# Blurgwali PraJadSah and Other1 v. Dulhin Rame~hwari x.,,, and Another

- **Citation:** [1951] 1 S.C.R. 603
- **Court:** Supreme Court of India
- **Decided:** 1951-05-07
- **Case number:** CIVIL APPELLATE JuRrsmCTioN. Civil Appeal No. 83 of 1950
- **Bench:** SAIYID fAZL Au, MuKHERJEA, Chandrasekhara Aiyar Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/blurgwali-prajadsah-and-other1-v-dulhin-rame-hwari-x-and-another-118
- **Pages:** 18

## Headnote

603
Hindu Law-Joint family-Presumption
of iointness-Separation of one member-Effect of-Burden of proof of subsequent state
of family-Evidence of separation-Statement of deceased memberEvi dence Act (I of 1872), s. 32(3).
Though the general principle is that a Hindu family is presum-
-ed to be joint
unless the
contrary
is proved, yet 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
coparc~ners continued 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
they remained united and the burden would
undoubtedly lie on
the party who asserts the existence of a particular state of things
on the basis of which the claims relief.
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.
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)
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 connected matter
and an
integral part of the same statement. 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."
The expression "joint family"
is used in legal as well as
in a loose sense. The fact that the said expression is used in
1951
May 7,
1951
Blurgwali
PraJadSah
and Other1
v.
Dulhin
Rame~hwari
x.,,,
and Another.
Mukherl•a J.
604
SUPREME COURT REPORTS
[1951]
describing a family in a document does not therefore nece!:sarily
lead to the inference that the family is a joint Hindu family with
all its legal incidents.
CIVIL APPELLATE JuRrsmCTioN.
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 Deeree
No:
60 of
1944 arising out of the
Judgment and Decree dated the 22nd December, 1943,
of the Court of the First Sub-Judge of Saran, Ch:ipra,
in Title Suit No. 24 of 1941.
BaJr..shi TeJr.. Chand (Ramanugrah Prasad, with him)
for the appellants.
Gopinath Kunzru (D. K. Saran, with him) for Respondent No. 1.
1951. May 7. The judgmeQt 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 Coun 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 controveri;y between the parties to the suit
centres round only one question of fact, viz., whether
the plaintiff's father, who died in 1926, was joint with
or separate from his nephew, the defendant No. l, 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 survivor-
~ip to defendant No. 1, who together with his male
descendant constitute a joint Hindu family governed
by the Mitikshara law.
It may be c

## Text

S.C.R.
SUPREME COURT REPORTS
BHAGWATI PRASAD SAH AND OTHERS
II.
DULHIN RAMESHW ARI KUER
AND ANOTHER·
(SAIYID fAZL Au, MuKHERJEA and
CHANDRASEKHARA AIYAR JJ .)
603
Hindu Law-Joint family-Presumption
of iointness-Separation of one member-Effect of-Burden of proof of subsequent state
of family-Evidence of separation-Statement of deceased memberEvi dence Act (I of 1872), s. 32(3).
Though the general principle is that a Hindu family is presum-
-ed to be joint
unless the
contrary
is proved, yet 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
coparc~ners continued 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
they remained united and the burden would
undoubtedly lie on
the party who asserts the existence of a particular state of things
on the basis of which the claims relief.
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.
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)
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 connected matter
and an
integral part of the same statement. 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."
The expression "joint family"
is used in legal as well as
in a loose sense. The fact that the said expression is used in
1951
May 7,
1951
Blurgwali
PraJadSah
and Other1
v.
Dulhin
Rame~hwari
x.,,,
and Another.
Mukherl•a J.
604
SUPREME COURT REPORTS
[1951]
describing a family in a document does not therefore nece!:sarily
lead to the inference that the family is a joint Hindu family with
all its legal incidents.
CIVIL APPELLATE JuRrsmCTioN.
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 Deeree
No:
60 of
1944 arising out of the
Judgment and Decree dated the 22nd December, 1943,
of the Court of the First Sub-Judge of Saran, Ch:ipra,
in Title Suit No. 24 of 1941.
BaJr..shi TeJr.. Chand (Ramanugrah Prasad, with him)
for the appellants.
Gopinath Kunzru (D. K. Saran, with him) for Respondent No. 1.
1951. May 7. The judgmeQt 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 Coun 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 controveri;y between the parties to the suit
centres round only one question of fact, viz., whether
the plaintiff's father, who died in 1926, was joint with
or separate from his nephew, the defendant No. l, 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 survivor-
~ip to defendant No. 1, who together with his male
descendant constitute a joint Hindu family governed
by the Mitikshara law.
It may be convenient at the outset to give a brief
resume
of the materiai facts
as they appear in tht:
J
'.•
SUPREME COURT REPORTS
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. lmrit'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. Defendants 2 to 4 are the
sons of defendant No. 1 and defendants 5 to 10 are his
minor grandsons. 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 ~tween 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. l, 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 No. 1 and his sons. It is stated in the plaint
that in the year 1928 the defendant No. 11, who is the
son of Imrit, instituted a suit at the instigation of
defendant No. I and his sons in which he denied the
separation of lmrit 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 wididraw
because of some
formal
defects. The present suit was instituted on 20th of
December, 1940, and the plaintiff prayed for recovery
of possession of the properties specified in Schedules I
to IV in the plaint together with mesne profits both
past and future.
1951
Bhagwati
Prasad Sak
IJJfd Otheu
v.
Dulhin
Rame~hwari
Kuer
and Another
Mllkherjea J.
1951
Bhagwoti
Pra3adSah
and Others
v.
Du/hin
Rameshwar;
Kuer
and Another.
M ukherjea J.
606
SUPREME COURT REPORTS
[1951J
Defendants 11 and 12 did not appear or contest the
suit.
The suit was contested by defendants l 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 \vas 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 l to 4 in substance was
that there was no separation between Ram Narain and
defendant No. l as alleged in the plaint, but that
after the death of Janki, the father of defendant No. 1,
Imrie alone separated
himself from Ram
Narain and
the defendant No.
l when the latter was only five
years old. Ram Narain and defendant No. l continued
to ·remain joint as before and as
Ram
Narain died
joint, the defendant No. l got all the
properties by
right of
survivorship.
It was
denied
that
Sumitra
was influenced in any way by defendant No. l 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, plaintiff's father and defendant No. l 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
th~
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
'
S.C.R.
SUPREME COURT REPORTS
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 question
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
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 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
continued 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 principles
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 Palaniammtrl
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 Rarr:
(1) L.R. SS I.A. 220
(2) L.R. S9 I.A. 83
(3) LR. 301 .A. 130
1951
Bhagwati
Prasad Sali
and OtFiers
v.
Dulhin
Rames/.wari
Kuer
and Another·
Muhkerjea J.
1951
Bh.agwati
Pra&adSah
andOtbtr1
v.
Dul/Ji•
Ra~lh•OTi
Kuer
and Another.
Mukherieo J.
60B
SUPREME COURT REPORTS
[1951 J
Saran at any anterior time they subsequently rennited.
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 d~
ruption 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 coparccners under the Mitakshara law.
It is
in the light of these
principles 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 rclia'lcc on the same. W c 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 part\es and which
proceed~ on
the
basis of any
admitted
partition.
Imrit's separation
from the family is of
course
an
admitted fact but there is no evidence even on the
side of the defendants to show when this separation
took place. The defendant No. 1 in his deposition in
a Money Suit, to which he was a party, stated in the
year 1942 that his age was Bl at
that time. If tllis
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
S.C.R.
SUPREME COURT REPORTS
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
prop~rties 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 lmrit 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
inferred 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 mortgage bond executed by I mrit
in favour of Ram Narain. The date of the instrument
is 8th of November,
1898. T4ere 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
separation all the movable and
immovable properties were
partitioned 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
1951
Bhagwati
PrasadSah
and Others
v.
Du/hin
Rameshwari
Kuer
and Another.
Mukherjea J.
19SI
Bhagwati
PrasadSah
and Others
v.
Dulhin
Rameshwari
Kuer
a11d Another
Mukherjea J.
610
SUPREME COURT REPORTS
[1951]
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
satisfaction 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 statements which were 'made in an old document long
before any dispute arose between the parties in regard
to these matters.
A question was raised, however, as
to whether this statement of
Imrit could
be legally
admissible as evidence.
Imrit
is
undoubetedly
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 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 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 connected matter and an integral part
of the same statement (Vide Blackburn J. in Smith v.
Blakey(') ). 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.
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
(ll L.R. 2 Q.B. 326
S.C.R.
SUPREME COURT REPORTS
611
amongst all the sons of Sheo . Narain and that ~ey .
show further that the
separanon took
place
dunng ·
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 latter 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) executed 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
~e are
unable to hold that they
relate to the same
property. The property dealt
by
Exhibit C(7)
is
situated in Mahalia Karim Chak, while that sold
by
Welayat Mian was situated in Dahiawan. The boundaries on the three sides are also
quite different. Exhib~t C(8)" ~s another ·sale deed executed
during this
penod.
It 1s dated 13th of December, 1898, and in this
document also . Ram Narain figures as the
sole purchaser of certam 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 accepted as correct.
6-10 S.c. India/67.
1951
Bhagwati
PrasadSah
and Other3
v.
Dulhin
Rameshwari
Kuer
and Another
Mukherjea J,
1951
Bhagwatl
PraJadSah
and Others
v.
Dulhin
Rameshwari
Kuer
and Another
Mukherjea J,
612
SUPREME COURT REPORTS
[1951]
The property that is recorded in Khatian No. 233 in
the joint names of
Ram Narain and Ram Saran is
situated in mouza
Purbari Telpa, while
the property
that is dealt with by Exhibit C(S) is in Telpa Buzurg.
Moreover, the area of the property in Exhibit C(S) 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 Narain 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
opinion, 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 out:Ward 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 acquired 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
question however is whether from these documents it
is possible to infer that Ram Narain and Ram Saran
were joint all along and are they sufficient to destroy
the inference of
separation that
can legitimately be
drawn from the earlier documents
referred to above ?
Exhibit E is a Zarpeshgi
deed executed by the sons
of lmrit in favour of Ram Narai!i and Ram Saran
S.C.R.
SUPREME COURT REPORTS
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.
Vv e
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.
Exhibit 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
1omt
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
is totally different from
what appears in the
Ram Saran were
described as
joint creditors
of the
vendor. The only other sale deed executed during the
lifetime of Ram Narain is Ex. C (1). This was also a
deed of sale in favour of both Ram Narain and Ram
19SI
Bhagwatl
Pra:JadSa[J
andOthen
v,
Dulhin
Rame:Jhwar
Kuer
and Another
Mukher}ea I.
1951
Bhagwati
Prasad Sah
and Others
v.
Du/bin
Rame$hwari
Ku er
and Another
Mukherjea J.
614
SUPREME COURT REPORTS
[1951]
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
necessar~ly 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 documents. There is no doubt that Ram
Narain and Ram Saran did carry on a cloth and moneylending business jointly. The vendors in the above
sale deeds had borrowed money from this joint moneylending concern and the consideration for the sales in
the majority of instances were unsatisfied debts due by
tliese 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
Narin was the karta. In Ex. K (2), whicli 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 alon(!,
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. l, 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
S.C.R.
SUPREME COURT REPORTS
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 with plaintiff No. 1 (Ram
Narain) and, therefore, he was also joined in the suit.
Lastly, we have got the following statement ·in a plaint
in another mortgage suit, (Ex. K), which was filed by
Ram Narain a.i1d Ram Saran in the year 1923 :-
"That the plaintiffs are members of a joint family
. and carry on money-lending business jointly. Mortgage
bonds are . executed in favour of
any member of the
family. Accordingly, the mortgage bond
sued upon
was executed in favour of plaintiff No. 1 alone. But
both of the plaintiffs have got claim thereto."
It may be pointed out, first . of all, that these statements occur in plaints filed in mortgage suits arising
out of the money-lending business which was carried on
by Ram Narain and Ram Saran jointly. The business
being a joint business, even if the bonds were taken in
the name of one of the creditors, it was necessary, to
avoid all risks, that both of them should join as plaintiffs. It was for the purpose of explaining as to why
the bond sued upon did not stand in the name of both
the plaintiffs, that this · explanation was. added to each
one of these
plaints.
In the second place, it may be
noted that it was expressly stated in these plaints that
Ram Saran had also an equal
share in the mortgage
money. It would be unusual in,
and quite inappropriate to, a transaction relating to a Mitakshara joint
family, of which the karta or manager can by himself
file
suits and
conduct transactions, to
specify
that
another coparcener has got so much share in the claim
or property. Thirdly,
the
expression
"joint family"
can certainly be used in a legal as well as in a loose
sense, and it
would not
be improper in the circumstances of the present case to hold that it was in fact
used in a loose sense.
The deposition of Ram Narain
given in a mortgage suit {Ex. N)
does hot really
improve the the position. In his deposition Ram Narain
states as follows :-
1951
Bhagwati
Prasad Sall
andOthen
v.
Du/hill
Rameshwarl
Kuer
and Another.
Mukherjea J.
1951
Bhagwati
PraJad Sah
andOther1
v.
Dulhin
Rame.shwarl
Kuer
and Anothtr.
Mukherfea /,
616
SUPREME COURT REPORTS
[1951]
"Ram Saran Sahu is my nephew and
we live
jointly. I am karta of my family."
Here again the deposition being given in a mortgage
suit only for the purpose of justifying the inclusion of
the name of
Ram Saran as a co-plaintiff, no undue
stress could be laid upon the words used.
Mr. Bakhshi
Tek Chand tried to make much also of the statements
made by Sumitra, the mother of the plaintiff, both in
the written statement which she
filed
in the suit
brought against
the defendants
by
Imrit's
son and
also in the deposition on commission which was given
by her in that suit.
It is to be noticed that tl1e plaintiff
was a party to this suit but later on Ram Saran and
his sons
had
her
name
expunged from
the suit
altogether in order
that there
may be a
petition of
compromise between them and
the
plaintiff in that
suit in her absence.
It would appear from the deposition given on commission by the lady in that suit that
she was completely under the °influence of defendant
No. 1 and her sons. The High Court, in our opinion,
has rightly laid stress on some portions of her deposition where she made
certain admissions
even against
her will.
One thing said in her deposition was that
there were really three houses and not two and this lits
in with the story of a complete partition. In the second
place, she admitted that the
separation of Imrit took
place during
the lifetime of Sheo
Narain. That the
stock of knowledge of this lady was very small and she
could be made to say any thing as the defendants liked
is apparent from the fact that she herself did not know
what was north, south, east or west. She did not know
how to count money and did not know even how her
husband conducted his
business.
In such circumstances, we feel unable to attach much importance
to the
evidence of this lady, though it is somewhat surprising
that she should have made any statement against · the
interests of her own daughter.
The two other classes of <locuments whicli are relevant for our present purpose and to which reference was
made by the
learned counsel
for the appellants are
the settlement
records and
the account books.
The
S.C.R.
SUPREME COURT REPORTS
617
settlement records Exs. 4 and R are not, in our opinion, decisive of the point in issue. The records show
that some lahds were recorded in the name of Ram
Narain alone and others were recorded in the names of
both
Ram Narain and
Ram
Saran with a further
remark that they have equal shares in the properties.
If really the family was joint from the very beginning
and Ram Narain was
the
k..arta, then all the lands
would
have
been
recorded
in the name of Ram
Narain alone.
The fact
that some
lands
were recorded in the
name of
Ram Narain alone, while
others were recorded
in their joint names,
clearly
indicates that
it
was
not
a
joint
Mitakshara
family in the proper sense of the word. In this connection reference may be made . to two important documents to which just importance has been attached by
the learned
Judges of the
High
Court. These are
Exhibits G and 1. The first is a deed of relinquishment of claim by Ram Narain to Shri Thakur Lachhmi
Narayan
Swamiji Maharaj. The document
is dated
9th of November, 1899, and by this instrument Ram
Narain relinquished his
interest
in certain properties
which he purchased
in his own
name, but for the
benefit of the deity.
It is stated in this document that
Ram Narain
would. remain
manager of the temple
during his
lifetime and
shall make
settlement · and
management of the properties in such a way as he
thought proper
and after his death Ram Saran Sah,
son of
his full brother, and after
him the heir and
representative of
Ram
Saran
Sah
would
be
the
managers. Ram Saran was an attesting witness to this
document. This clearly shows that
Ram Narain had
property of his own which he
was disposing of in any
way he . liked to the knowledge of his nephew who is
alleged to be his joint coparcener. If it was an endowment created by the family itself, there was .no necessity of laying clown that after the death of Ram Narain,
his nephew would become the manager as the managership would descend in the line of Ram Saran as a
matter of course.
By the subsequent document (Exhibit l), which was executed shortly before the death of
Ram
Narain, this
arrangement
was
changed and a
1951
Bhagwati
Prawd :Jah
and Other.
v.
· Du/hin
Rameshwari
Kuer
and Another.
Mukherjea J.
19SI
Bii:Jgwati
Prasad Sah
and Others
v.
Du/bin
Rame~hwarl
Ku er
and Another.
Mukherjea J.
618
SUPREME COURT REPORTS
[1951]
certain Mahant, namely,
Mahant
Goswami
Hirdaya
Saran Deoji, was appointed manager of this endowed
property.
This proves that Ram Narain did purport
to exercise absolute and unrestricted power of disposition over his
properties in any way he liked, and that
the properties except those which were jointly acquired
by himself and his nephew out of the profits of the
joint business, belonged to him absolutely.
As regards
the .account
books that have been produced in this
case, the learned Judges of the High Court, it appears,
are not quite correct in saying that there were two sets
of accounts kept side by side, one in the name of Ram
Narain and other in the name of Ram Saran. At least
the learned counsel appearing for the respondents could
not satisfy us that this was in fact the true position.
We think,
however, that the
entries in the
;lccount
books to which our attention was drawn by the learned
counsel for the appellants do not realy improve the
defendants' case.
We agree
with the learned Judges
of the High Court in holding that the
entries
are
inconclusive
and at the
best
equivocal.
Thus, for,
example, certain expenses were debited to Ram Narain
on account of the
costs incurred by
Ram Saran and
others in going to Puri. It is not known who were the
persons who actually accompanied Ram Saran to Puri
and whether or not they were the wife and daughter of
Ram Narain
himself.
Then again certain
amounts
were debited
on account of
SaJaisa
ceremony but
nothing is elicited as to whose Sataisa ceremony it was.
Certain expenses
in connection
with the marriage of
Ram Saran's daughter undoubtedly find place in these
account books
and they are debited against
Ram
Narain.
We have
looked into
the entries ourselves.
They relate to very
small sums of
money cons1stmg
mostly of expenses incurred in connection with invitation of guests and presents received from them.
They
are not marriage expenses proper and in the absence
of better evidence we are unable to say that they support the defendants' story of there being a joint family
in the true sense of the expression.
The result is that on the whole we are of the opinion
that the view taken by the learned Judges of the High
'·
S.C.R.
SUPREME COURT REPORTS
619
Court is correct and that there was in fact a separation
of all the members of the family and not of Jmrit alone
during the lifetime of Sheo Narain himself. As no case
of re-union 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 \Vere recorded as
joint holders of
properties in the
settlement records
might
at least
create a tenancy in common between them, but not a
joint tenancy
under the
Mitakshara law which would
attract the law of
survivorship.
Defenaant
No.
1,
therefore, did not
acquire any right
by survivorship
to the prop·erties which were owned by
Ram Narain
and the plaintiff is entitled to succeed on this ground.
We are unable, however, to affirm the decree in the
' form in which it has been made by the High Court in
I favour of the plaintiff.
The plaintiff laid claim to the
properties which are specified in schedules
I to IV of
the plaint.
In paragraph 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 Vie entirety of which no cl~im could be laid by the
plaintiff. Upon this
defence, issue
No. 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
1951
Bhagwati
Pra.<ad Sah
and Others
y,
D11/hin
Rameahwori
·Kuer
and Another.
Mukherfea J.
1951
Bhagwati
Pra•adSah
and0thet3
v.
Dulhin
Rame3hwari
Kuer
and Another.
Mukher}ea J,
620
SUPREME COURT REPORTS
[1951]
recover as mesne
profits and
on what
basis mesne
profits should be calculated
formed the subject-matter
of issue No. 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
plaintiff's
father
did
die
separate
from
defendant
No. 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.
The result is that we affirm the findings of the High
Court and remand the case in order that it may be
disposed of in
accordance with law after determination of issues Nos. 7 and 8.
It would be open to the
learned Judges to
remit the
issues to the trial Court
for findings on the points
to be
arrived
at on
the
eyidence on the record or on such further evidence, as
the parties might be allowed to adduce.
The plaintiffrespondent
will be
entitled to
costs of the appeal.
Further costs would abide the result.
Case remanded
Agent for the appellants : Tarachand Briimohanlal.
Agent for respondent No. 1 : R. C. Prasad.
·'