Narsing Misser vs Birju Misser and Others

Coutts, J.—This was a suit by one Narsing Misser for partition of joint family property, details of which are set out in schedule I of the plaint. The defendants are Birju Misser, brother of plaintiff''s father Rajnath, the two sons of Birju Misser and the grandson of Birju Misser. The plaintiff''s case, as made out in the plaint, is that his father Rajnath Misser died in 1310 F. S. while the family was joint and that after his death plaintiff and the defendants constituted a joint Hindu family of which Birju Misser, defendant No. 1 was the Karta. The plaintiff became major some time ago; he separated in mess from the defendants 4 years ago and now being dissatisfied with the management 6f the joint property by Birju Misser, he brought this suit for partition. The defendants on the other hand contend that plaintiff''s father Rajnath died in 1309, that he had separated from the. other defendants some years before, namely, in 1302, and that since then the defendants had been in separate possession of their respective shares, the share of Birju defendant No. 1 being larger on account of the custom of Jethangs which obtained in the family. The suit has been dismissed and the plaintiff has appealed.

The question is whether there was a partition or not, and the first point which is urged before us is that the family being a joint Hindu family, the onus was on the defendants to prove separation. The learned Subordinate Judge, after discussion, made the plaintiff produce his evidence first, and it is contended that he has been thereby seriously prejudiced : and that the learned Subordinate Judge has, by putting the onus on the wrong side, been led to a wrong conclusion. It is true that the family being a joint Hindu family, the onus was on the defendants to prove separation and it is also a fact that the learned Subordinate Judge made the plaintiff produce his evidence first. It is clear from his judgment, however, that he realised that the onus was on the defendants and although he did not in the first instance approach the case in the best way, it is clear from the evidence which is now all before us that the plaintiff has not in fact been in any way prejudiced.

The defendants rely principally on the Record of Rights, which shows the majority of the plots in the name of the plaintiff or of the defendants and some plots shamilat. The explanation of some plots being recorded as shamilat is that this was done in cases where the land was in the occupation of the tenants. The record also shows two bighas more in the possession of the defendant Birju than in the possession of the plaintiffs, and from this it has been argued that there can have been no partition. It is clear from the evidence, however, that the custom of Jethangs by which the elder brother got a larger share obtains in the family. The Record of Rights then is strong presumptive evidence of partition, particularly as it was prepared at a time when there was no enmity between the parties. Moreover the evidence of the record is corroborated by a large number of witnesses who have been examined on behalf of the defendants. The most important of these are the two Punches who made the partition. They state that the partition was made in 1302; their evidence was believed by the learned Subordinate Judge. The rest of the witnessee are all neighbours who certainly knew the state of the family. They depose that the plaintiff and defendants lived in separate houses and were separate both in mess and property. Several of the witnesses are tenants of the plaintiff and they depose that they pay rent to him separately. This evidence has all been carefully considered by the learned Subordinate Judge who has believed it, and no reason has been shown to us why it should not be accepted.

The plaintiff on the other hand relies principally on oral evidence and on the fact that there has been no mutation of names in the landlord''s sherista. With regard to the latter point, Birju himself Bays that mutation was not made after partition because it involved payment of salami and because the parties were not on bad terms. This is a reasonable and very common explanation of non-mutation of names, and there is on the face of it no reason why it should not be accepted. The oral evidence adduced by the plaintiff not only does not rebut the defendants'' evidence, but goes far to support the stay of partition. The witnesses all admit that the parties lived in separate houses and that they were separate in mess and that their moveables have been partitioned. They also admit that, there was disruption of the family in 1302 by which certain members became separate and that Birju actually has separate property. They say, however, that in spite of this the plaintiff and the defendants still remained joint. Their evidence, however, on this point is of an exceedingly doubtful character. In several instances it has been elicited by means of leading questions put by the plaintiff''s Pleader, it has not been believed by the learned Subordinate Judge and it is, in my opinion, totally unworthy of credit.

In the result, then, I am satisfied that there was a partition in the time of Rajnath as alleged by the defendant and this being so, the plaintiff is not entitled to a partition. I would accordingly confirm the decision of the learned Subordinate Judge and would dismiss this appeal with costs.

Roe, J.

I agree.