Nana Ojha and Others vs Prabhudat Ojha and Another

Jwala Prasad, J.—This appeal arises out of a suit for partition between the members of the same family. The following genealogy will show the relationship of the parties:

Gopal Ojha. (died in 1313) (1906) at the age of 80 | ---------------------------------------------------------------- | | | | Nana Prabhudat Brahmadat Karmadat Ojha Ojha Ojha Ojha defend- plaintiff died in 1302 died in 1308 ant No. 1 (1895) leav- (1901) leav- No. 1 | ing his ing two | Biswanath widow Jaga- widows | Ojba tarni Ojha in Phoolbati | Plaintiff alive. Ojhain alive | No. 2. and Jog- | Maya Ojhain | and a son | Dhirsjya- | Nath Ojha | (who died | childless). | ------------------------------- | | ---------------------------------------- | | | Kishore Ojha Harnandan Ojha Makabir Ojha defendant defendant defendant No. 2 No. 3. No. 4. | | | | ---------------------------- | | | | | | Panchanand Ojha Jainand Ojha | | alias alias | | Babhan Ojha Bhonu Ojba | | minor defendant minor defendant | | No. 8 No. 9. | | | ----------------------------------- | | | | | Kulanand Ojha Tulanand Ojha Gunanand Ojha | | defendant defendant | alias No. 6 No. 7 | Babaji Ojha minor. Minor. | defendant | No. 5 | minor. | | ----------------------------------- | | Chote Lal Ojha Chanu Lal Ojha alias minor Sitanand Ojha defendant No. 11. minor defenant No. 10

Prabhudat Ojha (plaintiff No. 1) and Nena Ojha (defendant No. 1) are brothers, plaintiff No. 1 is the father of plaintiff No. 2. Defendant Nos. 2 to 4 are the sons and defendants No. 5 to 11 are the grandsons of defendant No 1. These defendants Nos. 1 to 11 are the principal defendant first party in the case.

Shorn of the details the plaintiff''s case as laid in the plaint is that Gopal Ojha, the common ancestor of the family, had four sons: Nena Ojha, defendant No. 1, Prabhudat, plaintiff No 1 and Brahmadatt Ojha and Karamdat Ojha. They were all members of a joint Mitakshara family of which Gopal Ojha was the karta Brahmadat Ojha died while he was a member of the joint family, in 1302 (1895): similarly, Karamdat Ojha died in 1308 (1901). The former left a widow Jagatarini Ojhain who is alive, and the latter two widows Phoolbati Ojhain (alive) and Jogmaya and a son Dhairajya Nath Ojha who died childless. The surviving members of the family continued to be joint. Gopal Ojha died in 1313 (1906) and on his death first plaintiff and the defendants first party came into possession of the entire joint family property by survivorship. Nena Ojha from the lifetime of his father (Gopal Ojha) being the eldest son acted as the karta of the joint family of the plaintiffs and the defendants first party and from time to time acquired properties with the joint family fund. The plaintiffs have got half share in the properties described in Schedules I to VI. On 21st November 1914, the defendant No. 1 being a shrewd and cunning man and taking advantage of the simplicity of plaintiff No. 1 got an ekrarnama (Exhibit 2) executed by plaintiff No. 1 stating that it was a Mukhtearnama and that it would be necessary to enable defendant No. 1 to look after the interest of the family during the Survey and Settlement Operations, and the plaintiff No. 1 having confidence in defendant No. 1 did not aquaini himself with the contents of the document and signed and executed the same beleiving it to be a Mukhtearnama, that recently taking advantage of his management, defendant No. 1 began to sell the joint family properties without any family necessity and to appropriate the income therefrom, that the plaintiff then thought it wise to become separate from the defendant first party and asked defendant No. 1 to partition his half share and to render an account of the receipts and disbursements during the period of his management, that the defendants refused to partition stating that the plaintiff''s share amounted to 1/4th of the family properties and referred to the said ekrarnama of the 21st November 1914 as having been executed by the plaintiff, that the plaintiff then took a copy of the document from the Registration Office and cam a to know of the fraudulent recitals therein, and hence the plaintiff instituted the suit for partition by filing his plaint on 1st February 1919, claiming partition of the properties by metes and bounds and to have khas possession thereof to the extent of 8 annas as his share in the properties.

Defendants Nos. 12 and 13 are defendant second party and have been impleaded on the allegation that defendant No. I has executed two koba-las in their favour without any legal necessity with regard to the properties in Schedule VII and property No. 7 in Schedule II, respectively. These defendants have not entered appearance in the case. The defendants Nos. 14 and 15 are alleged to be the f arzidars of some of the properties in suit. Defendant No. 14 has filed a separate written statement admitting that he is the farzidar of defendant No. 1 with respect to one property and of defendant No. 4 with respect to another, the former belonging to the family of the defendants first party and the latter exclusively to defendant No. 4. Defendant No. 15 has not entered appearance. Defendants Nos. 3 and 4 have filed a joint written statement to the same effect as the written statement of their father, defendant No. 1. The guardian ad litem of the minor defendants Nos. 4 to 11 has filed a separate written statement on the same lines. Thus, the written statement of defendant No. 1 is the chief defence in the case. He pleads limitation and want of cause of action His material allegations are inter alia that plaintiff No. 1 became separate in 1305 (1898) from his father Gopal Ojha and his brothers Nena Ojha defendant No. 1, and Karamdat Ojba, Brahmadatt Ojha having died in 1302 (1895) and out of the family properties took the properties in village Pota and some brit lands representing his 4-annas share and began to live with his family at Pota where he used to live even from before his separation and partition; that he had no concern with other properties of the family which fell to the share of defendant No. 1 and his brother Ka-ramdat Ojha; that the sons of defendant No. 1 acquired properties with their own private funds which are in their separate possession as their kosal (self-acquired) properties; that the properties which defendant No. 1 sold to the defendants Nos. 12 and 13 were his own private properties with which the plaintiffs have no concern whatever. In his written statement the defendant further relied upon the ekrarnama (Exhibit 2) in support of the separation of plaintiff No. 1 and the allotment of the aforesaid properties in village Pota and the brit lands as his share, stating that it was executod by plaintiff No. 1 of his own free will and choice with a view to become united with defendant No. 1.

Upon the pleas taken by the defendants, nine issues were framed in the Court below. Issues Nos. 1 to 3 and 7 were decided in favour of the plaintiffs and they no longer arise in this appeal. The remaining issues are as follows:

Whether plaintiffs form members of a joint Hindu family with the defendants first party as alleged by the plaintiffs? Are the plaintiffs entitled to the partit on prayed for?

Whether there are any properties joint amongst the plaintiffs and defendants first party, what are the properties liable to be partitioned and what is the share of the plaintiffs in the same?

Whether the ekrarnama dated 21st November 1914 is fraudulent and void as alleged by the plaintiffs?

Whether defendant No. 1 is liable to render account to the plaintiffs?

To what relief, if any, are the plaintiffs entitled?

All these issues were decided by the Court below in favour of the plaintitfs. The Court below held that the plaintiffs and the defendants were joint in family and properties and that the ekrarnama (Exhibit 2) dated the 2ist November 1314, is fraudulent and null and void. Accordingly, the Subordinate Judge decreed the plaintiffs suit directing partition of the properties, allotting to the plaintiffs 8 annas share therein. He also directed the appointment of a Commissioner to effect partition and to take accounts from each party with regard to the properties and the kar bar in their charge from 1313. Aggrieved by this decision the defendants have appealed to this Court.

The first question for determination in this appeal is as to whether there was any separation among the members of the family as alleged by the defendants. The onus to prove separation lies upon the defendants,, the natural presumption of the Hindu Law being in favour of the family being joint. The parties have adduced both oral and documentary evidence.

[His Lordship then discussed the oral and documentary evidence and came to the conclusion that in 3300 Prabhudat had separated himself from the family and had taken Pota as his share of the family properties, and proceeded.]

At that time his son Biswanath Ojha, plaintiff No. 2 was not in existence. According to the statement of Prabhudat he was born sometime in 1309, or 1310. According to the statement of Nena he was born in 1306 or 1307. In any case, he was not in existence at the time of the partition whether it took place in 1300 or 1305. Prabhudat died during the pendency of this appeal, and his son Biawanath Ojha has been substituted in his place as the sole respondent. He is bound by the statement contained in the ekrarnama u/s 21 of the Evidence Act as a statement of his predecessor-in-interest in the properties in question. The ekrarnama is, therefore, a binding document, this was executed by Prabhudat and Nena, the karta of the family of the other defendants, who were his descendants. It is admitted that Nena is still the katra of the family. The ekrarnama is not impugned by the defendants as being in any way fraudulent or in excess of the authority of Nena. On the other hand, the plaintiff states that the document was executed bona fide.

Nothing has been shown in this case why this document, executed by Nena Ojha as the karta of the family, should not bind his descendants.

Now what is the effect of this document; Mr L.N. Singh on behalf of the plaintiffs contends that the document purports to effect a reunion of the two brothers Nena and Prabhudat, as to restore them to the original state of jointness and that there was a fusion of all the properties which were originally ancestral, and those which were acquired before, during and after the separation and re-union. For a re-union two things are essential; firstly, that one can re-unite with his father, brother or paternal uncle, in other words, the re-union is restricted to these three classes of cases only. The text of Brahaspati,

He who being once separated dwells again, through affection with his father, brother or paternal uncle is termed re-unite.

has been so interpreted by the Calcutta High Court in Basanta Kumar Sinha v. Jogendra Nath Sinha [1905] 33 Cal. 317 as the Law of Mitakshara as administered in this Province; secondly, the re-union must take place after separation so that the parties seeking to re-unite must have separated before the reunion. Nena and Prabhudat were brothers and, as held above, Prabhudat had separated in 1300,Fasli and therefore there could be a valid reunion between them in 1914,when the ekrarnama in question was executed. The effect of a re-union is to place the united co-parceners in the same position as they would have been in, had no partition taken place and the property of the united members stands on exactly the same footing as that of members who have always been undivided so that upon the death of any one of the re-united members his share will pass by survivorship to the remaining members and will not get into the hands of any divided members so long as there are undivided members in existence; for instance, when two brothers re-unite, on the death of one of them without male issue, his estate passes by survivorship to the united members instead of devolving upon his widow or daughter, which would have been the case had he not re-united. The Madras High Court had taken a contrary view at one time; it was of opinion that before partition the members of the joint Hindu Mitakshara family are joint tenants and after partition they are sole tenants with respect to the properties allotted to their shares and after re-union they become tenants-in common, holding their shares in severalty so that after the death of any one of them its share passes by descent, and not by survivorship. This view was based upon the idea that after partition the shares of the members become ascertained and consequently after re-union their shares remained so ascertained, the re-union only destroying the exclusive right which by separation the member had acquired in the property which had fallen to his share. This view was now been abandoned in the Madras High Court, and in the case of Ramasami v. Venkatesam [1892] 196 Mad. 440, it was ruled that in the case of re-united coparceners property passes by survivorship.

As regards the effect on re-union the ekrarnama states as follows:

Now it is the wish of us, the defendants to become again joint in family and property and come and remain jointly in possession and use of the entire family properties. But the share of me, Nena Ojha and my sous shall be 12 annas and that of me, Prabhudat Ojha and my son Biswanath Ojha 4 annas in the joint family properties. We have become joint again under the above stipulations. The said three widows shall get maintenance out of the 12 annas share of me Nena Ojha and my sons. We, Nena Ojha and Prabhudat Ojha, shall remain joint in family during our lifetime or during the lifetime of any one of us and we shall never effect partition. After the death of us, the declarants Nena Ojha and Prabhudat Ojha, when our sons will partition their shares among themselves Keswar Ojha, Harnandan Ojha, Mahabir Ojha sons of me declarant No. 1, shall get each four-annas share; to Biswanath Ojha, son of me, declarant No. 2, the remaining 4 annas share. All the brothers (cousins) shall get an equal share of four-annas each. Though some of the family properties stand in the name of one declarant and other properties in the name of the other declarant and though in future also properties may be acquired in the name of any of the declarants or of his issue. All these properties shall be joint and at the time of the aforesaid partition each heir i.e., Kishwor Ojha, Harnandan Ojha and Mahabir Ojha, sons of me declarant No. 1, and Biswanath Ojha, son of me declarant No. 2, shall get 4 annas share in all the family properties.

Mr. Mitra on behalf of the defendants-appellants contends that the aforesaid terms of the ekrarnama do not effect a valid reunion in the estate of the two brothers and they do not, therefore, become co parceners of a joint Mitakshara family. He says that the ekrarnama only purport to enable the two brothers to live jointly and to be in joint possession of the properties, but it does not make them joint tenants or co-parceners with respect to their properties. On the other hand, it keeps their shares in the properties, of 12 annas as was ascertained at the time of the separation and their joint enjoyment of the properties is restricted in be proportion of the shares aforesaid. He says that, in order to constitute a re-union after partition, there must be, to use the expression of Seton Karr, J., in Gopal Chunder Deghoria v. Kenaram Degharia [1687] 7 W.R. 35, a junction of estate which was subsequently adopted in the case of Rishi Mendli v. Sundar Mendli [1910] 37 Cal. 703, where their Lordships of the Calcutta High Court say:

In order to constitute a re-union there must lie a junction of estate with an intention to reunite.

Seton-Karr, J. in the aforesaid case of if opal Chun Jar Deghoria v. Kenaram Deghoria [1687] 7 W.R. 35, refers to the text of Brihaspati.

the re-union must be a re-union of property: "the property which is mine is thin, and that which is thine is that which, is thine is mine,"

According to the text, therefore, the parties should not only live in one mess (ekenne) and in one place (ektre) and like one family (ek paribar nyaye) but they should again join each other''s share of the property and remain in possession. It depends upon the evidence in each case as to whether the parties have re-united as stated above. The ekrarnama in question set forth above, no doubt, declares that Wena Ojha and Prabhudat Ojla would become joint in family and property and would jointly be in possession and use of the family properties, but it does no� obliterate the shares of the two brothers of 12 annas and 4 annas respectively which had existed before the re-union. It, therefore, does not amalgamate the two shares but keeps them separate so that they are not able to say to each other, as is required by the text of Brihaspati.

The property which is mine is thine, and that which is thine is mine.

Again, in an ordinary case of reunion, the widows of the two brothers Brahmadat and Karmdat would have been entitled to maintenance out of the joint property, the share formed by amalgamating the shares of both the brothers. The agreement, however, was that these widows would get their maintenance out of the 12 annas share of Islena Ojha and his sons. On partition, after the death of Nena Ojha and Prabhudat Ojha, among their respective sons, the divisions of the property would not be according to the shares they would have in a joint Mitakshara family but would be according to the share which their respective fathers had in the property before the reunion. Now, the reunion by a written agreement was and hence the rights of the parties will be determined in accordance with the terms thereof. In the case of Raja Setrucherla Ramabhadra v. Raja Setrucherla Virabhadra Suryanarayana [1899] 22 Mad. 470, three members of a joint Hindu family agreed by a deed that their estate would remain joint and that the eldest of the three should manage the family estate for 12 years and after an account being rendered by him of the profit and loss a division among them should be made. Their lordships of the Privy Council held that in a suit for partition commenced by one of the brothers and carried on by his representatives, the eldest brother was liable on the footing of an ordinary agent accountable for receipts and expenditure, and that he was not in the position of the managing member of a joint family liable only to account as to the then existing estate of the property. In other words according to their Lordships the effect of the agreement was not to give the eldest brother the status of a karta of the joint family bat to render the eldest brother accountable for receipts and expenditure as if he was a mere agent. Their Lordships observed:

It is not a simple agreement to postpone the partition and so to leave the family status of the brothers untouched. They are put upon a new footing. The defendant has the management secured to him for an absolute term of 12 years and though, during that term the others would not be precluded from demanding division, they could only do so on condition of giving up profits and bearing any loss occasioned by their premature withdrawal. Moreover, the division when it comes is to be effected after settling the profit and loss accruing to that date. That is hardly the language which would have been used if the parties had meant nothing except that they should divide the corpus of the estate as it stood at the end of the term whether it has increased or decreased.

Therefore, I agree with the view urged by Mr Mitra that there was no re-union in the sense that the two brothers, Nena Ojha and Prabhudat, became co-parceners of a joint Mitakshara family. Prabhudat wants partition of the properties and he is entitled to the share in the properties as mentioned in the ekrarnama whether he was a co-parcener or was only a ten-ant-in-common. That share is 4 annas of the family properties. That was his share at the time of separation in 1300 which his son, the sole surviving respondent now before us, is bound to take. He cannot, therefore, get more than 4 annas and his claim for 8 annas in the family properties as if he was a co-parcener with defendant No. 1 Nena Ojha, must, therefore, be dismissed.

The question then arises as to the properties in which he is entitled to have his share. Mr. Mitra says that he is entitled to get only 4 annas in the properties which were allotted to him at the separation in 1300, that is, the properties set forth at the beginning of the ekrarnama, namely, the entire properties lying in village Pota consisting of kast land of 10 bighas held in zarrehan brit bandobasti measuring 2 bighas 10 cottahs and Milkiyat property comprising 15 bighas of land Mr. Mitra says that he is entitled to his own acquisitions subsequent to the separation in 1300, but that he is not entitled to the properties which were held by Nona Ojha and his branch after partition and the properties which were acquired by that branch during separation and after reunion up to the date of the suit. So far as Nona is concerned, undoubtedly he agreed to give 4 annas share to the plaintiff in all the family properties and in all the properties which might have been acquired in his own name or in the name of any of his issues, the defendants Nos. 2 to 11 in the case. He is a party to the ekrarnama and is bound by the terms thereof. Mr. Mitra, however, says that the terms of the ekrarnama are not binding upon the descendints of Nena, the other defendants in the case, inasmuch as they were not parties to the ekrarnama and that Nena had no right to agree to give away shares in the properties which by separation were allotted to them and those which were subsequently acquired by that branch. Mr. Mitra says that the other defendants have been all along joint with Nena as members of a joint Mitakshara family and they had a vested interest therein which Nena had no right to destroy by the agreement in question or to transfer in any way. Now, the court below has held, and its finding is supported by evidence, that all the properties which stand either in the name of Nena or his descendants were acquired out of the income of the joint family and that they appertained to the joint family properties of Nona''s branch. An attempt has been made in this case to show that some of the properties standing in the name of Kishore Ojha, Harnandan Ojha and Mahahir Ojha were acquired out of their kosal (self-acquired) properties alleged to have been carved out of the joint family properties and given by their father, defendant No. 1 the karta of the family to his sons for their private and personal or pocket expenses. Further, it was attempted to show that Kishore and Harnandan had means of their own out of which they acquired properties in their own names without the help of the joint family properties. It is said that Kishore and Harnandan earned some money by service in Nepal and Bettiah Raj respectively. There is some evidence to show that Kishore and Harnandan were out on service as alleged, but how long they were in service and what their pay was and what they actually earned has not been disclosed. At one place it is simply said that Harnandan used to get Rs. 40 to Rs. 65. It has also not been shown that any of the properties were acquired out of their income from service, nor that any of the properties standing in the names of these sons were acquired out of the Kosal (self-acquired) properties, assuming that such properties could be treated as private and personal properties of these sons. Mr. Mitra admits that there is no such evidence connecting the acquisition with the separate income of the members of this family. The onus of proving the acquisitions by their self-exertion and out of their separate means was upon them and they failed to discharge that onus. Therefore, the finding of the Court below must be accepted that these properties standing in the names of the sons of Nena Ojha must be deemed to be the joint family properties of the branch of defendant No. I in which, according to the terms of the ekrarnama, Prabhudat was declared to have 4 annas share.

The question then is whether the descendants of Nena Ojha are bound by the terms of the agreement executed by Nena to which they were not parties. They were members of a joint Mitakshara family and admittedly Nena was and is their karta. He had a right to deal with the family properties and to enter into any agreement with respect thereto unless the act is impugned as not being for the benefit of the family or without consideration. It must be stated at the outset that no such case has been made out in the written statement nor in the evidence. It is not the case of the defendants that the agreement in question was tainted with fraud, undue influence, coercion mistake or misunderstanding. On the other hand, the agreement has been set up by the defendants as a bona fide transaction. The agreement is a mutual one between Nena and Prabhudat. Nena by this agreement obtains for himself and his sons 12-annas in the properties acquired by Prabhudat, for in these properties also the agreement states that Prabhudat will have only 4-annas, whereas 16-annas belonged to him exclusively. Therefore, as a return for the 4 annas share given to Prabhudat in the acquisitions made by Nena and the members of his branch, Nena Ojha has secured by this document 12 annas share in the properties acquired by Prabhudat. There was a consideration and a good consideration. It may be, but there is no evidence to show, that now Nena Ojha and his branch may not get an equal return and that the transaction has not turned out to be a good bargain But these are not the considerations which will affect the terms of the agreement. There was, as observed above, a good consideration and on account of mutual benefit the parties came to the agreement as to how their acquisitions will be dealt with. Therefore, the document was executed for consideration for the benefit of the family. Nena Ojha as karta of the family had a right to enter into this agreement with respect to the properties, and his descendants, the defendants Nos. 2 to 11 in the case, are bound by that agreement. This agreement although executed wit i the full knowledge of defendant Mahabir and after, discussion with him, as he admits in his evidence, has not yet been challenged in any Court of Justice although five years had elapsed since the execution of the ekrarnama in 1914 when the plaintiff brought the present suit in 1919 and the right to have the deed set aside is barred by limitation.

It is then said that the akrarnama was not acted upon. The defendant states that as his son did not agree, effect was not given to it. Defendant Mahabir says that when he came to know of the ekrarnama he objected to it, but as his father insisted on the execution of the document he left him to do whatever he liked. This implies that ultimately he tacitly consented to abide by what Nena would decide, that is, the terms of the ekarnama, and Nena Ojha agreed to the terms thereof. Therefore, the defendant Mahabir also agreed to the said terms. The defendants want to abide by the ekrarnama so far as it contains admissions and statements in their favour, and to resile from the terms which gave a share to the plaintiff in the acquired properties. This they cannot be permitted to do. In the circumstances, I accept the evidence that the parties acted upon the ekrarnama after its execution and became joint in the properties. In the case of Balkishen Das v. Ram Narain Sahu [1903] 30 Cal. 738 it was held that ekrarnama executed by the members of a joint family, some of whom were minors, was binding on the minors If it was unfair or prejudicial to their interests, it was for minors on attaining majority to have it set aside so far as it concerned them. This upholds the principle that all the members of the family, minor or adult, are bound by the act of the manager or karta of the family, unless they prove that the karta entered into transactions which were prejudicial to their interests and not for their benefit. This they have failed to establish in this case.

In the case of Prankishen Paul Chowdhry v. Mothooramohun Paul Chowdhry [1865] 10 M.I.A. 40 it was held that a property acquired during the separation by a member of the family will be presumed after the re-union, to have been acquired out of the funds of the joint estate and that re-united members will be entitled to a share in it.

As to the properties acquired after re-union, there is nothing to show that they were not acquired out of the joint properties belonging to the two brothers and the presumption will be that they were acquired with the income of such properties. Therefore, in those properties Prabhudat obviously has a right to claim his share as mentioned in the ekrarnama. I, therefore, hold that Prabhudat is entitled to 4 annas share in all the properties standing in the name of Nena himself or his descendants whether those properties were acquired before, during or after the separation and re union, and that his share in those properties is 4 annas and that of Nena and his branch 13 annas. All these proper lies, were thrown into a joint stock of the re-united members, that is Nena Ojha and Prabhudat Ojha and their sons.

The decree of the Court below must, therefore, be vacated and in lieu thereof a decree for partition should be made declaring the share of Biswanath to be 4 annas and that of Nena and his descendants 12 annas. The parties are not entitled to render any accounts to each other with respect to the deilings with the properties which they ware in possession of after separation in 1300 (1893) up to the date of the ekrarnama of the 1st November, 1914. The ekrarnama is silent upon the question of accounting, but as the properties were in joint possession of the parties they must under to each other accounts of the properties which were dealt with by them from 1914, the date of the ekrarnama up to the date of possession being delivered in the course of partition proceedings. The partition will be effected by a Commissioner appointed by the Court below. The assets found after accounting will be divided in the proportion of 4 annas and 12 annas as stated above. The plaintiff had claimed 8 annas share in the properties, whereas he has got 4 annas only. This is a partition case and the costs ultimately will be determined after the final decree for partition will be made. The costs incurred by the parties in this litigation up to the date the possession is delivered a according to the shares aforesaid should be borne by the estate in the proportion of 4 annas payable by the plaintiff and 12 annas payable by the defendants, and tin amount thus ascertained will be dealt with in accounts that the Commissioner will be directed to take.

Ross, J.

I agree.