1. This is a plaintiffs' appeal and arises out of a suit for possession of certain property.
2. The plaintiffs are the daughters of one Madho Singh and their case was, that Madho Singh was the sole owner of the property in dispute and died as a separated Hindu, in 1888, and on his death his widow, the mother of the plaintiffs became entitled to the property in dispute by right of inheritance, but the ancestors of the defendants, who were the collaterals of Madho Singh, by exercising undue influence on the mother of the plaintiffs, persuaded her to enter into a compromise, by virtue of which she surrendered possession of the property in dispute to those collaterals on being allowed to remain in possession of the sir land appertaining to the zemindari share that belonged to Madho Singh. The plaintiffs impugned the validity of the compromise and maintained that compromise was ineffectual to adversely affect their rights to the property in dispute, that came into existence on the death of their mother.
3. The defence to the suit was that the family of Madho Singh and of his uncles Ram Bakhsh Singh and Bhawani Singh was a joint Hindu family, and the property in dispute along with other properties was the joint property of that family, and on Madho Singh's death the property in dispute passed by right of survivorship to the surviving members of that family. The allegation of the plaintiffs as regards the exercise of undue influence by the then collaterals of Madho Singh was also denied by the defendants. The finding of both the Courts below on this point is in favour of the defendants, and that finding must be accepted in second appeal.
4. The main question that called for determination in the case was whether or not Madho Singh died as a separated Hindu and was the sole owner of the property in dispute If he was separate from the other members of his uncle's family, and if he was the sole owner of the property in dispute, the plaintiffs undoubtedly were entitled to a decree for possession as against the defendants, as the right of the plaintiffs to get possession of the property in dispute accrued on the death of the widow of Madho Singh and it is common ground that she died within a couple of years prior to the institution of suit. On the other hand, if Madho Singh was a member of a joint Hindu family along with the descendants of Ram Bakhsh Singh and Bhawani Singh, the property in dispute would pass to the surviving members of that family by right of survivorship.
5. Both parties adduced oral and documentary evidence in support of their respective allegations. The oral evidence has been rejected by both the Courts below and, in our judgment, has been rightly rejected. As has been pointed out by the lower appellate Court it is difficult to get reliable evidence as regards the events that took place in or about the year 1888 at this distance of time, and, therefore, it is unsafe to come to a finding on the point of separation or jointness on the basis of oral evidence.
6. There then remained for consideration the documentary evidence produced by the parties. The trial Court noticed some of the documents relied upon by the parties and came to the conclusion that the plaintiffs failed to prove that Madho Singh had died as a separated Hindu. The lower appellate Court did not notice all the documentary evidence referred to by the trial Court in its judgment. It referred to a certain litigation that took place in 1870 between the two sons of Bhawani Singh, who, as already stated, was the uncle of Madho Singh. The lower appellate Court dismissed that litigation from consideration by the following observation:
This took place in 1870. Beyond specifying the shares; the litigation did not proceed further.
7. This shows that the lower appellate Court was of opinion that the mere fact of the institution of a suit for possession and for mesne profits of a definite share of property by one member of a joint Hindu family against another has not the effect of causing a disruption of that family. The lower appellate Court was wrong in making this assumption.
8. If one of the sons of Bhawani Singh sued his brother for a specific share of the property owned by Bhawani Singh and if he got a, decree, and if after getting that decree he got into separate possession of the share decreed to him, it is impossible to hold that he and his brother after that litigation continued to live jointly. Further, if there was separation between the two brothers the presumption, in the absence of proof to the contrary, would be that there was, in the eyes of the law, a separation of the entire family, and the share of each member of the family became an ascertained share. If there is an ascertainment of share of the members of a joint Hindu family the presumption, in the absence of proof to the contrary, is that the family became divided. In other words, the ascertainment of shares of the various members of the family is presumptive evidence of separation, but the presumption is one capable of being rebutted by evidence showing that, notwithstanding the ascertainment of the shares, the members continued to live jointly, or by their subsequent conduct exhibited an intention to continue to live as members of a joint family. As was pointed out by their Lordships of the Privy Council in the case of Palani Ammal v. Muthuvenkatachala Moniagar .
the mere fact that the shares of the co-parceners had been ascertained does not by itself necessarily lead to an inference that a joint family had separated. There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be.
9. It is clear from this observation of their Lordships of the Privy Council that a mere ascertainment of shares of the members of a joint family is not conclusive evidence of separation, but the burden of proving that notwithstanding the ascertainment of shares of the various members of the family the family continued to be a joint family lies on the person making the assertion. The learned Judge of the lower appellate Court was of opinion that unless the plaintiffs succeed in proving that something further than a mere ascertainment of shares took place in consequence of the litigation of 1870 the presumption of the continuance of the joint family must hold the field. In so holding the lower appellate Court, as already observed, misdirected itself on a question of law and it appears that, in consequence of this erroneous assumption, it did not proceed to review the entire documentary evidence tendered by the parties in the case.
10. The lower appellate Court further referred to two mortgage deeds of the years 1879 and 1882. One mortgage deed was executed by Madho Singh and the other by Chittan Singh. Those deeds were relied upon by the plaintiffs to show separate dealings by the members of the alleged joint family. The lower appellate Court brushed aside those documents with the observation_that there is nothing to show that the mortgages were enforced.
11. In our judgment the lower appellate Court was wrong in rejecting the evidence afforded by those documents simply on the ground that the plaintiffs had not shown that those mortgages were put into suit. No doubt if those mortgage deeds had been enforced they would be very reliable evidence of separation, but it cannot be said that the mere fact that they were not enforced deprives them of all their evidentiary value. In view of these misdirections by the lower appellate Court we cannot accept the finding of the lower appellate Court as a finding of fact binding on us in second appeal. It has been recently pointed out by their Lordships of the Privy Council in the case of Dhanna Mal v. Moti Sagar , that
the proper effect of a proved fact is a question of law.
12. In the present case the proper effect of the litigation of 1870 and of the various transactions by the different members of the family is a question of law.
13. As the learned 'counsel for the parties are not prepared to lay the entire evidence before us and as the finding recorded by the lower appellate Court on the question of jointness or separation of the family, because of the reasons stated above, cannot be accepted by us, we remit the following issue to the lower appellate Court for determination after consideration of the entire documentary evidence on the record:
14. Whether Madho Singh and the ancestors of the defendants were joint or separate at the time of the death of Madho Singh
15. No further evidence will be allowed. The finding must be returned to this Court within two months. On receipt of the finding the usual ten days will be allowed for objection.