dedol-hf/india-case-legal-rag huggingface dataset:
fact  which is against interest that is admissible  but  all
matters that are "involved in it and knit up with the state-
ment."
    The  expression "joint family" is used in legal as  well
as  in a loose sense.  The fact that the said expression  is
used in
604
describing a family in a document does not therefore  neces-
sarily  lead  to the inference that the family  is  a  joint
Hindu family with all its legal incidents.
JUDGMENT:
CIVIL APPELLATE JURIDICTION. Civil Appeal No. 83 of 1950
appeal   from the Judgment and Decree dated the  2nd  March,
1948, of the High Court of Judicature at Patna (Manohar Lal
and Ray, JJ.) in Appeal from Original Decree No. 60 of  1944
arising out of the Judgment and Decree dated the 22nd Decem-
ber,  1943,  of the Court of the First Sub-Judge  of  Saran,
Chapra, in Title Suit No. 24 of 1941.
    Bakshi  Tek Chand (Ramanugrah Prasad, with him) for  the
appellants.
Gopinath  Kunzru (D. K. Saran, with him) for  Respondent
No. 1.
    1951. May 7.  The judgment of the Court was delivered by
    MUKHERJEA J.--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  plain-
tiff's father, who died in 1926, was joint with or  separate
from  his  nephew, the defendant No. 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 in the suit.  If, on the other hand, he
died joint, his interest in the joint properties would  pass
by  survivorship to defendant No. 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
605
pleadings of the parties.  One Sheo Narain Sah, who was  the
grandfather  of the plaintiff as well as of defendant No.  1
had  three  sons: (1) Imrit, (2) Janki and (3)  Ram  Narain.
Imrit's branch is represented by defendants 11 and 12 in the
suit,  and  they  are his  son  and  grandson  respectively.
Janki's only son is Ram Saran, the defendant No. 1.  Defend-
ants  2 to 4 are the sons of defendant No. 1 and  defendants
to  10  are his minor grandsons.  Ram Narain  died  in  1926
leaving behind  him his  widow Sumitra and a daughter Ramsa-
wari 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, the defendant No. 1, did carry  on  a
cloth shop jointly and dealt with the profits of this  busi-
ness 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  com-
pletely under the influence of defendant No. 1 and his sons.
It is stated in the plaint that in the year 1928 the defend-
ant  No. 11, who is the son of Imrit, instituted a  suit  at
the institution of defendant No. 1 and his sons in which  he
denied  the  separation of Imrit from the joint  family  and
claimed the properties in possession of defendant No. 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 defendant No. 1. The  plaintiff
herself brought an earlier suit on much the same allegations
as  she has made now but that suit she had to  withdraw  be-
cause  of some formal defects.  The present suit was  insti-
tuted  on 20th of December, 1940, and the  plaintiff  prayed
for  recovery of possession of the properties  specified  in
Schedules I
78
606
to  IV 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  state-
ment  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 state-
ment  was that the natural guardians of the minors in  spite
of notices being given to them did not properly instruct the
pleader guardian.
    The  defence of defendants 1 to 4 in substance was  that
there was no separation between Ram Narain and defendant No.
1  as  alleged in the plaint, but that after  the  death  of
Janki, the father of defendant No. 1, Imrit alone  separated
himself  from  Ram Narain and the defendant No. 1  when  the
latter was only five years old. Ram Narain and defendant No.
1 continued to remain joint as before and as Ram Narain died
joint,  the defendant No. 1 got all the properties by  right
of survivorship.  It was denied that Sumitra was  influenced
in  any way by defendant No. 1 or his sons or that  she  was
made  to  file  a collusive written statement  in  the  suit
instituted by defendant No. 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, plain-
tiff's father, and defendant No. 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
  607
a  decree  in terms of the prayers made in the  plaint.  The
defendant No. 1 died after the decision of the trial  Judge,
and  his  sons and grandsons have now come up on  appeal  to
this  Court.   The  substantial. contention  raised  by  Mr.
Bakhshi Tek Chand, who appeared in support of the appeal, is
that the decision arrived at by the High Court on the  ques-
tion  of separation is not warranted by the evidence on  the
record.
    Before we discuss the evidence on the record, we  desire
to  point out that on the admitted facts of this case   nei-
ther   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 where  it  is
admitted  that 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  contin-
ued to be joint.  There is no presumption on the other  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  prin-
ciples  which have been laid down in several  pronouncements
of the Judicial Committee seem to us to be perfectly  sound:
(vide  Bal  Krishna  v. Ram Krishna(1)  and  Palaniammal  v.
Muthuvenkatachala(2)  and Balabux Ladhuram v.  Rukhmabai(3).
Another  thing to be noted in this connection is that it  is
not the case of the defendants made either in the  pleadings
or  in  the  evidence that even if there  was  a  separation
between Ram Narain and Ram
 (1) L.R. 58 I.A. 220.         (3) L.R. 30 I.A. 130.
 (2) L.R. 52 I.A 83.
608
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 which is not set up in the  present
case.  Except  in the case of reunion, the  mere  fact  that
separated coparceners chose to live together or act  jointly
for purposes of business or trade or in their dealings  with
properties,  would not give them the status  of  coparceners
under  the Mitakshara law. It in the light of these  princi-
ples that we propose to examine the evidence before us.
     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.
     As  regards documentary evidence, it must  be  admitted
that there is no deed of partition in the present case,  nor
is there in existence any document to which all the  members
of  the family were parties and which proceeds on the  basis
of  any  admitted  partition. Imrit's  separation  from  the
family  is of course an admitted fact but there is  no  evi-
dence  even on the side of the defendants to show when  this
separation  took place.  The defendant No. 1 in his  deposi-
tion in a Money Suit, to which he was a party, stated in the
year  1942 that his age was 81 at that time.  If this  is  a
correct  statement, Ram Saran must have been born some  time
in  1861 and Imrit's separation may be dated near about  the
year 1866.
      The  earliest document that we have on the  record  is
Ex. 2 dated the 30th of September, 1879.  This is a
  609
mortgage  bond  executed by Imrit in favour of  Ram  Narain.
There  is no recital of separation in the  document  itself,
but the statement of boundaries of the mortgaged  properties
shows  clearly  that Ram Narain's share was  separated  from
that of Imrit. The mortgaged properties were two houses, one
of which was situated at Dahiawan and the northern  boundary
of  this  house is stated to be "house of Ram  Narain  Sahu,
puttidar  of me, the executant, partitioned''.   This  shows
that there was a partition between Imrit and Ram Narain  and
Ram Narain had a separate house of his own. It is not stated
in  this document that this house was the joint property  of
Ram Narain and Ram Saran. Exhibit 2 (a) is another  mortgage
bond  between Imrit and Ram Narain and is dated the 21st  of
March, 1885, and here the northern boundary of the mortgaged
property  is  stated to be the "Bakasht land  of  Ram  Saran
Sahu,  puttidar  of me, the executant."  This  is  a  strong
piece  of  evidence in favour of the  plaintiff  and  taking
Exhibits  2 and 2 (a) together, it can legitimately  be  in-
ferred  that Ram Saran was also separate and he had  certain
bakasht  lands allotted to him in his share. The  matter  is
practically  clinched  by the recital  of  another  document
which is Exhibit 2 (b) and which is also a registered  mort-
gage  bond  executed by Imrit in favour of Ram  Narain.  The
date of the instrument is 8th of November, 1898.  There is a
recital in the document to the following effect :--
    "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  sepa-
ration all the movable and immovable properties were  parti-
tioned  among all the three parties.  Since separation,  all
business is carried on separately."
    The document further recites that Sheo Narain Sahu,  the
father,  was  a party to this partition and he was  given  a
house for his residence and Rs. 1,100 in cash for trade  and
maintenance  and that after his death these properties  were
also  divided  amongst the three sons.  It  is  stated  that
Imrit received a sum of
610
Rs.  334-7-9  as  his share of the cash money  left  by  his
father  and this money he paid to Ram Narain in part  satis-
faction of his debt.  Then again, in the description of  the
mortgaged  property  given  in the  schedule,  the  northern
boundary is stated to be "House of Ram Saran Sahu nephew  of
me, the executant."
    There  is no reason to doubt the truth of  these  state-
ments  which  were made in an old document long  before  any
dispute  arose between the parties in regard to  these  mat-
ters.   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 section 32 (7) of the Indian Evidence Act.
We are not sure that section 32 (7) is really of  assistance
to  the  respondents.  The particular right,  which  is  the
subject-matter of dispute before us, was certainly  asserted
in  this  transaction but not by it within  the  meaning  of
section 13 (a) of the Evidence Act.  We think, however, that
the statements could be admitted under section 32 (3)of  the
Evidence Act. The statements of a particular person that  he
is  separated from a joint family, of which he was a  copar-
cener,  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  per-
son, and, after such person is dead, they would be  relevant
under section 32(3) of the Evidence Act. The assertion  that
there  was  separation not only in respect  of  himself  but
between  all the coparceners would be admissible as  a  con-
nected  matter  and an integral part of the  same  statement
(Vide Blackburn J. in Smith v. Blakey(1).  It is not  merely
the precise fact which is against interest that is  admissi-
ble  but  all matters that are "involved in it and  knit  up
with the statement." See Wigmore on Evidence, Art. 1465.
      We  agree  with the learned Judges of the  High  Court
that  Exhibits 2, 2(a) and 2(b) taken together  afford  most
satisfactory  evidence  of there being a separation
(1)   L.R. 2 Q.B. 326.
611
amongst  all  the  sons of Sheo Narain and  that  they  show
further that the separation took place during Sheo  Narain's
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.
    It  seems  that on the very day that Exhibit 2  (b)  was
executed  there was another mortgage bond executed by  Imrit
in favour of Ram Saran and though that document has not been
produced,  the transaction is recited in a  later  document,
namely, Exhibit C (9), where it is expressly stated that the
money  was  taken by Imrit on the strength of  the  mortgage
bond from out of the funds of Ram Saran. Exhibit C (5) is  a
deed  of  sale  dated 14th of February, 1880,  and  by  this
instrument  one Welayat Mian sold a house to Ram Narain  and
the  document  stands in the name of Ram Narain  alone.   On
behalf  of the appellants, it is contended that  this  house
was treated as the joint property of both Ram Narain and Ram
Saran as would be evident from a Kobala Exhibit C(7) execut-
ed on 23rd of May, 1925, by both of them together in  favour
of  one  Dulhin Ram Kuer.  It is said  that  this  identical
property was the subject-matter of the subsequent sale deed.
We  have  compared  the boundaries and  description  of  the
properties  given in the two documents and we are unable  to
hold  that they relate to the same property.   The  property
dealt  by  Exhibit C(7) is situated in Mahalla  Karim  Chak,
while  that sold by Welayat Mian was situated  in  Dahiawan.
The boundaries on the three sides are also quite  different.
Exhibit  C(8)  is  another sale deed  executed  during  this
period.  It  is dated 13th of December, 1898,  and  in  this
document  also Ram Narain figures as the sole  purchaser  of
certain  property from Ram Singari Singh. Here again, it  is
the  appellants case that this property was shown to be  the
joint  property  of Ram Narain and Ram Saran in  the  Survey
Khatian.   We do not think that this contention can  be  ac-
cepted as correct.
612
The  property  that is recorded in Khatian No.  233  in  the
joint names of Ram Narain and Ram Saran is situated in mouza
Putbari  Telpa,  while the property that is  dealt  with  by
Exhibit  C(8) is in Telpa Buzurg. Moreover, the area of  the
property  in Exhibit C(8) is only 6 cottas 8  dhoors,  while
that in the settlement  record is more than one bigha. Thus,
all the earlier documents support the inference which may be
drawn from Exhibits 2, 2(a) and 2(b) that all the three sons
of  Sheo Natgin separated from each other, though it is  not
possible  to fix the precise time at which such   separation
took place.
   From 1905 onwards we come to another series of  documents
upon  which considerable stress was laid by the  Subordinate
Judge  in  support of his decision that Ram Narain  and  Ram
Saran remained joint throughout.  It is perfectly true  that
for  a  period of nearly 20 years from this  date,  we  find
quite  a number of transactions in which Ram Narain and  Ram
Saran  jointly  took  part and in some of  which  they  were
described  as members of a joint Hindu family. In our  opin-
ion,  the  High Court is right in holding that  during  this
period the cloth and money-lending business that was carried
on  jointly  by Ram Narain and Ram Saran probably  became  a
flourishing  concern.  Ram Narain had no son of his own  and
Ram  Saran  being an orphan, the uncle and the  nephew  were
drawn  very  much closer to each other and  to  all  outward
appearances  they  conducted themselves like  members  of  a
joint  family,  of which the uncle would  naturally  be  the
head.  It was natural also that properties, which  were  ac-
quired  out of the profits of the joint business,  would  be
acquired  in the names of both and in suits and other  legal
proceedings  they would figure as joint parties.  The  ques-
tion however is whether from these documents it is  possible
to infer that Ram Natgin and Ram Saran were joint all  along
and are they sufficient to destroy the inference of  separa-
tion  that can legitimately be drawn from the earlier  docu-
ments  referred  to above ? Exhibit E is  a  Zarpeshgi  deed
executed  by the sons of Imrit favour of Ram Narain and  Ram
Saran
613
jointly. The consideration for this lease was the money  due
to  them  under the mortgages executed separately  in  their
favour on 8th of November, 1895. One of these mortgages,  as
we  have  pointed out already, is Exhibit 2 (b),  while  the
existence of the other is recited in Exhibit C(9).  Although
in  Exhibit 2(b) it was stated that all the  three  brothers
were  separated, it was stated in Exhibit E that Ram  Narain
and  Ram Saran were living jointly and that  their  business
was joint.  We do not think that the statement in Exhibit  E
contradicts  the recital of Exhibit 2(b).  There might  have
been complete separation between the two brothers and yet it
is  quite possible that afterwards, when Ram Narain and  Ram
Saran  began to carry on business together, they lived  like
members of a joint Hindu family. Exhibit C(3) is a sale deed
dated  9th of July, 1909, executed by Bibi Bechan in  favour
of Ram Narain and Ram Saran. It is somewhat surprising  that
the  vendor,  who was a complete stranger, recites  in  this
document  that the purchasers are related to each  other  as
uncle and nephew and form members of a joint family.  Exhib-
it  C(4)  is another sale deed dated the 7th of  May,  1913,
executed by one Kishun Chand and Gopi Chand in favour of Ram
Narain  alone. Ram Saran does not figure as a  purchaser  in
this  document. It is argued by the learned counsel for  the
appellants that this land was recorded in the joint names of
both Ram Narain and Ram Saran in the Survey Khatian, but the
description of the land as given in the sale deed is totally
different from what appears in the Khatian. There is  marked
difference  both  as regards the area as well as  the  Touzi
number.  In Exhibit C(2), which is a sale deed  executed  by
Mustafa  Hussain  on  20th April, 1922, in  favour   of  Ram
Narain and Ram Saran, the purchasers are mentioned as  joint
Zarpeshgidars of the executant of the deed, but there is  no
description of them as members of a joint family. Similarly,
in  Exhibit C(h), which is the sale deed dated the  24th  of
July, 1922, Ram Narain and Ram Saran were described as joint
creditors  of the vendor The only other sale  deed  executed
during the
79
614
lifetime of Ram Narain is Ex. C (1). This was also a deed of
sale in favour of both Ram Narain and Ram Saran, though they
are not described as members of a joint family.
    In our opinion, a proper consideration of all these sale
deeds does not necessarily lead to the conclusion that there
was no original separation between Ram Narain and Ram Saran,
as alleged by the plaintiff and proved by the earlier  docu-
ments.  There is no doubt that Ram Narain and Ram Saran  did
carry  on  a cloth and money-lending business  jointly.  The
vendors in the above sale deeds had borrowed money from this
jointmoneylending  concern  and the  consideration  for  the
sales  in the majority of instances were  unsatisfied  debts
due by these persons.  It was quite natural, therefore, that
these  properties should be purchased in the names  of  both
Ram Narain and Ram Saran jointly. Except in Ex. C (3), there
is  no  recital  in any of these documents  that  they  were
members  of a joint Hindu family and even if there  was  any
such  recital, there would have been nothing unusual in  it,
having  regard  to  the way in which  they  conducted  their
affairs, both in and outside the family.
    The learned counsel for the appellants laid considerable
emphasis however upon the statements of Ram Narain and  also
of  Sumitra  after the death of Ram Narain in  a  number  of
plaints  and depositions where it was expressly stated  that
Ram  Narain and Ram Saran constituted a joint Hindu  family,
of which Ram Narain was the karta. In Ex. K (2), which is  a
plaint in a mortgage suit filed in the year 1917, there is a
statement in paragraph (y) of the plaint as follows:-
    "  The bond in suit, is executed in favour of  plaintiff
No.  1 alone,  who is the head and  managing member  of  the
joint family, but the plaintiff No. 2, who is the  brother's
son  of plaintiff No. 1, has got a claim to one-half   share
in the amount  claimed. Therefore, he joins as a plaintiff."
    It may be noted that plaintiff No. 1 in the suit was Ram
Narain and plaintiff No. 2 was Ram Saran. In
615
Ex.  K  (1), which is another plaint in a mortgage  suit  of
1924  and in which both Ram Narain and Ram Saran figured  as
plaintiffs, it was stated in paragraph 6 of the plaint  that
plaintiff No. 2 (Ram Saran) was the member of a joint family