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

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 = appeal accepted, 0 = rejected): 1

Explanation:
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.