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

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.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.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,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 withThe 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.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.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.

Reasoning: 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.