1. These two connected appeals arise out of a suit for partition.
2. The parties are relations, and they are related in this way: Gobind Sahai had two sons, namely, the Defendant No. 1, Hazan Lal; and Gur Sahai Mai, father of the Plaintiffs 1 to 3. The other plaintiffs are the sons of Plaintiffs 1 and 2. The defendants, other than Hazari Lal, Defendant No. 1, are the sons and grandsons of Hazari Lal.
3. The plaintiffs came into Court with the allegation that the family, consisting of all the parties, was still joint; that the entire property was the joint property, the plaintiff's share being one half; and that owing to dissension in the family it was not possible for the parties to go on amicably. On these grounds the plaintiffs sought partition of the property.
4. The defence was that the family had already separated 30 years prior to the institution of the suit; that although certain of the properties were still held jointly between the parties, certain other properties detailed in the written statement were their separate property and some were separate acquisitions of the defendants.
5. On these pleadings the learned Subordinate Judge framed several issues. One issue related to the status of the family. The other issues were concerned with the claim as to the separate property of the defendants. The suit succeeded except with respect to a small portion of the property, situate in the village of Khiria. This property was the subject-matter of Issue No. 5. The learned Subordinate Judge held that except some minor items in Khiria the rest of the property was joint family property. He made a preliminary decree and directed the Court Amin to effect an actual partition.
6. Both the parties have appealed, and Appeal No. 97 of 1922 is the defendants' appeal. Appeal No. 68 is the plaintiffs' appeal.
7. Although savera.1 points were taken in the memoranda of appeal only three questions require determination by this Court. The first question is one of status. The second question is about the property in Khiria, and the third question relates to certain indigo cakes claimed as joint property.
8. The presumption of Hindu Law is that the family, constituted as the parties are, is joint. As already stated Defendant No 1, Hazari Lal, is the paternal uncle of the Plaintiffs Nos. 1 and 2. The nearness of blood relationship would indicate that the family is joint, until the contrary is established. The evidence, however, goes to show that there was a disruption in the family a few years before the institution of the suit. It appears that in 1923 a certain Suit No. 218 of that year, was instituted by Hazari Lal against his three nephews for division of the family property with the allegation that the family had divided in law about 25 years previous to the institution of the suit, but the business and properties were held jointly by way of partnership. The suit was met with the plea that the family was still joint. A further plea was taken that all the joint family properties had not been made the subject-matter of the suit, and that therefore, a suit for partition was not maintainable. The learned Subordinate Judge who heard the suit, came to the conclusion that the family was still joint. He, however, declined to make a decree for partition on the ground that all the family properties had not been brought into the hotchpot. The suit was accordingly dismissed.
9. It has been argued on behalf of the defendants that the institution of this suit operated as disruption of the family, and the joint character of the family ceased to exist. This is in accordance with the Privy Council case of Girja Bai v. Shada-shiva Dhundiraj A.I.R. 1916 P.C. 104. The plaint on which this suit was based has not been filed, and it would be material to find out what was the intention of the plaintiff Hazari Lal, in tiling that suit, in order to see whether he wanted a disruption of the family. But although the plaint is not here it is clear from the judgment that Hazari Lal intended that the joint character of the family, if it existed, should disappear. Along with this evidence we have the evidence of witnesses of the parties and the statement of the plaintiff Ram Lal himself, to show that shortly after 1913 the parties began to make separate collections. At page 105 of our printed record a previous statement of Ram Lal is printed in it. Ram Lal said that from 1321 Fasli he began to make collections separately. Up to 1320 Pasli collections were made jointly. Several witnesses examined on behalf of the defendants establish the fact that only a few years before the institution of this suit (in 1919) the parties began to make collections separately. Gouri Shanker, the Income-tax clerk, produced his account books and showed that up to 1914-1915 the income-tax was paid jointly. The parties were separately assessed to income-tax for the first time in the year 1916-17. The witness Bam Singh said that he owed a debt to the family, and the parties agreed that he should pay them each one half. The last instalment was paid on the 20th of July 1920. There were seven instalments, and this would go to 'show that in 1913, or a year later, the parties agreed to make collections separately. It is needless to multiply instances. The statement of Ram Lal, in our opinion, clinches the matter and we must take it that shortly after 1913 the parties agreed to make collections separately. This agreement would create a separation in the family.
10. Thus we disagree with the decision of the Court below and hold that the family was not joint at the date of the suit, but that it had separated either in 1913 or about a year later.
11. As remarked in the argument by Mr. Bajpai the question of jointness or separation at the date of the suit is of little importance in this particular case. It has been established beyond doubt that there was no actual partition in the family. An attempt was made to prove that after the institution of this suit of 1913 a sort of arbitration took place: people gathered together and divided the property. But the evidence was so meagre that the learned Counsel for the defendant-appellant made no attempt to draw our attention to that evidence. The position, therefore, is that although the family separated in law in 1913 or there, about, there was no division of the family property. It would follow that unless it was established that any particular item of property was acquired with separate funds by any individual party, all the property in the hands of the parties would be liable to be divided in equal shares.
12. Now we come to two other issues raised in the appeal. The property in Khiria consists of 3/4ths of admittedly joint property, and 1/4th of property in dispute in appeal. The defendant's case is that 6 out of 24 shares were acquired on the 8th of September 1913 by Hazari Lal. The learned Subordinate Judge thought that the very fact that the property was purchased two days after the institution of the suit of 1913 established it beyond doubt that this property had been acquired out of separate funds. The evidence, however, establishes that up to this time the parties had not begun to make separate collections. The presumption of jointness would, therefore, attach to this property. The fact that Hazari Lal was the head or manager of the family and kept the funds has been satisfactorily established by the plaintiffs' witnesses Lakhan Singh, Zalim Singh and Shama Charan. The very fact that he was the eldest member of the family and elder in point of relationship as well would point to him as the head of the family. The acquisition having been made by him, we are unable to agree with the learned Subordinate Judge that we should regard this property as his acquisition. To this extent, therefore, the plaintiffs' appeal must be allowed.
13. While on the question of the property in Khiria it is to be pointed out that by an oversight on the part of the office the decree that was prepared gave the entire property in Khiria to the defendants. The decree will have to be corrected in this office and the whole of the property will now be divided.
14. The indigo cakes are claimed as joint family property. In the plaint it is stated that 10 maunds of indigo were sent to Calcutta for sale and the price is given at Rs. 2,100. The question is whether this indigo was manufactured with joint funds or with separate funds. Hazari Lal, as already stated, was the head of the family, and he managed the family property. In the circumstances, unless there is something clear to show that the indigo was manufactured with his separate funds, it will be difficult for us to differ from the Court below and award it to the defendants alone. The evidence of Shama Charan, a witness examined on behalf of the plaintiffs, was pointed out as indicating that the produce of the factory was the sole property of the defendants. But the witness does not say anything like that, but simply says that there were two factories and the management of one of these factories was in the hands of Sita Ram and the management of the other in the hands of Sri Ram the latter being Hazari Lal's son and the former being one of the plaintiffs.
15. The result is that the defendants' appeal fails entirely and is hereby dismissed with costs which will include fees on the higher scale. The appeal of the plaintiffs succeeds wholly. As regards the costs of the plaintiffs, it appears that the defendants never disputed the fact that the decree of the Court below awarding 18 shares in Khiria was wrong. The plaintiffs were required to appeal so far as six shares were concerned. The decree in the Court below might have been set right by an application for amendment made to that Court. In the circumstances we allow the plaintiffs only one-half of the costs of Appeal No. 68 of 1922