# ]'~] SriUia s N~igation Co. W v. Uniun of India

- **Citation:** [1962] 3 S.C.R. 440
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sriuia-s-n-igation-co-w-v-uniun-of-india-2454
- **Pages:** 44

## Headnote

]'~]
SriUia s .....
N~igation Co. W.
v.
Uniun of India
Suolw HM 7.
IHI
..
440
SUPREME COURT REPORTS
[1~2)
BY CouRT : In accordance with the judgmP-nt
of the majority of the Court, the appeal fails and
is dismissed with costs.
Appeal dismissed.
BHAG\VAN DAYAL
l!.
MST. REOTI DEVI
(P. B. GAJENDRAGADK.lR, K. SrrBRA R•o 11nd
M. Hl:I>AYATUI.LAH, J.T.)
R<aJvd1cata-Suit in Ret•""" Court-Queation of propri-
•tary title referred lo Civil Gourt--Decru-Subsequent auit in'Cit'il
Court for declaration of title--Whether decrr£ of Revenue Court
op•rntt.< aa re• jwiiwta -Code of Citil Prowlurr, 1908 (Act V of
11108), 1. II.
!Fnd" T.aw-.Toint family-Prwimption ,... to joinl1te1118tparation-Re-union, proof of-lrhelh<r m•mb•r> of different
bra,.che" can acquir. prop•rly a1joinl llindufamily property.
One I. \V&S living voith his sons K and J in the village.
lie was not in affluent circurnstances.
K left the ancestral
home;
he first joined
military service and
then police
srrvice.
He gave up service and started a business with
his savings.
He brought his nephews R (husband of the
respondent) and B (appellant) at different limes and allowed
them to take part in the bminess.
At his death K left a
will
bequeathing all
his prope11ies
to his two nephews.
After the death of R, his widow,
the respondent, filed a
suit againc;c B,
the appellant in a Revenue Court under
the U.P. Tenancv Act, for a half share of the inco:ne of
•ome of the villages left by K. As a dispute aro<e as to
proprietary title the Revenue Court framed an issue there
on and referred it to the Civil Court a< required by the Act.
The Civil Court held that the respondenr had a half share in
the vilhl.ges and on the bac;is of this finding the Revenue
Court decreed the suit. Thoreafter, l~e ap~ellant filed the
present suit in a Civil Court for a declaration that he was
the absolute owner of all the properties io suit.
His case wru
that L, his sons and descen<lanrs constituted a joint f{iudu
family, that there \\'a'i never any partition in the family, that
K, R and B jointly started a business and thev joinrly acquired
.some properties during the lire time of K, some after the
death of Kand some after the death of R, that the said properties were joint family properties and chat he as the survivor
was the absolute owner of all the propertie;. Alternatively,
)
•
•
' •
-
-
3<£.C'.R.
SUPREME'OOURT: REPOR'lfS
<
ho·pleaded~hat even if· there·wa• a partition in the· family of
L, a-reunion should be· inferred ·rrom the>cond11et of K, Rand
Jl;'d'ln'ing-the llfcrime· ofK and' thereafter.
The- respondent
oo"tMdcd that the family of L was divided, that K started
the business with the aid of his-self acquisitions and purchased
properties out' ahhe iricome thereof; that after the death of K
the two brothers R and 'B'• got· his properties under his will,
than they joimly aaquired·.furthm· properties out of the focome
~ ofthe·busine111,.tluu after tlte" dcalhof R, the appellannu<-
ceeded to . the half share• of R
anG! th.at the c!ecree o£Jhe
Revenue Court operated as res judicata.
•
Held, that •the suit was not barred; by re&-judk,ataz by the
jw:lgmeat of the Revenue·. Court. . The present suit wa.uwt
within the exclU&ive jurisdiction of ,tM1 · Revenue Court and was
maintainable in the Civil Court amd as such s. 11 of the·Code
of Civil Procedure was attracted. The judgment of the Revenue
Court on. the- issue• of pr9prictaw title couJd not operate as
, reajudicata a&·the·Revenue Court \Vas: not competent to try
the subsequent suit,.
Venkatarama Rao v. Venkayya•; A. I. R. l 954•MacL 783,
approved.
Held, further, that there was a partition of the family
during the lifetime of L. Every Hindtt-. family kpresunred,to
be jqint unless the contrary fa Proved; but thi~ presumption
can be.rebu_tted by direct evidence of partition or by course of
_...,, conduct leadjng to an inference 0£ partition.
There is _no presumption that when one meinber separates fiom-the others the
latter remain united; Whether-the latter rem

## Text

_Characters 0–39,972 of 89,705. This is a partial read: ask again with offset=39972 for what follows._

]'~]
SriUia s .....
N~igation Co. W.
v.
Uniun of India
Suolw HM 7.
IHI
..
440
SUPREME COURT REPORTS
[1~2)
BY CouRT : In accordance with the judgmP-nt
of the majority of the Court, the appeal fails and
is dismissed with costs.
Appeal dismissed.
BHAG\VAN DAYAL
l!.
MST. REOTI DEVI
(P. B. GAJENDRAGADK.lR, K. SrrBRA R•o 11nd
M. Hl:I>AYATUI.LAH, J.T.)
R<aJvd1cata-Suit in Ret•""" Court-Queation of propri-
•tary title referred lo Civil Gourt--Decru-Subsequent auit in'Cit'il
Court for declaration of title--Whether decrr£ of Revenue Court
op•rntt.< aa re• jwiiwta -Code of Citil Prowlurr, 1908 (Act V of
11108), 1. II.
!Fnd" T.aw-.Toint family-Prwimption ,... to joinl1te1118tparation-Re-union, proof of-lrhelh<r m•mb•r> of different
bra,.che" can acquir. prop•rly a1joinl llindufamily property.
One I. \V&S living voith his sons K and J in the village.
lie was not in affluent circurnstances.
K left the ancestral
home;
he first joined
military service and
then police
srrvice.
He gave up service and started a business with
his savings.
He brought his nephews R (husband of the
respondent) and B (appellant) at different limes and allowed
them to take part in the bminess.
At his death K left a
will
bequeathing all
his prope11ies
to his two nephews.
After the death of R, his widow,
the respondent, filed a
suit againc;c B,
the appellant in a Revenue Court under
the U.P. Tenancv Act, for a half share of the inco:ne of
•ome of the villages left by K. As a dispute aro<e as to
proprietary title the Revenue Court framed an issue there
on and referred it to the Civil Court a< required by the Act.
The Civil Court held that the respondenr had a half share in
the vilhl.ges and on the bac;is of this finding the Revenue
Court decreed the suit. Thoreafter, l~e ap~ellant filed the
present suit in a Civil Court for a declaration that he was
the absolute owner of all the properties io suit.
His case wru
that L, his sons and descen<lanrs constituted a joint f{iudu
family, that there \\'a'i never any partition in the family, that
K, R and B jointly started a business and thev joinrly acquired
.some properties during the lire time of K, some after the
death of Kand some after the death of R, that the said properties were joint family properties and chat he as the survivor
was the absolute owner of all the propertie;. Alternatively,
)
•
•
' •
-
-
3<£.C'.R.
SUPREME'OOURT: REPOR'lfS
<
ho·pleaded~hat even if· there·wa• a partition in the· family of
L, a-reunion should be· inferred ·rrom the>cond11et of K, Rand
Jl;'d'ln'ing-the llfcrime· ofK and' thereafter.
The- respondent
oo"tMdcd that the family of L was divided, that K started
the business with the aid of his-self acquisitions and purchased
properties out' ahhe iricome thereof; that after the death of K
the two brothers R and 'B'• got· his properties under his will,
than they joimly aaquired·.furthm· properties out of the focome
~ ofthe·busine111,.tluu after tlte" dcalhof R, the appellannu<-
ceeded to . the half share• of R
anG! th.at the c!ecree o£Jhe
Revenue Court operated as res judicata.
•
Held, that •the suit was not barred; by re&-judk,ataz by the
jw:lgmeat of the Revenue·. Court. . The present suit wa.uwt
within the exclU&ive jurisdiction of ,tM1 · Revenue Court and was
maintainable in the Civil Court amd as such s. 11 of the·Code
of Civil Procedure was attracted. The judgment of the Revenue
Court on. the- issue• of pr9prictaw title couJd not operate as
, reajudicata a&·the·Revenue Court \Vas: not competent to try
the subsequent suit,.
Venkatarama Rao v. Venkayya•; A. I. R. l 954•MacL 783,
approved.
Held, further, that there was a partition of the family
during the lifetime of L. Every Hindtt-. family kpresunred,to
be jqint unless the contrary fa Proved; but thi~ presumption
can be.rebu_tted by direct evidence of partition or by course of
_...,, conduct leadjng to an inference 0£ partition.
There is _no presumption that when one meinber separates fiom-the others the
latter remain united; Whether-the latter remain united or not
must be decipecl orr the facts'o~'ea~h case,
In the caoe of old
transactions When' no contemporaneoui decuments af'C1 main ..
tained and when most of the active participants 0£ the,tran•
sactions .have pa!Sed .a.way, though. the burden still remains on
the person who asserts separation, it is permissible to fill .up
gaps more readily by reasonable inferences thari in cases where_ ..
the--evmnce i> not ob1itera<tecLby passage.ofitr.n.,. The· conducf
' ,
of the parties for about 50 years wa" consistent. with their
separation rather than with their jointness.
Hekl, furt~r. that it was not establiShed that there wa
any reunion hl"'tween K and hiil. nephews·.
Reunion must.· be
!trictly proved.
To constitute reul'l.ion tlR-remust be am. intention.of the parties to reunite in estate_ and interest.
It i!
implicit in the concept of a. reunion that there shall be an
agreement between the-· parties to reunite· iii: estatcr w.ith an
~intention to _revert. to their form_er. status of a joint Hindu
family. ·It is not necessary that there shouid· be·a,formal and
f'xpress agfecmentc' fu·teuhite;· snch an·agreement·cat11.be,established by clear evidence of conduct incapable of explanation
lfl/Jl
Bhagwan Daytil
y,.
M:st. R1oti D1ui
1961
Bha1wan Dayal
v.
Msf, Rtoti Dtri
442
SUPREME COURT REPORTS
[1962
on any other footing.
In the plaint it was not alleged that a-,
reunion had taken place by agreement but the court was asked
to hold that there was reunion on the ground that the conduct
of part~cs amou~tcd to a ~eunion. The conduct of the parties
spreadmg.over :iO years .ct1d not •how that Kand his nephews
had consciously entered mto an agreement to reunite and become members of a joint Hindu family.
Palani Ammal v. Muthuvenkatacharla Maniagar, (1924)
L.R. 52 I.A. 83, Venkataramayya v. Tatsna, A.l.R. 1943 ).
Mad, 538 and Ramadin v. Gokulpraaad, A.l.R. 1959 M.P.
25 1, referred to.
It is not possible under the Hindu law for some
members only belonging to different branches or even to a
single branch of a family to constitute a subordinate joint
Hindu family.
Any property jointly acquired by such members cannot become joint family property and would be
governed by the terms of the agreemr:nt b~tween them under
....
'"·hich it was acquired.
The principle of joint tenancy is 1
unkno,vn to Hindu Ja\v except in the case of the joint property
of an undivided Hindu family governed by the Mitakshata law
which under that law passes by survivorship.
Sundaraman Maistri v. Sara.•imhulu Maistri, ( 1902)
I.LR. 25 Mad. 149, ChakreKannan v. Kunhi l'okkar, (1916)
J.L.R. 39 Mad. 317, The Official Assignee v. l.l'ulambal Ammal
(1933) 65 M.L..J. 798, llimmat Bahadur v. Bhau:ani Kumar,
(1908) l.L.R. 30 AU. 352, Jogeshwar Narain Deo '"Ram Chun;.
Dutt, ( 1896) L.R. 23 I.A. 37 and Babu Rani,., Rajendra Bak.!1' ..
• 'ingh (1933) L.R. 60 I.A. 95, approved.
l.l'athlL Lal v. Babu Ram, (1936) l..R. 63 I.A. 155 and
Rampraahad Tewarry v. Sheochuran Doss, (1866) 10 M.I.A.
490 referred to.
Sham Narain v. Th• Court of
Ward• (1873) 20 W.R.
197, overruled.
CIVIL APPELLATE JURISDICTION : Civil Appea.l
N'o. 448 of 1958.
Appeal from the judgment and decree dated
May 7, 1944, of the Allahiibad High Court in First
Appeal ll:o. 486 of 1944.
M. C. Setali-ad, Attorney-General for India and
B. ]). Sharma, for the appellant.
A. V. Viswanatha Sastri, S.N . .A.ndley. Rameshwar
Nath and P.i.V. Vohra, for the respondent.
'
>
3 S.C.R.
. SUPREME COURT REPORTS
143
1961. September 4. The judgment of the court
was delivered by
SuBBA RAO, J. -This is an appeal by certificate granted by the High Court at Allahabad against
its judgment dated May 7, 1954 settin~ aside
the decree made by the Civil Jndge, Agra, in a suit
filed by the appellant for a declaration that the
properties more particularly mentioned in Schedules B, C and D annexed to the plaint, were his
absoh1te properties.
To appreciate the facts and the contentions
of the parties, the following relevant part of the
genealogy will be useful.
Pt. Lachhman Pras&d
I
i
Pt. Kashi Ram
I
Mst. Batashi
I
Raghubar
I
Banwari
Dayal
Lal
Mst. Reoti Devi
I
..
Pt. Jwala Prasad
I
Bhagwan
Dayal
I
I
I
Ram
Lal
I
I
}fat. Dayavati
Ajudhia Prasad
The date of death of Lachhman Prasad
does not appear in
the record. Jwala Prasad
died in 1908; Kashi Ram, in 1924; Ram Lal,
in 1914; Banwari Lal, in 1914; and Raghubar
Dayal, in
1933.
The ancestral house of the
family was in village Naugaien, district Farrukhabad. The
plaintiff's case
is that Lachhman
Prasad, his sons and descendants constituted a
joint Hindu family, that there was never a partition in the family, that three of the members of the
said family, namely, Kashi Ram, Raghnbar Dayal
and Bhagwan Dayal, jointly started a business at
Agra, that they jointly acquired some ·properties
and houses during the lifetime of Kashi Ram, some
1981
Bhagwan Dayal
v.
M1t. Reoti rfvi
Sultia Rao],
1941
BMcu""' Da:fO/
v.
, st. /{1oti Droi
SMila_RaoJ.
•
SUPBEME:COURT REPORTS
[l962]
afUir h'is death, and others aftlir the death of
Raghubar Dayal, and that the said p_roperties were
the jGint family properties of tho Raid members,
under the Hindu ld.w. His fort.her <'.a.Be is that after
th6' death of Kaehi Ram, the litisiness ·and' the properties acquired. dming his life f.ime devolved upon
the plaintiff and· RagJombaT Dayal by survivorship,
and. that after the death of' RaghubaT Dayal tho
said prop.ertis; aloog with' t!Jle.propertics acquired
<luring tho lifetime of Raghubar Dayal passed on
by survivorship 'exclusively to tlie plaintiff: The
properties deecri!Jed in Scliednle A are the ancestral properties; those desCTibed irr Schcc:lufo ·B are
the propnrtiesi acquired jointly by the said three
members during the life-time of Kashi Ram; these
dt•scribed in Schedule C arc properties acquired by
Raghubar Dayal and the plaintiff after ilie deiLtbi
of Kashi Ram; and the ]) Schedule properties are
those acquired by the plaintiff after tho death of
Raghu bar Dayal.
. Alternatively, it is alleged that even on the
assumption that there was a partition in the family
of Lachhmrm Prasad, a reunion should be inferred
from the conduct of the said three members dndn~
tho lifetime of Kashi Ham and thcreaft.,r. It is
further aUcged.that the defendant, tho widow of
Raghubar Dayal, filed suits in the Revenue-Court
under the pro?isions of.the U: P. Tenancy Act for•
half a Rharo ill'the income ofmauza CJia.oli, Chak
So yam Nag la Kasheroo and .mauza Chak. Chs.haram
Talab Firoz Khan, that the said Revenue Court,
framed an issue raising .the question of titlo to the
sR.id properties and sent thf\ same for decision to
the Civil Com-t, as it should do under the prodsions of the said Act, that the learned· District
Munsif held in Suit No. 15 of 1939, a suit filed in
respect of mauza Chaoli, that the plaintiff therein
had title to I\ half share in. the said village, that
the Revenue Cburf, on the basis of tho said finding,
gave a decree- in her favour· i9 rei!pect ofh~lf a
share· of the focome of the said village and that
't
)
.
' -
' -
-
)
-,
:l -S.C.R.
the ~aid decree· wa;s1 taken on appeal to the District
Court ;a,nd also, on further appeal, to the High
Court,rbnt withcrut .lfl'll.coess i.e., the· decree of the
District Mnnsif was confirmed, and that the suits in
respect . of ot.her v¥11ages •are StHl pending. The
plaintiff (appell&nt he<rein) says that the said. finding · of ·rthe Rev!lflue Court does -not operate as
re8 judiC&ta in thll' present suit, anl:l·that he is entitled
to reagitate the ·matter. On ·those allegations the
present•.suit was filed m the court of the Civil Judge,
Agra, for a 'Cleclaration of the plaintiff's title to the.
properties described in ,Schedules B, C and D
annexed to the plaint and for11permanent injunction. restTa,ining the defendant· from executing the
decree1in Suit No. 15 ofl9'39.
'The defendant (r!lllpondeBt herein) .in her
written-statement alleges that the family of Lach-.
hman Prasa,d was divided, that Jushi Ram started
a business in Agra only. ,with t.he. aid of his selfMquisitions and purchased properties out of the income- 'de:i-ived ·therefrom, .that .after the death of
Kashi'Ram the two'brothers, Raghubar Da.ya.l a.nd
Bhagwan Dayal (plaintiff), got his. pl'.operties 111nde:r
a will executed by him, that thl)y jointly .acquired
further properties 'from and out of the income .of
the business started by Kashi Ram, and that after
the death of Raghubar Dayal the defendant succeeded to. the interest of Raghubar Day.al. and· that, .
~therefore, .she . was ·entitled• to an equal share .in B,
C·aJI.dD Schedule properties alongcwith the plain ..
tiff. She further .pleads that. the deeision<if.the
Revenue Court in. Suit No. 15 of 1939, hold.ii;Jig that
the brothers were not members ofa joint family
and that, therjlfore, .she . succeeded· to the,inliereste
of.h!Jr Jmsband, R~h\lbar DayaJ, Jin the joint properties, ·optirated· 1 :as . res judi,rata , in. respect .of the
plaintiffs entire claim.
'The suit was tried by the Civil Judge, Agra,
. alid'the lear.ne<l'Ju'dge,gave the following finding~: i
( l) the judgment and decree of the Revenue Court
1861
Bhagwon Day«l
v.
.
Mst.' Reoti Devi
Subh• Ra• J.
J9{iJ
Bhagwari Dayal
v.
Msl. Rroti Dr! i
s~Wbo Rao].
•
446
SUPREME COURT REPORTS
(1962)
in Suit No. IG of 1939 operated as res judirnta on
the question of title of the defendant only in
respect of the half share claimed by her in mauza
Chaoli ; (2) there was a. partition of the larger
family, and that KaEhi Ram, Raghubar Dayal and
Bhagwan Dayal were the divided mombers of the
said joint family;
(3)
there was no reunion
between the said members; (4)
Kashi Ram had
validly bequeathed his properties under a will to
his two nephews; and (fl) there was a reunion
between Raghnbar Dayal and Bhagwan Dayal and,
therefore, on
the death of Raghubar Daya.I,
Bhgwan Dayal acquired hie interest in the plaint
schedule prcperties by survivorship. On the said
findings the Civil Judge declared the plaintiff's
absolute title to the properties described in
Schedules B, C and D, except in regard to a half
share in mauza Chaoli. The defendant preferred
an appeal against that decree to the High Court ;
and the plaintiff preferred
cross-objections in
respect of his claim disallowed by the Cfril Judge.
The appeal was heard by a. division bench of that
Court consisting of Agarwala and Gurtu, JJ. The
two learned Judges gave different findings but
ca.me to the same conclusion in holding against t.hc
plaintiff.
Briefly stated, the findings of Aga.rwala, J.,
are as follows : ( 1) The evidence on the record iB
11ot sufficient to establish partition in the family.
(2) Though as a matter of law two or more members
of a larger Hindu family not belonging to the same
branch can form a smaller joint family and acquire
properties with all the attributes of a joint Hindu
family property, in the instant case the evidence
doos not establish that Kashi Ram, Raghubar
Dayal and Bhagwan Dayal oonstitut~d such a unit
and acquired the
properties ; the
pt'operties
were the self.acquired properties of Kashi Ram,
but were bequeathed by him in equal shares to
Raghubar Daya.I and Bhagwan Dayal, and after
).
,. -
·-
'
I
'
'
-
-
•
3 S.C.R. SUPREME COURT REPORTS
44 7
his death they held those properties and those
1" acquired subsequently only as co-tenants and not
as members of a joint Hindu family. (3) The
finding of the Revenue Court in Suit No.
15 of
1939 does not operate as res judicata in respeet of
any properties in the suit. In the result,
the
lca.rned Judge held that the properties describEd in
Schedules B, C and D were owned by the plaintiff
-<
and the defandant in equal shares.
Gurtu, J., gave the following findings : (1)
There was a separation between Kashi Ram and
Jwala Prasad and also between the sons of Jwala
Prasad. (2) Two brothers out of four and an uncle
cannot in law form a distinct corporate family .
~
with the incidents of a joint family and acquire
properties for that unit. (3) Kashi Ram could
' never reunite with his nephews as a matter of law,
because Kashi Ram had separated from Jwala
Prasad when Raghubar Dayal and Bhagwa.n Dayal
were not even born ; nor did he unite with them
a.s a matter of fact. (4) The judgment of the
Revenue Court in regard to the question of title
would operate as res judfoata in rsspect of the
. ~ plaintiff's entire claim to the estate of Raghubar
Dayal. And (5) the plaintiff and Raghubar Dayal
held the properties only as co-tenants. The learned
Judge, though for different reasons, agreed with
the conclusion arrived at by Agarwala, J. In the
result, the High Court allowed the appeal filed by
the defendant and dismissed the cross-objections
1 filed by the plaintiff : the suit of the plaintiff wa1
dismissed with costs throughout. Hence the present
appeal.
We shall first take the question whether the
judgment of the Revenue Court passed on the findings recorded by the District Munsif in Suit No. 15
of 1939 operates as res judicata in the present suit
in respect of the plaintiff's right to succeed to the
•. share of her husband, R~ghubar Dayal, in the joint
properties. Some of the facts relevant to the
1M1
Bhagwan Dayal
v.
Mst. Rtot! Dtvi ·
Subia Rao J.
1961
Bhagu;an J)nyal
v .
.\l.it.Jltoti L'nli
Sulia Rau J.
448
SUPREME COURT. REPORTS
[ 1 ll6-2j
question JruliY be rccapitulat.cd. The- reopondent Reoti
Devi filed Suit No. 15 of 1939.in· the .Revonuu Court 1'
for, recovery of..her sha.rerof profits of village Chao Ii
against Bhagwru1 Dayal in ro!ijlcc.t. of•l343, J34.4
and 1315 f&sli
011 th~ .grom1d that . .ahe Wl\lhW,cosharer.
The present appellant, who wa.s the defon-.
dant· in that suit, contested the .suit, int~1'. lliia on
tho wo=d thatlte•and his deceased brot.ber •consti-.
tutcd members of a joint Hindu family and• that 'Gll .
his brother's death his interest in the entire joint
family proj}6I't-y devolved ·011 him by right uf sun·ivorahip.
~s ·tit€ · defe?Idant raised the question of
title, the ·H.a'.•t,'!JUO Court framed an issue -011' the
~tion of•:title raised, in· the pleatlings and rcfrn'ci'l.
the·BMRe w•tfte Crvil·Ccmrt for decieio111mdt•r"s. 271
of.the !Agra Tenancy Act, 1026 (hereinafter callctl
the Act). The•leametl ·Distri<lt ;\fonsif decided· the
issue agai.Mt,tl1e appellant herei11, with the !'esult
that t~ Revocmie•Oew-t made a Hecrce 011 ihc basis
of-that finding·mlfovour of the ·respondent ·ltcrein.
Ag.a.inst t.he- said del'R'ee,• the ·appellant preferred ·an
a.ppcab tNo•05 of 194t)• to the Distriet Court; Agra
but 'tha11 appeal was dismissed. The second 11ppe:tl
fiioed by frim ·in die High 0w.irt of 'Alhiha1'ad·,vas
also dismissed.
The ·resnlt of that litigatron was
taat.a decree <wM•given !u•favunl' of the TPBpondoot
herein for. rcGovery of· hm· share of thc·prdfits Of
village Ohaoli .. ll'he question is whether the said·
decree opera hid ·&S res"judioou1 in the Jlresent !!Uit.
The learned Judges of the 1High Court-llifferetl on
the question -of·'l'es jw.lioota ; ~garwnla, J., ·held that
tho •iiaid ·Giioision · M the ·Revenue Court ·in Suit
No. 15,ofl939 ditl not Oflerate-as re;J jwiicata miUc
Gnrtu, J., held that it did.
Learned Attorney-General conum<l.cd that the
decision in -Suit No: l5 of 1939 l\·ot.ild not operate
' '
as re.~ judionta on· the present suit for two rea&0ns,
namaly, (I) in the previouEJ-8Uit, the question of title
was decided by a Cit·H Court .and, therefore,
ij. ll
t
of •the C~e of 'E:idl ,procedure
iti terms. }~a.s
-
•.
•
,
•
.
3.s.c.n.
.SUPREllIE,COURT nE1'0RTS.'.' ;449: --
~--
attracted; !J.nd, as. that Court was.not competent to"''"'
1961 ·
try the pr!'sent suit, the.·.deoision .therein:would not: .~n,,&W«" D9d":~'
operate a~ .r:.esJuqicata ;; (2) even if the, original: suit. : , ~r, .. ~;,i;Dni\ .. ·,.,.
must be deemed to have been decided·.bva.Revenue .•. - -- . -:· , ..
Court, that Court had no exclusive jurisdiction to
s,,;1,11uy_ •' ·,;:'
decide: the present suit and,;·therefore,•any decision
therein would.Jnot:l operate :•as -resjudirota 0n the ,,.
present suit ,for., the :same• reason;•:11iz., «that the;
Court .was l,lOt;coinpetent ,to' try, the preiient: suit.,'
-'
'
.. !
- ,
-· ~ -·' l_
•
• •
• •
'
•• • :
•• - , \
I; . ._f ·r, I'!
Mr. 1.A:·V. Viswanatha'Sastti, Iearne<,l cciμnsel ,,
for' the reiq)bii.deht, 'on' the' cith{lr hand,,ccnitendeg .
that, though' the' question' of title was decided by.
a' Civil Court; ;the 'fin.aI"aecision wa'.s'thiit 6f the
Revenue 'Court; tliat."the subject7malter: (if the.,.,
present suit was Within 'the 'exclusive jilriBdicti<in o(' ':
that Com:t' anil that~ ther'efore,' the' present suit was .. -..
not maintainable. That apart, he conterideu that·
as ,the subject-ma~tei- of ,the pri:isen.t suit .was .within
the, exclusiv~_,_. jμrisdicti9n of the ,Revenmh Court,_
the_ decisiru;i of JhatCourt on.the question o£title. L
would be r~s .judica_ta in the, present suit ,not ; under.. ·
s.ll of .. the.. Code of .Civil.Procedure but under the c,
general p.l'fucjples.or' i:es. judicat.a,;,rfcir, .it ',is. said,,,
that in the case of a decision of a Court· of
exclusive . jurisdiction:· s: 11 is· not applroable ' and
therefore,
under
the
general· .• principles 'of
res'judicata>the c6nditicin..fhat the c'cikt }Vhich decid-'
. ed the preVicniirauit shciiHd'bi'competent.tci try the
subsequent sUit need not'oe. Qomplica witii. · -. : ..
•. : .• !
V•.'i/ , .. :; .. \,.1 LU•-•:
t •. ,1.;, '-'~U;''•~- -
, · ..... Befo~e,,a,d~e~~g' ourselve~ '.~tp., ~he,, question
ra1s,f!d, it would be necessary· to notice ~ome.of the
relevant prcivisicins'oftlie':Act.''.' ·; ··· •.. · ·~:, ·; .. ,
, 1!
.~~--~.:::.·1-_ .... -__;
,1-·,,..,_.1
-·--'-:•-
........ _, ··'·· "' •'' ..
, · , Sectian. 227"'1(1} 1A-cot&h3.!e_r•may:'sn6- an~"-·'" ·
•1. other ::for 1a.·' settlement .of;accounts;and for · "'"
".,f :his share of the.profifa, oflaimahal,: or-of• any.· -.·
part thereof.
.·. L ..• -'"'·"'
··••
., , ..
(2) .. - In any such suit' when it . is · proved
or. admitted:Ahat 'either party has,made col- ,,_,_ .
Jections:the amount~of•which ds ;in :issue,: he•. ·
Ilfl
B""r,... Day.·
••
Ms,..· R1tNi .D11i .
S"6la &.J.
450:
St'l'REME COURT REPORTS
(I !'62]
shall ·be bound to fumish a true account of
such collections. If he fails to do so the court
may make any presumption against him which
· it considers reasonable.
Section 230 : Subject to the prov1s10ns
of section 2i I all suits and applications
o£ the nature specified in the Fourth Schedule shall be heard and determined by the
revenue courts, and no Courts other than a
revenue Court shall except by way of appeal
or revision as provided in this Act, take
cognizance of any suit or application, or of
any suit or application based on a cause of
action id respect of which relief could be
obtained· by means of any such suit or application.
Explanation.-If the cause of action is
one in roapect of which relief might be granted by the revenue court, it is immaterial
that tho relief asked from the civil courts
may not be identical with that which the
revenue court could have granted.
Sectwn 2r1. (1) If (i) ....................... .
(b) in any euit instituted under
Chapter XIV the defendant pleads that
the plaintiff' has not got the proprietary
right entitling him to institute the suit,
and such question of proprietary right
hae not been already determined by a court
of competent jurisdiction, the revenue court
shall frame an iBBuo on the question of pro-
.prietary eight and submit the record to tho
competent civil court for the decision of that
issue only.
(2)
The· civil court, after re-framing
the issue, if neoeSBary, shall decide that issue
only and return the record together with it 8
•
, -
..
3 s.c.R.
SUPREME COURT REPORTS
451 .
finding on that issue to the revenue court
1961
which submitted it.
BJipg,... p.,_.
Y.
(3) The revenue court shall then pro-
.Mst. Reoti Devi
ceed to decide the suit, accepting the finding
S!'ih• Rao.J, .
of the civil court on the issue referred to it. ·
( 4) Every decree of 11. revenue court
passed in a suit in which an issue involving
a question of proprietary right has been decided by a civil court under sub·section (2) of
this section shall -
(a) if the question of proprietary
right is in issue also in appeal, be .. applicable to the civil court which has jurisdiction to hear appeals from. the court
to which the issue of proprietary right
has been referred ;
(b) if the question of proprietary
right is not in issue in appeal be appli·
cable to the revenue court. ·
The Fourth Sched'lde-Group A-S'Uit8·
· •
Section
I
~
' '
Serial No.
of
Description of suit
......
15.
Act.
227
By a co-sharer agai11st. a
co-sharer . for a. settJement . of accounts and
his share of .t~e profits
of the ma.ha.I, or of any
part thereof:
Section 264. The provision~ ofthe Code of
Civil Procedure, 1908, except :..:..
'
· .
.
(~) p:ovisions inconsistent with any·
thmg m this Act, so d'a.r as the inconaiitency extends,
19~1
BluztUJ4Jt D~Jtsl
v.
MJI. ~toli Dtn
SulkilM ]
452
SUPREl\~ COURT REPORTS
[19~]
{b) proviBi:ons app~icable o~ly tc
special suits or procccdmgs outs1de the
scope of this Act, and
· · (c) the pro~isions contained in list
I of the Second Schedule,
shall a!Jply to . all suits and other proceedings under this Act, subject to the modifications contained in list II of the Second
Schedule.
. The gist of the said provif':Ons may be stated
thus: One of the co-sharers can file. a. suit against
another co-sharer for settlement of a<--counts and •
for his share of the profits of a mahal or any part
thereof. If the defendant denies the plaintiff"s
proprietary right an issue on the question of title
is raised and sent to the civil conrt for decision.
The revenue court shall accept the finding of the
civil court and decide tho suit accordingly. An
appeal would lie against that decree to a court
which luw juri£diction to hear appeals from the
court w which the question WM Teferred. The
Revenue Court has exclusive jurisdiction to decide
suit& of the .nature described in Fourth Schedule.
One of the suits mentioned in the Fourth Schedule
is a suit by a co-sharer against a co-sharer for &
settlement of accounts and his share of the profits
oC th~ mahal, or of any part thereof. No other
court shall take cognizance based upon a cause
of action in respect of which relief can be obtailled
by any such ttuit.
·
The first ql)Cl'Y is whet.her the present suit is
ba.sed au a cause of action in re~;pect of which relief
cau be obtained by means of a suit specified in the
.Fourth Sehedula to the Act. Tite prt'tit:nt &uit is
for a ded:uation of the plaintiff's title to the plaint
I!C~d\llo propertietS and for a!l injunction restrainlng the exeeutWu Qf the decree obt&ined by the
de~endan~ in the Rev~nue Con£t. The ple.intiff
cla1ms htle to the sutt properties on the ground
'. 3 S.C;R.
CSOPRElIE CCHJRTLREPORTS.
453
·that he7 was• a •member; of af: jomt·.:Hinuu family' .· · ~
alcing·with his deeeased·brother- ltnd;ttherefo:OO, he .. ,•'..i!A.ir-D.;,i
succeeded to his share. by ''right.· of'"surV:ivu:f!l;~ip·:~ :iJ.tst. i~i Ji.,;
•. Th~. qt1estion:is whether·SU~ a suit is,in the ria_tur~ •·; .. :__ .,
. ;.otsuits . .specified· in tJ:e.•J?.qurth,.fl11hedule. ,to ·the" "•SuJ/JaRMJ. ·
, Ant .. ,'.I:he,s:iidSch~uhi.d()es~ not ,p.rovideJor any
. ~it .by.a p~fsOJ~ claiini~,tq !Je the .. ,proprietor of a
.. p.i;operty. ,an~ in" possessjon .. thereof .. ,Fraying f ?r a ·
declaration .o.f: his t~tle 1t!ld for ~.injunct~on agamst
another who IS trying to interfere '!ith his title. If
so, under s; 230 of the Act,'the Revenue Court has
. :no excliisivejurisdietion·tor .. entertain: a :suit of the
tiafare thafis before us.::· If it is :i:wt · 'i'iiuit•of that
nature; under that'·sectionr·the...'civil ·court's juris~
dictioniis riot·ouSted. ,·A'fu!l:berich of the .Madras
High Conrt·hacl:occasion1to•con2ider a•similar question arisingiUriderthe :l!adras•Estates:.Land Act,
, .1908 in· .Ve11katarama,Rao., V;; V enkayya{~).., .. There,
ce'rfain:tenants.;filed a petition ,,i.irider .. ;S.'1:0.of , the
l\fadras:Estate:iLa~d..A,Ct;. ·"1908~., in,,'.- the., .r1.wenue
court. for:~plln.utation '!f re~t':aga~s(th~ j landho~-
. 'ders.;: The,:landholders, r:used,,the.plca that. the
rillagq .ill ;which the· petitioners'.'.lands ;Wei~ situated
WaS not an estate and;tliere:fore;,-~he'..'p'etitiQD •WILS
n.ot maintainable in thti. 'ievelllle' .. court. 'The
Revenue DiviSional Officer' held that it
1 was. not an
estate and; ozi th3.t 'finding,': dismtsseil 'the petition ..
TJie,ina.t~er ,.va~ t1,1~~n.u,p'()#'~j>p~aL,tci'·:the D~strict .
· Court and thereafter td 'the: H1gfi:-Court; without
.
success. "Subse'q'tien't!Y, 'the landlords' filed a: suit in .
. : ·. the 'Ciy~ .. Q~Urt againSt'.ih~J~~ant,f!.'f~r ~~- injUnction
. ,
restra,m1:ig.th~~. f~o,m. re~O,VI!!g .~~:. pag?y, c.rops
standing on the smt lands until the rent was·pa1d to
them; . ·The« Jaji.Cl.holders : raiaed.the'plea'' that the
decision of the re~e:imthfoiiit 'hoidii:ig that the vil-
. lage•was not'an estate ·was·binding 1'on:'the.Ci'vil
court~ •.'.·The·full: bench' of the l!ailra.ff Hlgli Court
held• that' the;: 'Said• finding.'. was ·not« binding on
the ·civi!I• ciJurt: :1 Adverting to··s.•189(.3} of the
•£A-~
-, -_-.,; •.
;~.1,~··1r·~·:-· .... ';,:_:.-1:, ,1[ __ ;,,-;.._;.'):,_ .. f.:i, :. : ..
(I)-~-~· I:~:,~·.I9J,~.:~P~·.:?~~~··:!.
~;-j~;z_~.-:-~!·-~.--~,;.· 0·:_\ ~;:.'._/;;: ·
~ · {;
..
1161
BMtwon Daydl
v.
his:. Rtoti .Ditti
~l•iu..].
...
454
SUPREME COURT REPORTS
[1962]
Madras Estates Land Act,
s. 230 of the present Act,
observed thus at p. 790 :
..,
which corresponds to
the learned Judges
"Therefore, it is ckar that it is only in respect of such disputes or matters as arc covered
by the suits or applications specified in s.189(1)
tbat the revenue court can be said to have ).
exclusive jurisdktion, that
is, jurisdiction
to the exclusion of a civil court.
x
x
x
x
x
x
If a particular mattff is one which does
not fall within the exclusive jurisdiction of the
revenue court, then a decision of a revenue
court on such a matter, which might be incidentally gi\·en hy the revenue court, cannot '
be binding on the parties in a civil court."
We agree with the s!l.id observations. On the same
analogy, the present suit was not within the exclusive jurisdiction of the revenue court and, therefore
the suit in the civil court was maintainable. If so,
s. l l of the Code of Civil Procedure is immediately
attracted to the present suit. The relevant part of .•
s . .II of the Code reads :
"No Court shall try any suit or issue in
which the matter directly and substantially in
issue has been directly and substantially in
issue in a former suit between the same parties
or bf tween parties under whom they or any of .
them claim. litigating under the same title, in •
a Court competent to try such subsequent suit
01 the suit in which such issue has bel'n subseque11tly raised, and has been heard and
finally decided by such Court."
In this case the title to properties now put in issue
was tried in the revenue court. Rut that court is
not competent to try the present suit in which the
same issoo is raised. It follows that in terms of·
B.11 of the Code, the decision on the said issue in
the revenue court could not operate as res judicata
-
-
)
38.C.R.
SUPREMECOURT REPORTS
.455
for the necesgary condition of competency of that
court to try the present suit is lacking.
In this view, it is not necessary to consider
the differences between the scope of the principle of
res judicata covered by s.11 of the Code of Civil
Procedure and that of the principle of res judiC1.1ta
de hors the said section. Nor is it necessary to express our view on the question whether the decision
on the question of title in the previous suit was
that of a revenue court or of a civil court. We,
therefore, reject the .plea of res judicata.
We shall next take the question of partition
in the larger family.
Learned Attorney General
contends that the finding of Agarwala, .J., that there
was a partition of the larger family is correct and is
supported by evidence in the case. Mr. Viswanatha
Sastri,
learned
counsel for
the respondent.
contests the correctness of both the legal and
factual submissions made by the learned Attorney
General. His argument may be briefly snmmarized
thus : The members of the family were villagers.
the ancestral property owned by them was insignificant, its income was small, the partition must
h1we taken place long ago, and in these. circumstances neither documentary evidence · nor . the
evidence of the elders is available but there is suG.
cient evidence on the record to sustain the· finding
of partition given by the learned Civil Judge and
Gurtu, J.
The general principle is that every Hindu
family is presumed to l;)e joint unless the contrary
is proved ; but this presumption can be rebutted by
direct evidence or by course of conduct. It is also
settled that there is no presumption that when one
member separates from others that the latter remain
united ; whether the
latter remain united or
not must be decided on the facts
of each
case. . To these it may be added that in the case of
old transactions when no contemporaneous documents are maintained and when·most bf. the active
19~1
Bi"'l- 1!ayal
v.
Msl. Rroti. 'D1vi
. Subb•Ra• ].
'· )
' i
:ZIIl
~D!SJd
"·
M•t. Rtoti D,;
SUPREME COURT REPORTS
[1962]
participants in the transactions have passed away,
thougl- the burden still remains on the person who
asserts that there was a partition, it is permissible
to fill up gaps more readily by reasonable infert·nces
than in a case whero the evidence i~ not ohliterated
by passage of time.
From this standpoint let us first look at the
admitted facts in the case. It is common case that
Lachhman Prasad was living with his sons in
village
Na.ugaien.
He was
not in
affluent
circum:;tances. The particulars of the ancestral
property are given in Schedule A ; it comprised
certain lands a.nd houses in village Nauga.ien.
Bhagwan Dayal, the plaintiff .. 'lppellant, in his
deposition n.dmits tho.t the income of the lund was
about Rs.80/- per yenr, thou~h subsequently it was
euhanced to a sum of Rs.IOO/· per year. Hd a.d:Jlits
that they (meaning thereby Kashi &l.m, Raghnbar
Dayal and Bhagwan Dayal) used to get a sum of
Rs.5/· or Rs 10/- a. year from tho land. It. is clear
from this that they were getting not the ent.ire
income from the land but only a. part of it.
There ia no evidence to show when Lachhman
PrAMd died; but it is not disputed that Kashi Ram
left the ancestral home long ago and had joined
military services at Gwalior and thereafter police
,.ervice in or about 1895. He gave up tho service
and came to Agm and started a buainesa with his
84vingR. .Thero ia nothing on the rrcord, except
tbe a.tt~~rt10n made by Bhs.~wan Dayal in hia
depOSltlOn, to show that KR.shi na.m as manacrer
either received the ontire income from the ancest~al
property or paid any taxes in respect thereof.
Ra.ghu~r D~yal says that rent of tho said holdings
was enhrelr m tho accounts maintained bv Kashi
Ram; but they wore not produced. Kasbi Ram
e:recu~d a will on September 13, 1919. Under
that w1ll he gave ·the entire properties to his two
nephews, and it cannot be suggested that it was
;!
·i
li
F
,l ,. r
-
'38.C.R .
SUPREME COURT REPORTS
.. executed to defraud any person. There is a faint
suggestion that the said will was executed to ·bar
the claim of his daughter. In that document he
does not say that he was a member -0f a joint Hindu
family. The assertion that he was a member of a
joint Hindu.family would ha\Te barred the claims of
his daughter more effectively if that was his inten-
-' tion in executing the document. Be it as it may,
the will, which, in our view, was an honest attempt
on the part of the testator to give his properties to
his nephews, does not contain any assertiou that
he was a member of a joint Hindu family. A
number of documents were executed by ·or in his
favour during .his
lifetime, but in none of the
>-·
documents there is a recital that he was a member
~ of a joint Hindu lii.mily. This consistent conduct
also indicates that Kashi Ram never considered
himself to be rt member of auy .undivided Hindu
family.
Bhagwttn Dayal wdmit!! in his evidence that
Ram Lal, his youngeRt brother, who was killed in
tb.e War in Hll4, did not live with him and that
his family and the family of Ram Lal were
separate from eaeh. other and were not joint. He
also concedes that Banwari Lal, his elder brother,
who died in the year 1914, was also s.epar.ate from
him. There is nothing on record t0 show that
these two brothers alone separated from the main
family before 1914. The concession that they were
separate members . supports, to a large extent, the
theory that there must have been .a partition in the
larger family.
Rooti !Devi, the defendant-respondent, in her
evidence says that her marriage took plaee about
30· years .ago. Her eviden<Je discloses that her
fs&laor-in-law, Jwakt Prasad, was alive at the time
-,
Oifher mvriage. She.says that when she came to
" her blirst>and's house,· K111~hi Ram and her fat:her-inla.w lived eepsratety ii:t
'Na~aief\, that. t'hey were
cultivating sepamte~y and tha't therea:fter· he went
1961
Bhazwan. Dayal
v.
Mst, Reoti D1ui
Suhba R.1 J.
1~{
Bhq.,,.,, Da;-aJ
v.
Af,t. R1oti D1lli
··- ... ~---··
 .. ...w..;. -~
~
SOPRE1'1'1E COURT REPORTS
[1962]
away to Gwalior to serve in the army. Tho 1evidonce of this witness is not very helpful as
regards die particulars of the partition; but it
discloses that tho brothers were living separately
and earning their livelihood. This evidence is
further reinforced by tho fact that in regard to
the ancestral property tho names of tho different
members 6f the family, including Rcoti Devi, are >
entered in
the
Government
accounts against
difforent portions of tho said property. Lastly,
there was.never any dispute between Kashi Ram
and the sons of Jwala Prasad, or between the four
brothers in respect of the income from the ancestral
land.
That
could be explained only on tho
hypothesis that the said property was divided and
the members of the family were getting their share
of the income therefrom. This conduct of the '
parties for about 50 years was consistent with their
partition rather than their joint status. On the
whole, on a consideration of tho material placed
before us, we cannot say that tho finding given by
the learned Civil Judge and accepted by Gurtu, J.,
•
is not supported by evidence. We accept the said
finding.
...
'
The next question is whether there was &
reunion between Kashi Ram, Raghubar Dayal and
Bhagwa.n Dayal. Tho
learned Attorney-General
~
1
contends that on the assumption that there was a
partition of the family, tho. consistent conduct of
the parties for a period of 50 yea.rs unambiguously
'..
establishes that there was a reunion between Kashi
Ram, Raghubar Dayal and Bhagwan Dayal during
tho lifetime of Kashi Ram, or at anv rate there was
a reunion after the death of Kashi Ram bet-
\vecn P.aghubar
Dayal . and
Bhagwan Daya.I.
1\Ir. Viswanath& Sa5tri, on tho other hand, argues
that when thero was a partition in the family, tho
members of the family who allege a reunion must
.-
strictly prove the same, a.nd that the documentary ...
evidence ijled in this c&Bc spread over a. long pel'iod
of time is<lestructive of any such claim .
••
3$.!J.R.
SUPREME.COURT REPORTS
459
For the correct approach to this question, it
would be convenient. to quote at the outset the
observations of the Judicial Committee in Palani
Ammal v. Muthuvenkataoharla Moniagar(') :
"It is also quite clear that if a joint Hindu
family separates, the family or any members
of it may agree to reunite as a joint Hindu
family, but such a reuniting is for obvious
reasons, which would apply in many cases
under the law of the Mitakshara, of very rare
occurrence, and when it happens it must be
strictly proved as any other disputed fact is
proved. The leading authority for that last proposition is Balabux Ladhuram v.