1. A preliminary point has been taken in this appeal that the notice issued to the respondents was returned unserved by the Subordinate Judge of Bagalkot under an endorsement dated March 9, 1925, and that an application for the issue of a fresh notice to the respondents was not made until June 29, 1925. It is contended that this application was made after the period of three months prescribed by O. 9, Rule 5, Civil P.C.,and that under the terms of that rule the Court must dismiss the appeal, in spite of the fact that Coyajee, J., on July 16, passed an order, excusing the delay and ordered the issue of fresh notice by substituted service upon the, respondents.
2. In my opinion, however, O. 9, Rule 5, does not apply to appeals. In terms it only applies to suits, and O. 9 contains no provision such as appears in Order 22, Rule 1, that 'plaintiff' shall include an appellant, etc.
3. In fact it seems to me clear that the Legislature did not intend O. 9 to apply to appeals, for Order 41 contains specific rules covering corresponding cases that arise in appeal, e.g.:
Order 9, Rule 1= Order 41, Rule 16.' 2= ' ' 18.' 3= ' ' 17 (1),' 4= ' ' 19.' 5= ' ' Nil.' 6= ' ' 17 (2).' 7= ' ' 21.' 8= ' ' 17 (1).' 9= ' ' 19.' Rules 10, 11, 12= ' ' Nil.' 13= ' ' 21.' 14= ' ' Nil.
4. The correspondence between O. 9, Rule 2, and. Order 41, Rule 18, is in particular noticeable. If it was intended that Order 11, should apply to appeals, it would be quite unnecessary to make the similar Rule 18 of Order 41. Also, though provision is made for a failure by the plaintiff or appellant to deposit the costs of the summons or notice, the Legislature deliberately avoided making a rule corresponding to O. 9, Rule 5, for the case of appeals under Order 41.
5. The only decision on the point that I have been able to find is Narayana-sami Naidu Garu v. Namburi Bhadri Raza : (1913)25MLJ451 where a Madras Bench held that Order 41, Rule 14, makes O. 9 applicable to proceedings in appeal, so that O. 9, Rule 5, would apply. It is to be noted that the respondents in that appeal were unrepresented, and so there was not a full argument. I entirely dissent from the decision for the reasons already given. Order 41, Rule 14, only says that notice shall be served
in the manner provided for the service.... of a summons to appear arid answer ; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof shall apply to the service of such notice.
6. In my opinion, this was intended to make the relevant provisions of O. 5 applicable, and cannot cover O. 9, Rule 5, which is a provision not about the service but about the consequence of nonappearance of a defendant on account of failure by plaintiff to make a certain application.
7. The case really falls under Rule 40 of our Appellate Side Rules. This allows the appellant to make an application for fresh service within a month from the date on which the Sheristedar intimates to him the fact that the notice has failed to be served on the respondents. If he does not make this application within the time allowed, then the Court can extend the time and excuse delay under Section 148, Civil P.C. Under Heads II and VII of Rule 2 of the Appellate Side Rules, this can be done by a single Judge. It is not a case falling under the Limitation Act, except so far as, under Article 181, the period of limitation would be three years.
8. Accordingly, there is no provision under which the appeal should be dismissed because application was not made within either the period allowed by O. 9, Rule 5, or that allowed by the Appellate Side Rule 4O. Nor is it a point affecting the admission of the appeal after the prescribed period of time, such as is dealt with by the Privy Council in Krishnasami Panikondar v. Ramasami Chettiar  41 Mad. 412. It is not even a case like that of failure to file a vakilpatra with an appeal, which, in Mahomed Jaffer v. Skeikh Ahmed : AIR1926Bom336 , is held to be immaterial. The order of Coyajee, J., was one which he had jurisdiction to make and which could properly be passed ex parte, and we cannot allow it to be questioned now, especially having regard to the principle underlying the proviso to Order 41, Rule 18. The appeal must' therefore, be heard on its merits.
9. On March 9, 1925, the return of the summons unserved was made from Bagalkot reaching this Court on March 14. On June 29, the appellant applied for substituted service, put in affidavits on July 8, and obtained an order as follows from Coyajee, J., on July 16:
Substituted service allowed. Delay excused.
10. On these facts a preliminary objection is taken for the respondents that O. 9, Rule 5, Sub-rule (1), as amended by India Act 24 of 1920, applies to appeals, and the appellant having failed for more than three months to apply for the issue of fresh summons, the Court is bound to dismiss the appeal. The order of Coyajee J., it is contended, was without jurisdiction and is a nullity. The appellant relies on this order. Both sides have assumed that O. 9, Rule 5, applies to appeals, and it was apparently so held in Narayanasami Naidu Garu v. Namburi Bhadri Raza (1) by a Bench of the Madras High Court, which referred to Order 41 Rule 14. That rule only provides that
all the provisions applicable to such summons and to proceedings with reference to the service thereof, shall apply to the service o such notice.
11. These provisions, however, fall not under O. 9, but under O. 5. Order 9 is expressly headed 'Appearance of parties and consequence of non-appearance.' And, as pointed out by my learned brother, if the Legislature had intended en bloc to make the entire Rule 3 of O. 9, in regard to non-appearance and the consequence thereof applicable to suits, Order 41, Rules 16 to 20, would be superfluous. In my opinion it is at least very doubtful whether, by reason of Order 41 Rule 14, Order 9 including Rule 5, as amended, applies to appeals.
12. The order of Coyajee, J., was made under Rule 2 of the Appellate Side Rules. He had jurisdiction to make it. Even if, our view above as to Order 9, Rule 5, not applying to appeals, were wrong, the order of Coyajee J. might be wrong, but it is with jurisdiction and cannot be treated as a nullity.
13. I agree, therefore, that the preliminary objection for the respondents fails and the appeal must proceed to hearing on merits.
(After hearing appeals on merits, the following judgments were delivered.)
14. The relationship between the parties is shown in the following pedigree : (For pedigree see P. 71
| d. 1891 |
| | | | | |
| Basvantraya Ningbasappa | Dharmappa |
| d. Feb. 1920 | ________|______ |
| =Parava-Plfl. 1 | | | |
______|_____ adopted | Girmalappa Parapa |
| | Parapa-Plff. 2 | Deft.4 Deft.5 |
Chaudhareppa=Sangava | |
d. Jan. 1905 d. Oct.1905. | |
Baburao-Deft, 1 born after 1881
________|_______ Deft. 6
| | |
Sanaappa Chandrapa Gadigeppa
Daft. 2 Daft. 3 Deft. 7
15. Of the six sons of the propositus Sanganbasappa, the eldest son Chaudhareppa, who was Sanganbasappa's son by his first wife, separated in December 1881 and was given a third share of the entire joint family property and was in enjoyment of the same till his death in January 1905. The second son Basvantraya by Sanganbasappa's second wife also separated in 1886 under a deed. Exhibit 112. Sanganbasappa, the propositus, died 'in 1891. The third son Ningbasappa died childless in February. 1920. On his death his widow Parava, Plaintiff No. 1, applied to the Revenue Authorities to transfer the lands to her name. In this suit she seeks to establish her right and possession in respect of two pieces of property, first, property A, being the one-third share, which had been taken away by the eldest son Ghaudhareppa in 1881, and the other, property B, which had been left over after the separation of the second son Basvantraya in 1886.
16. In respect of property A, the claim was founded on a malikpatra,' Exhibit 225, passed on October 21, 1905, the date of her death, by Sangava, the widow of Chaudhareppa, in favour of Plaintiff No. l's husband Ningbasappa. In respect of property B, the plaintiff No. 1 adopted plaintiff No. 2 Parapa about two years after the date of the institution of the suit and claimed a one-fourth share, being the share of her deceased husband Ningbasappa.
17. The defendants-appellants resisted the entire claim. They resisted the claim to property A on the ground, firstly, that the maiikpatra by Sangava, the widow of Chaudhareppa, in October 1905, though nominally in favour of Ningbasappa, was really in favour of the joint family consisting of Ningbasappa and his three younger brothers ; and secondly, that Ningbasappa had in any case blended property A with property B, which was the joint family property of Ningbasappa and his three younger brothers.
18. The lower Court held that the maiikpatra in regard to property A was really intended to be in favour not only of Ningbasappa, bub likewise of the three younger brothers, and they constituted a joint Hindu family. With regard to property B, which was joint family property, it held that, by virtue of the adoption of Plaintiff No. 2 by Plaintiff No. 1 Parava, the plaintiffs were entitled to one-fourth of the joint family properties A and B on the ground that their Lordships of the Privy Council had laid down in Yadao v. Namdeo A.I.R. 1922 P.C. 216 that such an adoption, although the property had not vested in the adopting widow, gave the adopted son the share of deceased adoptive father. Defendants Nos. 1, 2, 4, 5 and 6 appeal.
19. The respondent-plaintiffs have filed cro3s-objections. It is argued by Mr. Nilkant Atmaram for the plaintiffs-respondents in support of the cross-objections firstly, that, on the date C1 the separation of Basvantraya in 1886, not only did Basvantraya separate, but that there was a complete dissolution at least of the joint status of the entire joint family including each of the younger brothers of Basvantraya. Secondly, that the property A in the malikpatra by Sangava, widow of Chaudhareppa, was given to Ningbasappa alone, and was a valid gift, being passed according to the oral wishes of her husband, as recited therein, and being in effect his nuncupative will, and that, in any case, inasmuch as the malikpatra was attested by Basvantraya and Baburao, Defendant No. 1, and all the three younger brothers had consented to the grant of a succession certificate to the estate of the deceased Chaudhareppa in favour of Ningbasappa alone it took effect as an alienation by the widow of Chaudbareppa, to which each of the reversioners had consented, or which they had ratified 'subsequently. Thirdly, that in respect of property A, Ningbasappa had not blended it with joint family property. The mere fact that he had allowed the benefit of the income to his younger brothers was not conclusive proof of that blending in the absence of evidence of blending of the corpus itself.
20. For the appellants, it is contended that the malikptara, even if valid, was in favour of the four brothers and not merely in favour of Ningbasappa, and that from 1905, the date of the malikpatra, up to the death of Ningbasappa in 1920, lands A and B had been treated on exactly the same footing by all the four brothers, namely, as joint family property, their income and expenditure being in no wise distinguished in the joint family accounts.
21. Accordingly, the questions which arise in this appeal are:
1. Whether in 1886 when Basvantraya separated, the remaining brothers also separated in status, or whether they remained united ?
2. Whether the malikpatra by Sangava in 1905 was in favour of Ningbasappa alone or also in favour of his younger brothers ?
3. Whether this malikpatra is valid in law ?
4. Whether Ningbasappa did or did not blend property A in this malikpatra with property B which remained with father and other brothers after the separation of Basvantraya ?
5. Whether the Plaintiff No. 2 on adoption obtained any interest in the properties ?
22. On the first point, reliance is placed for the respondents on the decision of their Lordships of the Privy Council in Balubax Ladhuram v. Rukhmabai  5 Bom.L.R. 469 and it is argued that Basvantraya having admittedly separated, not only is there no presumption that the remaining brothers continued joint, but that it is admitted by Defendant No. 1 and the others that the status of the family underwent no change after the separation. It is contended that, in law, separation of one means dissolution of the joint family, as was observed by Macleod, G. J., in Ram chandra v. Tukaram A.I.R. 1921 Bom. 276.
23. But this was not the case set up in the lower Court. Although in the plaint the plaintiff vaguely stated:
As there were two partitions in the family, plaintiff's husband and his brothers were practically divided.
24. Yet in her evidence, Ex. 67, she admitted as follows:
My husband was manager of the family consisting of himself and his three brothers.
25. Even in her application, Ex. 190, in 1920 to the Revenue Authorities, she was explicit that
The land mentioned in. list 2 B belonged to the joint family and my husband was a senior member of the family.
26. Under these circumstances, the learned pleader for the plaintiffs-respondents was reduced to ask us to lay down as a proposition of law that the separation of one brother (Basvantraya) was in law the separation of each one of the other brothers as well. But the 'case of Balabax v. Ruhhmabai  5 Bom.L.R. 469 does not go this length but merely enunciates that:
There is no presumption, when one coparcener separates from the others, that the latter remain united...An agreement amongst the remaining members of a joint family to remain united or to reunite must be proved like any-other fact.
27. And the observations in Ramchandra v. Tukaram A.I.R. 1921 Bom. 276 are taken from the older case Anandibai v. Hari Suba Pai  35 Bom. 293, by a quotation which is not complete. For in this last case Chandavar-kar, J. observed as follows (p. 296):
If it is proved that there has been a breach in the state of union, the law presumes that there has been a complete partition both as to parties and property. The presumption in question continues until it is rebutted by proof of an agreement, which means proof of intention on the part of some to remain united as before and to confine the partition to the rest, or, if the partition was intended to extend to the interest of all individually, there must be proof that some of them reunited. In the present case the former was alleged and has been found established by the evidence.
28. And in fact in this last case it was held that, out of six brothers, three separated and the other three remained united as before or had immediately reunited with each other after executing the deed of partition.
29. The learned pleader for the plaintiffs-respondents, asks us not to accept the view of the Allahabad High Court in parsotam Das v. Jagan Nath  41 All. 361 to which attention was drawn in argument by my learned, brother.
30. Without going into the elaborate case-law on the point we may take it as now established [see Suraj Narain v. Iqbal Narain  35 All. 80 and Girja Bai v.. Sadashiv Dhundiraj  43 Cal. 1031 that an expression of an unequivocal intention to separate suffices to dissolve the joint status of a joint Hindu family. But it is not correct to say that because one brother has separated or has expressed such intention, therefore, the intention of the other brothers must be taken to be the same. For instance, in the present case, if this view of the law were correct, it would follow that the real dissolution of the joint family took place even earlier than 1886, namely, in 1881, when the eldest brother Chaudhareppa separated. But that this was not so, is clear from the fact that five years later Basvantraya thought it necessary formally to separate.
31. The case of Balabax v. Rulchmabai  5 Bom.L.R. 469 has been referred to by their Lordships in Jatti v. Banwari Lal A.I.R. 1923 P.C. 136. It has been distinguished in Hari Bakhsh v. Babu Lal A.I.R. 1924 P.C. 126, the observations at p. 1.02 being in point. The most recent case is Palani Animal v. Muthuvenkatachala Moniagar . At p. 257 their Lordships observe:
But the mere fact that the shares of the coparceners have been ascertained does not by itself necessarily lead to an inference that the family had separated. There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be. It is also now beyond doubt that a member of such a joint family can separate himself from the other members of the joint family and is on separation entitled to have his share in the property of the joint family ascertained and partitioned off for him, and that the remaining coparceners, without any special agreement amongst themselves, may continue to be coparceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener had separated from them.
32. These observations apply, in our opinion, to the facts of the present case. The deed of 1886 itself lends no countenance to the argument that the father and the younger brothers of Basvantraya also intended to separate, any more than the fact that Basvantraya on partition got one-fifth of the two thirds which was left over after the one third of that had been taken away by the eldest brother Chaudhareppa in 1881, It is undoubted that after 1886 the father and the four younger sons continued to live jointly as before. The accounts up to the death of Ningbasappa in 1920, are all one, no separation is made of the shares of the four younger sons or of their income and expenditure. Under the circumstances, I am of opinion, that both in fact and in law the argument for the plaintiffs on this point fails, and that in 1886 Basvantraya alone,like his elder brother Chaudhreppa separated and the father Sanganbasappa and four younger sons including Ningbasappa continued to be members of a joint family both up to the death of the father in 1991, and the death of Ningbasappa in 192O.
33. On the second question the malikpatra passed by Chaudhareppa's widow Sangava on the date of her death, October 21, 1905, is ostensibly in favour of Ningbasappa alone. There is nothing to show from the deed itself, nor is there a any in dependent evidence aliunde that it was meant for the benefit of the three younger brothers of Ningbasappa. The recital therein that it was according to the wishes of her husband is doubtless not so disinterested, as in the case of Hari Chinlaman Dikshit v. Moro Lakshman  11 Bom. 89, where a widow, immediately after her husband's death, passed a similar varaspatra which was sought to be challenged in a suit of 1881. At the same time the malikpatra in this case is attested both by Basvantraya and Baburao, the eldest of the defendants. It was not, therefore, a secret affair, and, under the peculiar circumstances, I cannot agree with the learned Subordinate Judge that Baburao and Basvantraya cannot be presumed to have known or consented is this deed in favour of Ningbasappa. It is also undeniable that when Ningbasappa in his own name applied for a succession certificate to Chaudhareppa, none of his brothers opposed the application. It is difficult, at this lapse of time, therefore to hold that the malikpatra was in favour of anyone else but Ningbasappa alone. Being attested by two brothers and subsequently ratified by the others, it is, in our opinion, a correct contention for the plaintiffs that it is good in law : Basappav.Fakirappa A.I.R.1922 Bom.102, following Bajrangi Singh v. Manohamika Bakhsh singh  30 All 1.
34. The last question is in regard to the blending of the joint family funds. It has been proved conclusively that Ningbasappa, who was the manager of the joint Hindu family of himself and his younger brothers and their sons in respect of property B, treated property A in exactly the same fashion as the joint family property B. In the first place, Ningbasappa had not kept any separate accounts of this land or of the land A or of their income. During all these years, A is treated in the joint family account exactly like B. Its income is lumped up in the adhavas along with the income of property B, and so is its expenditure. And, inasmuch as these were lands, it would be difficult to obtain further evidence of blending than this. It would appear that Ningbasappa throughout his life lived jointly and died jointly with his three brothers. He never had any children. Even when he took the deed from bangavam his own name, the fees of registration and stamp for the deed were taker, from the joint family. The matter was treated by one and all as making no difference to the younger brothers to whom in fact he acted in loco parentis until the time of his death. Such conduct suffices to prove blending in law with ancestral property so as to alter it from self-acquisition into ancestral : La Bahadur v. Kanhaiya Lal  29 All. 244 and Rajani Kanta Pal v. Jaga Mohan Pal A.I.R. 1923 P.C. 57. It follows, therefore, on these findings that, on the date of the death of Ningbasappa, properties A and B were all joint family properties.
35. Plaintiff No. 1 Parava, the widow of Ningbasappa, has not set up express authority to adopt to her deceased husband. In fact alreaay staged, her adoption of Plaintiff No. 2 was pendente lite about two years after the institution of the suit. The consent of the coparceners, the three younger brothers, was not obtained. The view of the learned Subordinate Judge as to the effect of the ruling in Yadao v. Namdeo A.I.R. 1922 P.C. 216 must be held to be erroneous on the racent Full Bench decision of this Court in Ishvar Dadu v. Gajabai : AIR1926Bom435 , where it was held that Yadao v. Namdeo A.I.R. 1922 P.C. 216 has not overruled Ramji v. Ghamau  6 Bom. 498 (F. B.). On the Pull Bench decision it fellows that the adoption of Plaintiff No. 2 by Plaintiff No. 1 gave the latter no rights in the joint family property.
36. The appeal of Defendants Nos. 1, 2, 4, 5 and 6, therefore in my opinion, should be allowed, and the cross-objections of the plaintiffs dismissed with costs throughout against the plaintiffs.
37. I agree. On the first point discussed by my learned brother in his judgment, I have only to add that their Lordships of the Privy Council in Balabux Ladhuram v. Rukhmabai  5 Bom.L.R. 469 remarked at p. 136 that it would be difficult to see how an agreement to reunite could have been made by or on behalf of a minor. The facts in that case were that there was, a division by adult brothers, and the ruling as to an agreement must be taken to refer primarily to such a case.
38. In Ramchandra v. Tukaram A.I.R. 1921 Bom. 276, to which I was a party, the judgment of the learned Chief Justice, no doubt, states as a general principle that, if it is proved that there has been a breach in the state of union amongst the members of a Hindu joint family, the law presumes that there has been a complete partition both as to parties and property. I am satisfied, on further consideration, that that states the rule of law too widely, and that there is no general legal presumption that can be made as applicable to every case arising of this kind. The remarks in the judgment of the Privy Council in the most recent case of Palani Animal v. Muthuvenkatotcliala Moniagar A.I.R. 1921 Bom. 276 make it quite clear that their Lordships do not take the authority of Balabux v. Ruklimabai  5 Bom.L.R. 469 as covering a case like the present further than as there stated, viz., that the question whether the remaining members of the family continued joint or separata has to be determined by evidence. In the present case, the circumstances are, I think, all in favour of the view that the remaining four minor brothers and the father continued to be joint. In view of the latest ruling of the Privy Council, we are not bound by the contrary statement of law in Ramchandra v. Tukaram A.I.R. 1921 Bom. 276.
39. On the question whether Ningbasappa blended the property in Schedule A with property in Schedule B, I think it is clear that there was such a blending. It may, no doubt, be open to question whether he did so with the intention of abandoning his separate interest, but I think that the probabilities point to there being such an intention, and that this is a case where his acts were not due to mere kindness or charity. Therefore, I agree that the cross-objections fail and that the appeal should succeed. I concur in the order proposed by my learned brother.
40. We are asked by the respondent's pleader to make some provision for the maintenance of Plaintiff No. 1. Prior to the date of the suit there was an offer on behalf of Defendants No. 1 to give her two survey numbers or a cash payment of Rs. 250 a year as stated in Exhibit 179, and defendants' written statement also mentions two rooms in House No. 1 in Schedule A as being suitable for her residence. For the appellants it is said that this offer is sufficient ; for Respondent No. 1 it is said at least Rs. 750 a year should be provided. The parties cannot agree. We, therefore, direct the lower Court to make the necessary inquiry and report to us as to what provision should be made for the maintenance of Plaintiff No. 1 and also for her residence, if necessary. The report, with any further evidence taken, should be remitted to this Court within a period of three months from the receipt of papers by the lower Court. The further hearing of the appeal, so far as that point is concerned, is adjourned.