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Mt. Ram Kali and ors. Vs. Khamman Lal and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1928All422
AppellantMt. Ram Kali and ors.
RespondentKhamman Lal and ors.
- - 3. the plaintiffs repudiated the statement contained in the partition deed dated 14th june 1917 and complained that the document was fraudulent and collusive, that the recital that the family was still joint was wrong to the knowledge of the members of the family, and that the main object of the said document was to deprive the reversionary heirs of kunja mal of their rights of inheritance in the estate left by him. , of the above-named persons were already separate, the said arbitration agreement made the family publicly separate and divided, and every one enjoyed his own property and income; the members of the family never showed their intention directly and clearly, or in any other way nor was any division or specification of shares ever made actually or independently; 10). 20......1. this is an appeal from the judgment and decree of the subordinate judge of moradabad dismissing the suit of the plaintiffs for a declaration that one lala kunja mal was a separated hindu who owned a one-sixth share in the zamindari and house properties scheduled in the plaint, and that the deed of partition dated 14th june 1917 executed and completed by the principal defendants and several items of transfer made by some of them were void and ineffectual against the reversionary heirs of kunja mal.2. a pedigree is given at p. 12 of the paper book which traces the family descent from lala nainsukh mal. kunja mal was one out of six sons of nainsukh. he had a son faqir chand, who predeceased him, leaving a widow mt. bishan dei. it is not known when faqir chand died. kunja mal died on 10th.....

1. This is an appeal from the judgment and decree of the Subordinate Judge of Moradabad dismissing the suit of the plaintiffs for a declaration that one Lala Kunja Mal was a separated Hindu who owned a one-sixth share in the zamindari and house properties scheduled in the plaint, and that the deed of partition dated 14th June 1917 executed and completed by the principal defendants and several items of transfer made by some of them were void and ineffectual against the reversionary heirs of Kunja Mal.

2. A pedigree is given at p. 12 of the paper book which traces the family descent from Lala Nainsukh Mal. Kunja Mal was one out of six sons of Nainsukh. He had a son Faqir Chand, who predeceased him, leaving a widow Mt. Bishan Dei. It is not known when Faqir Chand died. Kunja Mal died on 10th or 11th April 1915 leaving a widow Mt. Gendo (defendant 26) and a daughter Mt. Ramkali (original plaintiff 1). Plaintiffs 2 and 3 are the minor sons of Mt. Ramkali by Lala Ram Chandra Sahai, and were not in existence at the time of Kunja Mal's death. On 14th June 1917 a formal deed of partition was drawn up by the various members of the family which stated that the family of Nainsukh Mal had continued joint right up to that date; that the parties considered it desirable to separate; that, therefore, they divided the property in certain shares, and made a grant of certain properties to Mt. Gendo and Mt. Bishan Dei for their Maintenance.

3. The plaintiffs repudiated the statement contained in the partition deed dated 14th June 1917 and complained that the document was fraudulent and collusive, that the recital that the family was still joint was wrong to the knowledge of the members of the family, and that the Main object of the said document was to deprive the reversionary heirs of Kunja Mal of their rights of inheritance in the estate left by him.

4. The material averments of the plaintiffs are to be found in paras. 3, 4 and 6 of the plaint which state that on 30th September 1907 Kunja Mal and his two brothers, Khimman Lal, defendant 1, and Hira Lal, defendant 2, and the sons of the other three brothers of Kunja Mal executed a document whereby they appointed certain arbitrators to effectually divide the entire property amongst all the six branches flowing from Nanisukh Mal, that

although the business, residence, etc., of the above-named persons were already separate, the said arbitration agreement made the family publicly separate and divided, and every one enjoyed his own property and income; but the arbitrators did not record the award advisedly, and that Kunja Mal died as a member of a divided family.

5. Defendants 1 and 2 are the surviving sons of Nainsukh Mal. Defendants 3 to 10 are the sons and grandsons of defendant 2; defendants 11 to 13 are sons of Gulab Rai who was a brother of Kunja Mal. Defendants 14 to 18 and 39 are the descendants of Prabhu Lal, and defendants 19 to 25 are descended from Ganeshi Lal. Defendant 26 is the widow of Kunja Mal, and defendant 27 is the widow of Faqir Chand. Defendants 28 to 38 and 40 to 42 are transferees of portions of properties in dispute from defendants 5, 11 and 19.

6. The suit was contested by defendants 1, 2, 3, 4, 6, 11 to 14, 17, 19, 21 to 23, 27, 34, 35, 37 and 38 upon a variety of grounds most of which were repelled by the Court below and which have not been repeated in this Court.

7. The suit was dismissed on the short ground that Kunja Mal was not separate from his brothers and nephews at the time of his death.

8. Mt. Ram Kali, the daughter, died during the pendency of the appeal, which was continued by her minor sons, Kesho Saran and Om Prakash, through their father and next friend, Lala Ram Chandra Sahai. It has been contended for the appellant that the agreement of reference to arbitration, dated 30th September 1907, indicated a demand for partition and amounted to an unequivocal and unambiguous intention on the part of Kunja Mal and the five other branches of the family to effect a complete severance of the joint status and to bring about a detailed partition of the family property, and that the legal effect of this document was a disruption of the joint family.

9. It is next argued on the merits that although the arbitrators did not make, a formal award, they did as a matter of fact divide the family property, or, at any rate, a considerable portion thereof.

10. The agreement, dated 30th September 1907, is a registered instrument, which appears to have been prepared with deliberation and care. The parties to this document are Khimman Lal, first party, Kunja Mal, second party, Hira Lal, third party; Ram Chandra for self and as guardian of Lakhshmi Narain, and Bholanath, fourth party, Jhanjhan Rai and Kundan Lal, fifth party, and Shadi Lal for self and as guardian of Gilla Mal, his own brother, sixth party.

11. A reference to the genealogical table at p. 12 of the paper book will show that each of these six parties was under the Hindu law entitled, on partition, to a one-sixth share in the joint ancestral estate.

12. The words of this document leave no room for doubt that the parties intended at the time to completely divide the estate, and this intention has been expressed without equivocation or mental reservation the following quotation is useful:

We, the parties, have, owing to the family being a joint Hindu family, been the owners and partners in equal shares of all the moveable and immovable properties, sugar manufacturing business, money dealings, cash, etc., up to this time, but owing to certain reasons we wish to divide all the existing effects, but dissolution of partnership and division of moveable and immovable properties cannot be made by ourselves... we have appointed Lala Newal Kishor,... Lala Chhote Lal,... and Lala Munna Lal... as our arbitrators for settlement of disputes and division of all the effects such as immovable properties, all the moveables, sir and khudkasht lands and groves. We, therefore, covenant that the above named arbitrators should divide all the houses, shops, zamindari properties, self-acquired and hold under mortgage, sugar business at the manufactories, money dealings, bonds, registered and unregistered, outstanding debts, existing cash, and pawned ornaments, detailed as below, either in equal or disproportionate share as it may be possible and put each party in separate possession of the same.

13. The agreement proceeds to give detailed instructions to the arbitrators as to the mode in which the partition should be effected. A list of the entire property available for partition is annexed to the document the document was signed by all the parties, and was attested by a number of witnesses, was presented for registration by all the adult members, and was eventually registered.

14. There can be no doubt that the parties on the date of the execution of this instrument had a clear intention to separate, and even if matters did not go any further, from this point of time onwards Lala, Kunja Mal must, in the eye of the law, be taken to be a separated Hindu.

15. The above view is supported by a long array of decided cases, which will be referred to at the proper place and the result of judicial decisions summarized.

16. Of the arbitrators, Chhote Lal was a resident of Chamrawa the other two belonged to Hasanpur and Mahmudpur. It is a matter of common knowledge that great care and circumspection are exercised in the selection of arbitrators and before the formal execution of any agreement of reference, the persons selected to act as arbitrators, are as a rule approached and consulted by the parties concerned with a view to obtain their willingness to act. Without violence, it may be presumed that this procedure must have been adopted in the present case.

17. An instrument of reference to arbitration to divide joint family property is a transaction of the most solemn character. The parties must be taken to be fully alive to its importance, scope and legal effect. Where all the branches of a family having pecuniary or proprietary interest in different kinds of property of considerable value unite in their demand for partition of the family estate, prepare an elaborate list of the entire property including moveables and immovables with details of bonds, specifying the names of the debtors, the amount due and the dates of their execution, and detailed instructions are given to the arbitrators to divide houses, shops zamindari properties, groves, sir and khudkasht lands, sugar business, outstanding debts, existing cash or effects and pawned ornaments, it should, indeed, be extremely difficult to hold that the document was intended to be no more then a paper transaction, and that the intention of the executants was different from what the document itself peals out in ringing notes. The parties could not have employed more emphatic language to declare their intention to separate.

18. It was in the contemplation of the parties that the agreement of reference should culminate in a written award. It is possible that for some reason or other the arbitration fell through. The arbitrators may have refused to act. Difficulties may have arisen in bringing together all the three arbitrators, who ware residents of three different places. The other members of the family may have realized the disadvantage resulting from the separation of Kunja Mal and Khimman Lal, who had no male issue and may have employed obstructive tactics and exerted their influence to prevent the progress of the arbitration proceedings. But all this is speculation. We have this solid fact that the reference did not materialize in a written award.

19. The agreement of reference does not specify the state of things which led to its execution. All it says is 'owing to certain reasons, we wish to divide all the existing effects.' the written statements are silent on the point. Those of Khimman Lal, defendant No. 1 and Jhanjhan Rai, defendant No. 4, state as follows:

Merely the arbitration agreement, relied on by the plaintiffs, never effected any partition among the members of the family. The members of the family never showed their intention directly and clearly, or in any other way nor was any division or specification of shares ever made actually or independently; nor was there any change in the mode of management of the joint property. (Para. 8 of the additional pleas).

After the execution of the said agreement, the members of the family took no further steps regarding arbitration, or got no partition effected in any other way, and let the family remain joint as before. (Para. 9).

The arbitration agreement, with whatever intention it might have been written, was revoked at once with mutual consultation, and it ceased to have any effect thereafter. The parties to the said agreement could change their mind and intention, and they did give up their former intention. Under the circumstance, even if the intention of partition is deemed to have effected separation according to law, which the defendants do not admit still the immediate giving up of the intention and the continuance of jointness amount to reunion according to law. (Para. 10).

20. The difference between a 'notional' partition or partition of a legal right and 'actual' partition or partition of the subject to which the legal right attaches was clearly present in the minds of the defendants. It is remarkable that no issue was framed by the trial Court as to whether the intention to separate was ever given up by Kunja Mal and others, and whether the sequence of events which followed the execution of the agreement of reference amounted to a reunion under the Hindu law.

21. The written statements filed by the defendants are elaborate documents. They abound in repetitions and are not wanting in details; but this is significant that the cause which led to the execution of this debatable document is passed over in utter silence. Para. 10 of the written statement was the proper place to contain an explanation, but this paragraph is not illuminative, and, is, in fact evasive.

22. The written statement was filed on 3rd March 1925. Up till that date the defendants did not advance a constructive theory to explain away the agreement dated 30th September 1907.

23. Lakshmi Narain, son of Ganeshi Lal, nephew of Kunja Mal, was examined as a witness for himself and for the defendants generally on 8th April 1925. He came out with a particularly unconvincing story. He said:

There never was any intention to make a partition. An agreement for arbitration was executed in 1907. Hira Lal wanted to spend the same amount on his son's marriage as was spent on Faqir Chand's marriage. Other members objected to it. The object of the agreement was to separate Hira Lal if he persisted.... Hira Lal gave way when advised by others.... Newal Kishor alone got information of the agreement one or one and a half months after. No other arbitrator was informed. Newal Kishor was asked by Khimman Lal to dissuade Hira Lal and, if the latter did not give way, to separate him from the rest of the family. Newal Kishor dissuaded him, and Hira Lal agreed.... Newal Kishor dissuaded Hira, Lal in my presence and that of other family members.... I was then 19 or 19 years old. Rs. 3,000 or Rs. 3,500 was spent on Hira Lal's son Mithan Lal's marriage.

24. The only other witness to support the story is Newal Kishor who was appointed to act as an arbitrator. According to Lakshmi Narain, Khimman Lal is said to have asked Newal Kishor to dissuade Hira Lal from making large demands upon the family for the marriage of his son. He says nothing about Kunja Mal. It may have been realized about this time that this evidence was not sufficient to bring home to Kunja Mal an intention to abandon his claim for partition of the property. Newal Kishor is, therefore, introduced immediately after Lakshmi Narain with a slightly different story. He says that about eighteen years ago Kunja Mal informed him that the agreement had been executed with a view to bring pressure upon Hira Lal not to make exorbitant demands upon the family coffers for the marriage of his son. He says:

Kunja Mal asked me to advise Hira Lal and make him understand that so much money could not be spent and to get the agreement cancelled, and that if he did not agree he should be separated from the rest of the family. He told me that the agreement had been executed about a month ago. I asked Hira Lal to cancel the agreement and told him that so much money could not be spent. Hira Lal agreed. I told Kunja. Mal to bring other members of the family. When they came, it was settled that the agreement should be cancelled and the family should remain joint as it had been.

25. Laksmi Narain is not a straight forward witness. His statement that at the time of the execution of this document he was 19 or 19 years old is obviously false. The document itself shows that he was a minor on that date and was represented by his brother Ram Chandra as his guardian. If the object of a reference to arbitration was simply to bring pressure to bear upon Hira Lal, an instrument of a very different kind must have been drawn up to secure that end, and not an instrument in which each branch of the family demands a partition of its share.

26. Newal Kishor's sister is married to Gulab Rai. He is connected with defendants 11 to 13 by close ties of blood. His niece is married to Ram Saran, son of Hira Lal. So far back as the year 1888 Straight, J., in Adideo Narain Singh v. Dukharan Singh [1883] 5 All. 532, while commenting upon some oral testimony, is reported to have observed:

The undoubted prejudice there is among the Hindus against succession following in the female line, and the facility with which persons of the means of the defendants... specially when they are in possession of the property can get witnesses to come forward and support them, etc,

27. We disbelieve the story that at the time of the execution of the agreement, the members of the family had no real intention to separate, that two of the arbitrators had not been approached at all, and that the third man approached a month or a month and a half after, not with a view to partition the property, but to dissuade Hira Lal from celebrating the marriage of his son on a lavish scale, and that by the influence of Newal Kishor, the intention of the family to partition was abandoned, the agreement was cancelled, and the family was reunited. We hold that the alleged conversation of Newal Kishor with Khimman Lal of Kunja Mal is a myth and never took place.

28. Of the various parties to the agreement of reference Khimman Lal, Hira Lal and Jhanjhan Rai were alive at the date of the suit and were defendants in the action. Hira Lal died during the pendency of the appeal. These three persons have severely kept aloof from the witness-box. According to the defendants Hira Lal was the central figure of the drama. According to Lakshmi Narain's version, Khimman Lal was the person who sought the mediation of Newal Kishor to bring round Hira Lal. No explanation has been offered for the non-production of these witnesses. Their place is supplied by Lakshmi Narain, who was a minor in 1907, and could not be expected to know facts to the same extent as his elders. Being a mukhtar he is conversant with law Courts, and to make use of this qualification he has been put forward as a witness. His evidence has been utilized in this case, not only to prove all facts upon which the defence hinges, but to supply the formal proof of the legion of documents produced by the defendants.

29. One of the arbitrators is dead. Chhote Lal was summoned as a witness by the plaintiffs, but he was not produced upon the ground that he had been won over by the adversaries. This may or may not be true. Of the three plaintiffs, one was a pardanashin lady and the other two are minors. They belong to a different village and cannot be expected to wield the same amount of influence as the defendants. It was for the defendants to sweep away from their path the document of the year 1907. They could well have, and ought to have, examined the other arbitrator. This they have not done.

30. The way in which the case appears to have been manipulated and conducted in the Court below does not reflect much credit upon the honesty and fairness of the defendants.

31. The defendants fully realized the importance of the document of 1907 and attempted to nullify its effects by adducing evidence that the parties had agreed to cancel the agreement of reference, and that the family had reunited. We find it extremely difficult to accept the oral evidence already adverted to. One should have expected a formal document declaring that the parties had renounced their intention to separate, and that the status quo ante had been restored. Excepting the oral evidence referred to above there is no other direct evidence to support reunion. Certain documents have been produced by the defendants with the double object of proving the continuance of the jointness of the family, and, in the alternative, reunion. These documents will be discussed at the proper place.

32. The plaintiffs, in para. 4 of the plaint pleaded that the business, residence, etc., of the parties were already separate, but partition with greater elaboration of detail was publicly made by the arbitrators in 1907. The oral evidence of the plaintiffs in proof of this is of no better quality then that of the defendants, and cannot be accepted. Mt. Gendo and Ramchandra Sahai were not present at the partition and have no personal knowledge. Mt. Gendo says that the family separated in mess 25 years ago on account of difference amongst the womenfolk. This is not improbable. She further states that money-lending business and sugar factories were partitioned. She does not know of what value her husband got money-lending business. He got khandsal of Gobindpur. She does not know if any cash was divided. Cash and money-lending and khandsal deeds remained with her husband till his death in his house. She got all his effects. She does not remember what she got. She got no deed of money-lending business. He left no cash. He used to get profits of his share of the zamindari, and after him she used to get it and Maintained herself with it. In cross-examination she states that no clothes, ornaments or utensils were partitioned, and that no sugar was divided.

33. Mt. Gendo is a partisan witness, and her statements are improbable and unconvincing.

34. Ram Chandra Sahai is the husband of plaintiff 1. He is prosecuting this suit. According to him, the partition took place eight or nine years before Kunja Mal's death. The zamindari only remained joint, but its profits were divided. In cross-examination, he states that houses were not partitioned, but pawned ornaments were.

35. Bakhshi Ram deposes that the arbitrators met on numerous occasions. They separated khandsal and money-lending business. The residence and mess of the family separated after the partition. In cross-examination he states khandsals were not divided; separate bonds were also not divided; joint money-lending business was divided. Further he states that only the bonds and zamindari were partitioned, and nothing else was partitioned. According to this witness, the arbitrators prepared six lots on paper, and agreed to execute a partition-deed, and to get the same registered. He says:

the arbitrators settled accounts on the first day. On the second day they allotted shares in zamindari according to profit. On the third day they asked for money for the stamp for partition-deed from the family members, who said that they would consider over it and let them know, etc.

36. This story is not corroborated by any other evidence, and is obviously false. Bakshi Ram appears to be dowered more with a lively imagination then with a sense for truth.

37. We hold that the story of an actual partition by the arbitrators has not been made out.

38. Matters have been complicated by the fact that neither party has come to Court with a straightforward case. We feel inclined to hold that no award, written or verbal, was made by the arbitrators. The reason why the arbitration fell through will never be known. The chances are that strained relations between the parties preceded the execution of the agreement of reference; and the family differences continued, though these might have been patched up on certain emergencies for the common benefit of the parties, having regard to the gain of the moment. The appellants chiefly relied upon the legal effect of this agreement.

39. In Babu Durga Prasod v. Mt. Kundan Kuer [1873] 1 I.A. 55, the respondent who was the widow of a Jain banker of the Agarwala caste claimed the estate by right of inheritance against the collaterals of her husband. The common ancestor of the plaintiff's husband and of the defendants was one Lala Chedi Lal. In 1851 Makhan Lal, who was the only surviving son of Chedi Lal, executed an ekrarnama along with the representatives of three deceased sons of the common ancestor, the terms of which have been set out at pp. 56 to 58 of the report. By this ekrarnama, the interest of the four branches of the family was differentiated and defined, but no formal partition was effected, and the parties were content to share the profits and bear the losses in equal shares of one-fourth each. Applying the rule of law laid down in Appovier v. Rama Subba Aiyar [1866] 11 M.I.A. 75 it was held that the family must be taken to have been separated in interest and title. Their Lordships declared that there might be a division of a joint and separate Hindu family, and of the joint property without a regular partition by metes and bounds, and that the question in each case must be one of intention, which was to be inferred from the instruments executed and acts done. The peculiar feature of this case was that, by a common understanding, certain moveables were kept in common, but four chithas had been drawn up and signed by all the parties concerned and that the accounts were kept as they would be kept between four ordinary partners, and not as they would be kept as between the members of a joint and undivided Hindu family. Thus on the facts, this case is distinguishable and is not of material assistance to the plaintiff.

40. In Mi. Parbati v. Naunihal Singh [1909] 31 All. 412, the respondent had instituted a suit for ejectment against Mt. Parbati, widow of his paternal uncle, Chaudhri Dalip Singh, on the allegation that his father Nirmal Singh and Dalip Singh were members of a joint family, that Nirmal Singh died in 1861, that Dalip Singh died in February 1899, and that the plaintiff was the sole surviving member of the joint family. The defendant contested the suit on the ground that on or before 13th June 1861, a partition had been effected in law, and that on that date, Dalip Singh, Mt. Rani acting for self and also on behalf of her infant son, Naunihal Singh, and Mt. Phool Kuer, the plaintiff's grandmother, addressed a petition to the Tahsildar for mutation of names in equal shares in favour of plaintiff and Dalip Singh. Their Lordships held that this constituted a partition of the joint family, that the plaintiff had acted upon the partition, that he had taken full advantage of it, and had never repudiated it during Dalip's lifetime. Reversing the judgment of the High Court the Judicial Committee held that Dalip Singh was a separated Hindu. It is clear, therefore, that where the shares of the individual members of the family, be they major or minors, have been ascertained with the object of effecting a partition, it results in the disruption of the joint estate.

41. This view does not in any way militate against the later pronouncement of the Privy Council in Palaniammal v. Muthuvenkatachala Moniagar where their Lordships observed as follows:

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 then a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be.

42. But where the ascertainment of shares is made with the distinct object of partition or the separate enjoyment of the profits, it effects in law a partition of the property.

43. In Suraj Narain v. Ekbal Narain [1913] 35 All. 80 the question turned upon the construction of a deed of compromise dated 27th February 1901. Their Lordships remarked as follows:

What may amount to a separation, or what conduct on the part of some of the members may lead to a disruption, of the joint undivided family and convert a joint tenancy into a tenancy-in-common must depend on the facts of each case. A definite and unambiguous indication by one member to separate himself and to enjoy his share in severalty may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed. In the present case, that element appears to their Lordships wholly wanting. By the compromise of February the parties were agreed to retain the status of jointness which had existed till then 'until any dispute arose among the heirs.'

44. Suraj Narain's statement that he separated a few months later was not accepted as an expression of an unambiguous intention to separate, and his oral evidence was rejected as inconclusive or unreliable. On the other hand, his conduct, borne out by documents, went against his contention.

45. It is settled law that where there is an unambiguous intention to separate, partition is the inevitable result. Where, however, the expression of intention is clothed in ambiguous terms the question of jointness or otherwise may be legitimately tested by an appeal to the conduct of the parties and by a reference to the surrounding circumstances. It has been held by this Court in Jai Narain Rai v. Baijnath Rai : AIR1928All419 that separation can be effected either by deeds or by acts, or both by deeds and acts. If the deed be unequivocal in its language and the intention of the parties is clear from it, it would not be necessary to prove acts in support of the deed. In Ramalingam Annvi v. Narayana Annavi A.I.R. 1922 P.C. 201 their Lordships point out that

under the Hindu law it is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate, while retaining their status as a joint family and holding the rest as the properties of a joint and undivided family.

46. In each case, the question will resolve itself into one of intention. There is nothing to prevent the members of a Hindu family upon grounds of expediency to divide off a portion of the joint family property and yet to continue the resolve of retaining the rest of the property in joint ownership as members of an undivided family. It is essentially a case of intention, and their Lordships point out that a disruption may ensue even by a notice being served by one member of the family upon the other members, clearly intimating an intention to separate.

47. Separation is the result of the exercise of individual volition, and is not dependant upon a consensus or consent of the other members of the coparcenary body. But some overt act is necessary for the expression of that intention. Intention may be expressed by declaration or may be gathered from the conduct of a particular member of a family such as his leaving the family roof, setting up a separate business, or asserting his claim to portions of the family property as his own coupled with his conduct generally, if such conduct be inconsistent with his position as member of an undivided family. The declaration or the conduct should be such as to convey an intimation to the other members of the family of a clear intention to separate.

48. In Mukund Dharman v. Balkrishna Padmanji the question for determination by the Judicial Committee was whether a document executed by Padman in the year 1907 had the effect of separating Padman and his two sons in status from the joint family with a consequential partition of the joint family estate.

49. On the date of the execution of the aforesaid document Padman did not know that there was a joint ancestral estate owned by him and by his father. Padman was an idle, vicious young man of weak intellect, a burden to the family and incapable of assisting in the management of the family property. A portion of the family estate was allotted to him for his Maintenance, and he began to live separately. Their Lordships held that there was a twofold application of the word 'division' in connexion with partition. In the first place there is separation which means the severance of the status of jointness that is a matter of individual volition; and it must be shown that his intention to be divided has been clearly and unequivocally expressed, it may be by explicit declaration or by conduct. Secondly, there is the partition or division of the joint estate, comprising the allotment of shares, which may be effected by different methods. Their Lordships held that the deed of 1907 was not operative in effecting a separation.

50. The above case does not go against the appellants, and is clearly distinguishable. Padman was not 'separated' from the family in its legal or technical sense. His share in the joint family property was not ascertained, and no property was allotted to him as his share on partition. He was removed from the family as a good riddance, a dry crumb having been thrown out to him to satisfy his immediate wants.

51. One of the commonest ways of declaring the intention to separate is by the institution of a suit for partition. In Appovier v. Rama Subba Aiyar [1866] 11 M.I.A. 75 the dispute related to the estate of one Sita Ramiyan and his six sons who formed an undivided family. Trouble arose in 1806 when a temporary arrangement was made about the division of the family property. But the coparceners continued to hold the property as joint property until 1830. On 30th September 1830, an ekrarnama was executed for a prospective division of the family villages at some future period as might be agreed on, with joint cultivation and engagement thereof in six equal shares in the meanwhile. On 22nd March 1834 a more effective deed was executed allotting properties in certain shares to the parties concerned. On 11th November 1855 a suit for partition was instituted in which the document dated 22nd March 1834 was challenged upon a variety of grounds The plaintiff's case rested Mainly upon the contention that the property in dispute belonged to an undivided family of which the plaintiff-appellant was a member. Their Lordships overruled this contention with the following observations:

But when the members of an undivided family agree among themselves with regard to particular property that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate each member has thenceforth a definite and certain share, which he may claim to receive and to enjoy in severalty, although the property itself has not been actually severed and divided.

52. Their Lordships took into consideration the fact that there was no uniform or consistent course of decisions in India one way or the other:

Upon an examination of the cases it will be found that in some the deed of partition was not attended by any subsequent act, and have been repudiated by the subsequent conduct of the parties; and in another of the cases cited, where there had been a decree of partition, it seems that the decree of partition had been abandoned.

53. Their Lordships next proceed to lay down the general principles relating to partition:

It is necessary to bear in mind the twofold application of the word 'division,' There may be a division of right and there may be a division of property; and thus after the execution of this instrument there was a division of right in the whole property, although, in some portions, that division of right was not intended to be followed up by an actual partition by motes and bounds, that being postponed till some future time when it would be convenient to make that partition.

54. Their Lordships ruled that the effect of the agreement of the year 1834 was that the joint tenancy was severed and converted into a tenancy-in-common.

55. It follows from this that where the intention of the parties found its expression in an agreement to separate, it has the effect of bringing about a partition in law, although the de facto partition may not be carried out either immediately or even for years, as happened in this case.

56. In Joy Narain Giri v. Girish Chunder Myte [1879] 4 Cal. 434, the joint family consisted of Joy Narain Giri and Shivaprosad Giri who were the grandsons of one Mahant Nand Kishore. Shivaprosad quarrelled with Joy Narain as the latter had refused him any participation in the joint estate. He left the house in which they jointly resided, lived with his sister's husband and Maintained himself with borrowed money. He sued Joy Narain for his half-share and obtained a decree which provided that the date of separation from commensality was to be counted from Baisakh 1272-F. This decree was affirmed by the High Court in appeal. Joy Narain appealed to the Privy Council, during the pendency of which Shivaprosad Giri died. He was substituted by Girish Chunder, his sister's son, who claimed under a will made by Shivaprosad. The Privy Council dismissed the appeal. Then Joy Narain brought the present suit for a declaration that Shivaprosad died as a member who was joint in estate with Joy Narain and that, therefore, the partition decree enured for his benefit. The Privy Council held that although the previous suit was not in terms for partition, the decree passed therein effectually destroyed the joint estate and the plaint indicated a distinct intention of obtaining a separation of estate, and as regards both the real and personal property.

57. Girja Bai v. Sadashiv Dhundiraj A.I.R. 1916 P.C. 104 was an appeal to the Judicial Committee in a suit brought by one Harihar against the descendants of the common ancestor, Bapuji, for a declaration of his title to a third share in the joint ancestral property. On 14th February 1902, Harihar and Jageshwar wrote to Dhundiraj, who had been introduced into the family by adoption, asking him to have a partition effected by arbitrators. On 1st October 1908, Harihar served a registered notice on defendant 1, who was the manager of the joint family, communicating his intention to the defendants that he did not wish to continue as a member of the family. On 19th October, the defendant, in his reply, tried to persuade Harihar to abandon his intention and added that, if he persisted, he had better make the partition himself, since he was senior to him. Harihar brought this suit three days after this. The District Judge directed the parties to appear before him in person to ascertain from them how the partition was to be effected. Their Lordships held that the notice dated 1st October 1908 coupled with the partition suit amounted to a separation with all its legal consequences. In this case there was a persistence in the demand for partition, and all acts of Joynarain, subsequent to the registered notice, indicated a firm resolution to separate.

58. In Kewal Nain v. Budh Singh A.I.R. 1917 P.C. 39, Prabhu Lal, one of the sons of Budh Singh, left his ancestral house and sued his father for partition. On 19th July 1890, the suit was dismissed on a technical ground. The elders of the community intervened; and by a private settlement, a one-third share, to which Prabhu Lal was entitled, was allotted to him, although the name of Budh Singh continued in the revenue papers. On 28th August 1890, Prabhu Lal executed a simple mortgage in favour of the predecessors of the appellant, Kewal Nain and others. On 22nd August 1910, a suit for enforcement of this mortgage was brought against Prabhu Lal; and the other members of the family were joined as defendants. These defendants resisted the suit on the ground that Prabhu Lal was a member of a joint family, and a mortgage by him of his share of the family properties was invalid. This plea prevailed in the High Court with Richards, C.J., and Banerji, J. The Privy Council reversed this decision on the short ground that by his plaint in the partition suit Prabhu Lal had claimed a fifth share of the family property, and that the claim amounted to an intimation to the defendants, his cosharers, of his unequivocal desire to separate, and that the partition was effected by the commencement of the aforesaid suit. They further held that the status was altered by his assertion of his right to separate whether he obtained consequential judgment or not.

59. The learned advocate for the appellants contends before us that the same result should follow from an agreement of reference to arbitration for partition of the family property where the intention to separate is clearly manifest from the document, and the circumstances that the arbitrators did not proceed with their duty, or made no partition in fact, or gave no award at all will in no way affect the legal consequences of the agreement. In principle there does not seem to be any difference between a plaint for partition filed in Court and an agreement duly executed by the members of the joint family to divide the family property through the intervention of arbitrators. The crucial factor in each case is the intention of the party or parties concerned. If the intention has been expressed in clear terms (no matter what the nature of the document and might be a plaint or an agreement), the inevitable result is the termination of the joint status.

60. In Joynarain Giri's case [1879] 4 Cal. 434 their Lordships never intended to lay down the rule that the plaint in a suit for partition, indicating a distinct intention to separate, was not sufficient to effect separation until effect was given to that intention by the judgment passed in the case. It was a matter of coincidence in that case that the suit for partition succeeded and a judgment was entered in favour of the plaintiff. In Kewal Nain's case in spite of the dismissal of the suit for partition on a technical ground, their Lordships held that the legal effect of the filing of the suit was partition, as the intention to separate had been expressed unequivocally in the plaint, and that was enough to effect a severance. The non-passing of a decree was immaterial, as a decree was necessary only for working out the result of the severance. The conscious withdrawal of a suit for partition leads to a different result from the erroneous dismissal of a suit for partition.

61. The case of C. Lakshmakka v. C. Bala Rangappa : AIR1926Mad388 presents up to a certain point some features of similarity.

62. The property in suit belonged to four brothers, who executed a document, miscalled a mukhtearnama, appointing certain persons to act as arbitrators and effect a final division of the joint family properties. The material portion of this document was in these terms:

Already, three years ago, not having been in good terms among ourselves, we were living separately and the lands and the debts due by us to outsiders were, however, held in common; but disputes having arisen among us thereby, we have appointed you this day for the purpose of putting a stop to our dispute and for finishing the division of our assets and liabilities. Therefore, we shall abide by the decision given by you.

63. In this case the arbitrators entered upon their duties, made a partition of certain properties, but gave a 'joint share' to the plaintiff's husband. But before the arbitrators had entered upon the scene, disruption had already commenced by the act of the parties. These circumstances differentiate this case from the one in hand. The feature in common between the two cases is the agreement to refer to arbitration, and although the terms of the document were not so clear nor the instructions so detailed and minute as in the present case, Nair, J., held that a severance of interest was created by the document then before him,

64. In Periaswami Nainar v. Kandasami Nainar : AIR1927Mad1128 during the progress of a partition suit, which had been instituted on 23rd April 1919, three sets of defendants executed a registered instrument on 28th April 1919, whereby they appointed five arbitrators to effect a partition of the entire property. Two of the arbitrators refused to act. On 25th July 1919 a fresh document was executed in favour of five arbitrators to effect a partition of the family property.

65. The partition suit itself had been preceded by a demand for partition in March 1919, and the plaintiff had to borrow money for the prosecution of the suit. These circumstances evinced an intention to separate in a manner which cannot admit of any mistake. Their Lordships held that Vythi (the first defendant) equally with the plaintiff, wanted a partition to he made, that his demand was unequivocal and unambiguous, and that he had not gone back on his first decision for the partition of the property,

66. A person executing an agreement of reference for the appointment of certain persons as arbitrators to divide the joint family property may have a locus poenitentiae and may abandon his intention where the other parties to the reference agree. It must be in very rare cases, if any, that the arbitrators should be justified in continuing the proceeding, where all the parties to the reference are agreed that the proceedings are no longer necessary and that they are in favour of the conservation of the status quo. The mere fact that no award was given is wholly insufficient for any inference either that the party or parties concerned had renounced their intention to separate or that the family had become reunited.

67. In Syed Kasam v. Jorawar Singh A.I.R. 1922 P.C. 353, respondents 1 to 6 formed a joint family with one Nain Singh, who died in 1906. Nain Singh had sold certain properties to Syed Kasam in 1902. The plaintiffs-respondents claimed to recover these properties from the vendees on the allegation that the property belonged to the plaintiffs and Nain Singh as members of the joint family. In defence it was pleaded that Nain Singh had separated. On 4th December 1905' all the members of the family executed an agreement appointing one Ghasi Ram as arbitrator to partition the property. Certain lists were drawn up by the arbitrators, but the formal division was not at once carried out, as Nain Singh died on 26th March 1906. Effect, however, was given to the lists after his death. Their Lordships appear to have treated the agreement of reference to arbitration for effecting a partition upon the same footing as a plaint in a suit for division of a joint family property; and held that Nain Singh having claimed his half share and having signed the deed of agreement, these were sufficient to effect severance in interest and to prevent the share of Nain Singh from passing by survivorship.

68. In Kedar Nath v. Ratan Singh [1910] 32 All. 415, the facts were somewhat peculiar. Two estates in Oudh, before its annexation were held by a joint Hindu family consisting of three brothers, Gayadin, the eldest, Umrao, the second, and Ratan, the youngest. These estates were confiscated by the Government, but subsequently one of the estates, namely Cherpur, was granted to Gayadin. The grant must be taken to have been made to all the three brothers as members of an undivided family, and it was so held by the Courts in India and also by the Privy Council. In 1867 Umrao quarrelled with Gayadin, left the family house and brought a suit for partition, which he continued against Gayadin's widow and obtained a consent decree about one third of the property. Ratan also brought a suit for partition, claiming his one third, but he remained with Gayadin, and withdrew his claim Later on Ratan brought a suit against the widow, alleging that she was wasting the estate. Upon the death of Gayadin's widow in 1896 Umrao brought a suit claiming a share in Sherpur, The Judicial

69. Commissioner held that Ratan Singh remained joint with Gayadin till the latter's death, and then became entitled to two-thirds of the property. The Privy Council agreed with this opinion. This case has been understood as an authority for the proposition that the withdrawal of a suit for partition negatives the discontinuance of the joint family. It ought to be borne in mind that Ratan Singh continued to live with Gayadin after the withdrawal of his suit.

70. In Madras there was a long course of decisions that partition could only result either by an agreement of the coparceners to separate, or by a preliminary decree in a suit for partition. This view had to be departed from in Soundararajan v. Arunachalam Chetty [1916] 39 Mad. 136, 159 after the clear pronouncement of the Privy Council in Suraj Narain v. Ekbal Narain [1913] 35 All. 80 and in other cases. Then came the case of Palaniammal v. Muthuvenkatachala : AIR1918Mad242 , the facts of which were somewhat complicated. In 1835, a suit for partition was instituted by one of the younger sons. The pleadings of that suit, or even the terms of the decree passed in that suit, are not very clear from the report. In 1843 a second suit for partition was instituted, in which shares were claimed under a will of the first zamindar. The Civil Judge held that the will could not operate with reference to the joint family property, but he directed the partition on lines inconsistent with the Hindu law of inheritance. The parties subsequently effected a razinama or compromise in the Suddar Adalat on appeal asking the Court not to proceed with the partition. The Court accepted the compromise and declared in the judgment that the family was to continue joint. In 1849 one of the plaintiffs sued the oldest son for partition and obtained a decree. Later on was instituted the suit for partition which gave rise to this appeal. The case turned principally upon the construction of Ex. 1 which was an agreement between the senior coparcener and only one of the junior coparceners and upon the inference permissible from the transactions of the family members between the years 1834 and 1855. Their Lordships held that the effect of these was not to cut off the junior coparcener from the joint family, and did not let in the other coparceners who were not parties to Ex. 1 or their descendants by rule of survivorship, upon the failure of the senior coparcener's branch. Wallis, C.J., observed as follows:

Treating the matter as one of individual volition, it seems to me that it is open to a coparcener who has filed a plaint for partition to abandon that intention before the suit has proceeded to a decree and to elect to continue in a state of jointness.

71. Kumaraswami Sastri, J., after setting out the facts, summarized the result in these words:

It will thus be seen that by various agreements or transfers, the first branch of the family continued to be in possession and enjoyment of the zamin without any actual partition being effected.

72. As regards some of the other documents relied on, he held that they did not indicate an unequivocal intention to separate, but tended to show that an arrangement was reached as to the mode of enjoyment in such a way as to impress upon the property the character of impartibility. The learned Judge remarks:

Assuming that the mere filing of a plaint is sufficient to sever the status of the coparceners, it seems to me that till a decree is passed in that suit, it is open to the plaintiff to change his mind and to withdraw the suit so as to leave him in the same position as if no suit had been filed. I can find nothing either in Hindu law or in the decided cases to countenance the view that a mere expression of an intention to separate is irrevocable.

73. His Lordship further observed:

Where from the scope of the plaint or pleadings all that appeared is that one member of an, undivided family wanted to out himself off from the rest after receiving his share and the other members neither asked nor evinced any desire for a partition inter se, the consideration of the shares of the others is only incidental for the purpose of giving the relief which the plaintiff wants (as it is not possible to arrive at the share of one coparcener without knowing how many coparceners there are and their shares), and the status of the others is unaffected by the decree in favour of one member.

74. If the institution of the suit for partition be an indication of an unequivocal intention to separate, the moment the intention is expressed, it must inevitably result in partition. The other members of the family have from that moment onwards become members of a divided family, holding their property as a separate tenure, with or without a division of their interest inter se. It cannot be questioned that in view of the decision of the Judicial Committee in Kedar Nath v. Ratan Singh [1910] 32 All. 415 and Palaniammal v. Muthuvenkatachala Moniagar , it must be held to be settled law that the intention to separate can very well be abandoned. But how can the abandonment of intention on the part of the plaintiff bring about the restoration of the status quo independent of the volition of the other members of the family? Another question which arises is whether the intention could be abandoned only before a preliminary decree for partition has been passed by the trial Court? Could it be abandoned at a later stage of the same suit? It is true that the effect of the preliminary decree is the ascertainment of the shares of the party or parties concerned in the joint family assets. Supposing there is an appeal from the preliminary decree and the suit is withdrawn during the pendency of the appeal, how will this withdrawal operate upon the status and character of the family and the property held by it? It has been held that in order to constitute a disruption of the family, it is not necessary that the suit for partition should culminate in a preliminary decree for partition. The Privy Council has held that the effect will be a division of the family even where the suit has been wrongly dismissed.

75. The case in Palaniammal v. Muthuvenkatachala : AIR1918Mad242 is not helpful to the defendants for the following reasons:

(1) The evidence disclosed that the family had continued joint and had not intended or persisted in its intention to separate.

(2) The transactions in support of partition were held not to indicate an unambiguous intention to separate.

(3) It was found that the real intention of the members of the family was not to divide the family property, but to create an impartible estate by agreement.

76. This case is, therefore, no authority for the proposition that where six different branches of the family, descended from a common ancestor, enter into an agreement to get the entire property partitioned fully and completely through some arbitrators, this does not effect a partition of the family either because the arbitrators did not enter upon their duty at all or that the property was not divided by metes and bounds for some unexplained cause.

77. The above case was followed in Vemireddi Seshureddi v. Nalappa Reddi [1920] 11 M.L.W. 611, Sengoda Goundan v. Muthu Goundan A.I.R. 1924 Mad. 625 and was affirmed on appeal by the Privy Council in Palaniammal v. Muthuvenkatachala Moniagar .

78. It was held in the last-mentioned case that the coparceners in a joint family can by agreement separate among themselves but the separation of one member does not necessarily result in the separation of the other members of the family, and that

the remaining coparceners, without any special agreement among 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 coparceners continued to be joint, may, if disputed, be inferred from the way in which their family business was carried on after their previous coparceners had separated from them.

89. Their Lordships further held that if a member of a joint family withdrew his suit for partition, it may result, as was held in Kedar Nath's case (16), that no severance of the joint status resulted.

Their Lordships see no reason to depart from that view, although such a plaint, even if withdrawn, would, unless explained, afford evidence that an intention to separate had been entertained.... In a suit for partition which proceeds to a decree which was made, the decree for a partition is the evidence to show whether the separation was only a separation of the plaintiff from his coparceners, or was a separation of all the members of the family from each other.

80. There can be no doubt that, if an agreement for partition of the property by reference to arbitration destroy the status of the joint family, it produces in law much the same result as a preliminary decree for partition. This will be the logical result of the agreement. Shares may be ascertained by a preliminary decree as much as by an agreement of the parties.

81. Where an ekrarnama entered into between the members of a Hindu undivided family clearly and unequivocally declared that defined shares had been allotted to the various coparceners in the entire property, this effected a partition of the estate and its legal effect and construction could not be controlled or altered by evidence of the subsequent conduct of the parties: see Balkissen Das v. Ram Narain Sahu [1903] 30 Cal. 738 and Jai Narain Rai v. Baij Nath Rai : AIR1928All419 . In the last mentioned case reliance was placed upon a sale-deed dated 21st May 1919 to prove that in spite of the document dated 12th April 1919 all the three branches of the family purchased the property without any definement of the shares, and upon the fact that the Subordinate Judge had found that there was no sufficient evidence to prove that the division of movables had ever taken place. The Court held that these facts did not affect or control the result of the agreement dated 12th April 1919 which was construed to have effected a partition in law.

82. The result of the decisions may be conveniently summarized as follows:

(a) Partition is the severance of the status of a joint family, which may be effected by the exercise of individual volition indicating an intention to separate from the other members of the family.

(b) The said intention must be manifested clearly and unambiguously.

(c) The intention to separate may be established either by explicit declaration or from a uniform and consistent course of conduct of the party concerned or of other members of the family. The intention may be declared orally or in writing, and may manifest itself from the filing of a plaint for partition, from an application for mutation of names to the Tahsildar in specific shares with a view to separate enjoyment, from a written notice served upon the members of the family demanding a partition of the property, from an agreement executed by the various members of the family whereby the shares of the individual members are defined with the object of securing separate enjoyment of the profits, or from an agreement of reference to arbitration for the partition of the property. Instances like these may be enumerated but cannot be exhausted.

(d) It is not necessary that there should be a consensus or agreement among the coparceners for the severance of status of a joint family.

(e) Where severance is effected by explicit declaration, the result is decisive, and the legal result cannot be affected or controlled by the subsequent conduct of the parties.

(f) In the absence of an explicit declaration, an inference in support of the intention may be drawn from evidence of conduct which will necessarily be different according to the varying postures of each case.

(g) Where there is evidence of intention to separate, this can only be annulled by clear evidence of the renunciation of such intention, and in some cases, by consensus or agreement on the part of the members of the family to reunite.

(h) Partition may also result from a definement or ascertainment of shares with a view to separate enjoyment of property.

(i) The separation of one member of a coparcenary is not necessarily a separation of the other members inter se.

83. The document dated 30th September 1907 does not lend itself to the construction that the executants did not intend to separate unless a complete partition was effected of the entire property into six parts. A like construction was sought to be placed upon the ekrarnama referred to in Sayed Kasam v. Jorawar Singh A.I.R. 1922 P.C. 353, the provisions of which were not dissimilar to the agreement of reference in this suit, (see p. 361). But the Judicial Committee did not accept this construction.

84. The division of the property is the consequence of the intention to separate, and the separate enjoyment of the property was evidently the result aimed at. As already noticed the intention to separate was expressed in the document in unmistakable terms. Its legal effect was to produce a disruption of the family.

85. The oral evidence produced by the defendants to sustain the alternative pleas that the intention to separate had been formally abandoned by the several members of the family, or that they had agreed to reunite and had, in fact, reunited has already been commented upon and discarded as wholly unworthy of credit.

86. The defendants laid considerable stress upon a number of documents to prove the continuance of the joint family, or the reunion of the family as an alternative plea. (The judgment then discussed the documents and proceeded,) Considering the documentary evidence relied on by the defendants, it cannot be held that Kunja Mal from 30th September 1907 up to the date of his death remained a member of a joint family with the defendants, and the said evidence is absolutely insufficient to establish a reunion which rarely happens in a Hindu family under modern conditions of life. The present case is not in many respects dissimilar to Jag Prasad Rai v. Mt. Singari A.I.R. 1925 P.C. 98. In 1892 the family to which the parties belonged agreed that Sheo Narain should partition the joint family property into eight equal shares. Their Lordships held that the effect of this agreement was that the previous joint family separated into eight families. Sheo Narain divided the family property into eight shares, but certain members of the family considered that the value of the shares was not equal, and the matter was referred to the arbitration of certain persons on 3rd January 1895 to make the partition of the family property in eight equal shares. This arbitration having fallen through, the matter was referred to the arbitration of five persons under an agreement dated 18th February 1896, the terms of which are set out at p. 99 of the report. Sheo Narain and Nand Lal, two of the eight, agreed to reunite. Some oral evidence was produced in the case to prove that after separation Chhatrapal and three others had agreed to reunite. This evidence was disbelieved. Dealing with the documentary evidence the Privy Council makes the following remarks:

Their Lordships will now consider the other documentary evidence, but before doing so they may state that on the evidence on record they have come to the conclusion that the members of the family who had moved from Sonchiraiya to Shikargarh and lived there in one house, carried on business as partners, but not as coparceners of a joint family, as money-lenders and in the cultivation of sir and khudkasht lands, and they may observe that entries in khewats and other similar village papers showing that the shares of co-owners have been specific, afford by themselves no proof that the owners were members of a joint Mitakshara family or had separated.... Their Lordships will also observe that in their opinion payment jointly of Government revenue, taxes, income-tax and such like payments do not by themselves indicate that the parties making such payments were joint or separate; the parties may have been carrying on business as partners and not as Hindu coparceners.

87. In their Lordships' opinion, a joint purchase is not necessarily indicative of purchase for a joint family. Their Lordships strongly comment upon the fact of non-production of the account-books...

It was necessary for the plaintiffs' case that they should have been produced and put in evidence. The books of account would have shown whether the accounts, which must have been kept, were the accounts of a joint family or a partnership. The non-production of any of those books of account has not been-satisfactorily explained by or on behalf of the plaintiffs, and their Lordships draw the inference that if they were produced they would not support the case of the plaintiff.

88. The principal business of the family was sugar factory and money lending. Lakshmi Narain states that money lending business of the family in 1907 was worth Rs. 60,000 or Rs. 65,000 and yet he would have us believe that the family kept no account books. It was argued by the respondents that no presumption should be drawn against the respondents for the non-production of the account books because it is not proved that account-books existed and have not been produced, and further because the defendants were not asked to produce the account-books. It is impossible to believe that the account books relating to a family which carries on trading business of diverse kinds should not be in existence. If they exist, the defendants must be held to be the natural custodians of such account-books. They cannot but be aware of the importance of the entries in the account-books to indicate how receipts and disbursements were made and as to whether there was a common chest held by the members or there was only a partnership account. These account-books were not only relevant documents, but were of very great importance in the case, and ought to have been produced.

89. To prove that the family had separated, the plaintiffs relied upon a lease dated 20th February 1909 executed by Lala Kunja Mal in favour of Kundan Lal and Shadi Lal of 8 bighas 10 biswas of land of mauza Chamarwa from 1910 to 1916 at an annual rental of Rs. 20. There is also a counterpart executed by the lessees on the same day. It is argued that a lease of the property by one member of a joint family in favour of another member is highly improbable, and the transaction was inconsistent with the continuance of joint family. It is not improbable, as the Subordinate Judge has found, that this lease was executed with the object of securing this portion of the property from Suraj Sahai and his brother who as recorded cosharers had applied for the partition of the revenue-paying village Chamarwa. The lease and the kabuliyat, therefore, are inconclusive.

90. A more important piece of evidence, however, is a claim of Kunja Mal to be appointed lambardar of mauza Dialra in opposition to the claim of Lakhshmi Narain. Bhola Nath, brother of Lakhshmi Narain, was the lambardar of this mauza. On his death Lakshmi Narain applied to be appointed lambardar in his place. Kunja Mal resisted the application of Lakhshmi Narain and put forward his own claim as qualified for lambardarship in place of Bhola Nath under the terms of the Wajib-ul-arz of the village. Kunja Mal about this time was blind of one eye and the sight of the other eye was defective. He was fairly advanced in years; he had lost his only son, there was no other male issue. The proceedings relating to this lambardari case show a contest between individual members of the family, namely, Lakhshmi Narain and Kunja Mal. They further show that there were two factions in the family, and several members supported Lakhshmi Narain against Kunja Mal. They further stated that they were members of a joint family with Kunja Mal. It is argued that these statements must have been made to the knowledge of Kunja Mal, and he never contradicted. These statements are not be fore the Court; even if they were it might be questioned how far they were admissible. Assuming that the statements were admissible, they could not be entitled to much evidentiary value, because they were made at a time when there was active antagonism between Kunja Mal and other members of the family. Kunja Mal, in support of his claim, stated that his share of zamindari was three times the share of Lakhshmi Narain, a statement which does not indicate any admission of jointness on the part of Kunja Mal. It is not safe to attach undue importance to these proceedings, but they appear to be more consistent with a divided rather then with a joint family. The agreement dated 30th September 1907 has the effect of creating a partition of the joint family. The defendant's direct evidence relating to the renunciation of that intention and of a formal reunion of the several members of the family has been rejected as utterly unworthy of credit. The other documents produced by the defendants are inconclusive. They do not prove jointness or reunion, and are net inconsistent with the business of the family being carried from 1907 onwards on the basis of a partnership amongst the members of the family who held as tenants-in-common. The failure of Hira Lal, Khimman Lal and Jhanjhan Rai to offer themselves as witnesses in this case, the non-production of account-books, and the non-production of Chhote Lal, one of the surviving arbitrators, as a witness, are matters which cannot be lightly disregarded. They raise presumptions against the defendants.

91. We would allow the appeal and grant the plaintiffs a declaratory decree for the property claimed except such items of property as have been acquired by the defendants after 10th April 1915. The plaintiffs will receive their costs throughout.

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