Venkatasubba Rao, J.
1. The dispute in this case relates to property valued at several lakhs, and the points that have been raised have been argued very fully. In the following genealogical table, which sets forth the relationship of the parties, are also noted certain important dates:
d. 17th October 1879
m. Kamalabai or Akka.
| | | | |
Muralidoss Govardhandoss Balamnkun- Bhaga Subroyadoss
d. 24th April 1907 d. 26th Sept. 1999 doss (d. 1896) vandoss (alive)
m. Yasodabai m. Kammubai, D. 5 m. Rukkubai d. 1911 m. Godavari.
or Jessubai d. Jany. 26. m. Kun-
or Jessu. danbai.
| | | |
Putlibai Krishna loss Gokuldoss Dwarakadoss.
alias b. 16-5-84 (1st Deft.) (2nd Deft.)
Nani or d. 13-8-08 b. 6-4-85 b. 12th Nov. 91
Nanu m. Radha- m. Ganga- d. 14-1-25
m., Laul bai (4th bai. m. Jamna Bai.
doss Deft.) |
| | |
Jaya- Babu alias Ramdoss (3rd
Krishna Govinddoss Deft.)
died b. 18th b. 9-8-14.
2. The principal question to be decided is, are the rights of the parties to be determined on the basis of a contract of partnership or on the footing that they are coparceners of a joint Hindu family? Ramdas Ganshamdas was carrying on trade in yarn and died in 1879. After his death, his sons continued the family trade and lived as members of a joint Hindu family. Disputes arose among them and they executed muchilikas (submissions) in favour of an arbitrator who, on 27th September, 1890, delivered his award in writing, effecting a partition of the family properties. The plaintiff alleges that Moralidas and Govardhandas, as a result of the partition, became the owners of the family business, and continued thereafter to trade jointly and as partners. In course of time, he goes on to allege, Krishnadas and Gokuldas were admitted into the partnership, Muralidas died in 1907, and Krishnadas in 1908, and the partnership was afterwards continued by the surviving partners, Govardhandas and his son. The former died in 1909 and the trade was continued by his sons, Gokuldas and Dwarakadas. The plaintiff claims that, as the son of Krishnadas, he is entitle'd to have an account taken of the affairs of the partnership, which, he contends, became dissolved on the latter's death in 1908. As the above table shows, the principal parties to the contest were the plaintiff, the 1st, 2nd and the 3rd defendants. Subsequent to the suit, the 2nd defendant died and the 1st defendant became an insolvent and his estate is now represented by the Official Assignee, Madras, who has been brought on the record as the 6th defendant.
3. The defence of the Official Assignee is, that the partition of 1890 did not affect the status of Muralidas and Govardhan, that it was a partial partition in regard to parties and that its effect was to sever the remaining three brothers alone from the family. He thus contends that Muralidas and Govardhandas continued to remain, as before, members of a Hindu coparcenary. Should, however, the Court hold that there was a partition between them inter se, he maintains in the alternative, that immediately or some time thereafter there was a re-union between them, which involves in law (so he contends) a restoration of the joint family status. Gokuldas, the Official Assignee alleges, dealt with the property not as the surviving partner but in his capacity as the managing member of the undivided joint family and that the plaintiff is bound by the acts of the said manager. The plaintiff answers, not only that there was no re-union in fact between Muralidas and Govardhandas, but that, in law, there could not have been a valid re-union. He also contends that re-union does not in law restore the original joint family status, bust that it merely gives rise to a rule of preferential succession. The importance of this contention to the plaintiff is obvious. If it is accepted as sound, it follows that whether there has been re-union or not, the right which he claims in this suit remains unaffected. If re-union does not lead to a restoration of the coparcenary, with its various incidents, including the power of the manager to bind the other members by his acts it matters little to the plaintiff on the facts of this case whether it is held that there was or was not a valid re-union. The alienations of Gokuldas are sought to be made binding on the plaintiff on the supposed ground that they are the acts of a managing member and if this ground does not exist, the plaintiff's liability disappears along with it.
4. The questions that are raised may be thus shortly stated:
(1) Did the partition of 1890 effect a severance between Muralidas and Govardhandas?
(2) Could there be a re-union valid in law?
(3) Does a re-union lead to the restoration of the joint family, or, does it merely give rise to a special rule of preferential succession?
(4) If there was a severance, was there in fact a subsequent re-union?
5. Point 1. - The first contention for the defence is, that there was no separation between Murali and Govardhan inter se and that they continued to remain joint. It is suggested that there was in fact a partial partition, the other three brothers separating from the family leaving the status of Murali and Govardhan unaffected as members of a coparcenary.
6. It is a well-settled rule of law that where the language of a document is plain and unambiguous, extrinsic evidence cannot be received to explain or control its terms. Dealing with the point whether there was or was not a partition, the Judicial Committee laid down this rule in Balkishen v. Ram Narain (1903) 30 I.A. 139 : I.L.R. 30 C. 738. The High Court, having in effect held that the instrument in question was unambiguous, proceeded to construe its terms in the light of the subsequent acts of the parties. Their Lordships while reversing the judgment of that Court, enunciate the principle, that where the instrument is plain and unequivocal, evidence of conduct cannot be received for elucidating its terms. There is a striking application of this rule in the North Eastern Railway Co. v. Lord Hastings (1900) A.C. 260. The importance of the case lies in the fact that the parties acted upon the agreement for more than 40 years from its date, in a sense opposed to the clear meaning of the words; but this did not prevent the Court from excluding extrinsic evidence.
7. Lord Halsbury observed:
No amount of acting by the parties can alter or qualify words which are plain and unambiguous.
8. In the judgment in that case is cited Clifton v. Walmesley (1794) 5 T.R. 564 which also illustrates the rigour with which, this rule is applied. There are, of course, cases where extrinsic evidence was received, but that was because the words were ambiguous and of doubtful import. In Watcham v. Attorney-General (1919) A.C. 533 the instrument contained an ambiguity and evidence of user was in consequence admitted. In Ma Thaung y. Ma Than (1923) 51 I.A. 1 : I.L.R. 51 C. 374 the contract was 'open to different meanings.' Ram Pershad Singh v. Lakhpati Koer (1902) 30 I.A. 1 : I.L.R. 30 C. 231 belongs to the same category. The partition was effected by a decree which, as the head-note points out, was ambiguous. It was so 'imperfect in form' that it could be relied on to support the inference of separation (see page 9) as also the argument, that its legal effect was to negative separation. (See page 10). In such cases, the Court looks at the acts done by the parties under the ambiguous deed, as affording a clue to their intention, the principle being, in the words of Lord Sugden,
Tell me what you have done under such a deed, and I will tell you what that deed means. Attorney-General v. Drummond (1842) 1 Dr. & War. 353.
9. Sir C.P. Ramaswami Aiyar for the defence has made a strenuous effort to show that there is an ambiguity in the partition award in question, and I shall now proceed to closely examine the terms of that instrument. I may note that it is a long but carefully prepared document and deserves careful perusal. Of the five brothers, Subbaroyadoss (the youngest) was a minor and was represented by his mother Kamalabai. The award sets forth in great detail the properties owned by the family and the outgoings and says that the total value of the assets available for division is 1 lakh and 70,000 odd. The property is divided into five shares, each share amounting to Rs. 38,514. The net assets are ascertained only after due provision is made for the unmarried girls, the mother of the parties, the wives and sons of the major coparceners (including Murali and Govardhan). Similarly, sums are set apart for the marriages of Baghavandoss and Subbaroyadoss, two of the five brothers, whose marriages had not by then been performed. The division is complete and thorough, even such trifles as mirrors and mats not being omitted. The deed goes on to describe in what manner the share of each has been allotted. There are long and complete lists of properties set apart for each of the coparceners. The document then winds up with a very significant passage. It says that each of the parties mentioned in the deed (including again Murali and Govardhan) has separately received his share and that each shall enjoy the properties set apart for him and none of them is to have any right against the other. The last part is thus rendered by the Court Interpreter:
So, from now, each of you shall hold and enjoy the moveable and immoveable properties accruing to his respective shares from generation to generation through sons and grandsons and with all right to gift, exchange, sell and mortgage. In the course of such. enjoyment, there shall exist among you only the connection of the right of pollution hereafter and there shall not be any connection of money or debt to the least extent as amongst one another. Such is the panchayat award written and given by me.
10. It is impossible to regard this document as anything but an out-and-out partition. It is difficult to express in clearer or more forcible language that the parties intended to separate each from the other. If the instrument is unequivocal, it follows that no evidence of conduct to explain its terms can be received. I shall now examine the grounds which have been put forward to support the theory that this document did not effect a severance between Murali and Govardhan.
(1) It recites that what led to the partition were disputes between Murali and Govardhan on the one side and the three remaining brothers on the other. Does this affect the nature of the transaction? Can it be urged that as there were no quarrels between the remaining three, there was no division among them inter se? This has not even been suggested.
(2) The scheme of the partition is this. There was a yarn business that was being carried on. The deed does not say so in terms, but there can be very little doubt that it was intended that the trade was to be taken over as a going concern by Murali and Govardhan. Three of the four houses were also assigned to them. The bulk of the property having thus been given to these two, they passed, in order to equalise shares, promissory notes for unequal amounts in favour inter clia of their three brothers. Each of these promissory notes was for about Rs. 30,000. It was apparently contemplated that Murali and Govardhan should live and trade together, that the other three brothers should even after separation continue to reside along with the former and practically as members of their household. This probably explains the curious fact that among the items allotted to the last three brothers, household utensils and furniture do not find a place, for, if they were not expected to maintain an independent home, why should they need them? Then again, if it was intended that Murali and Govardhan should carry on the business jointly after partition, what would be more natural than to allot to them conjointly the trade and the trade assets as a going concern? This cannot show that there was no separation between them. Why should not brothers who have ceased to be coparceners become partners? Though the value of the stock of yarn given to Murali and Govardhan was equal, the cash which also formed part of the business was unequally allotted (Murali Rs. 15,000 odd, Govardhan Rs. 18,000 odd). Though, in effect, the business as a going concern was given to these two brothers, the allotment of shares was distinct and (this I regard as important) the concern was not assigned to them even formally in two equal halves; in other words, so far as the instrument goes, it effects a clear and decisive severance, although it may be spelt out from the deed that the business was jointly handed to them. In regard' to the houses, similarly, they were not jointly allotted to Murali and Govardhan; on the contrary, a moiety of each of the three houses was valued and separately allotted to Murali; and that process was repeated in the case of Govardhan. These facts, far from showing that there was no division between them, prove the very reverse, namely, that they intended that their relation as coparceners should come to an end.
The contention put forward for the defence in fact amounts to saying, that because there was not a division by metes and bounds in regard to certain items, it, therefore, follows that the deed did not effect a severance. It has been repeatedly held that physical or de facto division is not essential to a separation. If the parties agree to hold the property in defined shares as separate owners, such an agreement, evidencing as it does an intention to separate, (for intention is the decisive test), operates as an immediate partition; there is a division of title and interest, what is postponed being a division by metes and bounds. Appovier v. Ramasubba Aiyan (1866) 11 M.I.A. 75.
(3) I now pass on to the next contention. The deed says that the arbitrator was required to take an account of the business only to the 3rd November, 1888; but the partition was made on the 27th September, 1890. I am unable to follow the argument that this indicates that Murali and Govardhan intended to remain joint. If you have to effect a partition, you must prepare a balance sheet, which represents a state of things, as they exist on some date, nearest in point of time, to the date of the partition it self. What more convenient date can one suggest than the close of the business year? The samvat year ended on the aforesaid date, the 3rd of November 1888, and the first of the muchilikas (submissions) executed in favour of the arbitrator bears the date the 7th of January 1899; and the interval between the two dates barely exceeded two months. Is there anything surprising in the accounts being treated as closed shortly before the date when the arbitrator was to' enter upon his duties? The argument is indeed quite untenable, for the deed itself shows that though the accounts were taken to the 3rd of November 1888 interest was added upon cash and properties from the following day, the 4th of November (the commencement of the New Year) almost to the very day of the partition.
(4) It is next suggested that the shares of Murali and Govardhan were defined, not with a view to effect a severance between them, but in order to calculate their shares for enabling the other brothers to separate. This, of course, might have been done see Palani Ammal v. Muthuvenkatachala Moniagar but, in fact, was not. There is not a single term in the deed which lends the slightest support to this contention.
11. I have now dealt with the arguments advanced to show that the deed did not effect a severance between Murali and Govardhan and, as I have shown, they are utterly unconvincing; but granting for a moment that the instrument is ambiguous and it is therefore permissible to examine subsequent conduct and acts of parties to throw light upon their intention, the evidence that has been adduced is, as I shall point out in a later section, more consistent with the hypothesis that there was a complete severance than that there was not. I shall at once refer to one circumstance which I regard as crucial. Immediately after the partition, Murali and Govardhan agreed to bear their house-keeping expenses in certain defined shares. This is utterly incompatible (I am here considering the theory of non-division and not re-union) with the notion that they intended to remain as before members of a coparcenary. When such an act comes close upon the heels of the partition, that, to my mind, affords the most cogent evidence, that what was intended was a separation, resulting in a disruption of the joint family.
12. I shall now deal with the next contention, that reunion between Murali and Govardhan was legaly impossible, as each of them had a minor son in existence. The argument is put by Mr. Varadachari (for the plaintiff) in two ways : First, the fathers could not re-unite carrying by their act, into the re-united family, also their sons, for it is said, that under the Hindu Law, this is not one of the recognised powers of the father; secondly, the fathers could not re-unite, leaving out their sons, as re-union presupposes junction of estates, and they being joint with their sons, could not bring into the pact, any property. I do not think I can accede to this contention. At the time the fathers made the partition, was there any exercise of volition on the part of the sons? They being minors, ex hypothesis there was not. The partition was by the different heads of the branches and their act affected of necessity the status of the sons. The partition which the fathers entered into not only separated each branch from the rest but also automatically severed each son from his uncles. The text of Brihaspathi says that certain persons who have entered into a partition can re-unite. More often than not, adult coparceners entering into a partition have sons; and if it was intended that in the event of a party having a son, he could not re-unite, it is impossible to conceive that the law-givers overlooked to provide for such an obvious contingency. The sons were but constructive parties to the partition; they must similarly be deemed constructive parties to the re-union. It is then urged that it is contrary to principle to hold that the father, by re-union, can affect the son's status. The Hindu Law does recognise the father's power to alter the son's joint family status into one of separation. There is nothing inherently illogical in the father, therefore, possessing the power of converting his son's status of a separated member into that of a re-united member. The rule of law which gives the father unqualified power to give away his son in adoption and thus alter his status and position, is a parallel conception and may furnish a useful analogy. In, this connection it has also to be borne in mind that the father can effect a partition among his sons inter se against their will. Next, the argument based on the analogy of alienations and dispositions seems to my mind equally out of place. The power to make a partition the father possesses not because of any supposed benefit he is thereby conferring upon the son, but this is recognised under the Hindu Law as a power inherent m him. It takes no notice of the possible benefit or detriment to the son; for example, by separating the son from his uncle, the father puts an end to the son's chance of succeeding to his uncle's property by survivorship. Similarly, re-union on the part of the father may in a certain event prove prejudicial to the son's interest; but it may also result in a positive benefit to him. If the son dies in a state of re-union, his uncle may exclude his widow, but if the uncle predeceases the son, the latter takes his property by survivorship. Failure to keep distinct the theory of dispositions, where benefit is generally the test, and the theory of partition, which takes no account of such benefit, must tend to confuse legal issues. I may pursue the point a little further. If the sons in existence at the partition are not minors but adults, does that fact present any difficulty? In this instance, the sons are either passive parties to the partition, the fathers representing them in that transaction and effecting a severance of the branches, or, they are active parties, in the sense, that, as, a result of the partition, they have become severed even from their fathers. In the former case, as the fathers, by entering into the partition, necessarily affected their sons' status, similarly they may, by re-uniting, carry their sons, as a matter of course, into the re-united group. Neither at the partition nor at the re-union, is there an independent exercise of volition on the part as the sons. In the latter case, the sons being not constructively but actively parties to the partition, it is open to them to join their fathers in reuniting, or, to refuse to re-unite. It is asked, if the partition leaves the father and the son joint and undivided, does it not impose a hardship upon the son, to hold that the father, by his own act, can force the son back into the original family? The son possesses an obvious remedy, for there is nothing to prevent him from insisting on an instantaneous partition from his own father. Even granting that some extreme cases of hardship may be conceived, that is no reason why one should refuse to recognise the deductions that logically follow from the primary conceptions of the Hindu Law.
13. I need not deal separately with another contention, or rather another aspect of the same contention, namely, that first cousins cannot re-unite, as they are not among those mentioned in the text of Brihaspathi. The re-union alleged here is not a re-union of the first cousins. Their re-union is but incidental to the reunion of their fathers; in other words, if the fathers re-unite, that act by its own fore brings about the re-union of their sons. But if it is said that the first cousins were parties to the partition and therefore necessarily parties to the re-union, even then, there is no legal bar to the re-union, as under the Vyavahara Mayukha by which the parties are governed, a person may re-unite with any relation who was a party to the original partition. The contention advanced on behalf of the plaintiff is, therefore, unsound and must be rejected.
14. Point 3. - Mr. Varadachari next contends that re-union merely gives rise to a rule of preferential succession, but does not lead to a restoration of the coparcenary; when there is a disruption of a joint family, that disruption is once for all, the members who have gone asunder can never again come together. Mr. A. Krishnaswami Aiyar for the defence urges, on the other hand, that re-union cancels the partition and remits the parties to their original status and that they thus become subject to all incidnts of a Hindu coparcenary. The preponderance of the authority of the commentators seems decidedly to favour the view put forward for the defence. Where the Mitakshara prevails, a re-united brother (just as in the case of non-division) succeeds in preference to the deceased's widow. How can this be explained on the theory that re-union merely gives rise to a rule of preferential succession? If the effect of the re-union is to reject a relation not associated, in favour of, a relation so associated, on what ground is a wife excluded, who lived in union with her husband during his life? The conception underlying the exclusion of the widow seems to be, that there has been a restoration of the coparcenary.
15. Mr. Varadachari points out that it is not a universal rule that a re-united relation is preferred to one un-re-united. He gives the following examples:
(1) If the deceased leaves a re-united full brother and an un-re-united half brother, each takes a moiety of the property.
(2) Then, again, as between a re-united full brother and a re-united half brother, the former excludes the latter.
(3) In the case of a competition between a re-united brother and a divided un-re-united son, the latter is preferred.
(4) If the deceased leaves a re-united son and an un-re-united son, they both take together (although this rule is not accepted by all the schools).
16. These instances show, Mr. Varadachari urges, that the rule of survivorship does not apply in its integrity in the case of reunion. From this, he argues, that re-union does no more than give rise to a special rule of succession. I do not think it can be postulated, that because there are recognised deviations which do not fit in with the scheme of an ordinary joint family, therefore, it follows that re-union does not remit the parties to their original joint family status. It is profitless to speculate on this subject, for the question ultimately depends on, what is the true conception of a re-united family according to the ancient writers? Mr. Krishnaswami Aiyar and Mr. Varadachari have in their able arguments cited several passages from authoritative works.
17. In Viramitrodaya, there is a discussion of the wife's right to succeed to persons separated and not re-united. Passage after passage shows that the writer assumes that a re-union leads to a re-creation of the joint family. The following is a typical passage:
Since when the husband dies unseparated, he had no (specific) share at all, then what will the wife take? And if re-united, then although his share had been specified, it was lost by reason of the accrual of a common right over again. Nor can it be argued that there is certainly his1 undefined share although it is the subject of a common right. For although this be admitted, still on the death of one by whose relation the right became common, the succession of him alone whose right subsists is proper, but not the supposition of the accrual of another's right.' - Setlur's Translation, p. 398.
18. Viramitrodaya is here combating the view of Jimutavahana that a widow is not excluded in a joint or re-united family.
19. Vyavaharamayukha and Sarasvathi Vilasa seem also to assume that re-union leads to a restoration of the joint family.
20 There is a passage in the Dayabagha in which this idea is forcibly brought out. It is worth reproducing and is thus rendered by Sircar in his Viramitrodaya:
Accordingly Vrihaspati says : 'He who having been separated dwells together again through affection with the father, brother or the paternal uncle is called re-united with him.' From this text it appears that the father, brother and the paternal uncle who are from their birth likely to be united as regards the property acquired by the father and the grandfather, they alone may become re-united when having been once separated they annul through mutual affection the previous partition with an agreement to the effect that the wealth which is mine is thine and what is thine is mine, and remain as one householder as before in commensality and undivided (in any transaction). Those, however, who are unlike these are not to be considered re-united by reason of the mere union of property; for if that were so, then the term 're-union' would be applicable to a joint stock company of traders. Accordingly the term 're-union' is not applied to brethren who manage their estates holding them joint for the sake of convenience, but arc without the stipulation based upon affection.
21. Smriti Chandrika alone sounds a note of dissent. It deals with the status of re-union as a strictly contractual relation giving rise to certain special incidents and says that the shares shall on a partition correspond to the original capital brought in by each person at the time of the re-union. There are obiter dicta of Sankaran Nair, J. (sitting alone) in Alamelumanga v. Nambenunial (1914) 15 M.L.T. 352 : 23 Ind.Cas. 824 where the learned Judge accepts this doctrine. But this is opposed to the decisions of this Court and I am not aware of any other case in any part of India where this view has been adopted.
22. I shall now examine the decided cases on the point.
23. Narasimhacharlu v. Venkata Singaramma I.L.R. (1909) M. 165 : 19 M.L.J. 719 decided by Wallis and Miller, JJ., is a useful case on the point. Two brothers A and B re-united; of whom A died leaving C his son, born subsequent to the re-union. On C's death, who succeeded to his property, D, his widow or B, his uncle? It was held that the rule of survivorship applied and the uncle was preferred to the widow. This case establishes
24. First, that by re-union, a joint interest with right of survivorship is created and not merely a tenancy-in-common, and.
25. Secondly, that the state of re-union continues with the descendants of the re-uniting parties.
26. In this case, it is to be observed that the lower Court took a different view, the view now pressed by Mr. Varadachari; and the judgment is valuable, as it was given after very full arguments were heard on the point.
27. This case and not Ramaswami v. Venkatesam I.L.R. (1892) M. 440 : 1892 3 M.L.J. 107 as is wrongly stated in the judgment) was followed in Nena v. Parbhu 75 Ind.Cas. 508 where the Patna High Court held that the effect of a re-union is to restore the joint family status with its incident of survivorship. When two brothers governed by the Mitakshara law, after separation agreed to be joint, stipulating, however, that they should hold the property in unequal shares, the learned Judges decided that there was no valid re-union, on the ground that the condition was opposed to the essential character of a Hindu coparcenary, relying upon the text 'The property which is mine is thine, and that which is thine is mine.' See also Gopal Chunder v. Kenaram (1867) 7 W.R. 35.
28. In Krishniah v. Guruvia : AIR1921Mad443 the property to be partitioned was that of re-united brothers; but the rules which guided the Court in every respect were those which would be enforced in the case of an ordinary Hindu coparcenary. The point was fully discussed by Phillips, J., with reference to the doctrine, which the learned Judge refused to accept, namely, that the shares are proportionate to the capital contributed at the time of the re-union. The general principle was recognised that the rules governing the relations of parties after re-union in respect of partition are those applicable to an ordinary joint Hindu family.
29. Ramaswami v. Venkatesam I.L.R. (1892) M. 440 : 3 M.L.J. 107 is relied on as supporting the opposite contention. As has been pointed out in Narasimhacharlu v. Venkata Singaramma I.L.R. (1909) M. 165 : 1909 19 M.L.J. 719 this case does no more than give effect to some express texts of the Hindu law, which modify the strict rule of survivorship in favour of un-re-united uterine brothers.
30. Some light is thrown on the subject by the observations of the Judicial Committee in Prankishen v. Mothooramohun (1865) 10 M.I.A. 403 which have been relied on in subsequent cases. If, after separation, and before re-union, one of the brothers acquired a property out of funds which had once been joint, did the property become that of the re-united members, or, did it belong exclusively to the party who acquired it? While holding that all the members who re-united became entitled to it, their Lordships, as the ground of their decision (apart from the deed which regulated the rights of the parties) state the rule, that re-union of brothers remits them to their former status as members of a joint Hindu family. - (See pages 406 and 412.)
31. The dicta in Krishniah v. Venkataramiah (1903) 19 M.L.J. 723 (decided by three learned Judges of this Court), Jasoda Koer v. Sheo Pershad (1889) I.L.R. 17 C. 33 and Abhai Churn v. Mangul I.L.R. (1892) C. 634 are clearly to the same effect. In at least three cases, the Judicial Committee has used language which implies that re-union remits the parties to their original status. Jatti v. Banwari Lal (1923) 50 I.A 192 : 45 M.L.J. 723, Palani v. Muthuvenkatachala Moniagar (1924) 52 I.A. 83 : 48 M. 254 : 48 M.L.J. 83, Jag Prasad v. Mussamat Singari (1924) 49 M.L.J. 162.
32. Cases under the Dayabagha Law dealing with succession to re-uhited relations can be no guide, as, whether there is reunion or not, the rule of survivorship does not apply; but there are other incidents attaching to a joint family which are common alike to the Mitakshara and the Dayabagha systems. I have not been shown any case, where, in respect of a re-united family, those incidents have been held inapplicable under the Dayabagha law. I may cite a typical passage to show that the contrary is assumed.
In other words, we think that, if a re-union actually takes place between the proper parties, their representatives and descendants, however remote, will remain joint until a fresh partition takes place, exactly in the same manner as in an ordinary case of a joint family the -members remain joint until partition. Tara Chand v. Pudum Loching (1866) 5 W.R. 249.
33. The passage relied on by the plaintiff in Bala Bux v. Rukhmabai (1902) 30 I.A. 130 : 30 C. 725 does not help him. The partition was between two brothers Ladhuram and Girdharlal. It was alleged that there was a re-union after Ladhuram's death between Bala Bux, his minor son, and Girdharlal, his brother. Their Lordships' relying upon the well-known text of Brihaspati,
He who being once separated dwells again through affection with his father, brother, or paternal uncle is termed re-united
observe, that a re-union, properly so called, can only take place between persons who are parties to the original partition. It is assumed that Bala Bux was not such a party. (In the report there is no clear indication of his existence on the date of the partition.) Their Lordships were further disposed to hold that a valid agreement to re-unite cannot be made by or on behalf of a minor. I fail to see how this case has any bearing on the present question. The re-union alleged in the present case is a re-union between the fathers who were parties to the partition itself, and that fact further necessarily excludes any question of minority. In the result, I am not prepared to uphold the contention of Mr. Varadachari.
34. Point 4: (a) General. - At the outset I must mention that though this point expressly relates to re-union, the case of non-division as well as re-union depends upon the same evidence and it is therefore needless to examine it under two separate heads. The plaintiff's case is, that the partition of 1890 effected a complete severance between the five brothers and that thereafter Murali and Govardhan traded in co-partnership. For the defence it is urged that the deed of partition did not affect their status but that if it did, their separation was followed by a re-union. Two alternative dates for re-union have been suggested: first, 1890, immediately after the partition; secondly 1900. According to the plaintiff, the partnership originally consisted of Murali and Govardhan, and 16 years afterwards, i.e., in 1906, their sons, Krishnadoss and Gokuldoss were admitted into the firm as partners. He relies upon a very important piece of documentary evidence, a notice dated 19th October, 1906, published by Murali and Govardhan, in the Madras Mail and in the Fort St. George Gazette (handbills were also distributed) announcing that Krishna and Gokul were taken as partners from the 19th of October, 1906, and that the name of the firm would remain unchanged. Thus, we have a definite case of partnership as against the case of coparcenary. Which of these two versions is the correct version?
His Lordship then fully discusses the evidence bearing on this (the fourth) point.
The result of this investigation is that from 1898 to 1909, the parties, with whose state of mind we are concerned, repeatedly made solemn declarations, in deeds as well as in pleadings, under the guidance of several legal advisers - declarations which lead to the irresistible inference, that their status was not that of coparceners but of separated members who combined and traded as partners. If this is the effect of the documents it may be asked, where then is the conflict to which reference has been made?
* * * *
What does the announcement of 19th October, 1906, amount to? Does it or does it not accord with the theory of partnership? Till then, Murali and Govardhan represented in the partnership two distinct joint families, each representing an entity consisting of himself and his son or sons. In strict law, the partners in the business were these two individuals, and not the two families which they represented. By reason of the step then taken, Krishna and Gokul ceased to be what they till then were, dormant passive coparceners, but thenceforward assumed a new position, that of active partners.
I may conveniently deal here with two other arguments put forward with great force by Sir C.P. Ramaswami Aiyar. He first comments on the fact that the plaintiff has not adduced oral evidence. Is it the plaintiff's fault, that his grandfather Murali, grand-uncle Govardhan and his father Krishna are dead? As for Gokuldoss, though he may be suspected of collusion with the plaintiff, it is inconceivable that he should be cited as the plaintiff's witness, having regard to his conduct and statements since 1909, Granting that the plaintiff was so rash as to examine Gokul, would the latter imperil his position by deposing against the Official Assignee, who now represents his estate
Adverse comment has also been made, that the plaint, as originally filed, was on the footing of a coparcenary, and that allegations in regard to partnership were subsequently added by way of amendment. When the suit was instituted, the plaintiff was a minor and was represented by his next friend, Laldas, his paternal aunt's husband. True, this man lived with the family from about 1891 and might be expected in the ordinary course to be aware of the right legal position. But the theory of coparcenary won by degrees upon those concerned from 1909 to 1923 (a period of 15 years), and Laldas, like others in this case, came to believe in the falsehood so persistently repeated. During the whole of this period, the plaintiff was a minor and he cannot be affected by what others thought or did.
(b) Accounts. - Now I pass on to another kind of documentary evidence that has been adduced. It consists of entries in innumerable account books and each side relies upon them in support of its own theory.
* * * *I have fully discussed the facts bearing on re-union. Let me now sum up the position briefly:
(1) If after Murali and Govardhan became separate by reason of the partition they carried on business jointly it would be more proper to infer that they combined to trade as partners than that they intended to revert to their original position of members of a joint family. This would not only be the proper but natural inference.
(2) Jointness in residence, food and worship does not necessarily connote re-union, no more than is a separation in these respects, conclusive proof of partition.
Choudhuri Ganesh v. Mussumat Jewach (1903) 31 I.A. 10 : 1903 14 M.L.J. 8. The facts of this case make the first part of this proposition self-evident. After the partition, it was not only Murali and Govardhan that lived together but all the five brothers, yet the alleged re-union is only between those two and not between the five. Again previous to 1900, at any rate, so far as Subbaroyadas was concerned, expenses of his mess and worship were met out of the common fund. It is not on this account suggested that Subbaroya became a member of the re-united group. Then subsequent to 1900, all the five brothers met their expenses both household and worship out of the same fund, from this it is not argued, that the five brothers became re-united.
(3)Though Murali and Govardhan bore in common, certain expenses, which fact suggests a coparcenary, there were many transactions which partake of the nature of a strict accounting between the parties; and this is utterly incompatible with the theory of a joint family. Division into shares of expenses of house-keeping and of worship is essentially a characteristic of a separated status.
In this connection it is important to bear in mind the observations of their Lordships of the Judicial Committee that a re-uniting is for obvious reasons 'of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved'. See Palani Ammal v. Muthuvenkatachala Moniagar (1924) 52 I.A. 83 : 1924 48 M.L.J. 83; see also Bala Bux and Rukhmabai (1902) 30 I.A. 130.
(4) The entries in the account books by reason of their ambiguity may be inconclusive, but the declarations of Murali and Govardhan as to their own state of mind are unequivocal, and they show that they treated themselves as members of a partnership. These affirmations are particularly valuable, as they range over a long period and are found in deeds and pleadings prepared by their legal advisers.
(5) After giving due weight to such facts, as (if they stood alone), might point to a re-union, I have come to the conclusion, that the hypothesis which best reconciles all the facts of the case is, that Murali and Govardhan agreed to carry on business as partners and not to re-unite as members of a joint family.
34. In the view I have taken, it is unnecessary to decide whether Gokuldas exceeded his power as the managing member of a trading joint family in entering into transactions in the name of the Madras Import Co. If a finding were necessary, I am prepared to hold that the plaintiff has not made out this part of his case. Indeed, no argument has been adduced by his counsel to show that this business was in any way different from the business which had been previously carried on.
35. I must add that I ruled out certain documents which Sir C.P. Ramaswami Aiyar tendered in evidence as being utterly irrelevant. In adducing that evidence, he sought to show that in another Guzerati family, junior members were held out as partners although that family was undivided. He tendered a notice published in the papers to the effect that the said persons were partners; also a partition deed, which bore a date later than the notice. He puts his case thus: The partition deed being later in date, shows that on the date of the notice, the junior members in question were members of a coparcenary; in spite of that, they were publicly put forward as partners; it such a thing happened in connection with one family, why should it not be assumed that it happened in connection with another? The danger of accepting such evidence is obvious. Apart from any rule of evidence, before any conclusion can be drawn from the facts alleged, one must first find that those facts are true. In short, the Court must embark upon an enquiry as to the facts and circumstances of the family, to which the notice and partition deed relate. I have not the slightest doubt that they are inadmissible, but I have considered it desirable to give my reasons.
36. In the result, I declare that the plaintiff is entitled to have an account taken of the affairs of the partnership as on the date of the death of his father, namely, the 13th August 1908.
37. The Receiver shall pay the plaintiff as well as the Official Assignee their costs of the suit. I certify for two counsel for the Official Assignee. I fix the further remuneration of the guardian ad litem at Rs. 2,000 which the Receiver shall pay. (He has already been paid Rs. 500.)
38. In regard to further proceedings, I am asked to adjourn the case till after the re-opening and I do so accordingly.