Srimathi Nrityamoni Dassi and others vs Lakhan Chandra Sen

Facts - The two suits which have given rise to the present appeals were instituted, one in November 1904 in the High Court of Calcutta, in its ordinary original civil jurisdiction, the other in the Court of the Subordinate Judge of the district of 24-Pergunnahs in Bengal.

The parties to this protracted litigation, with the exception of the appellant Nrityamoni Dassi and the other female defendants, are the descendants of one Guru Charan Sen, a Hindu inhabitant of Calcutta, who died in the year 1872, leaving him surviving three sons named respectively Baney Madhub Sen, Money Madhub Sen and Chuni Lall Sen, and a widow, Surat Kumari Dassi. The appellant is the widow of Baney Madhub who died in 1897.

Guru Charan Sen appears to have been at one period of his life a very wealthy man, and was possessed of considerable house property in Calcutta, besides some lands in the village of Panihati in the district of Nuddea. Among the house property were eight houses situated in Banstollah Street and its vicinity. Besides these and several others he owned 102, Cotton Street, and 27, Burtollah Street.

Between 1855 and 1857 Guru Charan Sen became heavily involved in debt, one of his principal creditors being James Church, Junr., and Co., to whom he had apparently been a banian. Early in 1857 he appears to have executed in their favour a bond by which he hypothecated, among other property, "the eight houses," subject to certain prior encumbrances created in favour of one Shama Charan Mallick, in whom also he was heavily in debt; and in a suit brought immediately thereafter on the bond he confessed judgment. Thereupon, on the application of another creditor, Guru Charan Sen was adjudicated an insolvent and all his property vested in the Official Assignee. This was followed by a suit at the instance of Shama Charan Mullick in respect of his debt. The Official Assignee then brought his action to get the insolvent''s properties into his hands. All three suits were referred to arbitration, and under the award made in those proceedings Shama Charan Mullick obtained priority. The Official Assignee, in accordance with the directions contained in the award, sold most of the houses belonging to the insolvent, inclusive of 102, Cotton Street, and 27 (now numbered 34), Burtollah Street. But for some unexplained reason the "eight houses" never came into the possession of the Official Assignee, and, although the award contained a direction to that effect, they were never brought to sale. These eight houses unquestionably belonged to Guru Charan Sen, subject to certain payments out of the rents and issues for the maintenance of two idols, and he appears to have retained possession of them until his death in November 1872, when his three sons succeeded to the same. No application, however, for the substitution in the Collector''s Register of their names as owners in place of their father was made until 1877, when they were recorded as shebaits, the ordinary designation for a person holding property dedicated for, or charged with, the maintenance in any way of Hindu religious worship. But the income arising from the eight houses - save as to a small portion which was spent for keeping up the two family idols - was applied towards the general expenses of the joint family.

Chuni Lall, the third son, died in 1881, leaving a widow, named Kusum Kumari Dassi, and several sons, of whom Nemya Charan is the eldest. But his death made no difference in the mode of dealing with the income of the eight houses or in the general condition of the family, which was that of an ordinary Hindu joint family, of which Benoy Madhub, the eldest male member, was the karta.

The state of things continued until 1891, when the events took place which gave rise to the litigation of 1896 and also form the subject of the present dispute.

Mr. Ameer Ali :- (After stating facts as above, the judgment proceeded.)

As already stated, 102, Cotton Street, and 27, Burtollah Street, also belonged to Guru Charan Sen. These were put up to sale by the Official Assignee. One was purchased by Shama Charan Mullick, the other by one Heera Lal Seal for Shama Charan Mullick, and to whom Heera Lal appears to have afterwards transferred it by deed. Why this devious course was adopted in respect of these houses is a matter of inference. Shama Charan Mullick is also stated to have bought up the claims of most of the other creditors. In 1861 he conveyed 102, Cotton Street, and 27, Burtollah Street, to Surat Kumari Dassi, the wife of Guru Charan Sen; and one of the main questions in the present litigation is whether she took them as absolute owner or merely benami for her husband and the joint family, of which he was the karta and the head.

Between 1888 and 1890 the two brothers Baney Madhub and Money Madhub found themselves heavily involved in debt; their banianship business had brought them no profit; Money Madub had already suffered imprisonment for debt, and evidently the creditors were pressing their demands. To add to these difficulties, differences and disputes had commenced in the family chiefly owing to the indebtedness of the two brothers; whilst the mother, Surat Kumari Dassi, in whose name, either as absolute owner or in trust for the family, some of the properties stood, was getting very old. The sons of Guru Charan Sen had before them the fate of their father who, though he had, no doubt, contrived to save some part of his possessions from the general wreck of his fortune, had died an undischarged bankrupt. It is easy in these circumstances to imagine why it was considered advisable by the principal adult members to devise some method to shelter the family properties remaining in their hands from their creditors. It is not clear whether Baney Madhub was the prime mover in evolving the scheme, as was alleged afterwards by Money Madhub, but both took an equal part in carrying it out. This was indubitably, it might be said admittedly, the motive cause for the execution of the documents, with the nature and effect of which their Lordships have to deal in these two appeals.

Early in 1891 a solicitor of the name of Netye Dass Dey was instructed to draw up certain deeds by which Baney Madhub. Money Madhub, and the representatives of Chuni Lal were to transfer absolutely the "eight houses" to Surat Kumari Dassi, who on her side, in consideration thereof, was to convey in three separate parcels the houses which stood in her name 102, Cotton Street, the large family residence of Guru Charan Sen, had by this time become divided into three separate premises bearing separate municipal numbers 115, 116 and 117, Cotton Street - the first being occupied as the joint family dwelling house. Another house, No. 111, had been acquired, in the name of Surat Kumari Dassi, and was added wholly or partly to the baitak-khana, or male reception room, of No. 115.

To resume the narrative of events, leading to the litigation in which the family has been involved since 1896, Netye Dass Dey carried out his instructions and drafted the required deeds. Evidently these were not considered sufficient to answer the object in view, and another well-known solicitor of the Calcutta High Court, named Mr. Nemye Charan Bose, was consulted on the subject, and he appears to have been of opinion that the projected transfer of the "eight houses" to Surat Kumari could not be sustained against the claims of the creditors. He accordingly prepared another deed, which was approved, and on the 30th June 1891, Benoy Madhub and Money Madhub executed this document, called by the parties in these proceedings "the deed of covenant," by which they disclaimed all right to and interest in the eight houses and acknowledged that their mother, Surat Kumari Dassi, was the real owner, and that they had been realizing the rents of this property on her behalf. They further stated that, as she was desirous of taking over its charge herself, and in consideration of her not demanding the account from them of their stewardship, they were making this declaration in her favour. Nemya Charan Sen, the eldest son of Chuni Lall, who was sui juris at the time, did not join in the deed, though he witnessed it. There is no suggestion of any kind in the document that the "eight houses" were debutter.

On the same day, viz., the 30th June 1891, they executed another document, by which they substituted their mother as trustee in their stead in respect of a Government of India promissory note for a sum of Rs. 5,000 held by the Official Trustee, and of certain lands in the village of Agrapara and which had vested in them under a trust-deed executed by their grandmother, Surjamoney Dassi, the mother of Surat Kumari.

By the same deed they assigned or purported to assign to her the sole management of the ancestral lands at Panihati, over part of which their grandfather, Bissumber Sen, the father of Guru Charan, had erected a dwelling house and a thakoor bari (temple), where he had placed two family idols. This property was held by Guru Charan during his life, and on his death had devolved on his sons. In the document under reference it was recited that the management of the temple and of the worship was conducted by them until then in conjunction with their mother.

Contemporaneously with these two deeds, Surat Kumari executed three separate deeds of gift; by one she gave to Nrityamoni Dassi, the wife of Boney Madhub, in trust for herself and her sons, 116, Cotton Street; by the other, 117, Cotton Street, and 34, Bartollah Street, to Kusum Kumari Dassi, the widow of Chuni Lall, "and her sons and grandsons" in succession; and by the third, No. 111, Cotton Street, to Baney Madhub.

On the 27th July 1891, she executed in favour of Manjari Dassi, the wife of Money Madhub, and of his two sons by a predeceased wife, and of Brajo Sundari Dassi, the wife of his eldest son, Lakhan Chunder Sen, a deed of gift in respect of 115, Cotton Street.

She thus allotted to the three branches of the family the property which under the transfer by Shama Charan Mullick stood in her name, and to which, according to the appellants'' case, she was absolutely entitled. The reason why the gifts were made to the female members of the three branches is obvious. The object plainly was to avoid the possibility of the houses in question being attached and sold at the instance of the creditors of Guru Charan''s sons.

It is to be observed that parts of all three houses appear to have been let out to tenants, and that although No. 115 was allotted to Money Madhub''s branch, Baney Madhub''s family, with Surat Kumari, continued to reside there for some time at least, though in 1892 Nrityamoni herself, with her mother-in- law, Surat Kumari, appears to have moved to Panihati.

On the 18th January 1892, Surat Kumari executed a deed of trust, by which she dedicated the "eight houses" to the worship of certain idols named therein, and appointed Baney Madhub, his wife Nrityamoni, and Saroda Sundari Dassi, the widow of one of his sons then deceased, as trustees of the endowment she purported to create by this document. From this time, it is clear, Baney Madhub began to collect the rents and issues of the "eight houses" to the exclusion of the other two branches. The rent receipts are headed "Estate of Surat Kumari Dassi," and are signed by him for himself and his co-trustee. Bitter disputes naturally sprang up in the family, which finally led to the institution of a suit in the High Court of Calcutta in its original civil jurisdiction on the 21st of December 1896 by the sons of Chuni Lall other than Nemya Charan Sen against Baney Madhub, Money Madhub, Nrityamoni Dassi and Saroda Sundari Dassi. As Nemya had attested the "deed of covenant" he was joined as a defendant. Their mother, Kusum Kumari, was made a party after the action was launched.

The plaintiffs charged that the statements in the "deed of covenant" of 1891 were wholly false, that Surat Kumari had no title or interest whatsoever in the properties to which it related, that it was concocted with the object of sheltering the ''''eight houses" from the creditors of Baney Madhub and Money Madhub, that said Surat Kumari had no right to dedicate the said houses, and that the "deed of covenant" together with the deed of trust of the 18th January 1892, were wholly inoperative against them and did not affect their rights in the properties in question. And they asked that their share and the share of their brother, Nemya Charan, may be ascertained, and the "nature and extent of their right may be declared."

Money Madhub did not enter any defence, but in an affidavit relating to the discovery of documents in his possession, made on the 1st May 1897 he alleged that he had executed the "deed of covenant" under the undue influence of Baney Madhub and Surat Kumari Dassi, both of whom had assured him that under the arrangement, all the sons and representatives of Guru Charan Sen would remain in possession of the "eight houses," and that he had no intention of defrauding his creditors, or depriving the sons of Chuni Lall of their rights in the said properties.

Money Madhub died during the pendency of the suit, and his sons were substituted in his place, and Manjari Dassi was brought on the record as the mother and representative of her son Purno, who had died after Money Madhub.

The sons of Money Madhub, whilst repudiating the charges made against their father, associated themselves with the claim made by the plaintiffs in that suit, and asked that their rights and interests might also be declared in those proceedings. The contesting defendants, Baney Madhub, Nrityamoni and Saroda Sundari, filed a joint written statement in which they traversed the main allegations of the plaintiffs regarding the object with which the documents referred to were executed in 1891.'' With respect to the property in dispute, they admitted that it belonged originally to Guru Charan Sen, but they alleged that it was assigned by him to James Church, Junr., and Co. in satisfaction of their claim, and that Shama Charan Mullick purchased the same from them with moneys belonging to and paid to him by Surat Kumari Dassi, that Shama Charan Mullick also bought at the Official Assignee''s sale, 102, Cotton Street, and 27, Bartollah Street, and subsequently transferred all the houses to Surat Kumari, and held them ever since in her own right as absolute owner, consideration for the transfer, in this instance also, being paid by her with her own money.

Baney Madhub died before trial, and his sons were brought on the record as his heirs and representatives. Some of them filed separate written statements in which the allegation about the purchase of the "eight houses" is put somewhat differently, but the variation does not affect the real defence, viz., that the houses were the absolute property of Surat Kumari, acquired with her own money.

The suit came for trial before Mr. Justice Henderson, of the Calcutta High Court, who, after an exhaustive examination of the evidence, held in substance that the "eight houses" never belonged to the mother, that they all along remained the property of Guru Charan Sen, and devolved, on his death, on his three sons, that the "deed of covenant" executed in 1891 was merely with the object of sheltering the "eight houses" from their creditors; and that neither that document nor the deed of trust of the 18th January 1892 affected the rights and interests of the plaintiffs or of the representatives of Money Madhub. He accordingly decreed the claims of the plaintiffs in that suit. He made a similar decree in favour of the sons of Money Madhub.

On appeal, the High Court in its appellate jurisdiction affirmed the findings of Henderson, J., so far as the "eight houses" were concerned, and affirmed his decree in favour of the plaintiffs in that suit, viz., the sons of Chuni Lal, other than Nemya Charan, but differed from him in the opinion, he had incidentally expressed regarding the right of Surat Kumari in 102, Cotton Street, and 27, Bartollah Street, which was not directly in issue in that case. With regard to the claim of Money Madhub''s sons, the learned Judges considered that as they were defendants Mr. Justice Henderson''s decree in their favour could not be maintained. They accordingly varied his decree in that respect, and relegated them to a fresh suit for the relief to which they were clearly entitled. It was unfortunate that the learned Judges did not exercise the power which they possessed under the Code of Civil Procedure, to transpose the sons of Money Madhub from the category of defendants to that of plaintiff''s, and to maintain Mr. Justice Henderson''s decree in their favour. Had they done so they would have spared this family another ten years'' litigation. The mistake was purely technical and could have been set right by a small amendment without the party resorting to a fresh suit.

The appellate decree was made on the 22nd February 1904, and on the 14th November of the same year Lakhan Chunder Sen and his brothers the sons of Money Madhub, brought the present Suit No. 826 of 1904, in the High Court of Calcutta, in its ordinary original civil jurisdiction, for the assertion of their rights to a one-third share in the "eight houses" which had devolved on their father on the death of Guru Charan.

The allegations and charges in the plaint are, like the defence, substantially the same as in the previous suit. The appellant Nrityamoni Dassi, who was the real contesting defendant, raised a further plea that the suit was barred under the Statute of Limitation.

The case was heard in the first instance by Badilly, J., who upheld the defendant''s objection, and dismissed the suit. On appeal, the High Court reversed the decree, and remitted the cause for trial on the merits with the following remarks :-

"The appeal must be allowed with costs both here and in the Court below, and the case must be remitted to be tried out on the merits if, after the contest which took place in the previous suit, the present respondents think that there are still any merits to be discussed."

The case then came before Chitty, J., who, in face of the judgment of the Appellate Court on the question of limitation, held that the plaintiff''s suit was "out of time," as Surat Kumari''s possession was adverse to their father Money Madhub from the 30th June 1891. He also held that they had failed to prove "the benami character of the declaration of trust." He accordingly dismissed the suit.

On appeal the decision of Chitty, J., was set aside, and the plaintiff''s claim was decreed with costs. The present appeal before this Board is by Nrityamoni Dassi, who claims to hold the property under the trust deed executed by Surat Kumari on the 18th January 1892, and the plea in bar of the suit is again urged on her behalf.

As their Lordships concur generally with the reasons given by the Appellate Court for overruling the plea of limitation, they do not wish to prolong the present judgment by dealing with the question at any length. They desire, however, to observe that if the property belonged in fact to Surat Kumari, and was held by her all along in her own right, as has been the defendants'' contention throughout the various stages of this long-drawn litigation in India, obviously no question of limitation arises; neither their father nor the plaintiffs had or have any title to it, and their suit must fail on that ground.

If, however, the "eight houses" never belonged to Surat Kumari, as is now conceded at their Lordships'' Bar, if they always remained the property of Guru Charan Sen and devolved on his sons by right of inheritance, then the declarations made by them in the "deed of covenant," which are now admitted to be wholly false, in no way altered the title. It did not purport to transfer any right: it was only an admission of a right which did not exist. There is no allegation, far less any evidence, that Surat Kumari pretended to exercise any right under that document adversely to the real owners until January 1892. It was after the execution of the trust deed of 1892 that Baney Madhub, purporting to act as one of the trustees, began to collect the rents and issues of the eight houses to the exclusion of the other co-sharers. Limitation would no doubt run against them from that time. But it would equally without doubt remain in suspense whilst the plaintiffs were bona fide litigating for their rights in a Court of Justice. They had in the suit of 1896 before Mr. Justice Henderson associated themselves with the plaintiffs in that action, and had asked for an adjudication in those proceedings of their rights. A distinct issue was framed in respect of their claim to which no objection seems to have been made by the appellant Nrityamoni; and the learned Judge who decided the case pronounced, with reference to their prayer, the following order :-

"The defendants, the representatives of Money Madhub, will be declared jointly entitled to a one-third share in the scheduled properties, and the Official Referee will make similar enquiries with regard to their share and the share of Nemye Charan Sen, as to mesne profits and the deeds, assurances, and other things which may be necessary. These defendants will be entitled to get possession of the shares to which they have been declared entitled."

It was an effective decree made by a competent Court, and was capable of being enforced until set aside. Admittedly, if the period during which the plaintiffs were litigating for their rights is deducted, their present suit is in time. Their Lordships are of opinion that the plea of limitation was rightly overruled by the High Court.

As regards the nature and effect of the deed of covenant of the 30th June, 1891, their Lordships have no hesitation in holding, in concurrence with the High Court, that it was wholly illusory; that it never operated to transfer any rights, nor in fact was it intended to do so; and that it was a mere device for deceiving the creditors of Baney Madhub and Money Madhub, and sheltering the property under their mother''s name by making an acknowledgment of a right which never existed. All the fact and circumstances taken in conjunction with the statements in the document itself contradict the suggestion that it was part of a bona fide family arrangement.

Their Lordships are of opinion that the decree of the High Court in Suit No. 826 of 1904 is right, and should be affirmed.

Their Lordships have kept quite separate the question relating to the right to 102. Cotton Street, and 27, Bartollah Street, which is involved in the suit of Madhu Sudan Sen, brought in the Court of the Subordinate Judge of the 24-Pergunnahs. It arose only incidentally in the litigation of 1896, and in Suit No. 826 of 1904, mainly in consequence of the endeavour on the part of the defendants to confuse the issues by placing the "eight houses" in the same category as the other houses as property acquired by Surat Kumari Dassi with her own money from Shama Charan Mullick.

Madhu Sudan is a son of Baney Madhub, and he brings this suit for a declaration of his right as one of Baney Madhub''s sons to a one-seventh share of 116, Cotton Street, and in the Panahati lands and in respect of the shebaitship of the Agarpara property. He alleges that the deeds of gift executed by Surat Kumari only gave effect to a family partition under which his father received 116, Cotton Street, as his share in the Cotton Street property, and that the transfer to Nrityamoni was wholly nominal.

The Subordinate Judge dismissed his claim with respect to 111, Cotton Street, holding that that property was sold by Baney Madhub bona fide for the satisfaction of the debts of the joint family, for which purpose it was, in fact, transferred to him by Surat Kumari, in whose name it stood. He also held, in substance, that the transfer of 102, Cotton Street, and 27, Burtollah Street, by Shama Charan Mullick to Surat Kumari was really for the benefit of Guru Charan Sen, that she had no beneficial interest in the same, and that the allotments made in 1891 by the several deeds of gift as well as the document of the 18th January 1892 were executed "with the object of dividing the properties of the three brothers in such a way that their creditors might not seize them in satisfaction of their claims," and that Baney Mudhub took 116, Cotton Street, in the name of his wife. He accordingly decreed the plaintiffs'' claim with reference to that property, the Panahati lands and the she-baitship, and his decree has been, with a slight modification, affirmed on appeal by the High Court of Calcutta.

Nrityamoni has appealed, and the sole-question for determination now left in this case is whether the two houses were conveyed to Surat Kumari by Shama Charan Mullick in her own right as beneficial owner, or, to use the Indian technical expression, benami for Guru Charan Sen and the joint family. Their Lordships have repeatedly laid down that in cases where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came. At this distance of time, it is hardly likely that evidence would be forthcoming on either side to establish or rebut conclusively the allegation. The case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts. On the plaintiffs'' side it is contended that 102, Cotton Street, was the family dwelling house, and that Guru Charan had the strongest possible motive to try to preserve it for the family. The Subordinate Judge finds, as a fact, a view which is affirmed by the High Court, that he had means, in spite of his insolvency, to buy it back. From this conclusion on the evidence as it stands their Lordships find it difficult to dissent.

On the defendants'' side, it was urged in the written statements that Surat Kumari had bought these two houses, equally with the "eight houses," with her own money. There was absolutely no evidence in support of this allegation; no books of accounts showing payments, and no vouchers or receipts have been produced, nor is there any suggestion that any such ever existed and were now lost. At a later stage of the case, the difficulties which surrounded the defendants'' allegation were perceived, and it was then suggested that the conveyance by Shama Charan was a voluntary gift to Surat Kumari, who was a connection of his. If it was a gift, it might, as it is contended on behalf of the plaintiffs, as reasonably be a gift to the family in her name.

Guru Charan was an undischarged insolvent; a purchase by him in his own name, or a gift to him in his own name, would have been swept up by the Official Assignee for the benefit of his creditors. What more natural then, it is said, than that the conveyance should be in the name of the wife? In this connection it is to be noted that although Shama Charan Mullick acquired the houses in 1859, and the transfer to Surat Kumari was made in 1861, the possession all along appears to have remained as before with Guru Charan, for neither Shama Charan nor Heera Lal ever took possession of the properties.

It is unnecessary to discuss how far these probabilities and inferences, standing by themselves, would outweigh the ostensible title, for the books of accounts that were produced in the litigation of 1896 and are exhibited in the present suits, kept from 1872, coupled with the circumstances referred to above, leave little reason for doubt that the conveyance of 1859 in favour of Surat Kumari was in reality for Guru Charan Sen and his family. They show beyond any reasonable doubt that the rents and issues arising from these two houses were kept in exactly the same way as the rents of the "eight houses;" that they were entered in the books of the three brothers, for Surat Kumari had no books of her own, and were applied towards the expenses of the family. The inference is irresistible that she was not the beneficial owner of any of the houses.

The mortgages in respect of the houses in question, executed by her by way of security for the banianship of Baney Madhub and Money Madhub respectively do not militate, in their Lordships'' opinion, with this conclusion. As the property stood in her name, the mortgages could only be made by her. It is to be remarked, however, that in almost every instance, Guru Charan Sen was also made a party. Nor do the dispositions she purported to make by her will in 1883 affect the position. Had she died without expressing her wishes as to how the property should be allotted, it would have, in all probability, given rise to a contest. It stood in her name and was open to the contention that it was her stridhan to which the two surviving sons were entitled, to the exclusion of the sons of Chuni Lal who had died in her lifetime.

For these reasons, their Lordships are of opinion that the judgment of the High Court is right and that both these appeals should be dismissed, and their Lordships will humbly advise His Majesty accordingly. The appellants will pay the costs, of the appeals.

Appeal dismissed.

**AIR PC 104 "Girja Bai v. S. Dhundiraj"

(from nagpur)

Coram : 4 LORDS SHAW AND SUMNER, SIR JOHN EDGE AND MR. AMEER ALI.

Mt. Girja Bai, Appellant v. Sadashiv Dhundiraj and others, Respondents.

Privy Council Appeal No.76 of 1914, D/- 19 -5 -1916.

**(A) HINDU LAW - PARTITION - Hindu Law - Partition - Mitakshara Joint family - Suit for partition - Registered notice prior to suit claiming partition - Death of plaintiff pendents lite - Division of status effected - General principles discussed - Difference between severance in status and division of property - Unequivocal declaration of intention to separate effects severance in status.

Where a co-parcener of a Hindu Joint family governed by the Mitakshara law gave a registered notice to have his share partitioned and subsequently filed a suit for partition and possession of his share in the joint property and the defendants did not deny the plaintiff''s right to a share.

Held, that, the registered notice coupled with the suit for partition clearly established an unequivocal and clear expression of intention on the part of the plaintiff to separate himself and enjoy his share in severally and that these acts effected a separation in status so that on his death pendente lite the widow became entitled to continue the suit and get a decree for his share. P. 107, C. 1.

In Hindu Law, partition covers both division of title and division of property. (11 M.I.A. 75 and Mitakshara, Ref.)

Separation from the joint family involving severance in status so far as the separating member is concerned with all its legal consequences, is quite distinct from the de facto division into specific shares of the joint property. One is a matter of individual decision, the desire on the part of one member to sever himself and enjoy his hitherto undefined or unspecified share separately from the others; whilst the other is the natural resultant from his decision, the division and separation of his share which may be arrived at either by private agreement or, on failure of that, by the intervention of Court. Once the decision has been unequivocally expressed and clearly intimated to his co-sharers, his right to obtain and possess the share to which he admittedly has a title is unimpeachable. His reasons for separation are immaterial. The Court has simply to give effect to his right to have his share allocated (Hindu texts Referred.) P. 108, C. 1 and 2.

The intention to separate may be evinced in different ways, either by explicit declaration or by conduct. If it is an inference derivable from conduct; it will be for the Court to determine whether it was unequivocal and explicit.

11 M.I.A. 75; 18 Cal. 157; 10 W.R. 273; Cal. 434; Considered.

8 W.R. 82; and 35 All. 80. Applied.

**(B) HINDU LAW - PARTITION DEED - DEED - Hindu Law - Partition deed - No creation of new rights but recognition of preexisting rights.

Where a division of right had already taken place as evidenced by a deed of partition, the right which each individual member has in the joint property did not spring from the deed or the agreement of parties to which it gave expression; the agreement only recognised existing rights in each individual member which he was entitled to assert at any time he liked. P. 109, C, 1.

Robert Finlay and H.M. Dunne, for Appellant; De Gruyther and J.M. Parikh, for Respondents.

Solicitor for Appellant; Dalgado. Solicitors for Respondents, Downer and Johnson.

Mr. Ameer Ali :- This appeal from two judgments and decrees of the Judicial Commissioner''s Court in the Central Provinces of India arises out of a suit brought by one Harihar, since deceased, on the 21st October, 1908, in the Court of the District Judge of Nagpur. The object of the suit was to obtain a declaration of his right to a one-third share in certain movable and immovable properties which till then had been held as appertaining to a joint undivided Hindu family, of which he had been a member, a decree for partition, and other ancillary reliefs.

Harihar died on the 17th June 1909, during the pendency of his suit, and the question in the case is whether at the time of his death he was separated from the joint family. If he was, his share would be inherited by his widow Girja Bai, the appellant; if not, the defendants, respondents in this appeal, would take it by survivorship.

The facts of the case are simple, and may be stated briefly. Bapuji, the common ancestor, left several sons, among them Harihar, the plaintiff in this suit; two, Damoodur and Balaji, died many years ago without any issue. Atmaram, the eldest, who became the manager of the family on Bapuji''s death, died in 1899, leaving Dhundiraj, the first defendant, the son of his brother Ram Chunder, whom he had taken in adoption. Dhundiraj became the manager after Atmaram''s death, and acted as such when this suit was instituted. He has since died, and he is now represented by his son Sadashiv. Ram Chunder died in 1902, leaving Nilkantha, his son, and two grandsons, all of whom are defendants in this action. Jageswar, another brother, died in 1906 without leaving any male issue. Thus, on the 21st October, 1908, when he brought his suit, Harihar was entitled to a one-third share of the joint property. It is alleged in the plaint that after Atmaram''s death "dissensions arose in the joint and undivided family" and in consequence thereof two shops were set up at Parsoni, their place of residence, one in the name of Harihar, the other in that of Dhundiraj, and separate bhahi-khattas (account-books) were opened in their respective names. The plaintiff further alleged that for "these reasons" he did not wish to continue as a member of the joint family; that he had communicated his intention to the defendants; and had, on the 1st October, 1908, served a registered notice on the first defendant, "the manager of the joint family," and "as the defendants were collusively putting off partition and evading to give him his share he was obliged to bring this suit." The cause of action was stated to have arisen on the 1st October, 1908, when he demanded partition and his one-third share.

The defendants admitted the plaintiffs claim, and added that in answer to the registered notice, the first defendant had stated that he had no objection to a division of the estate which "should be made by private persons without going to Courts." They further urged that as they were willing to divide the estate, the suit was premature and that they should not be saddled with costs.

What took place before the District Judge subsequent to the appearance of the defendants and the filing of their written statement appears clearly from the judgment of the Judicial Commissioners under appeal. The learned Judges say :-

"The defendants entered appearance on the 15th February, 1909, and on the 9th March, 1909, it was admitted on their behalf that the plaintiff was entitled to have a decree for partition of a one-third share. As to the property to be divided, after some controversy the parties were in agreement except in respect of certain movables. The District Judge, being desirous of consulting the parties regarding the best mode of carrying out the partition, adjourned the case for their personal attendance to the 4th May, 1909. On that date the case was put off to the 10th May, 1909, at the instance of the defendants, who sought a compromise. Then there was a further adjournment, to the 20th June, 1909, upon the ground that the illness of defendant Dhundiraj had prevented negotiations for a compromise."

On Harihar''s death on the 17th June, 1909 his widow, Girja Bai, the present appellant, applied for substitution as the heir and legal representative of her deceased husband, and then the contest began. The defendants objected to her substitution, on the ground that at the time of his death Harihar was an undivided member of a Hindu joint family, and that on his decease his share passed to them by survivorship. On the 23rd January, 1911, the District Judge overruled their objections, and made the usual order for substitution in favour of the appellant. The case then proceeded to trial, and on the 8th April, 1911, a preliminary decree was made directing partition of the joint estate by commissioners appointed for the purpose.

The defendants appealed to the Judicial Commissioner''s Court both from the order of the 23rd January, 1911, directing the substitution of Girja Bai''s name in place of her deceased husband, and from the preliminary decree of the 8th April following. The Judicial Commissioners in an elaborate and learned judgment have upheld the defendants'' contentions; in substance the conclusion at which they have arrived amounts to this: that no member of a joint undivided family under the law of the Mitakshara can separate himself from the joint family, or sever the status so far as he himself is concerned, without the consent of the others, or without an effective decree of the Court.

The two following passages from the judgment of the Appellate Court will show that their Lordships apprehend correctly the decision of the learned Judicial Commissioners. In one place, dealing with Harihar''s action, they say :-

"The defendants admitted what they could not deny, namely, that Harihar had a joint one-third share with themselves which he was entitled to have partitioned; but to confess the existence of a coparcenary interest is not the same thing as even a passive consent to the severance of that interest; much less is it tantamount to an agreement to divide. The defendants never denied the title of Harihar, either before or after the suit, but they were all along averse to a partition, and up to the day of his death, sought to compromise the suit by inducing him to abandon his desire to break up the joint estate. When he died the case stood adjourned in order that a compromise might be effected, and, in the circumstances, the only compromise (once the share of Harihar and the estate to be divided had been admitted), which defendants could have sought, was an abandonment of the partition. The pleadings merely indicate what had already taken place, namely, that Harihar had finally decided to sever his estate, and had demanded that this should be done."

And again :-

''''It remains therefore to decide, whether, as claimed by the plaintiff Harihar alone, despite the wishes of the other co-parceners, could, by setting up an intention to separate followed by a demand for partition, convert his joint share into a tenancy in common, so as to destroy the defendants'' right of survivorship therein, his title as co-parcener, and the extent of his share being admitted by the defendants. If this is the law, then the plaintiff must succeed. If, on the other hand, agreement between the all co-parceners in pursuance of an intention to divide was necessary to cause the severance of interest claimed by the plaintiff, then the appeals of the defendants now before us must prevail."

Their Lordships regret they cannot assent either to the inferences of law sought to be derived from the undisputed facts in the case, or to the principle on which the learned Judges purport to base their judgment.

Their Lordships think it necessary to refer again briefly to some of the circumstances with regard to which the Appellate Court appears to be under a misapprehension. As already stated, Atmaram, the eldest brother, who, on Bapuji''s death, became manager, died in 1899. Disputes in the family, as Harihar alleged in his plaint, arose shortly after his death. On the 14th February, 1902, Harihar and Jageswar, who was alive at the time, wrote to Dhundiraj, who had become manager in his adoptive father''s place, intimating their wish to separate themselves from the joint family, and asking him to have a division of the family property made by arbitrators. Matters seem to have remained in a quiescent stage for the next six years, although Harihar alleged that two shops and business accounts had been opened in his and the first defendant''s separate names.

Jageswar died in 1906, and on the 1st October, 1908, Harihar sent to Dhandiraj the registered letter already referred to. In that letter he says in explicit terms that his desire is to get partitioned his one-third share, and asks Dhundiraj, to take the matter in hand "soon after the receipt of the letter" and to make a division of the joint estate, and adds, "but do not delay partition." On the 19th October the defendant sends a reply through a pleader; he first tries to persuade Harihar to abandon his intention of getting the joint estate divided, and then goes on to say : "If you, nevertheless, intend to have a partition made, it is better you should yourself make it, since you are senior." And the mode in which, this should be done is suggested.

Harihar, evidently not satisfied with the delay that had taken place in the reply, brought his suit three days after the defendant''s letter. Written statements were filed on the 15th February, 1909, and on the 9th March following, the District Judge recorded the following additional statement, as he calls it, by the defendant''s pleader :

"The defendants do not deny the plaintiff''s right to claim one-third share in the joint family property, both movable and immovable. The plaintiff''s suit is not premature, but he will not be entitled to his costs because we were ever willing to give him his share."

The District Judge''s order made on that date is significant. After stating that neither the plaintiff''s right to claim partition nor the extent of his share is denied, he says :-

"Under these circumstances, I think it necessary to have the parties before me in person, so that I may ascertain from them how the partition is to be effected."

It appears to be absolutely clear that on the 9th March, 1909, the parties were of one mind on the question of partition. The plaintiff demanded a division of the joint family property. The defendants had agreed, perhaps at first unwillingly to the demand, which they could not resist. The only question that remained for the Court to determine was the best mode of effecting the division. Their Lordships are unable to see on that date any disagreement or averseness in fact to the plaintiff''s demand on the part of the defendants. All his acts subsequent to the registered notice evince a fixed determination to sever himself from the joint family. With reference to these acts, the Judicial Commissioners say as follows :-

"Rao Bahadur Bapurao Dada, a well-known pleader of this Court, examined as the fourteenth witness for Harihar''s widow, has proved that Harihar refused all proposals to continue in a state of jointness after he had sent the letter of 1st October 1908; that he persisted in his demand for a share; and that his demand not being promptly complied with he filed the present suit. He himself brought the stamp, and first asked Mr. Bapurao Dada, the family lawyer, to institute the litigation; but finding him disinclined to do so, because he was engaged in mediating to bring about a compromise, Harihar had the plaint presented by another legal adviser leaving Mr. Bapurao Dada to appear for the defendants."

And they go on to say -

''''Upon these facts we have no hesitation in coming to the conclusions -

''''1. That before filing the suit Harihar did in clear and unequivocal terms communicate to the defendants his earnest desire and his fixed intention to convert his estate from a joint estate into an estate in severalty."

The learned Judges however, as already observed, held that this was not sufficient to constitute a severance of the joint status.

In the case of Suraj Narain v. Iqbal Narain, 17 C.L.J. 288 (P.C.), the rule of law applicable to cases of separation from the joint undivided family was laid down by their Lordships in the following terms :-

"What may amount to a separation or what conduct on the part of some of the members may lead to disruption of the joint undivided family, and convert a joint tenancy into a tenancy in common, must depend on the facts of each case. A definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty, may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed."

It would probably be enough for the determination of this appeal to say that nothing could be more unequivocal or more clearly expressed than the conduct of Harihar in indicating his intention to separate himself and enjoy his share in severalty by the notice of the 1st October 1908, coupled with this suit, and that these acts amounted to separation with all its legal consequences.

But as the question of the effect on the joint status of such an intention has been raised in this case in a direct and concrete form, their Lordships think it fit to discuss the principle somewhat more fully than was necessary in Suraj Narain v. Iqbal Narain, 17 C.L.J. 288 (P.C.).

In the Hindu law, "partition" does not mean simply division of property into specific shares; it covers, as pointed out by Lord Westbury in Approver''s case, 1866 11 M.I.A. 75 , both "division of title and division of property." In the Mitakshara, Vijnaneswara defines the word vibhaga which is usually rendered into English by the word "partition," as the "adjustment of divers rights regarding the whole by distributing them in particular portions of the aggregate." Mitra Misra explains in the Viromitrodaya the meaning of this passage: he shows that the definition of Vijnaneswara does not mean exclusively the division of property into specific shares as alone giving right to property, but includes the ascertainment of the respective rights of the individuals, who claim the heritage jointly. He says (Sarkar''s translation, chap. I, sec. 36)

"For partition is made of that in which proprietary right has already arisen, consequently partition cannot properly be set forth as a means of proprietary right. Indeed, what is effected by partition is only the adjustment of the proprietary right into specific shares."

The Viromitradaya is a commentary on the Mitakshara, the value and importance of which have been repeatedly recognised by the Board. So far as their Lordships are aware, nowhere in the Mitakshara is it stated that agreement between all the co-parceners is essential to the disruption of the joint status or that the severance of rights can only be brought about by the actual division and distribution of the property held jointly. If this were so and there were minors in a joint undivided family, partition would be impossible until they had all attained majority, a position which is expressly combated and negatived in the Viromitradaya (chap. II, sec. xxiii). In fact later writers leave no room for doubt that "separation" which means the severance of the status of jointness is a matter of individual volition. For example, Nilkantha the author of the Vyavahara Mayukha (chap. IV, sec. iii, Mandlik''s translation, p. 38), expressly lays down that "even when there is a total absence of common property a partition is effected by the mere declaration ''I am separate from thee,'' for partition is a particular condition of the mind, and the declaration is indicative of the same." The Sarasvati-Vilasa gives expression to the same view. After quoting the definition of various earlier writers, it says : "from this is known that without any formality partition can be effected by mere intention :" (Setlur''s translation of Hindu Law Books on Inheritance, p. 122). Their Lordships are aware that the Vyavahara Mayukha is not recognised as an authority in the Benares school; they refer, however, to the dictum of Nilkantha as showing the general conception of Hindu legists on the subject of severance from jointness. But the following gloss in the Viromitrodaya appears to their Lordships conclusive on the rule of law under the Mitakshara : "Here again," it says, "partition at the desire of the sons," which expression includes grandsons and great-grandsons (see sec. 23-A), "whether in the lifetime of the father or after his demise, may take place by the choice of a single co-parcener, since there is no distinction," (chap. II, sec. xxiii).

Their Lordships do not think it necessary to examine further the law as laid down in the texts. They propose to refer shortly to the cases which establish clearly that separation from the joint family involving the severance of the joint status so far as the separating member is concerned, with all the legal consequences resulting therefrom, is quite distinct from the de facto division into specific shares of the property held until then jointly. One is a matter of individual decision, the desire on the part of any one member to sever himself from the joint family and to enjoy his hitherto undefined or unspecified share separately from the others without being subject to the obligations which arise from the joint status; whilst the other is the natural resultant from his decision, the division and separation of his share which may be arrived at either by private agreement among the parties, or on failure of that by the intervention of the Court. Once the decision has been unequivocably expressed and clearly intimated to his co-sharers, his right to obtain and possess the share to which he admittedly has a title is unimpeachable; neither the co-sharers can question it nor can the Court examine his conscience to find out whether his reasons for separation were well-founded or sufficient; the Court has simply to give effect to his right to have his share allocated separately from the others.

In Modho Parshad v. Mehrban Singh, 1891 18 Cal. 157, Lord Watson delivering the judgment of this Board, declared in explicit terms, the nature of the right possessed by individual members of a joint and undivided Hindu family : "Any one of several members of a joint family," he said, "is entitled to require partition of ancestral property, and his demand to that effect, if not complied with, can be enforced by legal process." Partition does not give him a title or create a title in him, it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers. Lord Watson makes this perfectly clear in the passage that follows :-

"So long as his interest is indefinite, he is not in a position to dispose of it at his own hand and for his own purposes; but as soon as partition is made he becomes the sole owner of his share, and has the same powers of disposal as if it had been his acquired property."

In this connection their Lordships desire to refer to the language used by the distinguished Hindu Judge, Mr. Justice Dwarkanath Mitter, in Deo Bunsee Koer v. Dwarkanath, 8 B.L.R. 363, a Mitakshara case.

"Now it is a settled doctrine of the Hindu law," said that learned Judge, "that every member of a joint undivided family has an indefeasible right to demand a partition of his own share. The other members of the family must submit to it whether they like it or not."

It appears to their Lordships that the Appellate Court has, in this case, confused the two considerations to which reference has been made about, viz., the severance of status which is a matter of individual volition, with the allotment of shares which may be effected by different methods : by private agreement, by arbitrators appointed by the parties, or, in the last resort, by the Court.

In Appovier v. Rama Subha Aiyan (supra), this Board had to deal with an argument based on a similar notion that a deed of division between the members of an undivided family "which speaks of a division having been agreed upon, to be thereafter made, of the property of that family, was ineffectual to convert the undivided property into divided property until it has been completed by an actual partition by metes and bounds." Lord Westbury, delivering the judgment of the Board, pointed out that the argument advanced before their Lordships proceeded "upon error in confounding the division of title with the division of the subject to which the title is applied." Then, after stating "the true notion of an undivided family under Hindu law," he proceeds thus :

"But when the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided."

And in another place, he adds, "it is necessary to bear in mind the twofold application of the word ''division.'' There may be division of right, and there may be a division of property."

Some of the Courts in India have supposed Lord Westbury''s expressions to imply that the severance of status can take place only by agreement. Their Lordships have no doubt that this is a mistaken view. The Board there was dealing with a case in which division of right had already taken place, as evidenced by the "deed of division." The right which each individual member had in this joint property did not spring from the deed or the agreement of the parties to which it gave expression; the agreement only recognised existing rights in each individual member which he was entitled to assert at any time he liked.

The intention to separate may be evinced in different ways, either by explicit declaration or by conduct. If it is an inference derivable from conduct it will be for the Court to determine whether it was unequivocal and explicit. In Joy Narain Giri v. Girish Chander Myti (1879 4 Cal. 434), their Lordships regarded the conduct of one of the two co-sharers who constituted the joint family "when he left the joint residence and withdrew himself from commensality as indicating a fixed determination henceforward to live separately from his cousin," and treated "the fact of his borrowing money for his maintenance, as well as making a will as indicating, at all events, that he himself considered that a separation had taken place." The conclusion was based on the inference of intention derivable from the acts and declarations of the member who, it was alleged, had separated himself, and not from the conduct or attitude of any other party.

As early as 1867, shortly after the judgment of the Judicial Committee in Appoviers case (supra), Mr. Justice Kemp, one of the most eminent Judges of the Calcutta High Court, sitting with Mr. Justice Glover, in Vato Koer v. Rowshun Singh, 8 W.R. 82., a case governed by the law of the Mitakshara, expressed himself on this question of separation

"Taking then the admitted facts of the case before us, we find that Sohun did publicly and unequivocally by petition presented in Court declare his intention to become from that date divided in estate. Such an intention amounts to a valid separation, though not immediately perfected by an actual partition of the estate by metes and bounds. The acts and declaration of Sohun Singh, showing an unmistakable intention to hold and enjoy his own estate separately, and to renounce all rights upon the share of his co-parceners, constitute, in our judgment, a complete severance or partition."

With that view of the law their Lordships entirely concur.

In the present case, Harihar, the husband of the appellant, unequivocally and unmistakably manifested his intention to separate himself from the defendants, and to hold, possess, and enjoy his unquestioned interest separately from them. In their Lordships'' judgment, this was sufficient, under the Hindu law, to constitute a separation and to divide him in estate from his co-parceners. Their Lordships are accordingly of opinion that the decrees of the Judicial Commissioners should be reversed, and those of the District Judge should be restored.

The respondents must pay the costs of this appeal and of the appeals in the Judicial Commissioners'' Court. And their Lordships will humbly advise His Majesty accordingly.