1. The suit is one for partition. There were five brothers who were members of an undivided family. Defendants Nos. 3 to 14 are the descendants of the eldest brother, Sitarama Aiyar. Defendants Nos. 15 to 21 are the descendants of another brother, Srinivasa Aiyar. The third brother's name is Ramasami Aiyar. The plaintiff is the adopted son of the fourth brother, Gopala Aiyar. The 1st defendant was the youngest of the brothers. In the year 1874 Ramasami Aiyar obtained his share and divided from the rest of the family (Exhibit VI). In 1892 there was a partition amongst the other brothers of properties yielding between Rs. 30,000 and Rs. 40,000 a year. Gopala Iyer, the adoptive father of the plaintiff, continued to be the managing member on behalf of the family of the properties left undivided till his death in April 1893. Then the 1st defendant became the manager. Disputes arose in the course of his management and there was a reference to arbitration (See Exhibit C) in October 1893 of all claims in dispute. The family jewel-box and the box containing the documents relating to the debts due to the family were delivered to the arbitrators by the 1st defendant: but no final award was ever made or any partition effected by them.
2. The plaintiff now sues for his share of the properties which remained undivided. The Sub-Judge has passed a decree in favour of the plaintiff for his share of the immoveable properties and the jewels and also for his share of the debts that have been recovered by the various members of the family. From this decree the first defendant appeals. The appellant takes objection to the amount that has been awarded to the plaintiff for his share of the debts realized by the others. The Subordinate Judge finds that the following sums have been recovered by the various parties to this appeal from the debtors:
Rs. A. p.
first defendant ... 37,806 8 6
Third defendant ... 20,347 14 7
Fifteenth defendant ... 15,314 4 3
Plaintiff ... 5,842 14 10
Total ... 79,311 10 2
3. As each branch is entitled to a fourth share, the Subordinate Judge has decreed that those who have received anything in excess of their share should pay it to the others, that the latter might get their fourth. The 1st defendant has accordingly been ordered to pay to the plaintiff a sum of Rs. 13,984-15-8 1/2 which would represent the plaintiff 's one-fourth share of Rs. 19,827-14-61/2 less the sum which he has realized: to pay for the same reason to the 15th defendant Rs. 3,993-10-3; and has ordered the 3rd defendant to pay to the 15th defendant Rs. 520-0-0 1/2
4. It is contended before us by the Advocate-General on behalf of the 1st defendant that the plaintiff is entitled to recover only one-fourth of the amount realized by each defendant and that consequently his client is bound to pay to the plaintiff only a fourth of the sum received by him, i.e., Rs. 9,000 and odd, and that the claim of the other defendants, Nos. 3 and 15, to recover their shares from him is barred by limitation as those debts were realized by the 1st defendant more than three years before the date of the present suit and after he ceased to be the manager on behalf of the family. If there was no real division of right in the year 1892, then there can be no doubt that so far as the properties which remained undivided, in 1892 are concerned, the parties form a joint undivided family and Article 127 would apply to any suit brought by any one of the members to enforce his right against the others. But if there was a division in status even with reference to the properties which were not divided by metes and bounds, then the Article applicable to a claim to enforce the right in a joint family property, that is Article 127, would not apply. The question of fact, that it is, therefore, necessary to determine, is whether the members were divided in status in the year 1892. The 14th issue in the case raised the question so far as the defendants Nos. 15 to 21 are concerned, The first issue raised the question whether the plaintiff became divided from the 1st defendant in 1892. On the first issue the Judge finds--and that finding is not disputed in appeal before us--that the plaintiff and the 1st defendant continued to remain members of an undivided family since 1892 up to the date of Exhibit A (1901).
5. On the 14th issue there is no finding given by the Judge. But for the reasons stated it appears to be necessary to decide whether there was division of right. Now it is quite clear that all the lands that yield any income were as a fact divided in 1892. Of the immovable properties that remained to be divided in Schedule A. the Judge also finds--a finding which is not disputed before us--that all the items except 16 to 18 of the plaint schedule wore allotted to various co-parceners before 1892 and the Judge by his decree confirms their right to, and possession of, the houses and house-sites so allotted. Items 16 to 18 in the plaint schedule are of very trifling value, of less than Rs. 300 as valued in the plaint.
6. Then, in October 1893, arbitrators were appointed to make the necessary arrangements about the properties. When partial partition is admitted, the presumption is that there has been an entire partition both with reference to right and properties. Here it is admitted that by far the most valuable portion of the properties has been divided. There is no reason suggested why it was to the interest of the parties that they should continue to remain a joint family with reference to the portion left undivided, the result of which would be that on the death of any co-parcener his interest would descend not to his own representatives but would survive to the other members: whereas a reason may be suggested why the other properties were not actually divided. The reference to arbitration and the conduct of the arbitrators may probably account for it. All the documents were in their possession: and, as the Subordinate Judge has pointed out, it would appear that each of the three co-parceners, the plaintiff being a minor, was trying to recover what was due to himself or his own share. The evidence shows that the parties were living separately; they had separate dealings and separate accounts. They were paying income-tax separately: and in one instance, though it was after the institution of the suit, each received his own share of a judgment-debt which was due to them all. If they continued to be a joint family, then there would probably have been a managing member of the family. But after the reference to the arbitration there was no managing member. Exhibit VIII shows that objection was taken to the 1st defendant, the senior member, recovering a debt on behalf of the rest. The present 3rd defendant admits that after Gopala Aiyar's death there was nobody as manager of the undivided family properties though the 1st defendant was looking, for sometime, after the family affairs, after his death. The description of the properties referred to in Exhibit A and in Exhibit C which is relied upon by the pleader for the respondents is not of much weight. We have, therefore, no hesitation in coming to the conclusion that the parties must be treated as being divided in status since the year 1892.
7. Then it is contended by the Advocate-General that the debts recovered by any one of those members after such partition cannot be treated as joint family property and that the claim of any member to recover from the others his share of the money is, therefore, barred under Article 62. In the case of Arunachala v. Ramasamya 6 M.k 402, the plaintiff obtained a decree against his father for partition and a declaration of his right to recover one-third of a certain debt due to the family. The debtor paid it to the father, and the plaintiff sued more than three years after the payment by the debtor to recover his share of that amount. It was held that the plaintiff 's father was not a trustee for the plaintiff and his claim was barred under Article 62 of the Limitation Act. Similarly in Banoo Tewary v. Doona Tewary 24 C.k 309, in a suit brought by certain members of a family, who became separate in 1885, to recover their share of the debts realized by some other members of the separated family more than three years after the realization, it was held that Article 62 would apply and not Article 127 and the suit was held to be barred. The Calcutta High Court followed the decision in Thakur Prasad v. Partab 6 A.h 442, where also one of the members of a family claimed to recover his share of the debt realized by the other, four years after separation and eight years after the realization of the debt by the other member, and the claim was held to be barred under Article 62. These authorities seem to be directly in point. The parties before us appear to be in the same position as the plaintiff in those cases with reference to the debts realized by the other members from whom they claim their share. The case of Tellis v. Saldanha 10 M.k 69 appeal's to be stronger. The rent due under a lease executed in favour of two brothers was realized by the representatives of one of the brothers and the claim of the surviving brother to recover his share from such representatives was held to be barred three years after such recovery. In that case the parties, though Christians, lived together as members of a joint family till their status was altered by the Indian Succession Act after which also they continued to live together.
8. It was contended on the other side that the principle applicable to the case before us is that recognised in the case of tenants-in-common where one tenant in possession of the property is held to be in possession on behalf of all and it is only after the exclusion of any tenant-in-common, or after adverse possession is set up, that limitation begins to run in favour of the tenant in possession. This, undoubtedly, is a well-recognized principle. But, in our opinion, there is a great difference between that class of cases and the one before us. Where a member of a joint family is in possession of joint family properties and a partial partition takes place leaving him, however, in possession of certain properties not divided between them, his possession will still continue to be the possession of the other members of the family though they may have been divided, till some event happens which renders his possession exclusive or hostile to the others. This principle would, also, apply to any accretions to such family properties. Thus in this case certain jewels--which admittedly were joint family properties--were left in the possession of some of the members of the family and the claim of the other parties to their share is not barred by limitation. Assuming, again, there is only a partial partition and with reference to the other properties left undivided the family leaves its affairs in the hands of a managing member, anything done by him with reference to those properties would be on account of the family and the same principle would apply. For instance, in the case before us, if Gopala Aiyar after the partition in 1892 had recovered any of the debts due to the family from its debtors, his possession would have been the possession of the rest. And similarly, if the 1st defendant, while he was the managing member after Gopala Aiyar's death and before the reference to the arbitration, had realized any of the debts, then also the possession must be deemed to be the possession of all the other members of the family and the claim by any one of them to recover his share would not be barred. But it is admitted in this case that the debts now in dispute were all realized after the 1st defendant ceased to be the managing member. After the division in status of the members of a family one of them does not represent the others. He is not bound by the dealings of the others with reference to any property in which a person may be interested. Thus after 1892 no member of the family can recover the debt or any portion of the debt that may be payable to the other members. Their right against any debtor would stand unaffected by any payment to him and if any member, as a joint, creditor, recovers the debt he becomes liable immediately to pay over the share of his joint creditor to him. This also explains the case of Ganesh Dutt Thakoor v. Jewah Thakoorain 31 C.k 262. There, as expressly stated by their Lordships, it was not the case of either party that there was a partial separation or a separation in respect of certain properties only and the debts therefore, realized by the brothers were realized on account of their family; the only question was whether one of the brothers, as whose representative his widow claimed a partition, was separated in interest or continued an unseparated member. There was no claim advanced by any one of the members, to the debts realized, to the exclusion of the other members of the family. In the case before us, as already pointed out, the debts were not recovered or realized by the 1st defendant or any of the other brothers as the representative of the family or on behalf of the other members as well. We are, therefore, of opinion that Article 62 applies.
9. It was then argued by Mr. Govindaraghava Aiyar that the plaintiff and 1st defendant continued to be members of an undivided family even after 1892, though the others may have become separated; and, therefore, the realization of the debt by the first defendant must be taken to have been not only on his own account but on behalf of himself and the plaintiff who was a minor under his guardianship. And as the 1st defendant has, therefore, realized more than what is due to himself and to the plaintiff, the plaintiff is not entitled to proceed, further and claim, anything from the other defendants, that is the 3rd and 15th defendants.
10. The 1st issue raised the question Whether the plaintiff's branch became divided from the 1st defendant's branch in the year 1892,' and the Subordinate Judge has found that they did not become so divided. If the 1st defendant and the plaintiff were members of an undivided family and the 1st defendant was the guardian in law of the plaintiff, then he was bound to protect the interests of the plaintiff. He obviously did not realize the debts on behalf of the 3rd and 15th defendants, as he would, then, have paid the moneys over to them. The proper inference derivable from the facts of the case is that drawn by the Subordinate Judge, that 'there was a general scramble after the failure of the arbitration and each collected what he could.' It would have been a dereliction of duty on the part of the 1st defendant not to have realized the share of the plaintiff.
11. If the suit had been brought against the 1st defendant by the 3rd and 15th defendants during the minority of the plaintiff, he would have, no doubt, been entitled to claim and retain the amount realized for the shares of himself and the plaintiff; and then it would not have been open to him to say afterwards against the plaintiff that the amount was not collected on behalf of both of them. We think, therefore, Mr. Govindaraghava Aiyar's argument is sound and the plaintiff is entitled to recover from the 1st defendant in whose hands there is a sum of Rs. 37,000 and odd--his full share which is claimed--about Rs. 19,000 less the amount collected by himself.
12. The result of these findings is that the Subordinate Judge's decree directing the 1st defendant to pay Rs. 13,984-15-8 1/2 to the plaintiff will stand and the decree in so far as it directs him to pay the 15th defendant Rs. 3,993-10-3 and the 3rd defendant to pay the 15th defendant R. 520-0-0 1/2 will be reversed.
13. The Advocate-General also contends, that the 1st defendant is entitled to recover from the plaintiff his share of the expenses incurred by him for the funeral ceremonies of his mother. It is proved that the 1st defendant, as the son, performed these ceremonies in the presence of the other members of the family. It is clear, of course, that if the expenses were incurred by the 1st defendant as the managing member, he would have been entitled to defray them out of the family funds. But that is not the claim advanced. What is argued is that oven after partition he is entitled to claim the contribution under an agreement and also under the Hindu Law as the other members were interested in the performance of those ceremonies. When the partition took place in 1874, it was agreed that for the expenses which should be incurred for the mother's funeral ceremonies all the five brothers should jointly fix the amount which might seem proper to them and it is only in case any sharer failed to give his share that his properties should be liable. The first defendant pleaded in this case that there was such an agreement. But in our opinion the Subordinate Judge has rightly discredited the evidence. As pointed out by him the witnesses are interested: they do not agree as to the time of the agreement nor as to the amount actually spent. Though it is proved that the other members of the family were present there is no reliable evidence that they were ever consulted. The defendants keep regular accounts but they have not produced any to show what was spent for this purpose. The documentary evidence also is conflicting. Exhibit XIV is inconsistent with Exhibit XVII.
14. It is then argued by the Advocate-General that even if he fails to prove the agreement, he is entitled to recover a reasonable contribution under the rule of Hindu Law; but it is quite clear that it is open to the parties to come to an agreement as to the expenses to be incurred: and, where there is such an agreement, as in this case, the parties are bound by it. It is not alleged in this case that the 1st defendant asked the other parties to fix their respective contributions and they refused. Even if it is open to the 1st defendant to claim a reasonable contribution apart from the agreement, there is no evidence in the case to prove in the circumstances what would be a reasonable contribution. He has not proved the amount that he has actually spent: and the amount payable by each has to be determined not with reference to the means of the person who performs the ceremonies but of the person who has to contribute and there is no evidence in this case to show what, in the circumstances, would be a reasonable amount.
15. It is next contended by the Advocate-General that items 20, 22, 31, 36--40 and 41 in Schedule B. ought to have been held to be the sole property of the 1st defendant. The oral evidence to which our attention is drawn is unreliable. Though it is true that the 1st defendant had properties of his own, yet still he was in management of the common affairs and was in possession of the family funds. It, therefore, lies on him to show that these bonds were taken by him in his own private capacity and not on behalf of the other members. There is also the fact referred to by the Subordinate Judge that all these bonds were delivered to the arbitrators. No doubt, the 1st defendant now says that it was a mistake; but he has failed to prove it. And the circumstance that these bonds were kept with the other family bonds is evidence to support the contention of the respondents. We must, therefore, disallow his claim.
16. The next point argued is that the 1st defendant should not have been directed to pay interest on the amounts realized. But it is shown that he has utilised it in the purchase of properties and there is no reason, therefore, why he should not pay interest.
17. It is pointed out to us that though the Lower Court has confirmed the parties in their right to and possession of the munaikats and houses as indicated in Schedules A1 to A4, the appellant is not really in possession of all the properties allotted to him. Though this is not admitted by the respondents, we direct the decree to be modified by ordering that possession should be delivered to the parties, if necessary, of any property not in their possession.
18. The jewels were kept in an iron safe in the house occupied by some of the members of the 3rd defendant's branch. The plaintiff and some of the defendants contend that many valuable jewels have disappeared and those who were living in the house must be held responsible for their disappearance. But there is no reliable evidence in the case as to the value of the jewels deposited or as to the period of its disappearance or the persons responsible as residents at the time of such disappearance. Though we think the judge was wrong in rejecting the list tendered by the plaintiff, we do not think any reliable evidence will be forthcoming at this distance of time and it is not alleged before us that such evidence is available. We must, therefore, disallow the claims to recover their shares of the jewels.
19. On behalf of the plaintiff, it is contended that the 1st defendant has realized in addition to what is found by the Lower Court, a sum of Rs. 6,000 in the aggregate consisting of items 7, 10, 11, 15, 18 and 19. This contention is supported by the evidence of some witnesses which we consider interested and unreliable.
20. All the debts due to the family have not been recovered. There will be a declaration that the parties are entitled to their share of the debts still outstanding.
21. We are not satisfied that the decision about the Nandana produce is wrong or that the 3rd defendant's branch, is entitled to recover interest on the sum of Rs. 3,000.
22. It is further contended that the plaintiff should bring into hotchpot the jewels in the possession of Gopala Aiyar's widow. But she is not a party to the suit and the jewels were not given to her by the plaintiff.
23. It is unnecessary to make any declaration as to the room in the house allotted to the 3rd defendant's branch, as their possession of the house is confirmed and if they are not in possession, they are entitled to it under the decree as now modified by us.
24. With the modifications above stated, the Appeal and the Memoranda of Objections are dismissed with costs.