Judgment 1. The following genealogical table will show the relationship between the parties:- - HARIKARAN RAI __________________________|______________________________________ | | | | | Shiwan Rai Jadr Rai Ragho Rai Gisha Rai Bhawan Rai | =Most. (deft. 1) (deft. 2) | Jashoda Devi | (deft. 13) | |_________________________ | | | | Birija Rai Shankar Rai | (deft. 9) (deft. 10) | | | Ramgilash Rai | (deft. 11) | | | Kameshwar Singh | (deft. 12) |___________________________________ | | | Ramekhal Rai Nathuni Rai Ramayan Rai (deft. 3) (deft. 4) (deft. 5) ______________|________ | | | Child name not Jaimangal Rai Mundrika Rai known (deft. 8) (deft. 7) (deft. 6) The defendants first party only contended that the genealogical table as given is incomplete inasmuch as Mosamat Anho Kuar alias Ramdasi Kuar widow of Bhawan Rai is not shown and also that Ramayan Rai is not shown as the adopted son of Bhawan Rai, but he has been shown in the branch of Shiwan Rai. In view of the subsequent conduct of the defendants first party by giving up the consideration of the fact that Ramayan Rai (defendant No. 5) was adopted by Bhawan Rai, the above genealogical table may be taken to be the admitted genealogical table of the parties. It will show that defendants Nos. 9 to 13 belong to the branch of Jadu Rai who are defendants second party in the suit, and defendants 1 and 2 are the brothers of Jadu Rai and defendants 3 to 8 are the descendant of Shiwan Rai, the fourth brother of Jadu Rai- There is no dispute now that so far the line of Bhawan Rai is concerned, it became extinct and the joint family properties devolved on the four sons of Hari Karan Rai. There is also no dispute that if there would have been a partition, defendants second party would be entitled to the remaining 3/4th share in the properties. There is also no dispute that if there would have been a partition, defendants second party would be entitled to the remaining 3/4th share in the properties. 2 According to the case of the plaintiff, there was severance of status in the joint family of the defendants about 20 to 25 years ago, and according to the case of the defendants second party severance took place about 15 to 16 years ago, but the parties were cultivating the lands separately according to their convenience i. e. the defendants second party were cultivating about 1/4th land of the family and defendants first party to the extent of the 3/4th share. Since there was no partition by metes and bounds, there was an amicable partition of the joint family properties by a deed of partition dated the 28th February 1955 (Ext. A-1). In the deed of partition two Schedules of the properties were prepared, namely Ka and Kha. Schedule Ka properties were given to the defendants second party, in their entire 1/4th share and Schedule Kha properties in respect of 12 annas share were given to the defendants first party. The plaintiff alleges that she purchased the entire 1/4th share properties of the defendants second party by virtue of a registered sale-deed dated the 9th July 1962 (Ext. 3) and thereafter she came in cultivating possession of the properties mentioned in Schedule 2 of the plaint, but subsequently there was apprehension of a breach of the peace resulting in a proceeding under Sec.144 of the Code of Criminal Procedure, which was decided against the plaintiff and as a result of which the defendants first party dispossessed the plaintiff from the suit land on the 31st of August, 1962, and hence she filed the suit under appeal on the 22nd September, 1962, primarily for declaration of title and recovery of possession in respect of Schedule 2 properties. In the alternative she praved that if the partition between the defendants first and second parties was not established then a separate takhta of 1/4th share of the defendants second party be carved out and thereafter possession through Court over the said 1/4th share may be given to her. 3. The defendants second party filed their written statement and supported the claim of the plaintiff. 3. The defendants second party filed their written statement and supported the claim of the plaintiff. They stated in paragraph 13 of their written statement that they had sold away their entire properties allotted to them by the partition-deed dated the 28th February, 1955, and if it was not established that there had been partition, a fresh partition may be made by allotting their 1/4th share takhta to the takhta of the plaintiff, i.e., the plaintiffs 1/4th share of the properties mentioned in Schedule 1 of the plaint. 4. The real contest was made by defendants first party. Their claim was that the partition deed dated the 28th February 1955 was only a paper transaction and it was invalid because defendants 3 and 5 did not join the document. They alleged that the parties were still joint in mess and properties. There was no severance in the joint family status and as such the defendants second party had no right to sell away l/4th share to the plaintiff. It was also contended that as the plaintiff was a purchaser of a specific property, she had no right to bring a suit for partition. It was also stated that the joint family was very much involved in debt and there could not be partition unless the defendants second party were also burdened \vith the proportionate share in the joint family debt. On the aforesaid grounds, they contested the suit of the plaintiff. 5. The parties filed both oral and documentary evidence in the case. On a consideration of the evidence, facts and circumstances of the case, the learned Additional Subordinate Judge held that there had been a disruption in the family of the defendants, at least on the date when the partition-deed (Ext. A-1) was executed. He held that the partition-deed was binding on the defendants, but in his opinion, the partition-deed could not be a valid document of partition because there was no provision for the payment of the joint family debt. Therefore, it was held that though the defendants first and second parties were separate in status, but the properties remained joint. He held that the partition-deed was binding on the defendants, but in his opinion, the partition-deed could not be a valid document of partition because there was no provision for the payment of the joint family debt. Therefore, it was held that though the defendants first and second parties were separate in status, but the properties remained joint. Hence, a decree for partition of 1/4th share of the defendants second party was passed directing therein that a separate takhta in respect of 1/4th share should be carved out in favour of the defendants second party and the plaintiff, and joint possession be delivered to them, and, accordingly, a preliminary decree for partition of 1/4th share was passed. Hence, the defendants first party have come up to this Court. 6. Learned counsel for the appellants reiterated the contentions which were raised by the defendants first party in the court below. He contended firstly that the parties were still joint and there had not been any severance in the joint family status of the defendants. Secondly he contended that as the defendants second party were members of the joint family with the defendants first party, they could not convey lands to the plaintiff. Thirdly he urged that the plaintiff being a purchaser of a specific portion of the lands, she could not bring a suit for partition of the entire joint family properties and lastly the contention was that the defendants second party were liable for the joint family debt and there was no provision made in the judgment for the division of the encumbrances payable by the joint family of the defendants. 7. It is difficult for us to accept the contentions raised by the learned counsel for the appellants. The learned Additional Subordinate Judge found that the deed of partition (Ext A-1) was duly executed by the parties concerned. There was no fraud or misrepresentation. In this Court no attempt has been made to show that the partition-deed (Ext. A-1) has been procured by the defendants second party by some fraud or misrepresentation. It is true that defendants 3 and 5 had not joined the partition deed, but the document shows that it was duly executed by Ragho Rai (defendant No. 1), Gisa Rai (defendant No. 2) and Nathuni Rai (defendant No. 4) representing the branch of Shiwan Rai. A-1) has been procured by the defendants second party by some fraud or misrepresentation. It is true that defendants 3 and 5 had not joined the partition deed, but the document shows that it was duly executed by Ragho Rai (defendant No. 1), Gisa Rai (defendant No. 2) and Nathuni Rai (defendant No. 4) representing the branch of Shiwan Rai. According to the case of the defendants second party as well as the plaintiff, Ragho Rai (defendant No. 1) who was the seniormost member in the family was the karta of the joint family. On the other hand, it was alleged by the defendants first partv that Ram Ekbal Rai (defendant No. 3) was the karta of the joint family as Ragho Rai (defendant No. 1) had become old. There is a presumption that seniormost member would be regarded as karta of the joint family. Nothing has been brought on the record that Ragho Rai (defendant No. 1) was not the karta of the family. We must, therefore, hold that Ragho Rai (defendant No. 1) was the karta of the joint family of the defendants before partition. 8. In the partition-deed (Ext. A-1) all the branches are properly represented. Hence notwithstanding the fact that defendants 3 and 5 did not join the partition-deed, in our opinion, the document is a good document of partition and it is binding on the parties. The learned Additional Subordinate Judge has held that there is no provision in the partition-deed for payment of the pre-partition joint family debt, and, therefore, it could not- be regarded as a valid document of partition. It is not necessary for us to pronounce our opinion on this point since the plaintiff-respondent has not challenged this finding. The position now is that there is a document of partition showing the shares of defendants second party as l/4th and that of defendants first party as 3/4th in the properties. This shows that by this document at least there has been a division of the rights of the two sets of the defendants family in the joint family properties. This amounts to severance in the status. This shows that by this document at least there has been a division of the rights of the two sets of the defendants family in the joint family properties. This amounts to severance in the status. The learned Subordinate Judge was right in holding that this document conclusively establishes that there was a severance of joint status of the defendants second party on the one hand and the defendants first party on the other on the February 28, 1955 when the partition-deed (Ext. A-1) was executed. Learned counsel tried to show that as this document was only a paper transaction and parties did not come in possession according to the shares allotted to them, this document could not be a proof of the severance of the joint family status. It is true that this document alone could not be regarded as proof of partition, but in this document there is an admission by the parties that there has been division between the defendants second party and the defendants first party and the share of defendants second party was to the extent of 1/4th. The admission is the best proof of the matter stated. It was for the defendants first party to have brought on the record the circumstances to show that in spite of Ext. A-1, the parties remained joint and that there was no severance in the status. This case of the appellants is demolished by their own document, namely, a mortgage-deed (Ext. E) dated the 17th June 1958, which was executed by Ragho Rai (defendant No. 1) and Nathuni Rai (defendant No. 4) by creating a third mortgage for a sum of Rs. 550.00 on the joint family properties. If the parties were joint, then defendant No. 9 would have also joined this document. Therefore, this clearly shows that in 1958, the parties were not dealing jointly, but were dealing separately. It is true that the Revenue Courts refused to mutate the names of the defendants second party in respect of the lands allotted to them in the partition-deed (Ext. A-1), and the survey authorities also did not act on it, but it cannot be said that before the institution of the suit the parties were joint. Ext. G, the Order-sheet of mutation case shows that a petition was filed by defendants second party before the Revenue Court on the 17th Jan.. A-1), and the survey authorities also did not act on it, but it cannot be said that before the institution of the suit the parties were joint. Ext. G, the Order-sheet of mutation case shows that a petition was filed by defendants second party before the Revenue Court on the 17th Jan.. 1961 for mutation of their names in respect of the lands allotted to them by the partition deed. This was contested by the defendants first partv, and the prayer for mutation was refused on the 1st September 1961. This clearly shows that at least on the 17th January 1961, the defendants second party had shown their intention to the defendants first party that they had separated from the defendants first party, and on the basis of the partition-deed they asserted their title and possession in respect of the properties allotted to them under Ext. A-11. Before the survey authorities also, the defendants second party tried to get separate entries recorded in respect of their properties on the 2nd June 1962. This was also contested and opposed by the defendants first party resulting in the refusal of the entry of the names of the defendants second party in respect of the lands allotted to them under the partition deed (Ext. A-1). It is well settled under the Hindu Law that for the purpose of separation, it is not necessary that the properties should be divided by metes and bounds. There must be an unequivocal declaration of intention of the person to show that he separated from the rest of the family. It is also not necessary that declaration should be communicated to all the remaining members. In this case the partition-deed (Ext. A-1) along with the mutation and the certificate cases clearly show that the defendants second party had in unequivocal terms expressed that they were separate from the defendants first party. Therefore, it must be held that before the defendants second party executed the registered sale deed in favour of the plaintiff on the 9th July, 1962, they were separate in status at least from the defendants first party and as such they had every right to sell away their interest in the joint family properties to anybody they liked. On a consideration of the aforesaid facts, circumstances and evidence, we are of the opinion that after the execution of the partition-deed (Ext. On a consideration of the aforesaid facts, circumstances and evidence, we are of the opinion that after the execution of the partition-deed (Ext. A-1), the parties were not dealing jointly with the properties in question rather the defendants second party and the defendants first party were dealing separately, and the defendants second party were asserting their separate title and possession in respect of the lands allotted to them. Therefore, in our opinion, the learned Additional Subordinate Judge was right In holding that the defendants second party were separate from the defendants first party and they had full right to dispose of their interest in the joint family properties and as such the sale deed (Ext. 3) dated the 9th July, 1962 in favour of the plaintiff is a valid document conferring title on the plaintiff. 9. There is no substance in the contention raised by learned counsel for the appellants that the plaintiff is only a purchaser of some specific portion of the properties. The sale-deed (Ext. 3) in favour of the plaintiff clearly shows that the entire interest of the defendants second party in the joint family properties representing the lands mentioned in Schedul 2 of the plaint was sold to the plaintiff. From the construction of the document it is clear that the plaintiff did not purchase only a bigha or two of the joint family lands; rather she purchased the entire interest of the defendants second party which is also supported by the defendants second party in paragraph 13 of the written statement. Therefore, in our opinion, the defendants second party sold their entire 1/4th share in the joint family properties, and, as such the plaintiff, as a purchaser, is entitled to bring a suit for partition. 10. Lastly learned counsel contended that the learned Additional Subordinate Judge, did not make any specific provision regarding the liability of the defendants second party, and consequently of the plaintiff, in regard to the joint family debt. It is true that in so many clear words in the judgment there is no provision in regard to payment of the joint family debt but on a perusal of the judgment it is clear that the learned Additional Subordinate Judge took into consideration the joint family debt also. As there was no provision in the partition-deed (Ext. It is true that in so many clear words in the judgment there is no provision in regard to payment of the joint family debt but on a perusal of the judgment it is clear that the learned Additional Subordinate Judge took into consideration the joint family debt also. As there was no provision in the partition-deed (Ext. A-1) for payment of the propartition joint family debt, the partition-deed, according to the learned Additional Subordinate Judge, was not a valid document and as such it could not be regarded a deed of partition so far as allotments are concerned. The parties admitted before us that at the time of the preparation of the final decree, the pleader commissioner has taken into consideration about the payment of the joint family debt and encumbrances also have been divided between the parties. A final decree has, accordingly, been prepared which is now the subject-matter of the appeal in First Appeal No. 108 of 1967. Therefore, it cannot be said now that the learned Subordinate Judge has not made specific provision regarding the payment of the pre-partition joint family debt. We have called for the records of First Appeal No. 108 of 1967, and from it, it is clear that at the time of the preparation of the final decree, the learned Additional Subordinate Judge has taken into consideration the joint family debt and a provision has been made for payment of the debt by the parties. Therefore, it cannot be said that because there has not been specific mention about the payment of the joint family debt in the judgment, the appellants have been prejudiced in any way thereby. 11. The plaintiff-respondent has also filed a cross-objection in this case claiming therein mesne profits as well as costs, but at the time of argument of the appeal, learned counsel appearing on behalf of the plaintiff-respondent did not press the cross-objection. The cross-objection is, accordingly dismissed. 12. For the reasons stated above, the appeal fails and is dismissed with costs. The judgment and decree of the court below are hereby affirmed.