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Darbari Lal and anr. Vs. Mt. Parbati and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Reported inAIR1926All256
AppellantDarbari Lal and anr.
RespondentMt. Parbati and ors.
Cases ReferredNet Ram Singh v. Tursa Kunwar
Excerpt:
.....suit one or more members of the family had separated. muthuvenkatachala moniagar ,a member of a joint family can separate himself from the other members of the joint family, and would on such separation be entitled to have a share in the property of the joint family ascertained and partitioned off for him but the remaining coparceners, without any special agreement between themselves, may continue to be coparceners and to enjoy as members of a joint family what may remain after such a partition of the joint family property is made or live separately from each other. the learned counsel for the plaintiffs-respondents has also relied on an application made by hulas singh for his appointment as a lambardar in 1911. in that application hulas singh had stated that he was a cosharer in..........decrees against mt. parbati, the widow of raghunath singh. raghunath singh had two brothers, hulas singh and srikishun singh. the plaintiffs-respondents are the descendants of hulas singh and srikishun singh. their allegation was that raghunath singh, hulas singh and srikishun singh formed members of a joint hindu family, that the property mortgaged by raghunath singh was the joint family property of the entire family, and that raghunath singh had no right to mortgage any portion of the same without any lawful necessity. it was further alleged that the decrees obtained on the basis of those mortgages were not binding on the plaintiffs because they were not made parties to the decrees or to the suits in which those decrees were passed. in fact they asserted that the name of mt......
Judgment:

Kanhayia Lal, J.

1. The defendants-appellants Darbari Lal and Shankar Lal held certain mortgages from Raghunath Singh. On foot of those mortgages they obtained decrees against Mt. Parbati, the widow of Raghunath Singh. Raghunath Singh had two brothers, Hulas Singh and Srikishun Singh. The plaintiffs-respondents are the descendants of Hulas Singh and Srikishun Singh. Their allegation was that Raghunath Singh, Hulas Singh and Srikishun Singh formed members of a joint Hindu family, that the property mortgaged by Raghunath Singh was the joint family property of the entire family, and that Raghunath Singh had no right to mortgage any portion of the same without any lawful necessity. It was further alleged that the decrees obtained on the basis of those mortgages were not binding on the plaintiffs because they were not made parties to the decrees or to the suits in which those decrees were passed. In fact they asserted that the name of Mt. Parbati, the widow of Raghunath Singh, was entered in the revenue papers for her consolation after the death of Raghunath Singh, and that she was only entitled to maintenance and was not in possession of any portion of the property mortgaged by her husband.

2. The defendants, Darbari Lal and Shankar Lal, denied that Raghunath Singh was living jointly with Hulas Singh and Srikishun Singh or their descendants. They did not suggest that the mortgages in question had been made by Raghunath Singh for legal necessity, but they contend that Mt. Parbati was in possession of the property of Raghunath Singh as his widow, and that the decrees obtained against her where valid and enforceable.

3. The Court below, relying on the general presumption that a Hindu family is joint, and also on certain oral and other evidence adduced in the case, came to the conclusion that Raghunath Singh was living jointly with Hulas Singh and Srikishun Singh and their descendants on the dates of the mortgages in question, and that the decrees obtained by the defendants-appellants against Mt, Parbati were not binding on the plaintiffs. It further held that the defendants could not have been ignorant of the real position of the family when they took the mortgages from Raghunath Singh in respect of what was, according to its finding, joint family property, and that they were similarly aware of the real position when they chose to file suits and obtain decree against Mt. Parbati alone, which could not be treated as binding on the plaintiffs.

4. The main question for consideration is whether Raghunath Singh was living jointly with his brothers Hulas Singh and Srikishun Singh and with their descendants on the dates of the mortgages in suit. A subsidiary question also arises whether the decrees obtained against Mt. Parbati alone were binding on the plaintiffs. We have carefully examined the evidence adduced in the case and are not satisfied that the learned Subordinate Judge has arrived at a right conclusion on the main fact in issue. It is well established that a family is presumed to be joint until the contrary is established, but no such presumption arises where it is established that before the suit one or more members of the family had separated. In this case there is evidence to show that the names of Raghunath Singh, Hulas Singh and Srikishun Singh were separately entered in the revenue papers in respect of equal shares, and that after the death of Raghunath Singh the name of Mt. Parbati, his widow, was entered in respect of the share which stood in his name. The family resided in the village Khajuri and the lambardar of the village was Hulas Singh who was appointed lambardar in 1911. Raghunath Singh and Srikishun Singh had died earlier. In 1919 Sanwal Singh applied for the entry of his name in respect of a half share out of the property entered in the name of Hulas Singh, and he succeeded in getting his name entered on the allegation that he was living separately from his father from four or five years. Both Sanwal Singh and Hulas Singh admitted at the time that they had been separate from each other from four or five years back. On the date of the present suit there can be no doubt, therefore that at least one branch of the family, namely that of Sanwal Singh and his father Hulas Singh, had separated, and the presumption that the whole family was joint can no longer arise. As observed by their Lordships of the Privy Council in the case of Palani Ammal v. Muthuvenkatachala Moniagar , a member of a joint family can separate himself from the other members of the joint family, and would on such separation be entitled to have a share in the property of the joint family ascertained and partitioned off for him but the remaining coparceners, without any special agreement between themselves, may continue to be coparceners and to enjoy as members of a joint family what may remain after such a partition of the joint family property is made or live separately from each other. If the statements of Hulas Singh and Srikishun Singh that they had separated four or five years earlier be taken to be correct, it would appear that at all events in the year 1914 or 1915 one branch of the family was separate, and that the ordinary presumption that the remaining branches of the family had continued jointness ceased to apply. The suits filed by the defendants-appellants on the mortgages executed by Raghunath Singh were filed in 1915 and 1916, and on those dates no jointness of the family could have been presumed.

5. We have however to ascertain what was the state of things when the mortgage of 15th January 1904, executed by Raghunath Singh in favour of Darbari Lal, and that of 9th May 1907 executed by him in favour of Shankar Lal, were executed. Much stress is laid on behalf of the defendants-appellants on the entries in the khewats in which the different members of the family were recorded as holding separate and distinct sharers and on certain dealings by the different members of the family with the ancestral property from as far back as 1891. The entries made in the revenue papers are by themselves inconclusive; for as pointed out in the case of Bhagwani Kunwar v. Mohan Singh , the definition of shares in revenue papers by itself afforded very slight indication of a separation in a Hindu family. Such entries are usually made in the revenue records by those responsible for their preparation to make the record definite and precise. The acquisition of some property in the name of one member of the family, and of other property in the name of another member, would similarly be inconclusive; but where there is a long series of dealings by different members of the family independently of each other, the same considerations would not be applicable. There is evidence in this case to show that since 1891 different members had been dealing with different parcels of the ancestral property to the extent of the shares entered in their names. On the 7th October 1891 a mortgage was effected by Raghunath Singh and Hulas Singh in favour of Mathura Prasad in which they described the property mortgaged as the property owned and possessed by them and recorded in their names (Ex. 2l). Srikishun Singh did not join in that mortgage. The making of such a mortgage jointly by two of the brothers was consistent with those two brothers having been joint at the time, as also the fact that a joint decree was subsequently obtained on foot of that mortgage by Mathura Prasad in 1897 (Ex. 19). But the fact that Srikishun Singh was not a party to the mortgage, or to the decree obtained on the foot of it, may be taken as some indication that the entire family was probably not at that time joint. It is significant that on 28th February 1898 certain property was purchased by Ram Narain Singh and Raghunath Singh from Mt. Ram Dei in respect of which mutation of names was effected solely in the name of the purchasers, and the subsequent dealings with that property showed that Raghunath Singh treated himself as owner of that property to the extent of the half share purchased by him and dealt with it as his own. In fact after the death of Raghunath Singh the name of Mt. Parbati was entered in the revenue papers in respect of that half share. On 15th January 1904 Raghunath Singh mortgaged his half-share of the property so purchased along with other properties, and particulars of that mortgage are given in the plaint subsequently filed by the mortgages against Mt, Parbati, the widow of Raghunath Singh. On 23rd July 1906 some other property was purchased by Hulas Singh from Bhupal Singh in respect of which the name of Hulas Singh alone was entered in the revenue papers. Raghunath Singh was admittedly alive at the time (Ex. 1). He subsequently mortgaged the share so purchased to Jwala Prasad on 21st August 1911, along with other property, without reference to the other members of the family (Ex. A). On 31st August 1911, two separate mortgages were executed by two different members of the family in favour of two different persons, and what is striking is that each purported to mortgage his own share as entered in the khewats. One of these mortgages was executed by Durga Singh in favour of Tota Ram, and the description of the mortgaged properties given tallied with the description of the properties entered in the name of the mortgagor in the khewats relating thereto. The other mortgage was made by Hulas Singh jointly with Tota Ram, a stranger in favour of Jwala Prasad and the properties mortgaged similarly corresponded with the properties entered in the name of Hulas Singh so far as the portion mortgaged by him was concerned. If the family had bean joint, there is no reason why Durga Singh and Hulas Singh should have taken separate loans from different persons and would not have joined in executing those mortgages on the same date. On 2nd November 1907 there was another mortgage executed by Hulas Singh in favour of Ajudhia Prasad, on the basis of which a decree was obtained by the latter against Hulas Singh and two other persons on 15th December 1913 (Ex. G). That mortgage comprised property which stood entered in the name of Hulas Singh.

6. On behalf of the plaintiffs reliance is placed on an application for partition made by Srikishun Singh, Durga Singh, Hulas Singh and Raghunath Singh jointly in 1907, but that application was made in a proceeding instituted by another cosharer for the partition of a village in which those persons were also cosharers and all that those persons prayed for in their application was that their shares should be found into separate or compact mahals. That position is consistent with the existence of separation and does not necessarily indicate that the persons who made that application formed members of a joint Hindu family. In fact one of the persons who was a party to the application was a stranger to the family, and considering that the application was made persons who were recorded cosharers, it is not difficult to understand why they were anxious to have a compact mahal for themselves. A reference has also been made to a decree obtained by Hulas Singh and certain other members of the family for their shares of the profits against a landlord in 1910. That decree had necessarily to be obtained by the persons who were recorded as cosharers, and the fact that such a decree was obtained was inconclusive on the question now at issue. The learned Counsel for the plaintiffs-respondents has also relied on an application made by Hulas Singh for his appointment as a lambardar in 1911. In that application Hulas Singh had stated that he was a cosharer in Mahal Srikishun Singh, that the other cosharers were satisfied with his lambardarship, and that he was a well-to-do man and would be punctual in payments. He had also mentioned in that petition that his family (khandan) was joint, but he had an obvious motive in suggesting at; the time that it was so; for many of the cosharers recorded in the khewat belonged to his family, and he must naturally have thought that if he stated that the family was joint it would support his statement that the other cosharer were satisfied with his lambardarship. In execution of the decree for arrears of profits obtained by Hulas Singh and his cosharers certain property was sold by auction, and it is noticeable that the purchase was made by Hulas Singh alone (Ex. 18). The steps taken by Sanwal Singh to get his name entered in the revenue papers, along with that of Hulas Singh in respect of his share, have already been referred to. In the statements then made by Hulas Singh and Sanwal Singh it was clearly admitted that they had been living separately from four or five years (Exs. D and E). But even before these statements wars made, Sanwal Singh had similarly stated in a suit filed by Darbari Lal and Shankar Lal, the present defendants-appellants, against Hulas Singh, Sanwal Singh and others on a mortgage said to have been executed by Hulas Singh, that he was separate from his father and that he had separated several years earlier (Ex. K). It may be argued that the object of Sanwal Singh in making that statement was to save himself from liability for the payment of the ex parts decree which Darbari Lal and Shankar Lal had obtained against him and his father. But the compromise filed in that case shows that Sanwal Singh eventually accepted a joint liability with his father for a large portion of the claim.

7. The family to which Raghunath Singh, Hulas Singh and Srikishun Singh belonged was a fairly large family comprising several members, and the ordinary presumption that a family is joint grows weaker as the relationship becomes more distant, or the branches multiply. In the present case Srikishun Singh had three sons, Jit Singh, Durga Singh and Nar Singh, each of whom had sons of his own. Hulas Singh had a son, Sanwal Singh, and he and his son Bachchu Singh are also plaintiffs in the suit. The account books of the family have not been produced, though Nar Singh, one of the plaintiffs, stated in his deposition that such account books existed. At one place in his statement he denied that any account was kept of the expenses incurred in connexion with the marriages of his sons or of the sons of any of the brothers, but at another place he admitted that when Durga Singh took a loan of Rs. 100 from Tota Ram, and executed a document mortgaging the profits of his share, the money so taken was entered in the joint account. Later on he further admitted that the amount of money received and paid and the income received ware all reduced to writing, and the account books showing the income and expenditure were with him. The production of these account books would have proved beyond the possibility of doubt the exact position of the family and the manner in which the income derived from the joint family property was credited or expenses incurred there form. The oral evidence is of little value. Taking into consideration the circumstances above sat forth with the evidence adduced as to the separate purchases made by the different members of the family, and the separate dealings by them with different parcels of the ancestral property held by them and entered in their names in the revenue papers, we have no reason to doubt that the family was separate at the time when the mortgages in question were made and when Raghunath Singh died, or when the suits, which resulted in the decrees sought to be impugned, were passed.

8. We are unable, therefore, to support the finding at which the learned Subordinate Judge has arrived, and we allow this appeal and dismiss the suit of the plaintiffs with costs here and hitherto including fees in this Court on the higher scale.

Walsh, J.

9. I entirely agree and merely propose to add one or two fundamental reasons why I think the learned Judge has taken an erroneous view of this case. He starts off from the presumption which ordinarily arises in favour of jointness. He adds to that what he describes as a large number of witnesses who proved that the brothers were joint, and he pays less attention than they deserve to the entries in the Revenue Records of the separate transactions entered into by members of this alleged joint family. Reviewing that aspect of the case I can only say that in my opinion, the presumption, strong as it always is and ought to be must in this case give way to the very weighty and admitted circumstances which seem to destroy it. Secondly, the verbal evidence on either side is of very little weight and on the plaintiffs' side is tainted by the attitude of Nur Singh, who in dealing with the admission of separation which had been made by Hulas Singh and his son obviously lacked the courage to deny it and attempted to gloss it over by a faint admission that there had been some temporary sort of separation arising from a personal quarrel, an explanation which cannot be accepted by anybody. He further attempted to vouch in favour of his view of jointness the existence of certain accounts in books which he carefully refrained from producing. Taken as a whole, the parol evidence on both sides amounts to little or nothing with the exception of these incidents in Nar Singh's evidence, which certainly militate against his case.

10. The case has been very ably and carefully argued by Mr. Malik, who has dwelt with great emphasis, not merely upon the entries in the khatas, which are suggestive enough, but upon the acts and deeds into which the separate members of this alleged joint family actually entered. No satisfactory explanation of this view of the case is to be found in the evidence, and it is not adequately dealt with by the learned Judge. When you add to it the admission of separation made by Sanwal Singh and his father Hulas Singh it largely depreciates, if it does not destroy, the value of the ordinary presumption, and if you add further the unsatisfactory explanation of this and the absence of any satisfactory one for the non-production of the books, if there are any, and the fact in itself, which is not to my mind immaterial, that the creditor eventually thought that he had strong reason to believe that he was dealing with a separated Hindu and his widow, otherwise the attempt to enforce his rights by an ex parts decree against the widow of one member of a joint Hindu family reads more like the act of a man out of his mind, it is no more than just one of those circumstances taken with all the others which lend weight to one side or other in the scale. I do not believe as a rule in consulting other cases except for the purpose of extracting some general principle, as to which question arises in this case, and on a question of fact one reported case is seldom of, the slightest assistance in India; but it does happen in this case that Mr. Malik to my mind has been rightly able to draw our attention to the Privy Council case of Net Ram Singh v. Tursa Kunwar (1913) 17 CWN 1085 where the Privy Council upheld a Bench of this High Court in which they had overruled the Subordinate Judge on very much similar grounds upon which Mr. Malik asks us to overrule the Subordinate Judge in this case. The facts of that case and of this case, if not absolutely similar, closely resemble one another, and the cases are in principle analogous. The absence from this case of the actual partition among the five brothers in one village mentioned in the judgment of the Privy Council is supplemented in the appeal before us by the admission made by Hulas Singh and Sanwal Singh of which there was nothing of a similar kind in the case cited. I can only say that case has influenced my mind in coming to the conclusion in this case that the documentary evidence is so strong as to be irresistible in the absence of anything really satisfactory which one can take hold of on the other side adequate on this question. I agree with the order passed.


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