P.N. Mookerjee J.
1. In this partition appeal the principal question is whether the parties, who are Hindus, are governed by the Dayabhaga or by the Mitakshara law. The learned Subordinate Judge has accepted the defence contention and applied the Mitakshara law, reducing the plaintiff's claim of share from 6 annas to 4 annas and the plaintiff's present appeal which is from the preliminary decree for partition, made on that footing, is mainly directed against that finding.
2. The genealogy is admitted except on one vital particular which we shall presently state. According to the common case of both the parties they are descended from a common ancestor Jadablal Goswami. Jadablal had two sons Anandalal and Brojolal. The plaintiff claims through Brojolal, he being the latter's grandson by his elder son Sunday. The defendants represented the branch of Anandalal and also that of the other son Bonwari of Sundar. So far as genealogy is concerned, the only difference between the parties lies in the fact that, according to the plaintiff, Brojolal had two sons Sundar and Uday, the former being the father of Bonwari and the plaintiff Chandra Kanta, as stated above, and the latter (Uday) being his (Sundar's) younger brother who died leaving a widow Rajabala, while, according to the defence, this Uday and, necessarily Rajabala also, had no existence, Brojolal having an only son Sundar who was the father of Bonwari and the plaintiff.
3. For convenience of reference and appreciation of the true position, we set out below the plaint genealogy, which runs as follows :
Anandalal Goswami(d) Brojolal Goswami(d)
Harilal Goswami ____________________________
| | |
____________________ Sundar Goswami(d) Uday Goswami(d)
| | | |
Baikuntha Goswami(d) Nilkantha Goswami(d) ________________ Widow
| | | | Rajabala Devi(d)
Daughter Manmatha Goswami Bonwari Chandra Kanta
Sm. Monomohini Devi (Def. 3) Goswami(d) Goswami(Plff.)
(Pro.D. 4) |
Daughter Rammohini Devi Daughter Krishna Bhamini Devi
(Def. 1) (Def. 2)
with only this remark that the defence accepts the same, barring Uday and Rajabala whose existence is denied by the main contesting defendant (defendant 2), and barring also the plaintiff's allegation that Bonwari predeceased Rajabala.
4. Admittedly also, Baikuntha predeceased his father and did not obtain any interest in the disputed properties.
5. It will be at once clear from what we have stated above that, if the plaintiff's case about the genealogy (including, of course, his further allegation that Bonwari predeceased Rajabala) be accepted and also his claim of Dayabhaga succession, he will admittedly be entitled to 6 annas of the disputed properties as claimed by him -- 2, annas by inheritance from his father Sundar and Uday's 4 annas as the sole actual reversioner to his (Uday's) estate. If, however, his (plaintiff's) case on either point fails and the defence genealogy which excludes Uday and Rajabala or the defence contention of Mitakshara devolution be accepted, the plaintiff's claim to 6 annas of the suit properties must fail and the decree of the learned Subordinate Judge, awarding him 4 annas,' must be affirmed. This follows from the admitted case of the parties that 8 annas of the suit properties belonged to Anandalal's branch and the remaining 8 annas to Brojolal's by inheritance from Jadablal, so that, if Uday and Rajabala be ignored, Brojolal's 8 annas must be held to have devolved on Sundar from whom 4 annas would pass to the plaintiff and, even if Uday's and Rajabala's existence be admitted but the parties be held to be governed by the Mitakshara school, on Uday's death, Brojolal's 8 annas in its entirety (including Uday's ' interest) would go over to his (Uday's) joint nephews Bonwari and the plaintiff.
6. The trial Court accepted the plaintiff's case that Sundar had a brother named Uday who died leaving his widow Rajabala, but, as it agreed with the defence contention that the parties were governed by the Mitakshara law, it ultimately rejected the plaintiff's claim of 6 annas interest and gave him only 4 annas in the disputed properties. The propriety of these findings has to be examined in the present appeal.
7. The first finding, namely, on the question of genealogy, is entirely in the plaintiff's favour and he has, therefore, challenged only the other finding, namely, about the application of the Mitakshara law to this case. The respondents have supported this latter finding and they have also sought to support the decision of the trial Court by contending that the question of genealogy should have been decided in their favour and the learned Subordinate Judge ought to have disbelieved the plaintiff's story about the existence of Uday and Rajabala and should have rejected his claim to 6 annas on that ground also.
8. As to genealogy, the evidence is overwhelmingly in favour of the plaintiff's case which has been accepted by the learned Subordinate Judge. That Sundar had a brother named Uday who died leaving his widow Rajabala has been amply proved by the plaintiff himself as P. W. 1 and by his three witnesses, P. Ws. 2, 3 and 4. It is also supported by the landlord's papers (accounts), Exs. 4 series, kept in the regular course of business. Leaving aside the plaintiff's deposition on the point as he is certainly interested in his own case, although we have no reason to doubt his testimony on the present question, the other evidence, adduced by him, to which we have made reference above, abundantly proves that Uday was Sundar's brother and left the widow Rajabala. About the competency of the three witnesses, P. Ws. 2, 3 and 4, to speak on this question, there can be little doubt and their evidence appears to be candid, straightforward and specific, so far as this particular point is concerned. P, W. 2 is Rajabala's brother; P. W. 3 is an officer of the landlord the Lalgarh Estate, who was intimately acquainted with the Goswami family, to which the parties belonged, and P. W. 4 was a co-villager of the Goswamis. The learned Subordinate Judge has accepted the evidence of these three witnesses and we have no reason to differ from him. We also agree with the learned Subordinate Judge that the defence has failed to produce any reliable evidence in support of its case on this point. D. Ws. 1 and 2, besides being vitally interested witnesses, do not appear to be at all convincing, so far as this question of genealogy is concerned, and they, have practically failed to withstand their cross-examination on the point. D. W. 3 also does not appear to be at all a competent witness. The plaintiff's evidence is certainly better and much more acceptable and, in our opinion, the genealogy, as pleaded in the plaint, has been proved beyond any reasonable doubt.
9. The crucial question now is whether the parties are governed by the Dayabhaga or the Mitakshara law. The plaintiff has admitted in his deposition that the original ancestor of the parties migrated to Bengal from Atwa in U. P. and further that they are Kanauji Brahmins. Clearly, therefore, Mitakshara was the personal law of the family and that personal law would govern them unless it is proved that they have abandoned the same and adopted the Dayabhaga law and usages. The onus to prove this is undoubtedly on the plaintiff who alleges the same and, unless the evidence is sufficient for the purpose, his case of Dayabhaga succession must fail.
10. We have examined the entire evidence but we do not think that the plaintiff has succeeded in placing sufficient materials before the Court to enable it to come to a conclusion in his favour on this question of the governing law of succession. There is practically nothing to show that the parties have abandoned the Mitakshara law and adopted the Dayabhaga law and usages. On the other hand, the record sufficiently shows that Mitakshara still governs the parties. This is apparent even from the plaintiff's own testimony and, although one of the defence witnesses (D. W. 3) has made a statement that the parties are governed by the Dayabhaga and not by the Mitakshara law of succession, his evidence distinctly shows that he has little knowledge about the family of the parties and cannot at all be expected to know or correctly speak about their family rules and usages. His bare statement, therefore, that the parties are governed by the Dayabhaga has little value in the face particularly of the plaintiff's clear and specific admission to the contrary in the previous plaint (Ex. B) which has been proved beyond doubt and which is intrinsically supported by the entries in the record of rights. The learned Subordinate Judge was, therefore, entirely right in rejecting the plaintiff's case on this point and in holding that the parties before him were governed by the Mitakshara and not the Dayabhaga School of Hindu law.
11. In the above state of the evidence, Mr. Ghose, who appeared for the plaintiff appellant, took up an extreme position. He argued that, for a Hindu family, resident in Bengal, mere proof, of migration from a Mitakshara territory was not enough to dislodge the initial presumption in favour of the lex loci, namely, Dayabhaga. He took his stand on certain observations of Mookerjee J. in the well-known case of -- 'Pitambar Chandra v. Nishikanta', 31 Cal LJ 52 at pp. 55-56: (AIR 1920 Cal 335 at p. 337) (A), which may be set out as follows:
'There is this further difficulty that even if tangible evidence of migration had been available, the time of migration would be a vital point for consideration. It is a historical fact that the Brahmins and Kayasthas of Bengal migrated from Kanauj and originally brought with them the Mithila law; it was after their settlement in this province that the Dayabhaga School of Hindu law was founded by Jimutavahana about the 14th century (Jolly, Tagore Lectures 22; Sarbadhikari, Tagore Lectures 403), and that is the law which now governs the Hindu population of this Presidency even though they may have originally migrated from North Behar. Consequently, the defendant would have to establish, not merely that the family migrated from Behar but that the migration took place after the foundation of the Bengal School of Hindu law by the author of the Dayabhaga. There is no trace of evidence on the record to enable the defendant to meet this requirement. The fundamental fact, which, if proved, would have shifted the burden of proof from the defendant, thus remains unestablished. The burden consequently lies upon the defendant to prove that the family is governed in matters of succession by the Mitakshara law.'
12. The passage quoted undoubtedly supports Mr. Ghose's argument but it is of little help to his' client. Conceding that the law is as stated in the above passage and the burden is 'upon the defendant to prove that the family is governed in matters of succession by the Mitakshara law', that burden has been sufficiently discharged in the present case by the plaintiff's own admission in the plaint, Ex. B, to which reference has already been made, and the other evidence on record which supports the defendants' case that the Mitakshara still governs the parties. The admitted C. S. records also record a clear instance of succession which is inconsistent with Dayabhaga law and entirely consistent with the Mitakshara. In these circumstances, it is legitimate to hold that the defendants have succeeded in discharging whatever onus or burden of proof lay upon them in this matter of succession. This is supported even by the observations of Mookerjee J. in the case cited (vide p. 56 of the Report (C L J): (p. 337 of AIR).
13. In the above view, no further discussion is necessary on this part of the case and no comment need be made on Mookerjee J.'s above statement of the law, on which reliance was placed by Mr. Ghose. As, however, the matter was elaborately argued before us, we would like to add a few observations.
14. In the first place, the dictum quoted is obiter, the actual decision in the case (31 Cal LJ 52: (AIR 1920 Cal 335)) (A), resting on the two findings that migration from a Mitakshara territory had not been proved and that the family had adopted the Dayabhaga law of succession (vide p. 82 of Cal LJ) : (p. 341 of AIR). The statement again, -- or rather the implication, -- that, for a person seeking to apply the Mitakshara law to a Hindu family, migrating from a Mitakshara territory to Dayabhaga Bengal or, to be more accurate, for raising the presumption in favour of Mitakshara in such a case, it is necessary to show not only that there was migration from a Mitakshara territory but also that such migration took place before the foundation of the Dayabhaga or the Bengal School of Hindu Law, appears to be opposed to what may be safely called the settled law on the point. That law in the light of the decided authorities may be put as follows :
A Hindu family, residing in a particular part of India, is prima facie governed by the lex loci or the law of the place in which it resides. But, where a Hindu family is shown to have migrated from one part of India to another, the presumption is that it carried with it the law and custom as to succession and family relations, prevailing in the territory, from which it came, at the time of migration. This is because Hindu Law is not merely a local law but is the personal law and part of the status of every family which is governed by it. The presumption, however, is rebuttable by proof that the family has adopted the law and usages of the place to which it has migrated, which means that the original or the personal law would prevail unless it can be shown that such law has been renounced by the family in favour of the law of the place to which it has migrated, the onus to prove this exception being on the party, alleging it or setting up such renunciation.
15. In the above statement of the law there is no reference to the time of migration and proof of the fact that the family migrated from a Mitakshara territory is considered sufficient to displace the initial presumption in favour of the lex loci Dayabhaga by raising a second presumption that a migrating Hindu family is presumed to be governed by the law of the plate from which it migrated. This second presumption is certainly rebuttable and it is rebutted by proof that the family has adopted the Dayabhaga law. The time of migration, if it is before the foundation of the Dayabhaga School, may assist or facilitate this proof and aid the rebuttal by suggesting an inference which appears to have a good element of reasonableness and probability in it -- that the Dayabhaga when it was founded and introduced in Bengal was adopted by all the Hindu inhabitants of the place including Hindu migrants. From that point of view, the time of migration may have some importance in this matter just as it is relevant also to show what was the actual form of the law which the migrating family is presumed to carry with it to its new place of residence. That, however, is entirely different from saying that, without proof that the migration was before the foundation of Dayabhaga, the presumption in favour of the original personal law, namely, the Mitakshara, in such cases would not arise and the burden of proof would not be shifted to the rival claimant, setting up the Dayabhaga law, notwithstanding proof of migration from a Mitakshara territory. However relevant and important in rebutting the presumption in favour of the law of origin, the time of migration has little bearing when the question is whether the above presumption should or should not be raised. It is well to bear in mind this distinction as the question of onus or burden of proof, which it seeks to affect, is often of great importance in these cases.
16. The deciding authorities which we had in mind in making the above statement of the law of migration start with the earliest, -- 'Rutcheputly Dutt Jha v. Rajunder Narain Rai', reported in (1839) 2 Moo Ind App 132 at pp. 166 and 167 (B) and end with -- 'Balwant Rao v. Baji Rao', (1920) 47 Ind App 213 at p. 219: (AIR 1921 PC 59 at p. 60) (C). In between the two, which are separated by almost a century, we have a series of weighty pronouncements on the subject, spread over about five or six decades, which are recorded in the law reports in -- 'Ootum Chunder Bhattacharjee v. Obhoy Churn Missir', (1862) WR Sp. 67 (FB) (D); -- 'Chundra Sekhar Roy v. Nobin Sunder Roy', (1865) 2 WR 197 at p. 202 (Col. 1) (E); -- 'Soorendra Nath Roy v. Mt. Heeramonee Burmoniah', (1868) 12 Moo Ind App 81 (F); -- 'Sm. Rani Parbati Kumari Debi v. Jagadis Chunder Dhabal', (1901) 29 Ind App 82 (G) and -- 'Abdurahim Haji Ismail Mithu v. Halimbai', (1916) LR 43 IA 35 at p. 41: (AIR 1915 PC 86 at p. 87) (H), In none of the above cases was the time. of migration considered relevant or important when considering whether the presumption in favour of the law of origin should or should not be raised although as a matter of fact in two of the earliest, namely, (1865) 2 WR 197 (E) and (1868) 12 Moo Ind App 81 (F), the migration had taken place respectively 12 or 13 and many generations ago and although (vide, in particular the 2 WR case (E) that fact appears to have been taken into consideration for other purposes. The case of -- 'Raj Chunder Narain Choudhury v. Goculchund Goh', (1801) 6 Ind Dec (OS) 42 (I), which might have suggested a contrary view, was explained in the Full Bench case of Ootum Chunder Bhattacherjee (D), supra and also by the Privy Council in Rutcheputty Dutta's case (B), supra. In the above state of the authorities, it is difficult to support the view that the presumption that a Hindu family, migrating from a Mitakshara territory to Dayabhaga Bengal, continues to be governed by the Mitakshara in the absence of proof of renunciation of that system of law and adoption of the Dayabhaga, will not arise unless it is proved, in addition to the fact of migration, that such migration, took place before the foundation of the Dayabhaga School. This difficulty was felt in the recent case of this Court, -- 'Ramesh Chandra Sinha v. Mohammad Elahi Buksh : AIR1924Cal383 , and the Patna High Court also did not agree with the dictum quoted above from 31 Cal LJ 52 at pp. 55 and 56: (AIR 1920 Cal 335 (337)) (A) (vide -- 'Chundrachoor Deo v. Bibhuti Bhusan Deva', 23 Pat 763 at p. 772: (1945 Pat 211 at p. 218) (J). We would, accordingly, respectfully dissent from the said dictum to the extent indicated above.
17. In the present case again, there is practically no evidence as to the date of migration. The plaintiff has no doubt stated in one part of his deposition that his ancestors came to Bengal 12 to 18 (sic) generations ago but we are disinclined to accept that uncorroborated testimony. At any rate, we are not prepared to take it as sufficient evidence for placing the migration before the introduction of the Dayabhaga School which, according to the better view, seems to have been founded between the 11th and the 13th century (vide Mayne's Hindu Law, Edn. 11 (1950), at pages 50 and 5,1; vide also per Mookerjee J. in -- 'Rajani Nath Das v. Nitai Chandra De', AIR 1921 Cal 820 at p. 824 (K) (Eleventh Century) as against his earlier view (Fourteenth Century) in 31 Cal LJ 52 at p. 55: (AIR 1920 Cal 335 at p. 337)) (A).
18. Thus we have before us the following facts:
(i) that, at the date of the suit, the parties were presidents of Bengal,
(ii) that the ancestors of the parties were originally inhabitants of Atwa in U. P. governed by the Mitakshara system of Hindu Law,
(iii) that the family migrated from U. P. to Bengal,
(iv) that the date of migration is unknown; at any rate, it has not been proved that the migration took place before the introduction of Dayabhaga, and (v) that there is no proof that the parties have abandoned the Mitakshara and adopted the Dayabhaga; on the other hand, the evidence shows that they have continued to observe and be governed by the Mitakshara.
19. On the above facts, in the light of the law as stated hereinbefore, the legal position would stand as follows :
That the lex loci is Dayabhaga but it must yield to the presumption in favour of the law of origin, namely, the Mitakshara, which presumption, though rebuttable, has not been rebutted in the present case but rather affirmed so as to become absolute and conclusive.
20. We hold, accordingly, in agreement with the learned Subordinate Judge, though on broader grounds, that the shares of the parties in this partition suit should be calculated according to the Mitakshara system of Hindu Law and we affirm his finding to that effect.
21. In the Court below it was urged on behalf of the defence that, in the absence of the other Mitakshara cosharers (coparceners), the present suit for partition was not maintainable. The learned Subordinate Judge overruled this objection upon the view that, although the Mitakshara law was originally applicable to the parties, 'as soon as there was the specification of shares in the settlement records, the character of the Mitakshara coparcenary was lost' and 'since then the parties are to be construed as being members of Dayabhag family and otherwise governed than by Mitakshara School of Hindu Law.' With the above line of reasoning we cannot agree. Mere specification of shares in the C. S. records would not certainly bring about a change in the system or school of law, governing the relations or the status of the parties. Possibly, what the learned Subordinate Judge meant, or purported to mean, was that, as soon as there was specification of shares in the settlement records, there was in law partition or severance of the joint status with the result that the position in the matter of devolution of property became the same, whichever system, the Mitakshara or the Dayabhaga, was applicable to the case. But even that view would not be strictly correct and as an absolute proposition of law it cannot be supported.
22. For partition or severance of the joint status, even under the Mitakshara law, intention is essential. Such intention may be openly expressed or may have to be inferred from conduct and/or circumstances, but in the absence of such intention, or unless pointing towards it, mere specification or shares would not justify or necessarily lead to an inference of partition or severance of the joint status. The specification of shares may, in the circumstances of a particular case, be indicative of such an intention but it may well have been for other purposes as well. In the absence of some indication of the requisite intention, either express or implied, -- and, of this, specification of shares may only be evidence in a particular case, -- a finding of partition or severance of the joint status would not be justified, merely because the shares are found to have been ascertained or specified. Reference in this connection may be made to the three decisions of the Judicial Committee, -- 'Nageshar Baksh Singh v. Ganesha', reported in 47 Ind App 57 at pp. 69-70 : (AIR 1920 PC 46 at p. 51) (L), -- 'Palani Ammal v. Muthuvenkatacharia Moniagar , and --'Mt. Bhagawati Kunwar v. Mohan Singh and also to -- 'Girja Bai v. Sadashiv Dhundiraj', 43 Ind App 151 at pp. 159 to 163: (AIR 1916 PC 104 at pp. 107-110) (O). Reference may also be made to Mayne's Hindu Law, Edn. 11 (1950), pages 546 to 547, and Mulla's Hindu Law, Edn. 11 (1952), Section 325 (page 422), and to two other cases of the Judicial Committee, namely, the case of -- 'Maharajah Ram Kissen Singh v. Rajah Sheonundan Singh', 23 WR 412 (P), where at page 41.4, their Lordships refer to five earlier decisions of the Board, reported in -- 'Appovier v. Rama Subba Ayyan', 11 Moo Ind App 75 (Q); -- 'Raja Suranenivenkata Gopala v. Raja Suraneni Lakshma Venkama', 13 Moo Ind App 113 (R); -- 'Ram Chunder Dutt v. Chunder Coomar Mundal', 13 Moo Ind App 181 (S); -- 'Sri Gajapathi Radhika Patta Maha Devi Gam v. Sri Gajapathi Nilmani Patta Maha Devi Garu', 13 Moo Ind App 497 (T) and -- 'Baboo Durga Pershad v. Mt. Kundun Koowar', 1 Ind App 55 (U), and observe that 'the question of intention must arise in all such cases and be determined in each upon its own circumstances' and the case of -- 'Ram Pershad Singh v. Lakhpati Koer', 30 Ind App 1 (V), where, at p. 10, their Lordships state, in effect, that the true test of partition in Hindu Law is the intention to separate. That, in matters of Hindu partition intention is the ruling factor is also stressed by the Privy Council in the much later case of -- 'Purnananthachi v. Gopalaswami Odayar .
23. In the face of these high authorities, it is difficult to hold that mere specification of shares in the settlement records would, by itself, effect a severance of the joint status or necessarily prove partition. We do not, therefore, agree with the learned Subordinate Judge that, as soon as there was specification of shares in the settlement records, the character of the Mitakshara coparcenary was lost and the parties ceased to be joint in estate, particularly when it appears that that specification of shares was not made at the instance of the parties but was rather the work of the settlement authorities. On this aspect of the matter, the observations of the Judicial Committee at pages 69-70 of 47 Ind App: (at p. 51 of AIR 1920 PC) (L) and pages 1044 to 1046 of 29 Cal WN: (at pp. 136-138 of AIR 1925-FC) (N) will be found highly instructive and of particular interest and significance.
24. The above view of the law is not opposed to the two recent decisions of the Judicial Committee (vide -- Anurago Kuer v. Darshan Raut and -- 'Mt. Inder Kuer v. ML Pirthipal Kuer which are sometimes quoted as authority for the proposition that, when there is specification of shares in the settlement khatian, a finding of partition and severance of the joint status cannot be avoided, in our opinion, neither of the two decisions cited really lays down any such proposition which, to say the least, would have brought them in more or less direct conflict with the earlier decisions of the same Board in the cases, to which reference has already been made, namely, 23 WR 412 (PC) (P); 43 IA 151 (O); 47 IA 57 (L); 29 CWN 1037 (PC) (N) and 52 IA 83(M).
25. In the Judicial Committee merely pointed out that, for a Mitakshara partition, definition of shares would be sufficient and no actual partition or division of the property by metes and bounds was necessary, repelling an argument to the contrary, apparently made before the Board, and, in that connection, their Lordships proceeded to state that
'the definition of shares may be proved inter alia by an entry in the Record of Rights showing the share of each member of the family',
or, in other words, that such an entry may, in a particular case, be evidence of partition or severance of the joint status. This is by no means the same thing as saying that mere specification of shares in the Settlement Record would, by itself, be enough for a Mitakshara partition, irrespective of intention. In the other case also , the entry in the Settlement Khatian was treatedas just a piece of evidence, which, along with other evidence, supported a plea of partition. It is to be noted that, in this latter case , their Lordships expressly referred to and relied upon the earlier case of -- 'Harkishan Singh v. Partap Singh where the Judicial Committee clearly recognised the paramount importance of 'the intention to separate' in these matters of Mitaksliara partition (vide page 100 of the AIR report).
26. The foregoing discussion makes it plain that the learned Subordinate Judge's view of the law on this part of the case is not correct. That, however, does not affect his ultimate conclusion. It appears from the plaint (Ex. F(1)), dated 15-4-1944, that the parties (including the present defendant 3 who alleges Mitakshara to be the governing law of the family) were, on their own showing, holding the family estate in particular defined shares as record-ed in the settlement records and were treating themselves as separate and exclusive owners of the said respective defined shares in the joint family properties. From this it is legitimate to infer separation (partition) or severance of the joint status or the requisite intention in that behalf (vide --'Alluri Venkatapathi Raju v. D. Venkatanarasimha Raju ; citing -- 'Balabux Ladhuram v. Rakhmabai', 30 Ind App 130 (Z2). At the date of the present suit, therefore, namely, 10-7-1948, the parties were no longer joint in estate or status although there was no actual physical partition or division of the properties, such physical division not being necessary for a Mitakshara partition.
27. Even otherwise, the plea of defect of parties cannot be given effect to in this appeal. Assuming there was no partition or severance of the joint status and other Mitakshara cosharers, not impleaded, were necessary parties to the suit, the fact remains that the learned Subordinate Judge has actually passed a decree in the plaintiff's favour after overruling the defence objection of non-joinder of parties, against which the defendants have preferred no appeal or cross-objection. The defendants, therefore, cannot be permitted to challenge the decree which must stand notwithstanding defect of parties, if any, and the plea of non-joinder or defect of parties, however strong on the merits, cannot be of any practical advantage to the defendants respondents. Those defendants can at best support the trial Court's decree by challenging the adverse finding of the learned Subordinate Judge on this part of the case, even assuming that they are entitled to urge this point (which really affects the maintainability of the suit and the foundation of the decree) without any appeal or cross-objection: vide -- 'Venkata Rao v. Satyanarayanamurthy', AIR 1943 Mad 698 (FB) (Z3). notwithstanding some authorities of this Court to the contrary; vide e.g. -- 'Shailesh Chandra v. Bechai Gope : AIR1925Cal94 . Nothing more need be said on this particular question.
28. Before concluding, we ought to refer also to one other argument of Mr. Ghose which relates to his client's admission in the previous plaint, Ex. B. We have referred to and relied upon that admission, although the learned Subordinate Judge, relying upon -- 'Joy Chandra Chakrabarti v. Aswini Kumar Dutt', 9 Cal WN 147 (Notes) (Z5), held that the said admission was of no effect as the said previous suit had eventually been withdrawn. In our opinion, mere withdrawal of a suit does not destroy the effect of an admission, made therein, and, if the case cited really intended to lay down any such proposition, its correctness is open to doubt. We find, however, that, in the 9 Cal WN case (Z5), the admission was found to be erroneous and that was sufficient to rob it of any adverse effect. Be that as it may, the learned Subordinate Judge was not justified in applying 9 Cal WN 147 (Notes) (Z5) to this case as the materials before the Court do not show that here the previous suit was actually withdrawn. All that the record discloses is that liberty was given to the plaintiffs to withdraw the said suit on payment of certain costs to the defendants with a rider that, in default of that payment, the suit would stand dismissed. There is nothing to show that this crucial payment was ever made or that the said previous suit was actually withdrawn. In the circumstances, the previous suit cannot be held to have been withdrawn and 9 Cal WN 147 (Notes) (Z5), even if it has been correctly read by the learned Subordinate Judge, would not apply.
29. In the above view, we affirm the decree of the learned Subordinate Judge and dismiss this appeal.
30. There will be no order for costs in this Court.
Renupada Mukherjee J.
31. I agree.