9911796707
TMI Blog1961 (9) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... trict 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, Raghubar Dayal and Bhagwan Dayal, jointly startled a business at Agra, that they jointly acquired some properties and houses during the. lifetime of Kashi Ram, some after his death, and others after the death of Raghubar Dayal, and that the said properties were the. joint family properties of the said members, under the Hindu law. His further case in that after the death of Kashi Ram, the business and the properties acquired during's life time devolved upon the plaintiff land Raghubar Dayal by survivorship, and that after the death of Raghubar Dayal the said properties along with the properties acquired during the lifetime of Raghubar Dayal passed on by survivorship exclusively to the plaintiff. The properties. described in :Schedule A are the ancestral properties; those described in Schedule B are the properties acquired jointly by the said three members during the life-time of Kashi Ram; these described in Schedule C are properties acquire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r properties from and out of the income of the business started by Kashi Ram, and that after the death of Raghubar Dayal the defendant suc- ceeded to the interest of Raghubar Dayal and that, therefore, she was entitled to an equal share in B, C and D Schedule properties along with the plaintiff. She further pleads that' the decision of the Revenue Court in Suit No. 15 of 1939, holding that the brothers were not members of a joint family and that, therefore, she succeeded to the, interests of her husband, Raghubar Dayal, in the joint pro- perties, operated as res judicata in respect of the plaintiff's entire claim. The suit was tried by the Civil Judge, Agra, and' the learned Judge gave the following findings: (1) the judgment and decree of the Revenue Court in Suit No. 15 of 1939 operated as res judicata. 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 Kashi Ram, Raghubar Dayal and Bhagwan Dayal were the divided members of the ,said joint family; (3) there was no: reunion between the said members; (4) Kashi Ram had. validly bequeathed his properties un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en born; nor did he unite with them as a matter of fact. (4) The judgment, of the Revenue Court in regard to the question of title would operate as res judicata in respect of the plaintiffs 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 filed by the plaintiff : the suit of the plaintiff was dismissed with costs through out. 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, Raghubar Dayal, in the joint properties. Some of the facts relevant to the question may be recapitulated. The respondent Reoti Devi filed Suit No. 15 of 1939 in the Revenue Court for recovery of her share of profits of village. Chaoli against Bhagwan Dayal in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of title was decided by a Civil Court, the final decision was that of the Revenue Court, that the subject- matter of the present suit was within the exclusive jurisdiction of that Court and that, therefore, the present suit was not maintainable. That apart, he contended that as the subject-matter of the present suit was within the exclusive jurisdiction of the Revenue, Court, the decision of that Court on the question of title would be res judicata in the present suit not under s.11 of the Code of Civil Procedure but under the general principles of res- judicata, ; for, it is said that in the case of a decision of a Court of exclusive jurisdiction s. 11 is not applicable and therefore,, under the general principles of res judicata, the condition that the court which decided the previous suit should be- competent to try the subsequent suit need not be. complied with. Before addressing ourselves to the question raised, it. would be necessary to notice some of the relevant provisions of the Act. Section 227. (1) A co-sharer may sue another- for a settlement of accounts, and for his share of the profits of a mahal, or of any part thereof. (2)In any such suit when it is prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 227 By a CO-Sharer against a,co-sharer for a' settlement of accounts and his share of the profits of the mahal, or if any part thereof. Section 264. The provisions of the Code of Civil Procedure, 1908, except:-- (a), provisions inconsistent with any thing in this Acts so far the inconsistency extends,, (b) provisions applicable only to special suits or proceedings outside the scope of this Act, and (c)the provisions contained ill list 1 of the Second Schedule, shall' apply to all suits and other proceedings under this Act, subject to; the modifications contained in list If of the Second Schedule. The gist of the said provisions may be stated thus;: One of the co-sharers call file, a suit against another co-sharer for settlement of accounts and for his share of the profits of a Mahal or any part thereof. If the defendant denies the plaintiff's proprietary right all issue on the, question of title is raised and sent to the civil court for decision. -The revenue court shall accept the finding of the civil court and decide the suit accordingly. An appeal would lie against that decree to a court which has jurisdiction to hear appeals from the court to which the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t without success. Subsequently, the landlords filed a suit in the 'Civil Court against the, tenants for -An injunction restraining them from removing the paddy crops standing on the suit lands until the rent was paid to them. The landholders raised the plea, that the decision of the revenue court holding that the village was not an estate was binding on the civil court,. The full bench of the Madras High Court, held that the said finding was not binding on the civil court. Adverting, to s. 189(3) of the Madras Estates land Act, which corresponds to a. 230 of the present Act, the learned Judges observed thug at p. 790 "Therefore, it is clear that it is only in respect of such disputes or matters as are covered 'by the 'its or applications specified in s.189(1) that the revenue court can be said to have exclusive 'jurisdiction, that is, jurisdiction to the exclusion of a civil court. x x x x x If a particular matter 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 inci- dentally given by the revenue court, cannot be binding on the parties in a civil court.&quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 be 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 of the active participants in the transactions have passed away, though 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 inferences than in a case where the evidence is not obliterated by passage of time. From this Stand point 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 Naugaien. He was not in affluent circumstances. The particulars of the ancestral property are given in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not joint. He also concedes that Banwari Lal, his elder brother, who died in the year 1914, was also separate from him. There is nothing on record to 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. Reoti Devi, the defendant-respondent, in her evidence says that her marriage took place about 30 years ago. Her evidence discloses that her father-in-law, Jwala Prasad war, alive at the time of her marriage. She says that when she came to -her husband's house, Kashi Ram and her father in law lived separately in Naugaien, that they were cultivating separately and that thereafter he went favour during his lifetime, but in none of them away to Gwalior to serve in the army. The evidence of this witness is not very helpful as regards the particulars of the partition but it discloses that the 'brothers were living separately and earning their livelihood. This evidence is further reinforced by the fact that in regard to the ancestral property the names of the different members of the family, including Reoti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the concept of a reunion that there shall be an agreement between the parties to. reunite in estate with an intention to revert to their former status of members of a joint Hindu family. Such an agreement need not be express, but may be implied from the conduct of the parties alleged to have reunited. But the conduct must be of such an incontrovertible character that an agreement of reunion must be necessarily implied therefrom. As the burden is heavy on a party asserting reunion, ambiguous pieces of conduct equally consistent with a reunion or ordinary joint enjoyment cannot sustain a plea of reunion. The legal position has been neatly summarized in Mayne's Hindu Law, 11th edn., thus at p. 569: "As the presumption is in favour of union until a partition is made out, so after a par- tition the presumption would be against a reunion. To establish it, it is necessary to show, not only that the parties 'already (1) (. (2) (, divided, lived, or traded together, but that they did so with the intention of thereby altering their status and of farming a joint estate with all its, usual incidents It requires very cogent evidence to satisfy. the burden of establishing that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amely, that in order to constitute a reunion there must be an agreement, express or implied, on the part of the members who separate, to reunite in estate and interest., and that in-the absence of a registered document, the agreement has to be inferved from subsequent conduct of the parties. On the fact,% of the case before them, the learned Judges came to the conclusion that there was a reunion. This case only restates a well settled principle; and the court's cannot help us in deciding the present case. Before we consider the evidence, we would like to make some general observations. In the plaint, the case of reunion is mentioned as an alternative case:; further the plaint does not give the date of the alleged agreement to reunite or even the necessary and relevant particulars. The :plea is stated in the following words : " That even if it were assumed against facts strictly without prejudice to any plea herein taken, that there was separation between Pandit Lachhman Prasad's issues after his death, still in view of the conduct of Pandit Kashi Ram and Raghubar Dayal during their lifetime, and the.fact that the plainteff pandit Raghubar Dayal and pandit Kashi Ram ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficient if we look at the earliest document, Ex. 58, dated August 24, 1903 and the last, Ex. 33, dated November 27, 1916. Under Ex. 58 the property mentioned therein was purchased from one Shyam Lal. The relevant recitals described the vandees thus " ...... Kashi Kam, son of Lachhman Prasad, Raghubar Dayal and Bhagwan Dayal, sons of Jawala Prasad.............." It records that consideration was received from the said there persons. Ex. 33 is also a sale deed, and the vendors and vendees are the same as in Ex. 58. Here also the vendees are described in the same manner. Their occupation is given as "money-lenders". The eastern boundary of the property sold is described as ",,Walls of the shops and shop of Pandit Kashi Ram". There' is a recital in the body of the document that the vendor had no coparcener. One prominent feature that ,stands out in the document is that neither Kashi Ram is described as manager of the joint family nor Kashi Ram and his nephews as members of a joint Hindu family. In the second document the vendor in describing himself says that he has no coparcener, but in describing the vendees. he does not describe them as coparcene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is no co-sharer or co- partner indicate a consciousness on their part that they did not belong to a joint family. The documentary evidence we have so far considered does not establish that there was any reunion between Kashi Ram and his two nephews. Indeed, at its best, it only shows that the three of them owned the said properties jointly. If the properties were joint family properties, it is not possible to Visualise why not even in one of these documents spreading over a long period no mention is made that they belonged to a joint Hindu family. It is common knowledge that in executing documents for and on behalf of a joint family or in purchasing proper- ties for and on behalf of a joint family, the documents are ordinarily executed by or in favour of the manager of the joint family ; at any rate, the executants or the purchasers of the property, as the case may be, are described as members of a joint Hindu family. Whatever ambiguity there may have been in these documents, it is dispelled by two important documents executed by Kashi Ram. Ex. U dated October 4,1909 is a deed of agreement executed by Kashi Ram in favour of his nephew Raghubar Dayal, whose son he had ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisive of the question that Kash! Ram was not a member of a joint Hindu family and that the parties never considered themselves as members of a joint Hindu family. Now we shall proceed to consider the documents that came into existence. between 1924 and 1933. During this period the two brothers, who inherited the business from Kashi Ram, carried on the same jointly and purchased properties under 14 sale deeds. The earliest of them is Ex. 85 dated January 15, 1926 and the last of them is Ex. 72 dated February 19, 1933. In Ex. 85 the following recital is found : "I have received the said amount from Pandit Raghubar Dayal and Pandit Bhagwan Dayal, "zamindars', sons of Pandit Jwala Prasad, resident of Sadar Bazar, Agra, and have transferred the house aforesaid." This document does not describe Raghubar Dayal as manager of the joint family or that the brothers are members of a joint Hindu family. So too, in EX. 72 &,similar recital is found. The recitals in the other, sale deeds also follow the same line. Strong reliance is placed upon the proceedings of certain suits, which are marked as Exe. 43, 44 and 14. Ex. 43 is a copy of the plaint in suit No. 311 of 1927 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the property was the joint family property of the brothers ; nor is there any evidence to indicate that the widow of Raghubar, Dayal had knowledge of the same. Bhagwan Dayal also executed certain salt, deeds, the first of them dated April,. 9, 1934 and the last of them dated, April 3, 1942 i. e.., after the filing of the suit. Ex. 80 is a sale deed'in which for the first time we find the recital that the executant and Ragbubar, Dayal lived together jointly and the entire business was carried on jointly in the name of both of them and that after Raghubar Dayal's death the executant had been the manager, Karta and Mukhia of his joint family upto that time. There is nothing to show that the defendant had knowledge of this document. That apart, the recital that Bhagwan Dayal was the manager of his joint family in 1934 may not be inaccurate, for he was living jointly with song. In any view this recital, appearing for the first time after about 50 years and made behind the back of the defendant, would only be a self-serving statement. Puttu Lal is the brother of Reoti Devi. He says in his evidence that Kashi Ram started the business, and that Kashi Ram,. Raghubar Dayal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were put as regards the title to the properties, she stated that she and Bhagwan Dayal were both owners. In the present suit she deposed that she made, those statements at the request of Har Lal. That apart,: it is not disputed that after the death of Raghubar Dayal till the year 1939 she was living with Bhagwan Dayal and that Bhagwan Dayal was managing the entire properties and giving her small amounts towards her maintenance. Any statements made by her when she, was under the control of Bhagwan Dayal cannot be of any evidentiary value particularly when her statements are also inconsistent with one another. On December 22, 1937 she made another statement in Suit No.1013 of 1937. That was a suit filed by Bhagwan Dayal against one Ram Lal and others. In that suit Bhagwan Dayal represented himself to be the manager of the joint, family. In the statement filed by the respondent, she stated that Bhagwan Dayal filed the suit as the managing agent of the family with her consent. To that statement the thumb-impression of the respon dent was affixed. I Ex. 52 is a plaint dated August 27,1937 in Suit No. 506 of 1939 filed by Bhagwan Dayal against third parties to enforce a mortgage deed. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... live, he and the two nephews used to write -accounts, and that they used to live as family .members; but at the same time she also said that she did not know what was meant by "family" and that everyone was the, head of his own family. No serious argument can be placed upon her vague evidence in support of the case of joint family. But the conduct of the plaintiff after the death of his brother,, Raghubar Dayal, is of more evidentiary value on the question of joint family than, that of the ignorant widow; for unlike the respondent, he must have certainly known his legal rights. Schedule A shows that some of the alleged ancestral properties were recorded in the name the respondent, Reoti Devi. The plaintiff also admits in the plaint that there was a mutation the respondent's name in the revenue records of her deceased husband, but asserts that does not clothe her with any legal title. curious explanation he gives is that.it was at the very best a gratuitous submission on the part of the plaintiff just out of affection and regard for the feelings of the defendant. The evidence disclose that after the death of her husband, the respond was given only petty amounts, and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess on the part of the plaintiff that the defendant's husband was not, a member of the joint family along with his brother or uncle. The fact that the brothers and the uncle lived together and did business together is consistent with their relationship of uncle and nephew, and the fact that they purchased or sold properties jointly is also consistent with their being are partners or co-sharers. The recitals in some of the documents describing the nephews as copartners also show that they were treated only as co- sharers. Whatever ambiguity there may be, the adoption deed, the will and the mutation of the name of the widow in, place of her husband in the revenue records dispell it. From this conduct, spreading over about 50 years, it is not possible to hold that the uncle and the nephews consciously entered into an agreement to reunite and become members of a joint Hindu family. This finding is enough to dispose of the appeal. But, as the evidence on the question of partition of the family is not as satisfactory as it should be, we propose to consider the alternative contention put forward by the appellant. The learned Attorney-General, appearing for the appellant, contends tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a family, the learned Judge proceeded to state : "As regards the property of such family, the 'unobstructed heritage' devolving on such family, with its accretions, is owned by the family as a corporate body, and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate unobstructed heritage' which, with its accretions, may be exclusively owned by such branch as a corporate body." Then dealing with the problem whether two or more members of different branches, or of one and the same branch, of a family can acquire a property with the incidents of a joint family property, such as right by birth etc., the learned Judge observed thus at p. 155 : But so long as a family remains an undivided unit, two or more members thereof whether they be members of different branches or of one and the same branch of the family-can, have no legal existence as a separate independent unit; but if they comprise all the members of a branch, or of a subbranch, they can form a distinct and separate corporate unit within the larger corporate unit and hold property as such. " The above passages clearly lay down the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a special form of partnership, the members of which must be either the whole of a joint family or the whole of a branch of a joint family." The learned Judge practically adopted-the reasoning of Bhashyani Ayyangar, J., in Sudarsanam, Maistri v. Narasimhulu Maistri (1902) I.L.R. 25 Mild. 149) so too, the Allahabad High Court in Himmat Bahadur v. Bhawani Kunwar (1908) I.L.R. 30 All. 352) accepted the view expressed by Bhashyam Ayyangar, J. The Judicial Committee in Jogeshwar Narain Deo v. Ram Chund Dutt (1896) L.R.23 I.,A. 37) clearly ruled that "the principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by the Mitak- shara law which under that law passes by survivorship". The same principle was restated by the judicial Committee in, Bahu Rani v. Rajendra Bakhsh Singh(1933) L. R. 60 I. A. 95) If two or more members of different branches, or of the same branch of a joint hindu family cannot acquire a joint property impressed with the incidents of joint family pro- perty and if the Hindu law does not otherwise sanction acquisition of property by them as joint tenants as understood in, the, En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of a joint Hindu family purchasing properties for the family. Nor does the decision in Sham, Narain v. The Court of WardS, on behalf of Jung Bahadoor (1873) 20 W.R. 1-97) afford any real assistance to the appellant. There, two Hindu brothers, who held ancestral estate in common with a third brother, acquired other property jointly, the learned Judges held, on the evidence that the property was held by the two brothers as members of a joint Hindu family. The learned Judges held that the principle of blending of a separate property with the joint family property and the principle of acquisition of property by united members of a divided family would equally apply to an acquisition of property by two of three brothers of a joint Hindu family, Bhashyam Ayyangar, J., in Sudarsanam Maistri v. Narasimhulu Maistri (1992) I.L.R. 25 Mad. 149) criticised that judgement and observed that he should have no hesitation in dissenting from the said decision. The learned Judges missed the real- point, namely, that some members of different branches of a joint Hindu family cannot from a corporate unit. In our view, that decision is wrong and must be overruled. Nor does the decision of the Judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Such business or property would be the business or property, of the, family. The identity of the members of the, family is not completely last in the family. One or more - members of :that family can start a business or acquire property without the aid of the joint family Property, but such business or acquisition would his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self- acquisition, and succession to such property would be governed not by' the law of joint family but only by the law of inheritance. In such a case if a property was jointly acquired by them, it would not be governed by the law of joint family ; for Hindu law does not recognize some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit.. Therefore, the rights inter se. between the. members who have acquired the said property would be subject to the terms of the agreement where under it was acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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