1. This is an appeal from an order of the District Judge of Meerut confirming an order of V.R. Mehta, Esqr., Judge, Small Cause Court, dated November 26, 1932, passed in an insolvency matter.
2. In 1931 the respondent Ram Saran Das was adjudged an insolvent, and during the insolvency proceedings, the Official Receiver seized the insolvent's alleged interest in certain property. The appellant Raghunath Sahai who is the father of the insolvent objected to this seizure and claimed that he was the so owner of the property seized and that his son had no interest whatsoever in the same. The learned Judge of the Small Cause Court overruled this objection and held that the property in question was the joint property of the family and consequently that the insolvent's share in such property was liable to seizure by the Official Receiver. The present appellant appealed to the District Judge of Meerut but his appeal was dismissed and the order of lower Court was confirmed. The appellant now appeals to this Court against this order of the learned District Judge.
3. It is conceded by the appellant that originally the family was joint but it is contended that there was a separation at some time between 1906 and 1909 and that thereafter the appellant and the insolvent had been separate in estate. Whether or not such a separation took place is a question of fact and findings of fact are binding upon me in this appeal and cannot be disturbed if they are based upon relevant and admissible evidence. This is frankly conceded by Sir Tej Bahadur Sapru who has appeared for the appellant but he has argued that the Court below misdirected itself in law and that being so the findings of fact are vitiated and in no way conclude the matter.
4. It has been contended that the learned District Judge laid too great stress upon the evidence as to what has occurred after the alleged separation and did not consider on its merits the direct evidence as to the fact of actual separation. It is said that the learned Judge held that there had been no separation merely because the subsequent conduct of the parties appeared to him to be inconsistent with such a separation having taken place. When evidence of the fact of separation is clear and unambiguous, evidence of subsequent conduct, it is said, is only material in so far as it tends to prove a reunion of the family. It must be conceded, however, that where the evidence as to the actual fact of separation is not conclusive, evidence as to subsequent conduct is not only relevant but most valuable as it can materially assist the Court in coming to a conclusion upon the issue whether or not separation took place as alleged. On the other hand if the evidence called to prove actual separation clearly establishes that fact then evidence as to subsequent conduct inconsistent with actual separation cannot affect the issue unless it establishes an actual reunion after the proved separation.
5. Parties may or may not live together after a legal separation has taken place but if they do live together that cannot by itself affect the consequences of the act of legal separation. Parties who have legally separated may ostensibly live as they did before separation, yet, they are separate in law. Conduct subsequent to an alleged separation therefore may afford valuable evidence as to the fact of separation but it is not conclusive as parties legally separated may, to all outward appearances, continue to live as a joint family.
Separation from the joint family involving the severance of the joint status as far the separating member is concerned with all the legal consequences resulting therefrom is quite distinct from the de facto division into specific shares of the property held until then jointly. One is a matter of individual decision, the desire on the part of any one member to sever himself from the joint family and to enjoy the hitherto undefined and unspecified share separately from the others without being subject to the obligations which arise from the joint status; whilst the other is the natural resultant from his decision, the division and separation of his share which may be arrived at either by private agreement among the parties or on failure of that by the intervention of the Court; see Girja Bai v. Sadashiv Dhunderaj 43 C 1031 : 37 Ind. Cas. 321: A.I.R. 1916 P.C. 104 : 20 C.W.N. 1085 : 14 A.L.J. 822 : 20 M.L.T. 78 : 12 N.L.R. 113 : (1916) 2 M.W.N. 65 : 18 Bom. L.R. 621 : 4 L.W. 114 : 24 C.L.J. 207 : 31 M.L.J. 455 : 431 A 151 (P.C.)'.
It is settled law that one member of a joint Hindu family may effect a separation by a clear and unequivocal intimation to his co-sharers of his desire to sever himself from the joint family. Whether a member has done so is a question of fact ... That he continued to live jointly with the ... other members and to act as a karta and was described in numerous suits as being joint with them are not circumstances which, were they have been taken into consideration, will lead the Board to interfere with the concurrent findings that there was a separation in interest'. See Bal Krishna v. Ram Krishna .
6. In my judgment the two cases previously cited abundantly establish the proposition that a separation may have taken place though the parties ostensibly continue to live much as before. That being so, evidence as to the subsequent conduct of the parties must not be relied upon to the exclusion of evidence of the actual fact of separation. Further if the evidence as to actual separation is clear and conclusive, the fact of separation may properly and indeed should be found even though there is evidence of subsequent conduct which on the face of it appears inconsistent with separation or an intention to separate. In short, it must always be present to the mind of the Court that parties may legally separate though they have no intention physically to separate or radically to alter their old mode of life.
7. In the present case the appellant and his son the insolvent were undoubtedly joint until 1906 but at some time between that year and the year 1909 it is said they separated. In 1912 the appellant made an application to be adjudged an insolvent and was so adjudged. In this insolvency certain property was seized and the present insolvent filed an objection. This objection appears to have been dismissed and thereupon the present insolvent filed his first insolvency petition, setting out a separate list of debts. In these proceedings the present insolvent stated that, he was separated from his father the present insolvent for the last 6 or 7 years. The appellant's son-in-law Hira Lal intervened in these proceedings and the debts of both father and son appear to have been discharged by him in full or in part.
8. In 1918 the appellant purchased the property now in dispute and it is of course the appellant's contention that the present insolvent who, it is alleged, separated from him between 1906 and 1909 had and can have no interest in this property.
9. In 1923 the present insolvent filed his second insolvency petition and was duly adjudged insolvent. It is to be observed that in these proceedings no claim was made by the Official Receiver to the property now in dispute, but as the learned District Judge remarks such proceedings soon terminated after a settlement had been effected with the creditors. In this insolvency there was very little time for the Official Receiver to investigate and ascertain precisely what property the insolvent owned.
9. In 1931 Ram Saran Das was again adjudged insolvent and it was in these proceedings that the present appellant filed the objection now under consideration.
10. To support the appellant's objection great reliance was placed on Ram Saran Das' statement in his insolvency in 1913 that he had separated from his father the present appellant 6 or 7 years previously. That was of course merely an assertion of fact which might or might not be true. Such a statement, even if admissible, could not of itself be accepted as conclusive evidence that such a separation had taken place.
10. However, the appellant and two witnesses Ram Chandra and Mool Chand were called to prove actual separation in 1906 or 1907, According to this evidence the separation was followed by actual partition in which the present insolvent according to Ram Chander received for some reason wholly unexplained a half share in certain movable property instead of a fifth share to which only he was legally entitled. Mool Chand did not actually see the partition and Ram Chander contradicts the appellant as to the amount of the stock given to the appellant. The learned Sessions Judge describes these witnesses as unsatisfactory and rejects their evidence.
11. The learned Judge further points out that a separation in 1906 or 1907 was most improbable as the evidence showed that Ram Saran Das could have only been somewhere between. 14 and 18 years of age at the time. The learned Judge clearly considered on the merits the evidence as to the fact of separation and having considered it rejected it as unsatisfactory and unreliable.
12. There was, therefore, left the mere statement of Ram Saran Das in 1913 insolvency proceedings that he had separated from his father between 1906 and 1909 and in view of the probabilities and the nature of the evidence adduced in support of this assertion, it is not surprising to find that the learned Judge did not accept it as true. Further Ram Saran Das does not appear to have been called to state in the present proceedings that he had separated from his father as alleged or to affirm his previous assertion of separation. It is clear therefore that the evidence relating to the fact of separation so far from being clear and unambiguous was conflicting, unsatisfactory and obviously unreliable and that being so the Courts below were bound to examine the subsequent conduct of the parties to assist them in ascertaining whether or not a separation as alleged had ever taken place. The learned District Judge has dealt fully and thoroughly with this evidence in his judgment and in his view it points inevitably to the conclusion that no separation took place between 1906 and 1909 and that if a separation did take place at all, it occurred in or about the year 1926 when the appellant issued notices disclaiming liability for his son's debts.
13. In my judgment the learned District Judge correctly directed himself in law and was abundantly justified upon the evidence in holding that no separation had taken place before the year 1918 when the appellant acquired the property now in dispute.
14. It has, however, been contended that even if the parties were joint in 1918 there was no evidence to show that the property in dispute was acquired out of joint funds. According to the findings of the Insolvency Court the only income at the appellant's disposal at this time was income from joint family property and if that was so the property purchased with such funds became joint property. The learned Sessions Judge has fully considered the evidence and he also has come to the conclusion that the property in dispute was purchased out of the joint family income. There was evidence upon which he could so hold and that being so I am precluded from re-opening the question.
15. The learned District Judge appears also to have been of opinion that in the absence of evidence to the contrary he would be bound to presume that the property purchased in 1918 became joint family property. He, however, points out that as both parties had adduced evidence upon this part of the case the question of onus of proof was mainly of academic interest. Both Courts have held affirmatively upon the evidence that the property in dispute was purchased out of joint family funds and it therefore matters not upon whom the onus lay. The Official Receiver affirmatively proved that the property was purchased with joint funds and was therefore joint property and as there had been no separation before the date of the purchase, the appellant's objection was rightly dismissed.
16. In the, result, therefore, this appeal is dismissed with costs.
17. Leave to appeal under Letters Patent is granted.