# • GffiJA NANDINI DEVI AND ORS v. BIJENDRA NARAIN CHOUDHURY

- **Citation:** [1967] 1 S.C.R. 93
- **Court:** Supreme Court of India
- **Decided:** 1966-08-11
- **Bench:** K. N. Wanchoo, J. C. Shah, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gffija-nandini-devi-and-ors-v-bijendra-narain-choudhury-3940
- **Pages:** 12

## Headnote

Hindu Law-Undivided family-Specification of shares of parties without expression of intention ta separate-Whether amounts to partition.
Code of Civil Procedure, 1908, s. 66(1)-Ban on suit under-When
operates .
The appellants and the respondent were collaterals and belonged to
the same branch of a Hindu undivided family. The said family hae
four branches. Two branches filed in 1923 a join.I suit for partition of
the family estate impleading the other two branches as defendants.
Jn
1924 the court passed a preliminary decree in which not only the shar~
of the branches but also the shares inter se of the members of the
bram;hes were separately shown.
The two branches to which the. plaintiffs belonged were jointly allotted a share of eight annas while the other
two branches-to one of which the appellants and the respondent
belonged-were given four annas each. The shares of the appellants and
the respondent were mentioned as two
annas each. In 1936 the respondent came of age and
in 1942 he filed a suit claiming partition
of his share from that of the appellants. He alleged that the appellanta
taking advantage of his minority had purchased properties out of family
funds in their own n.ames as weU as benami, and that
these prope.rties
were also liable to be partitioned.
The appellants denied that the said
prop.,.-ties were purchased from family funcls.
They further contended
that the respondent was -holding his share of the property separa:ely and
that the family property of the branch already stood partitioned as a
result of specification of shares in the preliminary decree of 1924. The
trial court decreed the respondent's suit.
The High Court confirmed
the decree with some modifications,
The appellants came to this Court
with certificate.
The main contention on behalf of the appellants were :
(i) that the
specification of shares of the appellants and the respondent in the preliminary decree resulted in partition between them and (ii) that the suit
in respect of alleged benami property was barred by s. 66 (I) of the Code
of Civil Procedure.
HELD :
Specificaion by the decree of the shares of the appeUani.
on the one hand and of the respondent on the other did not by itself
constitute severance of the appellants from the respondent. [98 F-G]
Partition may ordinarily be effected by institution of a suit, by submitting the dispute as to division of the properties to arbitrators, by a
demand for a .share in the properties, or by conduct which evinces an
intention to sever the joint family; it may also be effected by agreement
to divide the property. But in each case the conduct must evidence unequivocally intention to s~er the joint family
status. Merely
because
one member of the family severs his relation, there is
no presumption
that thare is severance between the other members : The question whether the.re is severan.ce between the other members is one of fact to be
determined on a re'View of all the attendant circumstances. (98 B]
93
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SUPREME COURT REPORTS
[1967] l S.C.R.
PolanJ Ammal v. Muthuvenlcalachar/a Mo11iagar cl On. L.R. '2 I.A.
A
83, relied on.
In the present case the partition suil of 1923 and the preliminary decree
therein making three allotments of the property led to severance of status
of the plaintiffs as well as the other two· branches of the larger family.
But severance between the members of the branche~ inter se may not in
the absence of expression of unequivocal intention be inferred.
There
was no evid~ncc of expression of any such intention either by the appelB
lants or the respondent
(ii) The respondent's claim was that tho properties belonged to the
joint family, because they were purchased by the appellants with the aid
of joint family funds benami in the name of a third party. Such a claim
doeg not fall within the terms of s. 66(1). (103 BJ
Addonkl V•nkatarubbalah v. ChUalcamuthl KotaJah, C.A. No. 120 of
C
1964 dated 12-8-1965, relied on.
(iii) It was not necessary for the respondent to mention in his plain

## Text

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GffiJA NANDINI DEVI AND ORS.
v.
BIJENDRA NARAIN CHOUDHURY
August 11, 1966
[K. N. WANCHOO, J. C. SHAH AND R. S. BACHAWAT, JJ.j
Hindu Law-Undivided family-Specification of shares of parties without expression of intention ta separate-Whether amounts to partition.
Code of Civil Procedure, 1908, s. 66(1)-Ban on suit under-When
operates .
The appellants and the respondent were collaterals and belonged to
the same branch of a Hindu undivided family. The said family hae
four branches. Two branches filed in 1923 a join.I suit for partition of
the family estate impleading the other two branches as defendants.
Jn
1924 the court passed a preliminary decree in which not only the shar~
of the branches but also the shares inter se of the members of the
bram;hes were separately shown.
The two branches to which the. plaintiffs belonged were jointly allotted a share of eight annas while the other
two branches-to one of which the appellants and the respondent
belonged-were given four annas each. The shares of the appellants and
the respondent were mentioned as two
annas each. In 1936 the respondent came of age and
in 1942 he filed a suit claiming partition
of his share from that of the appellants. He alleged that the appellanta
taking advantage of his minority had purchased properties out of family
funds in their own n.ames as weU as benami, and that
these prope.rties
were also liable to be partitioned.
The appellants denied that the said
prop.,.-ties were purchased from family funcls.
They further contended
that the respondent was -holding his share of the property separa:ely and
that the family property of the branch already stood partitioned as a
result of specification of shares in the preliminary decree of 1924. The
trial court decreed the respondent's suit.
The High Court confirmed
the decree with some modifications,
The appellants came to this Court
with certificate.
The main contention on behalf of the appellants were :
(i) that the
specification of shares of the appellants and the respondent in the preliminary decree resulted in partition between them and (ii) that the suit
in respect of alleged benami property was barred by s. 66 (I) of the Code
of Civil Procedure.
HELD :
Specificaion by the decree of the shares of the appeUani.
on the one hand and of the respondent on the other did not by itself
constitute severance of the appellants from the respondent. [98 F-G]
Partition may ordinarily be effected by institution of a suit, by submitting the dispute as to division of the properties to arbitrators, by a
demand for a .share in the properties, or by conduct which evinces an
intention to sever the joint family; it may also be effected by agreement
to divide the property. But in each case the conduct must evidence unequivocally intention to s~er the joint family
status. Merely
because
one member of the family severs his relation, there is
no presumption
that thare is severance between the other members : The question whether the.re is severan.ce between the other members is one of fact to be
determined on a re'View of all the attendant circumstances. (98 B]
93
94
SUPREME COURT REPORTS
[1967] l S.C.R.
PolanJ Ammal v. Muthuvenlcalachar/a Mo11iagar cl On. L.R. '2 I.A.
A
83, relied on.
In the present case the partition suil of 1923 and the preliminary decree
therein making three allotments of the property led to severance of status
of the plaintiffs as well as the other two· branches of the larger family.
But severance between the members of the branche~ inter se may not in
the absence of expression of unequivocal intention be inferred.
There
was no evid~ncc of expression of any such intention either by the appelB
lants or the respondent
(ii) The respondent's claim was that tho properties belonged to the
joint family, because they were purchased by the appellants with the aid
of joint family funds benami in the name of a third party. Such a claim
doeg not fall within the terms of s. 66(1). (103 BJ
Addonkl V•nkatarubbalah v. ChUalcamuthl KotaJah, C.A. No. 120 of
C
1964 dated 12-8-1965, relied on.
(iii) It was not necessary for the respondent to mention in his plaint
lhBt the recital in the preliminary decree showing severance of starwi
between the appellants and the respondent was a• interpolation.
The
question whether evidence in suppon of a patty's case is reliable may be
raised by the other pany without incorporating the contention relating
thereto in his pleading. [IOI B-D)
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(iv) It is not the duty of the appellate court when it agrees with the
view of the trial coun on the evidence either to restate the effect of
the evidence or to reiterate the reasons given by the trial coon.
Expression of general agreement with reasons given by the court decision
of which is under appeal ""uld'ordinarily suffice. [IOI F..Gl
('V) A claun far rendition of account is not a personal claim. It is
E
not· extinguished because the pany who claims an account or the pany
"'ho is called upo~ to account dies. 1be maxim "actio personalis m~rl1ur cum pusona" docs not apply to such cases. [103 G)
QVJL APPELLATE JURISDICTION: Civil Appeal No. 756 of 1964.
Appeal from the judgment and decree dated November 19,
1957 of the Patna High Court in Appeal from Original Decree
No. 258 of 1848.
Sarjoo Prasad, D. P. Singh, R. K. Garg, S. C. Agarwal and
M. K. Ramamurthi, for the appellants.
D. Goburdh1111, for the respondent.
The Judgment of the Court was delivered by
Shah J. This appeal with certificate under Art. 133 (!)(a)
of the Constitution arises out of suit No. 17 of 1942 of the file
,)f Subordinate Judge, Pumea, filed by Bijendra Narain son of
lshwari Narain against Mode Narain, Hari Narain and Rajballav
Narain, sons of Bidya Narain, and others for a decree for partition
and separate possession of a half share in the properties described
in schedules A, B & C to the plaint. The suit was decreed by the
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GIRJA NANDINI v. BIJENDRA NARAIN (Shah, !.)
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A Trial Court and in appeal to the High Court of Judicature at Patna
the decree was confirmed with a slight modification. The defendants in the suit have appealed to this Court.
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One Mankishun had four sons: Talebar, Indra Narain, Chandra
Narain and Shyam Narain. Talebar had two sons Hanuman
and Raghu Nandan. Hanuma0 died leaving him surviving no
lineal descendant and Raghu Nandan adopted Udit Narain-grandson of his uncle Shyam Narain. In 1923 Udit Narain and the
oons of Shyam Narain instituted suit No. 27 of 1923 in the court
of the Subordinate Judge, Purnea, impleading as defendants the
descendants of Indra Narain and Chandra Narain as parties
thereto for partition and separate possession of a half share in
the properties of the joint family. Bijendra Narain, son of Ishwari
Narain who was at the date of the suit a millor was impleaded as
the 8th defendant, by his guardian-ad-litem Bidya Narain his
uncle, who was impleaded as the 4th defendant, Mode Narain,
Hari Narain and Rajballav Narain, sons of Bidya Narain, were
imp leaded as defendants 5, 6 & 7.
A preliminary decree was
passed in the suit on July, 1924 by consent of parties. By paragraph
(a) of the decree the adoption of Udit Narain as a son by Raghu
Nandan was admitted and it was agreed that Udit Narain was
entitled in the property in suit to a fourth share as adopted son of
Raghu Nandan, and a twelfth share as heir of his natural father
Shyam Narain. The .decree further provided.
"(b) That the parties agree that the family estate is still
joint and that the entire family estate except those that have
already been partitioned as detailed below in schedule D will
be partitioned by metes and bounds (according) to the shares
as defined above , . . .
(c) That the parties agree that a preliminary decree be
passed declaring the shares of the parties as follows:
Plaint No. 1
Four annas share
Plaintiff.~ Nos. 1-3
One anna four pies share
Plaintiffs Nos. 4 & 5
One anna four pies share
Plaintiffs Nos. 6, 7 & 8
One anna four pies share
Defendants 1 & 2
Two annas share
Defendant No. 3
Two annas share
Defendants Nos. 4, 5, 6 & 8
Two annas share
Defendant No. 8
Two annas share
(I) That the parties agree that at the time of partition
by the arbitrators one allotment should be made
for defendants Nos. I to 3's four annas share, and
one allotment should be made for defendants 4
to S's four annas share, i.e. three allotments will
Jie made as aforesaid."
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SUPREME COURT REPORTS
[1967] l S.C.R.
Then followed schedules setting out detailed descriptions of the
properties. A decree final was made on February 15, 1937 and
the properties of the family were divided in three lots: · the fint
lot representing an eight anna share of Udit Narain and the sons
of Shyam Narain, the second representing a four anna share of
the branch cf Indra Narain, and the third a four anna share of
defendants 4 to 8 of the branch of Chandra Narain.
Bijendra Narain attained the age of majority in 1934, and
on July 10, 1942 commenced the present action for partition of
a half share in the properties which were in the possession of Bidya
Narain, his sons and grandsons alleging that he, Bijendra Narain
~e to learn in 1938 that taking advantage of his minority and
inexperience his uncle Bidya Narain and the sons of Bidya Narain
had purchased in their own names many properties with the
aid of joint family funds and had acquired certain other properties
in the name of Bashisht Narain-(twentyfourth defendant in the
suit), who was daughter's son of Bidya Narain-that in September,
1941 certain respectable residents of the village consented to lend
their good offices to settle the dispute and to act as panchas, that
at the meeting before the panchas, Bidya Narain and his sons admitted that the properties held by them including the properties
acquired in their names and of Bashisht Narain were joint family
estates, but they later demurred to give to the plaintiff a separate
share, and hence the suit. Sons of Bidya Narain and Bashishta
Narain were the principal contesting defendants. They submitted
that by the decree in suit No. 27 of 1923 the joint family status
between the plaintiff Bijendra Narain and Bidya Narain had come
to an end, that since the decree passed in the earlier suit the parties
had been holding the properties as tenants-in-common and not as
joint tenants, that the members of the branch of Bidhya Narain
were living and carrying on their business separately, and the
share of the plaintiff Bijendra Narain was looked after and managed
by his mother and his maternal uncle Rudra Narain, that the private
properties, of the
plaintiff Bijendra Narain and the defendants
had also been ascertained by the compromise petition in suit No.
27 of 1923, that the defendants had been in exclusive possession
of the properties purchased in their names since the date of acquisition, and that the plaintiff Bijendra Narain was never in possession
of those properties. Bashisht Narain the 24th defendant submitted
that the properties purchased in his name were obtained with the
aid of his own funds and that he had "no concern with the other
defendants".
The trial Judge held that by the decree in suit No. 27 of 1923
there was no severance of status between the plaintiff Bijendra
Narain on the one hand and Bidya Narain and his sons on the
other and that the properties in suit had at all material times
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GIRJA NAND!Ni V. BIJBNDRA NAltAIN (Shah, J.)
97
remained joint and Bijendra Narain was on that account entitled
to a decree for partition and -separate possession of a half share
in the immovable properties in Sch. A.
In regard to the
movable properties described in Sch. B to the plaint, the learned
Judge directed that the Commissioner appointed by the Court
do ascertain the properties and divide the same in equal shares
and do award one half to the plaintiff Bijendra Narain and the other
half to the defendants. The learned Judge negatived the contention of the 24th defendant that the properties in his possession
did not belong to the joint family. He directed that an account
be taken of the assets and liabilities of the family since the date of
demand_ for partition by the plaintiff Bijendra Narain in 1941.
In appeal, the High Court agreed with the view ·of the Trial Court
on all the questions in dispute, and confirme!l the decree, subject
to a modification about the direction for detel'mination of movable
properties described in Sch. B and ordered that the case be remanded for determining the existence ot otherwise of the properties
mentioned in Sch. B.
It is common ground that the estate held by the four sons.
of Man Kishun was till the date of institution of suit No. 27 of
1923 joint family estate. By the institution of· the suit there
was undoubtedly severance of status between the plaintiffs of that
suit on the one hand and the defendants on the other, but counsel
for the appellants contended that by the specification of shares
in the praliminary decree, there was severance of status not only
between the descendants of Indra Narain and the descendants
of Chandra Narain but also between Bijendra Narain-plaintiff
in this suit-and Bidya Narain. In support of this plea he relied
upon specification in the decree of the share of Bijetidra Narain.
On behalf of Bijendra Narain it is contended that by this mode
of specification of shares there was no severance of the joint family
status, since the terms of cl. (1) of the decree clearly provided that the
division of the property was to be made in three .shares-one for
the plaintiffs in suit~No. 27 of 1923, another forthe descendants
of Indra Narain; and the third for the descendants of Chandra
Narain.
In a Hindu undivided family governed by the Mitakshara
law, no individual member of that family, while it remains undivided, can predicate that he has a certain definite share in the
property of the family. The rights of the coparceners are defined
when there is partition. Partition consists in defining the shares
of the coparceners in the joint property; actual division of the
property by metes and bounds is not necessary to constitute partition. Once the shares are
defined, whether by
agreement
between the parties or otherwise, partition is complete-. ThQ parties
may thereafter choose to divide the property by metes and bounds,
or may continue to live together and enjoy the property in common
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SfJl'lll!IOI COURT
R.BP~TS
(1967] I S.C.IL
as before. If they
live together, the mode of enjoyment alone
remains joint, but not the tenure of the property.
Partition may ordinari\y be effected by institution of a suit,
by submitting the dispute as to division of the properties to arbitrators, by a demand for a share in the properties, or by conduct
which evinces an intention to sever the joint family: it may also
be effected by agreement to divide the property. But in each case
the conduct must evidence unequivocally intention to sever the
joint family status. Merely because one member of a family
severs his relation, there is no presumption that there is severance
between the other members; the question whether there is severance
between the other members is one of fact to be determined on a
review of all the attendant circumstances.
In the present case, Udit Narain, adopted son of Raghu Nandan
and the sons of Shyam Narain claimed collectively a half share
in the property of the joint family and instituted a suit for that
purpose.
By that demand, there was severance between the
branches of Talebar, and Shyam Narain from the joint family
and because of the specification of share5, and a direction of allotment of shares in separate lots to the descendants of Indra Narain
and Chandra Narain, severance between those two branches may
also be inferred. But severance between the members of the
branches inter se may not in the absence of expression of unequivocal intention be inferred. There is no evidence of expression of
any such intention by Bidya Narain and his sons to divide themselves from Bijendra Narain: they made no such claim in the suit.
It is true that a compromise preliminary decree was passed in the
suit. But Bijendra Narain was a minor at the date of that decree
and was represented in the suit by his uncle Bidya Narain. There
could evidently be no agreement between Bidya Narain acting in
his own personal capacity and acting as a guardian-ad-/item of
Bijendra Narain to sever the joint family status. Specification by the
decree of the shares of Bidya Narain and his sons on the one hand
and of Bije.ndra Narain on the other, does not by itself constitute
severance of Bidya Narain and his sons from Bijcndra Narain.
The specification of shares .must be read in the context of cl. (I)
of the decree which directed division of the estate in three lots
only.
The Judicial Committee of the Privy Council observed in
Palani Ammal v. Muthuvenkatacharla Moniagar & others(') that:
"In coming to a conclusion that the members of a
Mitakshara joint family have or have not separated, there
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are some principles of law which should be borne in mind
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when the fact of a separation is denied.
A Mitakshara
. ·-· ·--· ·-·-----
(!) LR. 521. A. 83.
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GB.JA NANDINI v. BIJBNDllA NAllAIN (Shah, J.)
9.9
family is presumed in law to be a joint family until it is
proved that the ·members have separated. That the coparceners in a joint family can by agreement ·amongst themselves separate and cease to be a joint family, and on
separation are entilted to partition the joint family property
amongst themselves, is now well-established law. . . • .
But the mere fact that the shares of the coparceners
have been ascertained does not by itself necessarily
lead to an inference that. the family had separated.
There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the
coparceners on a separation would be."
Counsel for the appellants submitted that the last two observations made by the Judicial Committee were unnecessary for the
purpose of the decision of the case and did not correctly state the
law. Whether the observations
were strictly germane to the
decision of the case before the Judicial Committee is immaterial,
since in our judgment they enunciate a correct statement of the
law relating to the principles to be borne in mind in determining
when the fact of severance is denied. It is from the intention to
sever followed by conduct which seeks to effectuate .that intention,
that partition results; mere specification of shares without evidence
of intention to sever does not result in partition. By cl. (c) of the
preliminary decree the shares of the various parties were specified,
but by cl. (!) a division by metes and bounds was directed between
the branches of Telebar and Shyam Narain on the one hand, of
Indra Narain on the second and Chandra Narain on the third.
Clause (I) did not evidence an intention to bring about severance
between the members of the four branches; it is inconsistent with
such intention.
Certain other pieces of evidence on which reliance was placed
by counsel for the appellants in support of his claim that there
was under the preliminary decree severance of the joint family
status may also be referred to. Girdhar Narain, grandson of Indra
Narain was appointed, in suit No. 27 of 1923, receiver of the properties and he continued to hold that office till 1936. Girdhar
Narain said that he was maintaining accounts during the period
of his management as receiver, and that out of the surplus which
remained with him he paid to Bijendra Narain in 1944 Rs. 1,500
for his two anna share. It was claimed that this was strong evidence indicating that Bijendra Narain's sh!Y'C was not only specified
but was also separated from that of Bidya Narain and his sons.
It is difficult to believe that a receiver of property could be discharged before he submitted his accounts and handed into court
the c~llections made by him, and that Girdhar Narain was
permitted to retain the surplus collections with him for eight
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(1967) 1 S.c.R.
years after ht; ceased to be the receiver of the estate.
But assuming
that the statement was true, the circumstance that he paid the
plaintiff Bijendra Narain a share in the surplus collections equivalent
to his share in the joint family property, after this suit was instituted
in 1 '>42, does not evidence· severance by the preliminary decree in
suit No. 27 of 1923.
R~tiance was also placed upon certain recitals in Ext. 29 (c)-
a certified copy of the preliminary decree-in suit No. 27 of 1923
produced by
the appellants.
Under the heading
"Bithnouli
Khcrnchand Khewat Several Khasra Nos. are set out in the remarks
column there is a recital "purchased from Ajab Lall Jha and others
l:iy virtue of Kewal a" dated the 23rd Phagun 1329 M .S. in the name
of Mode Narain Chaudhry. Prope.rties purchased in the name of
r•efe~dants Nos. 5 and 6, are their private and separate properties.
The rest of properties are held by each of the defendants 4 to 8 in
e<JU ,1 shares." It
was urged that this recital also evidenced
s~veranr~ between Bijendra Narain and Bidya Narain of the joint
family status by the preliminary decree. But the trial court held
that the recital commencing from "Properties purchased" to equal
·hares is aa interpolation and with that view the High Court agreed,
ll appears that there are several certified copies of the preliminary
decree on the record, and in some of these certified copies the
recital on which reliam:.e was placed is not found incorporated.
1·;,c Trial Court on a review of the evidence came to the conclusion
that this recital which is s:rid to be made in the handwriting of Mode
Narain who is a party to this litigatio!)~ould not be relied upon
sir.ce it was not found in the certified copies of the same decree
furnished on earlier occasions. Before the Trial Court, it appears
Exts. 29 & 29(b)-the certified copies of the same decree Ext. 29
obtained by Narendra Narayan Chaoudhary (defendant No. 12.
in the suit) Ext. 29(b) obtained by the Darbhanga Raj on September
19, 1934 and May 24, 1940'respectively, were produced, a~d they
did not contain the recital. It is true that there arc certain omissions in the certified copy Ex. 29(b) obtained by the Darbhanga Raj.
That may be an infirmity in tf>at certified copy, but Ext. 29 (at least
in the parts which arc material on the point under consideration)
appears to be a complete copy. No explanation was sought to be
given before the Trial Court and the High Court as to why the
portion relied upon was not found in Ext. 29. It is admitted that
the recital relied upon is in the handwriting of Mode Narain,
and Mode Narain has not chosen to enter the witness box and to
explain the circumstances in which that writing was made. It
was urged by counsel for the appellants that the plaintiff should
have pleaded in the plaint that the certified copy of the decree
which incorporated the recital relied upon by the appellants was
a fabrication, and since no such plea was raised, the appellants
were prejudiced by trial of that question.
It was the case of Bijendra
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GlllJ A NANDINI V. BIJBNDRA NARAIN (Shah, J.)
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Narain, the plaintiff, thaf'.he came to know after the plaint was
filed that there had been interpolations in the original decree.
This he claimed to have learnt when he obtained a certified copy
on October 5, 1942, after the suit was filed. In any event, we are
unable to agree with couniel for the appellants that where the plain-
. tiff sets up a case that a document relied upon by the defendants
in support of their case is a fabrication, it is necessary for him
either by his original plaint or by amendment therein to formally
plead that the document is a fabrication and that unless he does
so he is not entitled to ask the Court to try that plea. The Trial
Court had to try the issue of severance of the joint family status
by the decree in suit No. 27 of 1923. Whether partition had taken
place had to be determined on evidence produced at the trial.
Whether evidence in support of a party's case is. reliable may be
raised by the other party without incorporating the contention
relating thereto in his pleading. If the rule suggested by counsel
for the appellants were to be followed, trial of suits would be highly
incoRvenient, if not impossible, because at every stage where a
party contends that the evidence relied upon by the other sicle is
unreliable he would in the first instance be required to amend his
pleading and to set up that case. The Code of Civil Procedure
does not contemplate any such procedure and in practice it would,
if insisted upon, be extremely cumbersome and would lead to great
delay and in some casei to serious injustice.
The Trial eourt, as we have already observed, on a consideration of the entire evidence and the subsequent conduct of the parties
came to the conclusion that there was no severance of Bijendra
Narain from his uncle Bidya Narain and with that view the High
Court agreed. It is true that the High Court did not enter upon a
reappraisal of the evidence, but it generally approved of the reasons
adduced by the Trial Court in support of its conclusion.. We arc
unable to hold that the learned Judges of the High Court did not,
as is contended before us, consider the evidence. It is not .the duty
of the appellate court when it agrees with the view of the Trial Court
on the evidence either to restate the effect of the evidence or to
reiterate the reasons given by the Trial Court. Expression of
general agreement with reasons given by the Court decision of which
is under appeal would ordinarily suffice.
We may advert to the iuue whether the properties which stood
in the name of the 24th defendant belonged to the joint family of the
parties. As found by the Court of First Instance and affrmed
by the High Court many items of property were acquired in the name
of the twentyfourth defendant by Bidya Narain. Some of these
properties were acquired by purchases at court auctions. The Trial
Court has held that these properties were acquired with the aid of
joint family funds by Bidya Narain and his sons, and with that view
the High
Court agreed. Couniel for the appcll1111ts concedes
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SUPllBMB COtaT llJ!PORTS
(1967) I 8.C.R.
that on the . findings recorded by the High Court, in the properties
which w,,ere acquirt:d by private. treaty the plaintiff Bijendra Narain
bas established his claim to a share, but he contends that a share in
the properties which had been purchased at court auctions cannot
be given to Bijendra Narain because of s. 66 of the Code of Civil
Procedure.
Section
66( I) of the Code of Civil Procedure
provides:
"No suit shall be maintained against any person claiming
title under a purchase certified by the Court in such manner
as may be prescribed on the ground that the purchase was
made on behalf of the plaintiff or on behalf of some one
through whom the plaintiff claims."
Transactions which are called 'benami' rea lawful and are not prohibited. When it is alleged that a person in whose natμe the property
is purchased or entered in the public record is not the real owner,
the Court may, if the claim is proved, grant relief upholding the
claim of the real owner.
Buts. 66(1) seeks to oust the jursidiction
of the Court to give effect to real as against benaml title.
The object of the clause is to prevent claims before the civil court
that the certified purchaser
purchased the property benami for
another person. Thereby the jurisdiction of the civil court to give
effect to the real as against the nominal title is restricted and the
section must be strictly construed. Where a person alleges that a
property purchased at a court auction was purchased on bis behalf
or on behalf of some one through whom he claims, the suit is clearly
barred. But the suit filed by Bijendra Narain is not of that nature.
By paragraph 13 of the plaint it was averred that "the defendant
No. 1 and his brothers and their father admitted before the panchas
that all the properties held by the parties (the group of.the plaintiff
and the defendants !st party) including those acquired in the names
of the defendants 1,3,6 and Bidya Narain Choudhary as also those
acquired in the name of the defendant 24, who is the son of the
sister of the defendants 1,2 and 6, were the joint properties of the
plaintiff and themselves, and they also admitted that the plaintiff's
share in all the properties was half and it was suggested that a li&t of
all the joint properties should be drawn up for the purpose of partition and accounts and it should be looked'', and by paragraph 19 the
plaintiff Bijendra Narain claimed a share in the properties including
the properties standing in the name of the 24th defendant. It was
not alleged by Bijendra Narain that any property was purchased
by the 24th defendant on his behalf or on behalf of another person
through whom he, Bijendra Narain claimed. Bijendra Narain
claimed that all properties standing in the name of Bidya Narain
and his sons and also of Hashistha Narain (defendent No. 24)
were joint family properties, and that properties were acquired in
the name of the 24th defendant by Bidya Narain and his sons with
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GIRJA NANDINI v. BIJENDJl.A NARAIN (Shah, ]. )
I 0•3
a view to defeat his claim. He did not set up the case that the 24th
defendant acquired the properties for him, nor did he plead that the
properties were acquired for some person through whom he was
claiming. ·His claim was that the properties belonged to the joint
family, because they were purchased by Bidya Narain and his sons
with the aid of joint family funds in the name of the 24th defendant.
Such a claim does not fall within the terms of s. 66( !). The judgment of this court-Addanki Venkatasubbaiah v. Chilakamarthi
Kotaiah(') does not assist the case of the appellants. The decision
of the case turned on the true interpretation of s. 66(2). It was
found in Addanki Venkatasubbaiah's case by the Trial Court
and by a single Judge of the High Court of Madras that the property in dispute was purchased at a court auction by the defendant as
agent for the plaintiff and with the funds belonging to the plaintiff,
but it. was purchased in the defendant's name without the consent
of the plaintiff's father who was the real-purchaser. The case
fell squarely within the terms of sub-s. (2) of s. 66. A Full
Bench of the High Court of Madras on a reference made in an
appeal under the Letters Patent held that such a suit was not
maintainable. This Court pointed out that on the facts proved,
there was no doubt that the auction purchaser had acted as agent of
the plaintiff and had taken advantage of the fact that the plaintiff's
mother placed confidence in him and had entrusted to him the
management of the plaintiff's estate and the suit could not be dismissed under s. 66( I), for it was expressly covered by the terms of
s. 66(2) which provides that nothing in sub-s. (1) shall bar a suit
to obtain a declaration that the name of any purchaser certified as
mentioned in cl. (I) was inserted in the certificate fraudulently or
without the consent of the real purchaser. The contentio• raised
by the appellants must therefore fail.
Finally, it was urged that since defendants Mode Narain and
Rajballav Narain had died during the pendency of the proceedings,
the High Court was incompetent to pass a decree for account again~t
their estates. Rajballav who was defendant No. 6 died during the
pendency of the suit in the Trial Court and Mode Narain who was
defendant No. 1 in the suit died during the pendency of the appeal
in the High Court. But a claim for rendition of account is not a
personal claim. It is not extinguished because the party who claim&
an account, or the party who is called upon to account dies.
The
maxim "actio persona/is moritur cum persona" -a personal action
dies with the person-has a limited application. It .operates in a
limited class of actions ex de/icto such as actions for damages for
defamation, assault or other personal injuries not causing the
death of the party, and in other actions where after the death of the
party the relief granted could not be enjoyed or granting it would
be nugatory. An action for account is not an action for damages
(I) C.A. No. 120 of 1964 decided on August 12, 1965.
I 04
SUPREME COUIT REPORTS
[1967) I S.C.R.
ex delicto, and docs not fall within the enumerated classes. Nor is
it such that the relief claimed being personal could not be enjoyed
after death, or granting it would be nugatory. Death of the person
liable to render an account for property received by him does not
therefore affect the liability of his estate. It may be noticed that
this question was not raised in the Trial Court and in the High Court.
It was merely contended that because the plaintiff Bijendra Narain
was receiving income of the lands of his share no decree for accounts
could be made. The High Court rejected the contention that no
account would be directed in favour of the plaintiff on that account.
They pointed out that the mere fact that the plaintiff was in
possession of some portion of properties of the joint family since
1941 cannot possibly absolve the defendants, who were in charge
of the management of the properties, from rendering accounts of
their deallnes with the joint family
estate. The plaintiff was
since September 1941 severed from the joint family in estate and also
in mess and residence, and he was entitled to claim an account
from the defendants from September 1941, but not for past dealings.
Thf fact that the plaintiff is in possession of some of the properties
will, of course, have to be taken into account in finally adjusting
tlie account;
The appeal fails and is dismissed with costs.
G.C.
Appeal dismissed.
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