1. This appeal arises out of a suit for partition of joint family property in which the appellant was the plaintiff. The relationship of the parties is shown by the following pedigree:
(For pedigree see p. 171)
2. The plaintiff's case was that, on the death of Bhagwan Das the family estate belonged by right of survivorship, to the rest of the family consisting of the parties to the suit and that in the case of partition the plaintiff's share was one-half. The plaintiff accordingly claimed separation by metes and bounds of his one-half share. The defence was that the plaintiff had separated himself from the rest of the family during the lifetime of Bhagwan Das and that he was allotted a quarter share only to which alone he was entitled.
3. The learned Subordinate Judge has held that the defendant's case was partially true that although no partition by metes and bounds took place, as alleged by the defendants, there was nevertheless enough evidence to show that the status of the family had been split up and that the plaintiff had come to be regarded as the owner of a quarter share. The learned Judge accordingly decreed the suit by directing a partition of a quarter share to the plaintiff. The main question for determination in this appeal is whether or not there was an actual disruption of the family by the separation of the plaintiff before the death of Bhagwan Das or whether at the date of the suit the family still continued to be joint in which event the plaintiff's share would be one-half.
4. In order to enable the Court to weigh the evidence at its proper worth it is necessary to examine closely the pleadings of the parties. The defendants, who pleaded separation and on whom therefore the burden of proof lay, disclose their case in the written statement of Ram Bilas. It appears that originally Ram Bilas was the sole defendant in the case. Later on, his son and grandsons were impleaded. These, however, contented themselves with filing a short written statement and with the adoption of Ram Bilas's written statement. Ram Bilas's case, in his long written statement, put briefly was this: About July 1920 the plaintiff insisted on partition and it was arranged that he should make collections in three villages, viz., Gularia, Nawa Bagla and Mirpur Hirpur (out of 22 villages owned by the family), that these three villages yielded Rs. 1,500 a year as
Nand Lal Tula Ram
Bhagwan Das | |
(died 1st May 1922) Ram Bilas, Defendant Thakur Pd.
(died pending the suit) |
| Bankey Behari,
Brij Behari Lal, Defendant Plaintiff
| | |
Shyam Behari Lal, Defendant Raj Bihari Lal, Defendant Tej Behari, Defendant
(died pending the suit)
the net profit, that as the total amount of yearly profits to which the plaintiff was entitled for his one quarter share was Rs. 2,000, it was arranged that at the close of the agricultural year which commenced in July 1920 (1328 F) an adjustment of account would take place and the deficiency in the plaintiff's profits would be made good by Bhagwan Das and Ram Bilas, that all moveable properties were actually divided, that the servants of the family were divided and they thereafter, managed for their respective masters and that as regards money lending and sugar business, it was agreed that after the payment of a possible debt, the balance would be divided. It appears that on 2nd February 1922, the plaintiff sent a registered notice to Bhagwan Das and Ram Bilas demanding partition. The defendants did not rely on it as a document creating, as a matter of law, a separation in the status of the family. The reason was that according to their case the partition had already taken place in July 1920. The defendants accordingly stated in para. 5 of the written statement (p. 9) that by means of this notice the plaintiff declared the separateness of his status and, the defendants added that it was agreed, as the result of the notice, that a deed of partition would be registered as soon as Bhagwan Das recovered from his illness. It was the defendants' case that on 2nd February 1922 Bhagwan Das was really ill, but we may state at once that there is no reliable evidence to prove this and the Court below has not found that such was the case.
5. In view of the pleadings stated above, the only question for decision was whether the plaintiff had separated in July 1920. No question arose as to whether if the family was joint, even at the date of the registered notice namely, 2nd February 1922, the delivery of the notice created a disruption in the family. The case, however, has been considered from both the aspects and the following issue was framed by the Court below:
Whether the plaintiff separated from the joint family about July 1920. If the answer to the above be in the negative, is the plaintiff to be looked upon as separated in interest after his notice or registered letter of 2nd February 1922.
6. The learned Subordinate Judge recorded the following finding as to the first part of the issue:
Therefore if I were asked on the strength of oral evidence... to hold that there was a regular partition by metes and bounds of all the joint family property in or about July 1920, I would unhesitatingly decline to do so.... In fact, I may go the length of saying that even the entire circumstantial evidence, to which I shall presently refer, read in conjunction with oral evidence referred to above, fails to my mind to establish that any regular partition of all the family property by metes and bounds was really made.' (p. 115 of the printed record).
7. The learned Judge then proceeded to remark that the above finding did not preclude the Court from finding that the plaintiff had, as a matter of fact, severed his rights or interest in the joint family property. The learned judge ultimately held, as already stated, that the plaintiff had severed his interest during the lifetime of Lala Bhagwan Das, but did not say when the disruption took place. As we have already stated, the learned Judge was not satisfied that a partition took place in July 1920.
8. Before examining the evidence the learned Judge adopted a method of trying the case of which we do not approve. Instead of arriving at findings of fact first and applying the law then, he proceeded to find out what the law was and then to find his facts. This procedure is calculated to mislead a Judge and to tempt him to arrive at findings which are likely to fit in with his view of the law. In our opinion this is what has actually happened, in this particular case. The learned Judge found as a matter of law that a definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty may amount to separation (p. 116 of the record). It is not the case that the learned Judge applied this rule of law to the notice dated 2nd February 1922 specifically, but he applied it to the entire case.
9. The first thing that we have to see is whether the learned Judge erred in his finding of fact, namely, that the plaintiff had separated his status from the joint family and had become a separated member. The learned Judge, as already stated, has discarded the oral evidence adduced on behalf of the defendants. He based his opinion on the account books said to belong to the family and the account book of a certain legal practitioner Lala Tribhuban Lal. He relied also on certain minor pieces of evidence which will all be noticed, in due course.
10. It appears that, as very often happens in the case of a suit for partition of large properties belonging to a joint family, the filing of the plaint was followed by an application to the Court to send down a man, styled a commissioner' to take possession of the account books and moveables in the possession of the defendant The object of this procedure is to prevent the defendants from manipulating the account books and removing the moveable properties and the cash, if any. A similar application was made in this case and certain account books were brought into Court by a certain pleader who was appointed the commissioner. When the account books were received in Court the plaintiff was asked to state if those books were or not the books belonging to the joint family. He replied in the affirmative. The learned Judge pinned the plaintiff down to this statement and did not permit him to say later on, that some of the account books had been tampered with at the instance of the defendants. Before us the learned Counsel for the plaintiff contented himself with pointing out that some of the account books were entirely unreliable, although they may have been kept and maintained by servants of the joint family. For reasons to be presently stated, we are satisfied that some of the account books cannot possibly be accurate. It is only the account books that are properly kept that are admissible in evidence as relevant: vide Section 34, Evidence Act. (Then the Judgment proceeded to consider the oral and documentary evidence of both parties and coming to the conclusion that at the date of the death of Bhagwan Das the parties were living jointly and there was no separation at all proceeded.) Now we come to a consideration of the effect of the registered notice which was given, evidently, in a fit of petulance, by the plaintiff to Bhagwan Das and Ram Bilas. This will be found printed at p, 147 of the record. As we have already said, it is not a part of the defendants' case, as put forward in the written statement of Ram Bilas that from the date of the delivery of this notice to the addresses of it, the families became separate, to all intents and purposes. The defendants' case on the other hand was that there already existed a separation which had taken place some 20 months previously and the result of this notice, dated 2nd February 1922, was only a declaration of the factum of separation. Before we consider the legal effect of this notice, we may at once point out that the very fact that such a notice was given tends to destroy the defendants' case that there had already existed a separation between the parties. By this notice, Bankey Behari asked for a partition. The reference to 'settlement of account' has no reference to any previous partition alleged by the defendants in the written statement and for two reasons. The notice does not imply any previous partition. Further, the Court below has found that there was no partition by metes and bounds and we have found that there was no partition at all.
11. There can be no doubt that a member of a joint Hindu family, if he chooses, may separate himself and to effect a separation in status it is not necessary that the other members should be a consenting party. But even where an unequivocal wish to separate is once declared any separation will not be effected, in law, if it be found, as a fact, that the intention was given up as the result of a subsequent agreement of the parties by which the notice was expressly or impliedly withdrawn. Before we proceed to consider the case-law, let us examine the facts of the case. The plaintiff's case is that after he had given this notice, he was called upon to explain his conduct towards an elder member of the family, like Bhagwan Das. One Lal Bahadur, undoubtedly a relation of the parties, and whose brother comes as a witness for the defendants, swears that he was present at the interview. The result of the interview was that the plaintiff was promised some money for his expenses and he admitted his error in asking for partition. There can be no doubt that the plaintiff himself and his witness, Lal Bahadur, have in occasional passages of the evidence made statements which cannot be accepted. But it is perfectly clear to us that the notice was not followed by anything serious in the nature of a disruption of the family. The defendants' case is that when the notice was received, the plaintiff was told, evidently by Ram Bilas, that Bhagwan Das was ill and the plaintiff must not hurry, and when Bhagwan Das got well, an account would be taken of what further profits were due to the plaintiffs and a deed of partition would be registered. We can take it, therefore, that it is common ground that no actual partition followed the giving of the notice (p. 147). Again, it is common ground that, as the result of the notice, a meeting among the member of the family took place, in which distant relations may or may not have been present, and nothing came out of the storm which the notice aroused. We may, therefore, safely take it, in view of the 'subsequent conduct and statements of the parties, enumerated above, and as the evidence adduced by the plaintiff shows that the plaintiff dropped his idea of separation, at the instance of the other members of the family and possibly of relations like Lal Bahadur. The plaintiff, having no son and only a daughter his separation meant the loss of a quarter share to the family. This very inducement was likely to have been put forward to make the plaintiff abandon his idea of separation. Our finding of fact, therefore, is that the plaintiff did conceive an idea of separation, but gave up that idea a day or two later as the result of a family meeting.
12. Now we come to the question of law, which is involved in the second part of the issue framed by the Court below and) is reproduced here:
Has the plaintiff to be looked upon as separate in interest after his notice or registered letter of 2nd February 1922?
13. On behalf of the respondents reliance has been placed on a statement of law contained in the case of Ram Kali v. Khamman Lal : AIR1928All422 by two learned Judges of this Court, the judgment being delivered by Sen, J. The learned Judges professed to lay down the result of certain decisions of Hindu Law relating to joint families and partition. The proposition relied on by the respondents in support of their case is Clause (e) at p. 879 of the report. To understand this Clause (e) we have to read it with the preceding 01. (d). They are as follows:
(d) It is not necessary that there should be a concensus or agreement among the coparceners for the severance of status of the joint family.
(e) Where severance is effected by explicit declaration, the result is decisive and the legal result cannot be affected or controlled by subsequent conduct of the parties.
14. With the proposition in Clause (d) we have no quarrel. As regards Clause (e) too, we should have no quarrel with it, if the third word 'is' may be read as 'has-been.'
15. We have not the least doubt that the learned Judges did use the word 'is' in the sense of has been.' The proposition that is laid down in Clause (e) is really a proposition that was laid down by this very Bench of the Court, in Jai Narain v. Baijnath Rai : AIR1928All419 quoted by the learned Judges themselves with approval at p. 878. This proposition lays down that where there has been a completed separation, there can be no joint family afterwards except by way of reunion,
16. The case before us is whether the evidence before us points to a completed separation or only to an attempted separation. We have found as a fact that there was no completed separation, that a separation was demanded but the demand was given up at the instance of the other members of the family. The question therefore is whether an unequivocal demand which has not been persisted in and has no doubt, been given up with the consent of the other members of the family must nevertheless be treated as affecting a separation? The answer to this question is not furnished by the case of Ram Kali v. Khamman Lal : AIR1928All422 relied on by the respondents. Indeed their Lordships do concede at p. 876 (of 26 A.L.J.) of the report that on the authority of the Privy Council,
it must be held to be settled law that the intention to separate can very well be abandoned.
17. The cases quoted by their Lordships, viz,, Kedar Nath v. Rattan Singh  32 All. 415 and Palani Ammal v. Muthuvenkatachala Moniagar , afford illustrations of a demand for separation, subsequently abandoned with the result that the jointness of the family remained undisturbed. In the case of Kedar Nath v. Rattan Singh  32 All. 415, there were three brothers; one separated outright, the second brought a suit for partition but withdrew his claim and remained joint with the third brother against whom he had brought the suit. Their Lordships held that as between the second and third brothers there was no disruption of jointness. Similarly, in the Madras case there was a demand for separation. A partition suit was filed, but ultimately, the matter was compromised. It was held that the family did continue to be joint. In all these cases, the demand was abandoned with the consent of the other members of the family. It is not necessary for us to say, definitely, in this case, whether the person making the demand for partition may abandon it without the consent of the other members of the family, so as to enable him to continue to be a member of the joint family. But it is clear to us that, where all the parties are agreed, including the member demanding a separation, that the demand should be withdrawn, there is no disruption in the status of the family. Such being our view of the law we hold that the mere notice of 2nd February 1922, which was never persisted in and which was ultimately given up did not create a disruption of the joint family.
18. The result is that the family was joint when Bhagwan Das died on 1st May 1922. It follows that the plaintiff is entitled to a half-share in the entire joint family property. We allow the appeal, modify the decree of the Court below and decree the plaintiff's suit for partition, in its entirety. This will be the preliminary decree in the suit and the partition will be carried out in accordance with law. The plaintiff will have his costs of the suit and of the appeal.