1. This is a plaintiffs' appeal and arises out of a suit brought by Ram Narain and his son Lachhmi Narain for a declaration that they are-the owners in possession of the property specified at the foot of the plaint and that Mt. Makhna, defendant-respondent, who is the widow of Deo Narain, the own brother of Ram Narain, had no right or title to the same.
2. The cardinal question for decision in the case was whether Deo Narain was joint with or separate from his brother Ram Narain on the date of his death in the year 1927. If Deo Narain died as a separated Hindu, as held by the Court below, Mt. Makhna became entitled to the properties owned by him by right of inheritance and the plaintiffs had no right to the same. There were some disputed questions of fact in the Court below, but the findings of the Court below on those points have not been assailed, and the whole controversy in this appeal has hovered over the question as to what was the legal effect on the status of Ram Narain and Deo Narain of a partition suit filed by two other brothers of Ram Narain against Ram Narain and Deo Narain in the year 1923, and of an application for partition of Deo Narain's share filed by Mt. Makhna during the pendency of that partition suit. The following pedigree shows the relationship of the parties to the partition suit and is explanatory of the facts hereinafter mentioned:
_______________________________________________________| | | | |Ram Das Ram Narain Deo Narain Parsotam Raghunandan| =Mt. Makhna | =Mt. SampatiLachmi Narain, Minor | Ganesh, minor |Mt. Shaman. ||_______________________|__________________| |Mt. Mantoria Mansuria.
3. Rameshar and his five sons were admittedly members of a joint Hindu family governed by the Mitakshara school of Hindu law. The family was in affluent circumstances and owned moveable and immovable properties of considerable value. Both Rameshar and Raghunandan died while the family was joint and the remaining four sons of Rameshar became owners of the entire family property by right of survivorship. In the year 1923, Ram Das and Parsotam filed a suit for partition and separate possession of their one-half share in immovable properties from the half share of Ram Narain and Deo Narain who were impleaded as defendants, to the suit. Mt. Sampati, the widow, and Mantoria and Mansuria, the daughters of Raghunandan, were also arrayed, as defendants on the allegation that they were entitled to maintenance and to the marriage expenses of the two daughters from the family property, but we are not concerned with them in the present appeal. Deo Narain was of unsound mind and the plaintiffs proposed that Ram Narain should be appointed his guardian for the suit. Ram Narain refused to act as such on the ground that his interests were adverse to those of Deo Narain and then Mt. Makhna was appointed guardian ad litem of Deo Narain and acted as such throughout that litigation. In their plaint the plaintiffs of the partition suit alleged that they (plaintiffs) had separated from Ram Narain and Deo Narain in food and residence in or about the year 1920, and that the household properties and cash were divided at that I time, and prayed for the partition of only immovable properties. The suit was contested both by Ram Narain and Deo Narain. They admitted that the plaintiffs had separated in mess and residence and did not object to partition of the family properties, but denied that any partition of the household articles and cash took place as alleged by the plaintiffs and contended that Parsotam, one of the plaintiffs, was in the charge of the money lending business, etc., and, as such, the plaintiffs were liable to render accounts of the family ornaments and assets of the shop and the outstandings, etc., from the date they separated in mess and residence, viz., from the year 1920. The Court accepted the contention of the defendants and ordered the plaintiffs to give an account of the movables, cash and the income and expenses for three years before the date of the partition suit. The plaintiffs however did not render accounts and the defendants were then ordered to file an account of the household properties, cash and outstanding debts in possession of the plaintiffs. The Court accepted the account submitted by the defendants and held that they (the defendants) were entitled to a sum of Rs. 98,000 odd from the plaintiffs and passed a preliminary decree on 23rd April 1924, in the following terms:
It is decreed and ordered that the accounts of the defendants are correct. The objection of the plaintiffs be disallowed. The Amin do partition the immovable properties specified in the plaint. He do divide them into two shares and report by 14th May 1924 as to what share can be given to the plaintiffs.
4. A Commissioner was appointed by the Court to prepare two lots of the house properties, but before the lots were prepared, Mt. Makhna, as guardian of Deo Narain, presented a petition on 3rd May 1924, praying that Deo Narain's share in the family property be also separated. She alleged in the petition that Deo Narain's share was admittedly 1-4th and that there was 'an apprehension of loss in future if the said share is allowed to remain joint' (the application is printed at p. 117 of the record). The plaintiffs objected to the partition of Deo Narain's share on the ground that Deo Narain was living jointly with Ram Narain and alleged that Mt. Makhna had presented the petition in collusion with Suraj Prasad who was a pairokar on behalf of the defendants. Ram Narain also opposed the application mainly on the ground that, as the preliminary decree did not direct the partition of the shares of defendants inter se, the Court had no jurisdiction to partition and separate Deo Narain's share from his share. He alleged that as Deo Narain was insane it was essential for safeguarding his rights that his share should be kept joint with his share, and maintained that Mt. Makhna as guardian ad litem of Deo Narain was not entitled to apply for partition of Deo Narain's share (vide p. 121 of the record). Mt. Makhna filed a replication on 12th July 1924 (p. 123 of the record). She alleged that Ram Narain opposed her petition dated 3rd May 1924 out of dishonest motives and with a view to misappropriate the profits of Deo Narain's share and contended that the right of a defendant to a partition suit to have his share also partitioned subsists till the date of the passing of the final decree. She asserted that as the guardian of Deo Narain she was fully competent to apply for the partition of Deo Narain's share. The Court by its order dated 16th August 1924 (p. 129 of the record) overruled the objections filed by the plaintiffs and Ram Narain and granted the petition for the partition of Deo Narain's share. It held that it is the right of every defendant in a partition suit to have his own share partitioned and given to him and as such Mt. Makhna was entitled to apply for partition of Deo Narain's share, though the preliminary decree did not direct the partition of his share. It observed that it was to the interest of Deo Narain that his share should be partitioned, and, accordingly, ordered that Deo Narain's 1-4th share in the family properties be also partitioned, and a final decree was drawn up in accordance with the order.
5. Ram Narain and Lachhmi Narain filed an appeal in this Court against the final decree passed by the Subordinate Judge. Deo Narain died during the pendency of the appeal and, on an application being made by the appellants, Mt. Makhna, the widow of Deo Narain, and Mt. Shaman, his daughter, were brought upon the record in the array of the respondents as the legal representatives of Deo Narain. TMs Court held that, as the preliminary decree dated 23rd April 1924, had not been appealed against and had become final, the Subordinate Judge had not the jurisdiction or the legal competency to go behind that decree and to direct the partition of the share of Deo Narain from that of Ram Narain and, accordingly, modified the final decree and directed that 'the shares of Ram Narain, Lachhmi Narain and Mt. Makhna as the representatives of Deo Narain be held in common' (the judgment of this Court is printed at p. 185 of the record).
6. After the decision of this Court Makhna applied for the entry of her name in the revenue papers in place of the name of Deo Narain and her application was granted by the Revenue Court on 1st September 1928. The suit giving rise to the present appeal was then filed by Ram Narain and Lachhmi Narain on the allegation that Deo Narain was joint with them on the date of his death and they succeeded by right of survivorship to the entire property that was allotted by the final decree to Ram Narain and Deo Narain and that Mt. Makhna had no right to the same. The plaintiffs alleged that notwithstanding the decree in the partition suit they and Deo Narain continued to live as members of a joint Hindu family and that the application dated 3rd May 1924, had no effect whatever on the jointness between them as that application was ultimately dismissed by this Court.
7. Mt. Makhna contested the suit. She contended firstly that the institution of the partition suit by two of the sons of Rameshar had the effect of causing a disruption of the entire joint family and that Deo Narain must be deemed to have become separate from all his brothers from the date of the institution of that suit; and secondly, that as the application dated 3rd May 1924, was filed by her with the consent and permission of Deo Narain and was granted by the trial Court and the share of Deo Narain was separated, Deo Narain was the exclusive owner of the share allotted to him and she succeeded to the same by right of inheritance. She denied the allegation of the plaintiffs that Deo Narain was of unsound mind, but the Court below decided the point against her, and the finding on that point has not been assailed on her behalf in the present appeal. The plaintiffs alleged that Ram Das and Parsotam Das had separated in mess and residence from Ram Narain and Deo Narain about the year 1920 and that Ram Narain and Deo Narain continued to live jointly till the latter died in the year 1927. The case of Mt. Makhna, on the other hand, was that all the four brothers separated with each other in mess and residence in 1920 and that Deo Narain continued to live as a separated Hindu till his death in the year 1927. This point has also been decided against Mt. Makhna and no exception has been taken to the finding of the Court below on the point.
8. On the main question in the case the Court below held that the effect of the separation of Ram Das and Parsotam Das was to put an end to the presumption of jointness, and, as such, the burden of proving that Ram Narain and Deo Narain continued to be joint was on the plaintiff-appellant sand this burden had not been discharged. In this connexion the Court below emphasized the fact that the Subordinate Judge, who allowed the application dated 3rd May 1924, had held that the partition of Deo Narain's share was to his benefit and that this finding of the Subordinate Judge was approved on appeal by this Court, though this Court annulled the partition of Deo Narain's share effected under the orders of the Subordinate Judge on account of the technical difficulty that the partition of his share was not ordered by the preliminary decree. It observed that though the proposition, that a definite and unequivocal indication of his intention by a member of a joint Hindu family to separate himself from the other members of the family and to enjoy his share in severalty causes the severance of the status of jointness, has no application to the case of a minor or a lunatic, and therefore the application dated 3rd May 1924, filed by Mt. Makhna could not by itself cause the separation of Deo Narain, but held that as that application had the approval of the trial Court, it was sufficient to put an end to the joint status and that Deo Narain became separate from Ram Narain from the date that the application was allowed by the trial Court. The Judge further noticed various facts in the course of his judgment that in his opinion demonstrated that there was not only a formal severance, but a severance in fact between Deo Narain and Ram Narain, and, as a result of his findings, held that Deo Narain was a separated Hindu on the date of his death and accordingly dismissed the suit. The plaintiffs have come up in appeal to this Court and it is argued on their behalf that the conclusion arrived at by the Subordinate Judge is erroneous and runs counter to the law on the subject as interpreted by judicial decisions. It is admitted on all hands that the decree in the partition suit effected the separation of Ram Das and Parsotam from the joint family and the main question for consideration in the appeal is whether it left Ram Narain and Deo Narain united inter se. The plaintiffs contend that, as in consequence of the decision of this Court the share of Deo Narain was not separated from the share of Ram Narain, they must be presumed to have remained joint, and the separation of their two brothers had not the effect of causing a severance of their joint status. On the other hand, it is urged on behalf of the defendant-respondent that the separation of Ram Das and Parsotam caused a disruption of the entire family and each member of the family must be deemed to have become separate from the others.
9. The general principle is that every family governed by the Mitakshara school of law is presumed to be joint unless the contrary is proved, but if one member of the family separates from the others this presumption is destroyed and there is no presumption that the separation was partial and was confined only to the member separating himself and that the remaining members of the family remained united. It is however open to the remaining members to continue to remain, united or to reunite, but this can be only by virtue of an express or implied agreement between them and, such an agreement, if pleaded, must be proved like any other fact. But in the absence of proof of such an agreement the presumption is that on the separation of one co-parcener the remaining co-parceners ceased to be joint. There is however in such a case no presumption that there was a separation between one co-parcener and his descendants.
10. The leading case on the subject is the decision of their Lordships of the Privy Council in Balabux v. Rukhmabai (1930) 30 Cal 725. It was held in that case that when one co-parcener separates from the others, there is no presumption that the remaining co-parceners remained united, and where it is necessary, in order to ascertain the share of the outgoing coparcener, to fix the shares which the others are, or would be entitled to, the separation of one may be said to be the virtual separation of all. And an agreement amongst the remaining, co-parceners to remain united or to reunite must be proved like any other fact. To the same effect is the decision of their Lordships in Jatti v. Banwari lal 1923 P.C. 136. The question was again considered and decided by their Lordships in Palani Ammal v. Muthuvenkatachala Moniagar 1925 P.C. 49, and great reliance has been placed on behalf of the appellants on this decision. It was observed by their Lordships in that case that it is open to the co-parceners in, a joint family to separate by agreement amongst themselves:
But the mere fact that the shares of the coparceners have been ascertained does not by itself necessarily lead to an inference that the family had separated. There may be reasons-other than a contemplated immediate separation for ascertaining what the shares of the co-parceners on a separation would be. It is also now beyond doubt that a member of such a joint family can separate himself from the other members of the joint family and is, on separation, entitled to have his share in the property of the joint family ascertained and partitioned oil for him, and that the remaining co-parceners, without any special agreement amongst themselves, may continue to be co-parceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the remaining members continued, to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous co-parceners had separated from them. It is also quite clear that if a joint Hindu family separates, the family or any members of it may agree to re-unite as a joint Hindu family, but such, a reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare-occurrence and when it happens it must be strictly proved as any other disputed fact is proved.
11. Their Lordships further held that:
In a suit for partition which proceeds to a decree which was made, the decree for a partition is the evidence to show whether the separation was only a separation of the plaintiff from his co-parceners or was a separation of all the brothers of the joint family from each other.
12. It is contended on behalf of the appellants that this decision is an authority for the proposition that on the separation of one member of the family the remaining members may without 'special agreement' continue to live as members of a joint family and it is urged that, as by the final decree in the partition suit the shares of Ram Narain and Deo Narain were not partitioned and were kept in one lot, Ram Narain and Deo Narain must be presumed to have continued, to remain joint. It cannot be disputed that it is open to the non-separating members to remain joint without an express agreement to that effect, and that their intention to remain joint or to re-unite may be inferred from the way in which their family business was carried on or from other conduct indicating an intention to remain united, notwithstanding the separation of some of the co-parceners. In other words, where proof of an express agreement to remain joint or to re-unite is wanting, such an agreement may be implied from the conduct of the non-separating coparceners, if the conduct points to the conclusion that, notwithstanding the separation of the outgoing co-parcener they intended to remain joint. But in the absence of proof of an express or an implied agreement to that effect, the presumption is that each co-parcener separated from the other. The observation of their Lordships that the decree in a partition suit is the evidence to show whether only the plaintiff in the suit separated from his co-parceners or there was a separation of all the members of the joint family from each other does not militate against the propositions noted above. If by the decree the share of each co-parcener is partitioned, the decree furnishes cogent evidence of separation of all the members from each other, and, in such case, a heavy burden lies on the person who pleads an agreement among some of the co-parceners to re-unite. It is to be observed that there is distinction between an agreement to continue to remain joint and an agreement to re-unite. The former predicates the continuance of jointness throughout, while the latter can only come into existence after there has been a partition between the co-parceners agreeing to re-unite. If by a partition decree the share of each co-parcener is separated, there can be no question of an agreement to remain joint as jointness is put an end to by the decree and in such case it is only by an agreement to re-unite that some of the co-parceners can again become members of a joint Hindu family.
13. It is true that in consequence of the decision of this Court the share of Deo Narain was not separated from the share of Ram Narain by the final decree and the shares of both remained in one lot. Nevertheless the partition of the shares of Ram Das and Raghunandan put an end to the presumption of jointness between Ram Narain and Deo Narain and the plaintiffs can only succeed in the present litigation either on proof of the fact that Ram Narain and Deo Narain continued to live joint or re-united with each other, and this can only be done by proving either an express or an implied agreement between them to that effect. The plaintiffs however are here faced with an insurmountable difficulty. Deo Narain was of unsound mind and was therefore incapable of entering into an express agreement to re-unite or to continue to remain joint with Ram Narain, and, as he died before the final decision of the partition suit, there can be no question of an agreement to that effect being implied by his conduct. An agreement to remain joint or to reunite can only be inferred by long course of conduct clearly exhibiting an intention not to become separate, and in the case before us, there was no time to indicate such an intention as Deo Narain died before the termination of the partition suit.
14. That the decision in Palani Ammal v. Muthuvenkatachala Moniagar 1925 P.C. 49, does not in any way introduce a change in the law as laid down in Balabux v. Rukhmabai (1903) 30 Cal 725, is manifest from subsequent pronouncements of their Lordships of the Privy Council. In Jag Prasad Rai v. Singari 1925 P.C. 93, it was held by their Lordships that when it is proved that there was separation of a joint Hindu family, it is for those who allege a reunion to prove it like any other fact, and the facts that after the separation certain members of the family lived in one and the same house, carried on business as partners and jointly paid Government revenue, are not sufficient to prove reunion. To the same effect are the decisions in Bal Krishna v. Ram Krishna 1931 P.C. 154 and Babu v. Official Assignee Madras 1934 P.C. 138. It was held in these cases that after one member of a joint family has separated, there is no presumption that the other members remained joint, and whether they have done so is a question of fact which must be proved like any other fact.
15. For the reasons given we hold that the plaintiffs in the present case did not discharge the burden that undoubtedly lay on them, and, that the finding of the Court below that neither an express nor an implied agreement between the plaintiffs and Deo Narain to remain joint or to re-unite was proved, is correct.
16. Apart from this, in our judgment the application dated 3rd May 1924, filed by Makhna, was in the circumstances of the present case, sufficient to bring about separation between Ram Narain and Deo Narain, even if they be presumed to have continued to be joint till the date on which the application was filed. It is settled law that, the presumption of jointness, that holds good in the case of a family governed by the Mitakshara school of law, can be displaced by slight evidence pointing to the conclusion that the severance of the status of jointness was effected, either by an agreement amongst all the adult members of the family, or by a definite and unequivocal indication of his intention by even one adult member of the family to separate himself from the family and enjoy his share in severalty. In the latter case it is open to the member indicating his intention to separate to put an end to jointness at his sweet will, even if the other members of the family do not agree to separation. Separation means the severance of the status of jointness and it is therefore a matter of individual volition. Whether there has been a clear, definite and unambiguous indication of an intention to separate by a member of a joint family is a question of fact, and the answer to that question must depend on the facts and circumstances of each case. The intention to separate may be expressed in different ways either by explicit declaration or by conduct. One of the recognized modes in which such an intention may be expressed is either by serving a notice on the other co-parceners or by instituting a suit for partition, and in such cases the severance of the joint status is presumed from the date of the notice or from the date of the suit, vide Suraj Narain v. Iqbal Narain (1913) 35 All 80, Girija Bai v. Sadashiv Dhundiraj 1916 P.C. 104, Lalita Prasad v. Sri Mahadeoji Birajman Temple 1920 All 116, Ramlinga Annavi v. Narayan Annavi 1922 P.C. 201 and Bal Krishna v. Ram Krishna 1931 P.C. 154. This is the general law, but it is not applicable in the case of persons who are under a legal disability for the simple reason that such persons are incompetent to give expression to an intention to separate. It was held by a Full Bench of this Court in Lalta Prasad v. Sri Mahadeoji Birajman Temple 1920 All 116, that the institution of a suit by a minor member through his next friend for partition of joint family property has not the same effect as the institution of a similar suit by an adult member of the family, that is to say, the mere institution of the suit on behalf of a minor member does not effect a separation of the family, but separation only takes place when the suit is decreed. It was observed in that case that it would 'open up great dangers' to hold that it is open to a next friend or a guardian of a minor to bring about an immediate alteration of the status in a family, that might otherwise be quite united, simply by the institution of a suit on behalf of the minor for partition:
Because a minor cannot demand as of right a separation; it is only granted in the discretion of the Court when, in the circumstances, the action appears to be for the benefit of the minor.
17. A person of unsound mind in this respect stands on the same footing as a minor, and it may therefore be assumed that the mere presentation of the petition dated 3rd May 1924, had not the effect of bringing about separation between Ram Narain and Deo Narain, if they were joint up to that date. But as observed above, the Court held that, as the separation of Deo Narain's share was to his benefit, the application ought to be allowed, and accordingly ordered the partition of Deo Narain's share as well. A separate lot for Deo Narain was prepared and was incorporated in the final decree passed by the trial Court. This Court no doubt allowed the appeal filed by Ram Narain and Lachhmi Narain against the final decree, but there is nothing in the judgment of this Court to indicate that it held that Ram Narain and Deo Narain were joint with each, other. On the other hand the Bench that decided the appeal observed that
The fact of varying the decree of the Court below will not in any way prejudice the right of Mt. Makhna to institute a suit for partition of the share of Deo Narain from that of Ram Narain in the family property.
18. The only ground on which the appeal was allowed was that there was no direction contained in the preliminary decree for the separation of Deo Narain's share, but the finding of the Subordinate Judge that Mt. Makhna was justified in making an application for the separation of the share of Deo Narain was accepted by this Court, and the learned Judges observed that
We are of opinion that there was considerable justification on the part of Mt. Makhna in applying to the Court below for the partition of the share of Deo Narain with a view to safeguard his interests.
19. The following quotation from the judgment further demonstrates that this Court was of the opinion that Deo Narain was not joint with Ram Narain. The learned Judges observed that:
We leave Ram Narain and Mt. Makhna to have their rights adjusted by means of a separate suit, if they so choose. In the meantime we are of opinion that the portion of the property which has not been allotted to the plaintiffs should be considered for the purpose of the present suit to be the property held in common.
20. The fact therefore remains that the guardian ad litem of Deo Narain did clearly express an intention by means of an application to have the share of Deo Narain separated from the share of Ram Narain and the application had the approval both of the Court below and of this Court, and in our judgment this had the legal effect of bringing about separation between Ram Narain and Deo Narain, even if they were joint up to the time that the petition was filed in Court. A member of a joint, family who is a minor or of unsound mind is incapable of giving expression to an effective intention to separate, but such intention can be expressed by his guardian and has the legal effect of bringing about disruption of the joint family, provided the Court is of the opinion that it is to the benefit of the minor ox the person of unsound mind to separate. Once the Court has recorded a finding to that effect the separation follows as a matter of law and is not dependent on the fact of the share of the minor or of the person of unsound mind being actually separated by metes and bounds. We therefore hold that the petition dated 3rd May 1924, did also bring about separation between Ram Narain and Deo Narain.
21. For the reasons given above, we hold that the Court below was right in dismissing the suit and we dismiss this appeal with costs.