1. This is a suit by the plaintiffs, the nephews of the deceased Raghunandan, against the defendant No. 1, who is the executor of his Will.
2. The plaintiffs seek to recover their share of Raghunandan's property on the ground that it is joint ancestral property and that, therefore, Raghunandan had no power to dispose of it by Will.
3. The case has been strenuously contested on behalf of the plaintiffs by Mr. Sethna, who has laid before the Court the fullest materials at his disposal and urged every argument which ingenuity could suggest. Still I cannot help feeling at the close of the case, as I felt at a very early stage of its progress, that the plaintiffs had really no case at all.
4. Mohanlal died many years ago, leasing two sons; the testator Raghunandan and his brother Raghubir. It is alleged by the defendant, and the plaintiff is not in a position to contradict it, that Raghunandan left his native place Unao more than forty years ago, somewhere about the year 1866, and came to seek his fortune in Bombay. Since then he appears to have lived and worked with considerable success uninterruptedly in Bombay until his death. There may, of course, have been occasions on which he may have returned to pay temporary visits to his native place. It is in evidence that he was a man of many occupations and it is contended on behalf of the defendant that the result of his exertions was a considerable fortune represented by the numerous properties disposed of by the Will.
5. The case started upon the general presumption of the Hindu Law that families are joint and the onus of proof of separation lay in the first instance on the defendant. While that is a presumption of the Hindu Law, it is not a presumption of the Hindu Law that every member of a joint Hindu family who is found to be in possession of property at his death has necessarily acquired that property as a member of the joint family and so imprinted upon it the character of joint Hindu family property. Before that presumption can be drawn, it lies upon the party so alleging to prove that there was at least a nucleus of joint family property, out of which the property ultimately acquired by an individual member may be fairly said to have grown; and it is here that the plaintiff's case is so weak that I think it is no exaggeration to say that it is entirely without foundation. A considerable amount of documentary evidence has been laid before the Court commencing with what is alleged to be the release or memorandum of separation between the brothers Raghunandan and Raghubir in the year 1877. Mr. Sethna has commented severely upon this paper, pointing out many indications in his opinion at least of its untrustworthiness; and I cannot deny that there is considerable force in the criticism, and that looking at the paper in its present state it may very fairly be open to some suspicion. There can, however, I think be no doubt that the original, of which the paper now in Court is alleged to be a copy, was sent by Raghunandan to his Vakil in the Unao Court in connection with a case which he was prosecuting there in 1908, and as 'Raghubir had died in 1904, it is clear that the paper, if indeed Raghubir was in any way a party to it, could not have been concocted for the purpose of that case in Unao. At first I was inclined to think that both the paper Exhibit 2 and the release Exhibit 3 purporting to be executed by Raghubir to his brother Raghunandan for the use of a small house in Bether may very well have been concoctions between the two brothers designed to defeat the mortgagee who had obtained a decree against Raghubir upon a mortgage which the latter had separately executed. But having regard to the date of the litigation and the death of Raghubir this is plainly impossible, and if these papers are fabrications they must be the sole work of Raghunandan and the signature, purporting to be the signature of Raghubir, upon them must be a deliberate forgery. I do know that the plaintiffs have gone quite the length of alleging that; but as I have said both these papers have been very adversely criticised, and perhaps it would be unsafe to attach too much importance to them. In view, however, of the practically undisputed fact that Raghunandan left his country so far back as 1866 and must by 1877 have found encouraging prospects in Bombay, there is nothing in the least antecedently improbable in his having separated from his brother and in both of them having entered into this memorandum of partition in 1877. So far as the probability itself goes, this memorandum, dealing as it does apparently with comparatively valueless moveables, is entirely consistent with what the evidence would lead one to suppose was the condition of the family in Bether or Unao about that period. So, too, if the lease of the house in Unao purporting to be executed by Raghubir to his brother Raghunandan is a genuine document, that would go very far to dispose of the plaintiffs' contention that the family remained joint and undivided. But, even assuming that both those documents are entirely untrustworthy, what evidence is there that when Ragnunandan came to Bombay there was a nucleus of the joint family property which can fairly be regarded as the root of this subsequent prosperity? And some limits must be imposed upon this doctrine of nucleus. It is obviously impossible to draw any hard and fast line and I should be the last to make any such attempt between how much may be called and how much may not be called a nucleus of the joint family property. But if the joint family funds could be stretched no further than providing a railway ticket from Unao to Bombay and possibly a few rupees over to support that member of the family who had decided to launch himself independently upon the world, I think it will be absurd to treat that as the true foundation of any fortune which he might subsequently have accumulated. The proverbial sixpence in the millionaire's pocket on arriving at a great city perhaps might lend some colour to so extreme a theory; and pressed to its logical conclusion a few rupees or annas which may enable a man to transport himself from a non-commercial village to a large commercial center might be regarded as the primary means of any subsequent successes he might obtain at the latter place. But I for one do not think that the doctrine ought to be carried to such lengths, which, I confess, appear to me to be ridiculous. And there is not a jot or tittle of evidence in this case to show that at his arrival in Bombay Raghunandan had any ancestral moneys with him or that he depended after his arrival in Bombay upon any remittances from the joint family funds. Doubtless as the case unfolded, the learned Counsel, who has made such a gallant fight for the plaintiffs, felt this difficulty, and the attack was shifted to another ground, At a later stage it was sought to convince the Court that Raghubir came to Bombay and earned a great deal of money; more than Raghunandan had been able to do, and all of it he very confidentially handed over to his brother on the understanding that they were members of a joint family and then returned to end his life in abject poverty in Unao. Now, in fact, if there had been a separation when Raghunandan left the family village in 1866, and to all intents and purposes there was a separation, then so far as Raghunandan was concerned, I should need very strong evidence indeed to convince me that as late as 1898 the brothers re-united. I say there was probably in fact a separation when Raghunandan left in 1866. Though a formal division of the utensils and moveables that the two brothers possessed was not effected according to the defendants' case till 1877, still up to that period and ever since he transferred himself from Unao to Bombay. Raghunandan had been supporting himself by his own independent exertions-without any assistance whatever from the joint family estate in Unao, then whether or not he had chosen to make a family partition then or later with his brother, the character and quality of his earnings as an independent worker in Bombay would probably have remained unaffected. I introduce the word 'possibly' because it is a common principle of this branch of the Hindu Law that when an undivided member of the family seeks a partition he must bring all his property into hotchpot. Therefore, had it really been a question of a partition of a joint ancestral family property in 1877 and if at that time Raghunandan had been in a position to contribute anything, I do not see why Raghubir might not have insisted upon all that being thrown into the common stock. I do not say at the same time, that he could have insisted upon that necessarily with success as Raghunandan might have been able to prove that all he had earned in Bombay he had entirely earned by his exertions and had kept rigidly separate and distinct as his self-acquisition. However that may be, and taking Exhibit No. 3, the release of 1877, to be a genuine paper which I am disposed to think it is, there can be no question of any commensality between the brothers after that year, unless indeed the plaintiffs are able to satisfy me that after having once separated they re-united. Now, Exhibit 12 consists of eight letters evidently written by Raghubir to his prosperous brother Raghunandan, commencing with the year 1887 and ending in 1896. All those letters conclusively show, if they are genuine, that Raghubir had recognised and accepted the fact of the partition, and that he regarded his brother's property as his self-acquisition upon which he had no rights. The letters are, speaking broadly and generally, abject, begging letters, such as certainly would not have been written by one brother to another if the writer had believed himself to be entitled to half of the recipient's wealth. So that, taken in connection with the lease and the release, those letters go very far towards being conclusive proof that the brothers had separated long ago. Add to that the evidence of the first plaintiff who rather unexpectedly, I think, admitted that his father Raghubir owned one small property at least in his native place in which the deceased Raghunandan his brother had no share. Such a circumstance is again incompatible with the plaintiffs' theory that the brothers had remained joint and undivided. Then there is the evidence of the plaintiffs' witnesses, the first two of whom speak to the status and relations of the family consisting of Raghunandan, his two nephews and defendant No. 2 the widow of his predeceased son Bholanath. That evidence goes no further than that Raghunandan kept these young boys with him and treated them as though they were members of his own family. That is very likely. The plaintiffs themselves admit that when they came to Bombay virtually paupers the uncle treated them with consistent kindness, maintained them and foundemployment for them. It is indeed suggested by these witnesses that the earnings of the two plaintiffs were contributed to the family exchequer. One of those boys used to be sent out selling sweetmeats and the other apparently worked somewhere as, a Ramosi. Neither of them could have earned more than 5 or 10 rupees a month at the outside, and the suggestion of contributions to the family purse to justify the conclusion that these waifs and strays were really joint in a pecuniary sense with the wealthy uncle seems to me too absurd for further consideration.
6. Then we have the evidence of Mungaldas Devidas, who is brought to support the alternative case on which the plaintiffs are now forced to rely. That evidence again, I think, does not need any very serious consideration or detailed criticism. If we believe this man, we should have to believe that Raghubir earned very large sums of money indeed in Bombay as a Pandit. The witness gives us two instances in one of which Raghubir is said to have been paid Rs. 450 for seven days' katha-reading and a very much larger sum for performing similar priestly functions on another occasion. At that rate it would be no exaggeration to conclude that he might, it he had continued practising these remunerative offices, have earned from anything like twenty to thirty thousand rupees a year, and it is utterly absurd to suppose that if he hud that capacity and was aware of it he would have continued for years in the indigent and miserable circumstances in which he repeatedly portrayed himself to his brother in the letters, Exhibit No. 12. Nor can I imagine why in fact if he found Bombay so remunerative a field he should have returned to die is poverty in his native place. Now, it is sought to be suggested by this evidence that whether the brothers had been undivided or not all along, whether or not they had been separate or re-united, a great proportion at least of the purchase-money s of the properties disposed of by Raghunandan in his Will had been contributed by Raghubir. If that in fact were so, we should have to deal with a somewhat different set of considerations from those which are peculiar to the doctrine of the Hindu Law. But the answer to this is complete and crushing. It was in 1954 Sambat (that would be 1898 A.D.). that the witness says that Raghubir came to Bombay and was so successful in performing these priestly functions; but before 1898 all the properties (with a single exception) mentioned in the Will had already been bought by the deceased Raghunandan, and, as I have already pointed out, at any rate as far back as 1887, we had the best possible evidence of the total inability of Raghubir to have contributed a penny towards the purchase-money. So far from being able to contribute moneys to be spent in purchasing immoveable properties he continually complained of being unable to support himself; and I do not recollect a single word in the evidence or in the documents which make up the records of this case, which would justify me in supposing that his circumstances had been more flourishing before 1885.
7. Since then, in the first place, I think there is satisfactory evidence that a formal partition had been come to in 1877; since, in the next place, even if there had been no such evidence I think the admitted fact that Raghunandan had come to Bombay in 1866 and had since worked entirely independently and unassisted would have been sufficient to justify the conclusion that all his earnings were self-acquisitions; since, thirdly, I am utterly unable to believe that either in the case of Raghubir or his children, the plaintiffs, was there any re-anion; and since, fourthly, I cannot for a moment entertain the plaintiffs' last desperate suggestion that a considerable proportion of the purchase-money was in fact contributed by Raghubir, it follows that I can discover not the slightest ground upon which the plaintiffs could by the remotest possibility hope to succeed.
8. I must, therefore, dismiss this suit with all costs and as the defendant is an executor those costs must be taxed as between attorney and client. If the defendant cannot recover his costs from the plaintiffs, they must come out of the estate.