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TMI Blog1903 (4) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... leged that Ramjiban was ready to waste the share of the minors in certain joint assets, and prayed for a grant to themselves of a certificate under Act XXVII. of 1860, to enable them to collect the debts due to the deceased Lalji mentioned in the schedule annexed to the petition. It will be observed that in this schedule the petitioners, for the purpose of ascertaining the amount due to the minors, deducted from each debt one fourth part as the share of Ramjiban. Mahabir Pershad appears to have objected to the grant of the certificate to the petitioners on the ground that the family of the petitioners was joint with him, and to have claimed an 8 anna's share in the property of the joint family. A compromise was thereupon come to, and embodied in an ikrarnama, dated June 21, 1883, to which Mahabir Pershad, Ram Narain, by his mother and guardian, Ramjiban, and Thakoor Pershad, by his mother and guardian, were all parties. By this instrument it was declared that an arrangement in respect of all the properties and estates, movable and immovable, as per list annexed, and those not included therein, had been come to in the following manner, namely, out of 16 annas a share of 4 annas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Pershad died in the year 1886 without having attained his majority, and leaving a widow, Mussammat Amta, who was also a minor. Ramjiban died in the year 1887, apparently childless, but leaving a widow, Mussammat Janki (now deceased). Ram Narain attained his majority in 1890. He is the first and principal respondent in this appeal, and is subsequently referred to as the respondent. 5. The appellants are the present representatives of a firm of money-lenders at Benares. On May 23, 1887, the then representatives of the firm commenced an action against (1) Mussammat Janki, as widow and heir of Ramjiban, (2) Ram Narain, then a minor, and (3) Mussammat Amta (described as a minor), widow and heir of Thakoor Pershad, under the guardianship of Mussammat Mauli, her mother-in-law and next friend, to recover money alleged to be due upon a mortgage executed by Lalji in May, 1869. A decree was made against all the defendants, and Ram Narain alone appealed. On his appeal the decree was reversed as against him on the ground that the evidence was insufficient to establish the claim, and by the decree of the High Court, dated June 12, 1891, the suit was dismissed as against him. But it remained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r L.R. 1 Ind. Ap. 55, the question in every case like this is one of intention, namely, whether the intention of the parties, to be inferred from the instruments which they had executed and the acts they had done, was to effect a division such as to alter the status of the family. 11. Looking at that document as a whole, and reading it by the light of the evidence of the conduct of the parties, the learned judges came to the conclusion that, although separate shares were allotted to all the different members of the family, the intention was that Mahabir Pershad should have a separate share, and that the rest of the family, consisting of Ramjiban, Ram Narain, and Thakoor Pershad, should hold the remainder of the property jointly amongst themselves. They expressed a doubt whether a transaction like this, entered into by the then managing member of the family, would be binding on the minors, though no doubt ostensibly the names of their natural guardians were used as representing their interests. But however that might be, it seemed to them to be clear enough from the evidence that what followed from the ikrarnama was that Mahabir was the only person who separated from the family, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the respondent relied on the passage which gave liberty to any of the parties either to live together as a member of the joint family as before or to separate his own business as being inconsistent with a separation in estate. But there is no inconsistency, and the clause conferred on the parties no larger liberty of choice than they would have had without it. They might elect either to have a partition of their shares by metes and bounds, or to continue to live together and enjoy their property in common as before. Whether they did one or the other would affect the mode of enjoyment, but not the tenure of the property or their interest in it. Consistently with the broad principle laid down in the Appovier Case 11 Moore's Ind. Ap. Ca. 75, this was determined by the allotment to them of defined shares which, to use Lord Westbury's illustration, converted them from joint holders into tenants in common. 14. If the learned judges meant that the legal construction or legal effect of an unambiguous document like the ikrarnama could be controlled or altered by evidence of the subsequent conduct of the parties, their Lordships cannot agree with them, and they do not think th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und for the judgment of the High Court, namely, that the co-parceners reunited immediately or shortly after the date of the ikrarnama. Mr. Mayne met this point by saying that the parties were incompetent in law to reunite in the accurate sense of that word, or so as to restore the status of a family joint in estate. His argument was that in Bengal a member of a joint family once separated can reunite only with a father, brother, or paternal uncle, following the text of Vrihaspati, quoted in Mitakshara ii. 9. Section 3. And he supported his argument by reference to other authorities. 17. Their Lordships do not find it necessary to express an opinion on this point, because, in the case before them, there is no proof of an intention of the parties to reunite in estate and interest. Indeed, there is not wanting evidence independently of the ikrarnama, and both before and after its execution, of an intention to separate their interests. Their Lordships again refer to the petition in the names of the minors, which preceded the execution of the ikrarnama. Separate shares in the family property were thereby claimed, and the grant of a separate certificate under Act XXVII. of 1860 as reg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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