1. The contest in this appeal is between two rival claimants to mortgagee rights under a deed dated 12th December 1913, executed by Chhadammi Lal, father of defendant 1, in favour of Sheo Adhar for a sum of Rs. 3,000. The position of the contending parties will be presently explained. Two suits were brought in the Court of the Subordinate Judge, Cawnpore, one by the present appellant, Suraj Kumar for enforcement of the aforesaid mortgage, and the other by the respondent, Mt. Chandra Kala, for the same purpose. The two suits were tried together. In the result a decree was passed in the suit brought by the respondent, Mt. Chandra Kala. The present appellant's suit was dismissed. The mortgagor has acquiesced in the decree passed against him. The present appeal was preferred by the appellant, Suraj Kumar and is directed solely against the respondent, Mt. Chandra Kala as regards her right to enforce the mortgage.
2. The following pedigree will explain the position of the parties inter se:
SADA NAND(died in 1918)|_______________________________| |Suraj Kumar Sheo Adhar(plaintiff-appellant) (died 8th September 1923)|_____________|Sheo Kumar = Mt. Chandra(died 25th September 1926) | Kala (defen-| dant-respon-| dent|Jagat Narain(died 27th September 1927)
3. It will be seen from the above pedigree that Sheo Adhar's branch has no male descendant left and that, on the death of Jagat Narain, the last surviving male descendant of his branch, his interests, whatever they might have been, devolved upon his mother, Chandra Kala, the defendant-respondent. The mortgage-deed in question was executed in favour of Sheo Adhar. The plaintiff-appellant's case, as set out in his plaint, is that he and Sheo Adhar were members of a joint Hindu family and that the mortgage in suit formed part of their joint family property, that after Sheo Adhar's death he and Sheo Kumar with his son, Jagat Narain, formed a joint Hindu family and that on the death of Jagat Narain, he is the sole surviving member of the family and therefore entitled to the mortgagee rights under the deed in question. As regards the defendant-respondent, Mt. Chandra Kala, he alleges that she is not entitled to anything, but maintenance, being the widow of a deceased member of the joint family.
4. The defendant, Mt. Chandra Kala, on the other hand, contends that the mortgage in suit belonged exclusively to Sheo Adhar, on whose death his interest devolved upon his son Sheo Kumar and, on the latter's death, on his son Jagat Narain, on whose death the mortgagee rights became vested in herself as the mother of Jagat Narain. It will thus appear that the principal question in the case is whether the mortgagee rights under the deed in suit belonged to a joint Hindu family consisting of Suraj Kumar and Sheo Adhar or to Sheo Adhar alone as his exclusive property. The defendant-respondent contested the plaintiff's claim on the ground that Sheo Adhar and Suraj Kumar were not members of a joint Hindu family and that, in any case, the mortgage in suit did not form part of the joint family property, assuming they had any.
5. The learned Subordinate Judge set down two main questions for decision : (1) whether the appellant, Suraj Kumar and Sheo Adhar together with his descendants, formed a joint Hindu family, and (2) whether the mortgagee rights in controversy belonged to such joint family. He found on the first question in favour of the plaintiff-appellant, holding that the joint family character of the family which existed from the time of Sada Nand, never disappeared. But on the second question he arrived at a definite finding that the sum advanced under the mortgage-deed belonged exclusively to Sheo Adhar and that the plaintiff-appellant had no interest therein. The learned advocate for the defendant-respondents not only supported the decree of the lower Court on the ground on which it proceeds, but also by challenging the finding as regards the undivided character of the family. The whole case was thus open before us, and we shall proceed to record our findings on the two questions.
6. We may briefly dispose of the question whether the appellant and Sheo Adhar together with his descendants formed a joint Hindu family. We are clearly of opinion that the finding arrived at by the learned Subordinate Judge is a good one. It is not disputed that Sada Nand, whose ancestral house was in Narain Khera in the Unao District, possessed a small zamindari property, which belonged to him and his brothers. It is equally undeniable that Sheo Adhar and Suraj Kumar on their births, acquired an interest in such property, so that Sada Nand and his sons formed a joint Hindu family possessing ancestral property. Sada Nand was employed with a wealthy family possessing zamindari and other property in the Cawnpore District. After his death Sheo Adhar was appointed in his place. Later on Suraj Kumar was also employed in the same estate. Though the exigencies of their employments required that Suraj Kumar and Sheo Adhar should reside at different places, the ancestral property belonging to them was never divided. There is no allegation that any of them ever expressed an unequivocal intention to separate. It is in evidence that on ceremonial occasions they conducted themselves as if they were members of a joint Hindu family. In the absence of evidence showing an intention on the part of one or the other of the members to separate and the constitution of the family being consistent with the joint character thereof, the finding of the learned Subordinate Judge is, in our opinion, unassailable. Accordingly we uphold it.
7. The second question, which is of greater importance, has been hotly debated before us. A short history of the family and of the properties acquired by Sheo Adhar will materially help in appreciating the force of the circumstances relied on by one or the other of the parties. As already stated, Sada Nand was employed in the estate of Tewariji in the Cawnpore District. He was in receipt of a salary of Rs. 136 a year. It is common ground that, on his death in 1880, Sheo Adhar was appointed in his place on the same salary. He was however promoted to the rank of sarbarkar or manager of the estate in 1900 on a salary of Rs. 50 per mensem and Suraj Kumar was appointed in the place left vacant by Sheo Adhar's promotion. Suraj Kumar was in receipt of a salary of Rs. 160 a year. During the lifetime of Sada Nand no acquisition appears to have been made by any member of the family. Though the plaintiff has alleged that Sada Nand had some money-lending business, there is no evidence in support of that allegation. The plaintiff himself has no personal knowledge on his own showing. We do not think Sada Nand had any money-lending business, nor is there evidence to prove that Sada Nand left any cash. So far as the evidence indicates, the only property which existed in the family at the time of Sada Nand's death was his ancestral zamindari property in Narainkhera in the Unao District. It is in the evidence of the plaintiff himself that the net profits of this property did not exceed Rs. 50, which was shared by at least one collateral branch.
8. So long as Sheo Adhar occupied the position of his father as a 'karinda' in receipt of a salary of Rs. 136 a year, he does not appear to have made any investment or acquired any immovable property. The first acquisition, which he appears to have made, was on 19th March 1907, when he purchased a share in village Amritpur for Rs. 2,500, that is to say, he acquired a share in Amritpur seven years after his appointment as 'sarbarakar' or manager. On 4th March 1909, he lent Rs. 425 to a lady, named Munnan on the security of some zamindari property in village Selhupur. This mortgage was with possession. On 28th June 1900, he advanced two sums of Rs. 2,000, each to two members of the same family, who executed mortgage-deeds of that date. The next day, on 29th June 1909, he advanced another sum of Rs. 2,000 to another member of the same family. In all the three mortgage-deeds shares in village Newazi Khera were hypothecated. These mortgages probably merged in a sale-deed which however is not on the record. The khewat shows that Sheo Adhar had purchased a share in Newazi Khera.
9. The next acquisition was made in 1917, under a mortgage-deed, dated 14th July 1917, executed by one Abul Hasan in favour of Sheo Adhar and Suraj Kumar, the plaintiff-appellant, for a sum of Rs. 8,500. It will be seen that this is the first occasion when any acquisition was made in the name of both. As a matter of fact, this was the only occasion on which any property was acquired in the joint names of Sheo Adhar and Sheo Kumar. Mutation of names was effected in favour of Sheo Adhar in respect of all the property acquired under the deeds above referred to. There were numerous other deeds for smaller amounts standing in the name of Sheo Adhar. They were executed during the period ranging from 1916 to 1921. It is not necessary to give a detailed account of these transactions.
10. Sometime before 1918 a partnership business was started under the name and style 'Parmatmadin Sheo Kumar.' The exact date on which this firm commenced its business does not appear from the record; but it appears from the plaint of a suit instituted in 1921 that certain transactions to which the firm was a party had taken place as far back as 1918. That firm incurred a liability to pay Rs. 27,000 to a firm named Gopal Das-Har Narain of Bombay. The latter instituted a suit on the original side of the Bombay High Court on 18th July 1921, and obtained a decree on 3rd October 1922, for Rs. 32,000 odd. Sheo Adhar died in 1923. Execution of the decree was taken out in 1924 and satisfaction obtained partly by sale of Sheo Kumar's property and partly by sale of that of the other partner Parmatmadin.
11. After the death of Sheo Adhar, applications for mutation of names were made jointly by Sheo Kumar and the appellant Suraj Kumar in respect of Amritpur and Newazi Khera properties. We have already referred to the mortgage-deed in respect of Newazi Khera and as already mentioned a certain share in that village was subsequently sold to Sheo Adhar, who obtained mutation of names. After the death of Sheo Adhar, mutation of names in respect of Newazi Khera was also applied for by Sheo Kumar and Suraj Kumar. All the applications for mutation of names stated that the two applicants were the heirs of the deceased Sheo Adhar; mutation of names was accordingly ordered in terms of the applications, which are strongly relied on by the appellant as showing that the shares purchased by Sheo Adhar were, in fact, joint family property in which the plaintiff-appellant had an interest. It also appears that in appeal pending in this Court Sheo Adhar was a respondent and that Sheo Kumar made an application praying for substitution of his own name and that of Suraj Kumar as the legal representatives of his father, Sheo Adhar.
12. Besides the documents referred to above, there is a good deal of oral evidence produced by both parties. We may say at once that the oral evidence is of no value. Each set of the witnesses states in general terms either that the properties acquired by Sheo Adhar were joint family ones or that they exclusively belonged to Sheo Adhar. The question involved in this appeal, has therefore to be determined on the documentary evidence above referred to. We have referred to all the documents that throw any light on the question whether the mortgagee rights in dispute belonged to Sheo Adhar alone or to the joint family of which the plaintiff was also one of the members.
13. The case, as put forward on behalf of the plaintiff-appellant, was this : It is said that Sada Nand left some cash, that after his death Sheo Adhar and Suraj Kumar threw their earning in a common purse and had money lending business on behalf of the family, that all the properties acquired in the name of Sheo Adhar from time to time were, in fact, acquired with funds belonging to the joint family and that if any property was acquired with funds initially proceeding from Sheo Adhar, it was treated by him as joint family property, he having abandoned his separate interests therein. The conduct of Sheo Kumar in joining the plaintiff in the application for mutation of names in respect of Amritpur property and Newazi Khera and in applying for substitution of names in the appeal pending in this Court is relied on by the plaintiff-appellant as showing that the properties acquired in the name of Sheo Adhar alone were, in fact, joint family properties. The application for substitution was accompanied by an affidavit in which it was clearly stated that Sheo Kumar and Suraj Kumar were members of a joint family with Sheo Adhar.
14. It cannot be disputed that there is no documentary evidence which bears directly on the question whether the mortgagee rights under the deed in suit belonged to the joint family, as alleged by the plaintiff. It is argued on his behalf that Sheo Adhar treated all properties standing in his own name as joint family properties and that the conduct of Sheo Kumar in associating with the plaintiff in applying for mutation of names affords evidence of the character of all properties acquired in the name of Sheo Kumar. On the other hand, it is explained on behalf of the defendant that the applications for mutation of names and the application for substitution of names in which Suraj Kumar's right was recognized, were made for an ulterior object. It is said that Sheo Kumar apprehended that his property would be attached in execution of the decree passed by the Bombay High Court and that therefore he attempted to make out that all the properties left by his father were joint family properties belonging to himself and his uncle. Whether this explanation holds good will be discussed subsequently. We desire to stress at this place that in any case, it would not be permissible to generalise from such admissions as may be implied in the applications for mutation of names and the application for substitution of names, that all the properties acquired by Sheo Adhar including the mortgage in question were joint family properties, assuming that such applications can be construed as containing an admission that the properties to which they refer are joint family properties.
15. The rule of Hindu law which is applicable to such cases is well settled. I There is a presumption that a Hindu family is joint and undivided. There is however no presumption that a joint family is possessed of joint family property or that a particular property is joint family property, having been acquired with the aid of family funds. But where it is proved or admitted that a joint family possessed such nucleus as could lead to the acquisition in question, it may be presumed that the later acquired property belongs to the joint family, having been acquired, with the aid of the nucleus. Mere existence of a nucleus however small or insignificant is not enough. It should be shown to be of such a character as could reasonably be expected to lead to the acquisition of the property alleged to be a part of the joint family property. In the case before us, the ancestral property left by Sadanand was very small. The plaintiff admits that its income was spent on the maintenance of Mt. Maharani, the widow of a collateral. The profits of the entire property amounted to Rs. 50, a year. The share of Sadanand's Branch was Rs. 25, a year. It is obvious that the existence of nucleus of that character by itself could not have appreciably assisted in the acquisition of any property standing in the name of Sheo Adhar. The plaintiff has attempted to show that Sadanand had left some money, of which the amount is not known to him, that he himself used to hand over all his earnings to Sheo Adhar who became the head of the family after Sadanand's death and that Sheo Adhar himself threw his own earnings in the joint purse. We have already said that there is no reliable evidence that Sadanand left any money, nor are we prepared to accept the uncorroborated and improbable statement of the plaintiff that he handed over all his earnings to Sheo Adhar. His salary was Rs. 160, a year. He lived at a village named Shahjahanpur; his wife and mother also resided with him. He does not say that he had any other emoluments attached to his post or that he had any perquisites.
16. The learned advocate for the appellant has appealed to our knowledge and experience and has asked us to assume that the plaintiff must have earned a good deal more than his bare salary. While it may be notorious that karindas of zamindars supplement their salaries by improper means we cannot act on any assumption of this character in arriving at a judicial finding, particularly when the plaintiff himself, who gave his evidence at considerable length, has not alleged that he earned anything more than his salary. We think that there is no foundation for the suggestion that there was any common purse in which the earnings of the plaintiff and Sheo Adhar were thrown. The plaintiff's salary was hardly enough for the maintenance of himself and his family. We have already mentioned that Sadanand occupied the position which the plaintiff subsequently did. We have also mentioned that there is no trace in the record of Sadanand having made any investments or acquired any property. It is also clear from the evidence that so long as Sheo Adhar worked as a karinda in place of his father, he made no investments. The properties acquired by him were all acquired under deeds executed after 1907. We think it reasonable to infer that the plaintiff who occupied the same position as his father did and which Sheo Adhar occupied before he became the sarbarakar could not have saved anything to contribute towards what he calls 'joint family funds.'
17. It is argued on behalf of the plaintiff-appellant that the conduct of Sheo Kumar after the death of Sheo Adhar shows that some properties had been so acquired as to become joint family properties. Reliance is placed on the applications for mutation of names to which we have already referred. The applications taken at their face value contain the statement that Sheo Adhar was the owner of the property to which they refer and that after his death, such properties were inherited by his son Sheo Kumar and his half brother Suraj Kumar. This is palpably incorrect if Sheo Adhar was the owner of the property referred to in the applications for mutation of names. His half-brother could not be a co-heir with his son. It may be argued that this is only an inartistic way of saying that the properties belonged to a joint family consisting of Sheo Adhar and the plaintiff and that on the former's death his interests survived to his son and brother. It may be, that if Sheo Adhar is otherwise proved to have been in possession of the properties as head of a joint family and not in his individual capacity, the applications are susceptible of that interpretation. In the absence of such proof little weight can be attached to the applications.
18. Assuming that the applications contain such admission as is relied on by the plaintiff-appellant, it can be explained and rebutted. The only other person besides the plaintiff who could have revealed the circumstances in which they were made was Sheo Kumar who is not alive. But if it appears, as we think it does, that before the shares in Amritpur and Newazi Khera were acquired, the family way not possessed of joint funds or of such nucleus as could have led to the acquisition of those shares, the admission said to be contained in the applications for mutation of names is of very little weight.
19. The learned advocate for the respondents has drawn our attention to the contents of the affidavit which accompanied the application for substitution of names made in this Court. It is pointed -out that ordinarily it is the duty of the appellant to make an application for substitution of names ire the place of a deceased respondent. In this case it appears that Sheo Kumar made the application and made it a point to state in the affidavit that his deceased father together with his descendants and Suraj Kumar were members of a joint Hindu family and that he himself and Suraj Kumar were the surviving members thereof. Taken literally the admission proves no more than what has been found in the present case, viz., they were all members of a joint family. But the appellant relies on implications of that statement and would have us infer that the subject-matter of the appeal pending in this Court was joint family property. It should be borne in mind that men like Sheo Kumar cannot be credited with knowledge of the niceties of Hindu-law. He might well have thought, unaided by legal advice, that all acquisitions made by Sheo Adhar became joint family property. The learned Subordinate Judge considered the explanation offered on behalf of the respondents that the admissions of Sheo Kumar were due to a desire on his part to save the property from attachment in execution of the decree passed by the Bombay High Court to be at least plausible, though he was not prepared to accept it so far as to warrant a definite finding that the admission was in fact dictated by that desire. We agree with him in that view. Taking into consideration the total absence of evidence showing such nucleus as could have led to the acquisition of the properties standing in the name of Sheo Adhar and the possibility that the admissions were made as suggested on behalf of the respondents or through, misconception of the legal rights of Sheo Adhar and the plaintiff, we are of opinion that no weight should be attached to the admission, assuming that it amounts to an admission of the character given to it by the appellant.
20. The same considerations apply to a suit brought by Sheo Kumar and Suraj Kumar in 1926, on foot of a hundi in favour of Sheo Adhar. Similarly, a suit was instituted in 1929 by Suraj Kumar and Chandra Kala, the parties to this appeal. The plaint of that suit is relied on by both parties. The appellant points to the fact that the respondents considered him to be one of the persons entitled to the money due under the hundi. The respondents on the other hand lay stress on the fact that if the money be considered to belong to joint Hindi family, she could not have had any interest in it and the plaintiff would not have joined her in instituting the suit. We are of opinion that a document of this character is wholly inconclusive and no weight can be attached to it as a piece of evidence.
21. Taking into consideration all the evidence, oral and documentary, and inference derivable from the circumstances of the case, we are of opinion that the learned Subordinate Judge arrived at a correct finding in holding that the mortgagee rights under the deed in question belonged to Sheo Adhar alone and that the plaintiff-appellant had no interest in it. This appeal fails and is dismissed with costs.