A.N. Varma, J.@mdashThis is a Defendant''s first appeal directed against a decree passed by the court below for partition of a house, delivery of actual possession of the Plaintiff''s alleged half share therein as well for rendition of accounts in respect of the rental income of the house from April 1, 1971 and payment of such amount as may be found due to the Plaintiff on accounting. The decree has been passed Under Order XVIII, Rule 3 of the Code of Civil Procedure.
2. Shortly stated, the plaint case was that the Plaintiff and the Defendant are brothers being sons of Mannilal. Mannilal had purchased a plot and thereafter constructed the house in suit thereon. He along with the Plaintiff and the Defendant constituted a Joint Hindu Family. Mannilal died on October 9, 1955 leaving the Plaintiff and the Defendant as his only heirs. The result was that the interest in the house in suit devolved on the Plaintiff and the Defendant in equal shares. Part of the house was in possession of the parties while the remaining part had been let out to the tenants. By mutual consent the Defendant was realizing rent from the tenants and after deducting the expenses he used to pay the Plaintiff''s share to him However, the Defendant has not paid the Plaintiff''s share from April 1, 1971 to March 31, 1972 despite repeated demands The Plaintiff now does not want to keep the property joint and asked the Defendant to partition the property but to no avail. Hence the suit.
3. In the written statement filed by the Defendant Appellant he did not dispute that the house belonged to Mannilal, their father. His case, however, was that Mannilal, their father, was doing parchoon business was running a betel shop in a tenanted premises No. 79/37 Bansmandi, Kanpur. At the time of his death there were stocks in that shop worth Rs. 5,000/-. Apart from it he also left some jewellery described and detailed in the annexure to the written statement. Thus at the time of his death Mannilal left both movable assets as well as immovable property in the shop and the house in which the Plaintiff claimed half share. On the death of Mannilal, by mutual consent, whereas the Plaintiff took all the jewellery, cash and the stock-in-trade left by Mannilal along with the goodwill in premises No. 79/37 Bansmandi, Kanpur, the Defendant-Appellant was given exclusive ownership over the house in suit. Since then the Defendant-Appellant has been in exclusive occupation of the house in suit as the sole owner thereof and the Plaintiff has no right, title or interest therein. For the same reason, the Plaintiff is not entitled to claim accounting or any share in the rents realized by the Defendant from the tenants or occupying a portion of the house in suit. On the pleadings of the parties, the following issues were framed by the trial court:
1. Whether the parties'' father Mannilal alias Minnulal had left the property described in annexure A after his death? If so, its about?
2. Whether the tenancy in house No. 79/37 Bansmandi, Kanpur was surrendered by the Defendant under the mutual agreement as alleged in Para 14 of the written statement?
3. Whether a partition had taken place between the parties in 1955 as alleged in Para 10 and 11 of the written statement? If so, its effect?
4. Whether there has been complete ouster of the Plaintiff from house No. 107/273 Brahma Nagar, Kanpur?
5. Whether the Defendant has been in possession of the house in suit for more than 12 years exclusively to the knowledge of the Plaintiff?
6. Whether the Defendant has carried out repairs in the house in suit by spending Rs. 8,508/- as alleged in Para 13 of the written statement? If so, its effect?
7. Whether the suit is bad for partial partition?
8. Whether the Plaintiff is entitled to a decree of partition and separable possession of his half share in the house in suit?
9. Whether the Plaintiff is entitled to accounting the rentals of the house in suit from 01.04.1971 onwards and receive the amount found due to him in that behalf?
10. Whether the suit has been Under-valued and the court-fee paid is insufficient?
11. To what relief, if any, is the Plaintiff entitled?
4. It appears that on the date fixed for the hearing of the suit and evidence of the parties neither the Plaintiff nor the Defendant appeared. The court below, therefore, proceeded Under Order XVII, Rule 3 of the CPC and decreed the suit. Learned Counsel for the Appellant firmly maintained that the court below rightly proceeded under Order XVII, Rule 3. His contention, however, was that the Plaintiff having failed to adduce any evidence whatsoever in support of his case, his suit could not have been decreed as the burden to prove that the parties and their father ManniJal constituted a Joint Hindu Family in which on the death of Mannilal the Plaintiff acquired half share in the property in suit lay on the Plaintiff. He having failed to discharge that burden the suit should have been dismissed for partition.
5. Having heard learned Counsel for the parties I find no merit in the above contention. Whether Mannilal and his two sons constituted a Joint Hindu Family is in my opinion, not of much relevance. For it was not disputed by the Defendant in his written statement that the house in suit belonged exclusively and solely to Mannilal. If the house belonged exclusively to Mannilal at the time of his death, it is apparent that unless the Defendant proved that there was a partition between him and the Plaintiff as a result of which the house came exclusively to belong to the Defendant, the Plaintiff must be held to have inherited half share in the house as one of the two heirs left by Mannilal on his death.
6. The burden to prove the partition set up by the Defendant-Appellant in the written-statement unquestionably lay on him. If, therefore, the Defendant did not lead any evidence whatsoever in respect of the alleged partition between him and the Plaintiff the Plaintiff Respondent''s suit for partition was bound to succeed on the pleadings of the Defendant himself. I have examined the entire evidence on record and I find that there is no legal evidence at all which might support the theory of partition set up by the Defendant-Appellant. The court below was hence right in decreeing the suit for partition.
7. Learned Counsel for the Appellant next contended that even if we assume that the Plaintiff has half share in the house in suit in order to entitle him to a decree for partition it was necessary for the Plaintiff to lead evidence to show that he demanded partition of the house which the Appellant had declined. It was urged that in the absence of evidence to that effect the Plaintiff''s suit for partition should have been dismissed by the court below for want of cause of action in respect of such a relief.
8. I am unable to agree. In my opinion, in the absence of any prescribed mode in which a party may indicate his intention to sever his joint status vis-�-vis a property, such an intention can be expressed and we manifested from any set of circumstances which may indicate that intention. It may be manifested by serving an express notice or making a definite demand on the co-sharer intimating him that the giver of the notice desires to separate or it may be expressed in any other form from which such an intention may be inferred. Partition is a matter of personal volition and the law has placed no fetters on the right of a co-sharer to ask for partition of his share except as specifically provided by law such as Section 23 of the Hindu Succession Act which makes special provision respecting dwelling houses.
9. In Girijanandini Devi v. Bijendra Narain Chaudhary AIR 1967 SG 1124, their Lordships of the Supreme Court were considering the modes of effecting partition and observed thus in paragraph 7 of the judgment i "Partition may ordinarily be effected by institution of a suit, by submitting the dispute as to division of the properties to arbitrators by a demand for a share in the properties, or by conduct which evidences 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 unequivocal intention to sever the joint family status. Merely because the member of a family severs his relation, there is no presumption that there is severance between the other members; the question whether there is severance between other members is one of fact to be determined on a review of all the attendant circumstances
10. Mulla while commenting on the law as regards how a partition may be effected, has summed up the law in Article25 which states that the intention to separate may be evinced in different ways, either by explicit declaration or by conduct and that all that is necessary to constitute a partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. It has been further observed that partition is a matter of individual volition. Institution of a suit is one such mode from which the intention to separate can be inferred.
11. This being the legal position, on the admissions made by the Defendant in his written statement, the Plaintiff-Respondent became entitled to a decree for partition even if he did not enter the witness box and normally state that he did not desire to remain joint.
12. The Appellant''s counsel, however, tried to distinguish the above decision and Mulla''s statement of the law on the ground that the observations made therein pertained to a co-pecuniary only I cannot agree. I see no valid ground for not applying the principle enunciated above to a suit filed by a co-sharer for the partition of his share. Even in cases other than coparcenaries, institution of a suit should, on the same principle, constitute a valid circumstance for inferring that the Plaintiff desired party ion of his share.
13. The third submission of the learned Counsel for the Appellant was that in any case the court below was clearly wrong in granting a decree for rendition of accounts in the absence of any evidence adduced by the Plaintiff. The submission is correct and must be accepted. In order to entitle him to a decree for rendition of accounts it was necessary for the Plaintiff to prove that the Defendant did derive in fact some rental income of which he neither rendered any account nor paid Plaintiff''s share therein. These facts did not stand proved from the mere fact that the Defendant was a co-sharer. The Plaintiff was bound to prove these facts before he could claim a decree for accounting or a share in the rental income. Admittedly the Plaintiff led no evidence whatever. His suit for rendition of accounts hence could not have been validly decreed.
14. In the result, the appeal succeeds and is allowed in part. The decree passed by the court below is modified to the extent that its decree for partition of the Plaintiff''s half share in the house in suit as well as for delivery of actual possession thereof to the Plaintiff is affirmed. The rest of the decree passed by the court below is set aside and the Plaintiff-Respondent''s suit for reliefs other than partition and actual possession is dismissed. The parties shall, however, bear their costs both of the appeal as well as of the court below in proportion to their success and failure in the suit.
