to be by Mt. Roop Kuwar widow of Maharaj Singh, in which it is mentioned that Narendrapal Singh was adopted by Maharaj Singh and when Narendrapal Singh died on 5th September 1918 the widow authorised Yogendrapal Singh to be the owner of her property both movable and immovable which was in Behrara and Kanhara. The original will has not been produced. Evidence of the scribe or of a attesting witness was necessary for proving the will and this evindence has been lacking in this case. It is necessary for a party to prove the execution of the original 'CHUHAMAL v. RAHIM BAKSH', AIR 1924 Lah 303. A certified copy is sufficient secondary evidence under S. 63 of the existence, conditions, and contents of the deed but not of its execution, which must be proved as required under S. 68 of the Evidence Act. 'KARIMMULLAH v. GUDAR KOERI', AIR 1925 All 56 . In my opinion the two Courts below were correct in refusing to recognise this copy of the will as evidence of adoption. 3. Mr. Bhagwan Das Gupta, learned counsel for the appellant, has drawn my attention to page 133 of the History of Jageerdars Gwalior State (Vol. 2) and asks me to infer from a perusal of the above mentioned page that Narendrapal Singh was adopted by Maharaj Singh. The learned counsel contended that this History is published under authority and should be believed to be true. Under S. 87, of the Evidence Act this Court can only presume that the History was written or published by the person and at the time and place, by whom or at which it purports to have been written or published. The presumption is with regard to publication, authorship etc. but not with regard to accuracy. The History of Jageerdars cannot be taken to be of any use in this matter nor does it mention that Narendrapal Singh was adopted by Maharaj Singh.
The presumption is with regard to publication, authorship etc. but not with regard to accuracy. The History of Jageerdars cannot be taken to be of any use in this matter nor does it mention that Narendrapal Singh was adopted by Maharaj Singh. The only fact referred to on page 133 of the book is this that Narendrapal Singh applied for mutation in his favour and alleged that he was the adopted son of Maharaj Singh taut this was not recognised by Darbar. As regards the will I have observed above that it was not proved and we do not know what happened to the property left by Mt. Roop Kuwar. If Narendrapal Singh had been adopted by Maharaj Singh, there would have been no necessity for executing a will by Mt. Roop Kuwar; for the property of Maharaj Singh would have, in natural course, devolved upon Narendrapal Singh. In my opinion the Courts below are correct in repelling the contention of the defendant that Narendrapal. Singh had gone out of the family. And I am satisfied that the family was joint. 4. An application dated 13th October 1930 bearing the signature of Bhikam Singh in file No. 1 of 79 X 8 Tehsil Sabalgarh also states the same fact that the family was joint in 1930. Niranjanlal who is acquainted with the hand writing of Bhikam Singh deposes that the signature on this application is that of Bhikam Singh and it transpires that Bhikam Singh was the Manager of the joint Hindu family and in that capacity he has filed this application Umrao Singh who appears as a witness on behalf of the defendant admitted in cross-examination that the family was joint and there has been no partition uptill now. In my opinion there is sufficient evidence produced in the file to show that the Zamindari properties in villages Babadipura, Tonga and Bilgaon Kwary are properties of a joint Hindu family and the plaintiff is entitled to a moiety. 5. In the records of right relating to the Zamindari properties in villages Panihari, Deori and Baroli, Yogendra Singh's name appears along with the defendant's name as owner of half and half. If Narendrapal Singh had gone to another family this would not have been recorded as such.
5. In the records of right relating to the Zamindari properties in villages Panihari, Deori and Baroli, Yogendra Singh's name appears along with the defendant's name as owner of half and half. If Narendrapal Singh had gone to another family this would not have been recorded as such. Of course the collector's book is kept for purpose of revenue and not for purposes of title, and a definition of shares in revenue and village papers affords, by itself, but a very slight indication of an actual separation in a Hindu family, and in no case can it be regarded that such a definition of shares is sufficient evidence upon which to find, contrary to the presumption in law as to jointure, that the family to which such definition referred had separated 'GAJANDRA SINGH v. SARDAR SINGH'. 18 All 178 approved by the Privy Council in 'NAGESHAR BAKSH SINGH v. MT. GANESHA' 47 Ind App 57 : AIR 1920 PC 46 . 6. The next point for determination is whether these villages had been purchased by Bhikam Singh with his separate money, or, with the aid of the joint family property, when Bhikam Singh was the Manager of the joint Hindu family. (After discussion of evidence the judgment proceeds :) From the evidence I am satisfied that there has been no division of right or severence of right and the family continues to be joint in estate. I am clear in my mind that mere cesser of commensality would not make the two cousins separate in estate, for a member of a joint Hindu family may become separate in food or residence for his own convenience. If the family is joint as I hold it to be, the question of limitation does not arise, and, I am also of the opinion that a prayer for possession was not needed at all. 7. I therefore dismiss the appeal with costs. Appeal dismissed.