Bhagwan Dayal vs Mst. Reoti Devi

"No Court shall try any suit or issue in which the matter directly and substantially in issue has bee n directly and substantially in issue in a former slut between the same parties or-between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in, which such issue has been subsequently raised, and has been heard and finally decided by such Court. In this case the title to properties now put in issue was tried in the revenue court. But that court is not competent to try the present suit in which the, same issue' is raised. It follows that in terms of s.11 of the Code, the decision on the said issue in the revenue court could not operate as res judicata 455 for the necessary condition of competency of that court to try the present suit is lacking.

In this view, it is not necessary to consider the differences between the'scope of the priniciple of res judicata covered by s. 11 of the 'Code 'of Civil Procedure and that of the principle of res judicata de hors the said section.. Nor is it necessary to express our view on the question 'whether the decision on the question of title in the previous suit was that of a revenue court or. of a 'civil court. We, therefore, reject the plea. of res judicata.

We shall next take the question of partition in the larger family. ,,Learned Attorney General contends that the finding of Agarwala, J., that there was a partition of- the larger family is correct and is supported by evidence in the case. Mr. Viswanatha Sastri, learned counsel for the respondent. contests the correctness of both the legal and factual submissions made by the learned Attorney General. His argument may be briefly summarized thus : The members of the family were villagers. the ancestral property owned by them was insignificant, its income was small, the partition must have taken place long ago and, in these. Circumstances neither documentary evidence nor the evidence of the elders is available but there is sufficient 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 456 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 Schedule A ; it comprised certain lands and houses in village Naugaien. Bhagwan Dayal, the plaintiff-appellant, in his deposition admits that the income of the land was about Rs.80/- per year, though subsequently it was enhanced to a sum of Rs.100/- per year. He admits that they (meaning, thereby Kashi Ram, Raghubar Dayal and Bhagwan Dayal used to get a sum of Rs 5/- or Rs.10/- a year from the land. It is clear from this that they were getting not the entire income from the land but only a part of it, ,There is no evidence to show when Lachhman Prasad died; but it is not disputed that Kashi Ram left the ancestral home Iona ago and had joined military services at Gwalior and thereafter police service in or about 1895. He gave up the service and came to Agra and started a business with his savings. There is nothing on the record, except the assertion made by Bhagwan Dayal in his deposition, to -show that Kashi Ram as manager either received the entire income from the ancestral property or paid any taxes in respect thereof. Raghubar Dayal says that rent of the said holdings was entirely in the accounts maintained by Kashi Ram; but they were not produced. Kashi Ram executed a will on September 13, 1919. Under that will he gave the entire properties to his two nephews, and it cannot be suggested that it was, 457 executed to defraud any person. There is a faint suggestion that the said will was executed to bar the claim of his daughter. In that document he does not say that he was a member of a joint Hindu family. The assertion that he was a member of a joint Hindu family would have barred the claims, of his daughter more effectively if that was his intention in executing the document. Be it as it may, the will, which, in our view, was an honest attempt on. the part of the testator to give his properties to his nephews, does not contain any assertion that he was a member of a joint Hindu family. A number of documents were executed by or in his documents there is a recital that he was a member of a joint Hindu family. This consistent conduct also indicates that Kashi Ram, never considered himself to be a member of any undivided Hindu family.

Bhagwan Dayal admits in his evidence that Ram Lail. his youngest brother, who was killed in the War in 1914, did not live with him and that his family and the family of Ram Lal were separate from each other and 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-inlaw lived separately in Naugaien, that they were cultivating separately and that thereafter he went favour during his lifetime, but in none of them 458 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 Devi, are entered in the Government accounts against different portions of the said property. Lastly, there was never any dispute between Kashi Ram and the sons of Jwala Prasad, or between the four brothers in respect of the income from the ancestral land. That could be explained only on the hypothesis that the said property was divided and the members of the family were getting their share of the income 'therefrom. This conduct of the parties for about 50 years was consistent with their partition rather than their joint status. On the whole, on a consideration of the material placed before us, we cannot say that the finding given by the learned Civil Judge and accepted by Gurtu, J., is not supported by evidence. We accept, the said finding.

The next. question is whether there was a reunion between Kashi Ram, Raghubar Dayal and Bhagwan Dayal. The learned Attorney-General contends that on the assumption that there was a partition of the family, the consistent conduct of the parties for a period of 50 years unambiguously establishes that there was a reunion between Kashi Ram, Raghubar Dayal and Bhagwan Dayal during the lifetime of Kashi Ram, or at any rate there was a reunion after the death of Kashi Ram bet- ween Raghubar Dayal and Bhagwan Dayal. Mr. Viswanatha Sastri on the other hand, argues that when there was a partition in the family, the members of the family who allege a reunion must strictly prove the same,. and that the documentary evidence filed in this case spread over a long period of time is destructive of any, such, claim.

459 For the correct approach to this question, it .would be convenient to quote at the outset the observation of the Judicial Committee in Palani Ammal V. Muthuvenkatacharla Moniagar(1) "It is also quite clear that if a joint Hindu family separates, the family or any members of it may agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many oases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved. The leading authority for that last proposition is Balabux Ladhuram v.

Bukhmabai(1)".

It is also well settled that to constitute a reunion there must be an intention of the parties to reunite in estate and interest. It is implicit 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) (1924) L.R. 52. I.A. 83, 86. (2) (1903) L.R. 30 I.A 190, 460 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 by agreement between them, the divided members of a joint Hindu. family have succeeded. in so altering their status an to bring themselves within all the rights and obligations that follow from the fresh formation of a joint undivided Hindu family."

As we give our full assent to these observations, we need not pursue the matter with further citations except to consider two decisions strongly relied upon by the learned Attorney General. Venkataramayya v. Tatayya (1) is a decision of a division bench, of the Madras High Court. It was.. pointed out there that "mere, jointness in residence, food or worship or a mere trading together cannot bring about the conversion of the divided status into a joint one with all the usual incidents of jointness in estate and interest-unless an intention to become reunited. in the sense of the Hindu law is clearly established. The said proposition is unexceptionable,, and indeed, that is the well settled law. But on, the facts of that case, the learned Judges came to the conclusion that there was a reunion. The partition there was effected between a father and his sons by the. first wife. One of the sons was a minor. The question was whether there was a reunion between the brothers soon after the alleged partition. The learned Judges held that as between the sons there was never any reason for separation inter se and' that the evidence disclosed that on their conduct no explanation other than reunion was possible. They also pointed out that though at the time of partition one of the brothers *us a minor, sifter he attained majority, he, accepted the position of reunion. The observation& relied upon by the learned Attorney General read thus (1) A.I.R. 1943 Mad. 538.

461 "In our view, it is not necessary that there should be a formal and express agreement to re-,unite. 'Such an agreement can be estab- lished by clear evidence of conduct incapable of explanation on any other footing."

This' principle also is unexceptionable. But the facts 'of that case are entirely different from those in the present case, and the conclusion arrived at by the learned Judges cannot help us in arriving at a finding in the instant case. Nor does the decision of the Madhya Pradesh High :Court in Ramadin v. Gokul prasad (1) carry the matter further. Therein the learned Judges restated the correct principle, namely, 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 (1) A.I.R. 1959 M.P. 251.

462 pandit Raghubar Dayal and pandit Kashi Ram (and after the latter's death the first two) worked jointly and lived and messed together and acquired , owned and possessed the entire properties jointly by their joint labour, which amounted to reunion, the plaintiff would still be the sole owner of the entire property in any view of the case."

The plaintiff's case is that there was no partition of the larger family at all ; and on that case no question of reunion arises. Further, he does not say that a reunion has taken place by agreement ; but he asks the court to hold that there was a reunion on the ground that the conduct of the parties amounted to a reunion. The Plea, to say the least., indicates that the plaintiff himself is not clear of his case.

The next circumstance is that neither Kashi Ram nor Raghubar Dayal and Bhagwan Dayal bring in any joint family property either to start the business or to make joint acquisitions. On the other hand, the entire capital for the business was furnished by Kashi Ram ; and., under those circumstances, it is not likely that there would have been any con-. scions act of reunion between the members of the divided family. Further, the business was started in 1885, and, it is in evidence that Raghubar Dayal joined Kashi Ram in the said business in 1889 and Bhagwan Dayal between 1893 and 1902. Raghubar Dayal in his evidence says that when he came to Agra, he was about 8 or 9 years old. If so, it follows that there could not have been any reunion before he attained majority. In Revenue Appeal No. 65 of 1941, it was not disputed that Raghubar Dayal was also a minor when Kashi Ram started his business. It is not clear from the record when Raghubar Dayal became' major. He could not have reunited with Kashi Ram before he attained majority.

463 The evidence may be considered in the following three parts:

(1) the period between 1885, when Kashi Ram started the business, and 1924, when he died; (2) the period between 1924 and 1933 i. e., from the year when Kashi Ram died to the year when Raghubar Dayal died; and (3) the, period between 1933 and 1939 when the dispute between the parties came to the forefront.

The first set of documents pertaining to the first period are 10 sale deeds whereunder properties were acquired in the joint names of Kashi Ram, Raghubar Dayal and Bhagwan Dayal. As the relevant recitals in all these documents are similar, it would be sufficient 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 coparceners, and in giving one of the 464 boundaries of the property sold be gives it only as -the shop of Kashi Ram alone. If really Kashi Ram and his nephews constituted members of a joint Hindu family, one could expect a recital to that effect. The absence of such a recital goes a long way to support the contention that they never considered themselves as members of a joint Hindu family. During the same period there were 13 mortgage deeds executed by third parties in favour of Kashi Ram and his two nephews, Ex. 6 is the first of these mortgages and is dated February 20, 1903, and Ex. 39 is the last of them dated November 2, 1991 8. In both the documents, the mortgagees are described in the same terms as those found in the sale deeds. Our remarks made in respect of the sale deeds would equally apply to these documents. During this period moneys were advanced by these three persons to others under bonds. The earliest of them is Ex. 7 dated September 20, 1904 and the last of them is Ex. 78 dated January 5, 1923. Kashi Ram and his two nephews are described in these documents in the same way as they are described in the sale deeds and the mortgages. These do not carry the matter further. There are seven decrees during the period-the earliest is Ex. ll dated June 19, 1903 and the last is Ex. 27 dated May 8, 1917. The first of the suits which ended in the decree was filed by Kashi Ram and the two nephews, and the other,- by Kashi Ram and Bhagwan Dayal. Ex. 3 was a rent deed executed by one Chandi Prasad in favour of Kashi Ram and his two nephews in respect of a shop owned by 'them. Ex. 23 dated April 14, 191.6 is the receipt -for possession of the land taken by Kashi Ram and his two nephews in execution of a decree obtained by them. Ex. 56 dated November 7, 1909 and Ex. 59 dated February 26, 1912 are two sale deeds executed by Kashi Ram and his two nephews conveying certain property in favour of third parties. In Ex. 56 it is stated that the 465 vendors have been in proprietary possession and occupation of the property and that "there is no co-sharer or co- partner of us who may stand in the way of making any sort of transfer". In Ex. 59 a similar recital is made. These two documents proceeded on the basis that the property was jointly acquired by the executants, and not only there is no mention that the executants belonged to a joint Hindu family, but the recitals 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 taken in adoption. In that document he clearly states that all the properties are self-acquired properties. He also provides in that document that, in case he died before the adopted boy attained majority, Raghubar Dayal should be his guardian. There is also a statement therein that the adopted son shall be the owner of his self-acquired properties 466 and none of his relations shall have any right whatsoever with respect' to his personal or ancestral properties. It is not suggested that in '1909 there were any disputes between Kashi Ram and his nephews. Indeed, the document was executed at a time when' Raghubar Dayal's son was taken in adoption. The fact that Raghubar Dayal was appointed his guardian is also very significant. In those' circumstances ', this document deserves the greatest credo-,rice and the recitals must be accepted as true.- The recitals show that Kashi Ram at any rate treated all his properties as his selfacquisitions, and Raghubar Dayal and Bhagwan Dayal accepted that position.

The next. document Ex. 5 is also a very important document in the case. It is a will executed by Kashi Ram:

bequeathing his properties. ,It appears that the adopted son died soon after the adoption and Kashi Ram, who was 80 years old, executed a will bequeathing his properties to his two nephews. He asserts in the document that all his properties are his self-acquisitions. He describes thereunder the circumstances, under which he brought up his nephews and says that both of them are co-partners in his money-lending business. He gives- all his properties in equal shares to them. This document is destructive of the plaintiff's case. It is not, and cannot be, suggested that this document was executed to defraud third parties. It is faintly suggested that the document was executed to stifle any claim that the daughter of Kashi Ram might prefer to his properties on his death. Such a contemplated claim could have been more effectively prevented by asserting that the properties were joint family properties ; but in the document the testator asserts that they axe his self-acquisitions, and directs that his two nephews shall take the properties jointly under the said will. It is not necessary to consider whether this will would operate 467 upon the shares of the two nephews in the properties jointly acquired by all the three of them. But the recitals are 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 filed by Raghubar Dayal and Bhagwan Dayal against one Khushali. In paragraph 4 of the said plaint it is stated:

"Kashi Ram, one of the plaintiffs, is, dead, the plaintiffs are his nephews and surviving coparceners of his joint family. They are competent to recover the maid debt."

Ex. 13, the decree passed in the aforesaid suit, shows that the suit was decreed ex parte. Ex. 44 is a 468 copy. of another plaint in Suit No. 306 of 1929 filed by the two brothers against another debtor.In the plaint it is stated that Kashi Ram is dead and that the plaintiffs are his surviving heirs. Ex. 14 is the decree made therein. The recitals in Ex. 44 are ambiguous; but the recital in Ex. 43 clearly says that the brothers are the surviving coparceners of the joint family' The suits were filed for small amounts,. It is obvious that those allegations were made to avoid the necessity of producing succession certificates. As a matter of fact the two brothers got the properties under a will, and in the circumstances the attitude of the brothers in the suits can easily be understood and reasonably be attributed to their anxiety to save some money by avoiding the necessity to get succession certificates.

The next series of documents relate to the period between 1933, and 1939 that is, from the year of the death of Raghubar Dayal to the year when disputes arose between the plaintiff and the defendant. During this period there were 5 sale deeds in favour of Bhagwan Dayal. The first of them is Ex. 89 dated May 23, 1933 and the last is Ex. 88 dated June 20, 1936. There is no recital in Ex. 89 to indicate the status of Bhagwan Dayal. The document shows that one of the co-vendees is Ajudhia Prasad, son of Ram Lal, one of the brothers of Bhagwan Dayal. It is not suggested, and indeed it is not the case of the appellant, that he' was a, member of a joint -Hindu family along with Ajudhia Prasad. It may have been that Bhagwan Dayal had taken Ajudhia Prasad as partner in the business, and that is consistent with the case of the defendant. Ex. 88 also does not give-any indication that Bhagwan Dayal was a member of the joint family along with his uncle, and thereafter with his brother. Ex. 83 is a sale deed whereunder Bhagwan Dayal exchanged a property purchased by him along with his brother' 469 for another property owned by a third party. There is no assertion in, this document 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 and Bhagwan Dayal used to live in Agra in one and the same house and were, joint in mess. His knowledge of the family affairs goes back only to the year 1910 and even his alleged admission does not indicate any joint status. Ex. 35 is the sale certificate issued to Raghubar Dayal in respect of a property purchased by him. Therein he is described as the, proprietor of the firm styled as "Pandit Kashi Ram Bhagwan Dayal". It is suggested by the respondent that the said description is a mistake. But assuming it to be correct, , it only shows that the were doing business jointly as they firm. Ex. 36 is a delivery receipt of the property 470 covered by the sale certificate, Ex. 35. This only shows that Bhagwan Dayal took delivery of the property purchased on behalf of the firm. Ex. 84 is a sale deed executed by one Raja Ram in favour of Raghubar Dayal and Bhagwan Dayal. This property, though purchased by both the brothers, was subsequently given in exchange by Bhagwan Dayal alone to Raja Ram for another. These statements only show that the two brothers had a joint mess and that aproperty purchased by both of them was disposed of by Bhagwan Dayal subsequent to the death of Raghubar Dayal. There is nothing to show that the widow had knowledge of it.

Strong reliance is placed upon certain statements alleged to have been made by the respondent and her brother admitting- the joint family status of the brothers. Ex. 45 in the statement made by the respondent in Suit No. - 197 of 1933 on the file of the Court of the Munsif, Agra. That was a suit filed by Bhagwan Dayal against one Har Lal for recovery of some money. She stated therein that her husband used to live jointly with the plaintiff, that the business was also joint, and that the money-lending business was ancestral in their family. In the cross-examination she went back on her statement made in the examination-in-chief, for she stated therein that she had interest in the money left ,by her husband that she had power of disposal over the said money and that she and Bhagwan Dayal were the owners of it. These inconsistent statements in a short deposition indicate that she was not clear about the legal terminology used by her when in the. examination-in-chief she said that her husband and Bhagwan Dayal were living jointly and that the business was ancestral in their house, for ,immediately when pointed questions 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 471 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. In paragraph 2 of that plaint it was stated that both the mortgagees were full brothers and members of a joint Hindu family of the Mitakshara school, that the mortgage debt was advanced by them as such, and that Raghubar Dayal died in February 1937 leaving the plaintiff as 'the surviving coparcener. In that suit the respondent gave vakalat to an Advocate to look after her interest. Ex. 2 is a copy of the judgment in that suit. One of the issues was whether a suecession certificate was necessary in order to enable the plaintiff to' file the suit. In that case, the mortgagor, being a stranger, did not put in evidence to show that Bhagwan Dayal was not a member of a joint family along with `Raghubar Dayal. Applying the presumption of law, the learned Munsif held, that the brothers were joint and that the suit was maintainable without a succession certificate. It is obvious that the allegations in the plaint in that suit were made to avoid the production of a succession certificate.

472 The. respondent could not have bad knowledge of these allegations in the plaint nor of the implication of the statements. She must have signed the vakalat at the instance of Bhagwan Dayal and given it to the Advocate engaged by him. Ex. 51 is a copy of the plaint in another suit filed by Bhagwan Dayal on August 17, 1933. Therein it is alleged that Bhagwan Dayal and Raghubar Dayal were brothers of' a joint Hindu family and that the plaintiff as the surviving coparcener of the said joint family brought that suit. It was conducted by him in that capacity and a decree was obtained. This allegation in the suit was presumably made to avoid the necessity of setting a succession certificate. These recitals and assertions in the suits that Bhagwan Dayal was a member of a. joint family along with his brother, Raghubar Dayal, could not have any evidentiary value against the respondent, for one thing there is nothing to show that she had knowledge of the suits and for the other that the recitals we're made for a particular purpose to avoid the expenditure for obtaining a succession certificate.

Reliance is placed upon the evidence given by her in Suit No. 15 of 1939 which is marked as Ex. W in the present case. Under the stress of cross examination certain facts were elicited from her. She stated that the uncle and the two nephews were living together, that, when Kashi Ram was alive, 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 473 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 it does not indicate any affection or regard towards the wide Ex. R, the Khewat of village Chaoli, shows that respect of that village Reeti Devi's name mutated for that of her husband. Ex. S, the Khewat of village Chak Soem, and, Ex. T, the Khewat of village Chaharum, contain recitals should being the name of Reoti Devi in the place of her husband. Exs. C., N and M are some of the order where under Reoti Devi's name was mutated place of her husband. The explanation offered the plaintiff in the plaint is unconvincing. He husband's name must have been entered in revenue records without any objection by the plaintiff, as he was conscious that she and her husband were not members of a joint family and she entitled to succeed to her husbands share.

From the aforesaid evidence the following facts emerge : In 1885 Kashi Ram started business at Agra from and out of his self-acquistionns. He brought his nephews at different points of time and allowed them to take part in the business. It may also be that he had taken them partners in the business and also purchased properties in their joint names ; but there is not single document during his lifetime wherein Kashi Ram either admitted that he was a member of joint family along within nephews or the nephew asserted any joint status along with him. Indeed 474 on the two occasions when it became necessary to setup his claims, that is, when he executed the adoption deed and the will, Kashi Ram clearly stated that all his properties were his self-acquisitions. The documents that came into existence after the death of Kashi Ram also do not contain any allegations that the brothers were members of a joint Hindu family during Kashi Ram's lifetime or that they were members of a joint family after his death. The self-serving statements made, by Bhagwan Dayal after the death of his brother, Raghubar Dayal, in 1933 were made to enable him to file suits without obtaining succession certificates. The alleged statements made by' the widow of Raghubar Dayal have no evidentiary value, for she was admittedly under the control of the plaintiff and even the alleged admissions were ambiguous. On the other hand, the respondent, soon after the death of her husband, got her name mutated in respect of her husband's share in the properties ; and this conduct is an unambiguous piece of evidence which indicates the consciousness 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.

475 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 that in a joint Hindu family if some members belonging to different branches or even to a single branch acquire property, they hold the property as members of a joint Hindu family and that that property vis-a-vis the said members will be joint family property.

On the other hand, Mr. A. V. Viswanatha Sastri contends that it is not possible under the Hindu law for some members only belonging to different branches or even to a single branch of a family to constitute a subordinate joint Hindu family and, therefore, any property acquired jointly by them would be governed only by the terms of the agreement between them where under the said property is purchased. This question raises an interesting point of law and requires scrutiny of some of the decision,% cited at the Bar. The legal impossibility under Hindu law of members of different branches of a joint Hindu family to constitute a subordinate joint Hindu family was pointed out by Bashyam Ayyangar in Sudarsanam Maistri v. Narasimhulu Maistri(1). There, one V and his Three elder sons lived apart from his two younger sons and were in possession of some ancestral property. The two youngest sons acquired property from the funds of a business which had been carried on by them jointly. One of the questions raised was whether they acquired the property as members of the joint Hindu family. Bhasbyam Ayyangar, J., in rejecting the contention discussed the principle governing 'the constitution of joint families and the (1) (1902) I. L. R. 25 Mad. 149.

476 properties acquired by the said families and made the following pregnant observations at p. 154 :

"The Mitakshara doctrine of joint family is founded upon the existence of an undivided family, as a corporate body............ and the possession of property by such corporate body. The first requisite therefore is the family unit ; and the possession by it of property is the second. requisite............. the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal condition viz., the undivided state-it forms a corporate body, such corporate body, with its heritage, is purely a creature of law and cannot be created by act of parties, save in so far that, by adoption, a stranger may be affiliated as a member of that corporate family."

Adverting to the nature of the property owned by such 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 477 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 principle behind the rule. Hindu law recognizes only the entire joint family or one or more branches of that family as a corporate unit or units and that the property acquired by that unit in the manner recognized by law would be considered as joint family property. But in the case of two or more members of a joint Hindu family belonging to different branches or even to the same branch, they do not acquire the property as a corporate unit or for the corporate unit and, therefore, they are only governed by the terms of the contract, express or implied, where under they have acquired the property. The same principle has been applied by a Full Bench of the Madras High Court in Chakra Kannan v. Kunhi Pokker (1) to a Marumakkattayam tarwad. Dealing, with tavazhi, which corresponds to a branch of a joint Hindu family under the Hindu law Srinivasa Ayyangar, J., observed thus at p. 336:

"These groups cannot of course be created by agreement of parties. The tavazhis or the subordinate groups constituting the tarwad are, I think, capable of holding properties as corporate units with the incidents of tarwad property, at the same time retaining their joint interest in the properties of the main tar-wad, just as branches and sub-branches in a Mitakshara joint Hindu family are capable of holding properties with the incidents of joint Hindu family property. I am (1) (1916) I.L.R. 39 Mad. 317, 478 also of opinion that some only of the members of a tavazhi cannot form a corporate unit capable of holding property as such."

This decision also recognizes the legal conception that only a joint family and its branches or subbranches can be corporate units capable of acquiring property, and that only two or more members belonging to different branches or even to one and the same branch cannot constitute such a unit and therefore, cannot acquire property with the incidents of joint Hindu family property.

A division bench of the Madras High Court elaborated the same theme in The Official Assignee v. Neelambal Ammal (1) and came to the conclusion that it is not possible for two members of an undivided Hindu family to deal with the property acquired by them in such a way as to impress upon it the incidents of a joint family property for themselves and their descendants. Reilly, J., observed at p. 803 thus:

"As I understand the matter, a Hindu joint family firm 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 (2) so too, the Allahabad High Court in Himmat Bahadur v. Bhawani Kunwar (1) accepted the view expressed by Bhashyam Ayyangar, J.

The Judicial Committee in Jogeshwar Narain Deo v. Ram Chund Dutt (4) 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 (1) (1933) 65 M.L.J. 798.

(3) (1908) I.L.R. 30 All. 352.

(2) (1902) I.L.R. 25 Mild. 149.

(4) (1896) L.R.23 I.,A. 37,:

479 judicial Committee in, Bahu Rani v. Rajendra Bakhsh Singh(1) 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, English law, their rights and liabilities can only be governed by the terms of the agreement, under which they purchased the property. Now lot us look at some of the decisions cited on behalf'of the appellant in support of the contention that there can be a joint acquisition by such members giving rise to the right of survivorship though not right of birth. Strong reliance is placed upon the decision of the Judicial Committee in Nathu Lal v. Babu Ram (2) There, on the' death of one of two brothers, who were members of a Hindu family the surviving brother claimed that he had been joint, with his brother and that 'the', whole of the property passed by survivorship to him so that the widow of his: deceased brother took nothing by inheritance. The dispute was referred to arbitrators, who: found that the two brothers had been joint. and divided the joint property between the parties in certain unequal proportions. The widow subsequently executed a deed of gift of part of the property awarded to her in favour of one of her daughters. On the death of the daughter, four sons of another daughter of the widow, claiming to be reversioners of their grandfather obtained possession of the property passed by the deed of gift. The nephew-in-law of the deceased daughter and a purchaser from him sued to recover possession of the property on the ground that the widow had hold, an absolute estate and, had by the deed of gift conveyed an. absolute estate in the property to her daughter. The Judicial Committee held that on the (1) (1933) L. R. 60 I. A. 95.

(2) (1935) L. R. 63. I. A. 155.

480 death of the daughter the property passed by survivorship to the surviving brother and not by inheritance to the widow; but that upon the true constitution of the award, the widow war, given an absolute interest. On that finding the suit was decreed. But a scrutiny of the facts shows that one Buddhi had three sons, Ram Sahai, Ji Sukh, Ram and Sita Ram, and that Buddhi and one of his sons, Sita Ram left the family and the remaining two brothers Ram Sahai and Ji Sukh Rant, continued to be members of the joint family. The Judicial Committee rightly held that the properties purchased for the family by the two brothers constituting the joint family were joint fan-lily properties. It is not a case of some members of different branches or some members of the same branch purchasing properties jointly, but a caw, of all the members 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 (1) 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 (2) 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 (1) (1873) 20 W.R. 1-97.

(2) (1992) I.L.R. 25 Mad. 149.

481 family cannot from a corporate unit. In our view, that decision is wrong and must be overruled.

Nor does the decision of the Judicial Committee in Rampershead Tewarry v. Sheochurn Doss (1) support the contention of the appellant. In that case one of the five brothers constituting an, undivided Hindu family acquired personal property. With that money and with the aid of his brothers he established and carried on banking business at five different places. The Judicial Committee held that the property so acquired was joint family property in which the brothers were entitled to,share. A perusal of the judgment shows that &II the brothers were members of an undivided Hindu family and there was a nucleus of ancestral property and that all of them together acquired the property jointly, though the banking business was started with the help of the self-acquisitions of one of the brothers. This again is a case of all the members of a joint Hindu family acquiring property for the family.

In Mayne's Hindu law, 11th edn., the legal position has been neatly stated thus at p. 347 :

"So long as a family remains an undivided family, two or more members of it, 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 all the members of a branch, or of a sub-branch, can form a distinct and separate corporate unit within the larger corporate, family and hold property as such. Such property will be joint family -property of the members of the branch intterse, but will be separate property of that branch in relation to the larger family.

The, principle of joint tenancy is unknown to Hindu law except in the case of the joint (1)(1866) 10 M.I.A. 490.

482 property of an undivided Hindu family governed by the Mitakshara law."

The legal position may be stated thus : Coparcenary is a creature of Hindu law and cannot be ,created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the limitations laid down by the said law, for or, on behalf of the family. 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 acquired.

483 The concept of joint tenancy known to English law with the right of survivorship is -unknown to Hindu law except in regard to cases specially recognized by it. In the present case, the uncle and the two nephews did not belong to the same branch. The acquisitions made by them jointly could not be impressed with the incidents of joint family property. They can only be co-sharers or components, with the. result that their properties passed by inheritance and not by survivorship.

In the result, the appeal fails and is dismissed with costs. Appeal dismissed.