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TMI Blog1966 (8) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... aghu Nandan. Hanuman 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 sons 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 minor 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 impleaded 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share of Bijendra 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 for the 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 un- divided, 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. The parties may thereafter choose to divide the property by metes and bounds, or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iagar others(1) that: In coming to a conclusion that the members of a Mitakshara joint family have or have not separated, there are some principles of law which should be borne in mind when the fact of a separation is denied. A Mitakshara (1) L.R. 52 I. A. 83. 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 entitled 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 Judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Under the heading Bithnouli Khemchand Khewat Several Khasra Nos. are set out in the remarks column there is a recital purchased from Ajab Lall Jha and others by virtue of Kewala dated the 23rd Phagun 1329 M.S. in the name of Mode Narain Chaudhry. Properties purchased in the name of defendants 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 equal shares. It was urged that this recital also evidenced severance 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 shares is an interpolation and with that view the High Court agreed. It 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 reliance was placed is not found incorporated. The Trial Court on a review of the evidence came to the conclusion that this recital which is said to be made in the handwriting of Mode Narain who is a party to this litigation--could not be relied upon since it was not found in the certified copies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be followed, trial of suits would be highly inconvenient, if not impossible, because at every stage where a party contends that the evidence relied upon by the other side 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 cases to serious injustice. The Trial Court, 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 are 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph 13 of the plaint it was averred that the defendant No. I 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 1st 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 fist 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 (dependent No. 24) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 claims an account, or the party who is called upon to account dies. The maxim actio personalis moritur cum persona -a personal action dies with the person-has a limited application. It operates in a limited class of actions ex delicto 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, (1) C.A. No. 120 of 1964 decided on August 12, 1965. ex delicto, and does 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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