Muna Mahto and Others vs Raghunath Mahto and Others

Wort, J.—This is the plaintiffs appeal in an action for partition. The parties to the suit had a common ancestor in one Karam Mahto. The plaintiffs in the action are descended from Gurcharan Mahto who was Karam Mahto''s second son, and the defendants from Bodhram Mahto, Shiva Mahto and Kashi. Defendants 8, 9, 10, 15, 16, 17, 18 and 19 did not contest the suit but supported the plaintiffs'' claim for partition. The learned Subordinate Judge has dismissed the case on the ground that the circumstances of the case show that as the defendants contended, partition had already taken place many years before the institution of the suit. The argument before us has mainly been concerned with the question of on whom is the onus in the case in circumstances such as these. To state the case of the parties more in detail it is this.

The admitted facts are that the parties were separate in mess, that they were separately in possession of separate parts of what was at one time at least the property of the joint family. The defendants'' case, as I have already indicated in answer to the plaintiffs'' claim, was that a partition had taken place first of all as between Karam Mahto and his brother Umag Mahto and after that as between the 2nd, 3rd and 5th sons of Karam Mahto.

The learned Subordinate Judge in his decision has, as I have already stated, come to the conclusion that this separation which the defendants set up had taken place some considerable time ago and what he appears to have relied upon mainly was the fact that there was separate possession of the various parts of what at one time was the joint Hindu family property, and he has come to the conclusion on the basis of an authority to which I shall presently refer that in the circumstances it must be assumed that this state of affairs which admittedly exists had a legal origin.

The contention of the parties before us, as I have said, was mainly concerned with the question of onus, although Mr. Mitter on behalf of the contesting defendants has relied upon what he alleges are the facts which have been proved in the case apart from the admitted facts which I have stated which in his argument clearly establishes his defence to the action.

The learned Subordinate Judge has referred to the case of Yellappa Ramappa Naik v. Tippanna AIR 1929 PC 8. The proposition there laid down was that the strength of the presumption necessarily varies in every case. The presumption of union is stronger in the case of brothers than in the case of cousins, and the further you go from the founder of the family, the presumption becomes weaker and weaker. In this connexion Mr. De, who appears on behalf of the plaintiffs-appellants, contends that the presumption in this case of jointness is strong because the partition which took place is alleged to have taken place according to the evidence during the time of the sons of Karam Mahto. It was the separation therefore which is alleged as between the brothers; and Mr. De''s contention therefore is that the presumption in this case is not weak but strong; but his argument, in my opinion, is based on a fallacy. When we are considering the question of the presumption of jointness, it is to be considered in reference to the parties in the action in which the question of onus of proof applies, and it is impossible to accede to the argument of Mr. De that the presumption, weak or strong, is to be applied not to the state of facts and circumstances at a time at which the defendants allege the partition took place. In this case we have parties to the action who are several degrees removed from the common ancestor, and in these circumstances, in my opinion, the presumption of jointness is much weaker than it would have been had the action been as between the brothers.

The authority to which I have referred, which was a decision of the Judicial Committee of the Privy Council, refers to the case of Moro Vishvanath v. Ganesh Vithal (1873) 10 Bom HCR 444 which their Lordships of the Privy Council described as being the leading authority of long standing. In that case West, J., makes this statement:

An undisputed assertion of proprietary rights extending to the property actually possessed by other descendants from the common ancestor, will show that the several parcels are still held as shares of a common property. In the absence of such an indication, sole possession by several members of separate parcels may reasonably be taken in accordance with the ordinary presumption proof of separate ownership

He had already made this further statement in his judgment and that was this:

But though no such partition as this by mere operation of law is known to the Hindu system, it is equally clear that that system, like the English respects an existing possession peaceably acquired, and raises, after the lapse of a considerable time, the presumption by which it can be supported.

It was upon that proposition, although expressed in other words in the decision of Yellappa Ramappa Naik v. Tippanna AIR 1929 PC 8 that the learned Subordinate Judge relied upon in this case, and it is contended on behalf of the defendants that the presumption being weak, having been raised between members of the family who are three or four degrees removed from the common ancestor is rebutted by the facts which have been proved in this case, by the separate possession of separate parcels of the property, to which I have already made reference more than once.

In addition to that there are certain other facts proved which go a long way, in my judgment, to destroy such presumption which does arise in favour of the plaintiffs in their case. The plaintiffs themselves in their evidence admit that they acquired properties separately in Karma and Chhaku. There is no suggestion in this case that at any time these properties so acquired have been claimed as part of the joint properties of the family. There have, in addition to that which has beep proved in the case, been separate transactions by way of disposal of properties by the parties to the suit. The plaintiff Bhikari Mahto in addition to the transactions to which I have already made reference has stated: "we acquired lands in Karma by patta kubuliyat," having already said that "Gurchan, Sham and Kashi acquired lands before the survey by patta and kabuliyat." I should have mentioned that the case of the parties was, as the plaintiffs'' in this case was, which is an admitted fact, that the ancestors of the plaintiffs came and settled in the village Harnath and re-claimed lands by clearing jungle and making them fit for cultivation.

In addition to that there is the fact proved that Jado, Sam and Ram who were the descendants of Gurcharan Mahto, the second son of Karam Mahto, had separated and had their properties divided by panches. Upon this fact the learned Subordinate Judge also relies. It was contended by Mr. Mitter on behalf of the defendants that this fact in itself amounted to a disruption of the joint family. In a sense that is true and in this sense that if that fact is proved and it is a fact which, as I have already stated, is accepted by the Subordinate Judge, then such a presumption of jointness as between the members of this family as does exist, is entirely dissipated; but in addition to that it has been used as evidence of the fact which the defendants have stated in this case, namely, that the disruption or separation had taken place about a hundred years ago and in this sense the separation which took place as between the three brothers whom I have mentioned is consistent only with that state of affairs.

The evidence on the part of the defendants also is that they have received rent separately from their tenants. Mr. De''s contention in this regard is that that statement cannot be accepted in the absence of rent receipts which the defendants themselves have not filed, but although the rent receipts would have been corroboration it is impossible to say that the Court was not entitled to accept the statement made by the defendants in the absence of those receipts; and in any event the plaintiffs could have called for them if they suggest as I understand them to suggest that they would have proved a state of facts contrary to that which was alleged by the defendants.

In my judgment these facts which I have enumerated, although perhaps not in detail, together with the admitted fact of the long possession of separate parcels of this property by several branches of the family do in fact rebut any presumption which may exist in favour of jointness of this family.

I agree with the learned Subordinate Judge in coming to the conclusion, on the authority to which I have already made reference, that the state of facts which we have in this case can, to use the language of West, J., after the lapse of a considerable time, be supported by the presumption that they had a legal origin.

In my judgment the decision of the learned Subordinate Judge in this case was right and therefore I would hold that this appeal must be dismissed with costs.

James, J.

I agree.