Bhagwati Prasad Sah And Others vs Dulhin Rameshwari Juerand Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 83 of 1950

Decision Date: 7 May 1951

Coram: B.K. Mukherjea, Saiyid Fazal Ali, N. Chandrasekhara Aiyar

In this matter, the parties were identified as Bhagwati Prasad Sah and other petitioners against Dulhin Rameshwari Juerand and another respondent. The decision of the Supreme Court of India was rendered on 7 May 1951. The judgment was authored by Justice B. K. Mukherjea, who was joined by Justices Saiyid Fazal Ali and N. Chandrasekhara Aiyar. The citation of the decision appears as 1952 AIR 72 and 1952 SCR 603, with subsequent references in later reports including 1964 SC 136, 1980 SC 1173 and other authorities. The case concerned the application of Hindu law relating to joint families, specifically the presumption of jointness, the effect of the separation of one member, the burden of proof concerning the subsequent state of the family, and the admissibility of statements by a deceased person under Section 32(3) of the Evidence Act 1872. The headnote of the judgment summarized the issue as involving the presumption that a Hindu family remains joint unless proved otherwise, and the consequences when one coparcener separates himself and has his share partitioned.

The Court explained that although the general rule is that a Hindu family is presumed to be joint unless the contrary is established, this presumption does not automatically continue when it is admitted that a particular coparcener has separated himself from the other members and that his share in the joint property was partitioned in his favour. The Court held that there is no automatic presumption that the remaining coparceners continued to function as a joint family, nor is there a presumption that the separation of one member implies the separation of all members. Determination of whether the other coparceners remained united or became separated is a question of fact that must be resolved on the basis of evidence concerning the parties’ intentions. The burden of proof rests on the party who asserts the existence of a particular factual state on which relief is claimed. The Court further clarified that, except in cases of reunion, the mere fact that separated coparceners later chose to live together, cooperate in business, or deal jointly with property does not confer upon them the status of coparceners under Mitakshara law. Statements made by a person that he is separated from a joint family of which he was a coparcener and that he has no further interest in the joint property are statements against his own interest; such statements become admissible under Section 32(3) of the Evidence Act after the person’s death. Moreover, a declaration that separation applies not only to the declarant but to all coparceners may be admitted as a connected matter and forms an integral part of the same statement. The Court emphasized that admissibility is not limited to the precise fact that is against the declarant’s interest but extends to all matters involved in and closely linked to the statement. Finally, the Court noted that the term “joint family” is employed both in a strict legal sense and in a more informal sense, and that a reference to a family as a joint family in a document does not by itself conclusively demonstrate that the family possesses all the legal incidents of a joint family.

In this civil appeal, the appellant challenged a judgment and decree dated 2 March 1949 issued by a division bench of the Patna High Court. The high-court judges had reversed, on appeal, an earlier decision of the Second Additional Subordinate Judge of Saran in Title Suit No. 24 of 1941. The appeal, numbered 83 of 1950, was filed against the decree of the division bench and sought to set aside that order. The judgment of the appellate court was delivered by Justice Mukherjee, who recorded the matter for the record on 7 May 1951.

The dispute between the parties turned on a single factual question: whether the plaintiff’s father, who died in 1926, was a joint member of the family or a separate individual at the time of his death. If the father had been a separate individual, his property would have passed by inheritance to his widow, and after her death to his daughter, who was the plaintiff in the suit. Conversely, if the father had been a joint member, his share in the family property would have transferred by survivorship to the defendant identified as No. 1, who together with his male descendants formed a joint Hindu family governed by Mitakshara law.

For clarity, the material facts as set out in the pleadings were summarised. The patriarch, Sheo Narain Sah, was the grandfather of both the plaintiff and defendant No. 1 and had three sons: Imrit, Janki, and Ram Narain. The line of Imrit was represented in the suit by defendants 11 and 12, who were his son and grandson respectively. Janki’s only son was Ram Saran, the defendant No. 1. Defendants 2 to 4 were the sons of defendant No. 1, and defendants 5 to 10 were his minor grandsons.

Ram Narain died in 1926 leaving a widow, Sumitra, and a daughter, Ramaswari, who was the plaintiff. Sumitra died in 1933, after which the plaintiff asserted that she became the sole heir of Ram Narain. According to the plaintiff’s version, a complete separation had occurred among the three sons of Sheo Narain about sixty-five years before the suit was filed, affecting their food, estate, and business arrangements. Following that separation, Ram Narain and Ram Saran (defendant No. 1) allegedly continued to operate a cloth shop together and shared the profits, as well as acquired property jointly in both of their names. The plaintiff claimed that despite the joint acquisition, the parties held the properties as tenants in common rather than as members of a joint Hindu family.

Sumitra, described as a woman of weak intellect, was said to have been completely under the influence of defendant No 1 and his sons after the death of her husband, Ram Narain. According to the plaint, in 1928 defendant No 11, who was the son of Imrit, instituted a suit on the initiative of defendant No 1 and his sons. In that suit he denied any separation of Imrit from the joint family and claimed that the properties possessed by defendant No 1 and his sons were joint family property. The suit apparently concluded with a collusive compromise, and it is alleged that Sumitra was induced to file a written statement in that suit that was collusive in nature and to give a false deposition stating that her husband died jointly with defendant No 1. The plaintiff herself had earlier filed a suit based on essentially the same allegations, but that proceeding was withdrawn because of certain formal defects. The present suit was instituted on 20 December 1940, wherein the plaintiff sought recovery of possession of the properties listed in Schedules I to IV, together with mesne profits both past and future. Defendants 11 and 12 did not appear or contest the suit. Defendants 1 to 4 entered a defence by filing a single joint written statement, and a further formal written statement on behalf of the minor defendants was filed by a pleader-guardian appointed by the Court. The latter statement indicated that, despite notice, the natural guardians of the minors had failed to properly instruct their pleader-guardian.

The defence of defendants 1 to 4 primarily asserted that there was no separation between Ram Narain and defendant No 1, contrary to the plaintiff’s claim. They contended that after the death of Janki, the father of defendant No 1, only Imrit had separated himself from Ram Narain and defendant No 1, the latter being only five years old at the time. According to this version, Ram Narain and defendant No 1 continued to remain joint proprietors, and upon Ram Narain’s death, defendant No 1 acquired all the property by right of survivorship. The defendants also denied that Sumitra had been influenced by defendant No 1 or his sons, and they repudiated the allegation that she filed a collusive written statement or made a false deposition in the earlier suit filed by defendant No 11. Several other pleas were raised, but they are not material to the present discussion. The material issue framed by the trial Court was Issue 6, which asked whether any separation existed between Ram Narain Sah, the plaintiff’s father, and defendant No 1 as alleged. After considering the evidence adduced, the trial Court decided against the plaintiff and dismissed the suit.

In the trial court, the issue of separation was decided against the plaintiff and the suit was dismissed. The plaintiff appealed that dismissal to the Patna High Court. The High Court judges set aside the trial judge’s decision and entered a decree granting the relief sought in the plaint. After the trial judge’s order, Defendant No. 1 died; consequently his sons and grandsons have now appealed to this Court. The principal argument presented by counsel supporting the appeal, Mr. Bakhshi Tek Chand, is that the High Court’s conclusion on the question of separation is not supported by the evidence on record. Before examining the evidence, the Court notes that, based on the facts admitted in the case, neither party enjoys any presumption regarding either the jointness or the separation of the family. While the general rule is that a Hindu family is presumed to be joint unless evidence shows otherwise, that presumption does not survive when it is admitted that one coparcener has separated himself from the other members and that his share of the joint property has been partitioned. In such a situation there is no presumption that the remaining coparceners continue to be joint. Conversely, there is also no presumption that the separation of one member automatically creates separation among all the other members. Whether the other coparceners remained united or also separated is a factual issue that must be decided by examining the evidence concerning the parties’ intentions. The burden of proof lies with the party who asserts a particular factual situation as the basis for obtaining relief.

The Court finds these principles to be well-settled in several Judicial Committee decisions, namely Bal Krishna v. Ram Krishna, Palaniammal v. Muthuvenkatachala and Balabux Ladhuram v. Rukhmabai. It is also important to observe that the defendants, either in their pleadings or in the evidence, have not claimed that, even if there had been a separation between Ram Narain and Ram Saran at an earlier time, the parties later reunited. Accordingly, the controversy narrows to the single question of whether, at any time before the death of Ram Narain, there was a separation between him and Ram Saran. Even if the plaintiff argues that the joint status of all three brothers was disrupted, the Court notes that it would be irrelevant whether, after the alleged separation, Ram Narain and Ram Saran continued to live together or dealt with their property in a manner typical of members of a joint Hindu family, because such conduct does not, absent a proven reunion, alter the legal status of the coparceners under Mitakshara law.

In this case the Court observed that the conduct normally followed by members of a joint Hindu family did not apply because the family in question had not been constituted as a joint Hindu family. The Court explained that, except where a reunion of the family had occurred, the simple fact that former coparceners chose to live together or to act jointly for business, trade, or in dealings with property did not restore them to the status of coparceners under Mitakshara law. On the basis of these principles the Court turned to the evidence that had been placed before it. Both the lower courts had treated the oral testimony offered by the parties as wholly unreliable, and the counsel appearing for either side had not asked the Court to rely on that oral evidence. Consequently the Court found it unnecessary to discuss the oral evidence at all.

Regarding documentary proof, the Court noted that there was no deed of partition in the present proceedings, nor any document signed by all members of the family that was based on an admitted partition. The separation of Imrit from the family was acknowledged as a fact, but the defendants had produced no evidence indicating when that separation had taken place. In a money suit in which the defendant identified as No 1 had given a deposition in the year 1942 stating that his age was eighty-one, the Court inferred that Ram Saran must have been born around 1861 and that Imrit’s separation could be placed around 1866. The earliest document on record was Exhibit 2, a mortgage bond dated 30 September 1879, executed by Imrit in favour of Ram Narain. Although the bond did not expressly mention a separation, the description of the boundaries of the mortgaged properties clearly showed that Ram Narain’s share was distinct from Imrit’s. One of the mortgaged houses, situated at Dahiawan, was described as being bounded on the north by “the house of Ram Narain Sahu, puttidar of me, the executant, partitioned,” indicating that Ram Narain possessed a separate dwelling and that a partition existed between Imrit and Ram Narain. The document did not state that this house was a joint property of Ram Narain and Ram Saran. Exhibit 2(a), another mortgage bond between Imrit and Ram Narain dated 21 March 1885, identified the northern boundary of the mortgaged property as the “Bakasht land of Ram Saran Sahu, puttidar of me, the executant.” This evidence strongly supported the plaintiff’s case. When considered together, Exhibits 2 and 2(a) allowed the Court to logically infer that Ram Saran also held a separate share, being allotted specific bakasht lands. The Court observed that the matter was essentially resolved by the recital contained in the subsequent document, which further corroborated the separate status of the parties.

In this case, the Court examined Exhibit 2(b), which is a registered mortgage bond executed by Imrit in favour of Ram Narain on 8 November 1898. The bond contains a recital stating that the executant had been living separately from Ram Narain Sahu and his nephew Ram Saran Sahu for a long time, that at the time of separation all movable and immovable properties were divided among the three parties, and that thereafter each party conducted his own business. The document further records that Sheo Narain Sahu, the father, participated in the partition, receiving a house for residence and a cash sum of Rs 1,100 for trade and maintenance, and that after his death these assets were again divided among his three sons. It is noted that Imrit obtained a cash share of Rs 334-7-9 from his father’s estate and that he paid this amount, in part, to Ram Narain as satisfaction of his debt. The schedule of the mortgage describes the northern boundary of the mortgaged property as “House of Ram Saran Sahu, nephew of me, the executant.” The Court found no reason to doubt the truth of these statements, which were made in an old document well before any dispute arose among the parties. A question was raised, however, as to whether Imrit’s statement could be legally admitted as evidence. Because Imrit was certainly deceased, the respondent’s counsel argued that the statement could be admitted under section 32(7) of the Indian Evidence Act. The Court was not convinced that section 32(7) provided assistance, observing that the right in dispute was asserted in the transaction but not within the meaning of section 13(a) of the Evidence Act. Instead, the Court held that the statements could be admitted under section 32(3) because they were statements of a person who was separated from a joint family of which he had been a coparcener and who declared that he had no further interest in the joint property or claim to any assets left by his father; such statements are against the interest of the maker and, after his death, are relevant under section 32(3). The Court further explained that the declaration of separation, applying not only to the maker but to all the coparceners, constitutes a connected matter and forms an integral part of the same statement, relying on Blackburn J.’s observation in Smith v. Blakey (1). Moreover, the Court emphasized that admissibility extends beyond the precise fact against interest to include all matters “involved in it and knit up with the statement,” as explained in Wigmore on Evidence, Art. 1465.

In reviewing the material, the Court found that the combination of Exhibits 2, 2(a) and 2(b) provided the most persuasive proof that a separation had occurred among all of Sheo Narain’s sons, and that the separation happened while Sheo Narain was still alive. The Court’s view was supported by the recitals found in several other documents that were executed during the same period. Notably, the record showed that before the year 1905 there was no indication of any transaction in which both Ram Narain and Ram Saran participated, nor was there any evidence of any acquisition of property recorded in their joint names. It appeared that on the very day Exhibit 2(b) was executed, a separate mortgage bond was also executed by Imrit in favour of Ram Saran. Although that mortgage bond itself was not produced before the Court, the later document identified as Exhibit C(9) referred expressly to the same transaction, stating that Imrit had obtained money on the strength of the mortgage bond, using funds that belonged to Ram Saran. Exhibit C(5) was a deed of sale dated 14 February 1880, in which Welayat Mian sold a house to Ram Narain, and the deed was recorded solely in the name of Ram Narain. The appellants argued that this house was, in fact, a joint property of Ram Narain and Ram Saran, basing their claim on a Kobala identified as Exhibit C(7), which was executed on 23 May 1925 by both brothers together in favour of a Dulhin Ram Kuer. The appellants further asserted that the same house was the subject of the later sale deed. After comparing the descriptions and boundaries of the properties set out in the two documents, the Court was unable to accept that they described the same piece of land. The property referred to in Exhibit C(7) was located in Mahalla Karim Chak, whereas the house sold by Welayat Mian was situated in Dahiawan, and the three-sided boundaries of the two parcels differed considerably. Exhibit C(8) was another sale deed from the same era, dated 13 December 1898, in which Ram Narain again appeared as the sole purchaser, this time acquiring certain land from Ram Singari Singh. The appellants again contended that this land was jointly owned by Ram Narain and Ram Saran, as shown in the Survey Khatian. The Court was not persuaded by this argument, observing that the land recorded in Khatian No. 233 under the joint names of the brothers lay in mouza Putbari Telpa, while the land dealt with in Exhibit C(8) was located in Telpa Buzurg. Additionally, the area of the property in Exhibit C(8) measured only 6 cottas 8 dhoors, whereas the settlement record indicated an area of more than one bigha. Consequently, the earlier documents collectively reinforced the inference that could be drawn from the exhibits, namely that a separation among the sons had taken place during Sheo Narain’s lifetime.

Exhibits numbered 2, 2(a) and 2(b) demonstrate that the three sons of Sheo Natgin had become separated from one another, although the exact moment when this separation occurred could not be determined from the records. Commencing in the year 1905, a new series of documents appears, and the Subordinate Judge placed considerable reliance on these papers to support his conclusion that Ram Narain and Ram Saran continued to remain joint partners throughout the subsequent period. It is an established fact that for almost twenty years following 1905, a substantial number of transactions were recorded in which both Ram Narain and Ram Saran participated together, and in several of those entries they were specifically described as members of a joint Hindu family. The High Court correctly observed that, during this lengthy interval, the cloth-trading and money-lending enterprise carried on jointly by the two men appears to have developed into a thriving concern. Because Ram Narain had no male offspring and Ram Saran was an orphan, the uncle and his nephew grew increasingly close, and to all outward appearances they behaved as members of a joint family, with the uncle naturally acting as the head. Consequently, it was logical that any property acquired from the profits of their shared business would be held in both names, and that in legal suits and other proceedings they would be named as joint parties. The pivotal question, however, is whether these later documents are sufficient to conclude that Ram Narain and Ram Saran were joint partners from the very beginning, and whether they can overturn the inference of separation that can be reasonably drawn from the earlier documents previously discussed.

Exhibit E is a Zarpeshgi deed executed by the sons of Imrit that grants a lease jointly to Ram Narain and Ram Saran. The consideration for this lease consisted of the money owed to them under two separate mortgages that had been executed in their favour on 8 November 1895. One of those mortgages is the same one referred to in Exhibit 2(b), while the existence of the second mortgage is recorded in Exhibit C(9). Although Exhibit 2(b) expressly states that all three brothers were separated, Exhibit E declares that Ram Narain and Ram Saran were living together and that their business was a joint undertaking. The Court does not regard the statement in Exhibit E as contradictory to the recital in Exhibit 2(b). It is possible that a complete separation existed between the two brothers at an earlier stage, and that subsequently, when Ram Narain and Ram Saran resumed business together, they lived in a manner resembling members of a joint Hindu family. Further, Exhibit C(3) is a sale deed dated 9 July 1909, executed by Bibi Bechan in favour of Ram Narain and Ram Saran. It is noteworthy that the vendor, who had no prior relationship with the purchasers, explicitly described them in the deed as uncle and nephew and as forming a joint family.

Exhibit C-4 was a deed of sale dated 7 May 1913, which had been executed by Kishun Chand and Gopi Chand in favour of Ram Narain alone. The name of Ram Saran did not appear among the purchasers in that document. Counsel for the appellants contended that, although the Survey Khatian recorded the land in the joint names of both Ram Narain and Ram Saran, the description of the land supplied in the deed differed completely from the description that appeared in the Khatian. The discrepancy was evident both in the extent of the area and in the Touzi number assigned to the parcel. In Exhibit C-2, which was a deed of sale executed by Mustafa Hussain on 20 April 1922 in favour of both Ram Narain and Ram Saran, the purchasers were described as joint Zarpeshgidars of the executant, but the deed did not refer to them as members of a joint Hindu family. Similarly, Exhibit C-h, a deed dated 24 July 1922, described the two brothers as joint creditors of the vendor. The only other deed executed during the lifetime of Ram Narain, identified as Exhibit C-1, was also a sale in favour of both brothers, yet it likewise omitted any reference to a joint Hindu family relationship. After reviewing all of these sale deeds, the Court held that the collection of documents did not inevitably demonstrate that the brothers had never been separated, as the plaintiff alleged and earlier documents appeared to confirm. The Court further observed that there was no dispute that Ram Narain and Ram Saran operated a cloth-trading and money-lending enterprise together. The vendors in the cited deeds were indebted to this joint money-lending concern, and in most cases the consideration for the sales consisted of unsatisfied debts owed by the vendors. Consequently, it was natural for the properties to be purchased in the joint names of Ram Narain and Ram Saran. Apart from Exhibit C-3, none of the documents explicitly stated that the parties were members of a joint Hindu family, and even if a statement of that nature had been present, the Court noted that such a description would not have been unusual given the manner in which the brothers conducted their affairs both within and outside the family.

Counsel for the appellants, however, placed substantial emphasis on statements made by Ram Narain and by Sumitra after the former’s death, which appeared in several plaints and depositions. In those statements, it was expressly asserted that Ram Narain and Ram Saran formed a joint Hindu family, with Ram Narain serving as the karta. One such statement was found in Exhibit K-2, a plaint filed in a mortgage suit in 1917. Paragraph (y) of that plaint read: “The bond in suit is executed in favour of plaintiff No 1 alone, who is the head and managing member of the joint family, but plaintiff No 2, who is the brother’s son of plaintiff No 1, has got a claim to one-half share in the amount claimed. Therefore, he joins as a plaintiff.” The Court understood that plaintiff No 1 in that suit corresponded to Ram Narain and plaintiff No 2 to Ram Saran. In another mortgage suit filed in 1924, identified as Exhibit K-1, both Ram Narain and Ram Saran appeared as plaintiffs, and paragraph 6 of that plaint stated that plaintiff No 2 (Ram Saran) was a member of a joint family with plaintiff No 1 (Ram Narain), thereby justifying his joinder. Finally, a further plaint filed in 1923, referenced as Exhibit K, contained the declaration: “That the plaintiffs are members of a joint family and carry on money-lending business jointly. Mortgage bonds are executed in favour of any member of…” These recurring assertions were highlighted by the appellants to support the contention that a joint Hindu family relationship existed between the brothers despite the earlier documentary evidence.

In the mortgage suit recorded in Ex. K (2), the plaint stated that the plaintiff who was the head and managing member of the joint family claimed the entire amount, while plaintiff No. 2, identified as the brother’s son of plaintiff No. 1, asserted a right to one-half of the claimed sum and therefore joined the suit as a co-plaintiff. The court noted that plaintiff No. 1 in that suit was Ram Narain and plaintiff No. 2 was Ram Saran. In another mortgage suit filed in 1924, documented as Ex. K (1), both Ram Narain and Ram Saran appeared as plaintiffs, and paragraph 6 of the plaint expressly described plaintiff No. 2 (Ram Saran) as a member of the same joint family as plaintiff No. 1 (Ram Narain), which was the basis for his joinder as a co-plaintiff. A further statement appears in a plaint of a mortgage suit filed in 1923, also labelled Ex. K, where the plaintiffs declared: “That the plaintiffs are members of a joint family and carry on money-lending business jointly. Mortgage bonds are executed in favour of any member of the family. Accordingly, the mortgage bond sued upon was executed in favour of plaintiff No. 1 alone. But both of the plaintiffs have got claim thereto.” These excerpts demonstrate that the parties consistently described themselves as members of a joint family engaged in a common money-lending enterprise.

The court observed that the foregoing statements were made in plaints originating from mortgage actions that arose out of the money-lending activity jointly conducted by Ram Narain and Ram Saran. Because the business was operated as a joint venture, the court explained that even when a mortgage bond was executed in the name of a single creditor, it was prudent for both partners to be joined as plaintiffs to eliminate any risk of later dispute. Consequently, each plaint contained an explanation as to why the mortgage bond was not in the names of both plaintiffs. Moreover, the plaints specifically affirmed that Ram Saran possessed an equal share in the mortgage monies. The court found it unusual and inappropriate for a transaction involving a Mitakshara joint family—where the karta or manager is ordinarily empowered to file suits and transact on behalf of the family—to specify that another coparcener held a distinct share in the claim or property. The court further noted that the term “joint family” could be employed both in a strict legal sense and in a broader, informal sense, and that in the present circumstances the usage appeared to be the latter. The deposition of Ram Narain, presented in Ex. N, did not substantially alter the analysis. In his testimony, Ram Narain declared, “Ram Saran Sahu is my nephew and we live jointly. I am karta of my family.” The court concluded that this deposition, given in the context of a mortgage suit, was offered chiefly to justify the inclusion of Ram Saran’s name as a co-plaintiff.

In the matter before the Court, the party named as co-plaintiff could not be subjected to excessive scrutiny of the precise language she employed. The counsel identified as Mr Bakhshi Tek Chand sought to place considerable emphasis on remarks made by Sumitra, who was the mother of the plaintiff. These remarks appeared both in the written statement that Sumitra filed in the suit initiated by Imrit’s son against the defendants, and in the deposition on commission that she gave in the same suit. It is important to note that Sumitra initially participated as a party to that suit, but subsequently Ram Saran and his sons caused her name to be removed from the proceedings so that a compromise petition could be filed between them and the plaintiff without her presence. The deposition on commission indicates that Sumitra was acting under the complete influence of Defendant No 1 and his sons. The High Court, in the view of this Court, correctly highlighted portions of her deposition in which she made admissions that appeared to be contrary to her own wishes. One such admission was that, contrary to earlier assertions, there were in fact three houses and not two, a fact that supports the allegation of a full partition of the property. Another admission was that the separation of Imrit occurred during the lifetime of Sheo Narain. The Court observed that Sumitra’s knowledge base was extremely limited, making her susceptible to being prompted by the defendants to say whatever they wanted. This observation is underscored by the fact that she could not identify the cardinal directions, was unable to count money, and did not even understand the manner in which her husband conducted his business. Given these circumstances, the Court found it difficult to assign much weight to her testimony, although it was somewhat surprising that she would make any statement that ran counter to the interests of her own daughter.

The other material relied upon by the appellants’ counsel consisted of two categories of documents: the settlement records and the account books. The settlement records, exhibited as Documents 4 and R, were examined by the Court and found not to be decisive on the point in controversy. These records reveal that certain parcels of land were entered in the name of Ram Narain alone, while other parcels were entered jointly in the names of Ram Narain and Ram Saran with a note indicating that they held equal shares in the properties. If the family had truly been a joint Mitakshara family from the outset, with Ram Narain acting as the karta, the expectation would be that all lands would have been recorded solely in Ram Narain’s name. The existence of lands recorded both singly in Ram Narain’s name and jointly with Ram Saran therefore suggests that the family did not constitute a joint Mitakshara family in the strict legal sense. In this regard, reference may be made to two significant documents that the learned judges of the High Court had given appropriate consideration to, namely the documents identified as Exhibits G and 1.

In this case, the Court examined two documents that had been placed before it, identified as Exhibits G and 1. Exhibit G consisted of a deed dated 9 November 1899 in which Ram Narain relinquished any claim he might have had over certain properties that he had purchased in his own name for the benefit of the deity known as Shri Thakur Lachhmi Narayan Swamiji Maharaj. The deed stated that Ram Narain would continue to act as manager of the temple for the duration of his life and that he would arrange the settlement and management of the properties in the manner he considered appropriate. The deed further provided that after Ram Narain’s death, the management would pass to Ram Saran Sah, who was the son of Ram Narain’s full brother, and thereafter to the heir and representative of Ram Saran Sah. The document recorded that Ram Saran was an attesting witness. The Court observed that this arrangement demonstrated that Ram Narain possessed property that he could dispose of at his discretion, and that his nephew, alleged to be a joint coparcener, was merely aware of such disposition. The Court noted that if the property had been an endowment created by the family itself, there would have been no need to specify that management would pass to Ram Saran after Ram Narain’s death, because the right of managership would have automatically descended in the line of Ram Saran. Subsequently, Exhibit 1, which had been executed shortly before Ram Narain’s death, altered the earlier arrangement by appointing a certain Mahant, Mahant Goswami Hirdaya Saran Deoji, as the manager of the endowed property. This later instrument, the Court held, further proved that Ram Narain claimed absolute and unrestricted authority to dispose of his properties in any manner he chose, and that the properties which were not jointly acquired with his nephew through the profits of a joint business belonged solely to him.

The Court also scrutinised the account books that had been produced in the proceedings. It found that the High Court’s suggestion of two parallel sets of accounts—one maintained in the name of Ram Narain and the other in the name of Ram Saran—was not convincingly established. The counsel appearing for the respondents had not been able to show that such a dual accounting system actually existed. The entries highlighted by the counsel for the appellants, the Court observed, did not strengthen the defendants’ case. The Court agreed with the High Court that the entries were at best equivocal and inconclusive. For instance, certain expenses were debited to Ram Narain for costs incurred by Ram Saran and others in travelling to Puri, but the records did not identify who accompanied Ram Saran on that journey, nor did they indicate whether Ram Narain’s wife or daughter were among the travellers. Likewise, debits were made for a Sataisa ceremony without any clarification as to whose ceremony it was. Further entries showed that expenses related to the marriage of Ram Satan’s daughter were charged against Ram Narain; these amounts represented relatively small sums mainly associated with guest invitations and gifts, and did not constitute genuine marriage expenses. In the absence of stronger evidence, the Court concluded that these accounting entries did not support the defendants’ assertion that a true joint family existed. Consequently, the Court affirmed the view of the High Court that there had been a separation of all family members, except for Imrit, during the lifetime of Sheo Narain, and noted that no attempt had been made by the defendants to seek a reunion of the family.

In this matter the Court examined the entries that related to the Sataisa ceremony and noted that it was unclear whose ceremony the expenses pertained to. The accounts did contain certain expenditures that were connected with the marriage of Ram Satan’s daughter, and those amounts were charged to the account of Ram Narain. The Court inspected these entries directly and observed that they involved only very modest sums of money, chiefly covering costs incurred for inviting guests and for gifts that were received from the guests. Such outlays did not constitute genuine marriage expenses, and because no stronger proof was available, the Court could not conclude that these entries supported the defendants’ claim that a true joint family existed. After considering all of the material, the Court held that the view expressed by the learned judges of the High Court was correct, namely that a separation had occurred among all members of the family during the lifetime of Sheo Narain and that the separation did not affect only Imrit. The Court also observed that the defendants had made no attempt to argue that a reunion of the family had taken place. Consequently, although the facts showed that Ram Narain and Ram Saran lived together, conducted business jointly, and acquired property in each other’s names, and although the settlement records listed them as joint owners, such facts could at most create a tenancy in common between them. They did not, however, establish a joint tenancy under Mitakshara law, which would give rise to a right of survivorship. Accordingly, Defendant No 1 did not acquire any survivorship right in the property that had belonged to Ram Narain, and the plaintiff was therefore entitled to succeed on that ground. Nevertheless, the Court was not prepared to endorse the decree issued by the High Court in the exact form in which it had been rendered in favor of the plaintiff. The plaintiff’s claim concerned the properties enumerated in Schedules I to IV of the plaint. In paragraph 21 of the written statement, the defendants expressly contended that the list of properties and the valuation placed at the foot of the plaint were inaccurate. They asserted that some of the properties mentioned did not exist, that certain debts were barred by limitation, and that other claims had already been dismissed. Moreover, the defendants pointed out that there were properties held jointly by Ram Narain and Ram Saran, to the whole of which the plaintiff could not lay any claim. On the basis of this defence, Issue No 7 was raised before the trial Court. That issue required the Court to consider which properties the plaintiff could seek possession of even if she succeeded in proving that her father had died separate from the others. The trial Court deemed it unnecessary to resolve this question because it dismissed the plaintiff’s suit in its entirety. The High Court, as the record shows, issued a decree granting the plaintiff the relief she sought in the plaint without addressing the question raised in Issue No 7. In addition, it may be noted that the plaintiff’s plaint also sought a sum of Rs 6,600 as past mesne profits, and a request for future mesne profits, matters that formed the subject-matter of Issue No 8 and which likewise were left undecided by the High Court.

In the plaint the plaintiff also prayed for the recovery of future mesne profits. The Court noted that the question of what amount, if any, the plaintiff could recover as mesne profits and the basis on which such profits should be calculated formed the subject-matter of issue number eight, and that the High Court had left this issue undecided. In the present circumstances the Court agreed with the High Court’s finding that the plaintiff’s father had died separate from defendant No. 1, and consequently defendant No. 1 was not entitled to claim any property by right of survivorship. However, the Court held that the determination of which specific properties could be the subject of a decree for possession and the assessment of mesne profits remained unresolved. For that reason the matter was to be sent back to the High Court so that those outstanding issues could be finally decided. The Court affirmed the findings of the High Court and remanded the case in order that it may be disposed of in accordance with law after issues number seven and eight are determined. The learned Judges were directed that they could remit the unresolved issues to the trial Court for factual findings based on the evidence already on record or on any further evidence that the parties might be permitted to adduce. The plaintiff-respondent was awarded costs of the appeal, and any further costs would depend on the final result. The case was therefore remanded. Counsel for the appellants was identified as Tarachand Brijmohanlal, and counsel for the respondent was recorded as I.R. C. Prasad.