Lakshmidhar Jagati and Others vs Krishna Chandra Jagati and Others

Adami, J.—The plaintiffs in the three suits out of which these second appeals arise sought for a declaration that the property in suit was their ancestral property and for confirmation of possession of the same or in the alternative for recovery of possession It appears that Radhu Jagati and his five sons Purusottam, Bairagi, Jogi, Sama and Sudam had a trading business. Radhu Jagati separated from his sons and there was a partition under which Purusottam separated from the rest and obtained a four-annas 12 gandas share. That was in 1851. The other brothers continued to live jointly in mess for a time, but according to the plaintiff''s case Bairagi and Sudam separated from Jogi and Sama and in 1867 the four brothers Bairagi, Jogi, Sama and Sudam separated altogether. After the separation Bairagi obtained certain properties out of his own earnings and out of the profits of his separated property and after Bairagi''s death plaintiff No. 1 and Gobinda, the sons of Bairagi also acquired properties from his money-lending business and these properties became ancestral. In 1919 defendant No. 4 obtained a decree against defendants Nos. 1, 2 and 3 the sons of Sama and attached the properties in suit claiming that they had two annas-nine pies share in them. The plaintiffs objected; they claimed these properties as their ancestral properties but the claim was rejected. A cloud being thrown oh the plaintiffs'' title by this rejection of their claim the present suits were brought. Two of the suits, one of them related to debuttar properties, were brought by the sons and grandsons of Bairagi; the third suit was brought by Rama Chandra the son of Sudam, who is defendant No. 8 in other suits. Rama Chandra supported the plaintiff''s case. According to the defendants after Pursottam separated from the family in 1851 the other brothers remaining joint and first Bairagi and then Gobinda was the karta of the family and as such acquired the properties in suit for the joint family. In 1895 the members of the family executed a deed of declaration of settlement which is Ex H in the suit. Under this deed the signatories agreed that they were members of a joint family with Gobinda as the karta and that the shares of the various members should be settled to be as follows:

The two sons of Bairagi, Gobinda, and Krishna, were to have three annas six pies share each while the three sons of Jogi were together to have two annas nine pies share, while the three sons of Sama were to have also two annas nine pies share between them. Ram Chandra was to have three annas six pies share. The defendants contend that on the basis of this deed of (settlement, it being a family arrangement, defendants Nos. 1 to 3 were entitled to the two annas nine pies share which has been attached in the decree of defendant No. 4 against them. Against this defence, the plaintiffs asserted that the declaration, Ex. H, had never been enforced and that it had no effect. The family was separate and the properties in suit were the ancestral properties of the descendants of Bairagi alone. Rama Chandra made a similar contention.

The learned Subordinate Judge who tried the suits together came to the finding that the four branches of the family separated altogether in 1851 and in 1864 as shown by documents Exs. 55, 53 and 54 and that there was no dispute between the parties at the time Ex. H was executed and that it could not bind the members of the family especially as plaintiffs Nos. 2 and 3 were not parties to it; also that the declaration in Ex. H was never acted upon and that Gobinda never gave effect to it nor did the plaintiffs. He found that the plaintiffs were in possession and were unaffected by the document and, therefore, he decreed the plaintiff''s suits.

On appeal the learned Additional District Judge in a long and careful judgment upheld the finding of the Subordinate Judge. He held in effect that there had been a partition and disruption in 185l and in 1864 each branch of Radhu Jagati''s descendants remained separate in mess and properties and that Gobinda and Bairagi had held the properties in suit as the ancestor of their branch and acquired them themselves to be ancestral properties. In his opinion Ex. H was executed not for the purpose of settling a dispute but as a matter of charity and that the shares allotted by it were allotted out of compassion, the plaintiffs could not be bound by it as they were no parties to it. Exhibit H had never been acted upon and in fact the evidence clearly showed that each branch of the family had separate transaction and dealt with properties as their separate properties. He found that the plaintiffs were in possession and dismissed the appeals,

The important document in this case is the declaration or deed of settlement (Ex. H) In that document it was first, declared that Purusottam had separated himself from the others and also that Jogi and Sama Charan had separated from the rest In effect it shows that there was a separation subsequent to the separation of Purusottam. It proceeds to state that Jogi and Sama had lost property and were in a poor state, so Bairagi finding that the family was in trouble by reason of the conduct of Jogi and Sama took all the members of their family under his care and management. After Bairagi''s death, Gobinda as the karta of the family obtained a succession certificate and possessed all the properties moveable and Immovable with the eons of Jogi and other brothers. Then the dead continued, it was necessary to prevent any dispute in respect of the properties in future, so the shares were settled as I have mentioned previously. On the face of it this document would purport to show that at the time it was drawn up all the members of the family were joint. It was executed by Gobinda and his brother who is stated in it to be a minor though his age is given as 19, the two sons of Jogi, the three sons of Sama and Ram Chandra the son of Sudam. Now, it is found clearly that previous to this declaration, namely, in 1864 or previously, there had been a separation between the four sons of Radhu. There is nothing in the evidence to show that '' there had been any re-union between these four sons; in fact the document shows that up to its creation Jogi and Sama were separate. The question is whether this deed can be hold to show re-union and a family agreement. That it cannot amount to re union is quite plain, a re-union after partition can only take place between a father''s brother or paternal uncle. In the present case reunion would purport to be between cousins and no such re-union is possible. Furthermore, Krishna plaintiff No. 1 was a minor at that time and plaintiffs Nos. 2, 3 and 4 who were alive being the sons of Gobinda were not parties. The settlement of shares is obviously not to the advantage of the plaintiffs or to that of the minor Krishna. In my opinion the lower Courts are quite right in finding that the declaration (Ex. H) cannot affect the plaintiffs.

The evidence further shows that the terms of the agreement were never acted upon. After consideration of a great many documents the lower Courts have found that the members of the other branches entered into transactions for themselves treating the properties involved as their separate properties. Furthermore it is obvious that the declaration does not provide that all the properties of the family should be thrown into the joint stock, for the properties of Ram Chandra are not included in it. It has been argued that transactions in respect to Mangalpur property show that after Ex H the family treated itself as joint. Mangalpur was bought in 1902 in the name of Nandakishore and it was afterwards in 1917 sold by a registered deed of sale which was executed by the various members of the different branches and the sale-proceeds were divided equally among them. Now it is clear that the members of the family opened a shop as a partnership business and it was from the profits of that business that the Mangalpur was bought. The fact that the sale-proceeds in 1917 were divided equally between all the members shows that the provisions of Ex. H were not followed with regard to the shares to which each member was entitled. It is argued that a family arrangement should be given effect to even in cases where its purpose is not for settlement of a dispute and the cases of William v. Williams (1857) 2 Ch. A. 291 : 36 L.J. Ch. 419 : 19 L.T. 92 : 13 W.R. 657 Helan Dasi v. Durga Das Mandal 4 C.L.J. 323 and Sri Gajapati Radhika Patta Maha Devi Garu v. Sri Gajapati Nilamani Patta Maha Devi Garu 13 M.I.A. 497 : 14 W.R.P.C. 33 : 6 B.L.R. 202 : 2 Suth. P.C.J. 365 : 2 Sar.P.C.J. 601 : 20 E.R. 637 as well as the case of Rama Bahadur Sen v. Ganesh Bhagat 73 Ind. Cas. 542 : 2 Pat. 559 : AIR 1924 Pat 49 : 5 P.L.T. 255 are relied on.

In this case, however, the question is whether the family was re-united and whether the plaintiffs would be bound by a deed which was not executed to settle any disputed or doubtful claim or to purchase peace in the family and which was not acted upon and which was not to their advantage and to which they were not parties. I think it is clear that they could not be. Then it has been argued that the document, Ex. H, might be taken to be a gift of properties to the branches of Jogi and Sama which would be binding on the plaintiff. There is nothing, however, to lead one to consider that it was intended that there should be any gift to these branches.

In my opinion the decision of the lower Courts should be upheld. I have no doubt that there was a separation of the branches before the execution of Ex. H and that Ex. H was never acted upon or probably ever intended to be acted upon. I am of opinion, too, that the properties are of Gobinda and Bairagi and were in their possession. The appeals must be dismissed with costs.

Fazl Ali, J.

I agree.