GIRIJA NANDINI DEVI AND ORS. versus BIJENDRA NARAIN CHOUDHURY

Citation: [1967] 1 S.C.R. 93 · Decided: 11-08-1966 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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GffiJA NANDINI DEVI AND ORS. 
v. 
BIJENDRA NARAIN CHOUDHURY 
August 11, 1966 
[K. N. WANCHOO, J. C. SHAH AND R. S. BACHAWAT, JJ.j 
Hindu Law-Undivided family-Specification of shares of parties with-
out expression of intention ta separate-Whether amounts to partition. 
Code of Civil Procedure, 1908, s. 66(1)-Ban on suit under-When 
operates . 
The appellants and the respondent were collaterals and belonged to 
the same branch of a Hindu undivided family. The said family hae 
four branches. Two branches filed in 1923 a join.I suit for partition of 
the family estate impleading the other two branches as defendants. 
Jn 
1924 the court passed a preliminary decree in which not only the shar~ 
of the branches but also the shares inter se of the members of the 
bram;hes were separately shown. 
The two branches to which the. plain-
tiffs belonged were jointly allotted a share of eight annas while the other 
two branches-to one of which the appellants and the respondent 
belonged-were given four annas each. The shares of the appellants and 
the respondent were mentioned as two 
annas each. In 1936 the res-
pondent came of age and 
in 1942 he filed a suit claiming partition 
of his share from that of the appellants. He alleged that the appellanta 
taking advantage of his minority had purchased properties out of family 
funds in their own n.ames as weU as benami, and that 
these prope.rties 
were also liable to be partitioned. 
The appellants denied that the said 
prop.,.-ties were purchased from family funcls. 
They further contended 
that the respondent was -holding his share of the property separa:ely and 
that the family property of the branch already stood partitioned as a 
result of specification of shares in the preliminary decree of 1924. The 
trial court decreed the respondent's suit. 
The High Court confirmed 
the decree with some modifications, 
The appellants came to this Court 
with certificate. 
The main contention on behalf of the appellants were : 
(i) that the 
specification of shares of the appellants and the respondent in the preli-
minary decree resulted in partition between them and (ii) that the suit 
in respect of alleged benami property was barred by s. 66 (I) of the Code 
of Civil Procedure. 
HELD : 
Specificaion by the decree of the shares of the appeUani. 
on the one hand and of the respondent on the other did not by itself 
constitute severance of the appellants from the respondent. [98 F-G] 
Partition may ordinarily be effected by institution of a suit, by sub-
mitting the dispute as to division of the properties to arbitrators, by a 
demand for a .share in the properties, or by conduct which evinces an 
intention to sever the joint family; it may also be effected by agreement 
to divide the property. But in each case the conduct must evidence un-
equivocally intention to s~er the joint family 
status. Merely 
because 
one member of the family severs his relation, there is 
no presumption 
that thare is severance between the other members : The question whet-
her the.re is severan.ce between the other members is one of fact to be 
determined on a re'View of all the attendant circumstances. (98 B] 
93 
94 
SUPREME COURT REPORTS 
[1967] l S.C.R. 
PolanJ Ammal v. Muthuvenlcalachar/a Mo11iagar cl On. L.R. '2 I.A. 
A 
83, relied on. 
In the present case the partition suil of 1923 and the preliminary decree 
therein making three allotments of the property led to severance of status 
of the plaintiffs as well as the other two· branches of the larger family. 
But severance between the members of the branche~ inter se may not in 
the absence of expression of unequivocal intention be inferred. 
There 
was no evid~ncc of expression of any such intention either by the appel-
B 
lants or the respondent 
(ii) The respondent's claim was that tho properties belonged to the 
joint family, because they were purchased by the appellants with the aid 
of joint family funds benami in the name of a third party. Such a claim 
doeg not fall within the terms of s. 66(1). (103 BJ 
Addonkl V•nkatarubbalah v. ChUalcamuthl KotaJah, C.A. No. 120 of 
C 
1964 dated 12-8-1965, relied on. 
(iii) It was not necessary for the respondent to mention in his plaint 
lhBt the recital in the preliminary decree showing severance of starwi 
between the appellants and the respondent was a• interpolation. 
The 
question whether evidence in suppon of a patty's case is reliable may be 
raised by the other p

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