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Lingraj Misra Vs. Ananta Misra and ors. - Court Judgment

LegalCrystal Citation
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 71 of 1949
Reported inAIR1957Ori63
ActsHindu Law; Trusts Act, 1882 - Sections 88 and 90
AppellantLingraj Misra
RespondentAnanta Misra and ors.
Appellant AdvocateD.V.N. Rao and ;N.V. Ramdas, Advs.
Respondent AdvocateH.G. Panda and ;A.K. Tripathy, Advs.
DispositionAppeal allowed
Cases ReferredShukrulla v. Mt. Zohra Bibi
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....mohapatra, j.1. this first appeal has been filed by the plaintiff against the judgment and decree dated 21-3-1949 of sri r. c. misra, subordinate judge of berhampur, in a suit where the main prayer is for partition of the properties described in schedules a to j. one gopinath misra had three sons, pandabo, bacho and agadhu. plaintiff lingaraj is the son of agadhu. his younger brother banamali died sometime in the year 1938-39.ananta (defendant 1), who was the natural born son of agadhu, was adopted by pandaoo. there is no dispute about this adoption. bacho died leaving behind two sons mukunda and madano (defendants 6 and 7 respectively). defendants 2 to 5 are the sons of defendant 1. defendants 6 and 7 and 8 to 11 are impleaded in the suit as they have got interests in the properties.....

Mohapatra, J.

1. This first appeal has been filed by the plaintiff against the judgment and decree dated 21-3-1949 of Sri R. C. Misra, Subordinate Judge of Berhampur, in a suit where the main prayer is for partition of the properties described in Schedules A to J. One Gopinath Misra had three sons, Pandabo, Bacho and Agadhu. Plaintiff Lingaraj is the son of Agadhu. His younger brother Banamali died sometime in the year 1938-39.

Ananta (defendant 1), who was the natural born son of Agadhu, was adopted by Pandaoo. There is no dispute about this adoption. Bacho died leaving behind two sons Mukunda and Madano (defendants 6 and 7 respectively). Defendants 2 to 5 are the sons of defendant 1. Defendants 6 and 7 and 8 to 11 are impleaded in the suit as they have got interests in the properties described in Schedules D and E only. The other defendants are subsequent alienees in respect of some items of properties in suit.

2. The main contest in the suit is as between plaintiff Lingaraj and defendant 1 Ananta. The plaintiff's versions of the case are that on 26-11-1920 his father Agadhu, defendant 1 Ananta and defendants 6 and 7 effected a partition of the family properties and executed a registered deed amongst themselves.

AS per the deed of partition, which is Ex. A in the present case, A schedule properties were allotted to the share of Agadhu, the properties mentioned in B Schedule of the plaint (which is equivalent to Sen. C of the deed of partition) fell to the share of defendant 1 Ananta, and the properties described in Sen. B of Ex. A lofl to the share of defendants 6 and 7. Some other properties were left joint.

Even though defendants 6 and 7 separated completely from the plaintiff's father and defendant 1 and separately enjoyed the properties allotted to them, the plaintiff's father Agadhu, plaintiff Lingaraj, his younger brother Banamali, and defendant 1 Ananta were living together and jointly enjoyed the properties in accordance with the terms of the deed of partition. The plaintiff's father Agadhu died sometime in the year 1925.

During the time when the plaintiff, defendant 1 and Banamali were living together and enjoying the properties jointly, defendant 1 Ananta was the Karta in charge of the management of the properties and several items of properties were also acquired from out of the joint funds and with the joint efforts of both plaintiff and defendant 1. These subsequently acquired properties, therefore, according to the plaintiff, are joint family properties liable to be partitioned along with other properties.

The further story of the plaintiff is that it was in the year 1941 that the plaintiff and defendant 1 separated in mess and residence, and, as such, there was a severance of interest. But there having been no partition by metes and bounds, he has prayed for partition of the properties scheduled in the plaint.

3. The defence, on the contrary, is that there was an agreement amongst the three branches, that is, Agadhu, defendant 1 and defendants 6 and 7, to partition the joint family properties into three equal shares; subsequently there was a partition of moveables on the basis of Ex. C dated 10-7-1916. In November 1920 there was a completed partition by metes and bounds after which the parties are separately possessing their properties. The subsequent acquisitions by the Kabalas are the self-acquisitions of defendant 1.

The defence version therefore is two-fold: (i) that the partition suit is liable to be dismissed on account of a previous partition by metes and bounds, and (ii) that at any rate the subsequent acquisitions, which are fully described in several Hems in Schedule G and in eight items in Schedule F are the self-acquisitions of defendant 1, and, as such, they are not liable to be partitioned.

4. The learned Subordinate Judge, however, gave a partial decree in favour of the plaintiff on the basis of his finding that there was a partition between the parties in the year 1920. He disallowed the prayer for partition in respect of the properties described in Schedules A and B and the allowed partition in respect of all the items of properties appertaining to Schedule F except items Nos. 11, 14, 17, 19, 20, 21, 23 and 24. He also dismissed the plaintiff's suit for partition in respect of all the items of properties described in Schedules G and J on the basis of his finding that they are the self-acquisitions of defendant 1. He also allowed partition in respect of item No. 4 of Schedule C and rejected the prayer of the plaintiff in respect of other items appertaining to Schedule C. He has also allowed partition in respect of Schedules D and E as prayed for by the plaintiff.

5. It is to be made clear at the outset that this appeal has been filed by the plaintiff against the decision of the Subordinate Judge rejecting his prayer for partition in respect of the items as indicated above. There is no cross-appeal or any independent appeal on behalf of the defendants. The decree to that extent therefore, allowing the plaintiff's prayer for partition, has become final.

6. Mr. D. V. N. Rao, appearing on behalf of the appellant, has placed before us at length several documents wherein defendant 1 has described himself as a member of the undivided family consisting of himself, the plaintiff and Banamali and wherein defendant 1 has represented Banamali during his (latter's) minority as guardian. He has drawn our attention to other documents showing that, in fact, defendant 1 and the plaintiff never acted otherwise than as members of a joint Hindu family. He has particularly emphasised one passage in Ex. A, that is, the partition deed of the year 1920, wherein it is mentioned that so far as the allotments to defendant 1 and Agadhu (the father of the plaintiff) are concerned, they will remain joint and will be jointly enjoyed and possessed by them. He contends that three separate allotments were made simply to facilitate the partition of the share of defendants 6 and 7; but so far as Agadhu and defendant 1 are concerned, they had never the intention to separate.

The joint family, according to Mr. Rao, continued and as such the subsequent acquisitions by defendant 1 are liable to be partitioned as they were acquired from the joint family funds. His second argument is that even if there was severance of interest, the copious and overwhelming documentary evidence on record leads to the only irresistible conclusion that Agadhu, defendant 1 and the plaintiff were in joint possession and enjoyment of all the properties during the life time of Agadhu, and after his death the same state of affairs continued, defendant 1 being the de facto manager of the properties. In this position also the subsequent acquisitions are to be treated as acquisitions from joint funds and as such are liable to be partitioned.

7. We will now take up the four important documents which are accepted to be genuine transactions by both parties. The earliest is Ex. B, dated 14-6-1916. It has been executed by Agadhu, Mukunda, Madano and Ananta, that is, the father of the plaintiff, defendants 6, 7 and 1. It reads as an agreement to partition the properties.

The clear recitals are to the effect that these three branches agree to partition the homestead in the manner that the residential house of 12 cubits Ms allotted to Mukunda and Madan; the new house of 19 cubits is allotted to the share Of Agadhu and Ananta. After this the important recital follows that the moveables and immovables are to be partitioned, the allotments being one share to Agadhu, one share to Mukunda and Madan and the third share to Ananta, It distinctly recites that the three share-holders will partition in equal three shares all the moveables and immovables.

The document, as it stands, clearly ascertains the shares of the parties according to which a partition is to be effected. There the plaintiff did never challenge the genuineness of this document. The learned advocate appearing on behalf of the plaintiff also does not dispute its genuineness before us. On the contrary, we have been referred to the statement of the plaintiff himself during his cross-examination where he accepts the document as a genuine one.

Indeed this document has not at all been referred to in the subsequent deed of partition of the year 1920 (Ex. A); but in our opinion, when the genuineness of the document is not disputed by the parties at any stage, we have got to construe the terms, as they are embodied in Ex. B, and in our opinion it is clear and unambiguous expression of the intention of the parties to the document to partition their properties according to one-third share of each branch.

Then comes Ex. O which is dated 10-7-1916. By this document, the moveables have been partitioned into three equal shares and three different lists have been accordingly prepared--one list for Agadhu, the other for Mukunda and Madano and the third for Ananta. And by way of adjustments some of the parties paid a small sum to the other.

Exhibit D is a receipt granted by defendants 6 and 7 in favour of Agadhu and Ananta. This is dated 15-3-19 and shows that a sum of Rs. 500/-was paid to defendants 6 and 7 by both Agadhu and Ananta as the debts outstanding in favour of the family were to be realised by Agadhu and Ananta only.

Then comes the registered document Ex. A dated 26-11-20 to which Agadhu, Mukunda, Madano and Ananta are parties-executants. This document is in respect of the immovable properties of the family. There, three schedules are attached to the document. Schedule A is allotted to Agadhu, Schedule B to defendants 6 and 7 and Schedule C to defendant 1 Ananta. It will be pertinent to quote the main part of the recital in the document running as follows:

'We were so long joint and we were meeting all our joint expenses and bearing all the profit and loss together. But gradually dissensions are cropping up in the family. We have decided to divide all our moveables and immovables. Previously we have divided in presence of respectable persons all our moveables viz., gold, silver, cattle, utensils, boxes etc., and each taken his share.

Even our money-lending business we have accordingly divided and have been managing them. Our immovables were divided into 3 parts. The 2/3rd share of Agadhu & defendant 1 as detailed in Schedules A and C shall bear the burden of such of the family debts as incurred by Agadhu Misra and kept together. The B Schedule properties appended hereto, lying in different villages, shall be enjoyed by defendants 6 and 7 free of all debts.

In Schedule D, Jujusti Misra and Dama Misra have half share but the properties in that Schedule have been kept joint. It is inconvenient to divide the same. That half share belonging to we, three branches, therefore, is kept joint for the present.

Out of the profits thereof due to our three branches namely 1/2, the branch of Agadhu Misra and defendant 1 shall enjoy 2/3 and defendants 6 and 7 shall enjoy the balance.' It is further recited therein:

'Whereas, as per Schedules A, B, C and D appended to this deed, we have divided our lands and houses and other properties and each sharer is in possession of his own, in future none shall claim any right or title or heirship to the share of the other and enjoy the properties without any connection whatsoever with the other sharer as per the aforesaid allotment of shares and each shall be responsible for his own profit and loss of his dealings. We have no other family property left for any future partition.' Mr. D. V. N. Rao however strongly relies upon the passage:

'that 2/3rd share of Agadhu & defendant 1 as detailed in Schedules A and C shall bear the burden of the family debts as incurred by Agadhu and Ananta and kept joint and that Schedules A and O are kept together for being enjoyed and possessed jointly by Agadhu and Ananta.' This document, read as a whole, can never be understood to mean that there were three allotments of the immovable properties in Schedules A, B, and O, only to facilitate partitioning the share of defendants 6 and 7.

The shares are definitely ascertained, but nevertheless the parties Agadhu and Ananta have agreed to their shares being kept jointly and enjoyed by common management. The total effect of the four documents is that in fact there was a very clear and unambiguous ascertainment of shares of the parties even though the parties Agadhu and Ananta agreed to possess jointly and manage the properties jointly, there being no actual division among them,

8. Mr. D. V. N. Rao further contended before us that these documents should be read, along with quite a number of other documents subsequent to them, to reveal how the parties had behaved amongst themselves as members of the joint family.

The position of law is clear as pronounced by the highest authority, that is, by their Lordships of the Judicial Committee of the Privy Council from time to time. We will refer to the earlier decision of the Privy Council reported in Balkishen Das v. Ram Narain Sahu, 30 Ind App 139 (PC) (A) wherein their Lordships observed;

'If the learned Judges meant that the legal construction or legal effect of an unambiguous document like the ikrarnama could be controlled or altered by evidence of the subsequent conduct of the parties, their Lordships cannot agree with them, and they do not think that the case of Baboo Doorga Pershad v. Mt. Kundun Koowar, 1 Ind App 55 (PC) (B) cited by the learned Judges, is any authority for such a proposition.'

The position had come up again before their Lordships of the Privy Council in the case of Venkatapathi v. Venkatanarasimha, AIR 1936 PC 264 (C). The relevant passage which we are quoting appears at pp. 268-69 of the report:

'It sometimes happens that persons make statements which serve their purpose or proceed upon ignorance of the true position; and it is'not their statements, but their relations with the estate, which should be taken into consideration in determining the issue. The vital factor in a case of this kind is the nature of the interest Which the members of the family have in the estate.

As stated, if there has been a division of their right to, or severance of their interest in the estate, they must be held to be separate in status, though there has been no physical division of the property, and though there may be no separation in fold or dwelling: Amritrao v. Mukundarao 15 Nag LR 165: (AIR 1919 PC 91) (D). '

If, on the other hand, there has been no such division of right or severance of interest, they continue to be joint in estate and mere cesser of commensality would make them separate in estate, as a member may become separate in food or residence for his convenience.

A division of right or a severance of the joint status may result, not only from an agreement between the parties, but from any act or transaction which has the effect of denning their shares in the estate, though it may not partition the estate. If a document clearly shows a division of right, its construction and effect cannot be controlled or altered by evidence of the subsequent conduct of the parties -- 30 Ind App 139 (PC) (A).' Their Lordships of the Privy Council have confirmed the same view also in a later case reported in Harkishan Singh v. Pratap Singh, AIR 1938 PC 189 (E):

'But the property ceases to be joint immediately the shares are defined, and thenceforth the parties hold it as tenants-in-common.

The defining of the shares may be expressed by an agreement between them containing a declaration of their shares in the estate. Even an agreement between the members of a joint family, whereby they appoint arbitrators for dividing the Joint family property among them, amounts to a severance of the joint status of the family from the date of the agreement: Syed Kassam v. Jor-war Singh, 49 Ind App 358: (AIR 1922 PC 353) (P) and Balmukunda Lal v. Mt. Sohano Kueri, 8 Fat 153: (AIR 1929 Rat 164) (G).

The fact that no award has been made is not evidence of the renunciation of the intention to separate. Nor can the legal construction or legal effect of an unambiguous document denning shares of the members of the family be controlled or altered by evidence of the subsequent conduct of the parties: 30 Ind App 139 (PC) (A).'

9. The learned counsel appearing on behalf of the appellant however argues, relying upon a Privy Council decision, that mere ascertainment of shares may not always lead to breaking up of the Mitakshara joint family. He cites the case of Palam Animal v. Muthuvenkatachala Moniagar, reported in 52, Ind App 83: (AIR 1925 PC 49) (H). He also relies upon the position on the basis of this decision that the subsequent conduct of the parties may be taken into consideration for the purpose of coming to the conclusion whether the plaintiff's father and defendant 1 also separated at the time when defendants 6 and 7 partitioned their interest in the property. The placitum runs as follows:

'The filing of a plaint claiming partition by a member of a joint Hindu family, if the plaint has been withdrawn before trial, does not result in the family being separate at a later date: although it is evident that an intention to separate had been entertained by the plaintiffs.

When one member of a joint family had separated, an agreement by the remaining members to continue undivided may be inferred from the way in which their business is carried on after the separation.'

At page 86 (of Ind App): (at pp. 50-51 of AIR) their Lordships observed:

'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 coparceners 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 off for him, and that the remaining coparceners, without any special agreement amongst themselves, may continue to be coparceners 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 coparcener had separated from them.' In our opinion there is absolutely no conflict between the principles consistently laid down in the three cases discussed by us earlier and the decision of their Lordships of the Privy Council in this case, if indeed the ascertainment of shares of the plaintiff's father and defendant 1 was simply with the intention of facilitating the division of properties as between the plaintiff's father and defendant 1 on one side and defendants 6 and 7 on the other, it does not amount to severance of Interest.

It can never be disputed that merely because one member separates, it has got to be taken or presumed that others also automatically separated and others on special agreement may remain Joint; but their remaining Joint is also not to be presumed but has got to be proved by any other factor Of the party requiring relief on the basis of that position.

In the present case, however, after carefully going through the documents, particularly Exs. B, C and A, we are definitely of the view that there was definitisation of the shares of Agadhu and Ananta also not for any other purpose but with, the intention of disrupting the Mitakshara joint family. It will not be out of place to quote a passage from another decision of the same Board reported In Bal Krishna v. Ram Krishna, AIR 1931 PC 154 (I). The passage appears at page 156:

'It ts clear to their Lordships that in the Indian Courts this question was argued as one of fact. Before the Board it has been put as one of law. The separation of one member of the family, it is said, necessarily causes the separation of all. This problem has been discussed in many cases, the argument usually turning upon a question of presumption. The general principle undoubtedly is that every Hindu family is presumed to be joint unless the contrary is proved.

If it is established that one member has separated, does the presumption continue with reference to the others? The decisions of this Board show that it does not: per Lord Davey in Balabux Ladhuram v. Rukhmabal, 30 Ind App 130 at p. 137 (PC) (J), followed in Jatti v. Banwari Lal, 50 Ind App 192: (AIR 1923 PC 136) (K).

But it is equally clear on these decisions that the other members of the family may remain joint; it is again, their Lordships think, a question of their intention, which must no doubt be proved. So in Ram Prasad Singh v. Lakhpati Koer, 30 Ind App 1 (PC) (1). The entire position of law therefore has been clearly placed for the guidance of the Courts in India by these five decisions of their Lordships of the Privy Council.

Regarding the subsequent conduct it is clear to us that in a case like the present one when there is, or are a document or documents of partition or ascertainment of shares which clearly and unambiguously lead to the categorical position of severance of interest from their plain and simple language, subsequent conduct or subsequent documents cannot alter the position; but nevertheless if in a case where there is no document or the document is not clear and ambiguous, subsequent conduct is admissible for the purpose of ascertaining the intention of the parties and how they behaved in respect to the properties for the purpose of ascertaining whether there was a division of status or not.

10. We will take up next the documents relied upon by the learned advocate for the plaintiff for the purpose of showing that the plaintiff and defendant 1 were the members of a joint family and that defendant 1 was the karta.

Exhibit 2 is a petition filed in the Court of the Munsif of Berhampur dated 29-10-1926 praying for setting aside an ex parte final decree passed on 30-9-1926. This was filed by the present plaintiff, defendant 1 and Banamali. The petition was supported by an affidavit (Ex. 2-a) which purports to be dated 28-10-1926. Agadhu was defendant 3 in that case. He having died during the pendency of the suit, the plaintiff in that suit brought these three legal representatives on record. In the affidavit, it is stated that Banamali minor is represented by guardian and undivided elder brother Ananta.

Defendant 1 wanted to explain it away by saying that in fact he had never sworn the affidavit, but it was simply signed by him on a blank paper. Being an affidavit, it is a soleman act of the party and moreover it is impossible for us to accept this explanation in view of the fact that the affidavit contains information's which can never be known to the clerk.

It is stated that the father (meaning Agadhu) died on 8-3-1925 and therefore it was prayed that the suit had already abated before a final decree could be passed.

Exhibit 3 is a plaint filed by Ananta, Lingaraj and Banamali, Banamali being represented by next friend Ananta. In the body of the plaint, ft is stated that the plaintiff 1 is the manager of the joint family of all the plaintiffs. The plaint is of the year 1929.

Exhibit 4 is a document of the same description, that is, a plaint filed by Ananta, Lingaraj and Banamali, Banamali being represented by his brother Ananta. This is Original Suit No. 7 of 1926. Reference may be made to para. 4(g) of the plaint which runs as follows:

'The original mortgagee was the undivided father of plaintiffs 1 to 3 and though the plaintiff has been adopted to the late Pandavo Misro, elder brother of the original mortgagee, plaintiff 1 has been living as a member of the joint family with the original mortgagee and plaintiffs 2 and 3; the original mortgagee was the family manager and advanced the suit amount of loan out of the joint family funds.

The original mortgagee having died about a year ago, plaintiffs 1 to 3 have become entitled to the suit mortgage by survivorship under the Hindu law.'

Exhibit 5 is another plaint filed by a third party against these three brothers on 1-2-1926. The third brother Banamali being minor was represented through guardian and undivided brother Ananta in the plaint.

Exhibit 11, which is the last of the series, is a plaint of the year 1945 filed by the present plaintiff and defendant 1. By the time Banamali was dead and it is recited in para. 5 of the plaint that the interest of Banamali devolved on the plaintiffs.

We will now refer to Exs. 15 and 15-a. Exhibit 15 is a deed of agreement executed by one Gourang Dash in favour of Ananta on 12-6-1919 for selling some land which was sold in fact in favour of Agadhu, the sale-deed (Ex. 15) being dated 16-2-1920.

Exhibit 18-c is a sale-deed dated 19-5-1925 by one Purushottam Sahu in favour of Ananta. The recitals run to the effect that the sale deed was executed for the discharge of a debt of Agadhu.

Exhibit 17 is a promissory note executed by defendant 1 for a sum of Rs. 1000/- reciting that money was necessary for the purpose of purchasing lands.

Doubtless the position of law, as discussed earlier, is very well settled by several decisions of their Lordships of the Privy Council that once there is a severance of interest by unambiguous terms of ascertainment of shares of different members of the joint family, the members do not have the status of coparceners of a Mitakshara joint family and the position cannot be altered by the subsequent conduct of or statement made by the different members. We are to mention here that there is no question of reunion. It was never averred in the plaint, nor was it argued in any of the Courts. The question of reunion is to be taken completely out of consideration. But nevertheless these very important documents, contained in affidavit, verified plaints & several other transactions, irresistibly lead to the conclusion that the properties were in the joint possession & enjoyment & the management Was only one & not two. This is in conformity with the terms embodied in Ex. A that both the shares of Agadhu and Ananta are kept together in joint poss-ession and enjoyment.

The parties, the documents clearly indicate were in perfect amity and behaving themselves as nothing else than members of one family whatever may be the position of law about their status. We are further of the opinion that defendant 1 was the de facto manager of all the properties belonging to both Lingaraj and himself (defendant 1). This view is sufficiently strengthened by reference to Ex. 16 series, the letters written by defendant 1 to the plaintiff. They are 16 in number.

In order to appreciate the letters, it is to Be mentioned at the outset that from 1927 to 1945 defendant 1 used to live at his father-in-law's place at Jugudi, which is at a distance of nearly 12 to 16 miles from their native village Santrapur, for almost the same period as he used to live at Santrapur. 11 out of 16 letters which were thought important were placed by the learned counsel for both parties in extenso before us & it is apparent to us from these letters that defendant 1, even though he was living at Jugudi was the de facto manager & that the plaintiff, while living at his native village at Santrapur, was simply looking after the properties under the guidance and direction of defendant 1,

The suggestion of the learned advocate for defendant 1 that the plaintiff was managing simply as an agent of the separated shares of the properties belonging to defendant 1 which were in his separate possession has got to be rejected. Indeed the entire trend of the letters does not discriminate between the properties belonging to the different brothers at all. And there is no indication, from which such an intention can De drawn, that the plaintiff was acting merely as an agent.

There is nothing in the letters, nor in any part of the evidence, that separate accounts were being kept in respect of the management of the shares of each brother. There is no other conclusion excepting the irresistible one that the management was common and defendant 1 was the de facto manager. It may be pertinent to remark here that the feature that the originals of Exs. A, B, O and D are coming from the custody of defendant 1 indicates the same position.

The learned lower Court has completely misdirected himself in having overlooked this position arising in the case from out of the documents which we have considered above. He has not examined the entire evidence on record from this point of view as to whether they lead to the irresistible conclusion that there was one common management of the properties belonging to the parties and the management and possession were common.

11. The learned counsel for defendant 1 has placed much reliance upon two sale deeds, Exs. E and H. Exhibit E is dated 4-10-1940 executed by the plaintiff for a sum of Rs. 200/- in respect of the properties which were allotted to Agadhu and described in Schedule A of the partition deed of the year 1920. There is a recital also that the plaintiff is in separate possession of the property as the property fell to his share in the partition deed.

Exhibit H is of the year 1924 that is, during the life time of Agadhu. It was executed by Ananta for a sum of Rs. 153/- in respect of the property which appertains to the schedule allotted to Ananta in the partition deed. This document may go to show, as we have already found, that there was severance of interest; but there is absofutely nothing to affect our conclusion that the possession, enjoyment and management were common, defendant 1 being the de facto Karta.

12. Defendant 1, relies upon a few other documents to show how the parties were dealing with the properties. The documents which came into existence after the institution of the suit itself have been taken out of consideration, particularly for the reason that there are innumerable documents which came into existence prior to the dispute started negativing the true position.

Mr. Panda, appearing for the respondents, has placed strong reliance of Muchalikas (Ex. L series) executed in favour of defendant 1. These series do not weaken our conclusion in the least inasmuch as there is nothing unnatural for the tenants to execute muchalikas in favour of defendant 1 as he was the de facto manager of the common properties of both.

13. Now let us consider whether all the items of properties which have been left out from partition by the order of the Court below on the finding that they are the self-acquisitions of defendant 1 are really so. They were acquired mostly by Exts. Q series & O. They are from the years 3,920. But most of them are from the years 1925 to 1936, Two of them are of the year 1941. They show they were acquired from time to time. The total consideration paid amounts to Rs. 3240/-.

One very important feature which has been completely ignored by the learned Court below and which has therefore vitiated his Judgment is that defendant 1 had no other source of income. The fact remains, the properties were jointly possessed and enjoyed and were under a common management. There was not even any division of the usufruct of the properties. There were no separate accounts kept and there were no separate funds available to the two brothers.

On the contrary, it transpires from Ex. 18, a sale deed executed by defendant 1 on 2-4-1929 for a sum of Rs. 1000/-, that the consideration money came to the joint funds of plaintiff and defendant 1. The sale deed is in respect of properties purchased by Agadhu on the basis of Ex. 18-a. There is still more important piece of document to show that there was sufficient money in the common funds.

Exhibit 20-a is the extract from the suit register of Original Suit No. 7 Of 1926 (Mortgage). The decretal amount is more than Rs. 4000/- and on 4-7-1933 the decree-holders Ananta, Lingaraj and Banamali through Ananta received a sum of Rs. 2152/- towards the decretal amount. I will also refer to Ex. 17, a promissory note dated 3-7-1935 executed by the plaintiff and defendant 1 for Rs. 1000/-. These documents clearly show that sufficient funds were available to plaintiff and defendant 1 in their Joint funds for purchasing the properties.

These acquisitions were made from time to time within the periods indicated above and it has therefore got to be found that the consideration paid for acquisition of these properties came from the joint funds. In these circumstances, the irresistible inference is that they are the common properties of both plaintiff and defendant 1 which are liable to be partitioned.

14. But that apart, as a position of law also, we are prepared to find that in the above circumstances it was for defendant 1 to have proved that these were his self-acquisitions and he having failed to do so they are to be treated as partible properties between the two parties. Defendant 1, while he was the de facto manager of the properties and under whose direction and guidance for some period the properties were managed also by the plaintiff, stands in a fiduciary relation to the plaintiff for the entire period.

If, in the above circumstances, he had no other source of income and the properties were acquired in his name, it is manifest, it was his bounden duty to explain how he acquired them without detriment to the common funds available to him from out of the usufruct of the properties belonging to both parties of which he was the de facto manager.

15. We will refer to a decision reported in Aminuddin v. Tajaddin, AIR 1932 Cal 538 (M). It was a case of Mohammedan family where it was held that where the members lived in, commen-sality possessing the family property in common and in jointness, the acquisition by one of the members occupying the position of a managing member during the jointness of the family will be presumed to be for the benefit of all the members of the family not because of any presumption regarding acquisition akin to the joint Hindu family, but because such person is in fiduciary relationship with other members and has an obligation to discharge towards other members.

It was also held by their Lordships that if any property as acquired stands in the name of such person, the burden of proving that it was his self-acquired property and not the property of the joint family, will be on him. If this is the position as enunciated by their Lordships in a Mohammedan family purely on the basis of the fiduciary relationship, there is no reason why we would not apply the same principle in the present case.

The same view also was taken by a Bench decision of the Allahabad High Court reported in Shukrulla v. Mt. Zohra Bibi, AIR 1932 All 512 (N). That case also was of a Mohammedan family. Their Lordships had thoroughly discussed the legal position arising in the case of members of the Mohammedan family. In similar circumstances in the reported case their Lordships, on the discussion of the principle, relied upon Ss. 88 and 90. Indian Trusts Act to come to the same conclusion:

'Where male members of a family live in union so as to have jointness in mess, business and property, there can be little difficulty in tracing their relations inter se to an implied agreement which clothes each with a representative capacity in reference to his co-sharers. Each must be deemed to be acting not only for himself, but for all the dealings with regard to joint property and business.

Accordingly any acquisitions made by any one member should be considered to have been made by all through the one who actually made it. In such a case, as among partners, each is the manager or agent of the others.'

16. Before closing the judgment, we may refer to the oral evidence adduced on behalf of the parties. It may be observed at the outset that in the face of the unimpeachable documents, any large number of oral evidence of some neighbours or some tenants examined by defendant 1 is not of much importance.

The oral evidence also was considered by the learned Court below only with a view to come to the conclusion whether there was separation in status between the plaintiff and defendant 1. After discussion of the oral evidence his final conclusion is as follows:

'All the above pieces of evidence taken together unhesitatingly lead to the inference that there was complete separation of status between the plaintiff and defendant 1 since 1920, that there was no joint family till 1941, as alleged by the plaintiff, although both held and still hold some joint lands as joint co-owners.'

The lower Court was constrained to accept the position that both of them were co-owners in respect of some properties at least; but he has not found out what is the extent of these properties. He has to acknowledge the same position in another part of the judgment while discussing the documentary evidence.

Indeed we have no hesitation in discarding the plaintiff's story that there was disruption in the joint family only in the year 1941. The plaintiff, in this connexion, wanted to rely upon Ex. 13, a list of moveables partitioned in the year 1941. This document has not been signed by any of the parties and the scribe of the document also has not been examined. The document has got to be discarded as not reliable. But that does not affect our aforesaid conclusions.

17. In conclusion, therefore, all the Items of properties described in Schedule G, the eight items of properties in Schedule P, such as items Nos. 11, 14, 17, 19, 20, 21, 23 and 24 and the properties in Schedules J and C are to be partitioned between the plain, tiff and defendant 1 as being the common properties of both plaintiff having a moiety share.

As we have accepted document Ex. A as a bona fide and valid document as between the parties, Schedules A and B properties will not be partitioned. The plaintiff is absolutely entitled to A Schedule properties and similarly defendant 1 is absolutely entitled to B Schedule properties. The appeal is, therefore, allowed with costs throughout, against the contesting defendants.

P.V. Balakrishnarao, J.

18.I agree.

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