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TMI Blog1934 (6) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... of it. On January 5, 1923, two suits were as a result filed in the Court of the Subordinate Judge of Gorakhpur against the present appellant, the plaintiff in the first suit being added as a co-defendant to the second suit. The suits came to be known as the Majhauli Raj cases. The first was brought by Balbhadra Narain Mal, claiming the raj. That suit, after being consolidated with the other, has been compromised and need not be further referred to. The second suit, out of which the present appeal arises, was filed at the instance of the members of the syndicate, to recover possession of the properties conveyed by the sale-deed in their favour. This was only two days before the expiry of the period of limitation. After subsequent transfer to the Court of the District Judge of Gorakhpur, the suit was by decree dated June 8, 1926, dismissed with costs. On appeal by the plaintiffs to the High Court of Judicature at Allahabad that decree was on February 25, 1930, reversed, and the suit allowed. From this decree of the High Court the defendant has now appealed to His Majesty in Council. According to the pedigree produced in the suit, the common ancestor of the deceased Raja (wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts, however, are set forth with the utmost particularity in the judgment of the learned District Judge, and his findings are commented upon by the High Court with care. It will, therefore, not be inconvenient if, in the first instance, their Lordships attempt a brief summary of them, indicating as they proceed the main points upon which the two Courts are, not in agreement. 1. Upon the question of separation between the branches in residence and in food, the learned District Judge thought it to be a fair assumption from the evidence that occupying under a babuai grant made in 1726 of the village of Dharamner and other properties, Ananda Mal and his descendants had lived ever since in that village, which is situate about ten miles from the residence of the Raja. He considered it to be proved by a rubkar, to which he made careful reference, that Ananda Mal's descendants were living there in 1833, and he was of opinion that from the time when Ananda Mal or his descendants established their residence at Dharamner, the two families were separate in residence and in food. The High Court do not question this conclusion, but they do not accept the learned Judge's assumptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y occasion whatever. (2) That various other Babus connected with the Majhauli Raj family in the same manner as the Babus of Dharamner paid visits to Majhauli and were invited on ceremonial occasions. (3) That monetary assistance was given by the Raja to Bisen Chhattries in general, and to some of the other Babus also, but never to the Babus of Dharamner. (4) That the Raja used to have several Bisen courtiers, but he never allowed any of the Babus of Dharamner to be one of them. (5)That villages of the raj were often given out on lease to other Babus, but never to the Babus of Dharamner. (6) That the Raja would not allow any Babus of Dharamner to be employed in his raj in any capacity. (7) That there was a well-known tradition of old enmity between the Babus of Dharamner and the Majhauli raj family. It is recognised that this last proposition is no doubt responsible for those which precede it, indicating as they do the natural outcome of a long-continued and bitter feud between the two families, which arose, it is said, out of an attempt on the part of a member of the junior family to assassinate the then Raja. And perhaps the further fact may be added that in 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avour. Further, on February 19, 1912, Balbhadra Narain Mal applied to the then Collector of Gorakhpur that his eldest son, ought, on the footing that he had a chance of succeeding to the estate as a reversioner, to have a provision made by the Court of Wards for his education. This application and similar applications which were afterwards made show that neither Indarjit nor his son made any claim by survivorship to immediate possession of the raj. These facts are accepted by the High Court. It will, however, be more convenient to deal later with their comment upon them. There is one further matter to which attention may be directed, although it is not in terms alluded to either by the learned District Judge or by the High Court. It appears from a rubkar dated November 26, 1836, relating to the village of Dharamner, and already referred to, that that village was included in the estate of Raja Tej Mal: that after the death of the Raja under a rubkar dated April 24, 1833, the names of the Rani and the then Raja and his son were recorded ; but that now on enquiry it has been ascertained that this village was included in the estate of the Rani, but as a babuai property it remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant in order to establish separation in the present case. And then, after referring to Thakurani Tara Kumari v, Chaturbhuj Narayan Singh (the Telwa case (1915) L.R. 42 I.A. 192 : S.C. 17 Bom. L.R. 1012) and Rani Jagadamba Kumari v. Wazir Narain Singh (the Serampore case (1922) I.L.R. 2 Pat. 319 : S.C. 25 Bom. L.R. 676 P.C.) he enquires what was the conclusion which this Board had then reached upon the question of what constitutes separation in respect of an impartible estate. And his answer is: I think they have now definitely decided that there is no difference between partible and impartible property in that respect so that a separation can be brought about merely by the unequivocal expression of an intention to that effect by any member of the family. It is further clear to my mind that the member who thus brings about a separation may be the holder of the impartible property himself. Later he adds: It must . be taken for granted that the Telwa case stands as a clear authority for the proposition that a separation is possible in a family owning impartible property alone without any relinquishment by the junior member of his contingent right of succession, and we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon this vexed question. Somewhat tentatively phrased, the rule is thus expressed in Konammal v. Annadana by Sir John Wallis delivering the judgment of the Board (p. 127): Those authorities, in their Lordships' opinion, go far to support the inference deduced by Ramesam J. [ in the Court below ] from an. examination of the cases that in order to establish that an impartible estate has ceased to be joint family property for the purposes of succession, it is necessary to prove an intention expressed or implied on behalf of the junior members of the family to give up their chance of succession to the impartible estate. And quite definitely this same rule is thus enunciated in Shiba Prasad Singh v. Prayag Kumari Debi in the following words of Sir Dinshah Mulla when delivering the judgment of their Lordships (p. 345 ): ...in order to establish that a family governed by the Mitakshara in which there is an ancestral impartible estate has ceased to be joint, it is necessary to prove an intention, express or implied, on the part of the junior members of the family to renounce their right of succession to the estate. It is not sufficient to show a separation merely in food and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a that there is no evidence here of a definite partition between the families. Now if in the case of an impartible zemindari like this there was to be a separation, it would have to include all branches of the joint family. To prove, therefore, the separation of the junior branch it would be necessary to show either that the Raja had separated from all the junior members of the family, a conclusion negatived by the fact that members of more remote branches gave evidence for the defendant, or that the branch represented by the plaintiffs separated themselves from the rest of the family, which is not to be supposed, seeing that their chance of succeeding to the raj as next branch was their greatest asset. And here, as the learned District Judge finds, there is no evidence of the relinquishment of the right of succession by Indarjit Mal or by any one of his ancestors. 5. The mere fact that the common ancestor lived so long as two hundred years before suit is not enough to raise a presumption of separation. Ramesam J. in his judgment in Annadana Jadaya Gounder v. Konammal [1923] A.I.R. Mad. 402 instances a pedigree showing a common ancestor as remote as or remoter than the common an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as babus, the different branches holding babuana grants out of the zemin-dariTheir enjoyment of these grants is attributable to their membership of the joint family, and until the decisions above referred to beginning in 1888 supervened, they had no reason to believe that their rights of succession were being imperilled by their estrangement from the zemindar in possession. Great caution must, therefore, be exercised in attributing any special consequences to conduct only significant in the light of these decisions now explained. Returning now to the examination of the evidence made by the High; Court, the learned Judges embark upon it with the statement already foreshadowed that the question for decision is whether it is incumbent upon a claimant to an impartible estate to establish a jointness in general status between the two branches of the family in order to supersede the widowas the learned District Judge thoughtor whether, as they thought, it is only incumbent upon him to establish a notional jointness with the burden on the opposite party to show a definite renunciation of their right to succession. And the learned Judges examined the evidence in order to ascertain wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon which both Courts in India were in agreement. The first relates to the pedigree propounded by the plaintiffs. Was it proved by sufficient evidence? This question was discussed with great elaboration in both Courts in India and it was argued in much detail at their Lordships' Bar. Their Lordships are satisfied that the objections taken to the sufficiency of proof of a pedigree which seems to have been notorious in the family for generations are purely technical, and as they are in agreement with both Courts upon it, they will deal briefly with the question. There are produced certified copies of the decree in the suit of 1805 already referred to and of two pedigrees, P. 5 and P. 6, found with it, all of which are by statute to be deemed originals. The decree recites that pedigrees had been filed by both the parties, and sets out according to both pedigrees the descent of Daryao from Bodh Mal, the common ancestor. This is the only part of the second defendant's pedigree in dispute. If the decree is legal evidence that pedigrees were filed by both parties, we may presume that the two pedigrees P. 5 and P. 6 found with the decree were the two pedigrees filed in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igrees produced were filed by the parties. If other entries made in records by public officers are admissible, it would be absurd that such an entry as this in a decree should be inadmissible. In the result their Lordships are prepared to hold the pedigree admissible under Section 35. In their judgment, moreover, the two decisions of the Board already referred to are sufficient authority for holding it admissible under Section 13. The pedigree filed by the Rani in 1805 if admissible is clearly a relevant admission under Section 21 against the present Rani as her representative in interest and an admission within the definition in Section 18 of the Indian Evidence Act. Upon this issue, therefore, their Lordships find themselves in agreement with both Courts below. They now proceed to consider the third question raised by the appealwhether the registration of the sale-deed of October 30, 1922, was valid? The deed is a registrable instrument under Section 17 of the Indian Registration Act, 1908. Section 28 of that Act: requires that every registrable document shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some por ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the sale-deed presumably with the only object of getting the deed registered at Gorakhpur. The High Court is in agreement with this finding, which, being concurrent, their Lordships accept. They may say, however, as a result of their own examination of the evidence, that it is, in their judgment, irresistible. But there are some further facts to which reference must now be made. While both Courts in India find that the parties to the deed regarded this subject of sale as parcel of the Majhauli raj and therefore comprised in the claim thereto made by Balbhadra Narain Mal, it had, in point of fact, never been incorporated with the raj, and was an item of property to which Balbhadra had no right or title whatsoever. And there are two further facts which may be of assistance in reaching a true conclusion in this matter. The first is that in evidence an attempt was made on behalf of the plaintiffs to show that this room was what remained of a place of residence at Gorakhpur which the purchaser desired to acquire. And the next is, that according to this same witness he desired the whole Kothi to be included in the sale, but that Balbhadra objected and would consent to the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, he might have reached the same conclusion as that at which their Lordships have arrived. In the High Court the learned Judges were of opinion, and their Lordships think rightly so, that they were bound to go into this question of intention, and having done so they arrived at the conclusion that the entry of the sitting-room in the deed was not a fictitious entry within the meaning of the decision of the Board already cited, and although on the facts of the present case one could not help feeling that the parties to the sale-deed under consideration attempted to juggle with the registration law, still the question was whether they had overstepped the bounds laid down by the law, and the learned Judges felt that that question must be answered in the negative. In reaching that conclusion, however, they failed to refer to or to take into account all the circumstances which their Lordships have detailed, and it becomes the duty of the Board to consider the question afresh in their light. They have done so and, having regard specially, although not exclusively, to the facts that this undivided share in this sitting-room was agreed by one of the purchasers to be of no value, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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