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PETITIONER:

BHAGWATI PRASAD SAH AND OTHERS

Vs.

RESPONDENT:

DULHIN RAMESHWARI JUERAND ANOTHER.

DATE OF JUDGMENT:

07/05/1951

BENCH:

MUKHERJEA, B.K.

BENCH:

MUKHERJEA, B.K.

FAZAL ALI, SAIYID

AIYAR, N. CHANDRASEKHARA

CITATION:

1952 AIR 72 1952 SCR 603

CITATOR INFO :

R 1964 SC 136 (22)

RF 1980 SC1173 (23)

ACT:

Hindu Law--Joint family--Presumption of

jointness--Separation of one member--Effect of--Burden of

proof of subsequent state of family----Evidence of separa-

tion--Statement of deceased member-- Evidence Act (I of

1872), s. 32 (3).

HEADNOTE:

Though the general principle is that a Hindu family is

presumed to be joint unless the contrary is proved, yet

where it is admitted that one of the coparceners did sepa-

rate himself from the other members of the joint family and

had his share in the joint property partitioned off for him,

there is no presumption that the rest of the coparceners

continued to be joint. There is no presumption on the other

side too that because one member of the family separated

himself, there has been separation with regard to all. It

would be a question of fact to be determined in each case

upon the evidence relating to the intention of the parties

whether there was a separation amongst the other coparceners

or they remained united and the burden would undoubtedly lie

on the party who asserts the existence of a particular state

of things on the basis of which he claims relief.

Except in the case of re-union, the mere fact that sepa-

rated coparceners chose to live together or act jointly for

purposes of business or trade or in their dealings with

properties would not give them the status of coparceners

under the Mitakshara law.

The statements of a particular person that he is sepa-

rated from a joint family of which he was a coparcener, and

that he has no further interest in the joint property or

claim to any assets left by his father, would be statements

made against the interest of such person, and, after such

person is dead, they would be relevant under s. 32(3) of the

Evidence Act. The assertion that there was separation not

only in respect of himself but between all the coparceners

would be admissible as a connected matter and ,an integral

part of the same statement. It is not merely the precise

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fact which is against interest that is admissible but all

matters that are "involved in it and knit up with the state-

ment."

The expression "joint family" is used in legal as well

as in a loose sense. The fact that the said expression is

used in

604

describing a family in a document does not therefore neces-

sarily lead to the inference that the family is a joint

Hindu family with all its legal incidents.

JUDGMENT:

CIVIL APPELLATE JURIDICTION. Civil Appeal No. 83 of 1950

appeal from the Judgment and Decree dated the 2nd March,

1948, of the High Court of Judicature at Patna (Manohar Lal

and Ray, JJ.) in Appeal from Original Decree No. 60 of 1944

arising out of the Judgment and Decree dated the 22nd Decem-

ber, 1943, of the Court of the First Sub-Judge of Saran,

Chapra, in Title Suit No. 24 of 1941.

Bakshi Tek Chand (Ramanugrah Prasad, with him) for the

appellants.

Gopinath Kunzru (D. K. Saran, with him) for Respondent

No. 1.

1951. May 7. The judgment of the Court was delivered by

MUKHERJEA J.--This appeal is directed against a judgment

and decree of a Division Bench of the Patna High Court dated

2nd March, 1949, by which the learned judges reversed, on

appeal, a decision of the Second Additional Subordinate

Judge of Saran in Title Suit No. 24 of 1941.

The controversy between the parties to the suit centres

round only one question of fact, viz., whether the plain-

tiff's father, who died in 1926, was joint with or separate

from his nephew, the defendant No. 1, at the time of his

death. If he died separate, it is not disputed that his

properties would devolve by inheritance upon his widow

and after the death of the widow would vest in his daughter,

who is the plaintiff in the suit. If, on the other hand, he

died joint, his interest in the joint properties would pass

by survivorship to defendant No. 1, who together with his

male descendant constitute a joint Hindu family governed by

the Mitakshara law.

It may be convenient at the outset to give a brief

resume of the material facts as they appear in the

605

pleadings of the parties. One Sheo Narain Sah, who was the

grandfather of the plaintiff as well as of defendant No. 1

had three sons: (1) Imrit, (2) Janki and (3) Ram Narain.

Imrit's branch is represented by defendants 11 and 12 in the

suit, and they are his son and grandson respectively.

Janki's only son is Ram Saran, the defendant No. 1. Defend-

ants 2 to 4 are the sons of defendant No. 1 and defendants

to 10 are his minor grandsons. Ram Narain died in 1926

leaving behind him his widow Sumitra and a daughter Ramsa-

wari who is the plaintiff in the suit. Sumitra died in 1933

and the plaintiff claims to be the sole heir of Ram Narain

after the death of her mother. According to the plaintiff,

there was a complete separation between the three sons of

Sheo Narain in food, estate and business nearly 65 years

prior to the institution of the suit. After separation, Ram

Narain and Ram Saran, the defendant No. 1, did carry on a

cloth shop jointly and dealt with the profits of this busi-

ness together, as well as acquired properties in their joint

names. But these properties and interests they could and

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did hold as tenants in common. Sumitra was a woman of weak

intellect and after the death of Ram Narain, she was com-

pletely under the influence of defendant No. 1 and his sons.

It is stated in the plaint that in the year 1928 the defend-

ant No. 11, who is the son of Imrit, instituted a suit at

the institution of defendant No. 1 and his sons in which he

denied the separation of Imrit from the joint family and

claimed the properties in possession of defendant No. 1 and

his sons as the joint properties. of the family. That suit,

it is said, ended in a collusive compromise and Sumitra was

made to file a collusive written statement in that suit as

well as to depose falsely on commission to the effect that

her husband died joint with defendant No. 1. The plaintiff

herself brought an earlier suit on much the same allegations

as she has made now but that suit she had to withdraw be-

cause of some formal defects. The present suit was insti-

tuted on 20th of December, 1940, and the plaintiff prayed

for recovery of possession of the properties specified in

Schedules I

78

606

to IV in the plaint together with mesne profits both past

and future.

Defendants 11 and 12 did not appear or contest the

;suit. The suit was contested by defendants 1 to 4 who

filed one joint written statement. Another written state-

ment and that of a formal character was filed on behalf of

the minor defendants by their pleader guardian appointed by

the Court. The material thing stated in this written state-

ment was that the natural guardians of the minors in spite

of notices being given to them did not properly instruct the

pleader guardian.

The defence of defendants 1 to 4 in substance was that

there was no separation between Ram Narain and defendant No.

1 as alleged in the plaint, but that after the death of

Janki, the father of defendant No. 1, Imrit alone separated

himself from Ram Narain and the defendant No. 1 when the

latter was only five years old. Ram Narain and defendant No.

1 continued to remain joint as before and as Ram Narain died

joint, the defendant No. 1 got all the properties by right

of survivorship. It was denied that Sumitra was influenced

in any way by defendant No. 1 or his sons or that she was

made to file a collusive written statement in the suit

instituted by defendant No. 11 or make a false statement in

her deposition while giving evidence therein. Several other

pleas were taken with which we are not concerned for our

present purpose.

The material issue framed in the suit was issue No. 6

and this was worded as follows:--

"" Was there any separation between Ram Narain Sah, plain-

tiff's father, and defendant No. 1 as alleged?"

The trial Court on a consideration of the evidence

adduced in this case decided this issue against the

plaintiff and in that view dismissed the suit. There

was an appeal taken to the Patna High Court against this

decision by the plaintiff and the learned Judges of the High

Court reversed the decision of the trial Judge and gave the

plaintiff

607

a decree in terms of the prayers made in the plaint. The

defendant No. 1 died after the decision of the trial Judge,

and his sons and grandsons have now come up on appeal to

this Court. The substantial. contention raised by Mr.

Bakhshi Tek Chand, who appeared in support of the appeal, is

that the decision arrived at by the High Court on the ques-

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tion of separation is not warranted by the evidence on the

record.

Before we discuss the evidence on the record, we desire

to point out that on the admitted facts of this case nei-

ther party has any presumption on his side either as

regards jointness or separation of the family. The general

principle undoubtedly is that a Hindu family is presumed to

be joint unless the contrary is proved, but where it is

admitted that one of the coparceners did separate himself

from the other members of the joint family and had his

share in the joint property partitioned off for him, there

is no presumption that the rest of the coparceners contin-

ued to be joint. There is no presumption on the other side

too that because one member of the family separated himself,

there has been separation with regard to all. It would be a

question of fact to be determined in each case upon the

evidence relating to the intention of the parties whether

there was a separation amongst the other coparceners or that

they remained united. The burden would undoubtedly. lie on

the party who asserts the existence of a particular state of

things on the basis of which he claims relief. These prin-

ciples which have been laid down in several pronouncements

of the Judicial Committee seem to us to be perfectly sound:

(vide Bal Krishna v. Ram Krishna(1) and Palaniammal v.

Muthuvenkatachala(2) and Balabux Ladhuram v. Rukhmabai(3).

Another thing to be noted in this connection is that it is

not the case of the defendants made either in the pleadings

or in the evidence that even if there was a separation

between Ram Narain and Ram

(1) L.R. 58 I.A. 220. (3) L.R. 30 I.A. 130.

(2) L.R. 52 I.A 83.

608

Saran at any anterior time they subsequently reunited. The

controversy, therefore, narrows down to the short point as

to whether at any time before the death of Ram Narain there

was a separation between him and Ram Saran. If, as the

plaintiff avers, there was a disruption of the joint status

in regard to all the three brothers, it would really be

immaterial if, subsequent to separation, Ram Narain and Ram

Saran lived together in commensality or dealt with their

properties in such manner as is ordinarily done by members

of a joint Hindu family which is not set up in the present

case. Except in the case of reunion, the mere fact that

separated coparceners chose to live together or act jointly

for purposes of business or trade or in their dealings with

properties, would not give them the status of coparceners

under the Mitakshara law. It in the light of these princi-

ples that we propose to examine the evidence before us.

Both the Courts below have discarded the oral evidence

adduced by the parties as wholly unreliable and the learned

counsel appearing for neither side has invited us to place

any reliance on the same. We do not, therefore, think it

necessary to refer to the oral evidence at all.

As regards documentary evidence, it must be admitted

that there is no deed of partition in the present case, nor

is there in existence any document to which all the members

of the family were parties and which proceeds on the basis

of any admitted partition. Imrit's separation from the

family is of course an admitted fact but there is no evi-

dence even on the side of the defendants to show when this

separation took place. The defendant No. 1 in his deposi-

tion in a Money Suit, to which he was a party, stated in the

year 1942 that his age was 81 at that time. If this is a

correct statement, Ram Saran must have been born some time

in 1861 and Imrit's separation may be dated near about the

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year 1866.

The earliest document that we have on the record is

Ex. 2 dated the 30th of September, 1879. This is a

609

mortgage bond executed by Imrit in favour of Ram Narain.

There is no recital of separation in the document itself,

but the statement of boundaries of the mortgaged properties

shows clearly that Ram Narain's share was separated from

that of Imrit. The mortgaged properties were two houses, one

of which was situated at Dahiawan and the northern boundary

of this house is stated to be "house of Ram Narain Sahu,

puttidar of me, the executant, partitioned''. This shows

that there was a partition between Imrit and Ram Narain and

Ram Narain had a separate house of his own. It is not stated

in this document that this house was the joint property of

Ram Narain and Ram Saran. Exhibit 2 (a) is another mortgage

bond between Imrit and Ram Narain and is dated the 21st of

March, 1885, and here the northern boundary of the mortgaged

property is stated to be the "Bakasht land of Ram Saran

Sahu, puttidar of me, the executant." This is a strong

piece of evidence in favour of the plaintiff and taking

Exhibits 2 and 2 (a) together, it can legitimately be in-

ferred that Ram Saran was also separate and he had certain

bakasht lands allotted to him in his share. The matter is

practically clinched by the recital of another document

which is Exhibit 2 (b) and which is also a registered mort-

gage bond executed by Imrit in favour of Ram Narain. The

date of the instrument is 8th of November, 1898. There is a

recital in the document to the following effect :--

"I, the executant, have been living separately and have

been separate in mess from Ram Narain Sahu and Ram Saran

Sahu my own nephew for a long time and at the time of sepa-

ration all the movable and immovable properties were parti-

tioned among all the three parties. Since separation, all

business is carried on separately."

The document further recites that Sheo Narain Sahu, the

father, was a party to this partition and he was given a

house for his residence and Rs. 1,100 in cash for trade and

maintenance and that after his death these properties were

also divided amongst the three sons. It is stated that

Imrit received a sum of

610

Rs. 334-7-9 as his share of the cash money left by his

father and this money he paid to Ram Narain in part satis-

faction of his debt. Then again, in the description of the

mortgaged property given in the schedule, the northern

boundary is stated to be "House of Ram Saran Sahu nephew of

me, the executant."

There is no reason to doubt the truth of these state-

ments which were made in an old document long before any

dispute arose between the parties in regard to these mat-

ters. A question was raised, however, as to whether this

statement of Imrit could be legally admissible as evidence.

Imrit is undoubtedly dead and Mr. Kunzru, appearing for the

respondents, contended that this statement could be admitted

in evidence under section 32 (7) of the Indian Evidence Act.

We are not sure that section 32 (7) is really of assistance

to the respondents. The particular right, which is the

subject-matter of dispute before us, was certainly asserted

in this transaction but not by it within the meaning of

section 13 (a) of the Evidence Act. We think, however, that

the statements could be admitted under section 32 (3)of the

Evidence Act. The statements of a particular person that he

is separated from a joint family, of which he was a copar-

cener, and that he has no further interest in the joint

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property or claim to any assets left by his father, would

be statements made against the interest of such per-

son, and, after such person is dead, they would be relevant

under section 32(3) of the Evidence Act. The assertion that

there was separation not only in respect of himself but

between all the coparceners would be admissible as a con-

nected matter and an integral part of the same statement

(Vide Blackburn J. in Smith v. Blakey(1). It is not merely

the precise fact which is against interest that is admissi-

ble but all matters that are "involved in it and knit up

with the statement." See Wigmore on Evidence, Art. 1465.

We agree with the learned Judges of the High Court

that Exhibits 2, 2(a) and 2(b) taken together afford most

satisfactory evidence of there being a separation

(1) L.R. 2 Q.B. 326.

611

amongst all the sons of Sheo Narain and that they show

further that the separation took place during Sheo Narain's

lifetime. This conclusion is fortified by the recitals in

several other documents which were executed during this

period. In fact, prior to 1905 there is no evidence of any

transaction in which both Ram Narain and Ram Saran took

part, or of any acquisition of property in their joint

names.

It seems that on the very day that Exhibit 2 (b) was

executed there was another mortgage bond executed by Imrit

in favour of Ram Saran and though that document has not been

produced, the transaction is recited in a later document,

namely, Exhibit C (9), where it is expressly stated that the

money was taken by Imrit on the strength of the mortgage

bond from out of the funds of Ram Saran. Exhibit C (5) is a

deed of sale dated 14th of February, 1880, and by this

instrument one Welayat Mian sold a house to Ram Narain and

the document stands in the name of Ram Narain alone. On

behalf of the appellants, it is contended that this house

was treated as the joint property of both Ram Narain and Ram

Saran as would be evident from a Kobala Exhibit C(7) execut-

ed on 23rd of May, 1925, by both of them together in favour

of one Dulhin Ram Kuer. It is said that this identical

property was the subject-matter of the subsequent sale deed.

We have compared the boundaries and description of the

properties given in the two documents and we are unable to

hold that they relate to the same property. The property

dealt by Exhibit C(7) is situated in Mahalla Karim Chak,

while that sold by Welayat Mian was situated in Dahiawan.

The boundaries on the three sides are also quite different.

Exhibit C(8) is another sale deed executed during this

period. It is dated 13th of December, 1898, and in this

document also Ram Narain figures as the sole purchaser of

certain property from Ram Singari Singh. Here again, it is

the appellants case that this property was shown to be the

joint property of Ram Narain and Ram Saran in the Survey

Khatian. We do not think that this contention can be ac-

cepted as correct.

612

The property that is recorded in Khatian No. 233 in the

joint names of Ram Narain and Ram Saran is situated in mouza

Putbari Telpa, while the property that is dealt with by

Exhibit C(8) is in Telpa Buzurg. Moreover, the area of the

property in Exhibit C(8) is only 6 cottas 8 dhoors, while

that in the settlement record is more than one bigha. Thus,

all the earlier documents support the inference which may be

drawn from Exhibits 2, 2(a) and 2(b) that all the three sons

of Sheo Natgin separated from each other, though it is not

possible to fix the precise time at which such separation

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took place.

From 1905 onwards we come to another series of documents

upon which considerable stress was laid by the Subordinate

Judge in support of his decision that Ram Narain and Ram

Saran remained joint throughout. It is perfectly true that

for a period of nearly 20 years from this date, we find

quite a number of transactions in which Ram Narain and Ram

Saran jointly took part and in some of which they were

described as members of a joint Hindu family. In our opin-

ion, the High Court is right in holding that during this

period the cloth and money-lending business that was carried

on jointly by Ram Narain and Ram Saran probably became a

flourishing concern. Ram Narain had no son of his own and

Ram Saran being an orphan, the uncle and the nephew were

drawn very much closer to each other and to all outward

appearances they conducted themselves like members of a

joint family, of which the uncle would naturally be the

head. It was natural also that properties, which were ac-

quired out of the profits of the joint business, would be

acquired in the names of both and in suits and other legal

proceedings they would figure as joint parties. The ques-

tion however is whether from these documents it is possible

to infer that Ram Natgin and Ram Saran were joint all along

and are they sufficient to destroy the inference of separa-

tion that can legitimately be drawn from the earlier docu-

ments referred to above ? Exhibit E is a Zarpeshgi deed

executed by the sons of Imrit favour of Ram Narain and Ram

Saran

613

jointly. The consideration for this lease was the money due

to them under the mortgages executed separately in their

favour on 8th of November, 1895. One of these mortgages, as

we have pointed out already, is Exhibit 2 (b), while the

existence of the other is recited in Exhibit C(9). Although

in Exhibit 2(b) it was stated that all the three brothers

were separated, it was stated in Exhibit E that Ram Narain

and Ram Saran were living jointly and that their business

was joint. We do not think that the statement in Exhibit E

contradicts the recital of Exhibit 2(b). There might have

been complete separation between the two brothers and yet it

is quite possible that afterwards, when Ram Narain and Ram

Saran began to carry on business together, they lived like

members of a joint Hindu family. Exhibit C(3) is a sale deed

dated 9th of July, 1909, executed by Bibi Bechan in favour

of Ram Narain and Ram Saran. It is somewhat surprising that

the vendor, who was a complete stranger, recites in this

document that the purchasers are related to each other as

uncle and nephew and form members of a joint family. Exhib-

it C(4) is another sale deed dated the 7th of May, 1913,

executed by one Kishun Chand and Gopi Chand in favour of Ram

Narain alone. Ram Saran does not figure as a purchaser in

this document. It is argued by the learned counsel for the

appellants that this land was recorded in the joint names of

both Ram Narain and Ram Saran in the Survey Khatian, but the

description of the land as given in the sale deed is totally

different from what appears in the Khatian. There is marked

difference both as regards the area as well as the Touzi

number. In Exhibit C(2), which is a sale deed executed by

Mustafa Hussain on 20th April, 1922, in favour of Ram

Narain and Ram Saran, the purchasers are mentioned as joint

Zarpeshgidars of the executant of the deed, but there is no

description of them as members of a joint family. Similarly,

in Exhibit C(h), which is the sale deed dated the 24th of

July, 1922, Ram Narain and Ram Saran were described as joint

creditors of the vendor The only other sale deed executed

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during the

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614

lifetime of Ram Narain is Ex. C (1). This was also a deed of

sale in favour of both Ram Narain and Ram Saran, though they

are not described as members of a joint family.

In our opinion, a proper consideration of all these sale

deeds does not necessarily lead to the conclusion that there

was no original separation between Ram Narain and Ram Saran,

as alleged by the plaintiff and proved by the earlier docu-

ments. There is no doubt that Ram Narain and Ram Saran did

carry on a cloth and money-lending business jointly. The

vendors in the above sale deeds had borrowed money from this

jointmoneylending concern and the consideration for the

sales in the majority of instances were unsatisfied debts

due by these persons. It was quite natural, therefore, that

these properties should be purchased in the names of both

Ram Narain and Ram Saran jointly. Except in Ex. C (3), there

is no recital in any of these documents that they were

members of a joint Hindu family and even if there was any

such recital, there would have been nothing unusual in it,

having regard to the way in which they conducted their

affairs, both in and outside the family.

The learned counsel for the appellants laid considerable

emphasis however upon the statements of Ram Narain and also

of Sumitra after the death of Ram Narain in a number of

plaints and depositions where it was expressly stated that

Ram Narain and Ram Saran constituted a joint Hindu family,

of which Ram Narain was the karta. In Ex. K (2), which is a

plaint in a mortgage suit filed in the year 1917, there is a

statement in paragraph (y) of the plaint as follows:-

" The bond in suit, is executed in favour of plaintiff

No. 1 alone, who is the head and managing member of the

joint family, but the plaintiff No. 2, who is the brother's

son of plaintiff No. 1, has got a claim to one-half share

in the amount claimed. Therefore, he joins as a plaintiff."

It may be noted that plaintiff No. 1 in the suit was Ram

Narain and plaintiff No. 2 was Ram Saran. In

615

Ex. K (1), which is another plaint in a mortgage suit of

1924 and in which both Ram Narain and Ram Saran figured as

plaintiffs, it was stated in paragraph 6 of the plaint that

plaintiff No. 2 (Ram Saran) was the member of a joint family

with plaintiff No. 1 (Ram Narain) and, therefore, he was

also joined in the suit. Lastly, we have got the following

statement in a plaint in another mortgage suit (Ex. K),

which was filed by Ram Narain and Ram Saran in the year

1923:--

"That the plaintiffs are members of a joint family and

carry on money-lending business jointly. Mortgage bonds are

executed in favour of any member of the family. Accordingly,

the mortgage bond sued upon was executed in favour of plain-

tiff No. 1 alone. But both of the plaintiffs have got claim

thereto."

It may be pointed out, first of all, that these state-

ments occur in plaints filed in mortgage suits arising out

of the money-lending business which was carried on by Ram

Narain and Ram Saran jointly. The business being a joint

business, even if the bonds were taken in the name of one of

the creditors, it was necessary, to avoid all risks, that

both of them should join as plaintiffs. It was for the

purpose of explaining as to why the bond sued upon did not

stand in the name of both the plaintiffs, that this explana-

tion was added to each one of these plaints. In the second

place, it may be noted that it was expressly stated in these

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plaints that Ram Saran had also an equal share in the mort-

gage money. It would be unusual in, and quite inappropriate

to, a transaction relating to a Mitakshara joint family, of

which the karta or manager can by himself file suits and

conduct transactions, to specify that another coparcener has

got so much share in the claim or property. Thirdly, the

expression "joint family" can certainly be used in a legal

as well as in a loose sense, and it would not be improper in

the circumstances of the present case to hold that it was in

fact used in a loose sense. The deposition of Ram Narain

given in a mortgage suit (Ex. N) does not really improve

the position. In his deposition Ram Narain states as follows

:--

616

"Ram Saran Sahu is my nephew and we live jointly. I am

karta of my family."

Here again the deposition being given in a mortgage suit

only for the purpose of justifying the inclusion of the name

of Ram Saran as a co-plaintiff, no undue stress could be

laid upon the words used. Mr. Bakhshi Tek Chand tried to

make much also of the statements made by Sumitra, the mother

of the plaintiff, both in the written statement which she

filed in the suit brought against the defendants by Imrit's

son and also in the deposition on commission which was given

by her in that suit. It is to be noticed that the plaintiff

was a party to this suit but later on Ram Saran and his sons

had her name expunged from the suit altogether in order

that there may be a petition of compromise between them and

the plaintiff in that suit in her absence. It would appear

from the deposition given on commission by the lady in that

suit that she was completely under the influence of defend-

ant No. 1 and her sons. The High Court, in our opinion, has

rightly laid stress on some portions of her deposition where

she made certain admissions even against her will. One thing

said in her deposition was that there were really three

houses and not two and this fits in with the story of a

complete partition. In the second place, she admitted that

the separation of Imrit took place during the lifetime of

Sheo Narain. That the stock of knowledge of this lady was

very small and she could be made to say anything as the

defendants liked is apparent from the fact that she herself

did not know what was north, south, east or west. She did

not know how to count money and did not know even how her

husband conducted his business. In such circumstances, we

feel unable to attach much importance to the evidence of

this lady, though it is somewhat surprising that she should

have made any statement against the interests of her own

daughter.

The two other classes of documents which are relevant

for our present purpose and to which reference was made by

the learned counsel for the appellants are the settlement

records and the account books. The

617

settlement records Exs. 4 and R are not, in our opinion,

decisive of the point in issue. The records show that some

lands were recorded in the name of Ram Narain alone and

others were recorded in the names of both Ram Narain and Ram

Saran with a further remark that they have equal shares in

the properties. If really the family was joint from the very

beginning and Ram Narain was the karta, then all the lands

would have been recorded in the name of Ram Narain alone.

The fact that some lands were recorded in the name of Ram

Narain alone, while others were recorded in their joint

names, clearly indicates that it was not a joint Mitak-

shara family in the proper sense of the word. In this

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connection reference may be made to two important documents

to which just importance has been attached by the learned

Judges of the High Court. These are Exhibits G and 1. The

first is a deed of relinquishment of claim by Ram Narain to

Shri Thakur Lachhmi Narayan Swamiji Maharaj. The document is

dated 9th of November, 1899, and by this instrument Ram

Narain relinquished his interest, in certain properties

which he purchased in his own name, but for the benefit of

the deity. It is stated in this document that Ram Narain

would remain manager of the temple during his lifetime and

shall make settlement and management of the properties in

such a way as he thought proper and after his death Ram

Saran Sah, son of his full brother, and after him the heir

and representative of Ram Saran Sah would be the managers.

Ram Saran was an attesting witness to this document. This

clearly shows that Ram Natgin had property of his own which

he was disposing of in any way he liked to the knowledge of

his nephew who is alleged to be his joint coparcener. If it

was an endowment created by the family itself, there was no

necessity of laying down that, after the death of Ram Na-

rain, his nephew would become the manager as the managership

would descend in the line of Ram Saran as a matter of

course. By the subsequent document (Exhibit 1), which was

executed shortly before the death of

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Ram Narain, this arrangement was changed and a certain

Mahant, namely, Mahant Goswami Hirdaya Saran Deoji, was

appointed manager of this endowed property. This proves

that Ram Narain did purport to exercise absolute and unre-

stricted power of disposition over his properties in any way

he liked, and that the properties except those which were

jointly acquired by himself and his nephew out of the prof-

its of the joint business, belonged to him absolutely.

As regards the account books that have been produced in

this case, the learned Judges of the High Court, it appears,

are not quite correct in saying that there were two sets of

accounts kept side by side, one in the name of Ram Narain

and other in the name of Ram Saran. At least the learned

counsel appearing for the respondents could not satisfy us

that this was in fact the true position, We think, however,

that the entries in the account books to which our attention

was drawn by the learned counsel for the appellants do not

really improve the defendants' case. We agree with the

learned Judges of the High Court in holding that the entries

are inconclusive and at the best equivocal. Thus, for exam-

ple, certain expenses were debited to Ram Narain on account

of the costs incurred by Ram Saran and others in going to

Puri. It is not known who were the persons who actually

accompanied Ram Saran to Puri and whether or not they were

the wife and daughter of Ram Narain himself. Then again

certain amounts were debited on account of Sataisa ceremony

but nothing is elicited as to whose Sataisa ceremony it was.

Certain-expenses in connection with the marriage of Ram

Satan's daughter undoubtedly find place in these account

books and they are debited against Ram Narain. We have

looked into the entries ourselves. They relate to very small

sums of money consisting mostly of expenses incurred in

connection with invitation of guests and presents received

from them. They are not marriage expenses proper and in the

absence of better evidence we are unable to say that they

support the defendants' story of there being a joint family

in the true sense of the expression.

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The result is that on the whole we are of.the opinion

that the view taken by the learned Judges of the High Court

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is correct and that there was in fact a separation of all

the members of the family and not of Imrit alone during the

lifetime of Sheo Narain himself. As no case of re-union has

been attempted to be made on behalf of the defendants, the

facts that Ram Narain and Ram Saran lived in commensality,

carried on business together and acquired properties in

their joint names, or that their names were recorded as

joint holders of properties in the settlement records might

at least create a tenancy in common between them, but not a

joint tenancy under the Mitakshara law which would attract

the law of survivorship. Defendant No. 1, therefore, did

not acquire any right by survivorship to the properties

which were owned by Ram Narain and the plaintiff is entitled

to succeed on this ground.

We are unable, however, to affirm the decree in the form

in which it has been made by the High Court in favour of the

plaintiff. The plaintiff laid claim to the properties which

are specified in schedules I to IV of the plaint. In para-

graph 21 of the written statement, it was expressly averred

by the defendants that the list of properties and the valua-

tion given at the foot of the plaint were incorrect. Some of

the properties, it was said, were non-existent. Some debts

had become time-barred and claims with regard to certain

others had been dismissed. Then, there were properties

owned jointly by Ram Narain and Ram Saran to the entirety of

which no claim could be laid by the plaintiff. Upon this

defence, issue No. 7 was raised in the trial Court and it

involved a consideration of the question as to what proper-

ties the plaintiff could claim to recover possession of even

if she succeeded in establishing that her father died sepa-

rate. The trial Court did not think it necessary to decide

this issue, as it dismissed the plaintiff's suit altogether.

The High Court, it is to be seen, has given a decree to the

plaintiff in terms of her prayers in the plaint without

considering this matter at all. It may be further pointed

out that the plaintiff in her plaint claimed

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Rs. 6,600 as past mesne profits and there was a prayer for

recovery of future mesne profits as well. What amount, if

any, the plaintiff would be entitled to recover as mesne

profits and on what basis mesne profits should be calculated

formed the subject-matter of issue No. 8 and that issue has

also been left undecided by the High Court. In these cir-

cumstances, although we agree with the decision of the High

Court that the plaintiff's father did die separate from

defendant No. 1 and consequently the latter was not entitled

to claim any property by right of survivorship, still for

the determination of the properties with regard to which a

decree for possession could be made and also for ascertain-

ment of mesne profits, the case must be sent back to the

High Court.

The result is that we affirm the findings of the High

Court and remand the case in order that it may be disposed

of in accordance with law after determination of issues Nos.

7 and 8. It would be open to the learned Judges to remit

the issues to the trial Court for findings on the points to

be arrived at on the evidence on the record or on such

further evidence, as the parties might be allowed to adduce.

The plaintiff respondent will be entitled to costs of the

appeal. Further costs would abide the result.

Case remanded.

Agent for the appellants: Tarachand Brijmohanlal.

Agent for respondent No. I:R. C. Prasad.

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