1. This is an appeal by defendants 1 and 2. The suit giving rise to this appeal was instituted by the State of Orissa respondent No. 1 for recovery of Rs. 12,999-53 P. with subsequent interest at six per cent, per annum from all the defendants in the following circumstances: Defendants 1 to 3 are the sons of late Appanna Das and were living jointly with him with Appanna Das as the Karta of the family. The joint family was carrying on business of buying and selling foodgrains. Late Appanna Das applied to the Collector of Ganjam for being appointed as a Purchasing Agent of paddy under the paddy procuring scheme in operation in the year 1958-59. His application was allowed and ha was appointed as purchasing agent for the Parlakhemedi Zone. In accordance with the procedure prescribed. Appanna Das executed an agreement dated 31-1-1959 and furnished security deposit of Rupees 1,259/- and also executed a personal security bond for Rs. 10,000/- and furnished two sureties, namely, defendants 4 and 5 each of whom executed a surety bond for Rs. 5,000/- for due performance of the agreement by Appanna Das and for payment of any amount that the latter might owe to Government relating to the agreement. Subsequently on the application of Appanna Das, a total sum of Rs. 21,000/- was advanced to him by the Collector. Ganjam in three instalments Rs. 8,000/-, on 30-3-1959. Rs. 9,000/- on 6-4-1959 and Rs. 4,000/- on 26-5-1959. While the said contract of purchasing agency was in operation, Appanna Das suddenly died on 4-6-1959. The stocks of paddy in the depots maintained by him were seized by the orders of the Collector and a sum of Rs. 11,515.97 p. was realised by title sale thereof. The advances made to Appanna Das carried interest at six per cent, per annum and after adjustment of the proceeds of the sale of paddy towards the total amount due from Appanna Das it was found that a sum of Rs. 12,999.53 p. was still due from him. A notice of demand was issued on 28-10-1963 to defendants 1 to 3 and another notice to defendants 4 and 5 calling upon them to pay up the amount. But they failed to make the payment. It was alleged that defendants 1 to 3 being the undivided sons and legal representatives of late Appanna Das and having succeeded to his property by way of survivorship are under a legal obligation to discharge his liabilities and that defendants 4 and 5 as sureties are also liable to pay the amount.
2. All the defendants contested the suit. It is the case of defendant No. I that in the year 1956, he had separated from his father in mess, residence and property and consequently he was not liable to discharge any liability whichAppanna Das might have incurred in the year 1958-59.
3. Defendant No. 2 contended that long before 1959, he had been given away in adoption by his natural father Appanna Das to his maternal grandfather. Radhakrishna Sahu of Parlakhemedi and consequently he was not liable to discharge a debt which Appanna Das might have incurred in the year 1958-59. It was further averred by him that when Appanna Das died it was found that he had a liability of Rs. 18,000/- to the Cooperative Society. The latter threatened to proceed against the properties of Appanna Das. It was at that stage that defendant No, 3 and his mother approached this defendant to purchase some of the properties of Appanna Das and liquidate Ms liabilities and accordingly on 22-6-1959 defendant No. 2 purchased under the sale deed Ext, M those properties for a sum of Rs. 18,000/- which was paid to the Co-operative Society in full satisfaction of its dues against Appanna Das. In view of the claim made by him that be had been adopted to another family, he disclaimed any liability to pay up the dues of Appanna Das.
4. Defendant No. 3 the minor son of Appanna Das appearing through the Court Guardian contended that the business of purchasing agency being a hazardous and speculative business was Abyabaharika in character and consequently he was not liable to pay up the suit dues. It was his case that the real persons who were carrying on the business were defendants 4 and 5 and Appanna Das was merely a name-lender and that his family was not in any way benefited by title business. It was contended by him that he had not inherited any property from his father and as such was not liable to discharge his debts. It is also contended by him that the interest claimed Is excessive and the suit is barred by limitation.
5. Defendants 4 and 5 contended that the surety bonds were not read out and explained to them when their signatures were obtained thereon, that the advances alleged to have been made to Appanna Das by Government were without their knowledge and that after the death of Appanna Das, there was negligence on the part of the Collector to seize the stocks of paddy immediately with the result that considerable quantities of paddy were removed from the depots maintained by Appanna Das, In the circumstances stated above, they pleaded that they are not liable for the suit dues.
6. The learned Subordinate Judge disbelieved the plea of separation set up by defendant No. 1 and held that he was living jointly with his father Appanna Das at the time of the latter's death. Heaccepted the plea of adoption set up by defendant No. 2 but proceeded to consider the question whether alienation of properties in his favour under Ext. M was for consideration and held that Ext. M is a collusive document and conferred no title on defendant No. 2 in respect of the properties covered by the sale deed. The learned Subordinate Judge rejected the plea of defendants 4 and 5 that they signed the surety bond without being aware of the contents thereof and that consequently they are not liable under the same. Regarding their liability, the learned Judge came to the conclusion that defendants 4 and 5 are individually liable for the suit amount subject to the maximum amount for which each of them stood surety. The issue of limitation was answered in favour of the plaintiff . In the result, he passed a decree for tile amount claimed together with future interest thereon at three Per cent per annum against all the five defendants saddling defendants 1, 3, 4 and 5 with costs of the suit. Being aggrieved by the judgment and decree passed by the learned Subordinate Judge, defendants 1 and 2 alone have filed this appeal.
7. So far as defendant No. 1 is concerned, the only Point for consideration is whether there is any truth in the defence set up by him that he had separated from his father Appanna Das in 1956. In support of his case on this point, he relies on his evidence (D. W. 13) and the evidence of D. Ws. 1. 8, 9 and 12. D. W. 1 is the son-in-law of late Appanna Das. He says that about four years before Appanna Das's deatih, defendant No. 1 had separated from him in mess and residence and got certain properties towards his share. As the son-in-law of Appanna Das he is a competent witness to depose about this fact and his evidence cannot be discarded merely on the ground, as appears to have been done by the learned Subordinate Judge, that D. W. 1 was not aware if any registered partition deed was executed. D. W. 8 Haribandhu Biswasray Is a resident of Parlakhemedi and says that he was once invited by Appanna Das to settle the disputes between him and his son defendant No. 1 who was insisting to separate from his father. This was somewhere about 1954 or 1955. Obviously he did not effect the partition between the father and the son at that time, but he learnt later that Srihari Naik (D. W. 12) and one Kameswar Panda amicably effected the partition between the father and the son and that he had heard from defendant No. 1 that in the said partition, he got about 9 acres of land and a house towards his share. D. W. 9 Brundaban Das is a nephew of Appanna Das. He stated that defendant No. 1 had separated from his father long before thelatter's death. Although he was not present at the time of the alleged partition nor has he seen any document evidencing the partition vet he being closely related to the family, his statement that defendant No. 1 had separated from his father cannot be lightly brushed aside. D. W. 12 who is one of the two Bhadralogs who brought about the partition states that as defendant No. 1 was not obedient to his father and there was constant quarrel between the wife of defendant No. 1 and the wife of Appanna Das, partition took place. D. W, 13 is defendant No, 1 and he deposed that he separated from his father five years before the latters' death and in that partition, he got 9 acres of land, a house and a cow-shed towards his share. Subsequently to the partition, he executed the document Ext. K dated 2-6-1956 relinquishing in favour of his father Appanna Das and his brother defendant No. 3 all his rights in the properties which fell to the share of Appanna Das and defendant No. 3 in the partition. A little more than three months thereafter. Appanna Das on behalf of himself and his minor son defendant No. 3 executed the document Ext. K-1 relinquishing in favour of defendant No. 1 their right in the properties which fell to the share of the latter in the partition. Both Exts. K and K-1 are registered documents and their genuineness cannot therefore be doubted. Although under notice Ext. 10 dated 28-10-1963, the Collector of Ganjam called upon defendants 1. 2 and 3 and their mother to pay up the suit dues and in reply thereto in Ext. 11 (b) dated 20-12-1963, defendant No. 1 disclaimed his liability on the ground that he had separated from his father before the latter's death and reference is made in this reply to the deed of relinquishment Ext. K. the plaintiff has nowhere alleged in the plaint that the deeds of relinquishment Exts. K and K-l are sham and nominal documents and had been executed for some ulterior purposes. Reference is made in Exts. K and K-l to the prior partition and to the fact that in the said partition, properties in respect of which defendant No. 1 relinquished his right under Ext. K had fallen to the share of Appanna Das and his son defendant No. 3 and the properties in respect of which Appanna Das and his son defendant No. 3 relinquished their rights in the documents Ext. K-l had fallen to the share of defendant No. 1.
8. The learned Subordinate Judge was of opinion that Exts. K. and K-1 do not afford any support to defendant No. 1's plea of partition because these two documents neither purport to be nor in fact are deeds of partition. In expressing this opinion, the Learned Judge appears to have been completely oblivious of the circumstances under which a parti-tion amongst the members of a joint Hindu family can be brought about. Partition in a Hindu Mitakshara joint family is a severance of the joint status and consequently is a matter of individual volition. All that is necessary to constitute a partition is a definite and unequivocal indication of his intention by a member of a joint Hindu family to separate himself from his family and enjoy his share in severally. This principle is so elementary and fundamental that no authority is required to support it. It is, however, necessary that such declaration of intention should be to the knowledge of the persons affected thereby and once a member of a joint Hindu family has clearly and unequivocally intimated to the other members his desire to sever himself from the joint family, there is immediate severance of the joint status. The intention to separate may be evinced in different ways either by explicit declaration or even by conduct. It is having regard to these principles that the true import of Exts. K and K-l has to be construed. The joint family of Appanna Das consisted of himself and his three sons Defendants 1, 2 and 3. The case of defendant No. 2 that while he was still a young boy he was given away in adoption to his maternal grandfather has been accepted by the Subordinate Judge and the registered deed of adoption Ext. N dated 25-7-1950 executed by his adoptive father shows that the adoption took place on 30-5-1949. At the time of the alleged partition of defendant No. 1 from the joint family in 1956, the joint family consisted of Appanna Das and his two sons defendants 1 and 3. Ext. K was executed by defendant No. 1 and Ext. K-1 by Appanna Das and defendant No. 3. In each of these two documents, there is a recital about a previous partition by which defendant No. 1 had separated from the family and was allotted some properties. Exts. K and K-1 may not be deeds of partition, but the recitals made therein cannot leave anybody in doubt that there was a prior partition in the family. At any rate, the recitals in Exts K and K-1 would amount to expression of intention by defendant No. 1 to separate himself from the joint family and to enjoy his share separately. These documents the genuineness of which is not open to any doubt completely support the oral evidence let in on the side of defendant No. 1 regarding the alleged partition, Ext. P/2 which are entries in Panchayat Tax Demand Register of the Gerabandh Grama Panchavat show that Appanna Das and defendant No. 1 had been assessed separately to tax. thereby lending further credence to defendant No. 1's case of a prior partition. The evidence on record both oral and documentary establish beyond doubt that defendant No. 1 had separated from his father Appanna Das in 1956, and consequently, he will not be liable for the suit liability which Appanna Das admittedly incurred in the year 1959. The appeal so far as it relates to defendant No. 1 must, therefore, be allowed.
9. So far as defendant No. 2 is concerned, it has already been stated that the learned Subordinate Judge has found that defendant No. 2 had been given away in adoption to his maternal grandfather long before Appanna Das had incurred the suit liability. But it is surprising to find that the learned Judge had also passed a decree against defendant No. 2 for the suit amount. This was obviously done because the learned Judge has found that after the death of Appanna Das, defendant No. 2 had obtained from defendant No. 3 and his mother a sale deed in respect of the properties left behind by Appanna Das and that the sale deed is collusive and not supported by consideration. Assuming that such a finding is called for in the suit and is correct, still it is difficult to understand how on that account defendant No. 2 would become liable to discharge the suit debt. If it is plaintiff's case that the sale deed Ext. M under which defendant No. 2 had purchased the properties is collusive and without consideration it is open to the plaintiff to proceed against those properties in execution of the decree obtained against defendant No. 3 and it is at that stage when defendant No. 2 would claim the properties on the basis of his sale deed Ext. M., that the Court would be called upon to decide about the validity of such a claim. An investigation regarding the validity of Ext. M in the present proceeding is wholly unwarranted specially so because no issue regarding thereto has been raised in the suit. We would accordingly set aside the finding of the learned Subordinate Judge regarding the validity of the sale deed Ext. M and leave the question open to be decided as and when any claim is preferred thereunder by defendant No. 2.
10. Defendants Nos. 3, 4 & 5 have not filed any appeal against the decree and consequently the decree passed against them would stand. Under the surety bonds executed by defendants 4 and 5 each of them had undertaken liability only to the extent of Rs. 5,000/- and this is also so found by the learned Sub-ordinate Judge in para. 14 of his judgment. But in passing the decree he has not limited the liability of each of the defendants 4 and 5 to the extent of Rs. 5,000/- which ought to have been done.
11. In the result, we would allow the appeal and set aside the decree in so far as it is against defendants 1 and 2. The decree in so far as it relates to defendants 3, 4 end 5 would stand subject to the modification that the liability of each of the defendants 4 and 5 is limited only to Rs. 5,000/-. The plaintiff (respondent No. 1) shall pay to the appellants the costs incurred by them here and in the Courts below. Defendant No. 3 would not be personally liable but his liability would be limited to the extent of the assets of his father late Appanna Das in his hands.
S.K. Ray, J.
12. I agree.