1. This is an appeal by the defendants against the judgment of the learned Subordinate Judge of Mozafferpore, dated the 31st of January 1913.
2. The plaintiffs brought the present suit for partition. The defence was that a partition took place between the parties in the year 1305.
3. The learned Judge found that there was no such partition. The defendants called a considerable body of evidence to prove the story set up by them. The learned Judge, however, remarked 'The story of division and separation in 1305 is, therefore, a myth...I entirely disbelieve the witnesses examined by the defendants and find that there was no partition in 1305.' The defendants have asked us to dissent from this finding of fact by the learned Judge. In the first place it seems highly improbable that the partition, if there had been one, could have taken place as long ago as the year 1305. No reason is given why a partition should have taken place at that date. There is no document from which it could be inferred that a partition took place as long ago as the year 1305. The story set up by the plaintiffs that the plaintiff No. 1 separated in mess from the defendants in 1309 has been accepted by the Judge and so far as I could gather from the learned Vakil of the defendants-appellants, he only faintly challenged the fact that the separation in mess took place in 1309, But he asked us to use the separation in mess in 1309 as proof or at any rate very strong evidence of a partition. The case of the defendants is not, however, that there was a partition in 1809 and they must stand or fall by the case they put forward in their oral evidence. The defendants have kept back the books of account. These books would be of the greatest value if they had been produced. Take for instance the question as to the expenses of marrying the daughters of the plaintiff No. 1. The case of the defendants was that the plaintiff No. 1 had raised a loan to marry his third daughter. The answer of the plaintiff No. 1 was that it was true that he borrowed money to marry his third daughter, but that his other two daughters were married at the expense of the family in 1305 and 1309. This, if true, shows that there could not have been a partition in 1305. The defendants by the production of the books of account could easily have shown whether or not the statement of the plaintiff No. 1 was correct.
4. Then the defendants produced certain sheahas in order to prove that the plaintiffs were in receipt of their share of the rents and profits from 1305. There can be little doubt that the learned Judge arrived at a correct conclusion when he found that these papers were fabricated.
5. Then again it is admitted that after the date of the alleged partition the plaintiff No. 1 and the defendants have brought suits jointly to recover rent in arrear. Further it is not shown that any portion of moneys that have been realised under any of these decrees was made over to the plaintiffs. The learned Judge also points out that the family clearly had a money-lending business and it is not alleged that the amounts due by debtors were partitioned.
6. The forms of the road-cess returns do not support the partition alleged by the defendants. The matters relied on by the defendants are first the separation in mess. No doubt this is a matter for consideration but it is not conclusive. Further the separation appears to have taken place in 1309. Then the lease to the Dholi Factory and the mortgage to Mackenzie have been relied on. And also the application for registration by the plaintiff No. 1 for registration of his share in Mauza Sardimal. The lease and mortgage do, no doubt, suggest that the plaintiff No. 1 had a separate share but in neither of these documents is it stated that there had been a partition between the parties.
7. With reference to the separate registration of the name of the plaintiff No. 1 under the provisions of the Land Registration Act, Sir Rash Behary Ghosh who appeared for the appellants very frankly informed us that we ought not to place too much stress on this matter, as he said it was a matter within his own experience that in many cases of families governed by the Mitakshara Law applications were made for registration of distinct shares when admittedly there had been no partition. The appellants also rely on the opening of a separate account for payment of Government Revenue by the plaintiff No. 1 with reference to certain of the mauzas. But this was only done after the defendants Nos. 1 and 2 had applied to have separate accounts opened in their names. Upon the whole I cannot find that on the documentary evidence the learned Judge ought to have believed the witnesses for the defendants who spoke to the actual partition in 1305. The onus of proving the partition was clearly on the defendants and I am not prepared to dissent from the finding of the learned Judge that they have failed to prove the partition alleged. The point, however, that was chiefly in debate before us was as to the form of account to be ordered against the karta. The learned Judge has ordered the defendant No. 1 to render accounts from the year 1283 corresponding with the year 1876, that is, the date when the defendant No. 1 became karta. The plaintiff No. 1 attained majority in the year 1889 or 1890. The question is, therefore, what is the usual form of account to direct against the karta of a Hindu joint family on a partition. The cases are not very numerous on this matter and are not easy to reconcile. The family we are dealing with is governed by the Mitakshara Law. The earliest authority is a decision of Phear, J., Chuckun Lall Singh v. Poran Chunder Singh 9 W.R.483. This decision was explained by a Full Bench of this Court in Obhoy Chunder Roy v. Pearee Mohun Gooho 13 W.R. 75 (F.B.). But as I read the decision of the Full Bench the decision of Phear, J., was not overruled. In the case of Konerrav v. Gurrav 5 B. 589 Melvill, J., observed: the ordinary rule, no doubt, is that the members of an undivided Hindu family, when making a partition, are entitled, not to was account of past transaction, but to a division of the family property actually existing at the date of the partition.' In the case of Damodardas ManeKlal v. Uttamram Maneklal 1 17 B. 271, Sargent, C.J., commented on this decision. His view was that the form of the account depended on the circumstances of each particular case. The learned Chief Justice seems, moreover, to have considered that Melvill, J., had laid down that the members of the family were bound to accept the karta's statement as to what the property consisted of. But Melvill, J., was dealing with the form of the account not with the evidence the karta should give to vouch or justify the account. In the case of Raja Setrucherla Ramabhadra v. Raja Setrucherla Virabhadra Suryanarayana 3 C.W.K. 533 : 22 M. 470 : 26 I.A. 167, the Judicial Committee of the Privy Council appear to have assumed that in a partition the karta usually would only be liable to account as to the existing state of the property. In the case of Narayan v. Nathaji 28 B. 201 at p. 208 : 5 Bom. L.R. 945 Chandavarkar, J., remarked if we allowed it, we should be acting contrary to the principle of law that in a partition suit no co-parcener has any right to an account of past transactions.' A similar view was adopted in the Madras High Court in the case of Balakrishna Aiyar v. Muthusami Iyer 3 Ind. Cas. 878 : 32 M. 271 : 19 M.L.J. 70 : 5 M.L.T. 145. The result of these authorities, I think, is that in an ordinary suit for partition, in the absence of fraud or other improper conduct, the only account the karta is liable for is as to the existing state of the property divisible. The parties have no right to look back and claim relief against past inequality of enjoyment of the members or other matters.
8. But, of course, this does not mean that the parties are bound to accept the statement of the karta as to what the properties consist of. That would not be an account at all. The karta is the accountable party and the enquiry directed by the Court must be conducted in the manner usually adopted to discover what in fact the property (not what the karta says it) now consists of.
9. The decree of the lower Court must be varied by ordering an account of the existing state of joint property in lieu of that ordered by the learned Judge.
10. The plaintiff No. 1 admits that he has received certain moneys forming a portion of the joint estate. The plaintiff No. 1 must account for these moneys.
11. Subject to these remarks the judgment of the learned Judge in the Court below must be affirmed and the appeal dismissed There will be no order as to the costs of the appeal to this Court.
12. I am of the same opinion. As to the form of accounts the order which we propose to make is supported by the case of Sookhmoy Chunder Dass v. Srimati Monohurri Dasi 12 I.A. 103 at p. 111.