Case: Bhagwati Prasad Sah And Others Vs. Dulhin Rameshwari Juerand Another

Mukherjea, J.1. This appeal is directed against a judgment and decree of a Division Bench of the Patna High Court dated 2nd March 1949 by which the learned Judges reversed, on appeal, a decision of the Second Additional Subordinate Judge of Saran in Title Suit No. 24 of 1941.2. The controversy between the parties to the suit centres round only one question of fact viz., whether the plaintiffs father, who died in 1926, was joint with or separate from his nephew, defendant 1, at the time of his death. If he died separate it is not disputed that his properties would devolve by inheritance upon his widow and after the death of the widow would vest in his daughter, who is the plaintiff the suit. If, on the other hand, he died joint, his interest in the joint properties would pass by survivorship to defendant 1, who together with his male descendant constitute a joint Hindu family governed by the Mitakshara law.3. It may be convenient at the outset to give a brief resume of the material facts as they appear in the pleadings of the parties. Oue Sheo Narain Sah, who was the grandfather of the plaintiff as well as of defendant 1 had three sons; (1) Imrit, (2) Janki and (3) Ram Narain. Imrits branch is represented by defendant 11 and 12 in the suit, and they are his son and grandson respectively. Jankis only son is Ram Saran, defendant1. Defendants 2 to 4 are the sons of defendant 1 and defendant 5 to 10 are his minor grandson. Ram Narain died in 1926 leaving behind him his widow Sumitra and a daughter Rameshwari who is the plaintiff in the suit. Sumitra died in 1933 and the plaintiff claims to be the sole heir of Ram Narain after the death of her mother. According to the plaintiff, there was a complete separation between the three sons of Sheo Narain in food, estate and business nearly 65 years prior to the institution of the suit. After separation, Ram Narain and Ram Saran, defendant 1, did carry on a cloth shop jointly and dealt with the profits of this business together, as well as acquired properties in their joint names. But these properties and interests they could and did hold as tenants in common. Sumitra was a woman of weak intellect and after the death of Ram Narain, she was completely under the influence of defendant 1 and his sons. It is stated in the plaint that in the year 1926 defendant 11, who is the son of Imrit, instituted a suit at the instigation of defendant 1 and his sons in which he denied the separation of Imrit from the joint family and claimed the properties in possession of defendant 1 and his sons as the joint properties of the family. That suit, it is said, ended in a collusive compromise and Sumitra was made to file a collusive written statement in that suit as well as to depose falsely on commission to the effect that her husband died joint with defendant1. The plaintiff herself brought an earlier suit on much the same allegations as she has made now but that suit she had to withdraw because of some formal defects. The present suit was instituted on 20th December 1940 and the plaintiff prayed for recovery of possession of the properties specified in Schs. 1 to 4 in the plaint together with mesne profits both past and future.4. Defendants 11 and 12 did not appear or contest the suit. The suit was contested by defendants 1 to 4 who filed one joint written statement. Another written statement and that of a formal character was filed on behalf of the minor defendants by their pleader guardian appointed by the Court. The material thing stated in this written statement was that the natural guardians of the minors in spite of notices being given to them did not properly instruct the pleader guardian.5. The defence of defendants 1 to 4 in substance was that there was no separation between Ram Narain and defendant 1 as alleged in the plaint, but that after the death of Janki the father of defendant 1, Imrit alone separated himself from Ram Narain and defendant 1 when the latter was only five years old. Ram Narain and defendant 1 continued to remain joint as before and as Ram Narain died joint, defendant 1 got all the properties by right of survivorship. It was denied that Sumitra was influenced in any was by defendant 1 or his sons or that she was made to file collusive written statement in the suit instituted by defendant 11 or make a false statement in her deposition while giving evidence therein. Several other pleas were taken with which we are not concerned for our present purpose.6. The material issue framed in the suit was issue No. 6 and this was worded as follows: "Was there any separation between Ram Narain Sah., plaintiffs father, and defendant 1 as alleged ?" The trial Court on a consideration of the evidence adduced in this case decided this issue against the plaintiff and in that view dismissed the suit. There was an appeal taken to the Patna High Court against this decision by the plaintiff and the learned Judges of the High Court reversed the decision of the trial Judge and gave the plaintiff a decree in terms of the prayers made in the plaint. Defendant 1 died after the decision of the trial judge and his son and grandsons have now come up on appeal to this Court. The substantial contention raised by Mr. Bakshi Tek Chand, who appeared in support of the appeal, is that the decision arrived at by the High Court on the question of separation is not warranted by the evidence on the record.7. Before we discuss the evidence on the record, we desire to point out that on the admitted facts of this case neither party has any presumption on his side either as regards jointness or separation of the family. The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but, as it is admitted here, that Imrit, one of the coparceners, did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the plaintiffs side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief. These principles which have been laid down in several pronouncements of the Judicial Committee seem to us to be perfectly sound : vide Balkrishna v. Ram Krishna,58 Ind. App. 220 P. C. ;Palaniammal v. Muthu Venkatachala,52 Ind. App. 83,Balabux Ladhuram v. Rukhmabai,30 Ind. App. 180. Another thing to be noted in this connection is that it is not the case of the defendants made either in the pleading or in the evidence that even if there was a separation between the Ram Narain and Ram Saran at any anterior time they subsequently reunited. The controversy, therefore, narrows down to the short point as to whether at any time before the death of Ram Narain there was a separation between him and Ram Saran. If, as the plaintiff avers, there was a disruption of the joint status in regard to all the three brothers, it would really be immaterial if, subsequent to separation, Ram Narain and Ram Saran lived together in commensality or dealt with their properties in such manner as is ordinarily done by members of a joint Hindu family. Except in the case of reunion, which is not set up in the present case, the mere fact that separated coparceners choose to live together or act jointly for purposes of business or trade or in their dealing with properties, would not give them the status or coparceners under the Mitakshara law. It is the light of these principles that we propose to examine the evidence before us.8. Both the Courts below have discarded the oral evidence adduced by the parties as wholly unreliable and the learned counsel appearing for neither side has invited us to place any reliance on the same. We do not, therefore, think it necessary to refer to the oral evidence at all. His Lordship then adverted to documentary evidence and referred particularly to a registered mortgage bond executed by Imrit in favour of Ram Narain containing the following recital : "I, the executant, have been living separately and have been separate in mess from Ram Narain Sahu and Ram Saran Sahu my own nephew for a long time and at the time of separation all the movable and immovable properties were partitioned among all the three parties. Since separation, all business is carried on separately". A question was raised, however, as to whether this statement of Imrit could be legally admissible as evidence. Imrit is undoubtedly dead and Mr. Kunzru, appearing for the respondents, contended that this statement could be admitted in evidence under S. 32 (7), Evidence Act. We are not sure that S. 32 (7) is really of assistance to the respondents. The particular right, which is the subject-matter of dispute before us was certainly as serted in this transaction but not byit within the meaning of S. 13 (a). Evidence Act. We think, however, that the statements could be admitted under S. 32 (3), Evidence Act. The statements of a particular person that he is separated from a joint family, of which he was a coparcener, and that he has no further interest in the joint property or claim to any assets left by his father, would be statements made against the interest of such person, and, after such person is dead, they would be relevant under S. 32 (3), Evidence Act. The assertion that there was separation not only in respect of himself but between all the coparceners would be admissible as a connected matter and an integral part of the same statement vide Blackburn J, in Smith v. Blakey,(1867) 2 Q. B. 326. It is not merely the precise fact which is against interest that is admissible but all matters that are "involved in it and knit up with the statement". See Wigmore on Evidence, Art. 1465.9. We agree with the learned Judges of the High Court that Exs. 2, 2(a) and 2 (b) taken together afford most satisfactory evidence of there being a separation amongst all the sons of Sheo Narain and that they show further that the separation took place during Sheo Narains lifetime.This conclusion is fortified by the recitals in several other documents which were executed during this period. In fact, prior to 1905 there is no evidence of any transaction in which both Ram Narain and Ram Saran took part, or of any acquisition of property in their joint names. [After further considering the documentary evidence on record his Lordship concluded:] The result is that on the whole we are of the opinion that the view taken by the learned Judges of the High Court is correct and that there was in fact a separation of all the members of the family and not of Imrit alone during the lifetimes of Sheo Narain himself. As no case of reunion has been attempted to be made on behalf of the defendants, the facts that Ram Narain and Ram Saran lived in commensality, carried on business together and acquired properties in their joint names, or that their names were recorded as joint holders of properties in the settlement records might at best create a tenancy in common between them, but not a joint tenancy under the Mitakshara law which would attract the law of survivorship. Defendant 1, therefore, did not acquire any right by survivorship to the properties which were owned by Ram Narain and the plaintiff is entitled to succeed on this ground.10. We are unable, however, to affirm the decree in the form in which it has been made by the High Court in favour of the plaintiff. The plaintiff laid claim to the properties which are specified in Schs. I to IV of the plaint. In para. 21 of the written statement, it was expressly averred by the defendants that the list of properties and the valuation given at the foot of the plaint were incorrect. Some of the properties, it was said, were non-existent. Some debts had become time-barred and claims with regard to certain others had been dismissed. Then, there were properties owned jointly by Ram Narain and Ram Saran to the entirety of which no claim could be laid by the plaintiff. Upon this defence issue 7 was raised in the trial Court and it involved a consideration of the question as to what properties the plaintiff could claim to recover possession of even if she succeeded in establishing that her father died separate. The trial Court did not think it necessary to decide this issue, as it dismissed the plaintiffs suit altogether. The High Court, it is to be seen, has given a decree to the plaintiff in terms of her prayers in the plaint without considering this matter at all. It may be further pointed out that the plaintiff in her plaint claimed Rs. 6,600 as past mesne profits and there was a prayer for recovery of future mesne profits as well. What amount, if any the plaintiff would be entitled to recover as mesne profits and on what basis mesne profits should be calculated formed the subject-matter of issue 8 and that issue has also been left undecided by the High Court. In these circumstances, although we agree with the decision of the High Court that the plaintiffs father did die separate from defendant 1 and consequently the latter was not entitled to claim any property by right of survivorship, still for the determination of the properties with regard to which a decree for possession could be made and also for ascertainment of mesne profits, the case must be sent back to the High Court.11.

Decision:
1[ds]The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but, as it is admitted here, that Imrit, one of the coparceners, did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the plaintiffs side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claimsresult is that on the whole we are of the opinion that the view taken by the learned Judges of the High Court is correct and that there was in fact a separation of all the members of the family and not of Imrit alone during the lifetimes of Sheo Narain himself. As no case of reunion has been attempted to be made on behalf of the defendants, the facts that Ram Narain and Ram Saran lived in commensality, carried on business together and acquired properties in their joint names, or that their names were recorded as joint holders of properties in the settlement records might at best create a tenancy in common between them, but not a joint tenancy under the Mitakshara law which would attract the law of survivorship. Defendant 1, therefore, did not acquire any right by survivorship to the properties which were owned by Ram Narain and the plaintiff is entitled to succeed on this ground.10. We are unable, however, to affirm the decree in the form in which it has been made by the High Court in favour of the plaintiff. The plaintiff laid claim to the properties which are specified in Schs. I to IV of the plaint. In para. 21 of the written statement, it was expressly averred by the defendants that the list of properties and the valuation given at the foot of the plaint were incorrect. Some of the properties, it was said, were non-existent. Some debts had become time-barred and claims with regard to certain others had been dismissed. Then, there were properties owned jointly by Ram Narain and Ram Saran to the entirety of which no claim could be laid by the plaintiff. Upon this defence issue 7 was raised in the trial Court and it involved a consideration of the question as to what properties the plaintiff could claim to recover possession of even if she succeeded in establishing that her father died separate. The trial Court did not think it necessary to decide this issue, as it dismissed the plaintiffs suit altogether. The High Court, it is to be seen, has given a decree to the plaintiff in terms of her prayers in the plaint without considering this matter at all. It may be further pointed out that the plaintiff in her plaint claimed Rs. 6,600 as past mesne profits and there was a prayer for recovery of future mesne profits as well. What amount, if any the plaintiff would be entitled to recover as mesne profits and on what basis mesne profits should be calculated formed the subject-matter of issue 8 and that issue has also been left undecided by the High Court. In these circumstances, although we agree with the decision of the High Court that the plaintiffs father did die separate from defendant 1 and consequently the latter was not entitled to claim any property by right of survivorship, still for the determination of the properties with regard to which a decree for possession could be made and also for ascertainment of mesne profits, the case must be sent back to the High Court.