1. In the suit out of which this appeal arises the plaintiff, who is now the appellant before us, was seeking partition of certain properties which were family properties belonging to the plaintiff's father, Ramgopal Singh and after his death, to the plaintiff and his two brothers. The defendant is the half brother of the plaintiff and the plaintiff's case was that he and the defendant Hiru Singh together with another brother Kissen Singh formed a joint undivided Hindu family, Kissen Singh was the full brother of Hiru Singh those two being the sons of the second wife of Ramgopal. Ramgopal died on 11th June 1928, and Kissen Singh on 11th November 1928. The only point which was argued in the suit is the question whether or not the three brothers, Sham Singh, Hiru Singh and Kissen Singh, formed a joint undivided Hindu family at the time of the death of Kissen Singh, that is to say, on 11th November 1928. The plaintiff's father, Ramgopal had five brothers and in the year 1926 a suit was brought by the sons of one of these brothers against Ramgopal and his three sons for partition of what was alleged to be the family property. In that suit Kissen Singh was represented by a guardian-ad-litem as he was under age. That suit was still pending at the time when Ramgopal died on 11th June 1928. On 3rd September 1928, there was a consent decree made in that suit and that consent decree embodied certain terms of settlement which had been arrived at between the parties to the suit of 1926. The case in the Court below and in this Court really falls to be determined by reference to the terms of settlement embodied in the consent decree of 3rd September 1928, and the matter which we have to decide is confined to a very small compass, by reason of the fact that it has been conceded on behalf of the defendant-respondent in this appeal that the family of Ramgopal including of course the plaintiff and the defendant and Kissen Singh did constitute a joint, undivided Hindu family up to the time when the consent decree was made on 3rd September 1928, and it has further been conceded on behalf of the defendant that no alteration was made after the passing of the consent decree as regards the manner and method of living of the family of Sham Singh, Hiru Singh and Kissen Singh up to the time of the death of the latter on 11th November 1928 or, indeed, as between Sham Singh and Hiru Singh upto the time when the present suit was instituted on 11th January 1930.
2. The plaintiff's case, therefore, as argued before us is a simple one, for he says that the family of Ramgopal was and remained throughout a joint undivided Hindu family. In those circumstances the plaintiff upon a partition as between himself and Hiru Singh is entitled to one-half of the joint family properties. It was admitted in the Court below and it has been categorically admitted before us that if the plaintiff and the defendant do constitute a joint Hindu family then the position is that each of the brothers Sham Singh and Hiru Singh is entitled to one-half of the family properties. If on the other hand, by reason of any event which has happened, Shamlal and Hiru Singh ceased to be a joint Hindu family and became separate in estate, then the plaintiff would only be entitled to one-third of the family property and the defendant Hiru Singh, as the full brother of the deceased Kissen Singh, as such, his heir, would be entitled to two-thirds of the family property. There is therefore no dispute whatever as to the effect of the decision of the Court concerning the question whether this family was joint or was not joint at the time when this suit was brought.
3. By reason of the admissions on the questions of fact which I have already indicated, all we are concerned with is to consider and give our opinion as to what was the effect of the terms of settlement arrived at between the parties in the 1926 suit and embodied in the consent decree of 3rd September 1928. The only clauses in the terms of settlement which are material for our present purpose are ClSection 26 and 32. The rest of the provisions of the terms of settlement have only been referred to in an endeavour on the part of the appellant and the respondent before us to bring some light to bear upon the real meaning of Clause 26. Having regard to the admissions which were made on behalf of the defendant-respondent concerning the continuity, so far as externals are concerned, of the joint undivided Hindu family with which we are concerned, the burden of establishing that the status of the parties was altered by the terms of the consent decree of 3rd September 1930, falls on the defendant-respondent and he has to satisfy us, on the provisions of Clause 26, that there was manifested on the part of the sons of Ramgopal a definite, clear and unequivocal intention to change their status and to bring about what is frequently called a disruption of the joint undivided Hindu family which upto that time, they undoubtedly were. Clause 26 reads as follows: 'The sons of Ramgopal Singh are entitled to the following properties and income thereof will be divided by them equally.' Then follows a list or catalogue of various properties. In Clause 27 it is stated: 'The defendant, Sham Singh, alone is entitled to the following properties.' There was mention of one bigha of land with garden and pucca building near Darjipar's Lane, Gowari Krishnanagore.
4. It is argued on behalf of the defendant that the fact that Clause 26 states that the income of the properties therein mentioned will be divided among the sons of Ramgopal Singh indicates that it was the intention of these three brothers thence-forward to cease to be an undivided family and to divide up the properties mentioned in Clause 26 into three equal shares and to enjoy those properties in severalty. The appellant prays in aid the provisions of Clause 27 as providing an antithesis as regards the properties therein mentioned and thus emphasizing and reinforcing the jointness indicated by Clause 26. So on the one hand we have it argued on behalf of the defendant-respondent that Clause 26 indicates an equivocal intention of breaking up of the undivided Hindu family on behalf of the plaintiff appellant, it having been argued that reading Clause 26 in conjunction with Clause 27 shows that it was intended that the three brothers would still remain joint though they were to enjoy the income in separate shares.
5. There has been a great deal of controversy touching the law which is applicable in a matter of this kind and a great many authorities have been cited before us particularly on behalf of the plaintiff-appellant. In my opinion no difficuity whatever arises as regards the law applicable to this case. There is no doubt that a joint undivided Hindu family can cease to be such and members of it can become separate merely by an agreement to that effect. But any such agreement must clearly indicate on the face of it an intention to separate and to hold the property which was joint family property up to that time in defined shares as separate owners. If on the face of it the agreement is clear and unambiguous and it manifests the intention of the parties to separate, then nothing more is necessary to bring about an alteration of the status of the persons who are the parties to that agreement. The defendant-respondent in these proceedings would have us accept his contention that the language of Clause 26 is such as to manifest a definite intention on the part of the sons of Ramgopal Singh to cease to be joint and thence-forward to become separate, and in support of that contention we have been referred to the provisions of Clause 32 of the terms of settlement.
6. Mr. S.M. Bose has urged that an agreement of this character like every other agreement must be looked at as a whole, and for the purpose of understanding and interpreting the terms of any one clause it is right and proper that we should look at the rest of the provisions of the instrument and construe the agreement as a whole. No exception can be taken to that statement as a proposition of law. Mr. Bose has argued on behalf of the defendant-respondent that the scheme set up by the terms of settlement was broadly speaking of this nature. By ClSection 2 and 3 it was agreed that the sons of Hargopal Singh who were the opposite parties in the suit of 1926 should divide up certain properties mentioned in Clause 2 and they should become separate and cease to form a joint undivided Hindu family, and a similar provision as regards the sons of Ramgopal is contained in Clause 26. Then following upon that broad differentiation between the sons of Hargopal on the one hand and the sons of Ramgopal on the other, there was a general provision in Clause 32, which was applicable to both sides. Accordingly, says Mr. Bose, we find that there is a provision in Clause 32 for the destination of the title deeds of the lands which would be allocated to each party in severalty and there are provisions relating to the custody of the title deeds, in case some of the properties would remain joint.
7. Mr. Bose then goes on to say that the word 'joint' as used in Clause 32 had no reference to the estate of a Mitakshara undivided Hindu family, but merely had reference to a state of things which would exist if for the purposes of their own or for mutual convenience, any member of either branch of those families chose to enjoy the properties allotted to them, jointly in fact if not jointly in law. This interpretation is indicated, says Mr. Bose, by the last sentence of Clause 32 which says:
If such oldest member sells his share in the said property to which the said title deeds will relate he will make over the title deeds to the oldest of the remaining joint members.
8. Mr. Bose says that that cannot have any application to a condition of jointness under the Mitakshara Law, because no member of a Mitakshara joint family can sell his share in law, and therefore it can only have application to a situation where there was jointness in fact. Therefore says Mr. Bose, Clause 32, so far as it indicates anything at all for our present purpose, certainly sheds light on the meaning of Clause 26, and indicates that it was the intention of the sons of Ramgopal to cease to be joint in legal sense, even though they might for their own purposes decide to remain joint in fact. We have however come to the conclusion that the provisions of Clause 26 are not such as to enable us to say that there is a clear, unequivocal and definite manifestation of intention on the part of the sons of Ramgopal to put an end to the condition of jointness in law which admittedly existed up to 3rd September 1923, the date on which the agreement was presented. We are moreover of opinion that the provisions contained in Clause 32 are not sufficiently explicit and unambiguous, or not so free from ambiguity as to enable us to say that they were of any material assistance to the Court in construing Clause 26. In these circumstances, it being admitted by the defendant-respondent that the whole of this case rests upon the contention that the plaintiff and his brothers ceased to be joint by reason of the terms of Clause 26, we must come to the conclusion that this appeal should be allowed. We are unable, with all respect to the learned Judge, to accept the view which he took that there was a sufficient indication that these parties by agreement had changed their status from that of a joint undivided Hindu family to that of individuals holding family properties in severalty.
9. The appeal is allowed with costs, and the decision of the Court below will be varied in the manner following, namely that part of it which declares that there will be a decree for partition by metes and bounds of the immoveable properties, i.e., the properties referred to in para. 26 of the terms of settlement will stand, but in place of the declaration of the share of the defendant as two-thirds and of the plaintiff one-third, there will be a declaration by this Court that the share of the defendant is one-half and that of the plaintiff one-half. There will be a declaration that the share of the defendant in those properties is one-half and of the plaintiff one-half and also in the property mentioned in Clause 17 of the plaint which will be included in the partition. It is further declared as stated in the judgment of the learned Judge at p. 167 of the paper book that there will be an enquiry as to the moveable property of the family which was not included in the consent decree and that there will be an enquiry as to the rents and profits realised by the defendant up to the time of the decree of this suit. The enquiry should apply to all other properties of the family. The costs of the enquiry will abide the result of it. We think that it will be reasonable and fair to say that the plaintiff will get one day's costs of the suit from the defendant and the costs for three days of the trial will come out of the estate. The plaintiff will be entitled to get costs of this appeal from the defendant.
10. I agree. It is common ground that the sons of Ramgopal Singh continued to be members of a joint Mitakshara family upto 3rd September 1928.
11. Accordingly it was for the defendant to satisfy the Court that that state of things was put an end to by the terms of settlement put in on that day. We have had the advantage of exhaustive argument on the subject of the proper construction of those terms and, in my opinion, the highest, at which the defendant's case can be put, is that the terms are ambiguous. That being so, it is permissible to scrutinise the conduct of the parties to see if such conduct throws any light upon the true character of the agreement at which they arrived. It is admitted that after the consent decree, the three sons continued to live exactly in the same fashion as they had done prior to the decree when they were admittedly members of a joint Mitakshara Hindu family. It is pointed out that Kissen Singh only survived for 2 months after the making of the decree. Having regard to this, and having regard to the fact that he was a minor, it would not be reasonable to expect any conduct on his part which would support the defendant's contention. That is true. But it must not be forgotten that the defendant himself did not alter his way of life for a considerable period after the consent decree. It is no one's case that the arrangement was that Kissen Singh should leave the joint family and that his half brother and full brother should continue as joint members of it. In these circumstances it appears to me that the behaviour of Hiru Singh upto the date of the initiation of this suit is a matter which must be taken into consideration and that it is inconsistent with the case of separation in September 1928.
12. With regard to Clause 32 of the terms of settlement, upon which considerable reliance has been placed by the learned Counsel for the respondent, the position appears to me to be as follows: The clause contemplates two classes of property, firstly, property which under the terms of settlement is to be physically partitioned as soon as possible, and secondly, the property which although it has ceased to be part of a joint Mitakshara estate, is, none the less to be possessed by the owners as tenants-in-common. Among the properties which by the consent decree are allotted to the sons of Hargopal there are properties which answer to each of these descriptions. I know of no canon of construction, nor do I find anything in the terms of settlement, which compels me to hold that all the properties covered by the terms of settlement must fall into one or other of the two clauses which I have mentioned. In my opinion, Clause 32 is not inconsistent with an intention on the part of the sons of Ramgopal that they should remain joint as Mitakshara owners of the properties allotted to them by the terms of the settlement.
13. I have no more to say on the merits of the suit. But there is one aspect of the matter upon which I desire to make some observations. This appeal furnishes an example of what frequently happens on the Original Side of this Court, namely of terms of settlement being put in which are so carelessly and so ambiguously drafted that in fact they settle nothing, but merely give rise to fresh disputes and further expense. I have little doubt that if the terms of settlement had been properly and regularly submitted to learned Counsel on both sides for settlement by them jointly, the result would have been a document which would have expressed the intention of the sons of Ramgopal and Hargopal beyond all possible doubt. The very phraseology which was employed in the terms of settlement and the mistakes in grammar contained in it, indicate that attention was not bestowed on that document. I have no more to add except to say that I agree with my lord in the decree and the order passed.