Tarini Prasad Singh and Another vs Nunu Prasad Singh and Others

Dawson Miller, C.J.—This is an appeal by the defendants from a decree of the Subordinate Judge of Monghyr, dated this 31st January 1920.

The plaintiffs and the defendants are, respectively, the members of two different branches of the family of Nawab Singh who died many years ago leaving two sons, Ram Singh and Harakh Narain Singh. The first plaintiff Nunu Prashad Singh is the on of Ram Singh, the other plaintiffs are the sons and grandsons of Nunu Prashad Singh. The defendants were originally the widow of Harakh Narain Singh and his two grandsons (sons of his deceased daughter). The widow, Mt. Mulko Kumari, died during the pendency of the suit leaving her two grandsons, Tarini Prasad and Tribeni Prasad Singh, the sole defendants representing Harakh''s branch of the family.

Ram Singh died in or before the year 1877 but his brother Harakh Narain Singh lived until 1917. If at the date of Harakh Narain''s death in 1917 the families of the two brothers were joint in estate, which is the plaintiff''s case, it would follow that on the death of Harakh Narain, leaving no male issue, the descendants of Ram Singh would succeed by survivorship to the whole of the joint family property, to the exclusion of the defendants, the sons of Harakh Narain''s daughter. If, however, there was a separation of interest in the lifetime of the two brothers Ram Singh, and Harakh Narain, which is the defendants'' case, then the half share which Harakh Narain acquired by partition would descend by inheritance to his daughter''s sons.

The question for determination in this appeal is whether such a separation in fact took place. [His Lordship than discussed the oral and documentary evidence regarding partition and proceeded as follows:]

No doubt it is not necessary that definite evidence should be given of a formal agreement between the parties to enable A Court to hold that a separation has taken place. An inference of separation having previously taken place may be drawn from, the subsequent acts of the parties without any proof of a formal agreement. But where the parties are found living together in the same house and meeting their expenses out of a common fund, I consider that it would require; very much stronger evidence than anything which has been produced in this case to lead to the conclusion that they had put an end, to their state of jointness. There is some evidence, no doubt, of dealings with the property which are consistent with a state of separation but there is no evidence which, to my mind, shows actual separate enjoyment and apart altogether from the fact that they were living together and messing together there are documents and admitted facts in the case which point clearly to a state of jointness and I can see no valid reason for differing from the conclusion arrived at by the Trial Court.

In my opinion this appeal should be dismissed with costs.

Foster, J.

I agree.