JUDGMENT Daniels, J.
1. The following pedigree will explain the position of the parties:
Babu Ram Singh |
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2. The plaintiffs are claiming the property of both their father Mahabir Singh and their uncle Pahlad Singh, the latter having died childless. The defendants are their surviving uncles and the son of a deceased uncle. The facts found by the Court below are that the defendants Nos. 2 and 3 and the father of the first defendant separated from Mahabir Singh and Pahlad Singh, but that the two latter remained joint. This is a finding of fact supported by evidence and on this finding the plaintiffs are entitled to the property. The only point pressed by the defendants in appeal is that when once it was found that the defendants had separated from the remaining two brothersMahabir Singh and Pahlad Singh, it was necessary to prove a re-union on the part of the latter. This goes beyond the rulings of the Privy Council on the point, and is in definite conflict with the ruling of this Court in Parsotam Das v. Jagan Nath 50 Ind. Cas. 357 : 41 A. 361 : 17 A.L.J. 347. The principle laid down by the Privy Council in Balabux v. Bukhmabai 30 C. 725, (P.C.) 30 I.A. 130 : 7 C.W.N. 642 : 5 Bom. L.R. 469 : 8 Sar. P.C.J. 470, and lately reaffirmed in Musammat Jatti v. Banwari Lal 74 Ind. Cas. 462 : 21 A.L.J. 582; (1923) A.I.R. (P.C.) 136 : 18 L.W. 273 : 45 M.L.J. 355; (1923) M.W.M. 687 : 25 Bom. L.R. 1256 : 4 L. 350, (P.C.), is that when the separation of one co-parcener is proved there is no presumption that the others remained united. There is in fact no presumption remaining either way and an agreement amongst the remaining co-parceners either to remain united or to re-unite (both alternatives are given in the judgment of Balabux v. Bukmabai 30 I.A. 130 : 7 C.W.N. 642 : 5 Bom. L.R. 469 : 8 Sar. P.C.J. 470 must be proved like any other fact. This point was definitely ruled in Parsotam Das v. Jagan Nath 50 Ind. Cas. 357 : 41 A. 361 : 17 A.L.J. 347, where it was held that if separation of one member takes place it is not the necessary result in law that the other members must be taken to have separated inter se. They may have separated or they may have remained united. In this case the evidence proves, and the Court below has found, that they remained united. On this finding the appeal fails and it is accordingly dismissed with costs.