1. This appeal is directed against the preliminary decree in a suit for partition. The parties litigants are members of a family of Gayals and are descended from one Sankar Lal who died on the 13th September 1886. Sankar Lal had three sons, Madho Lal, Narayan Lal and Gobind Lal. Of these, Madho Lal, who died in the life-time of his father on the 11th November 1881, left a widow and an infant son, Chulhan Lal, who is the plaintiff-respondent before this Court. The defendants are Narayan Lal and Gobind Lal. Of these, Narayan Lal died during the pendency of this litigation in the Court below on the 1st. March 1910. Thereupon his sons, Gopal Lal and Damodar Lal, were brought on the record as his representatives-in-interest.
2. The case for the plaintiff is that the properties mentioned in the schedule are joint family properties and he is entitled to a one-third share in all of them. The defence substantially is that although the family was joint up to the year 1891, there was a separation at that time, when the mother of the plaintiff left the family house with jewellery and other valuables worth twenty thousand rupees. The defence in substance, therefore, is that in 1891, on account of a family quarrel, the mother of the plaintiff abandoned, on his behalf, his interest in the family properties, and that it is not open to the plaintiff to repudiate this transaction. The defendants also plead, in the alternative, that if the alleged separation is not established, specific properties mentioned in the schedule to the written statement have been acquired by them separately and are not in any event liable or subject to partition. The learned Subordinate Judge has over-ruled the contentions of the defendants and made a preliminary decree in favour of the plaintiff.
3. The defendants have now appealed to this Court, and on their behalf the decision of the Subordinate Judge has been assailed on five grounds, namely, first, that upon the evidence it ought to have been held that the dissolution of the joint family had taken place in 1891; secondly, that if the family was found to be joint at the date of the institution of the suit, the house known as 34 Deo Chawra ought to have been treated as separate property of the first defendant; thirdly, that the Subordinate Judge has erroneously directed a partition of the books in which the names of the pilgrims have been recorded from generation to generation; fourthly, that a horse and carriage have been erroneously found by the Subordinate Judge to be joint family property, whereas they were given to the first defendant by his maternal grandfather, and fifthly, that the ornaments in the possession of the defendants have been erroneously treated as joint family properties liable to be partitioned, whereas it ought to have been held that they were articles which had been pledged with the second defendant by the owners and were not liable to be partitioned.
4. In support of the first contention advanced on behalf of the appellants, our attention has been invited to the evidence on the record. The evidence on the side of the defendants is to the effect that in 1891, that is, 10 years after the death of Madho Lal, there was a dispute between his widow and her brothers-in-law, with the result that she was obliged to leave the family house with her infant son, then 10 years old. The defendants assert that at the time when this took place, the mother of the plaintiff abandoned on his behalf all claim to the family properties for a consideration of Rs. 20,000. This evidence has not been believed by the Subordinate Judge and, in our opinion, there is no room for controversy that his view is well founded. It is impassible to believe that in the event of a dispute between the widow of Madho Lal and her brothers-in-law, she should be allowed to leave the family house with such a large sum as Rs.. 20,030. The defendants must have been aware that there was a reasonable chance that the plaintiff, upon attainment of majority, might successfully repudiate the transaction. It is not suggested that there is any documentary evidence in support of the transaction. Nor is it alleged that even an approximate estimate was made at the time as to the value of the entire family property. There is nothing, indeed, to show how this amount of Rs. 20,000 was calculated. We are, therefore, not prepared to believe that there was a partition in 1891 as alleged by the defendants.
5. But the learned Vakil for the appellants has contended that the case should be considered from another point of view, namely, that as, admittedly, the earning of the members of the family was derived principally from pilgrims, the presumption of law is that each member retains for himself whatever be earns and that consequently when it is found that properties have been acquired in the name of an individual member, such properties are presumably their separate properties. There is, it may be conceded, cansiderable force in the contention that prima facie when a gift is made to a priest by a pilgrim, the money belongs to him in his personal capacity. As pointed out by this Court in the case of Dwarka Nath Misser v. Rampertab Misser 13 C.L.J. 449 : 16 C.W.N. 347 : 10 Ind. Cas 41 when payments are made to an officiating priest by a pilgrim, the presumption is that it is a personal gift which may be retained by the priest himself. But, as was observed in that very case, members of a family may agree, amongst themselves, that whoever amongst them may earn anything by officiating as a priest, the income is to be brought into a common fund and divided in certain proportions amongst them. In the case before us, there is direct evidence to show that this latter procedure was adopted by the members of the family. Consequently, the ordinary presumption of Hindu Law applies that there was a joint family and a joint fund belonging to that family. The first contention of the appellants, therefore, fails.
6. In so far as the second contention of the appellants is concerned, it is pointed out that even the plaintiff himself admits that the disputed house was given to the first defendant by his maternal grandfather. The defendants are, no doubt, entitled to rely upon this admission. At the same time, it must not be overlooked that the plaintiff is a young man and at the time when the alleged transaction took place, he must have been an infant who had no personal knowledge of the matter. The story of the first defendant is that the land upon which the house stands belonged to his father and to his maternal grandfather in equal halves, and that the representative of his maternal grandfather made a gift of his half share in the land to him. It is fairly clear upon the evidence that half of the land upon which the house stands is the exclusive property of the first defendant. The building, however, has been erected obviously at a considerable cost upon this land. There is no room for reasonable doubt that the money for the erection of the building was supplied from the joint funds of the family. The position, therefore, is that the first defendant is the exclusive owner of one half of the land upon which the building stands, but the building has been erected at the cost of the family. Under the circumstances, the justice of the case will be met if we direct that the land be treated as joint family land, but that the price of one-third of half of the land be paid by the plaintiff and another one-third of half be paid by the second defendant. The view we take is supported by the observations of this Court in the case of Dwijemlra Narain Roy v. Purnendu Narain Roy 11 C.L.J. 7. 189 at p. 196 : 5 Ind. Cas. 171. In this case, it was explained that a co-owner who has spent money is not entitled, as pointed out in Leigh v. Dickeson 15 Q.B.D. 60 : 54 L.J.Q.B. 18 : 52 L.T. 790 : 33 W.R. 538 and Brickwood v. Young (1905) 2 Com. L.R. 387 to call upon his co-sharers to compensate him for the expenditure, but he has a defensive equity which attaches to the land and passes to a purchasor, which is enforceable in the event of a partition or a distribution amongst the tenants-in-common of the proceeds of sale of the land. It follows, therefore, that the second ground urged by the appellants must be allowed in part.
7. In so far as the third ground is concerned, it has been contended that the family books in which the names of pilgrims are recorded cannot be treated as partible property. The nature and the contents of these books have been thus describad accurately by the Subordinate Judge:' when pilgrims come to Gaya to offer Find to their ancestors, they have to do it through the Gayals who officiate as priests on that occasion and minister to their wants. The names and addresses of the newcomers are entered in the book kept by the Gayals, and they are required to sign their names therein, if they know how to write. As a rule those pilgrims, if they come again, and their descendants go to their appointed Gayals or their descendants, when they have to perfrom the ceremony.' The books, therefore, though they may not have any market-value, are of considerable importance to the parties to this litigation. The learned Vakil for the appellants has, however, contended that they cannot be treated as partible property. It is worthy of note that in the Court below the plaintiff prayed that the territories from which the pilgrims come, might be partitioned, and different tracts of the whole country assigned to the several members, so that each would be entitled to minister to the spiritual needs of the pilgrims resident in the particular locality allocated to him. The learned Subordinate Judge has disallowed this prayer on the obviously reasonable ground that the parties to the litigation in their capacity as priests cannot force their services upon any particular pilgrim. Besides, as the pilgrim3 themselves are not parties to this litigation, they will not be bound to accept the services of any of the members of this family, as an officiating priest on the occasion of their visit to Gaya. This view is in accord with that taken by this Court in the cases of Goumoni Debi v. Chairman of Panihati Municipality 12 C.L.J. 74 : 14 C.W.N. 1057 : 6 Ind. Cas. 864 and Dwarka Nath Misser v. Rampertab Misser 13 C.L.J. 449 : 16 C.W.N. 347 : 10 Ind. Cas 41. But the learnad Vakil for the appellants has contended that this doctrine ought to be extended and applied to the books also; in other words, as the Court cannot effect a partition of the pilgrims or of the territories in which they reside, the Court should also refuse to effect a division of the record of the names, addresses and genealogies of the pilgrims. Weare unable to accept this contention as well founded on principle. The leaning of Courts has always been against the contention that a particular class of property is impartible. Property may be partitioned by physical division, or, if there is more than one sample of the same type, one may be allotted to each of the parties. If the partition cannot be effected in either of these methods, the property may be sold and the sale proceeds divided amongst the parties. Sometimes, when the property is not saleable and does not admit of physical division, partition has been effected by a device, namely, by enjoyment of the property in turn, as in the case of a right to worship. As has been well observed by a learned author, at the present day, no Court would be inclined to accede to the contention that a property is impartible unless it is shown that it is a property the division of which would be against public right or policy or would tend to impair some paramount right exising in a stranger to the co-tenancy, or would outrage the public sense of propriety, decency and good morals. [Freeman on Co-tenancy and Partition, Section 438]. As an instance of impartible property, Lord Coke, Co. Lit., 165 (a), mentions the case of a castle which has been erected for public defence; the effect of partition of such property would be to make it less fit for public defence, if not to destroy its utility altogether. Another illustration usually given is the case of a churchyard and its vicinity which could neither be divided physically nor be sold and the sale proceeds distributed among the litigant parties: Coleman v. Coleman (1852) 19 Pa. St. 100, 57 Am. Dec. 641 and Brown v. Lutheran Church (1854) 23 Pa. St. 500. In so far as the case before us is concerned, it is reasonably free from difficulty, The first step will be actually to divide the books into three portions. In making this division, the guiding principle ought to be to ascertain the number of entries in each book, and it may be possible to give to each party a number of leaves containing as nearly as practicable the same number of entries as to any other co-parcener. This by itself, however, does not meet the needs of the situation, because each of the parties must have a complete set of entries so as to enable him to secure pilgrims when they seek his services, The second step to be taken, therefore, will be to have certified copies prepared of the entries of these books and to give them to each of the parties. The result will be that each party will have one-third of the entries in original and two thirds in certified copies. The third ground urged on behalf of the appellants cannot, thus, be sustained.
8. In so far as the fourth ground is concerned, namely, that the horse and carriage in dispute belong to the first defendant as his separate property, we are of opinion that there is no foundation for it. No doubt, the first defendanc has asserted that the horse and carriage were received by him by way of gift from his maternal grandfather. But in view of the singular disregard of truth indicated in his testimony, we are not prepared to accept his allegation as well founded. Gopal Lal himself has not been examined and no reason has been assigned why he did not venture into the witness-box in support of the claim. The fourth objection must, therefore, be overruled.
9. In so far as the fifth ground is concerned, which relates to ornaments pledged with the second defendant, it has been argued that as they were given by way of pledge to him, they must be treated as his separate property. This contention is obviously fallacious.
10. The true character of the ornaments depends upon that of the money advanced to the pledgers. We have already held that the case of the defendants that there was a separation in 1691 has completely failed. Consequently, the persumption is that the money advanced by the second defendant to the owners of the ornaments was joint family property. A joint character has thus been impressed upon these ornaments, which must be divided amongst the members of the family. We may add that as the owners of the ornaments are not parties to this litigation, they will not be bound by this decision. It will not prevent them from redeeming the ornaments if they are still entitled to exercise their right of redemption; consequently, the member to whose share a particular ornament may be allotted, will be liable to be redeemed if the right of redemption has not already been extinguished. The fifth ground taken by the appellants, therefore, fails.
11. The result is, that the decree of the Subordinate Judge is varied in one respect only namely, in respect of the house, 34 Deo Ohawra, Subject to this variation, that decree will be affirmed.
12. As the appeal has substantially failed, the appallants must pay to the respondents the costs of this appeal.
13. We assess the hearing fee at tea gold mohurs.