Shyam Singh and others vs Bitan Singh and others

Satya Brata Sanyal, J.—Defendants 2 to 6 have preferred this appeal against the judgment of reversal. This second appeal arises out of a suit for partition. At the time of admission the only question framed was whether while reversing the judgment of the trial court the appellate court has wrongly placed the onus on the defendants to prove partition of the suit property and in view of the further fact that a large number of documents and oral evidence which were considered by the trial court have not been considered by the lower appellate court."

From paragraph 29 of the trial judgment it appears that the trial court considered the evidence of the plaintiffs, namely, P. Ws. 1,4,5,8, 16 and 17 and concluded that they do not seem to know the details of the lands for which the suit for partition has been instituted. The lower appellate court has considered the oral evidence in paragraphs 17 and 18, but there is no reference to the evidence of any of the witness of plaintiffs. To my mind this approach of the appellate court followed from the view he expressed in the judgment as here under:

"Undoubtedly, the presumption is that a Hindu family governed by the Mitakshara law is joint unless separation of partition is established."

After having so observed the lower appellate court seems to think that the entire onus is upon the defendants to show that there has been a previous partition as the court will presume jointness of the family. The court of appeal below thereafter starts explaining away the documents where entries are in the name of specified persons.

In my opinion, this approach is not correct. It is true that there is presumption that a joint family continues joint and that is the normal state of every Hindu family, but the strength of this presumption becomes weaker and weaker the reason being "Brothers are for the most part undivided, second cousin are generally separated, and third cousins are for the most part separated (see-Mulla''s Hindu Law, 1982 Edition, Article 233). That being the legal position the courts below seems to have misdirected itself in law, and it is for that reason the court below thought proper not to consider evidence of the plaintiff''s witnesses. The consequence, therefore, is that the matter must go back to the lower appellate court for reconsideration in accordance with law keeping in view the observations, made above. In the result, the appeal is allowed, but there will be no order as to costs.