1. These appeals have arisen out of a suit for partition and accounts. The plaintiff in the suit, Purna Chandra Bhaduri, and the defendants trace their descent from the common ancestor Madan Gopal Bhaduri, who had five sons : 1. Iahan Chandra Bhaduri, 2. Shib Chandra Bhaduri, 3. Jagat Chandra Bhaduri, 4. Kashi Chandra Bhaduri, and 5. Mahes Chandra Bhaduri. The fourth son of Madan Gopal, Kashi, had five sons, 1. Ram-Chandra (defendant 5), 2. Krishna Chandra, adopted son of Ishan and Indra-moni (wife of Ishan) and renamed as Hem Chandra on adoption, defendant 1, in the suit, 3. Purna Chandra, the plaintiff, and 4. Tarak Chandra, adopted son of Mahes and Umasundari (wife of Mahes), and renamed as Ramesh Chandra on adoption. Ramesh Chandra died leaving him surviving as his heirs defendants 2, 3 and 4 in the suit. The case of the plaintiff before the Court was that Shib separated from the joint family in the year 1864, and that Jagat separated in the year 1875. After these two separations, the branohes of Ishan and Mahes represented by adopted sons, the uterine brothers of Earn and Purna, lived in commensality with Kashi's branch represented by Ram and Purna. There was, according to the plaintiff, jointness in mess and worship as well as in property and there was disruption of the joint family some time in September 1928, till which time the members of the joint family consisting of the branches of Ishan, Kashi and Mohes continued to be joint; the three branches of Ishan, Kashi and Mohes remained joint for the whole period from 1875 to 1928. According to the plaintiff, whatever property or share of property was sold or was acquired during this period of time, belonged to the coparceners having their share in the property. It may be mentioned that some of the items of property mentioned in the plaint are admittedly joint as claimed by the plaintiff; and the controversy between the contesting parties, the plaintiff and defendant 5 on the one hand, and the original defendants 1 to 4 on the other, related to item Ka (3), items Ka (4 to 9) items Ka (10 to 12) mentioned in the plaint.
2. The main defence in the suit related to the position taken up by the contesting defendants, that after the separation of Shib in the year 1864, and after the separation of Jagat in the year 1875, the joint family ceased to exist. There was separation in mess and separation in property. Defendants 1 to 4, Hem and the sons of Romesh asserted their exclusive title to the different items of property referred in the foregoing paragraph, items Ka (3 to 12), mentioned in the plaint. On the pleadings of the parties, a number of issues were raised for determination in the case bearing upon the merits of the claim of the contesting parties and on other matters. The Judge in the trial Court passed a decree for partition of immovable properties in the manner stated in his judgment. The claim for accounts made in the suit was dismissed and the prayer for partition of moveables mentioned in the plaint was disallowed by the Court of first instance. Defendants 1 to 4 appealed to this Court. Appeal No. 255 was by defendant 1 who died during the pendency of the appeal, and is represented now by his heirs and legal representatives. Appeal No. 284 was by defendants 2 to 4. The appeals related to the items of property claimed by Hem and Ramesh as their exclusive property and to which Purna and Ram had no title. There were cross objections preferred by the plaintiff, directed against the decree of the trial Court disallowing his claim for accounts and partition of moveables, The cross-objections were in Appeal No. 255. In these appeals, the case before the Court was argued by learned advocates for the appellants as mainly depending upon the separation of Shih in the year 1864 and the separation of Jagat in the year 1875. It was according to the appellants to be presumed that these separations resulted in the entire disruption of the jointness of family in mess and jointness in property. The question of jointness which was treated as a question of fact in the trial Court was sought to be argued before us as one of law; and we are led to believe that it was adversely done. The material evidence consisting of documents on which definite findings have been arrived at by the Court of first instance were not inserted in the paper books prepared in these appeals. The question of non inclusion of material documents in the paper books was considered by the Court at a previous stage, and the appellant persisted in the course adopted by them with the result that the order was passed on 2nd March 1936 in which it was distinctly mentioned that the appellants were not to be allowed to challenge the conclusions arrived at by the trial Court, with reference to documents which were not inserted in the paper-books.
3. That there was separation of Shib in the year 1864 from the family with all its consequences, there was no question. In the year 1875, Jagat separated. So far as Shib was concerned, the matter was not in controversy that he separated in mess and property; it was a complete separation. In the case of Jagat however, the materials on record clearly indicate that his separation in 1875 was not a complete one; the element of jointness in property still remained in the case of Jagat after 1875, and continued to remain for a long time after that. There was a separation of interest as evidenced by the Collectorate robakari (Ex. H in the case) of the year 1869, portions of which document have been printed in one of the paper- books before us, but material portions of the same to which pointed reference has been made by the trial Court in its judgment, indicating that since Shib's separation, there was one Kuchery for Shib and another for Ishan's widow Indramoni. Jagat, Kashi and Mohes, were not inserted for reasons best known to the appellant. The materials in the record indicate clearly that Kashi, Jagat, Mohes and Ishan's widow Indramoni remained joint in spite of the allotments evidenced by Ex. H. The position therefore was that one member of the family separated in mess or property or in both, while the remaining members continued to be joint. There might have been separation in mess at times for convenience and necessities of parties concerned. The question before the Court was whether any presumption of fact that might arise from the separation of Shib or Jagat in mess and property, from the branches of Ishan, Kashi and Maheah, would lead to the conclusion that all the different branches separated in property. There could however be no case of drawing presumption of fact or of law in a case like the present, where evidence was led for the purpose of showing on the side of the plaintiff, that there was jointness in property up till the year 1928 (September), between the branches of Ishan, Kashi, Mohesh. Shib and Jagat might have separated; the other members might have remained joint; it was a question of their intention which had to be proved by evidence. The conduct of the parties concerned must be looked at, in order to arrive at what constituted the true test of separation of property-the intention of the different members of the family to become separate owners. The question was a question of pure fact. After the separation of some of the members, the remaining coparceners may continue to be coparceners and to enjoy as members of a joint family, what remained after the separation or partition of the family property and the case of one or two members of the family, that the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparceners had separated from them. The question therefore, whether after separation of Shib and Jagat the other members of the family remained joint was a question of fact, which had to be decided on evidence on record. (After discussing the evidence their Lordship(c) proceeded.) The above brings to a close the consideration of the case before us on the materials before us.
4. In view of some of the arguments in support of the appeals, it is necessary for refer to some of the decisions of Courts placed before us for our consideration. Reliance was placed on behalf of the appellants on the decision of the Judicial Committee of the Privy Council in Bal Krishna v. Ram Krishna , and in Ramprosad Singh v. Lakhpati Koer (1903) 30 IA 1, also on some decisions of this Court in sup. port of the proposition that after one member of a joint family had separated* there was no presumption that the other members remained joint. This position was taken up in view of the admitted separation of Shib in 1864, and of Jagat in 1875, and of the state of things indicated in the robakari of partition of the year 1869 (Ex. H in the case). In this-connexion it has to be noticed also that very great reliance was placed on the side of the appellants on a decision of a learned' Judge of the Allahabad High Court in Raghunath Sahai v. Babu Kunj Behary Lall 1935 158 IC 430, in which the proposition, was stated that if the evidence as to actual separation is dear and conclusive, the fact of separation may properly, and indeed should be found, even though there is evidence of subsequent conduct which' on the face of it appears inconsistent with separation or an intention to separate. The proposition has however no application in the case before us, in which the fact of separation in property so far as the branches of Ishan, Mohesh and Kashi had not been established at all on evidence, regard being had to subsequent jointness of properties and enjoyment of profits out of the same. It may also be noticed that undue importance was placed on the side of the appellants on the decision of this Court in Hem Chandra Ganguli v, Motilal Gangull : AIR1934Cal68 , resting on the question of the burden of proof in the case of a presumption of jointness or otherwise, arising from facts admitted and establish, ed in a case. In this connexion we desire to state, as it has been said, onus as a determining factor of the whole case can only arise if a Court finds the evidence pro and con so evenly balanced that it can come to no definite conclusion. But if the Court after hearing and weighing the evidence comes to a definite conclusion, the need of placing the onus does not arise. In other words, the question of onus at the close of a case, only becomes important if the circumstances are so ambiguous that a definite conclusion is impossible without resort to it. It is to be observed that the trial Court has directed itself correctly in the case before us in the matter of appreciation of evidence, and has given its decision on evidence in the case in which no question of burden of proof arose, keeping the position fully in view that in the case of separation of any member of a joint family either in mess or in property, the primary question for consideration was whether the other members remained joint. 'Whether they have done so, was a question of intention and one of fact; the conduct of the parties was to be looked at, and inference was to be drawn from the way in which the income out of family properties was enjoyed after one or more of the co-owners had separated from others. There might be separation of interest: but there must be actual division of assets. These are questions which have been answered by the trial Court on evidence in the case, in a manner from which we see no reason to differ. As has been observed by the trial Judge, the case before the Court was not a case of drawing legal presumption of disruption of the joint family and separation in regard to joint properties to which Hem and Ramesh asserted exclusive title. The Court cannot presume, if the facts show otherwise; this is how the Judge in the trial Court has expressed himself on the subject.
5. The materials placed before the Court) have received our careful consideration, and we have examined the effect of the findings arrived at by the lower Court which could not be challenged in appeal. The definite decision we have arrived at is that the trial Court is right in holding (1) that the properties acquired in the name of one or two members of the -family were acquired on behalf of all cosharers of the joint family comprised of the branches of Ishan, Kashi and Mohesh; (2) that) both plaintiff and defendant 5 who now represent Eashi's branch, have right, title and interest in the properties acquired in the names of Hem and Romesh; (3) that the properties acquired by the leases of 1896 (Exs. S and 8 (1)) did not belong exclusively to the persons in whose names they were acquired; that estate No. 1923 of the Pabna Collectorate does not belong exclusively to defendants 1 to 4, and that the plaintiff and defendant 5 jointly have one-third share in those items of property; (4) that the plaintiff and the defendants or their predecessor in-interest lived joint in property and in mess also, when-ever convenient for them; and that they possessed all the items of immovable properties mentioned in the plaint as members of a joint Hindu family up to September 1935 as asserted by the plain-tiff in the plaint.
6. In the result, the appeals are dismissed. Taking into account the amount of costs awarded to the plaintiff by the decree of the trial Court, we make no order as to costs in the appeal in favour of the plaintiff-respondent. The cross-objections in Appeal No. 255, preferred by the plaintiff respondent are dismissed with costs the hearing fee being assessed at 10 gold mohurs.