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PETITIONER: BHAGWATI PRASAD SAH AND OTHERS

       Vs.

RESPONDENT: DULHIN RAMESHWARI JUERAND ANOTHER.

DATE OF JUDGMENT: 07/05/1951

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. FAZAL ALI, SAIYID AIYAR, N. CHANDRASEKHARA

CITATION:  1952 AIR   72            1952 SCR  603  CITATOR INFO :  R          1964 SC 136  (22)  RF         1980 SC1173  (23)

ACT:     Hindu       Law--Joint      family--Presumption       of jointness--Separation  of one member--Effect  of--Burden  of proof  of subsequent state of family----Evidence of  separa- tion--Statement  of  deceased member-- Evidence  Act  (I  of 1872), s. 32 (3).

HEADNOTE:     Though  the general principle is that a Hindu family  is presumed  to  be joint unless the contrary  is  proved,  yet where  it is admitted that one of the coparceners did  sepa- rate himself from the other members of the joint family  and had his share in the joint property partitioned off for him, there  is  no presumption that the rest of  the  coparceners continued to be joint.  There is no presumption on the other side  too  that because one member of the  family  separated himself,  there has been separation with regard to all.   It would  be a question of fact to be determined in  each  case upon  the evidence relating to the intention of the  parties whether there was a separation amongst the other coparceners or they remained united and the burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief.    Except in the case of re-union, the mere fact that  sepa- rated coparceners chose to live together or act jointly  for purposes  of  business or trade or in  their  dealings  with properties  would  not give them the status  of  coparceners under the Mitakshara law.     The  statements of a particular person that he is  sepa- rated from a joint family of which he was a coparcener,  and that  he  has no further interest in the joint  property  or claim to any assets left by his father, would be  statements made  against the interest of such person, and,  after  such person is dead, they would be relevant under s. 32(3) of the Evidence  Act.  The assertion that there was separation  not only  in respect of himself but between all the  coparceners would  be admissible as a connected matter and ,an  integral part  of the same statement.  It is not merely  the  precise

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fact  which is against interest that is admissible  but  all matters that are "involved in it and knit up with the state- ment."     The  expression "joint family" is used in legal as  well as  in a loose sense.  The fact that the said expression  is used in 604 describing a family in a document does not therefore  neces- sarily  lead  to the inference that the family  is  a  joint Hindu family with all its legal incidents.

JUDGMENT: CIVIL APPELLATE JURIDICTION. Civil Appeal No. 83 of 1950 appeal   from the Judgment and Decree dated the  2nd  March, 1948, of the High Court of Judicature at Patna (Manohar Lal and Ray, JJ.) in Appeal from Original Decree No. 60 of  1944 arising out of the Judgment and Decree dated the 22nd Decem- ber,  1943,  of the Court of the First Sub-Judge  of  Saran, Chapra, in Title Suit No. 24 of 1941.     Bakshi  Tek Chand (Ramanugrah Prasad, with him) for  the appellants.     Gopinath  Kunzru (D. K. Saran, with him) for  Respondent No. 1.     1951. May 7.  The judgment of the Court was delivered by     MUKHERJEA J.--This appeal is directed against a judgment and decree of a Division Bench of the Patna High Court dated 2nd  March, 1949, by which the learned judges  reversed,  on appeal,  a  decision of the  Second  Additional  Subordinate Judge of Saran in Title Suit No. 24 of 1941.      The controversy between the parties to the suit centres round  only one question of fact, viz., whether  the  plain- tiff’s father, who died in 1926, was joint with or  separate from  his  nephew, the defendant No. 1, at the time  of  his death.   If  he died separate, it is not disputed  that  his properties   would  devolve  by inheritance upon  his  widow and after the death of the widow would vest in his daughter, who is the plaintiff in the suit.  If, on the other hand, he died joint, his interest in the joint properties would  pass by  survivorship to defendant No. 1, who together  with  his male descendant constitute a joint Hindu family governed  by the Mitakshara law.      It  may  be convenient at the outset to  give  a  brief resume of the material facts as they appear in the 605 pleadings of the parties.  One Sheo Narain Sah, who was  the grandfather  of the plaintiff as well as of defendant No.  1 had  three  sons: (1) Imrit, (2) Janki and (3)  Ram  Narain. Imrit’s branch is represented by defendants 11 and 12 in the suit,  and  they  are his  son  and  grandson  respectively. Janki’s only son is Ram Saran, the defendant No. 1.  Defend- ants  2 to 4 are the sons of defendant No. 1 and  defendants to  10  are his minor grandsons.  Ram Narain  died  in  1926 leaving behind  him his  widow Sumitra and a daughter Ramsa- wari who is the plaintiff in the suit.  Sumitra died in 1933 and  the plaintiff claims to be the sole heir of Ram  Narain after  the death of her mother. According to the  plaintiff, there  was a complete separation between the three  sons  of Sheo  Narain  in food, estate and business nearly  65  years prior to the institution of the suit. After separation,  Ram Narain  and Ram Saran, the defendant No. 1, did carry  on  a cloth shop jointly and dealt with the profits of this  busi- ness together, as well as acquired properties in their joint names.   But these properties and interests they  could  and

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did hold as tenants in common.  Sumitra was a woman of  weak intellect  and after the death of Ram Narain, she  was  com- pletely under the influence of defendant No. 1 and his sons. It is stated in the plaint that in the year 1928 the defend- ant  No. 11, who is the son of Imrit, instituted a  suit  at the institution of defendant No. 1 and his sons in which  he denied  the  separation of Imrit from the joint  family  and claimed the properties in possession of defendant No. 1  and his sons as the joint properties. of the family.  That suit, it is said, ended in a collusive compromise and Sumitra  was made  to file a collusive written statement in that suit  as well  as to depose falsely on commission to the effect  that her  husband died joint with defendant No. 1. The  plaintiff herself brought an earlier suit on much the same allegations as  she has made now but that suit she had to  withdraw  be- cause  of some formal defects.  The present suit was  insti- tuted  on 20th of December, 1940, and the  plaintiff  prayed for  recovery of possession of the properties  specified  in Schedules I 78 606 to  IV in the plaint together with mesne profits  both  past and future.     Defendants  11  and  12 did not appear  or  contest  the ;suit.   The  suit was contested by defendants 1  to  4  who filed one  joint written statement.  Another written  state- ment  and that of a formal character was filed on behalf  of the minor defendants by their pleader guardian appointed  by the Court.  The material thing stated in this written state- ment  was that the natural guardians of the minors in  spite of notices being given to them did not properly instruct the pleader guardian.     The  defence of defendants 1 to 4 in substance was  that there was no separation between Ram Narain and defendant No. 1  as  alleged in the plaint, but that after  the  death  of Janki, the father of defendant No. 1, Imrit alone  separated himself  from  Ram Narain and the defendant No. 1  when  the latter was only five years old. Ram Narain and defendant No. 1 continued to remain joint as before and as Ram Narain died joint,  the defendant No. 1 got all the properties by  right of survivorship.  It was denied that Sumitra was  influenced in  any way by defendant No. 1 or his sons or that  she  was made  to  file  a collusive written statement  in  the  suit instituted by defendant No. 11 or make a false statement  in her deposition while giving evidence therein. Several  other pleas  were  taken with which we are not concerned  for  our present purpose.    The  material  issue framed in the suit was issue  No.  6 and this was worded as follows:--   "" Was there any separation between Ram Narain Sah, plain- tiff’s father, and defendant No. 1 as alleged?"    The  trial  Court  on a  consideration  of  the  evidence adduced   in   this   case decided this issue  against   the plaintiff  and  in that view  dismissed  the  suit.    There was   an appeal taken  to the Patna High  Court against this decision by the plaintiff and the learned Judges of the High Court reversed the decision of the trial Judge and gave  the plaintiff   607 a  decree  in terms of the prayers made in the  plaint.  The defendant No. 1 died after the decision of the trial  Judge, and  his  sons and grandsons have now come up on  appeal  to this  Court.   The  substantial. contention  raised  by  Mr. Bakhshi Tek Chand, who appeared in support of the appeal, is that the decision arrived at by the High Court on the  ques-

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tion  of separation is not warranted by the evidence on  the record.     Before we discuss the evidence on the record, we  desire to  point out that on the admitted facts of this case   nei- ther   party   has  any presumption on his  side  either  as regards jointness or separation of the family.  The  general principle undoubtedly is that a Hindu family is presumed  to be  joint  unless  the contrary is proved, but where  it  is admitted  that one of the coparceners did  separate  himself from  the  other  members of the joint family  and  had  his share in the joint  property partitioned off for him,  there is no  presumption that the rest of the coparceners  contin- ued to be joint.  There is no presumption on the other  side too that because one member of the family separated himself, there has been separation with regard to all.  It would be a question  of  fact to be determined in each  case  upon  the evidence  relating to the intention of the  parties  whether there was a separation amongst the other coparceners or that they remained united.  The burden would undoubtedly. lie  on the party who asserts the existence of a particular state of things on the basis of which he claims relief.  These  prin- ciples  which have been laid down in several  pronouncements of the Judicial Committee seem to us to be perfectly  sound: (vide  Bal  Krishna  v. Ram Krishna(1)  and  Palaniammal  v. Muthuvenkatachala(2)  and Balabux Ladhuram v.  Rukhmabai(3). Another  thing to be noted in this connection is that it  is not the case of the defendants made either in the  pleadings or  in  the  evidence that even if there  was  a  separation between Ram Narain and Ram  (1) L.R. 58 I.A. 220.         (3) L.R. 30 I.A. 130.  (2) L.R. 52 I.A 83. 608 Saran  at any anterior time they subsequently reunited.  The controversy,  therefore, narrows down to the short point  as to whether at any time before the death of  Ram Narain there was  a  separation  between him and Ram Saran.  If,  as  the plaintiff avers, there was a disruption of the joint  status in  regard  to all the three brothers, it  would  really  be immaterial if, subsequent to separation, Ram Narain and  Ram Saran  lived  together in commensality or dealt  with  their properties  in such manner as is ordinarily done by  members of  a joint Hindu family which is not set up in the  present case.  Except  in the case of reunion, the  mere  fact  that separated coparceners chose to live together or act  jointly for purposes of business or trade or in their dealings  with properties,  would not give them the status  of  coparceners under  the Mitakshara law. It in the light of these  princi- ples that we propose to examine the evidence before us.      Both the Courts below have discarded the oral  evidence adduced by the parties as wholly unreliable and the  learned counsel  appearing for neither side has invited us to  place any  reliance  on the same. We do not, therefore,  think  it necessary  to refer to the oral evidence at all.      As  regards documentary evidence, it must  be  admitted that there is no deed of partition in the present case,  nor is there in existence any document to which all the  members of  the family were parties and which proceeds on the  basis of  any  admitted  partition. Imrit’s  separation  from  the family  is of course an admitted fact but there is  no  evi- dence  even on the side of the defendants to show when  this separation  took place.  The defendant No. 1 in his  deposi- tion in a Money Suit, to which he was a party, stated in the year  1942 that his age was 81 at that time.  If this  is  a correct  statement, Ram Saran must have been born some  time in  1861 and Imrit’s separation may be dated near about  the

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year 1866.       The  earliest document that we have on the  record  is Ex. 2 dated the 30th of September, 1879.  This is a   609 mortgage  bond  executed by Imrit in favour of  Ram  Narain. There  is no recital of separation in the  document  itself, but the statement of boundaries of the mortgaged  properties shows  clearly  that Ram Narain’s share was  separated  from that of Imrit. The mortgaged properties were two houses, one of which was situated at Dahiawan and the northern  boundary of  this  house is stated to be "house of Ram  Narain  Sahu, puttidar  of me, the executant, partitioned’’.   This  shows that there was a partition between Imrit and Ram Narain  and Ram Narain had a separate house of his own. It is not stated in  this document that this house was the joint property  of Ram Narain and Ram Saran. Exhibit 2 (a) is another  mortgage bond  between Imrit and Ram Narain and is dated the 21st  of March, 1885, and here the northern boundary of the mortgaged property  is  stated to be the "Bakasht land  of  Ram  Saran Sahu,  puttidar  of me, the executant."  This  is  a  strong piece  of  evidence in favour of the  plaintiff  and  taking Exhibits  2 and 2 (a) together, it can legitimately  be  in- ferred  that Ram Saran was also separate and he had  certain bakasht  lands allotted to him in his share. The  matter  is practically  clinched  by the recital  of  another  document which is Exhibit 2 (b) and which is also a registered  mort- gage  bond  executed by Imrit in favour of Ram  Narain.  The date of the instrument is 8th of November, 1898.  There is a recital in the document to the following effect :--     "I, the executant, have been living separately and  have been  separate  in mess from Ram Narain Sahu and  Ram  Saran Sahu my own nephew for a long time and at the time of  sepa- ration all the movable and immovable properties were  parti- tioned  among all the three parties.  Since separation,  all business is carried on separately."     The document further recites that Sheo Narain Sahu,  the father,  was  a party to this partition and he was  given  a house for his residence and Rs. 1,100 in cash for trade  and maintenance  and that after his death these properties  were also  divided  amongst the three sons.  It  is  stated  that Imrit received a sum of 610 Rs.  334-7-9  as  his share of the cash money  left  by  his father  and this money he paid to Ram Narain in part  satis- faction of his debt.  Then again, in the description of  the mortgaged  property  given  in the  schedule,  the  northern boundary is stated to be "House of Ram Saran Sahu nephew  of me, the executant."     There  is no reason to doubt the truth of  these  state- ments  which  were made in an old document long  before  any dispute  arose between the parties in regard to  these  mat- ters.   A question was raised, however, as to  whether  this statement of Imrit could be legally admissible as  evidence. Imrit is undoubtedly dead and Mr. Kunzru, appearing for  the respondents, contended that this statement could be admitted in evidence under section 32 (7) of the Indian Evidence Act. We are not sure that section 32 (7) is really of  assistance to  the  respondents.  The particular right,  which  is  the subject-matter of dispute before us, was certainly  asserted in  this  transaction but not by it within  the  meaning  of section 13 (a) of the Evidence Act.  We think, however, that the statements could be admitted under section 32 (3)of  the Evidence Act. The statements of a particular person that  he is  separated from a joint family, of which he was a  copar- cener,  and  that he has no further interest  in  the  joint

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property  or claim  to any assets left by his father,  would be  statements  made  against  the  interest  of  such  per- son, and, after such person is dead, they would be  relevant under section 32(3) of the Evidence Act. The assertion  that there  was  separation not only in respect  of  himself  but between  all the coparceners would be admissible as  a  con- nected  matter  and an integral part of the  same  statement (Vide Blackburn J. in Smith v. Blakey(1).  It is not  merely the precise fact which is against interest that is  admissi- ble  but  all matters that are "involved in it and  knit  up with the statement." See Wigmore on Evidence, Art. 1465.       We  agree  with the learned Judges of the  High  Court that  Exhibits 2, 2(a) and 2(b) taken together  afford  most satisfactory  evidence  of there being a separation (1)   L.R. 2 Q.B. 326. 611 amongst  all  the  sons of Sheo Narain and  that  they  show further that the separation took place during Sheo  Narain’s lifetime.   This conclusion is fortified by the recitals  in several  other  documents which were  executed  during  this period.  In fact, prior to 1905 there is no evidence of  any transaction  in  which both Ram Narain and  Ram  Saran  took part,  or  of  any acquisition of property  in  their  joint names.     It  seems  that on the very day that Exhibit 2  (b)  was executed  there was another mortgage bond executed by  Imrit in favour of Ram Saran and though that document has not been produced,  the transaction is recited in a  later  document, namely, Exhibit C (9), where it is expressly stated that the money  was  taken by Imrit on the strength of  the  mortgage bond from out of the funds of Ram Saran. Exhibit C (5) is  a deed  of  sale  dated 14th of February, 1880,  and  by  this instrument  one Welayat Mian sold a house to Ram Narain  and the  document  stands in the name of Ram Narain  alone.   On behalf  of the appellants, it is contended that  this  house was treated as the joint property of both Ram Narain and Ram Saran as would be evident from a Kobala Exhibit C(7) execut- ed on 23rd of May, 1925, by both of them together in  favour of  one  Dulhin Ram Kuer.  It is said  that  this  identical property was the subject-matter of the subsequent sale deed. We  have  compared  the boundaries and  description  of  the properties  given in the two documents and we are unable  to hold  that they relate to the same property.   The  property dealt  by  Exhibit C(7) is situated in Mahalla  Karim  Chak, while  that sold by Welayat Mian was situated  in  Dahiawan. The boundaries on the three sides are also quite  different. Exhibit  C(8)  is  another sale deed  executed  during  this period.  It  is dated 13th of December, 1898,  and  in  this document  also Ram Narain figures as the sole  purchaser  of certain  property from Ram Singari Singh. Here again, it  is the  appellants case that this property was shown to be  the joint  property  of Ram Narain and Ram Saran in  the  Survey Khatian.   We do not think that this contention can  be  ac- cepted as correct. 612 The  property  that is recorded in Khatian No.  233  in  the joint names of Ram Narain and Ram Saran is situated in mouza Putbari  Telpa,  while the property that is  dealt  with  by Exhibit  C(8) is in Telpa Buzurg. Moreover, the area of  the property  in Exhibit C(8) is only 6 cottas 8  dhoors,  while that in the settlement  record is more than one bigha. Thus, all the earlier documents support the inference which may be drawn from Exhibits 2, 2(a) and 2(b) that all the three sons of  Sheo Natgin separated from each other, though it is  not possible  to fix the precise time at which such   separation

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took place.    From 1905 onwards we come to another series of  documents upon  which considerable stress was laid by the  Subordinate Judge  in  support of his decision that Ram Narain  and  Ram Saran remained joint throughout.  It is perfectly true  that for  a  period of nearly 20 years from this  date,  we  find quite  a number of transactions in which Ram Narain and  Ram Saran  jointly  took  part and in some of  which  they  were described  as members of a joint Hindu family. In our  opin- ion,  the  High Court is right in holding that  during  this period the cloth and money-lending business that was carried on  jointly  by Ram Narain and Ram Saran probably  became  a flourishing  concern.  Ram Narain had no son of his own  and Ram  Saran  being an orphan, the uncle and the  nephew  were drawn  very  much closer to each other and  to  all  outward appearances  they  conducted themselves like  members  of  a joint  family,  of which the uncle would  naturally  be  the head.  It was natural also that properties, which  were  ac- quired  out of the profits of the joint business,  would  be acquired  in the names of both and in suits and other  legal proceedings  they would figure as joint parties.  The  ques- tion however is whether from these documents it is  possible to infer that Ram Natgin and Ram Saran were joint all  along and are they sufficient to destroy the inference of  separa- tion  that can legitimately be drawn from the earlier  docu- ments  referred  to above ? Exhibit E is  a  Zarpeshgi  deed executed  by the sons of Imrit favour of Ram Narain and  Ram Saran 613 jointly. The consideration for this lease was the money  due to  them  under the mortgages executed separately  in  their favour on 8th of November, 1895. One of these mortgages,  as we  have  pointed out already, is Exhibit 2 (b),  while  the existence of the other is recited in Exhibit C(9).  Although in  Exhibit 2(b) it was stated that all the  three  brothers were  separated, it was stated in Exhibit E that Ram  Narain and  Ram Saran were living jointly and that  their  business was joint.  We do not think that the statement in Exhibit  E contradicts  the recital of Exhibit 2(b).  There might  have been complete separation between the two brothers and yet it is  quite possible that afterwards, when Ram Narain and  Ram Saran  began to carry on business together, they lived  like members of a joint Hindu family. Exhibit C(3) is a sale deed dated  9th of July, 1909, executed by Bibi Bechan in  favour of Ram Narain and Ram Saran. It is somewhat surprising  that the  vendor,  who was a complete stranger, recites  in  this document  that the purchasers are related to each  other  as uncle and nephew and form members of a joint family.  Exhib- it  C(4)  is another sale deed dated the 7th of  May,  1913, executed by one Kishun Chand and Gopi Chand in favour of Ram Narain  alone. Ram Saran does not figure as a  purchaser  in this  document. It is argued by the learned counsel for  the appellants that this land was recorded in the joint names of both Ram Narain and Ram Saran in the Survey Khatian, but the description of the land as given in the sale deed is totally different from what appears in the Khatian. There is  marked difference  both  as regards the area as well as  the  Touzi number.  In Exhibit C(2), which is a sale deed  executed  by Mustafa  Hussain  on  20th April, 1922, in  favour   of  Ram Narain and Ram Saran, the purchasers are mentioned as  joint Zarpeshgidars of the executant of the deed, but there is  no description of them as members of a joint family. Similarly, in  Exhibit C(h), which is the sale deed dated the  24th  of July, 1922, Ram Narain and Ram Saran were described as joint creditors  of the vendor The only other sale  deed  executed

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during the 79 614 lifetime of Ram Narain is Ex. C (1). This was also a deed of sale in favour of both Ram Narain and Ram Saran, though they are not described as members of a joint family.     In our opinion, a proper consideration of all these sale deeds does not necessarily lead to the conclusion that there was no original separation between Ram Narain and Ram Saran, as alleged by the plaintiff and proved by the earlier  docu- ments.  There is no doubt that Ram Narain and Ram Saran  did carry  on  a cloth and money-lending business  jointly.  The vendors in the above sale deeds had borrowed money from this jointmoneylending  concern  and the  consideration  for  the sales  in the majority of instances were  unsatisfied  debts due by these persons.  It was quite natural, therefore, that these  properties should be purchased in the names  of  both Ram Narain and Ram Saran jointly. Except in Ex. C (3), there is  no  recital  in any of these documents  that  they  were members  of a joint Hindu family and even if there  was  any such  recital, there would have been nothing unusual in  it, having  regard  to  the way in which  they  conducted  their affairs, both in and outside the family.     The learned counsel for the appellants laid considerable emphasis however upon the statements of Ram Narain and  also of  Sumitra  after the death of Ram Narain in  a  number  of plaints  and depositions where it was expressly stated  that Ram  Narain and Ram Saran constituted a joint Hindu  family, of which Ram Narain was the karta. In Ex. K (2), which is  a plaint in a mortgage suit filed in the year 1917, there is a statement in paragraph (y) of the plaint as follows:-     "  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 the 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."     It may be noted that plaintiff No. 1 in the suit was Ram Narain and plaintiff No. 2 was Ram Saran. In 615 Ex.  K  (1), which is another plaint in a mortgage  suit  of 1924  and in which both Ram Narain and Ram Saran figured  as plaintiffs, it was stated in paragraph 6 of the plaint  that plaintiff No. 2 (Ram Saran) was the member of a joint family with  plaintiff  No. 1 (Ram Narain) and, therefore,  he  was also  joined in the suit. Lastly, we have got the  following statement  in  a plaint in another mortgage  suit  (Ex.  K), which  was  filed by Ram Narain and Ram Saran  in  the  year 1923:--     "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 plain- tiff No. 1 alone. But both of the plaintiffs have got  claim thereto."     It  may be pointed out, first of all, that these  state- ments  occur in plaints filed in mortgage suits arising  out of  the money-lending business which was carried on  by  Ram Narain  and  Ram Saran jointly. The business being  a  joint business, even if the bonds were taken in the name of one of the  creditors, it was necessary, to avoid all  risks,  that both  of  them should join as plaintiffs.  It  was  for  the purpose  of explaining as to why the bond sued upon did  not stand in the name of both the plaintiffs, that this explana- tion was added to each one of these plaints.  In the  second place, it may be noted that it was expressly stated in these

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plaints that Ram Saran had also an equal share in the  mort- gage money. It would be unusual in, and quite  inappropriate to, a transaction relating to a Mitakshara joint family,  of which  the  karta or manager can by himself file  suits  and conduct transactions, to specify that another coparcener has got  so  much share in the claim or property.  Thirdly,  the expression  "joint family" can certainly be used in a  legal as well as in a loose sense, and it would not be improper in the circumstances of the present case to hold that it was in fact  used  in a loose sense. The deposition of  Ram  Narain given  in a mortgage suit (Ex. N)  does not  really  improve the position. In his deposition Ram Narain states as follows :-- 616     "Ram  Saran Sahu is my nephew and we live jointly. I  am karta of my family."     Here again the deposition being given in a mortgage suit only for the purpose of justifying the inclusion of the name of  Ram  Saran as a co-plaintiff, no undue stress  could  be laid  upon  the words used. Mr. Bakhshi Tek Chand  tried  to make much also of the statements made by Sumitra, the mother of  the plaintiff, both in the written statement  which  she filed in the suit brought against the defendants by  Imrit’s son and also in the deposition on commission which was given by her in that suit. It is to be noticed that the  plaintiff was a party to this suit but later on Ram Saran and his sons had  her name expunged  from  the suit altogether  in  order that there may be a petition of compromise between them  and the  plaintiff in that suit in her absence. It would  appear from the deposition given on commission by the lady in  that suit that she was completely under the influence of  defend- ant No. 1 and her sons. The High Court, in our opinion,  has rightly laid stress on some portions of her deposition where she made certain admissions even against her will. One thing said  in  her deposition was that there  were  really  three houses  and  not two and this fits in with the  story  of  a complete  partition. In the second place, she admitted  that the  separation of Imrit took place during the  lifetime  of Sheo  Narain. That the stock of knowledge of this  lady  was very  small  and she could be made to say  anything  as  the defendants liked is apparent from the fact that she  herself did  not know what was north, south, east or west.  She  did not  know how to count money and did not know even  how  her husband  conducted his business. In such  circumstances,  we feel  unable  to attach much importance to the  evidence  of this lady, though it is somewhat surprising that she  should have  made  any statement against the interests of  her  own daughter.     The  two other classes of documents which  are  relevant for  our present purpose and to which reference was made  by the  learned counsel for the appellants are  the  settlement records and the account books.  The 617 settlement  records  Exs. 4 and R are not, in  our  opinion, decisive  of the point in issue. The records show that  some lands  were  recorded in the name of Ram  Narain  alone  and others were recorded in the names of both Ram Narain and Ram Saran  with a further remark that they have equal shares  in the properties. If really the family was joint from the very beginning  and Ram Narain was the karta, then all the  lands would have been recorded in  the  name of Ram Narain  alone. The  fact that some lands were recorded in the name  of  Ram Narain  alone,   while others were recorded in  their  joint names, clearly indicates that it  was  not a  joint   Mitak- shara  family  in  the proper sense of the  word.   In  this

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connection reference may be made to two important  documents to  which just importance has been attached by  the  learned Judges of the High Court.  These are Exhibits G and 1.   The first is a deed of relinquishment of claim by Ram Narain  to Shri Thakur Lachhmi Narayan Swamiji Maharaj. The document is dated  9th  of November, 1899, and by  this  instrument  Ram Narain  relinquished  his interest,  in  certain  properties which  he purchased in his own name, but for the benefit  of the  deity.  It is stated in this document that  Ram  Narain would  remain manager of the temple during his lifetime  and shall  make settlement and management of the  properties  in such  a  way as he thought proper and after  his  death  Ram Saran  Sah, son of his full brother, and after him the  heir and representative of  Ram Saran Sah  would be the managers. Ram  Saran was an attesting witness to this  document.  This clearly shows that Ram Natgin had property of his own  which he was disposing of in any way he liked to the knowledge  of his nephew who is alleged to be his joint coparcener. If  it was an endowment created by the family itself, there was  no necessity  of laying down that, after the death of  Ram  Na- rain, his nephew would become the manager as the managership would  descend  in  the line of Ram Saran  as  a  matter  of course.  By the subsequent document (Exhibit 1),  which  was executed shortly before the death of 618 Ram  Narain,  this  arrangement was changed  and  a  certain Mahant,  namely,  Mahant Goswami Hirdaya  Saran  Deoji,  was appointed  manager  of this endowed property.   This  proves that  Ram Narain did purport to exercise absolute and  unre- stricted power of disposition over his properties in any way he  liked, and that the properties except those  which  were jointly acquired by himself and his nephew out of the  prof- its  of the     joint business, belonged to him  absolutely. As  regards   the account books that have been  produced  in this case, the learned Judges of the High Court, it appears, are not quite correct in saying that there were two sets  of accounts  kept side by side, one in the name of  Ram  Narain and  other  in the name of Ram Saran. At least  the  learned counsel  appearing for the respondents could not satisfy  us that this was in fact the true position, We think,  however, that the entries in the account books to which our attention was  drawn by the learned counsel for the appellants do  not really  improve  the defendants’ case.  We  agree  with  the learned Judges of the High Court in holding that the entries are inconclusive and at the best equivocal. Thus, for  exam- ple, certain expenses were debited to Ram Narain on  account of  the costs incurred by Ram Saran and others in  going  to Puri.  It  is not known who were the  persons  who  actually accompanied  Ram Saran to Puri and whether or not they  were the  wife  and daughter of Ram Narain himself.   Then  again certain amounts were debited on account of Sataisa  ceremony but nothing is elicited as to whose Sataisa ceremony it was. Certain-expenses  in  connection with the  marriage  of  Ram Satan’s  daughter  undoubtedly find place in  these  account books  and  they are debited against Ram  Narain.   We  have looked into the entries ourselves. They relate to very small sums  of  money consisting mostly of  expenses  incurred  in connection  with invitation of guests and presents  received from them. They are not marriage expenses proper and in  the absence  of better evidence we are unable to say  that  they support the defendants’ story of there being a joint  family in the true sense of the expression. 619     The  result is that on the whole we are  of.the  opinion that the view taken by the learned Judges of the High  Court

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is  correct and that there was in fact a separation  of  all the members of the family and not of Imrit alone during  the lifetime of Sheo Narain himself. As no case of re-union  has been  attempted to be made on behalf of the defendants,  the facts  that Ram Narain and Ram Saran lived in  commensality, carried  on  business together and  acquired  properties  in their  joint  names, or that their names  were  recorded  as joint holders of properties in the settlement records  might at least create a tenancy in common between them, but not  a joint  tenancy under the Mitakshara law which would  attract the  law of survivorship.  Defendant No. 1,  therefore,  did not  acquire  any right by survivorship  to  the  properties which were owned by Ram Narain and the plaintiff is entitled to succeed on this ground.     We are unable, however, to affirm the decree in the form in which it has been made by the High Court in favour of the plaintiff. The plaintiff laid claim to the properties  which are  specified in schedules I to IV of the plaint. In  para- graph 21 of the written statement, it was expressly  averred by the defendants that the list of properties and the valua- tion given at the foot of the plaint were incorrect. Some of the properties, it was  said,  were non-existent. Some debts had  become  time-barred and claims with regard  to  certain others  had  been dismissed.  Then,  there  were  properties owned jointly by Ram Narain and Ram Saran to the entirety of which  no claim could be laid by the plaintiff.   Upon  this defence,  issue No. 7 was raised in the trial Court  and  it involved a consideration of the question as to what  proper- ties the plaintiff could claim to recover possession of even if she succeeded in establishing that her father died  sepa- rate.  The trial Court did not think it necessary to  decide this issue, as it dismissed the plaintiff’s suit altogether. The High Court, it is to be seen, has given a decree to  the plaintiff  in  terms of her prayers in  the  plaint  without considering  this matter at all.  It may be further  pointed out that the plaintiff in her plaint claimed 620 Rs.  6,600 as past mesne profits and there was a prayer  for recovery  of future mesne profits as well. What  amount,  if any,  the  plaintiff would be entitled to recover  as  mesne profits and on what basis mesne profits should be calculated formed the subject-matter of issue No. 8 and that issue  has also  been left undecided by the High Court.  In these  cir- cumstances, although we agree with the decision of the  High Court  that  the plaintiff’s father did  die  separate  from defendant No. 1 and consequently the latter was not entitled to  claim any property by right of survivorship,  still  for the  determination of the properties with regard to which  a decree for possession could be made and also for  ascertain- ment  of  mesne profits, the case must be sent back  to  the High Court.     The  result is that we affirm the findings of  the  High Court  and remand the case in order that it may be  disposed of in accordance with law after determination of issues Nos. 7  and 8.  It would be open to the learned Judges  to  remit the issues to the trial Court for findings on the points  to be  arrived  at  on the evidence on the record  or  on  such further evidence, as the parties might be allowed to adduce. The  plaintiff respondent will be entitled to costs  of  the appeal. Further costs would abide the result.                                    Case remanded. Agent for the appellants: Tarachand Brijmohanlal. Agent for respondent No. I:R. C. Prasad. 621

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