BHAGWAN DAYAL versus MST. REOTI DEVI

]'~] SriUia s ..... N~igation Co. W. v. Uniun of India Suolw HM 7.

IHI

BY CouRT : In accordance with the judgmP-nt of the majority of the Court, the appeal fails and is dismissed with costs.

Appeal dismissed.

BHAG\VAN DAYAL

MST. REOTI DEVI (P. B. GAJENDRAGADK.lR, K. SrrBRA R•o 11nd M. Hl:I>AYATUI.LAH, J.T.)

R<aJvd1cata-Suit in Ret•""" Court-Queation of propri-•tary title referred lo Civil Gourt--Decru-Subsequent auit in'Cit'il Court for declaration of title--Whether decrr£ of Revenue Court op•rntt.< aa re• jwiiwta -Code of Citil Prowlurr, 1908 (Act V of 11108), 1. II.

!Fnd" T.aw-.Toint family-Prwimption ,... to joinl1te111-8tparation-Re-union, proof of-lrhelh<r m•mb•r> of different bra,.che" can acquir. prop•rly a1joinl llindufamily property.

One I. \V&S living voith his sons K and J in the village. lie was not in affluent circurnstances. K left the ancestral home; he first joined military service and then police srrvice. He gave up service and started business with his savings. He brought his nephews R (husband of the respondent) and (appellant) at different limes and allowed them to take part in the bminess. At his death K left will bequeathing all his prope11ies to his two nephews. After the death of R, his widow, the respondent, filed suit againc;c B, the appellant in Revenue Court under the U.P. Tenancv Act, for half share of the inco:ne of •ome of the villages left by K. As dispute aro<e as to proprietary title the Revenue Court framed an issue there on and referred it to the Civil Court a< required by the Act. The Civil Court held that the respondenr had half share in the vilhl.ges and on the bac;is of this finding the Revenue Court decreed the suit. Thoreafter, l~e ap~ellant filed the present suit in Civil Court for declaration that he was the absolute owner of all the properties io suit. His case wru that L, his sons and descen<lanrs constituted joint f{iudu family, that there \\'a'i never any partition in the family, that K, R and jointly started business and thev joinrly acquired .some properties during the lire time of K, some after the death of Kand some after the death of R, that the said pro-perties were joint family properties and chat he as the survivor was the absolute owner of all the propertie;. Alternatively,

3<£.C'.R. SUPREME'OOURT: REPOR'lfS

ho·pleaded~hat even if· there·wa• partition in the· family of L, a-reunion should be· inferred ·rrom the>cond11et of K, Rand Jl;'d'ln'ing-the llfcrime· ofK and' thereafter. The- respondent oo"tMdcd that the family of L was divided, that K started the business with the aid of his-self acquisitions and purchased properties out' ahhe iricome thereof; that after the death of K the two brothers R and 'B'• got· his properties under his will, than they joimly aaquired·.furthm· properties out of the focome ~ ofthe·busine111,.tluu after tlte" dcalhof R, the appellannu<-ceeded to . the half share• of R anG! th.at the c!ecree o£Jhe Revenue Court operated as res judicata.

Held, that •the suit was not barred; by re&-judk,ataz by the jw:lgmeat of the Revenue·. Court. . The present suit wa.uwt within the exclU&ive jurisdiction of ,tM1 · Revenue Court and was maintainable in the Civil Court amd as such s. 11 of the·Code of Civil Procedure was attracted. The judgment of the Revenue • Court on. the- issue• of pr9prictaw title couJd not operate as , reajudicata a&·the·Revenue Court \Vas: not competent to try the subsequent suit,.

Venkatarama Rao v. Venkayya•; A. I. R. l 954•MacL 783, approved.

Held, further, that there was partition of the family during the lifetime of L. Every Hindtt-. family kpresunred,to be jqint unless the contrary fa Proved; but thi~ presumption can be.rebu_tted by direct evidence of partition or by course of _...,, conduct leadjng to an inference 0£ partition. There is _no pre-sumption that when one meinber separates fiom-the others the latter remain united; Whether-the latter remain united or not must be decipecl orr the facts'o~'ea~h case, In the caoe of old transactions When' no contemporaneoui decuments af'C1 main .. tained and when most of the active participants 0£ the,tran• sactions .have pa!Sed .a.way, though. the burden still remains on the person who asserts separation, it is permissible to fill .up [, ]' gaps more readily by reasonable inferences thari in cases where_ .. the--evmnce i> not ob1itera<tecLby passage.ofitr.n.,. The· conducf of the parties for about 50 years wa" consistent. with their separation rather than with their jointness.

Hekl, furt~r. that it was not establiShed that there wa any reunion hl"'tween K and hiil. nephews·. Reunion must.· be !trictly proved. To constitute reul'l.ion tlR-remust be am. inten-tion.of the parties to reunite in estate_ and interest. It i! implicit in the concept of a. reunion that there shall be an agreement between the-· parties to reunite· iii: estatcr w.ith an ~intention to _revert. to their form_er. status of joint Hindu family. ·It is not necessary that there shouid· be·a,formal and f'xpress agfecmentc' fu·teuhite;· snch an·agreement·cat11.be,esta-blished by clear evidence of conduct incapable of explanation

lfl/Jl

Bhagwan Daytil y,. M:st. R1oti D1ui

Bha1wan Dayal v. Msf, Rtoti Dtri

on any other footing. In the plaint it was not alleged that a-, reunion had taken place by agreement but the court was asked to hold that there was reunion on the ground that the conduct of part~cs amou~tcd to ~eunion. The conduct of the parties spreadmg.over :iO years .ct1d not •how that Kand his nephews had consciously entered mto an agreement to reunite and be-come members of joint Hindu family.

Palani Ammal v. Muthuvenkatacharla Maniagar, (1924) L.R. 52 I.A. 83, Venkataramayya v. Tatsna, A.l.R. 1943 ). Mad, 538 and Ramadin v. Gokulpraaad, A.l.R. 1959 M.P. 25 1, referred to.

It is not possible under the Hindu law for some members only belonging to different branches or even to single branch of family to constitute subordinate joint Hindu family. Any property jointly acquired by such mem-bers cannot become joint family property and would be governed by the terms of the agreemr:nt b~tween them under .... '"·hich it was acquired. The principle of joint tenancy is 1 unkno,vn to Hindu Ja\v except in the case of the joint property of an undivided Hindu family governed by the Mitakshata law which under that law passes by survivorship.

Sundaraman Maistri v. Sara.•imhulu Maistri, ( 1902) I.LR. 25 Mad. 149, ChakreKannan v. Kunhi l'okkar, (1916) J.L.R. 39 Mad. 317, The Official Assignee v. l.l'ulambal Ammal (1933) 65 M.L..J. 798, llimmat Bahadur v. Bhau:ani Kumar, (1908) l.L.R. 30 AU. 352, Jogeshwar Narain Deo '"Ram Chun;. Dutt, ( 1896) L.R. 23 I.A. 37 and Babu Rani,., Rajendra Bak.!1' .. • 'ingh (1933) L.R. 60 I.A. 95, approved.

l.l'athlL Lal v. Babu Ram, (1936) l..R. 63 I.A. 155 and Rampraahad Tewarry v. Sheochuran Doss, (1866) 10 M.I.A. 490 referred to.

Sham Narain v. Th• Court of Ward• (1873) 20 W.R. 197, overruled.

CIVIL APPELLATE JURISDICTION : Civil Appea.l N'o. 448 of 1958.

Appeal from the judgment and decree dated May 7, 1944, of the Allahiibad High Court in First Appeal ll:o. 486 of 1944.

M. C. Setali-ad, Attorney-General for India and B. ]). Sharma, for the appellant.

A. V. Viswanatha Sastri, S.N . .A.ndley. Rameshwar Nath and P.i.V. Vohra, for the respondent.

3 S.C.R. . SUPREME COURT REPORTS 143

1961. September 4. The judgment of the court was delivered by

SuBBA RAO, J. -This is an appeal by certifi-cate granted by the High Court at Allahabad against its judgment dated May 7, 1954 settin~ aside the decree made by the Civil Jndge, Agra, in suit filed by the appellant for declaration that the properties more particularly mentioned in Schedu-les B, and annexed to the plaint, were his absoh1te properties.

To appreciate the facts and the contentions of the parties, the following relevant part of the genealogy will be useful.

Pt. Lachhman Pras&d

Mst. Reoti Devi I I }fat. Dayavati Ajudhia Prasad The date of death of Lachhman Prasad does not appear in the record. Jwala Prasad died in 1908; Kashi Ram, in 1924; Ram Lal, in 1914; Banwari Lal, in 1914; and Raghubar Dayal, in 1933. The ancestral house of the family was in village Naugaien, district Farrukha-bad. The plaintiff's case is that Lachhman Prasad, his sons and descendants constituted joint Hindu family, that there was never parti-tion in the family, that three of the members of the said family, namely, Kashi Ram, Raghnbar Dayal and Bhagwan Dayal, jointly started business at Agra, that they jointly acquired some ·properties and houses during the lifetime of Kashi Ram, some

Bhagwan Dayal v. M1t. Reoti rfvi

Sultia Rao],

BMcu""' Da:fO/ v. , st. /{1oti Droi SMila_RaoJ.

SUPBEME:COURT REPORTS

afUir h'is death, and others aftlir the death of Raghubar Dayal, and that the said p_roperties were the jGint family properties of tho Raid members, under the Hindu ld.w. His fort.her <'.a.Be is that after th6' death of Kaehi Ram, the litisiness ·and' the pro-perties acquired. dming his life f.ime devolved upon the plaintiff and· RagJombaT Dayal by survivorship, and. that after the death of' RaghubaT Dayal tho said prop.ertis; aloog with' t!Jle.propertics acquired <luring tho lifetime of Raghubar Dayal passed on by survivorship 'exclusively to tlie plaintiff: The properties deecri!Jed in Scliednle are the ances-tral properties; those desCTibed irr Schcc:lufo ·B are the propnrtiesi acquired jointly by the said three members during the life-time of Kashi Ram; these dt•scribed in Schedule arc properties acquired by Raghubar Dayal and the plaintiff after ilie deiLtbi of Kashi Ram; and the ]) Schedule properties are those acquired by the plaintiff after tho death of Raghu bar Dayal.

. Alternatively, it is alleged that even on the assumption that there was partition in the family of Lachhmrm Prasad, reunion should be inferred from the conduct of the said three members dndn~ tho lifetime of Kashi Ham and thcreaft.,r. It is further aUcged.that the defendant, tho widow of Raghubar Dayal, filed suits in the Revenue-Court under the pro?isions of.the U: P. Tenancy Act for• half Rharo ill'the income ofmauza CJia.oli, Chak So yam Nag la Kasheroo and .mauza Chak. Chs.haram Talab Firoz Khan, that the said Revenue Court, framed an issue raising .the question of titlo to the sR.id properties and sent thf\ same for decision to the Civil Com-t, as it should do under the prod-sions of the said Act, that the learned· District Munsif held in Suit No. 15 of 1939, suit filed in respect of mauza Chaoli, that the plaintiff therein had title to I\ half share in. the said village, that the Revenue Cburf, on the basis of tho said finding, gave decree- in her favour· i9 rei!pect ofh~lf share· of the focome of the said village and that

:l -S.C.R.

the ~aid decree· wa;s1 taken on appeal to the District Court ;a,nd also, on further appeal, to the High Court,rbnt withcrut .lfl'll.coess i.e., the· decree of the District Mnnsif was confirmed, and that the suits in respect . of ot.her v¥11ages •are StHl pending. The plaintiff (appell&nt he<rein) says that the said. find-ing · of ·rthe Rev!lflue Court does -not operate as re8 judiC&ta in thll' present suit, anl:l·that he is entitled to reagitate the ·matter. On ·those allegations the present•.suit was filed m the court of the Civil Judge, Agra, for 'Cleclaration of the plaintiff's title to the. properties described in ,Schedules B, and annexed to the plaint and for11permanent injunc-tion. restTa,ining the defendant· from executing the decree1in Suit No. 15 ofl9'39.

'The defendant (r!lllpondeBt herein) .in her written-statement alleges that the family of Lach-. hman Prasa,d was divided, that Jushi Ram started business in Agra only. ,with t.he. aid of his self-Mquisitions and purchased properties out of the in-come- 'de:i-ived ·therefrom, .that .after the death of Kashi'Ram the two'brothers, Raghubar Da.ya.l a.nd Bhagwan Dayal (plaintiff), got his. pl'.operties 111nde:r will executed by him, that thl)y jointly .acquired further properties 'from and out of the income .of the business started by Kashi Ram, and that after the death of Raghubar Dayal the defendant suc-ceeded to. the interest of Raghubar Day.al. and· that, . ~therefore, .she . was ·entitled• to an equal share .in B, C·aJI.dD Schedule properties alongcwith the plain .. tiff. She further .pleads that. the deeision<if.the Revenue Court in. Suit No. 15 of 1939, hold.ii;Jig that the brothers were not members ofa joint family and that, therjlfore, .she . succeeded· to the,inliereste of.h!Jr Jmsband, R~h\lbar DayaJ, Jin the joint pro-perties, ·optirated· 1 :as . res judi,rata , in. respect .of the plaintiffs entire claim.

'The suit was tried by the Civil Judge, Agra, . alid'the lear.ne<l'Ju'dge,gave the following finding~: i ( l) the judgment and decree of the Revenue Court

Bhagwon Day«l v. . Mst.' Reoti Devi Subh• Ra• J.

Bhagwari Dayal v. Msl. Rroti Dr! i s~Wbo Rao].

in Suit No. IG of 1939 operated as res judirnta on the question of title of the defendant only in respect of the half share claimed by her in mauza Chaoli ; (2) there was a. partition of the larger family, and that KaEhi Ram, Raghubar Dayal and Bhagwan Dayal were the divided mombers of the said joint family; (3) there was no reunion between the said members; (4) Kashi Ram had validly bequeathed his properties under will to his two nephews; and (fl) there was reunion between Raghnbar Dayal and Bhagwan Dayal and, therefore, on the death of Raghubar Daya.I, Bhgwan Dayal acquired hie interest in the plaint schedule prcperties by survivorship. On the said findings the Civil Judge declared the plaintiff's absolute title to the properties described in Schedules B, and D, except in regard to half share in mauza Chaoli. The defendant preferred an appeal against that decree to the High Court ; and the plaintiff preferred cross-objections in respect of his claim disallowed by the Cfril Judge. The appeal was heard by a. division bench of that Court consisting of Agarwala and Gurtu, JJ. The two learned Judges gave different findings but ca.me to the same conclusion in holding against t.hc plaintiff.Briefly stated, the findings of Aga.rwala, J., are as follows : ( 1) The evidence on the record iB 11ot sufficient to establish partition in the family. (2) Though as matter of law two or more members of larger Hindu family not belonging to the same branch can form smaller joint family and acquire properties with all the attributes of joint Hindu family property, in the instant case the evidence doos not establish that Kashi Ram, Raghubar Dayal and Bhagwan Dayal oonstitut~d such unit and acquired the properties ; the pt'operties were the self.acquired properties of Kashi Ram, but were bequeathed by him in equal shares to Raghubar Daya.I and Bhagwan Dayal, and after

). ,. [-]

' ' ' I

3 S.C.R. SUPREME COURT REPORTS

his death they held those properties and those 1" acquired subsequently only as co-tenants and not as members of joint Hindu family. (3) The finding of the Revenue Court in Suit No. 15 of 1939 does not operate as res judicata in respeet of any properties in the suit. In the result, the lca.rned Judge held that the properties describEd in Schedules B, and were owned by the plaintiff and the defandant in equal shares.

Gurtu, J., gave the following findings : (1) There was separation between Kashi Ram and Jwala Prasad and also between the sons of Jwala Prasad. (2) Two brothers out of four and an uncle cannot in law form distinct corporate family . ~ with the incidents of joint family and acquire properties for that unit. (3) Kashi Ram could ' never reunite with his nephews as matter of law, because Kashi Ram had separated from Jwala Prasad when Raghubar Dayal and Bhagwa.n Dayal were not even born ; nor did he unite with them a.s matter of fact. (4) The judgment of the Revenue Court in regard to the question of title would operate as res judfoata in rsspect of the . ~ plaintiff's entire claim to the estate of Raghubar Dayal. And (5) the plaintiff and Raghubar Dayal held the properties only as co-tenants. The learned Judge, though for different reasons, agreed with the conclusion arrived at by Agarwala, J. In the result, the High Court allowed the appeal filed by the defendant and dismissed the cross-objections 1 filed by the plaintiff : the suit of the plaintiff wa1 dismissed with costs throughout. Hence the present appeal.

We shall first take the question whether the judgment of the Revenue Court passed on the find-ings recorded by the District Munsif in Suit No. 15 of 1939 operates as res judicata in the present suit in respect of the plaintiff's right to succeed to the •. share of her husband, R~ghubar Dayal, in the joint properties. Some of the facts relevant to the

Bhagwan Dayal v. Mst. Rtot! Dtvi · Subia Rao J.

Bhagu;an J)nyal v . .\l.it.Jltoti L'nli Sulia Rau J.

448 SUPREME COURT. REPORTS

[ 1 ll6-2j

question JruliY be rccapitulat.cd. The- reopondent Reoti Devi filed Suit No. 15 of 1939.in· the .Revonuu Court 1' for, recovery of..her sha.rerof profits of village Chao Ii against Bhagwru1 Dayal in ro!ijlcc.t. of•l343, J34.4 and 1315 f&sli 011 th~ .grom1d that . .ahe Wl\lhW,co-sharer. The present appellant, who wa.s the defon-. dant· in that suit, contested the .suit, int~1'. lliia on tho wo=d thatlte•and his deceased brot.ber •consti-. tutcd members of joint Hindu family and• that 'Gll . his brother's death his interest in the entire joint family proj}6I't-y devolved ·011 him by right uf sun·i-vorahip. ~s ·tit€ · defe?Idant raised the question of title, the ·H.a'.•t,'!JUO Court framed an issue -011' the ~tion of•:title raised, in· the pleatlings and rcfrn'ci'l. the·BMRe w•tfte Crvil·Ccmrt for decieio111mdt•r"s. 271 of.the !Agra Tenancy Act, 1026 (hereinafter callctl the Act). The•leametl ·Distri<lt ;\fonsif decided· the issue agai.Mt,tl1e appellant herei11, with the !'esult that t~ Revocmie•Oew-t made Hecrce 011 ihc basis of-that finding·mlfovour of the ·respondent ·ltcrein. Ag.a.inst t.he- said del'R'ee,• the ·appellant preferred ·an a.ppcab tNo•05 of 194t)• to the Distriet Court; Agra but 'tha11 appeal was dismissed. The second 11ppe:tl fiioed by frim ·in die High 0w.irt of 'Alhiha1'ad·,vas also dismissed. The ·resnlt of that litigatron was taat.a decree <wM•given !u•favunl' of the TPBpondoot herein for. rcGovery of· hm· share of thc·prdfits Of village Ohaoli .. ll'he question is whether the said· decree opera hid ·&S res"judioou1 in the Jlresent !!Uit. The learned Judges of the[1]High Court-llifferetl on the question -of·'l'es jw.lioota ; ~garwnla, J., ·held that tho •iiaid ·Giioision · M the ·Revenue Court ·in Suit No. 15,ofl939 ditl not Oflerate-as re;J jwiicata miUc Gnrtu, J., held that it did.

Learned Attorney-General conum<l.cd that the decision in -Suit No: l5 of 1939 l\·ot.ild not operate as re.~ judionta on· the present suit for two rea&0ns, namaly, (I) in the previouEJ-8Uit, the question of title was decided by Cit·H Court .and, therefore, ij. ll of •the C~e of 'E:idl ,procedure iti terms. }~a.s

. .SUPREllIE,COURT nE1'0RTS.'.' ;449: --

3.s.c.n.

attracted; !J.nd, as. that Court was.not competent to"''"' 19[61 ]· try the pr!'sent suit, the.·.deoision .therein:would not: .~n,,&W«" D9d":~' operate a~ .r:.esJuqicata ;; (2) even if the, original: suit. : , ~r, .. ~;,i;Dni\ .. ·,.,. must be deemed to have been decided·.bva.Revenue .•. - -- . -:· , .. Court, that Court had no exclusive jurisdiction to s,,;1,11uy_ •' ·,;:' decide: the present suit and,;·therefore,•any decision therein would.Jnot:l operate :•as -resjudirota 0n the ,,. present suit ,for., the :same• reason;•:11iz., «that the; Court .was l,lOt;coinpetent ,to' try, the preiient: suit.,' -'

' .. ! - , -· ~ -·' l_ • • • • • ' •• • : •• - , \ I; . ._f ·r, I'! Mr. [1].A:·V. Viswanatha'Sastti, Iearne<,l cciµnsel ,, for' the reiq)bii.deht, 'on' the' cith{lr hand,,ccnitendeg . that, though' the' question' of title was decided by. a' Civil Court; ;the 'fin.aI"aecision wa'.s'thiit 6f the Revenue 'Court; tliat."the subject7malter: (if the.,., present suit was Within 'the 'exclusive jilriBdicti<in o(' ': that Com:t' anil that~ ther'efore,' the' present suit was .. -.. not maintainable. That apart, he conterideu that· as ,the subject-ma~tei- of ,the pri:isen.t suit .was .within the, exclusiv~_,_. jµrisdicti9n of the ,Revenmh Court,_ the_ decisiru;i of JhatCourt on.the question o£title. L would be r~s .judica_ta in the, present suit ,not ; under.. · s.ll of .. the.. Code of .Civil.Procedure but under the c, general p.l'fucjples.or' i:es. judicat.a,;,rfcir, .it ',is. said,,, that in the case of decision of Court· of exclusive . jurisdiction:· s: 11 is· not applroable ' and therefore, under the general· .• principles 'of res'judicata>the c6nditicin..fhat the c'cikt }Vhich decid-' . ed the preVicniirauit shciiHd'bi'competent.tci try the subsequent sUit need not'oe. Qomplica witii. · -. : .. •. : .• ! V•.'i/ , .. :; .. \,.1 LU•-•: t •. ,1.;, '-'~U;''•~- -

, · ..... Befo~e,,a,d~e~~g' ourselve~ '.~tp., ~he,, question ra1s,f!d, it would be necessary· to notice ~ome.of the relevant prcivisicins'oftlie':Act.''.' ·; ··· •.. · ·~:, ·; .. ,

, , [1]! .~~--~.:::.·1-_ .... -__; ,1-·,,..,_.1 -·--'-:•-........ _, ··'·· "' •'' ..

........ _, .. , · , Sectian. 227"'1(1} 1A-cot&h3.!e_r•may:'sn6- an~"-·'" ·

•1. other ::for 1a.·' settlement .of;accounts;and for · "'"

".,f :his share of the.profifa, oflaimahal,: or-of• any.· -.·

part thereof. .·. L ..• -'"'·"' ··••

., , .. (2) .. - In any such suit' when it . is · proved or. admitted:Ahat 'either party has,made col- ,,_,_ . Jections:the amount~of•which ds ;in :issue,: he•. ·

Ilfl B""r,... Day.· •• Ms,..· R1tNi .D11i . S"6la &.J.

St'l'REME COURT REPORTS

(I !'62]

shall ·be bound to fumish true account of such collections. If he fails to do so the court may make any presumption against him which · it considers reasonable.

Section 230 : Subject to the prov1s10ns of section 2i I all suits and applications o£ the nature specified in the Fourth Sche-dule shall be heard and determined by the revenue courts, and no Courts other than revenue Court shall except by way of appeal or revision as provided in this Act, take cognizance of any suit or application, or of any suit or application based on cause of action id respect of which relief could be obtained· by means of any such suit or appli-cation.

Explanation.-If the cause of action is

one in roapect of which relief might be grant-ed by the revenue court, it is immaterial that tho relief asked from the civil courts may not be identical with that which the revenue court could have granted.

Sectwn 2r1. (1) If (i) ....................... .

(b) in any euit instituted under Chapter XIV the defendant pleads that the plaintiff' has not got the proprietary right entitling him to institute the suit,

and such question of proprietary right

hae not been already determined by court of competent jurisdiction, the revenue court shall frame an iBBuo on the question of pro-.prietary eight and submit the record to tho competent civil court for the decision of that issue only.

The· civil court, after re-framing

the issue, if neoeSBary, shall decide that issue only and return the record together with it 8

3 s.c.R. SUPREME COURT REPORTS

finding on that issue to the revenue court which submitted it.

(3) The revenue court shall then pro-ceed to decide the suit, accepting the finding of the civil court on the issue referred to it. ·

( 4) Every decree of 11. revenue court passed in suit in which an issue involving question of proprietary right has been decid-ed by civil court under sub·section (2) of this section shall -

(a) if the question of proprietary

right is in issue also in appeal, be .. appli-cable to the civil court which has juris-diction to hear appeals from. the court to which the issue of proprietary right has been referred ;

(b) if the question of proprietary

right is not in issue in appeal be appli· cable to the revenue court. ·

The Fourth Sched'lde-Group A-S'Uit8·

Section 264. The provision~ ofthe Code of Civil Procedure, 1908, except :..:.. ' · .

. (~) p:ovisions inconsistent with any· thmg m this Act, so d'a.r as the inconaii-tency extends,

1961 BJipg,... p.,_. Y. .Mst. Reoti Devi S!'ih• Rao.J, .

19~1 BluztUJ4Jt D~Jtsl v. MJI. ~toli Dtn SulkilM ]

{b) proviBi:ons app~icable o~ly tc special suits or procccdmgs outs1de the scope of this Act, and

· · (c) the pro~isions contained in list

I of the Second Schedule,

shall a!Jply to . all suits and other proce-edings under this Act, subject to the modi-fications contained in list II of the Second Schedule.

. The gist of the said provif':Ons may be stated

. thus: One of the co-sharers can file. a. suit against another co-sharer for settlement of a<--counts and • for his share of the profits of mahal or any part thereof. If the defendant denies the plaintiff"s proprietary right an issue on the question of title is raised and sent to the civil conrt for decision. The revenue court shall accept the finding of the civil court and decide tho suit accordingly. An appeal would lie against that decree to court which luw juri£diction to hear appeals from the court w which the question WM Teferred. The Revenue Court has exclusive jurisdiction to decide suit& of the .nature described in Fourth Schedule. One of the suits mentioned in the Fourth Schedule is suit by co-sharer against co-sharer for & settlement of accounts and his share of the profits oC th~ mahal, or of any part thereof. No other court shall take cognizance based upon cause of action in respect of which relief can be obtailled by any such ttuit. ·

The first ql)Cl'Y is whet.her the present suit is

ba.sed au cause of action in re~;pect of which relief cau be obtained by means of suit specified in the .Fourth Sehedula to the Act. Tite prt'tit:nt &uit is for ded:uation of the plaintiff's title to the plaint I!C~d\llo propertietS and for a!l injunction restrain-lng the exeeutWu Qf the decree obt&ined by the de~endan~ in the Rev~nue Con£t. The ple.intiff cla1ms htle to the sutt properties on the ground

'. 3 S.C;R. CSOPRElIE CCHJRTLREPORTS.

·that he7 was• •member; of af: jomt·.:Hinuu family' .· · ~ alcing·with his deeeased·brother- ltnd;ttherefo:OO, he .. ,•'..i!A.ir-D.;,i succeeded to his share. by ''right.· of'"surV:ivu:f!l;~ip·:~ :iJ.tst. i~i Ji.,; •. Th~. qt1estion:is whether·SU~ suit is,in the ria_tur~ •·; .. :__ ., . ;.otsuits . .specified· in tJ:e.•J?.qurth,.fl11hedule. ,to ·the" "•SuJ/JaRMJ. · , Ant .. ,'.I:he,s:iidSch~uhi.d()es~ not ,p.rovideJor any . ~it .by.a p~fsOJ~ claiini~,tq !Je the .. ,proprietor of .. p.i;operty. ,an~ in" possessjon .. thereof .. ,Fraying ?r · declaration .o.f: his t~tle 1t!ld for ~.injunct~on agamst another who IS trying to interfere '!ith his title. If so, under s; 230 of the Act,'the Revenue Court has . :no excliisivejurisdietion·tor .. entertain: :suit of the tiafare thafis before us.::· If it is :i:wt · 'i'iiuit•of that nature; under that'·sectionr·the...'civil ·court's juris~ dictioniis riot·ouSted. ,·A'fu!l:berich of the .Madras High Conrt·hacl:occasion1to•con2ider a•similar ques-tion arisingiUriderthe :l!adras•Estates:.Land Act, , .1908 in· .Ve11katarama,Rao., V;; V enkayya{~).., .. There, ce'rfain:tenants.;filed petition ,,i.irider .. ;S.'1:0.of , the l\fadras:Estate:iLa~d..A,Ct;. ·"1908~., in,,'.- the., .r1.wenue court. for:~plln.utation '!f re~t':aga~s(th~ j landho~-. 'ders.;: The,:landholders, r:used,,the.plca that. the rillagq .ill ;which the· petitioners'.'.lands ;Wei~ situated WaS not an estate and;tliere:fore;,-~he'..'p'etitiQD •WILS n.ot maintainable in thti. 'ievelllle' .. court. 'The Revenue DiviSional Officer' held that it1 was. not an estate and; ozi th3.t 'finding,': dismtsseil 'the petition .. TJie,ina.t~er ,.va~ t1,1~~n.u,p'()#'~j>p~aL,tci'·:the D~strict . · Court and thereafter td 'the: H1gfi:-Court; without . success. "Subse'q'tien't!Y, 'the landlords' filed a: suit in . . : ·. the 'Ciy~ .. Q~Urt againSt'.ih~J~~ant,f!.'f~r ~~- injUnction . , restra,m1:ig.th~~. f~o,m. re~O,VI!!g .~~:. pag?y, c.rops standing on the smt lands until the rent was·pa1d to them; . ·The« Jaji.Cl.holders : raiaed.the'plea'' that the decision of the re~e:imthfoiiit 'hoidii:ig that the vil-. lage•was not'an estate ·was·binding[1]'on:'the.Ci'vil court~ •.'.·The·full: bench' of the l!ailra.ff Hlgli Court .. held• that' the;: 'Said• finding.'. was ·not« binding on the ·civi!I• ciJurt: :1 Adverting to··s.•189(.3} of the •£A-~ -, -_-.,; •. ;~.1,~··1r·~·:-· .... ';,:_:.-1:, ,1[ __ ;,,-;.._;.'):,_ .. f.:i, :. : .. (I)-~-~· I:~:,~·.I9J,~.:~P~·.:?~~~··:!. ~;-j~;z_~.-:-~!·-~.--~,;.· 0·:_\ ~;:.'._/;;: · ~ · {;

BMtwon Daydl v. his:. Rtoti .Ditti ~l•iu..].

Madras Estates Land Act, which corresponds to s. 230 of the present Act, the learned Judges observed thus at p. 790 : "Therefore, it is ckar that it is only in res-pect of such disputes or matters as arc covered by the suits or applications specified in s.189(1) tbat the revenue court can be said to have ). exclusive jurisdktion, that is, jurisdiction to the exclusion of civil court.

If particular mattff is one which does not fall within the exclusive jurisdiction of the revenue court, then decision of revenue court on such matter, which might be inci-dentally gi\·en hy the revenue court, cannot ' be binding on the parties in civil court."

We agree with the s!l.id observations. On the same

analogy, the present suit was not within the exclu-sive jurisdiction of the revenue court and, therefore the suit in the civil court was maintainable. If so, s. l l of the Code of Civil Procedure is immediately attracted to the present suit. The relevant part of .• s . .II of the Code reads :

"No Court shall try any suit or issue in

which the matter directly and substantially in issue has been directly and substantially in issue in former suit between the same parties or bf tween parties under whom they or any of . them claim. litigating under the same title, in • Court competent to try such subsequent suit 01 the suit in which such issue has bel'n sub-seque11tly raised, and has been heard and finally decided by such Court."

In this case the title to properties now put in issue

was tried in the revenue court. Rut that court is not competent to try the present suit in which the same issoo is raised. It follows that in terms of· B.11 of the Code, the decision on the said issue in the revenue court could not operate as res judicata

38.C.R. SUPREMECOURT REPORTS

for the necesgary condition of competency of that court to try the present suit is lacking.

In this view, it is not necessary to consider the differences between the scope of the principle of res judicata covered by s.11 of the Code of Civil Procedure and that of the principle of res judiC1.1ta de hors the said section. Nor is it necessary to ex-press our view on the question whether the decision on the question of title in the previous suit was that of revenue court or of civil court. We, therefore, reject the .plea of res judicata.

We shall next take the question of partition in the larger family. Learned Attorney General contends that the finding of Agarwala, .J., that there was partition of the larger family is correct and is supported by evidence in the case. Mr. Viswanatha Sastri, learned counsel for the respondent. contests the correctness of both the legal and factual submissions made by the learned Attorney General. His argument may be briefly snmmarized thus : The members of the family were villagers. the ancestral property owned by them was insigni-ficant, its income was small, the partition must h1we taken place long ago, and in these. circums-tances neither documentary evidence · nor . the evidence of the elders is available but there is suG. cient evidence on the record to sustain the· finding of partition given by the learned Civil Judge and Gurtu, J.

The general principle is that every Hindu family is presumed to l;)e joint unless the contrary is proved ; but this presumption can be rebutted by direct evidence or by course of conduct. It is also settled that there is no presumption that when one member separates from others that the latter remain united ; whether the latter remain united or not must be decided on the facts of each case. . To these it may be added that in the case of old transactions when no contemporaneous docu-ments are maintained and when·most bf. the active

Bi"'l- 1!ayal v. Msl. Rroti. 'D1vi . Subb•Ra• ].

:ZIIl ~D!SJd M•t. Rtoti "· D,;

participants in the transactions have passed away, thougl- the burden still remains on the person who asserts that there was partition, it is permissible to fill up gaps more readily by reasonable infert·nces than in case whero the evidence i~ not ohliterated by passage of time.

From this standpoint let us first look at the admitted facts in the case. It is common case that Lachhman Prasad was living with his sons in village Na.ugaien. He was not in affluent circum:;tances. The particulars of the ancestral property are given in Schedule ; it comprised certain lands a.nd houses in village Nauga.ien. Bhagwan Dayal, the plaintiff .. 'lppellant, in his deposition n.dmits tho.t the income of the lund was about Rs.80/- per yenr, thou~h subsequently it was euhanced to sum of Rs.IOO/· per year. Hd a.d:Jlits that they (meaning thereby Kashi &l.m, Raghnbar Dayal and Bhagwan Dayal) used to get sum of Rs.5/· or Rs 10/- a. year from tho land. It. is clear from this that they were getting not the ent.ire income from the land but only a. part of it.

There ia no evidence to show when Lachhman PrAMd died; but it is not disputed that Kashi Ram left the ancestral home long ago and had joined military services at Gwalior and thereafter police ,.ervice in or about 1895. He gave up tho service and came to Agm and started buainesa with his 84vingR. .Thero ia nothing on the rrcord, except tbe a.tt~~rt10n made by Bhs.~wan Dayal in hia depOSltlOn, to show that KR.shi na.m as manacrer either received the ontire income from the ancest~al property or paid any taxes in respect thereof. Ra.ghu~r D~yal says that rent of tho said holdings was enhrelr m tho accounts maintained bv Kashi Ram; but they wore not produced. Kasbi Ram e:recu~d will on September 13, 1919. Under that w1ll he gave ·the entire properties to his two nephews, and it cannot be suggested that it was

;! ·i li

,l ,. r

'38.C.R . SUPREME COURT REPORTS .. executed to defraud any person. There is faint

suggestion that the said will was executed to ·bar the claim of his daughter. In that document he does not say that he was member -0f joint Hindu family. The assertion that he was member of joint Hindu.family would ha\Te barred the claims of his daughter more effectively if that was his inten--' tion in executing the document. Be it as it may, the will, which, in our view, was an honest attempt on the part of the testator to give his properties to his nephews, does not contain any assertiou that he was member of joint Hindu family. number of documents were executed by ·or in his favour during .his lifetime, but in none of the >-· documents there is recital that he was member ~ of joint Hindu lii.mily. This consistent conduct also indicates that Kashi Ram never considered himself to be rt member of auy .undivided Hindu family.

Bhagwttn Dayal wdmit!! in his evidence that Ram Lal, his youngeRt brother, who was killed in tb.e War in Hll4, did not live with him and that his family and the family of Ram Lal were separate from eaeh. other and were not joint. He also concedes that Banwari Lal, his elder brother, who died in the year 1914, was also s.epar.ate from him. There is nothing on record t0 show that these two brothers alone separated from the main family before 1914. The concession that they were separate members . supports, to large extent, the theory that there must have been .a partition in the larger family.

Rooti !Devi, the defendant-respondent, in her evidence says that her marriage took plaee about 30· years .ago. Her eviden<Je discloses that her fs&laor-in-law, Jwakt Prasad, was alive at the time Oifher mvriage. She.says that when she came to " her blirst>and's house,· K111~hi Ram and her fat:her-in-la.w lived eepsratety ii:t 'Na~aief\, that. t'hey were cultivating sepamte~y and tha't therea:fter· he went

1961 Bhazwan. Dayal v. Mst, Reoti D1ui Suhba R.1 J.

1~{ Bhq.,,.,, Da;-aJ v. Af,t. R1oti D1lli

··- ... ~---··

.. ...w..;. -~ ~

SOPRE1'1'1E COURT REPORTS

away to Gwalior to serve in the army. Tho 1-evidonce of this witness is not very helpful as regards die particulars of the partition; but it discloses that tho brothers were living separately and earning their livelihood. This evidence is further reinforced by tho fact that in regard to the ancestral property tho names of tho different members 6f the family, including Rcoti Devi, are > entered in the Government accounts against difforent portions of tho said property. Lastly, there was.never any dispute between Kashi Ram and the sons of Jwala Prasad, or between the four ' brothers in respect of the income from the ancestral land. That could be explained only on tho hypothesis that the said property was divided and • the members of the family were getting their share of the income therefrom. This conduct of the ' parties for about 50 years was consistent with their partition rather than their joint status. On the whole, on consideration of tho material placed before us, we cannot say that tho finding given by the learned Civil Judge and accepted by Gurtu, J., is not supported by evidence. We accept the said ... finding. The next question is whether there was & reunion between Kashi Ram, Raghubar Dayal and and Bhagwa.n Dayal. Tho learned Attorney-General ~1

The next question is whether there was & reunion between Kashi Ram, Raghubar Dayal and and Bhagwa.n Dayal. Tho learned Attorney-General contends that on the assumption that there was partition of the family, tho. consistent conduct of the parties for period of 50 yea.rs unambiguously establishes that there was reunion between Kashi Ram, Raghubar Dayal and Bhagwan Dayal during tho lifetime of Kashi Ram, or at anv rate there was reunion after the death of Kashi Ram bet-\vecn P.aghubar Dayal . and Bhagwan Daya.I. 1\Ir. Viswanath& Sa5tri, on tho other hand, argues that when thero was partition in the family, tho members of the family who allege reunion must strictly prove the same, a.nd that the documentary ... evidence ijled in this c&Bc spread over a. long pel'iod of time is<lestructive of any such claim .

SUPREME.COURT REPORTS

3$.!J.R.

For the correct approach to this question, it

would be convenient. to quote at the outset the observations of the Judicial Committee in Palani Ammal v. Muthuvenkataoharla Moniagar(') :

"It is also quite clear that if joint Hindu family separates, the family or any members of it may agree to reunite as joint Hindu family, but such reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved. The leading authority for that last pro-position is Balabux Ladhuram v. Rukhmabai(')".

It is also well settled that to constitute reunion there must be an intention of the parties to reunite in estate and intorest. It is implicit in the concept of reunion that there shall be an agreement between the parties to reunite in estate with an intention to revert to their former status of mem• hers of joint Hindu family. Such an agreement lieed not be express, but may be implied from the conduct of the parties alleged to have reunited. But the conduct must be of such an incontrovertible oharacter that an agreement of reunion must be necessarily implied therefrom. As the burden is heavy on party asserting reunion, ambiguous pieces of conduct equally consistent with reunion or ordinary joint enjoyment cannot sustain plea of reunion. The legal position has been ne&tly summarized in Mayne's Hindu Law, 11th edn., thus at p. 569:"As the presumption is in favour of union until partition is made out, so after par-tition the presumption would be against reunion. To establish it, it is necessary to show, not only that th!l parties already (I) (19UI L.R. 52. I.A. 83, 86. (2) (1903) L.R. 30 I.A. 190.

IHI --. /Jhatw•rt Dayal v. Mst. Rtoti Deui Suhh• Rao J.

lHl divide\!, lived or traded' together, but tflat they Bharzoan •. Dayal did so with their ,,tat1l8 and the intention of farming of joint thereby altering estate with Mst. Rroti D1oi all it,, mma.1 incidents. It requires very cogent evidence to satisfy the burden of establishing that. by agreement between them, the divided members of joint Hindu family h.a ve succeed-ed in so altering their status as to bring themselves within <ill tho rights and obligations that follow from the fresh formation of joint undivided Hindu family."

As Wl' give our full assent to these observations, we need not pursue the matter with further citations except to consider two decisions stron~ly relied upon by the learned Attorney General. Venkata-ramayya v, 'l'aiayya (') is decision of division bench of tho l\fadras High Court. It was pointed out.there that "mero jointness in residence, food or worship or mere trading together cannot bring about the conversion of the divided status into joint one with all the usual incidents of jointnesa in estate and interest unless .an intention to become reunited in .the sense of tho Hindu law is clearly established, Tho said proposition is unexception-able, and indeed that is the well settled law. But on the fact& of that case, the learned Judges ea.mt' to the conclusion that there was reunion. The paTtition there was effected between father and hill sons by the ~rst wife. Ono of the sons was minor. The quest.ion was :whether there was reunion between the brothers soon aftc1 the alleged partition. The learned Judges helcl that as botwoon the sons there was never any reason for separation inter se and that (lie evidence disclosed that on their conduct no explanation other than reunion was poBSible. They. also pointed out that. though at the time of partition one of the brothers wa.s minor, after he att&ned majori~; he accepted the position of reunion., The observations relied upon by the learned Attorney Geneml read thus : (I) A.l.R. 1943 Mad. 538.

"In our view, it is not necessary tha.t there should be formal a12d express agreement to re·unite. Such an a.greement can be estab-lished. by 0lear evidence of conduct incapabl<i of explanation on any other footing."

This principle also· is unexception"Lble. But the facts of that case are entirely different from those in the present case, and the conclusion arrived at by the learned Judges cannot help us in arriving 11.t a. finding in the instant case.

Nor does the decision of the Madhya Pradesh High Court in Ramadin v. Golculprasad ([1]) carry the matter further. Therein the learned Judges restated the correct principle, namely, that in order to constitute reunion there must be ah agreement, express or implied, on the part of the members who separate, to reunite in estate and interest, and that in the absence of registered document, the agree-ment has to be inferred from subsequent conduct of the parties. On the facts of the case before them, the learned Judges came to the conclusion that there was reunion. This case only restates well se.ttled pri..'1ciple; and the court's finding cannot help us in decitfing the present case.

Before we consider the evidence, we would like to make some general observations. In the plaint, the case of reunion is mentioned as an alternative ca2e ; further the plaint does not give the date of the alleged agreement to reunite or even the neCllssm:y and relevant particulars. The plea is liiated in the following words :

"That even if it were assumed against facts strictly without prejudice to any plea herein taken, that there was separation bet-ween Pandit Lachhman Prasad's issues after his death, still in view of the conduct of Pandit ·Kash! Ram and Raghubar Dayal during their lifetime, and the fact that the plaintiff,

(1) A.I.R. 1959 M.P. 251.

Bhagwan D'1yal v. Mst. Reoti Devi Subba Rao J.

1961 Bharwan Doyal v. Mll. R,oli Dtt-i S.-ii• Rtfo ].

SUPREME OOURT REPORTS

· [1962]

Pandit Raghu bar Dayal and Pandit Kashi Ram (and aftor the latter's death the first two) work-ed jointly and lived and messed together and acquired, 0'\\11ed and possessed the entire proper-ties jointly by their joint labour, which amount-ed to reunion, the plaintiff would still be the 8ole owner of the entire property in any view of tho case.··

The plaintiff's case is that there was no partition of the larger family at all ; and on that case no question of reunion aris<'s. Further, he does not say that reunion has tiiken place by agreement ; but he asks the court to hold that thore was reunion on ,the ground that the conduct of the parties amounted to reunion. Tho plea, to siiy the least, indicates that the plaintiff himself is not clear of his case.

The next circumstance is that neither Kashi Ham uor Ragh11 bar Dayal and Bhagwan Dayal bring in any joint family property either to start the busi-ness or to make joint acquisitions. On the other hand, the entire capital for the business was furnished by Kashi Ram ; and, under those circnmstancos, it is not likely that there would have been any con-scious act of reunion between the members of the divided family ..

Further, the business was started in 1885, and it is in evidence that Haghubar Dayal joined Kashi Ram in the said business in 188!j and Bhagwan Dayal between 1893 and I 002. Raghubar Dayal in his e'l'idence says that when he came to Agra, he was about 8 or 9 years old. If so, it follows that there could not have been auy reunion boforo he attained majority. In Revcnuo Appeal No. f.i5 of l!l4l, it was not disputed that Haghubar Dayal was also minor when Kashi ]~am started his business. It is not clear from the record whon Raglrnbar Dayal became major. He could not have reunited with Kalihi Ham before he attained majority.

SUPitEME' COURT REPOR'.l'S

3 S.C.R.

The evidence may be considered in the f" following three parts : ( 1) the period between 1885, when Kashi Ram started the business, and 1924, when he died; (2) the period between 1924 and 1933 i. e., from the year when Kashi Ram died to the year when Raghubar Dayal died; and (3) the period between 1933 and 1939 when the dispute between the parties came to the forefront.

I( The first set of documents pertaining to the first period are I 0 sale deeds whereunder pro-perties were acquired in the joint names of Kashi Ram, Raghubar Dayal and Bhagwan Dayal. As the relevant recitals in all these documents are similar, it would be sufficient if we look at the ._ earliest document, Ex. 58, dated August 24, 1903 and the last, Ex. 33, dated November 27, 1916. " Under Ex. 58 ~he property mention.ed therein was purchased from one Shyam Lal. The relevant recitals described the vandees thus :

" ............... Kashi Kam, son of Lachhman Prasad, Raghubar Dayal and Bhagwan Dayal, sons of Jawala Prasad ................ "

-<l It records that· consideration was received from the said there persons. Ex. 33 is als~ sale deed, and the vendors and vendees are the same &B in Ex. 58. Here also the vendees are described in the same ma~ner. Their occupation is given as "money· lenders'. The eastern boundary of the property sold is described as "Walls of the shops _}, and shop of Pandit. Kashi Ram''. There i~ reci-tal in the body of the document that the vendor had no coparcener. One prominent feature that atands out in the document is that neither Kashi Ram is described as manager of the joint family nor Kashi Ram and his nephews as members of joint Hindu family. In the second document the vendor in describing himself says that he has no coparcener, -\.,but in describing the vendees he does not describe tpem as coparceners, and in giving one of the

Bi..,w.,. Dayal v. Mst. R1ati D1oi SubbcRu J.

. [1962]

liUl' · boundaries : of, the. property sold 'he· gives: it only • Bhazwan.Dayal . . as the shop of Kasbi Ram .alone. · really Kashi · Mst.;;;.,iD.vi. ' Ram and his. nephews constituted .. members of, . . , joint.Hindu family, .. one could., expect; recital to_·:', -: that effect .. Tlie absence of such a. recital.' goes . -long,wa.y:to·support. the contention ·that• they, never · considered. themselves as. members;. of ... a. ·joint Hindu family ... During the. same'. period there were 13, mortgage deeds executed by third . parties in favour of Kasbi Ram and bis two' nephews, 'Ex:· 6 is. the first of these mortgages and is dated February 20,'I903;:and Ex; 39 is the last of them:· dated November 2, 1918. -· Iri both the documents, '.' . . . the mortgagees are described,. in the same terms as. • those found in the· sale deeds. ·Our' remarks made'· in respect of the sale deeds would. equally appiy, to - · these documents:· During this penod moneys were· · . advanced by these three persons· to · others- under· bonds. The· earliest. of· them· is. EX:·· 7 dated September 20, 1904 · an·d the last of therii'is Ex; 78 '' dated January_. 5,, 1923, KashL,Ram .. and- his two ,nephews are . described in these· documents in the san:ie·' way.as. they are•. described in the sale deeds' and the , mortgages. Them do not · carry the matter further. . There . are . ·seven · .' decrees duri:i:tg the period_:_the: earliest is Ex. 11 ' : • dated '.Tune. 19; 1903 .and the l:i.st is Er; 27 'dated " Mays; 1917 .. The first of the. suits which ended ·-· in the decree was filed by Kashi Ram and the t'wo -_: nephews,: and. the others . by· Kashi Ram and · · ~ Bhagwan Dayal.'. .. Er. 3_.was rent deed executed . "'by, one Chandi 'Prasad in favom; of Kashi Ram ... · and bis two nephews in·· respect of shop own.ed· · .. --by: them .. · Er. 23 dated Apnl 14; 1916 is the · · · receipt for possession· of the land taken by: Kashi·, ' · Ram ancLhiS two nephews in execution of decree .· : obtained' by- them;· EL ·,56 'dated Nciveinber-.7,':-_:; 1909 and'Ex: 59 dated February '26, 'l!JI2 'aretWo :' · sale deeds executed by· Kil.shr Ram. arid; his two '' nephews ·conveying certain property · fu · favo~r "of''': • third parties; In Ex. 56 it is stated that•· 'the' ·

3 S.C.R. SUPREME .COURT REPOR'JIS

vendori> .. have been in. proprietary p08session. and o.ccupation of the property and that "there is no co-sharer or co-partner of us who may stand in th;i way of ma.king any sort of transfer''. In. Ex:. 59 similar recital is · made. These two documenta proceeded on the basis that the property was jointly acquired by the executants, and not only there is no mention that the executants belonged to ioint Hindu family, but the reci.ta!s that there is no co-sharer or co-partner indicate consciousness on their part that they did not be-long to joint family. The documentary evidence we have .so far considered does not establish that there was any reunion between Ka.shi Ram and his two nephews. Indeed, at its best, it only shows that the three of them owned the said propierties jointly. If the properties. were joint family pro· perties, it is not possible. to visualize why not even in one of these dooumenta sprea"1ing over long period no mention is made that they belonged to· joint Hindu family. It ill commOJ11. know-ledge that in executing documents for and on; be:lialf of joint family or in purchasing proper-ties for and on behalf of joi.Dt ·family, th3 &cu-ments ar ~ ordinarily executed by or im, fa.vour of the manager of the joint family ; at a.ny mte, the executants or the purchasel'8. of the ]ll'OpertiY', 86 the case may be, .a.re described as lllembera. G>f joint Hindu family. Whatever. ambiguity there may have been in thelle'decument.e, it is dispelled by two important documenti executed by Kaahl Ram. Ex. U dated .. October 41, 1009 iB deed. of agree-mentexecuted by Kaishi .Ram in favour of h.i$ nephe:w RagbQba.r Dayal, whose .son he had ta.kep in adoption. In that document he cleady siilites. that all the properties are self-acquired propwties. He also prC>vid.es in_ that document that, in case he died. before the .adopted boy attained majority, Raghubal.' Dayal s:lwuld be his gua.11dian. There is- a:M!o statement therein that the. a.dopted ion shall be the' owner of hisi self-acquired properti.I»

B/oq,,,o;;-Dg.i. v.

v. Mst. R1eli .D1rti., ..

-IJ,,.,_ Dayil .. Md: R/~11' f?1,; s.'6.0 :Ito• J.

466 [SWRE~m OOURT REPORTS [1962]

and none of his relations shall have any right whatsoever with respect to his personal or ances-tral properties. It is not suggcstrd that in J 909 there were ai1y disputes between Kashi Ram and his nepllews. Indeed, the document was executed at time when Raghubar Dayal's son was taken in adoption. The fact that Ra!!hubar Dayal was appointed his· guardian is also very significant. In these circumstances, this document deserves the greatest credence and tho recitals must be accept-ed as tn1e. 'fho recitals show that Kashi Ram at any rate treated all his properties as his self-acquisitions, and Raghubar Dayal and Bhagwan Dayal accepted that position.

The next dccument Eir. 5 is also very

important document in the case. It is will executed by Kashi Ram bequeathing his proper-ties. It appears that the adopted son died soon after the adoption and Kashi ·Ram, who was 80 years old, executed will bequeathing his proper-ties to his two nephews. He asserts in the docu-ment that all his properties are his self-acquisitions. He describos. thereunder the circumstances under which he brought up his nephews and says that both of them arc co-partners~.in his money-lending business. He gives all hiN properties in equal shares to them. This document is destructive of the plaintiff's case. It is not, and cannot be, suggested that this document was executed to defraud third parties, It is faintly suggested that the document was executed to stifle any claim that the daughter of Kashi Ram might prefer to his properties on his death. Such contemplated claim could have been more effectively prevented by asserting that the properties were joint family properties ; hut in the document the testator asserts that thoy are his self-ll.l)quisitions, and directs that •his two nephews shall take the proper-ties jointly under tho said. will. It is not neces-eary to consider whether this will would operate

··a s.c.R.

upon the shares of the two nephews in the proper-1 ties jointly acquired by all the three of them. But the recitals are decisive of the question that Kashi Ram was . not member of joint Hindu family and that the parties never considered themselves as members of joint Hindu family.

Now we shall proceed to consider the docu-ments that came into existence between 1924 and 1933. During this period the two brothers, who inherited the business from Kashi Ram, carried on the same jointly and purchased properties under 14 sale deeds. The earlie,at of them is Ex. 85 dated January 15, 1926 and the last of them is Ex. 72 dated February 19, 1933. In Ex. 85 the following recital is found:

"l have received the said amount from

Pandit Raghubar .Dlloyal and Pandit Bhagwan Dayal, 'Zamindl).rs', 80n8 of Pandit Jwala Prasad, resident of Sadar Bazar, Agra, a.nd have transferred the house aforesaid."

This document does not describe Raghubar Daya.I as mimager of the joint family or that the brothers are members of joint Hindu family. So too; in Ex; 72 similar recital is found. The recitals in the other sale · deeds also follow the same line. Strong reliance is placed upon the proceedings of certain suits, which are marked as Exs. 43, 44 and 14. Ex. 43 is copy of the plaint in suit No. 311 of 1927 filed by Raghubar Dayal and Bhagwan 1 Dayal against one Khushali. In paragraph 4 of the said plaint it is stated: ·'

"Kashi Ram, one of the .plaintiffs, is dead, the plaintiffs .are his nephews and surviving coparceners of his joint family. They are competent to recover the . .aid debt." .

• ·Ex. 13, the decree passed in the aforesaid suit shows that the suit wa1 deoreed ex parte. Ex. 44 is ~

•h<flWtllt Dj,',i Mst. l!t.U "· bioi . s •• ;. hl:J.

Bhqw=Dayal ;, ... - .... Alrt. Rn:i Eti-i ~.t:-Suhbrr .llrlo ]. ~

.. -· .

468 . SUPREME COURT HEPORTS

copy of another plaint in Suit No. 306 of 1929 filed by tlic two brothers against another debtor. In the plaint it is stated that Kashi Ram is dead and that the plaintiffP. arc his survivin" heirs. Ex-. 14 is tho decree made therein. The "recitals in Ex. 44 arc ambiguous; bat the recital in Ex. 43 clearly says that the brothers arc the survidng coparccners of the joinL family. '!be suits were filed for small amount;i. It is obvi(lus that those alJEgations were made to avoid tho necessity of prodwcing sµcceision ccitificates. As. matter of f-&ct . the two brothers got the proµertics under will, and in the circumstances tho attitude of the brother-s in tho BUits. can easily be understood a..nd rea&Jnahly be attribnted to their anxiety to save some money by a1·oiding the noce<>sity to get succession certificates.The next series of documents rc·late to the period between rn:m, ·1md 1939 tlmt is, from the year of the death of Raghubar Daya} to the y<'ar when disputes arose between the plain tiff and the de fen· d~t. During this period there were 5 sale deeds in favour o1Bhagwan Dayal. The first of them is Ex. 89 date.cl Ma.y 23', 1933 and the last is Ex. 88 datecii-June 20, 1936. There is no recital in Ex. 89 to. indicate the status of Rhagwan Dayal. The document shows that on.e of the co-vendccs is Ajudhia Prasad, sun of Ram Lal, one of tho brothers of Bhagwa.n Dayal. It is not suggested, and indeed it is not the case of the appellant, that he woo· a. member oi joint Hindu family along with 'Aju<lhia. Prasad. It may have been that Bhagwan !Jayal had taken Ajudhia Prallad as par~nllll .in the business, and that is consistent with the ca.se of the def<>nda.nt. Ex. 88 also does not gil-1111 any iudication ti.at: .Bhagwan Dayal was member o{ the joint family along with his uncle, and thereafter with his brother. Ex. 83 ia. sale deed whercundcr Bhagwan Dayal exchanged property pur!!h.ased 1J1 hin alrog wiih his brotker

3 S.C.R.

for 1motlaer proper~y owBed by : , tlaird . par~y. There is no .assertion in . this docqm.ent that , the property was the soint family property ofJhe b]){)thers ; nor is there any evidence. to .. indicate t,hat the widow of Raghubar Dayal had. knowledg.e of ·the ea.me. Bhagwan Dayal also executed .certa.in sale deeds, the first of them dated Ap151 j}, ~934' and the last of them dated April 3, 1942 i. e.,, after the filh;i,g of the suit. Ex. 8(1 is sale deed,.: in which fGli.· the fiillst time we find the recital that the exeellltant and Ragbubar Dayal lived together jointly and the entire business w:a.s, ()atried on. Jc;>irit-ly in the name of both of them and that after Raghubar Dayal's death the executant had been the manager, Karta and Mukhia of his joint family upto that time.. There is nothing to show that: tn:e defendant h~.d knowledge of this ·document. That apart, ' the recital that Bhagwan Dayal wa.s the manager of his joint family in 1934 may ·'!rot be ina-0curate, for he was Jiving jointly with sons. >In any view, this recital, appearing for •the first. time after about 50 yeare and made behim!l. the [1]baok nf the defendant, would -0nly be self~servinrg statement.

PUttu Lal is the brother of Reoti Devi .. 'He r.ays in his evidenoe that Kashi Ram liltai;ted.the business, and that Kashi Ram, R11ghubar' Dayal and Bhagwan Dayal usedto live in Agra in, one and the same house and were joint in mess. His knowledge of the.family 'affairs goes back .only . to the year 19 l 0 and even his alleged admission does not indicate any joint status. Ex. 35 'is the aale certificate issued to Raghubar Dayal in respect of property pnrcrhas.ed by, him. · Therein. he. is described as the proprietor of the. firm styled ;ii "Pandit Kashi Ram Bha.gwan Dayal'.'. It \s suggf¥!-ted by the respondent that the said deseriphion..'i,s mistake. Bµt assuming it to be .correct, . lt ·. <lliiy . ~hows thllt they were doing b,usiness jointly aiui. firm. Ex. 36 is delivery receipt of the property

·'''~;~···.·· ~~.~gW:::':Day~l. Mst. R10ti Da"i ·-~-. Suhba Rao J.

Ill/ Rhfl"""' D•J•I v, i\lst. R11ti Dni -.si.11. RH J.

·-·-·---,_,.,..,.., .......... -.._, .......... -......, __ ....,.

- -··- ~

coTered by the sale certificate, Ex. 35. This only shows that Bhagwan Dayal took delivery of tho property purchased on behalf of tho firm. Ex. 84 is sale deed executed by one Raja Ram in favour of Raghubar Dayal and Bhagwan Dayal. This property, though purchased by both the brothers, was subsequently given in exchange by Bha.gwa.n Dayal alone to Raja Ram for another. These statements onlv show that the two brothers had joint mess "1ond that property purchased by both of them was disposed of by Bhagwan Dayal subsequent to the death of Raghubar Dayal. There i.e nothing to show that the widow had knowledge of it.

Strong reliance is placed upon certain statements alleged to have been made by the respondent and her brother admitting the joint family status of tho brothers. Ex. 45 in the statt1ment made by tho respondent in Suit No. 19i of 1933 on the file of tho Court of the l'llunsif, Agra. That wns suit filed by Bhagwan Dayal against one Har Lal for recovery of some money. She stated therein that her husband used to live jointly with the plaintiff, that the husineSB was also joint, and that the money-lending business was anc<'stral in their family. In the eroo-examination she went back on her state-ment made in the oxamination-in·chief, for she stated therein that she had interest in the money left by hor husband that she had power of disposal over the said money and that she and Bhagwan Dayal were the owners of it. ThcEe inconsistent state-ments in short deposition indicate that sho was not clear about the legal terminology used by her when in the examination-in.chief she said that her hus-band and Bba~an Daya.I were living jointly and that the bueiness was ancestral in their house, for immediately when pointed questions were put a.s regards tho title to the properties, she stated that ahe and Bhagwan Dayal were both owners. In the pr111ent auit ahe deposed that she made those

statements at the request of Har Lal. That apart, it is not disputed that· after the death of Raghubar Dayal till the year 1939 she was living .with Bhagwan Dayal and that Bhagwan Dayal was managing the entire properties and giviqg her small amounts towards her maintenance. Any st.~tement made by her when she was undel'. the control of Bha~wan Dayal cannot be of 1my evidentiary yalue particularly when her statements are also.inconsia· tent with one another. On Decem)Jer 22, 1937 she made another statement in Suit No. 1013 of 1937. That was suit filed by Bhagwan Dayal against one Ram Lal and others. In' th-it suit Bhagwap. Dayal represented himself to be the manager of the joint family. In the statement filed by the respondent, she stated that Bhagwan .Dayal filed the suit as the managing agent of the family .with her consent. To that statement the thumb-impres· sion of the respondent was affixed... Ex. 52 is plaint dated August 27,1937 in Suit No .. 506 of 1939 filed by Bhagwan Dayal against third parties to enforce mortgage deed. In pangraph 2. of that plaint it was stated that both the mortgagfes were full brothers and members of joint Hindu family of the Mitakshara school, that the mortgage debt was advanced by them as such, and that. Raghubar Dayal died in February 19il7 leaving the plaintiff as the surviving coparcener. In that suit the respon-dent gave vakalat to an Advocate to look after her interest. Ex. 2 is copy of the judgment in that suit. One of the issues was whether succes· sion certificate was necessarv in order to enable the plaintiff to file the suit. In that case, the mortgagor, being stranger, did not put in evidence to show that Bhagwan Dayal was not member of . joint family along with Raghubar Dayal. Applying the presumption of law, the learned Munsifheld that the brothers were joint and that the suit was maintain· able without succession certificate. It is obvious that the allegations in the plaint in tbat.$Uitwertf made to avoid ·the productio!1 of succe1>sion certificate.

-·-··-BlitijWan-DllJal ' " v. ,, Alst. RtOti D,11i

1H1 Bio.fwci Da;·al v. 'Mjt. R1oti D1ui S1bba Rao J.

The respondent could not have had know-ledge of these allegations in the plaint nor of the implication of the statements. She roust have signed the vaka.lat .at the in8ta.nce of :Bhagwan Daya.I and gi,·en it to the Advocate engaged by him. Ex. 51 is a. copy of the plaint in another suit filed by Bha.gwan Dayal on August 17, 1933. Therein it is alleged that Bhagwan Dayal and Raghubar Dayal were brothers of joint Hindu family and that the plaintiff as the surviving copar.ccner of the said joint family brougnt that suit. It was conducted by him in that capacity and decree was obtained. This allegation in the suit was presumably made to avoid the necessity of getting succession certificate. These recitals and assertions in the suits tl1at Bhagwan Dayal was mcm her of joint family along with his brother, Rnghubar Dayal, coula not have any evidcnti:ny value agaiirnt the respondent, for one thing there is nothing to show that she had knowledge of the suibl and for th~ o'ehcr that the recitals were made for particular purpose to avoid th<' expenditure for obtaining sucoeBBi.c:m certificate.

R~oe is placed upon Um evidence given by

her in Suit No. 15 of 1939 which is m~ked aa Ex. W in dae pres(Jl).t 0&8e. Under the streae of cross-4!-xe.uMnation aert.&iu facts were elicited fr<Jro her. She et.o.ted thlt the uncle and the two nephem were living together, that, whoo Kashi Rem was a:live, he and the two nephews used to write accounts, and that they used to live as family mem'bers; but .at the 8&me time she also said tha.t she did not !mow what was mea.nt by "family" a.n<i that everyone was the liead of his own family. No seriou• at-gnment can be planed upon hor vague evidence in support of the ca.ae of joint family.But the oonduct c,f the plaintiff aft-0r the death of.his brether, Raghubar Dayal, is of more evidentia.ry v.aluc on the question of joint family th.a.a tba.t of the ignorant wid.ow; for unlike.tlre respondent, he roust have certainly known his legal

3 S.0.R. SUPREME COURT REPORTS

rights. Schedule shows thr1t some of the alleged ancestral properties were recorded in the name of the respondent, Reoti Devi. The plaintiff also admits in the plaint that there was mutation of the respondent's name in the revenue recordo in place of her deceased husband, but asserts that it does not clothe her with 11ny legal title. The. mirious explanation he gives is that it was at the very best gratuitous submission on the part of the plaintiff just out of affection and regard for the. feelings of the defendant. The evidence discloses tha,t after the death· of her husband, the respondent was given only petty amounts, and it does not indi-cate any affection or rega.rd towards the widow. Ex. R, the Khewat of village Chaoli, shows that in respect of that village Reoti Devi's name was mutated for that of her husband. Ex. S, the Khewat of village Chak Soem, and Ex. T, the Khewat of village Chaharum, contain recitals show-. ing the name of Reoti Devi in the place of h.er husband. Exs. C, N and M are some of the orders. "'hereunder Reoti Devi's name was mutated in phwe of her husband. The explanation offered by the plaintiff in the plaint is unconvincing. Her husband's name must have been entered in the revenue records without any objection by the plain-tiff, as he was conscious that she and her husdand were not members of joint family and she was entitled to succeed to her husband's share.

From the aforesaid evidence the following facts emerge : In 1885 Kashi Ram started business at Agra from and out of his self-acquisi-tions. He brought his nephews at different points of time and allowed them to take part in the busi-ness. It may also be that he had taken them as p:trtners in the business and also purchased the properties in their joint names; but there is not single document during his lifetime wherein Kashi Ram either admitted that he was member of joint family along with his nephews or the nephews asserted any joint status along with him. Indeed,

1961 Bhapan Day.t V; Mst. ReBti D111 Suboa~uJ.

Bh'fwdli Da.'Ja/ v. Mst. Rt1ti Du1 SulO.Ra• J.

SUPREME OOURT REPORTS

on the two occasions when it became necessarv to set. up hie claims, that is, when he execute<l ·the adoption <lccd and the will, Kashi Ram clearly stated that all his properties were his ~elf-acquisi­tions. The documents that came into existence after the death of Kashi Ram also do not contain any allegations that the brothers were members of joint Hindu family during Kashi Ram's lifetime or that they were members of joint family after his death. The self-serving statements· made hy Bhagwan Dayal after the death of hi~ brother, Raghubar Dayal, in 1933 were made to enable him to file suits without obtaining succession certificates. The alleged statements made by the widow of Raghnbar Dayal have no eviclentiary value, for she was admittedly under the control of the plaintiff and even the alleged admissions wero ambiguous. On the other ham!, the respondent, soon after the death of her husband, got her name mutated in respect of her husband's share in the properties ; and this conduct is an unambiguous piece of evi-dence which indicates the consciousness on the part of tho plaintiff that the defendant's husband was not member of the joint family along with his brother or uncle. The fact that the brothers and the uncle lived together and <lid business together is consistent with their relationship of uncle and nephew, and the fact that they purchased or sol<l properties jointl:v is alRo conRistent with their being mere partners or co·sharers. The recitals in soms of the <locumonts describing the nephews as CfJ-partner~ also show th~t they wore trea!R.d onl.r as co-sharers. Whatever ambiguity there may he, the adoption deed, the "·ill and the mutation of the nam'' of the wirlow in place of her hmband in the rcvonue records <!ispell it. From this conduct, spreading over about 50 years, it is not possible to hold that the uncle and the nephews consciously ent-0red into an agreement to reunite and beeon111 members of joint Hindu family.

S.C.R. SUPREMECOURT REPORTS

This finding is enough to dispose of the 1 appeal. But, as the evidence on the question of partition of the family is not as satisfactory as it should be, we propose to consider the alternative contention put forward by the appellant.

The learned Attorney-General, appearing for the appellant, contends that in joint Hindu family if sm:rte members belonging to different branches or even to single branch acquire property, they hold the property as members of joint Hindu family and that that property vis-a-vis the said members will be joint family property.

On the other hand. Mr. A. V. Viswanatha Sastri contends that it is not possible under the Hindu law for some members only belonging to different branches or even to '.t single branch of family to c">nstitute subordinate joint Hindu family and, therefore, any property acquired jointly by them would be governed only by the terms of the agree-ment between them whereunder the said property is pnrchased.

This question raises an interesting point of law and requires scrutiny of some of the decisions cikd at the Bar. The legal impossibility under Hindu law of members of different branches of joint Hindu family to constitute subordinate joint Hindu family was pointed out by Bashyam Ayyangar in Sudarsanam Maistri v. Narasimhulu. llfoistri([1]). There, one V and his ihree elder sons lived apart from his two younger sons and were in possession of some ancestral property. The two youngest sons acquired property from the funds of business which had been carried on by them jointly, One of the questions raised was whether they acquired the property as members of the joint Hindu family. Bhashyam Ayyangar, .T., in rejec-ting the contention discussed the principle govern-ing the constitution of joint families and the (I) ( 1902) I. L. R. 25 Mad. 1~9.

1961 llhagwan Day•l •• Mst. Reoti Der.ii SuO• Rao].

1961 Bhaztt:an D9a/ Y, Mst. Reoli Dni MlaR11].

properties acquired by the said familiQs ariu made the following pregnant observations at p. 154 :

. "The :i\Iitakshara doctrine of joint family is founded upon the existence of an undivided family, as corporate body ............ and the possession of property by such corporate body. The first requisite therefore is the family unit ; and the possession by it of property is· tlie Rccond requisite ............ the conception of Hindu family is common male ancestor with his lineal descendnnts in tho male lino, and so long ns tlrnt family is in its normal condition, t:iz., the undivi(kd Btate-it forms corporate body, such corporate body, with its heritage, is pure].}' creature of lnw and eannot be created by act of partios, save in so far that, by adop-tion, stranger may be affiliated as member of that corporate family."

Adverting to the nature of the property owned by such family, the learned Judge proceeded to st&te :

"As regards the property of such famil.v, the 'unobstructed heritage' de1•olving on such family, with its accretions, is owned by the family as corporate body, and one or more branches of that family, each forming corpo-rate bo<ly within larger corporate bod.v. may possess separate 'unohstruct{)d hcrit~ge' whirh, with its accretions, may be exclusively owned by such branch as corporate body."

Thrn dealing with the problem whether two or morn members of different branehes, or of one :me! the $ame branch, of family can acquire property with tho incidents of joint family prop~rty, surh as right by birth etc., the learned Judge observed thus at. p. 155 :

But so long as family romains an undi-

vided unit, two or more m~mbcrs thereof

S S.C.R. SUPREME COURT REPORTS

whether they be members of ·different branches or of one and the same branch of the family-can have no legal existence as separate independent unit; but if they comp-rise all the members of branch, or of sub-branch, they can form distinct and separate corporate unit within the larger corporatli unit and hold property as such."

The above passages clearly lay down the principle behind the rule. Hindu law recognizes only the entire joint family or one or more branches of that family as corporate unit or units and that the property acquired by that unit in the manner recog-nized by law would be considered as joint family property. But in the case of two or more mem-bers of joint Hindu family belonging to different branches or even to the same branch, they do not acquire the property as corporate unit or for the corporate unit and, therefore, they are only gover-ned by the terms of the con tract, e:iqiress or imp-lied, whereunder they have acquired the property.

The same principle bas been applied by Full Bench of the Madras High Court in Ohakra Kannan T. Kunhi Fokker(') to Marumakkattayam tarwad. Dealing with tavazhi, which corresponds to bran oh of a. joint Hindu family under the Hindu law Sdriivasa Ayyangar, J., observed thus at p. 336:

"These groups cannot of course be crea-ted by agreement of parties. The tavazhis or the subordinate groups constituting the tar-wad are, I thi,nk, capable of holding proper-.tie• as corporate units with the incidents of tarwad property, at the same time retaining their joint interest in the properties of the main tarwad, just as branches and sub-bran-ches in Mitakshara joint Hindu family are capable of holding properties with the inci-dents of joint Hindu family property. I am (I) (1916) 1.L.R. S9 Mad. 317.

·, 1961 Bhatwan Dayal ·V, Mst. Reoti Dtvi Suiba Ra~ J.

Bha1waJ1 Dayal v. ,\fJt. Utoli Dtvi SuJ,;, Rao].

SUPRE.ME COURT REPORTS

also of opinion that some only of tho mem-bers of tavazhi cannot form corporate unit capable of holding property as such."

This decision also recognizes the legal concq:,tion that only joint family and its branches or sub-branches can he corporate units capable of acquir-ing property, and that on!:; two or more members belonging to different branches or e\·cn to one and the same branch cannot constitute such unit and thcrefon,, cannot acquire property with the inci-dents of joint Hiudu family property.

division bench of the Madras High Court elaborated the same theme in '/'he Offir,ial Assignee v. Neelambal Ammal (') and canw to tlw conclusion that it is not possible for two members of an undivi-ded Hindu family to deal with the property acqui-red by them in such way as to impress 11 pon it the incidents of joint family property for them-selves and their descendants. Hcilly, J ., observed at p. 803 thus:

"As I understand t11e matter, & Hindu joint family firm is Rpecial form of partner-ship, the members of which must be eithPr the whole of joint family or tht• whole of branch of joint family."

The learned Judge prnctically adoptC'd the reason-ing of Bhashyam Ayyangar, J., m Swlarsanfmt illai8tri v. Nara8h11lwfo Mr•istri (') so too, the Alla-habad High Court in Himmat flahudur v. BJ/(Juw1i Ku.nimr (') accepted th<> view exprrnsccl by Bhashyam Ayyangar, J.

The Judicial Committee in .fvg,·8u·ar Xurain Dco v. Ram Chund Dutt(') clearly ruled that "the priuciple of joint tcnanc:y is unknown to Hindu law except 111 the case of the joint property of an unclividcd Hindu family governed by the Mitak-aharn law which under that law passes by survivor-ship". Tl1e same principle was restated by the I I I (193JJ 65 M.L.J. 798. 12) (190lJ I.L.R. 25 Mad. B9. (31 ( 1901) I.LR. 30 All. 352. (4) (l~!)l>J t.R. 23 I.A. 37.

3 S.C.R. SUPREME COURT REPORTS

Judicial Committee in Bahu Rani v. Rajendra Balchsh Singh (1 ). If two or more members of different branches or of the same branch;of joint Hindu family cannot acquire joint property impressed with the· incidents of joint family pro-f perty nnd if the Hindu law does not otherwise sanc-tfon acquisition of property by them as joint tenants as understood in the English law, their rights and liabilities can only be governed by the. terms of the agreement under which they purchased the pro-perty.

Now let-us look at some of the decisions cited on behalf of the appellant in support of the contention that there can be joint acquisition by such mem-bers giving rise to the right of survivorship though not right of birth.. Strong reliance is placed upon the decision of the Judicial Committee in Nathu Lal v. Babu Ram ([2]). There, on the death of one of two brothers, who were members of Hindu family the surviving brother claimed that he had been joint with his brother and that the whole of the property passed by survivorship to him so that the widow of his deceased brother took nothing by inheritance. The dispute was referred to arbitra-tors, who found that the two brothers had been joint, and . divided the joint property between the parties in certain unequal proportions. The widow subsequently executed deed of gift of part of the property awarded to her in favour of one of her daughters. On the death of the daughter, four sonii of another daughter of the widow, claiming to be reversioners of their grandfather obtained posse-ssion of the property passed by the deed of gift. The nephew-in-law of the deceased daughter and purchaser from him sued to recover possession of the property on the ground that the widow had held an absolute estate and had by the deed of gift conveyed an absolute estate in the property to her d1tughter. The Judicial Committee held that on the

(I) (1933) L. ll. 60 I. A. 95.

(2) (1935) L. R. 63.1. A. 155.

· Bha1w•n Dayal v . .Ms t, Reoti Devi Subia Rao J.

Rhagwan !Jayal V. }.!st. Rtofi D,oi Subba Rao ,7

death of the <laught-er the property passed by survi-vorship to the surviving brother and not by inhcri· tanco to the widow; but that upon the true construe· tion of tho award, tho widow was given an absolute interest. On that finding tho suit WM decreed. But scrntinv of !he facts shows that one Bud<lhi had three s;;ns, Ram Sahai, Ji Sukh Ram and Sita Ram, and that Buddhi and one of his sons, Sita Ram left the family and the remaining two brothers Ham Sahai aml .Ji Sukh Ram, continued to be members of tho joint family. The .Tmlieial Commit-tee rightly held that the propcrti"s purchased for the family by the two brothers constituting the joint family were joint family properties. It is not caso of some members of different brancl1es or some members of tho same lm:nch purchasing properties jointly, but case of all thf' members of joint Hindu family purchasing properties for the family.

Nor does the decision in Simm Xrirain v. 'l'hc Court of Wards, on /Jehalf <!f Jung Buhadoo,. (') afford any real assistance to t}w ppcllant. There, two Hindu brothers, who held ancestral estat-e in common with t1lird brother, acquired other pro-perty jointly, the learned Judges held, on the evidence, that the property was held by tho two brothers as members of joint Hin<lu family. The learned Judges held that the principle of blending of separate property with the joint family pro-perty ancl the principle of acquisition of property bv •rnitcd membcrn of diYid0d familr would equally apply to an acquisition of pror;erty by two of three brothers of 11 joint Hindu family, Bhash}am Ayyangar, J ., in Sudarsan.am ~f aistri v. Xarasimhulu .llfaistri (') criticised that judgement and observed that he should have no hesitation in dissenting from t.he said decision. Tho learned Judges missed the real point, namely, that some m~mbl'rB of diffen•nt branches of joint Hindu (IJ (1873) 20W.R. 1"7. (2) (1902) 1.L.R. 2~Mad. 149.

3 s:c.R. SUPREME COURT REPORTS

family cannot from a. corporate unit. In our view, that decision is wrong and must be overruled.

Nor does the decision of the Judicial Committee in Rainpershad Tewarry v. Sheovhurn Doss (') sup-port the contention of the appellant. In that case one of the five brothers constituting an undivided Hindu family acquired personal property. With that money and with the aid of bis brothers he established and carried on banking business at five different places. The Judicial Committee held that the property so acquired was joint family property ,in which the brothers were entitled to share. perusal of the judgment shows that all the brothers were members of an undivided Hindu family and there was nucleus of ancestral property.and that all of them together acquired the property jointly, though the banking business was started with the help of the self-acquisitions of one of the brothers. This again is case of all the members of joint Hindu family acquiring property for the family.

In Mayne's Hindu law, 11th edn., the legal position has been neatly stated thus at p. 347 :

"So long as family remains an undivi-ded family, two or more members of it, whether they be members of different bran-ches or of one and the same branch of the family, can have no legal existence as separate independent unit; but all the mem-bers ofa branch, or of sub-branch, can form distinct and separate corporate unit within the larger corporate family and hold property as such. Such property will be joint family property of the members of the branch inter se, but will be separate property of that branch in relation to the larger family.

The principle of joint tenancy is unknown

to Hindu law except in the case of the joint

(1)(1866) IO M.J.A. ~90.

Bhqwan Dayal v. Mst. &oti.Qevi Suhlo R .. J.

1901 Bha~DayQl v. -Alu. R10ti Dtvi Swi;b• RGI>].

482 'SUPREl'lfE COURT REPORTS [1962]

property of an undivided Hindu family govern-.e<l by tho .!\fitakshara law."

The . legal pos1t1011 may be stated thus : Co-parccn:1ry is creat urc of Hindu law and cannot be created by agreement of parti<'s except in the case of reunion. It is corporate body or family unit. The law also .. recognizes branch of the family a8 subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to tbe limitations laid down bv law. Ordinarilv . . , the manager, or by consent, express or implied, of tho members of the family, any other member or members can carry im business or acquire pro-perty, subject to the limitations laid clown by the said .law, for or on behalf of the family. Such business or property would be the business or pro-perty uf tho family. The identity of the members of the family is not complctcl.v last in the family. One or more members of that family can start business or acquire property without the aid of the joint family property, but such business or acquisi· tion would be his or their acquisition. The busi-ness : so started or property so acquired can be thrown into the. common stock or blended with the joint family property in which case the said .property becomes the estate of the joint family. But ho or thoy need not <lo so, in which case the said property would Lo hiR or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of· inheri!;anoo. In such cage, if property was jointly acquired by th·~m. it would not be governed by the law of joint family ; for Hindu law doe8 not .recognize some of the members of joint family belonging to· different, branches, or even to single branch, a.> 1t corporat~ unit. Therefore, tho rights tnter se between the members who have acq11ired the said property would be subject to the terms of the agreement \\•hereunder it was acquired.

3 S.C.R. SUPREME COURT REPORTS

The concept of joint tenancy known to Ehglish law .with the right of survivorship is unknown to Hindu law except in regard to cases specially re-cognized by it. In the present case, the uncle and the two nephews did not belong to the same branch. The acquisitions made by them jointly could not be impressed with the incidents of joint family property. They can only be co-sharers or co-tenants, with the result that their properties passed by inheritance and not by survivorship.

In the result, the appeal fails and is dismissed with costs.

Appeal dismiss~d.

MST. GULAB BAI

. MANPHOOL BAI (B. P. SINHA, C. J., P. B. GAJENDRAGADJLl.R and RAGHUBAR DAYAL, JJ.)

Res Judicata-'Suit', Meaning of-If can denote part of suit or an issue in it-Code of Oi.~l Procedure, 1908 (Act V of 1908), s. 11. ·

The respondent had sued the appellant 2 on rent note in the Munsiff's court for recovery of Rs. 700/- as arrears of rent and' ejectment. That suit was dismissed on the prelimi-nary objection of defect of party as appellant 1, co· lessor in the rent note, had not been made party. The respondent then brought the present suit in the Civil Judge's court for recovery of Rs. 2400 as arrears of rent from and for ejectment of appellant 2, maki.ng appellant 1 pro-forma defendant in the suit. The appellant 2 pleaded that the su:t was barred by res judicata and could not be decreed since appellant l had not joined 'the responclenc in the clai1n. The High Court, iri finally decreeing the suit in second app~al, .held· that it was not barred by res judicata since the Munsiff had not the pecuniary jurisdiction to try the suit and that appellant I on true construction of the. rent note, .was not co-lessor with the respondent. It was urged on behalf of the appellants in this Court that the word 'suit' in s. 11 of the Code of Civil Procedure should be liberally, and not literally, construed so as to include part of the suit or an issue

;961 Bluizwan D'J14l v • • \f.st. '.Beo# Der1i Subia 11., J.

1P61 S1;temher a.