Case: Bhagwan Dayal Vs. Mst. Reoti Devi

2. To appreciate the facts and the contentions of the parties, the following relevant part of the genealogy will be useful.The date of death of Lachhman Prasad does not appear in the record. Jwala Prasad died in 1908; Kashi Ram, in 1924; Ram Lal, in 1914; Banwari Lal, in 1914; and Raghubar Dayal, in 1933. The ancestral house of the family was in village Naugaien, district Farrukhabad. The plaintiffs case is that Lachhman Prasad, his sons and descendants constituted a joint Hindu family, that there was never a partition in the family, that three of the members of the said family namely Kashi Ram, Raghubar Dayal and Bhagwan Dayal, jointly started a business at Agra, that they jointly acquired some properties and houses during the lifetime of Kashi Ram, some after his death, and others after the death of Raghubar Dayal, and that the said properties were the joint family properties of the said members, under the Hindu Law. His further case is that after the death of Kashi Ram, the business and the properties acquired during his lifetime devolved upon the plaintiff and Raghubar Dayal by survivorship, and that, after the death of Raghubar Dayal the said properties, along with the properties acquired during the lifetime of Raghubar Dayal passed on by survivorship exclusively to the plaintiff. The properties described in Schedule A are the ancestral properties; those described in Schedule B are the properties acquired jointly by the said three members during the lifetime of Kashi Ram; those described in Schedule C are properties acquired by Raghubar Dayal and the plaintiff after the death of Kashi Ram; and the D Schedule properties are those acquired by the plaintiff after the death of Raghubar Dayal.3. Alternatively, it is alleged that, even on the assumption that there was a partition in the family of Lachhman Prasad, a reunion should be inferred from the conduct of the said three members during the lifetime of Kashi Ram and thereafter. It is further alleged that the defendant, the widow of Raghubar Dayal, filed suits in the Revenue Court under the provisions of the U. P. Tenancy Act for half a share in the income of mauza Chaoli, Chak Soyam Nagla Kasheroo and mauza Chak Chaharam Talab Firoz Khan, that the said Revenue Court framed an issue raising the question of title to the said properties and sent the same for decision to the Civil Court, as it should do under the provisions of the said Act, that the learned District Munsif held in Suit No. 15 of 1939, a suit filed in respect of mauza Chaoli, that the plaintiff therein had title to a half share in the said village, that the Revenue Court, on the basis of the said finding, gave a decree in her favour in respect of half a share of the income of the said village and that the said decree was taken on appeal to the District Court and also, on further appeal, to the High Court, but without success, i.e., the decree of the District Munsif was confirmed, and that the suits in respect of other villages are still pending. The plaintiff (appellant herein) says that the said finding of the Revenue Court does not operate as res judicata in the present suit, and that he is entitled to reagitate the matter. On those allegations the present suit was filed in the court of the Civil Judge, Agra, for a declaration of the plaintiffs title to the properties described in Schedules B, C and D annexed to the plaint and for a permanent injunction restraining the defendant from executing the decree in Suit No. 15 of 1939.4. The defendant (respondent herein) in heralleges that the family of Lachhman Prasad was divided, that Kashi Ram started a business in Agra only with the aid of hisand purchased properties out of the income derived therefrom, that after the death of Jwala Prasad the two brothers, Raghubar Dayal and Bhagwan Dayal (plaintiff), got his properties under a will executed by him, that they jointly acquired further properties from and out of the income of the business started by Jwala Prasad, and that after the death of Raghubar Dayal the defendant succeeded to the interest of Raghubar Dayal and that, therefore, she was entitled to an equal share in B, C and D Schedule properties along with the plaintiff. She further pleads that the decision of the Revenue Court in Suit No. 15 of 1939, holding that the brothers were not members of a joint family and that, therefore, she succeeded to the interests of her husband, Raghubar Dayal, in the joint properties, operated as res judicata in respect of the plaintiffs entire claim.5. The suit was tried by the Civil Judge, Agra, and the learned Judge gave the following findings:(1) the judgment and decree of the Revenue Court in Suit No. 15 of 1939 operated as res judicata on the question of title of the defendant only in respect of the half share claimed by her in mauza Chaoli; (2) there was a partition of the larger family, and that Kashi Ram, Raghubar Dayal and Bhagwan Dayal were the divided members of the said joint family; (3) there was no reunion between the said members; (4) Kashi Ram had validly bequeathed his properties under a will to his two nephews; and (5) there was a reunion between Raghubar Dayal and Bhagwan Dayal and, therefore, on the death of Raghubar Dayal, Bhagwan Dayal acquired his interest in the plaint schedule properties by survivorship. On the said findings the Civil Judge declared the plaintiffs absolute title to the properties described in Schedule B, C and D, except in regard to a half share in mauza Chaoli. The defendant preferred an appeal against that decree to the High Court; and the plaintiff preferredin respect of his claim disallowed by the Civil Judge. The appeal was heard by a division bench of that Court consisting of Agarwala and Gurtu, JJ. The two learned Judges gave different findings but came to the same conclusion in holding against the plaintiff.6. Briefly stated, the findings of Agarwala, J., are as follows: (1) The evidence on the record is not sufficient to establish partition in the family. (2) Though as a matter of law two or more members of a larger Hindu family not belonging to the same branch can form a smaller joint family and acquire properties with all the attributes of a joint Hindu family property, in the instant case the evidence does not establish that Kashi Ram, Raghubar Dayal and Bhagwan Dayal constituted such a unit and acquired the properties; the properties were theproperties of Kashi Ram, but were bequeathed by him in equal shares to Raghubar Dayal and Bhagwan Dayal, and after his death they held those properties and those acquired subsequently only asand not as members of a joint Hindu family. (3) The finding of the Revenue Court in Suit No. 15 of 1939 does not operate as res judicata in respect of any properties in the suit. In the result, the learned Judge held that the properties described in Schedules B, C and D were owned by the plaintiff and the defendant in equal shares.7. Gurtu, J., gave the following findings; (1) There was a separation between Kashi Ram and Jwala Prasad and also between the sons of Jwala Prasad. (2) Two brothers out of four and an uncle cannot in law form a distinct corporate family with the incidents of a joint family and acquire properties for that unit. (3) Kashi Ram could never reunite with his nephews as a matter of law because Kashi Ram had separated from Jwala Prasad when Raghubar Dayal and Bhagwan Dayal were not even born; nor did he unite with them as a matter of fact. (4) The judgment of the Revenue Court in regard to the question of title would operate as res judicata in respect of the plaintiffs entire claim to the estate of Raghubar Dayal. And 5. the plaintiff and Raghubar Dayal held the properties only asThe learned Judge, though for different reasons, agreed with the conclusion arrived at by Agarwala, J. In the result, the High Court allowed the appeal filed by the defendant and dismissed thefiled by the plaintiff: the suit of the plaintiff was dismissed with costs throughout. Hence the present appeal.

Reasoning:
The present suit is for a declaration of the plaintiffs title to the plaint schedule properties and for an injunction restraining the execution of the decree obtained by the defendant in the Revenue Court. Theplaintiff claims title to the suit properties on the ground that he was a member of a joint Hindu family along with his deceased brother and therefore, he succeeded to his share by right ofsaid Schedule does not provide for any suit by a person claiming to be the proprietor of a property and in possession thereof praying for a declaration of his title and for an injunction against another who is trying to interfere with his title. If so, under S. 230 of the Act, the Revenue Court has no exclusive jurisdiction to entertain a suit of the nature that is before us. If it is not a suit of that nature, under that section the civil courts jurisdiction is notagree with the said observations. On the same analogy, the present suit was not within the exclusive jurisdiction of the revenue court and, therefore, the suit in the civil court was maintainable. If so, S. 11 of the Code of Civil Procedure is immediately attracted to the present suit.In this view, it is not necessary to consider the differences between the scope of the principle of res judicata covered by S. 11 of the Code of Civil Procedure and that of the principle of res judicata dehors the said section. Nor is it necessary to express our view on the question whether the decision on the question of title in the previous suit was that of a revenue court or of a civil court. We, therefore, reject the plea of res judicata.The general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct. It is also settled that there is no presumption that when one member separates from others that the latter retrain united; whether the latter remain united or not must be decided on the facts of each case. To these it may be added that in the case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the transactions have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable inferences than in a case where the evidence is not obliterated by passage of time.There is no evidence to show when Lachhman Prasad died; but it is not disputed that Kashi Ram left the ancestral home long ago and had joined military services at Gwalior and thereafter police service in or about 1895. He gave up the service and came to Agra and started a business with his savings. There is nothing on the record, except the assertion made by Bhagwan Dayal in his deposition, to show that Kashi Ram as manager either received the entire income from the ancestral property or paid any taxes in respect thereof. Raghubar Dayal says that rent of the said holdings was entirely in the accounts maintained by Kashi Ram; but they were not produced. Kashi Ram executed a will on September 13, 1919. Under that will he gave the entire properties to his two nephews, and it cannot be suggested that it was executed to defraud any person. There is a faint suggestion that the said will was executed to bar the claim of his daughter. In that document he does not say that he was a member of a joint Hindu family. The assertion that he was a member of a joint Hindu family would have barred the claims of his daughter more effectively if that was his intention in executing the document. Be it as it may, the will, which, in our view, was an honest attempt on the part of the testator to give his properties to his nephews, does not contain any assertion that he was a member of a joint Hindu family. A number of documents were executed by or in his favour during his lifetime, but in none of the documents there is a recital that he was a member of a joint Hindu family. This consistent conduct also indicates that Kashi Ram never considered himself to be a member of any undivided Hinduis nothing on record to show that these two brothers alone separated from the main family before 1914. The concession that they were separate members supports, to a large extent, the theory that there must have been a partition in the largerthe whole, on a consideration of the material placed before us, we cannot say that the finding given by the learned Civil Judge and accepted by Gurtu, J., is not supported by evidence. We accept the saidprinciple also is unexceptionable. But the facts of that case are entirely different from those in the present case, and the conclusion arrived at by the learned Judges cannot help us in arriving at a finding in the instantplaintiffs case is that there was no partition of the larger family at all; and on that case no question of reunion arises. Further, he does not say that a reunion has taken place by agreement; but he asks the Court to hold that there was a reunion on the ground that the conduct of the parties. amounted to a reunion.The plea, to say the least, indicates that the plaintiff himself is not clear of his case.25. The next circumstance is that neither Kashi Ram nor Raghubar Dayal and Bhagwan Dayal bring in any joint family property either to start the business or to make joint acquisitions. On the other hand, the entire capital for the business was furnished by Kashi Ram; and, under those circumstances, it is not likely that there would have been any conscious act of reunion between the members of the divided family.26. Further, the business was started in 1885, and it is in evidence that Raghubar Dayal joined Kashi Ram in the said business in 1889 and Bhagwan Dayal between 1893 and 1902. Raghubar Dayal in his evidence says that when he came to Agra, he was about 8 or 9 years old. If so, it follows that there could not have been any reunion before he attained majority. In Revenue Appeal No. 65 of 1941, it was not disputed that Raghubar Dayal was also a minor when Kashi Ram started his business. It is not clear from the record when Raghubar Dayal became major. He could not have reunited with Kashi Ram before he attainedthese circumstances, this document deserves the greatest credence and the recitals must be accepted as true. The. recitals show that Kashi Ram at any rate treated all his properties as hisand Raghubar Dayal and Bhagwan Dayal accepted thatappears that the adopted son died soon after the adoption and Kashi Ram, who was 80 years old , executed, a will bequeathing his properties to his two nephews. He asserts in the document that all his properties are hises thereunder the circumstances under which he brought up his nephews and says that both of them areing business. He gives all his properties in equal shares to them. This document is destructive of the plaintiffs case. It is not, and cannot be suggested that this document was executed to defraud third parties. It is faintly suggested that the document was executed to stifle any claim that the daughter of Kashi Ram might prefer to his properties on his death. Such a contemplated claim could have been more effectively prevented by asserting that the properties were joint family properties; but in the document the testator asserts that they are hisand directs that his two nephews shall take the properties jointly under the said will. It is not necessary to consider whether this will would operate upon the shares of the two nephews in the properties jointly acquired by all the three of them. But the recitals are decisive of the question that Kashi Ram was not a member of a joint Hindu Family and the parties never considered themselves as members of a joint Hindudocument does not describe Raghubar Dayal as manager of the joint family or that the brothers are members of a joint Hindu family. So too, in Ex. 72 a similar recital is found. The recitals in the other sale deeds also follow the same line. Strong reliance is placed upon the proceedings of certain suits, which are marked as Exs. 43, 44 and 14. Ex. 43 is a copy of the plaint in Suit No.311 of 1927 filed by Raghubar Dayal and Bhagwan Dayal against one Khushali.13, the decree passed in the aforesaid suit, shows that the suit was decreed ex parte. Ex. 44 is a copy of another plaint in Suit No. 306 of 1929 filed by the two brothers against another debtor. In the plaint it is stated that Kashi Ram is dead and that the plaintiffs are his surviving heirs. Ex. 14 is the decree made therein. The recitals in Ex. 44 are ambiguous; but the recital in Ex. 43 clearly says that the brothers are the surviving coparceners of the joint family. The suits were filed for small amounts. It is obvious that those allegations were made to avoid the necessity of producing succession certificates. As a matter of fact the two brothers got the properties under a will, and in the circumstances the attitude of the brothers in the suits can easily be understood and reasonably be attributed to their anxiety to save same money by avoiding the necessity to get succession certificates.31. The next series of documents relate to the period between 1933 and 1939, that is, from the year of the death of Raghubar Dayal to the year when disputes arose between the plaintiff and the defendant. During this period there were 5 sale deeds in favour of Raghubar Dayal. The first of them is Ex. 89 dated May 23, 1933 and the last is Ex. 88 dated June 20, 1936. There is no recital in Ex. 89 to indicate the status of Bhagwan Dayal. The document shows that one of theis Ajudhia Prasad, son of Ram Lal, one of the brothers of Bhagwan Dayal. It is not suggested, and indeed it is not the case of the appellant, that he was a member of a joint Hindu family along with Ajudhia Prasad. It may have been that Bhagwan Dayal had taken Ajudhia Prasad as partner in the business, and that is consistent with the case of the defendant. Ex. 88 also does not give any indication that Bhagwm Dayal was a member of the joint family along with his uncle, and thereafter with his brother. Ex. 83 is a sale deed whereunder Bhagwan Dayal exchanged a property purchased by him along with his brother for another property owned by a third party. There is no assertion in this document that the property was the joint family property of the brothers; nor is there any evidence to indicate that the widow of Raghubar Dayal had knowledge of the same. Bhagwan Dayal also executed certain sale deeds, the first of them dated April 9, 1934, and the last of them dated April 3, 1942, i.e., after the filing of the suit. Ex. 80 is a sale deed, in which for the first time we find the, recital that the executant and Raghubar Dayal lived together jointly and the entire business was carried on jointly in the name of both of them and that after Raghubar Dayals death the executant had been the manager, karta and mukhia of his joint family up to that time. There is nothing to show that the defendant had knowledge of this document. That apart, the recital that Bhagwan Dayal was the manager of his joint family in 1934 may not be inaccurate, for he was living jointly with his sons. In any view, this recital, appearing for the first time after about 50 years and made behind the back of the defendant, would only be at is suggested by the respondent that the said description is a mistake. But assuming it to be correct, it only shows that they were doing business jointly as a firm. Ex. 36 is a delivery receipt of the property covered by the sale certificate, Ex. 35. This only shows that Bhagwan Dayal took delivery of the property purchased on behalf of the firm, Ex. 84 is a sale deed executed by one Raja Ram in favour of Raghubar Dayal and Bhagwan Dayal. This property, though purchased by both the brothers, was subsequently given in exchange by Bhagwan Dayal alone to Raja Ram for another. These statements only show that the two brothers had a joint mess and that a property purchased by both of them was disposed of by Bhagwan Dayal subsequent to the death of Raghubar Dayal. There is nothing to show that the widow had knowledge of it.From the aforesaid evidence the following facts emerge: In 1885 Kashi Ram started a business at Agra from and out of hisHe brought his nephews at different points of time and allowed them to take part in the business. It may also be that he had taken them as partners in the business and also purchased the properties in their joint names, but there is not a single document during his lifetime wherein Kashi Ram either admitted that he was a member of a joint family along with his nephews or the nephews asserted any joint status along with him. Indeed, on the two occasions when it became necessary to set up his claims, that is, when he executed the adoption deed and the will, Kashi Ram clearly stated that all his properties were hisThe documents that came into existence after the death of Kashi Ram also do not contain any allegations that the brothers were members of a joint Hindu family during Kashi Rams lifetime or that they were members of a joint family after his death. The selfserving statements made by Bhagwan Dayal after the death of his brother, Raghubar Dayal, in 1933 were made to enable him to file suits without obtaining succession certificates. The alleged statements made by the widow of Raghubar Dayal have no evidentiary value, for she was admittedly under the control of the plaintiff and even the alleged admissions were ambiguous. On the other hand, the respondent, soon after the death of her husband, got her name mutated in respect of her husbands share in the properties; and this conduct is an unambiguous piece of evidence which indicates the consciousness on the part of the plaintiff that the defendants husband was not a member of the joint family along with his brother or uncle. The fact that the brothers and the uncle lived together and did business together is consistent with their relationship of uncle and nephew, and the fact that they purchased or sold properties jointly is also consistent with their being mere partners orThe recitals in some of the documents describing the nephews asalso show that were treated only asambiguity there may be, the adoption deed, the will and the mutation of the name of the widow in place of her husband in the revenue records dispel it. From this conduct, spreading over about 50 years, it is not possible to hold that the uncle and the nephews consciously entered into an agreement to reunite and become members of a joint Hindu family.37. This finding is enough to dispose of the appeal. But, as the evidence on the question of partition of the family is not as satisfactory as it should be, we propose to consider the alternative contention put forward by theabove passages clearly lay down the principle behind the rule. Hindu law recognizes only the entire joint family or one or more branches of that family as a corporate unit or units and that the property acquired by that unit in the manner recognized by law would be considered as joint family property. But in the case of two or more members of a joint Hindu family belonging to different branches or even to the same branch, they do, not acquire the property as a corporate unit or for the corporate unit and, therefore, they are only governed by the terms of the contract, express or implied, whereunder they have acquired the property.Nor does the decision in Sham Narain v. Court of Wards, 20 Suth WR 197 afford any real assistance to the appellant. There, two Hindu brothers, who held ancestral estate in common with a third brother, acquired other property jointly; the learned Judges held, on the evidence, that the property was held by the two brothers as members of a joint Hindu family. The learned Judges held that the principle of blending of a separate property with the joint family property and the principle of acquisition of property by united members of a divided family would equally apply to an acquisition of property by two of three brothers of a joint Hindu family. Bhashyam Ayyangar, J., in ILR 25 Mad 149 criticised that judgment and observed that he should have no hesitation in dissenting from the said decision. The learned Judges missed the real point, namely, that some members of different branches of a joint Hindu family cannot form a corporate unit. In our view, that decision is wrong and must belegal position may be stated thus: Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent express or implied of the members of the family, any other member or members can on business or acquire property, subject to the limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. The identity of the members of the family is not completely lost in the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or theirand succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family; for Hindu law does not recognize some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said property would be subject to the terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the right of survivorship is unknown to Hindu law except in regard to cases specially recognized by it. In the present case, the uncle and the two nephews did not belong to the same branch. The acquisition made by them jointly could not be impressed with the incidents of joint family property. They can only bes, with the result that their properties passed by inheritence and not by survivorship.