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2010 DIGILAW 1687 (PAT)

Vijay Kumar Srivastava v. Anand Mohan Prasad

2010-07-28

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JUDGMENT MUNGESHWAR SAHOO, J.:- This First Appeal has been filed by the defendants first party appellants against the Judgment dated 24.9.1974 and the decree following there upon signed on 30.10.1974 by Sri Ram Kishore Singh, the learned 1st Additional Sub Judge, Motihari; in Partition Suit NO.154 of 1968/ 122 of 1970 whereby the learned court below decreed the plaintiff respondents' suit for partition of the suit property described in Schedules - I and II of the plaint to the extent of 1/2 share. 2. To understand the relationship between the parties the admitted genealogy may be reproduced here for easy reference:- Sundal lal Kamla Lal Kapildeo Lal Jhingan Lal Rijhan Lal (D.No.7) (D.No.1) =Ram Yoti Kuar (P.No.3) = Murat Kuar (D,No.8) Yadunath Prasad= Gayati Devi Anand Mohan) Shambhu Pd. D.N. 2 (D.No.6) (P.No.1) =Indu Kuar (D.No.9) Dharmendra Pd. Umesh Prasad (P.No.2) (P.No.10) Arun Kuma Ajit Kumar Chotan Kumar (D.No.3) (D.No.4) (D.No.5) 3. The above genealogy is admitted by the parties. According to the plaintiffs case Sunder Lal had four sons; Kamla Lal, Kapil Deo Lal, Jhingal Lal and Rijhan Lal. The branch of third son, Rijhan Lal are the plaintiffs. The branch of Kapildeo Lal are the contesting defendants first party appellants. The other decendents of two sons of Sunder Lal, i.e., Kamla Lal and Rijhan Lal are defendants no.7 to 10 had not contested the suit. According to the plaintiffs pleading as pleaded in the plaint is that there was dispute and differences between the four sons of Sunder Lal after the death of Sunder Lal. So they had to separate from each other which took place about 25 years ago and then after being separated from each other the first son Kamla Lal and the 4th son, Rijhan Lal remained together and the second son Kamla Lal and the third son, Jhingan Lal remained together jointly. Like this there was partition between the four brothers and the mess and business was divided into two parts. The residential house was also divided into two parts. That state of affairs is still continuing and the plaintiffs are still joint with defendants first set. 4. The further case of the plaintiff-respondents is that Kapildeo Lal is the Karta of the joint family of plaintiffs and defendants first set. The plaintiff no.1 is in Military service. The residential house was also divided into two parts. That state of affairs is still continuing and the plaintiffs are still joint with defendants first set. 4. The further case of the plaintiff-respondents is that Kapildeo Lal is the Karta of the joint family of plaintiffs and defendants first set. The plaintiff no.1 is in Military service. Much property (about 8 bigha) have been acquired out of the income of joint family fund but the plaintiffs came to know that the defendants are creating title regarding those properties acquired in their names out of the joint family fund. The plaintiffs requested for partition to which the defendants did not agree. Hence, the suit. 5. The defendants first set appellants appeared and filed a contesting written statement and also additional written statement. In the written statement they have admitted the partition but have stated that during life time of Sunder Lal he separated his four sons in the year 1941 and a memorandum of partition was prepared. In that partition Sunder Lal himself kept 1 bigha, 6 katha, 14 dhoors of land for his self maintenance. According to that partition the four branches are coming in separate possession of their lands allotted in the partition. These defendants have purchased the properties standing in their names after partition out of their own fund. The defendant no.6, Gayatri Devi, out of her stridhan has acquired property in her own name. The plaintiffs are not joint with these defendants. Hence, they are not entitled to partition and the suit is fit to be dismissed. The defendants also pleaded that the suit is barred by law of limitation and adverse possession besides taking other ornamental pleas. 6. The other defendants did not contest the suit. On the basis of all these pleadings the learned court below framed the following issues:- I. Is the suit as framed maintainable? II. Had the plaintiffs got the cause of action or right to Sue? III. Is the suit barred by law of limitation and adverse possession? IV. Is the court fee sufficient? V. Is the suit barred under the provisions of Section 34 of the Specific Relief Act? VI. Are the plaintiffs entitled to claim partition, if so, for what share? VII. To what relief or reliefs, if any, are the plaintiffs entitled? 7. III. Is the suit barred by law of limitation and adverse possession? IV. Is the court fee sufficient? V. Is the suit barred under the provisions of Section 34 of the Specific Relief Act? VI. Are the plaintiffs entitled to claim partition, if so, for what share? VII. To what relief or reliefs, if any, are the plaintiffs entitled? 7. After trial the learned court below by the impugned Judgment while deciding issue n.6 at paragraph no.30 held that the story of partition alleged by the defendants is not proved satisfactorily by oral evidence adduced on behalf of the defendants and at paragraph 38 the learned court below came to the conclusion that the defendants first set is still joint and the acquisition alleged by the defendants to have been made out of their own fund are the acquisition of the joint family fund. So, the plaintiffs are fully entitled to get 1/2 share in the entire property which the joint family possess at present. It further appears that at paragraph 28 the learned court below while considering the evidence of D.W.40 held that the evidence of D.W.40 makes it clear that Gayatri, Devi is simply name lender and actually the land was acquired by family property for the family. All other issues are also answered in favour of the plaintiffs. 8. The learned Senior counsel Mr. Dwivedi appearing on behalf of the plaintiffs submitted that according to paragraph no.1 of the plaint itself partition is admitted by the plaintiffs themselves. In such circumstances there was no presumption of jointness and, therefore, heavy onus was upon the plaintiffs to prove that after partition the plaintiffs and defendants fist set appellants reunited. Mr. Dwivedi further submitted that once a coparcener separates from the other members of the joint family and has his share partitioned for him, there is no presumption that the rest of the coparcener continued to be joint. It would be a question of fact to be decided on the basis of evidence in each case as to whether there was separation amongst the other coparcener or they remained united. 9. It would be a question of fact to be decided on the basis of evidence in each case as to whether there was separation amongst the other coparcener or they remained united. 9. The learned counsel further submitted that the learned court below has approached the case in wrong angle and gave a finding that the defendants evidence did not support the partition alleged by them although it was the case of the plaintiffs also which has specifically been pleaded in paragraph 1. The only difference regarding partition between the parties according to the pleadings is that according to the plaintiffs partition took place after death of Sunder Lal 25 years ago which on calculation comes to about 1943 and according to defendants appellants partition took place during the life time of Sunder Lal in the year 1941 and a memorandum of partition was prepared which has been marked as Ext.H but the learned court below held that Ext.H is not genuine and inadmissible in evidence because it created title and extinguished title but it is unregistered. 10. The learned counsel further submitted that the other defence of the parties is that according to the plaintiffs after separation between the four brothers two brothers remained joint in one side and the two other brothers remained joint in the other side. But according to the appellants they never remained joint. In such circumstance, according to the learned counsel it was the duty of the plaintiffs respondents to have successfully established their case as pleaded in the plaint regarding separation after death of Sunder Lal and the reunion between the two brothers. The plaintiffs can not take advantage of the weakness of the defence case as the plaintiffs have to stand or fall on their own legs. The learned counsel further submitted that regarding the property standing in the name of Gayatri Devi the learned court below without there being any evidence held that it is acquired out of family fund without considering the provisions of Benami Transaction (Prohibition) Act, 1988 and the law settled by this Court in AIR 1991 Patna 53; Rameshwar Mishtri Vs. Babu lal Mishtri. 11. The learned counsel further submitted that the learned court below has gravely erred in holding that Ext.H requires registration although it is memorandum of partition. Babu lal Mishtri. 11. The learned counsel further submitted that the learned court below has gravely erred in holding that Ext.H requires registration although it is memorandum of partition. The learned counsel further submitted that the learned court below has not at all discussed Ext.l which is a report of handwriting expert who has proved the signatures of the four brothers and Sunder Lal after comparing their admitted signatures. 12. The learned counsel further submitted that the appellants had produced many documentary evidence to falsify the case of the plaintiffs that partition took place after the death of Sunder Lal 25 years ago, i.e., in 1943. But the learned court below has not examined those various documents in their right prospective. According to the learned counsel the court is required to find out the correct less or otherwise of the case as pleaded ether by the plaintiffs or by the defendants, i.e., in this case the court was required to give a finding regarding the case of partition pleaded by the plaintiffs after death of Sunder Lal is correct or case of appellant regarding partition which took place during life time of Sunder Lal is correct. The court could not have made out a third case without discussing the documentary evidences produced by the appellants. The learned senior counsel Mr. Dwivedi further submitted that it is the specific case of the plaintiffs that he joined military service in 1963 but the learned court below held that the properties have been acquired out of joint family fund 'and money sent by the plaintiff without considering the fact that there was no presumption of jointness and joint family fund and nucleus and moreover, many properties acquired prior to 1963 have also been wrongly held to be the joint family property. 13. On these grounds the learned counsel submitted that the impugned Judgment and decree are liable to be set aside and the plaintiffs' suit is liable to be dismissed. 14. The learned counsel Mr. V. Nath appearing on behalf of the plaintiffs respondents submitted that emphasis should not be given on the form of pleadings but the substances of pleadings is to be seen. 14. The learned counsel Mr. V. Nath appearing on behalf of the plaintiffs respondents submitted that emphasis should not be given on the form of pleadings but the substances of pleadings is to be seen. According to the learned counsel in paragraph 1 it is specific pleadings of the plaintiffs that there was partition between the four brothers in the manner that Kamla Lal and Rijhan Lal remained joint as before and Kapildeo Lal and Jhingan Lal remained joint as before. Therefore, in fact, the pleadings is that the property was partitioned into two parts only. The learned counsel further submitted that the learned court below has rightly, therefore, held that there was no partition between the plaintiffs and the defendants appellants. According to the learned counsel the learned court below has considered each and every documents and disbelieved the case of the defendants appellants, therefore, the judgment and decree cannot be interfered with. According to the learned counsel for arriving at the findings recorded by the court below sound reasons have been assigned which cannot be lightly interfered with. 15. The learned counsel Mr. V. Nath further submitted that at the time of acquisition of the lands prior to 1963 the plaintiff no.1 was minor and there was no male member in his family, so, Kapildeo Lal was the karta. The properties were acquired in the names of one defendants or the other defendants out of the income from the joint family and, therefore, the learned court below has rightly held that the plaintiffs are entitled to 1/2 share in those property also. 16. The learned counsel further submitted that Ext.H is the deed of partition and, therefore, it is compulsorily registerable. As such the learned court below has rightly held so and when it is inadmissible evidence the learned court below has rightly not discussed the report Ext.l. Ext.l is the report of the handwriting expert. The learned counsel further submitted that the plaintiffs have proved various letters and money order coupons which indicate that the plaintiff no.1 was sending money order in the name of Kapildeo Lal and also letters which show that the defendant no.1 demanded money from the plaintiff no.1 for purchasing land. The learned counsel further submitted that the plaintiffs have proved various letters and money order coupons which indicate that the plaintiff no.1 was sending money order in the name of Kapildeo Lal and also letters which show that the defendant no.1 demanded money from the plaintiff no.1 for purchasing land. The learned counsel further submitted that the learned court below has also corsidered various letters in which the plaintiff no.1 addressed the defendant no.1 as respected father and defendant no.2 as respected brother which amply prove that they were joint and defendant no.1 was karta. On these grounds the learned counsel submitted that the appeal has got no merit and the same is liable to be dismissed with costs. A written argument has been filed by the respondent. 17. In view of the above rival contentions of the parties the points arise for consideration in this appeal is as to whether the plaintiffs respondents are entitled to partition of the suit property mentioned in Schedules - I and II of the plaint and whether the learned court below has rightly decreed the same. FINDINGS 18. According to the plaintiffs differences arose between the four brothers, so, they had to separate 25 years ago. After separation between the four brothers two brothers remained joint at one place and the other two brothers remained joint in other place vide paragraph 1 of the plaint. Therefore, it is specific pleadings of the plaintiffs that the differences were between the four brothers which took place after death of Sunder Lal. The suit has been filed in the year, 1968. Therefore, according to the plaintiff in 1943 after death of Sunder Lal there was difference between the four brothers, so, they separated. In other words it is the pleadings of the plaintiff that after separation two brothers Kamla Lal and Rijhan Lal lived together and remained joint and Kapildeo Lal and Jhingan Lal lived together and remained joint. Therefore, a case of reunion has been made out which would be apparent from paragraph no.1 of the plaint although there is no specific wording regarding reunion. Therefore, a case of reunion has been made out which would be apparent from paragraph no.1 of the plaint although there is no specific wording regarding reunion. From perusal of the impugned Judgment also it appears that the learned court below has also stated that partition took place amongst the four sons of Sunder Lal 25 years ago and after partition Kamla Lal and Rijhan Lal remained joint with 1/2 share and Kapildeo Lal and Jhingan Lal remained joint with another 1/2 share. Therefore, no other meaning can be inferred from paragraph 1 of the plaint. Now, therefore, it is the admitted pleadings of the plaintiff that 25 years ago after death of Sunder Lal partition took place between the four brothers, i.e., in 1943 and thereafter as stated above two brothers remained in 1/2 share and the other two brothers remained joint in the other 1/2 share. 19. The defendants' case is that partition between the four brothers took place but it took place during the life time of Sunder Lal and the two brothers at one place and two brothers at another place remained joint is denied. Therefore, the defence admitted the partition between the four brothers but according to them it was during the life time of Sunder Lal. In the said partition the four brothers were given equal shares and Sunder Lal retained 1 bigha, 6 kathas and 14 dhoors lands for his own maintenance. Now, therefore, only dispute is whether partition took place during lifetime of Sunder Lal or it took place after death of Sunder Lal and whether after partition the two brothers remained in1/2 share and the other two brothers remained in another 1/2 share. 20. Regarding the acquisition of lands in the names of defendants appellants measuring about 8 bighas are concerned according to the plaintiffs these lands have been acquired out of joint family fund. Therefore, those lands are joint family lands and the plaintiffs are entitled to 1/2 share. On the other hand, the defendants appellants have mentioned in Schedule -II of written statement the details of the land standing in the name of the defendants and the year of the acquisition and in Schedule -III of the written statement the property standing in the name of Gayatri Devi defendant no.6 has been mentioned. On the other hand, the defendants appellants have mentioned in Schedule -II of written statement the details of the land standing in the name of the defendants and the year of the acquisition and in Schedule -III of the written statement the property standing in the name of Gayatri Devi defendant no.6 has been mentioned. According to the defendants these properties have been acquired after partition between the four brothers since 1942 up to 1968 out of the business and also the in Come from service of defendant no.1 who was in service since before and from the income of defendant no.2 who was in service since 1954. The defendants further case is that it was never acquired out of the so called joint family fund and, in fact, there was no such joint family. 21. The parties have adduced oral as well as documentary evidence in support of their case. The plaintiffs have adduced 10 witnesses. P.W.1 Ber Prasad has deposed that when Sunder Lal died his four sons were joint. One year after his death there was partition between his four sons. This partition took place in two parts. Kamla Lal and Rijhan Lal remained joint whereas Kapildeo Lal and Jhingal Lal remained joint in one place. In cross-examination at para 4 he has stated that partition was between the four brothers. P.W.2 Kali Charan Ram in examination-in-chief stated that after death of Sunder Lal there was partition between his sons and the partition was in two places. In the cross-examination at paragraph 4 he has stated that after the death of Sunder Lal his 10 big has land was devided between four sons to the extent of 2 1/2 bigha each. At paragraph 6 he has stated that Kamla Lal, Kapildeo Lal, Rijhan Lal and Jhingan Lal had one house but now they have partitioned the same also but Kapildeo Lal and Jhingan Lal lived together. From the evidence of this witness it is clear and specific that a partition took place between the four brothers to the extent of 2 1/2 bigha and 2 1/2 bigha each. This is the admission of plaintiffs witnesses. P.W.3 in paragraph 3 of his crosexamination has stated that after death of Sunder Lal there was partition between the four brothers and then two brothers remained joint at one place and the other two brothers remained joint at another place. This is the admission of plaintiffs witnesses. P.W.3 in paragraph 3 of his crosexamination has stated that after death of Sunder Lal there was partition between the four brothers and then two brothers remained joint at one place and the other two brothers remained joint at another place. At paragraph 4 he has admitted that Kapildeo Lal was in police service as constable and he retired 8/9 years ago. P.W4 Dip Narain Singh has come to say that the plaintiffs and the defendants are joint. P.W.5 has also stated that after death of Sunder Lal his four sons separated. In that separation two brothers remained joint and the other two brothers remained joint. P.W.6 is formal witness. P.W.7, Ram Brikch Rai has come to depose that in the marriage of Yadunath Prasad he had gone and no much Dan-Dahez was given in the marriage. At the time of argument it was submitted that Gayatri Devi had no stridhan because no Dan-Dahez was given to her. So, the property acquired in her name is not out of her stridhan. 22. P.W.8 Hira Prasad Sinha is the brother-in-law of Anand Mohan. He has stated that the parties are joint. The plaintiff no.1 was married with his sister in 1966 and in the marriage negotiation took place between him and Kapildeo Prasad and Yadunath Prasad. At that time Anand Mohan was living with them jointly. Therefore, this witness has come to say that the marriage negotiation was done by defendants no.1 and 2. This witness has been examined to show that the defendant no.1 is the karta of the joint family and was taking active part in the marriage of plaintiff no.1. 23. P.W.9 Sahabuddin Miyan has stated that he had gone in the second marriage of Yadunath but he returned without taking meal. This witness has been examined to show that the in-laws of Yadunath Prasad, i.e., the parents of the Gayatri Devi are such poor persons that in her marriage they did not provide food to the barat party and, therefore, there is no question of any stridhan. 24. P.W.10 is the plaintiff no.1 himself who has deposed the same thing as pleaded in the plaint. In paragraph 4 he has specifically stated that after death of Sunder Lal his four sons separated with each other 31 years ago. He deposed in 1973. On calculation it comes to 1942. 24. P.W.10 is the plaintiff no.1 himself who has deposed the same thing as pleaded in the plaint. In paragraph 4 he has specifically stated that after death of Sunder Lal his four sons separated with each other 31 years ago. He deposed in 1973. On calculation it comes to 1942. Subsequently he stated that his four sons separated in two parts, i.e., Kapildeo Lal and Jhingan Lal at one place and the other two brothers at one place. 25. These are the oral evidences adduced on behalf of the plaintiffs. From the discussion above it is clear that there is specific pleadings in the plaint that after death of Sunder Lal his four sons separated from each other and two brothers lived at one place jointly and the other two brothers lived together at one place jointly. Therefore, the separation between the four brothers is the substance of pleading which is being supported by the witnesses examined on behalf of the plaintiff. On the other hand, this fact regarding partition between the four brothers is admitted by the defendants. According to the plaintiffs this separation between the four brothers took place 25 years ago (from the date of filing of the suit), i.e., 1943 which again is supported by the evidence of P.W.10., the plaintiff no.1 in his evidence has stated to the effect that this partition took place 31 years ago (from the date of his deposition), i.e., in 1942. Therefore, according to the plaintiffs case the separation between the four brothers took place either in the year 1942 or 1943. On the other hand, according to the defendants this partition took place between the four brothers during life time of Sunder Lal in the year 1941. In such circumstance now the court has to examine as to whose version is correct. Regarding the year of partition it appears that there is no much differences. It can be said that the partition might have taken place either in 1941 or 1942 or 1943. It makes no difference but the question is whether it was during the life time of Sunder Lal or after his death. 26. The defendants have also examined as many as 49 witnesses. It can be said that the partition might have taken place either in 1941 or 1942 or 1943. It makes no difference but the question is whether it was during the life time of Sunder Lal or after his death. 26. The defendants have also examined as many as 49 witnesses. Out of them most of the witnesses are formal in nature such as D.Ws.5, 6, 10, 14, 18, 20, 22, 23, 24 to 26, 28 to 29, 31 to 36, 38, 39 and 44 to 49. The materials witnesses examined on behalf of the defendants have all stated that during life time of Sunder Lal there was partition. Properties were partitioned by the punches and thereafter a memorandum was prepared in 4 sheets containing the lists of property. P.W.1 in paragraph 1 has stated that Sunder Lal partitioned his four sons equally and he retained 1 bigha, 6 katha 14 dhoors land for his maintenance. This witness was present in the partition. At paragraph 2 he has stated that after partition a partition paper was written in 4 sheets. All the four brothers and Sunder Lal signed on the said papers. After partition Sunder Lal died. Two years after death of Sunder Lal Jhingan Lal also died. Therefore, this witness has also stated that there was partition between the four brothers which is the case of the plaintiffs also. From perusal of the other oral evidence it appears that the witnesses have stated the same thing. D.W.27 is Yadunath Prasad no.2. In his evidence he has described the genealogy and has stated that since he gained sense he was seeing all the four brothers separated in mess and dealing. He has also stated that there was partition in four parts and the plots were also divided in four parts. All of them were cultivating separately. 27. D.W. 37 is Kapildeo Lal, defendant no.1. He has fully supported the case as made out in the written statement. 28. The plaintiffs have proved Ext.5 series which are sale deeds. These sale deeds have been filed by the plaintiffs to show that some of the properties have been acquired jointly and the learned counsel for the plaintiff- respondents submitted that if there was partition between the parties then there was no question of joint acquisition. The learned counsel further submitted that some of the properties have been sold jointly to the others. The learned counsel further submitted that some of the properties have been sold jointly to the others. On the basis of these sale deeds, therefore, the learned counsel for the plaintiff respondents submitted that the parties are joint. Now let us examine the three sale deeds. Ext.5 is sale deed dated 19.10.1957 executed by Kapildeo Prasad and Anand Mohan Prasad jointly in favour of Shambhu Prasad son of Rijhan Prasad. The learned counsel for the plaintiff- respondents gave much emphasis on this sale deed and submitted that they were joint in the year 1957. So far this submission is concerned we have seen above the pleading and the evidence of the plaintiff that four brothers were separate from each other and then two brothers lived together and the other two brothers lived together. Therefore, at best it can be said that they were living as tenants in common. But certainly reunion cannot be inferred. On the basis of these documents it cannot be said that the parties are members of a joint family. 29. Ext.5/A is sale deed dated 14.5.1943 executed by Kamla Prasad and Rijhan in favour of third person. This is the sale deed of the year 1943 wherein father Sunder Lal is attesting witness. Therefore, in the year 1943 father was alive and the sons were transferring the land claiming the land as their land. In the description of the property sold in the boundary land of Kapildeo Lal, defendant no.1 has been described. Therefore, in 1943 had there been no partition there was no question of land of Kapildeo Lal in the boundary of the land sold by Kamla Lal and Rijhan Lal. From this document it appears that during the life time of Sunder Lal the four brothers were dealing the property. 30. Ext.5/B is sale deed dated 19.10.1957 by which the properties were acquired jointly by plaintiff no.1 and defendant no.1. The learned counsel for the plaintiff respondents submitted that because they were joint, therefore, this property was acquired jointly. So far this submission is concerned also at best it can be said that they were living together as tenants in common. It cannot be said legally that there was no separation between Kapildeo Lal and Jhingan Lal. 31. In a decision reported in AIR 1952 SC 72 ; Bhagwati Prasad Sah and ors. Vs. So far this submission is concerned also at best it can be said that they were living together as tenants in common. It cannot be said legally that there was no separation between Kapildeo Lal and Jhingan Lal. 31. In a decision reported in AIR 1952 SC 72 ; Bhagwati Prasad Sah and ors. Vs. Dulhin Rameshwari Kuar and another, at paragraph 7 it has been held by the Hon'ble Supreme Court as follows:- 7. "Before we discuss the evidence on the record, we desire to point out that on the admitted facts of this case neither party has any presumption on his side either as regards jointness or separation of the family. The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but, as it is admitted here, that Imrit, one of the coparceners, did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the plaintiff's side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief. These principles which have been laid down in several pronouncements of the Judicial Committee seem to us to be perfectly sound: vide Balkrishna v. Ram Krishna, 58 Ind. App. 220 P.C.; Palaniammal Vs. Muthu Venkatachala, 52 Ind. App. 88; Balabux Ladhuram Vs. Rukhma. bai, 80 Ind. App. 180. Another thing to be noted in this connection, is that it is not the case of the defendants made either in the pleading or in the evidence that even' if there was a separation between Ram Narain and Ram Saran at any anterior time they subsequently reunited. App. 88; Balabux Ladhuram Vs. Rukhma. bai, 80 Ind. App. 180. Another thing to be noted in this connection, is that it is not the case of the defendants made either in the pleading or in the evidence that even' if there was a separation between Ram Narain and Ram Saran at any anterior time they subsequently reunited. The controversy, therefore, narrows down to the short point as to whether at any time before the death of Ram Narain there was a separation between him and Ram Saran If, as the plaintiff avers, there was a disruption of the joint status in regard to all the three brothers, it would really be immaterial if, subsequent to separation, Ram Narain and Ram Saran lived together in commensality or dealt with their properties in such manner as is ordinarily done by members of a joint Hindu family, except in the case of reunion, which is not set up in the present case, the mere fact that separated coparceners choose to live together or act jointly for purposes of business or trade or in their dealings with properties, would not give them the status of coparceners under the Mitakshara law. It is in the light of these principles that we propose to examine the Evidence before us:” 32. In the present case at out hand also the separation between the four brothers is admitted by the parties. Here also reunion is not pleaded in the plaint, therefore, the mere fact that separated coparceners choose to live together or act jointly for purposes of business or trade or in their dealings with properties would not give them the status of coparceners under the Mitakchara law. Therefore, in view of the above settled principles of law the evidences in this case is required to be examined. 33. Ext.G/1 is sale deed dated 28.9.1950 executed by Rijhan Lal in favour of Yadunath Prasad. This is inter parties transaction. The 4th son had transferred the land to Yadunath Prasad the defendant no.2 in the year, 1950. In the description of the properties sold the share of other brothers have been shown, i.e., east - Kamla Lal, west - Kapildeo Lal in Plot NO.5010 and likewise in Plot NO.3410, in the boundary Mohan Prasad the plaintiff no.1 has been shown in the north and in the south- Kapildeo Prasad has been shown. In the description of the properties sold the share of other brothers have been shown, i.e., east - Kamla Lal, west - Kapildeo Lal in Plot NO.5010 and likewise in Plot NO.3410, in the boundary Mohan Prasad the plaintiff no.1 has been shown in the north and in the south- Kapildeo Prasad has been shown. Therefore, in the year, 1950 all the brothers were shown separately in the boundary. In other words this document is inter se transaction, the 4th son Rijhan Lal sold the property to the branch of second son Kapildeo Lal and in the boundary land of plaintiff, i.e., third son is shown in one direction and the land of Kamla Lal has been shown in other direction. This document clearly indicates that there was separation between the four brothers. So far this document is concerned there is no explanation given by the plaintiffs as to how the brothers were shown in separate possession of the properties and moreover, since the document is inter se transaction it is a strong evidence of partition between the parties. 34. In a decision reported in AIR 1977 Patna 59; Ram Bahadur Nath Tiwari Vs. Kedar Nath Tiwari, a Division Bench of this Hon'ble Court has held that separate transaction by members of a joint family may not by themselves establish separation but mutual transaction between members of family stands on an entirely different footing and they furnish a very strong evidence of separation. This document Ext.G/1, therefore, clearly proves that there was separation between the four brothers. The shares of each brother were shown separate and in the different boundary. 35. The another most important document is Ext.F/7 which is a jerpesgi deed dated 29.1.1946 executed by Sk. Gulzar in favour of Kapildeo Prasad, defendant no.1. In this deed Sunder Lal is a witness. He has signed the jerpesgi deed. Therefore, in the year 1946 it is abundantly clear that Sunder Lal the father was alive till 1946. There is no explanation by the plaintiff regarding how Sunder Lal has signed this document because according to the plaintiff partition took place after death of Sunder Lal but as discussed above the sale deed, Ext.5/A which is of the year 1943 and this jerpesgi deed of the year 1946 Sunder Lal has signed. This is not the case of the plaintiff that partition took place after 1946. 36. This is not the case of the plaintiff that partition took place after 1946. 36. Ext.G is another sale deed dated 28.9.1950 executed by Rijhan Lal n favour of Yadunath Prasad. In the boundary of the land sold Kapildeo Lal has been shown which indicate that he was separate. Exb. G/4 is sale deed dated 4.1.1968 executed by Kifayat in favour of Kapildeo Prasad wherein the plaintiff Mohan Prasad had signed as witness. Therefore, when the property was acquired by this sale deed by Kapildeo Lal the plaintiff signed as witness. It may be mentioned here that this property has also been added in the Schedule of the plaint for partition. If at all the property was acquired jointly then the plaintiff was also present he could have asked to add his name as purchaser also. It will not be out of place to mention here that in this very year, i.e., in 1968 the plaintiffs had filed this suit for partition. 37. In a decision reported in AIR 1968 SC 1018 ; Puttrangamma Vs. M.S. Ranganna, the Honble’ble Supreme Court has held that a member of a joint Hindu family can bring about his separation in status by a definite unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severality. Once a communication of intention to separate is made which has resulted in the severance of the joint family status, it is not thereafter open to the coparceners to nullify its effect so as to restore the family to its original joint status. In the present case also discussed above now it becomes clear that there was separation between the four brothers and also this separation took place during the life time of Sunder Lal their father. Therefore, there was complete severance of the coparcenery family. In such circumstance it was for the plaintiffs to prove their case about reunion but the same has not been pleaded nor any evidence has been adduced about the reunion. The oral evidence adduced by the plaintiffs as discussed above are contrary to the documents produced on behalf of the defendants appellants and even Ext.5/A. These documents as discussed above clearly indicate that during the life time of Sunder Lal the four brothers were separate. The oral evidence adduced by the plaintiffs as discussed above are contrary to the documents produced on behalf of the defendants appellants and even Ext.5/A. These documents as discussed above clearly indicate that during the life time of Sunder Lal the four brothers were separate. Now, therefore, merely because some of the properties have been sold jointly or some of the properties have been acquired it cannot be said that the plaintiffs and the defendants appellant constituted a joint family. In the facts of the present case as discussed above it can very well said that after severance of the joint status two brothers decided to live together and, therefore, their status will be as tenants in common. Moreover, so far joint acquisition is concerned the defendant no.2 in his evidence (D.W.27) at paragraph 7 has stated that both of them had paid 1/2 consideration each and, therefore, after purchase they partitioned the land Y2 and 1/2. 38. The defendants have proved so called memorandum of partition Ext.H. From, perusal of Ext.H it appears that only lists of property is mentioned in it. The signatures of four brothers and, their father Sunder Lal is in the last page. Therefore, this Ext.H only contains the list of property allotted in the share of Kapildeo Prasad. It is the case of the defendants that for each brother separate list of property for their share were prepared and handed over to them. Learned court below held that this document is a deed of partition and, therefore, it is compulsorily registerable. Since it is not registered it is inadmissible. So far this question is concerned it appears that the learned court below has not considered the law laid down by the Hon'ble Supreme Court in the case of Roshan Singh and others Vs. Zile Singh and others reported in AIR 1988 SC 881 , at paragraph 9. Paragraph 9 reads as follows:- "9. It is well-settled' that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The case of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(1) (b) lays .down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would no necessity of registering such a document. Two propositions must therefore flow: (1) A partition may be affected orally, but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, S.49 of the Act will prevent its being admitted in evidence. Secondly, evidence of the factum of partition will not be admissible by reason of S.91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition: See Mulla's Registration Act, 8th Edn., pp. 54-57." 39. 39. In the above decision the Hon'ble Supreme Court has specifically laid down that it is well settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. In the present case from perusal of the Ext.H it is clear that it contains only list of documents and, therefore, it cannot be said that it is a document of partition. In my opinion, therefore, Ext.H is not required to be registered and, therefore, it is admissible in evidence. The learned court below has wrongly held that Ext.H is inadmissible. 40. On this point the learned counsel for the respondents relied upon a decision reported in A.I.A. 1991 Patna 239; Nizamuddin versus Bibi Nafirunnisa. It appears that in that case the parties filed an application before Mukhiya for affecting partition. The learned court below has wrongly held that Ext.H is inadmissible. 40. On this point the learned counsel for the respondents relied upon a decision reported in A.I.A. 1991 Patna 239; Nizamuddin versus Bibi Nafirunnisa. It appears that in that case the parties filed an application before Mukhiya for affecting partition. The punches affected partition and award was made. This Court held that the award of the punches is required to be registered. Therefore, this decision is not helpful to the respondents. 41. Ext.I is the report of the handwriting expert who has proved the signatures of the four brothers and Sunder Lal on Ext.H which has been marked as Ext.E series. Ext.E is signature of Sunder Lal, E/1 is of Kamla Lal, E/2 is of Kapileo Lal, E/3 is of Jhingal Lal and E/4 is of Rijhan Lal. The learned court below has not at all discussed this Ext.I on the ground that Ext.H has been held to be inadmissible. Since it has been found above that the Ext. H is admissible now this Ext.I becomes an important document. It is the case of the appellants that four separate lists were prepared and each of the brothers and father signed on each list. The handwriting expert's report Ext.I clearly proves this fact that all of them had signed on Ext.H. From perusal of Ext.H it is clear that Sunder Lal retained 1 bigha 6 katha 14 dhoors land for his maintenance. This document is of the year 1941. From this document it is clear that the partition took place between the four brothers during the life time of Sunder Lal in the year 1941. The plaintiffs have denied regarding partition during the life time of Sunder Lal. Therefore, so oar their denial is concerned it is fully falsified by all the oral evidences adduced by the appellants and the documentary evidences as discussed above and also the documents relied upon by the plaintiff being Ext.5/A. 42. In this connection, in another decision of the Hon'ble Supreme Court reported in AIR 1976 SC 807 ; Kale and others Vs. In this connection, in another decision of the Hon'ble Supreme Court reported in AIR 1976 SC 807 ; Kale and others Vs. Deputy Director of Consolidation the Hon'ble Supreme Court has held that even if one of the parties to the settlement has no title but under the arrangement the other parties relinquishes all its claim or title in favour of such a person and acknowledges him to be the sole owner, then the vesting of title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same. 43. The learned court below proceeded to decide the suit presuming that the family is joint and it was the onus of the defendants to prove that the family is not joint. Therefore, in my opinion, the learned court below has approached the case in wrong angle because it is the case of both parties that there had been partition between the four brothers. Therefore, the basic approach of the learned court below is wrong in view of the settled law as discussed above. 48. 44. Therefore, even if now the case of the plaintiffs- respondents for the sake of argument is accepted that two brothers lived together and the other two brothers lived together then also joint status of the family will not be restored. 45. The other reasonings of the learned court below that the letter written by the plaintiff no.1 addressing the defendant no.1 as respected father and the defendant no.2 as respected elder brother which proves that defendant no.1 was the karta. So far this reasoning is concerned also is untenable because in the village even today the nephew addresses the elder brother of his father as Babuji. Therefore, there is nothing wrong, in addressing defendant no.1 as Babuji (father). Likewise admittedly defendant no.2 is elder brother of plaintiff no.1. In view of these letters it cannot be presumed that defendant no.1 was the karta. Moreover, since it is admitted by the parties that the coparcenary status of the family has severed, therefore, there is no question of kartaship arises. On the basis of this jointness of a family also cannot be inferred. 46. In view of these letters it cannot be presumed that defendant no.1 was the karta. Moreover, since it is admitted by the parties that the coparcenary status of the family has severed, therefore, there is no question of kartaship arises. On the basis of this jointness of a family also cannot be inferred. 46. The other reasoning of the learned court below that at the time of marriage of plaintiff no.1 the defendants no.1 and 2 negotiated the marriage which indicates that they were acting as guardians is concerned is also not sound reason. It may be mentioned here that in the evidence we have seen above that Jhingan Lal died two years after the death of Sunder Lai. So, there was no elderly male member in the family of the plaintiff. In such circumstance it was quite natural that the defendants helped the plaintiff. Therefore, on this evidence also it cannot be said that either defendant no.1 was karta or the family was joint family. It cannot be said that because of partition there will be no love and affection between the family and it cannot also be said that the relationship between the parties ceases to exist and because of that love and affection and/or relationship if any help is given by the defendants to the plaintiff no presumption of jointness or kartaship can be made. Moreover, in the present facts and circumstances of the case question of kartaship does not arise. 47. In the case of Hardeo Rai Vs. Shakuntala Devi reported in 2008 (7) see 46 the Hon'ble Supreme Court has held at paragraph 18 as follows: "18. There exists a distinction between a Mitakshara coparcenary property and joint family property. A mitakshara carries a definite concept. It is a body Individuals having been created by law unlike a joint family which can be constituted by agreement of the parties. A Mitakshara coparcanary is a creature of law. It is, thus, necessary to determine the status of the appellant and his brothers." 48. In view of the above discussion it appears that the learned court below has not at all considered these well settled principles of law regarding joint-ness and kartaship and has given the finding that the story of partition has not been proved satisfactorily by the defendants. 49. In view of the above discussion it appears that the learned court below has not at all considered these well settled principles of law regarding joint-ness and kartaship and has given the finding that the story of partition has not been proved satisfactorily by the defendants. 49. So far acquisition of landed property in the names of the appellants are concerned the learned court below has held that it was acquired out of the joint family fund. We have seen above that there was no joint family. There had already been severance between the four brothers. In such circumstances, there is no question of joint family fund. Normally, it is generally presumed that every Hindu family is joint in food, worship and estate, in the absence of proof of division. In other words the joint-ness is presumed until the contrary is proved. In the present case as discussed above it is admitted case of the parties that there was division in the family. Therefore, there is no such presumption. Moreover, there is no presumption that a family, because it is joint, possesses joint property. Now, therefore, there is no presumption of joint family property. When there is no presumption of joint family property there is no question of joint family fund. As discussed above the parties were separate. Admittedly the properties have been acquired in the name of either defendant no.1 or defendant no.2 or in the names of sons of defendant no.2 who are the appellants. It is well settled principles of law that in a suit for partition when a party claims that a particular item of the properties is joint family property, the burden of proving it rests on the party asserting it. In the present case the plaintiffs are claiming the property which are standing in the names of the appellants to be the joint family property. In such circumstances the burden of proving the same' is on the plaintiff to prove this fact that the said properties have been acquired out of joint family fund and also out of the money which was being sent by the plaintiff. The plaintiff in his evidence has stated that he was sending huge amount to the defendants. It .may be mentioned here that this plaintiff no.1 came in service in 1963. Most of the properties have been acquired in the names of the defendants from 1943 to 1963. The plaintiff in his evidence has stated that he was sending huge amount to the defendants. It .may be mentioned here that this plaintiff no.1 came in service in 1963. Most of the properties have been acquired in the names of the defendants from 1943 to 1963. So far those acquisitions are concerned there is no question of sending money by the plaintiff to the defendants arises. There is no explanation regarding these acquisitions as to how and from where the plaintiff was sending money to the defendants. Only a general pleading and submission are made in the evidence to the effect that these properties are acquired out of the money sent by the plaintiff no.1 and out of income of the joint family fund. We have already discussed above regarding joint family lands and funds that there was no such joint family existed because there had already been severance between four brothers. We have also seen that the legal position as has been held by the Hon'ble Supreme Court living together or acting jointly would not give definite status of coparcenary as has been held in Bhagwati Prasad Sah's case (supra). 50. Now let us consider about the sending of money by the plaintiffs to the defendants. The learned court below has given much emphasis on Exts.4 and 4/A and Ext.3 and Ext.3/A. It is admitted fact that the plaintiff was sending money order to the defendants. Only because he was sending money there can be no presumption that out of that money lands were acquired in the name of defendants. There is no specific pleadings and evidence to the effect that out of which money order sent by the plaintiffs which property was acquired. In the written statement the lists of the properties acquired in the names of defendants have been given. From perusal of Schedule-II it appears that the properties have been acquired by 57 sale deeds ranging from 1942 to 1968. Therefore, by general speaking that the properties have been acquired out of the money sent by the plaintiffs will not prove his case unless it is specifically pleaded and supported by evidence because the burden on him to prove the same. Moreover, many of the sale deeds are of prior to 1963. 51. Therefore, by general speaking that the properties have been acquired out of the money sent by the plaintiffs will not prove his case unless it is specifically pleaded and supported by evidence because the burden on him to prove the same. Moreover, many of the sale deeds are of prior to 1963. 51. So far sending money order is concerned the appellants had adduced evidences to the effect that the money order was being sent by the plaintiff because there was no male member in the family of plaintiff, so, after receiving money order the amount was being paid to the mother of plaintiff no.1 who is plaintiff no.3. The defendants have examined the defendant no.1 as D.W.37 and defendant no.2 as D.W.27. It is the specific pleading and also the evidence of the defendants that the money order sent by the plaintiff was being paid to the plaintiff no.3. The plaintiff no.3 has not been examined to deny this fact that she never received any amount from the defendants. She was the best person to deny this fact. Let us assume for the time being that she is pardanasin lady then also she could have prayed for being examined on commission. Moreover, observing parda is different and pardanasin lady is different. The Hindu ladies are not pardanasin but they observe parda and there was no difficulty in appearing before the court. 52. The learned court below• relied upon Ext.B series and Ext.E. From perusal of Ext.E it appears that money order was sent to defendants with a request to hand over the same to his wife. Therefore, it is admitted that the plaintiff was sending money orders to the defendants for payment either to his wife or to his mother because of the fact that there was no male member. It is not the case that the plaintiff never sent money for the expenses of his mother and it is also not the case that he sent money directly to his mother plaintiff no.3. Therefore, it appears that the appellants have given sufficient explanation regarding the sending of money by the plaintiff to the defendants. Now, therefore, the money sent by him cannot be related with the acquisition of landed property. 53. So far Ext.B series are, concerned those documents have been proved by the defendants to show that his mother was receiving money because these Exts. Now, therefore, the money sent by him cannot be related with the acquisition of landed property. 53. So far Ext.B series are, concerned those documents have been proved by the defendants to show that his mother was receiving money because these Exts. contain the message given to his mother. 54. Admittedly the defendant no.1 was in service since before and the defendant no.2 also was employed in 1954. The defendants have proved zerpesgi deeds to prove money lending business. Therefore, they had separate source of income. The plaintiff in his evidence has admitted that he was getting Rs.100/-per month in the year 1863. Therefore, it cannot be said that the defendants had no source of income or that the amount sent by the plaintiff no.1 was used in purchasing the property. Moreover, as stated above there is no such pleading or evidence also to which land was acquired out of the money sent by plaintiff no.1. Since there is no joint family there is no question of joint property arises and so no question of joint family fund arises and also there is no question of nucleus of the joint family. There is no such pleading also as to what was the income and out of that what was the expense and what was the saving. The learned court below only on the basis of the presumption held that the acquisitions are out of joint family fund. The learned court below has not considered the above settled principles of law about burden of proof. 55. The learned counsel for the appellants submitted that during the pendency of the suit a joint applicatio'1 was filed on 10.2.1969 wherein the defendants have admitted that the house is joint. From perusal of the said application it appears that the parties partitioned the house so that they may be able to construct the house. So far this statement is concerned also it is the case of the plaintiffs that the father of the plaintiff no.1 and the defendant no.1 started living together. From perusal of the Ext.H it appears that share was defined and in the application also same share was allotted to the parties by the punches. I, therefore, find no inconsistency with the case of the defendants. We have seen above that living together in a house will not restore the status of joint family. From perusal of the Ext.H it appears that share was defined and in the application also same share was allotted to the parties by the punches. I, therefore, find no inconsistency with the case of the defendants. We have seen above that living together in a house will not restore the status of joint family. The parties were only living together as tenants in common. 56. From perusal of Ext.G/4 which is dated 4.1.1968 executed by Sk. Kifayat in favour of defendant no.1 it is clear that in this sale deed the plaintiff no.1 is witness. Therefore, when the property was acquired in the name of defendant no.1, the plaintiff no.1 was present there. If consideration money or part of it was given by the plaintiff no.1 then he could have asked the defendants to insert her name as co-purchaser. In the plaint it is stated that the defendants became dishonest recently and started creating title documents in their favour. If that was so how he became witness of this acquisition and did not make any objection. The suit itself has been filed in the same year. 57. So far Schedule-III of the written statement is concerned admittedly the same stands in the name of defendant no.6, Gayatri Devi. The learned court below has held that it was acquired by the defendant no.2 out of joint family fund in the name of Gayatri Devi. The learned court below has not at all considered the well settled principles of law as laid down by this Court in the case of Rameshwar Mistry; reported in AIR 1991 Patna 53; Rameshwar Mistry Vs. Babu Lal Mistry. In the said decision this Court has held that a female cannot be a member of coparcenary governed under the Mitakshara School of Hindu Law and during the life time of defendant she cannot also be said to be a member of the joint family. At paragraphs 36 and 37 the Hon'ble Court has held as follows: "36. An acquisition of property in the name of his wife of a coparcener by the joint family will, in my opinion, constitute a Benami Transaction and will not be saved under Section 3(2) of the said Act. From a bare perusal of Section 4(3) of the said Act, it is evident that even such a case is not protected thereunder." "37. From a bare perusal of Section 4(3) of the said Act, it is evident that even such a case is not protected thereunder." "37. In this view of the matter, in my opinion, it has to be held that the suit filed by the plaintiff in respect of Items Nos.(iii) and (iv) of the Schedule-B appended to the plaint was barred under the Provisions of Benami transaction (Prohibition) Act, 1988." 58. The learned court below has not even discussed about the provisions of Benami Transactin Act. In view of the above settled principles of law the simple suit for partition regarding the property standing in the name of Gayatri Devi was not maintainable. 59. In view of my above discussion I find that the learned court below has approached the case in wrong angle and presumed the facts in favour of the plaintiff without considering the settled principles of law laid down by the Hon'ble Supreme Court as well as by this Court. The reasoning assigned by the learned court below for arriving at the findings as discussed above are neither sound nor tenable in the eye of law and also the findings are contrary to the evidences and pleadings and also against the settled legal principles of law. I, therefore, find that there had already been partition between the four brothers during the life time of Sunder Lal according to the Case of the defendants appellants. I also find that neither there was any joint family nor there was any joint family property nor there was joint family fund nor there was any nucleus out of which the property standing in the names of defendants appellants could have been acquired. Therefore, I also find that the properties standing in the names of defendants - appellants described in the written statement in Schedules-II and III are self acquired property of the appellants and the plaintiffs are not entitled to any share in those properties. Accordingly, the findings of the learned court below on these points are hereby reversed. 60. In view of my above findings the impugned Judgment and decree are liable to be set aside. 61. In the result, this first appeal is allowed. The impugned Judgment and decree are set aside and the plaintiffs respondents' suit for partition is dismissed. In the facts and circumstances of the case, the parties shall bear their own costs.