1. This is an appeal by defendants 1, 2 and 4, and is directed against a preliminary decree for partition passed by the Subordinate Judge of Dacca on 28th January 1930. The property which forms the subject matter of the partition suit belonged to one Keru Subhasundar who died in 1319 B. S. leaving behind him five sons Gourbari, defendant 1, Hari Charan, defendant 2, Abhoy, who is now dead, the husband of the plaintiff, Naba Kishore, defendant 3 and Nagarbashi, defendant 4 as well as his widow who is now dead. Keru rose to a position of affluence from a very humble position and left fairly considerable properties. The plaintiff who demanded a partition from the other cosharers did not find any response to her demands and has instituted the present suit for partition of immovable properties which were left by her father-in-law, Keru. The substantial defence to the suit, which was made by defendants 1, 2 and 4 who filed a joint written defence is that there had been a previous partition amongst all the five sons of Keru in 1321 B. S. As a result of that partition the mother who under the Hindu. Law was entitled to a share was given only 1 pakhis of land and that in 1325 B. S. that property of the mother was also partitioned amongst the five brothers when there was a sort of re-adjustment. The Subordinate Judge has negatived this defence. Amongst other defences to the suit it is necessary to notice the defence that some of the properties were self acquired properties of defendants 1, 2 and 4. In particular it is said that the properties which formed Dags Nos. 2327 and 2328 of the Cadastral Survey were really acquired by some of the answering defendants under a deed of gift and that these were not joint properties which could form the subject of the partition suit.
2. It was also said with regard to another plot, namely plot No. 684, that this was originally family property but it subsequently passed out of the family and was afterwards purchased with their own funds by defendants 1, 2 and 4. With regard to some other plots, namely plots Nos 1493, 1495,1393 and 412 the defence relies on its self acquisition by the answering defendants. The main question which has been in controversy before us in the present appeal is as to whether the suit should not be dismissed on the ground that there had already been a previous and amicable partition as alleged by the defendants. The plaintiff's husband and the other defendants admittedly formed at one time members of the joint family governed by the Dayabhaga School of the Hindu law and any one setting up a previous partition must prove that there had been such a partition. In other words the burden of proof is on himself of establishing that there has been a disruption of the joint family. It has however been contended on behalf of the appellants who are defendants 1, 2 and 4 that the Subordinate Judge has committed an error in law in casting the onus on the defendants of establishing this previous amicable partition as by reason of the pleadings in the plaint there has been an admission on behalf of the plaintiff that at least one of the brothers had separated from the rest.
3. The pleadings if properly looked into only state this: that one of the brothers, defendant 2, proposed to have his share in the immoveable property and the money lending business amicably partitioned and that the plaintiff also proposed to have her share in the immoveable and the money lending business amicably made over to her; but this was not done and defendant 2 took some lands out of the joint immoveable properties without the consent of the plaintiff. It is an ordinary rule that any statement in the pleading must be taken as a whole and it is not permissible for the Court to dissect that pleading. In effect the plaintiff while admitting that there had been a separation of some lands with reference to defendant 2, states that there has been no legal partition or a partition which really binds her. In these circumstances it appears to us that the Subordinate Judge has rightly cast the onus on the defendants of establishing the amicable partition alleged by them. Even on the footing that there has been an admission that one brother has separated from the rest it does not appear to us, as at present inclined, that that would make any change in the rule regarding the burden of proof. But we may state that it is not necessary to finally decide the question as our decision will depend on the weight to be attached to the evidence which has been given on both sides. As Mr. Sen appearing for the appellants argued the question of onus at considerable length we might say a few words with reference to that question as it appears to us at the present moment, and that is on the assumption that one of the brothers has separated from the rest.
4. It has been argued that the effect of the separation of one of the brothers from the rest in a family governed by the Dayabhaga School of the Hindu law is that there is a virtual separation of all. A reference has been made to the very early case in Hyde's Reports which is quoted in Shyama Charan Sircar's 'kayastha darpan' Edn. 2, p. 222, which lends support to this contention. But there is a later case which takes an opposite view. That it is the case of Upendra Narain Mythi v. Gopee Nath Bera, (1883) 9 Cal 817. The strongst case on which reliance has been, placed on behalf of the appellants on the question of onus is a decision of their Lordships of the Judicisl Committee of the Privy Council in the case of Balabux Ladhuram v. Rukhma Bai, (1933) 30 Cal 725. It is to be noticed, however that that was a case under the Mitakshara system of the Hindu Law and Lord Davey, while delivering the judgment of their Lordships of the Judicial Committee, points out that under that system where for the purpose of a partition it is sufficient to show that there has been an intention to separate; the separation of one of the co-parceners would amount to a virtual separation of all. It is best to reproduce here what Lord Davey said in connexion with the point now in controversy:
It appears to their Lordships, said Lord Davey, that there is no presumption, when one co-parcener separates from the others that the latter remained united. In many oases it may be necessary in order to ascertain the share of the outgoing member, to fix the shares which the other co-parceners are or would be entitled to, and in this sense the separation of one is said to be a virtual separation of all.
5. These observations apply with a peculisr force to the constitution of a joint family governed by the Mitakshara system of the Hindu law, where mere intention to separate, which intention is given effect to by one of the members, is enough to constitute separation. That is not the rule under the Bengal system of the Hindu law where in addition to a mere intention to separate there must be a division of the property by metes and bounds in order to effectuate a partition. The other cases referred to by Mr. Sen are Jatti v. Banwari Lal, 1923 PC 136 and Bal Krishna v. Ram Krishna, 1931 PC 154. They are all cases which follow the decision of the case referred to above and reported in Balabux Ladhuram v. Rukhma Bai, (1933) 30 Cal 725 and are all cases under the Mitakshara system of the Hindu law as modified by Mayukha and Smriti Chandrika which prevail in Bombay and Madras. As at present advised I am inclined to think that these decisions cannot be of any assistance with regard to the rule of the presumption of jointness as obtained in the Bengal school. But as I have already stated it is not necessary to express any final opinion on this question which may require reconsideration when occasion demands. Here evidence has been taken on both sides with reference to the alleged previous amicable partition. (Their Lordships then discussed the evidence and proceeded).
6. We have not got the same advantage with reference to this matter as the Subordinate Judge had, and the issue is also a simple one; and we ought not lightly to depart from the view taken by the Subordinate Judge, as we are constantly reminded of the remarks made by their Lordships of the Judicisl Committee in the case of Bombay Cotton . v. Motilal Shivlal, 1915 PC 1 that generally speaking it is undesirable to interfere with the findings of fact of the trial Judge who sees and hears the witnesses and has an opportunity of noting their demeanour and especially in oases where the issue is a simple one and depends on the credit which attached to one or other of conflicting witnesses. It is also to be noticed that defendant 3 who is one of the brothers supports the plaintiff in the case which she has presented to the Court. Reliance has been placed on a number of documents of the nature of bonds which go to show, according to the contention of the appellants, that Abhoy, the husband of the plaintiff, had a separate money-lending business: vide Exs. K to N and S. It is true that on the face of these documents it appears that a loan was given either by the plaintiff or by her husband. But some of these documents show money was received by Nagarbashi, one of the sons of Keru, from some of the debtors, and that he has himself written those bonds. Ex. N goes to show that it was Nagarbashi himself who had advanced those loans. In these circumstances it is very difficult to say that this was not the money of the joint family seeing, as we have already said, that the defendants have failed to establish the partition of the immoveable properties. We do not see any reason why we should dissent from the conclusion of the Subordinate Judge that bonds and other such documents used to be taken by one of the members with the money of the joint family.
7. It is also remarkable that the defendants have not produced their account books to prove that they had funds separate from the joint family funds. An inference unfavourable to the case of the defendants should be drawn from these circumstances. We are therefore of opinion that the defendants have failed to discharge the burden of showing that there has been a separation of funds; and even if the burden were not on them to prove this we are not satisfied from the evidence on behalf of the plaintiff and defendant 3 that there has been such a partition as would disentitle the plaintiff to maintain the present suit. With regard to some of the properties to which reference will be made presently, we are of opinion that the plaintiff's suit must fail. It appears that defendants 1 and 4 obtained the properties which form Dags Nos. 2327 and 2328 under a deed of gift which is to be found at p. 13, part 2, and which has been marked as Ex. P. This was a deed of gift in favour of these two persons who are expressly named as donees. It is a separate source of acquisition. There is nothing in the document to show that the gift was made out of the joint fund and for the members of the joint family. We are therefore of opinion that this part of the plaintiff's suit concerning plots 2327 and 2328 must be dismissed. With regard to plot 684 it appears that this property was purchased by Keru from one Manoda, the reversionary heir of Baikuntha Pattar. Manoda subsequently brought a suit to set aside the sale to Keru and the reversionary having succeeded, this property passed out of the joint family.
8. This property was afterwards purchased by defendants 1, 2 and 4 which fact is supported by Ex. C (1) printed at p. 42 of the second part of the paper book and Ex. G printed at p. 41 of the second part of the paper book. Each of these deeds on the face of it stated that the money which formed the consideration of these two purchasers was furnished by defendants 1, 2 and 4. As this 3 was the ancestral property and as originally it was shown that it was subsequently purchased by one or two members of the family it is to be presumed that this was really intended for the individual members of the family. I think, therefore, with regard to Dag No. 684 the plaintiff's suit must be dismissed. With reference to plots 1493, 1433, 1393 and 412 the defendants have failed to establish their self acquisition in the absence of books of accounts to show the existence of a separate fund. The result therefore is that this appeal is allowed to this extent, namely, that the plaintiff's suit is dismissed with reference to Cadastral Survey Dags Nos. 2327, 2328 and 684. This appeal is dismissed with regard to the question of the partition of all other plots. As the success of the parties is divided we think that the costs should be in proportion to their success in all Courts. The respondents will have 6/7ths of the costs incurred by them both in this Court and also in the Court below, and the appellants will have l/7th of the total costs incurred by them in this Court and in the Courts below. We assess the hearing fee at seven gold mohurs.