Tarini Prashad Singh and Another vs Nunu Prashad Singh and Others

Dawson Miller, C.J.—This is an appeal by the defendants from a decree of the Subordinate Judge of Monghyr, dated the 31st January 1920.

The plaintiffs and the defendants are, respectively, the members of two different branches of the family of Nawab Singh who died many years ago leaving two sons, Ram Singh and Harakh Narain Singh. The first plaintiff Nunu Prashad Singh is the son of Ram Singh, the other plaintiffs are the sons and grandsons of Nana Prashad Singh. The defendants were originally the widow of Harakh Narain Singh and his two grandsons (sons of his deceased daughter). The widow Musammat Mulko Kumari, died during the pendency of the suit leaving her two grandsons, Tarini Prasad and Tirbeni Prasad Singh, the sole defendants representing Harakh''s branch of the family.

Ram Singh died in or before the year 1877 but his brother Harakh Narain Singh lived until 1917. If at the date of Harakh Narain''s death in. 1917 the families of the two brothers were jonit in estate which is the plaintiff''s case it would follow that on the death of Harakh Narain, leaving no male issue, the descendants of Ram Singh would succeed by survivorship to the whole of the joint family property, to the exclusion of the defendants, the sons of Harakh Narain''s daughter. If, however, there was a separation of interest in the lifetime, of the two brothers Ram Singh and Harakh Narain, which is the defendants'' case, then the half share which Harakh Narain acquired by partition would descend by inheritance to his daughter''s sons.

The question for determination in this appeal is whether such a separation in fact took place.

Shortly after the death of Harakh Narain in 1917, his widow, Mulko Kumari, alleging that her late husband had been living separately from his gotias during his lifetime, got her name entered in the Collectorate register as proprietor, in place of her deceased husband, of a half share in the family property which consists mainly of a 2- annas 5-gandas odd proprietary share in Mahal Bakhri and Mauza. Bahorichak and certain bakasht lands therein. When the plaintiff, Nunu Prashad Singh, on the 31st October 1917 applied, as karta of the family, for registration of his name in respect to the whole property, in place of his deceased uncle, he found that Musammzt Malko Kumari had forestalled him and that her name was already registered in respect of a half share. His application for registration in respect to this half share was accordingly rejected and he was referred to the Civil Courts for any remedy he might have in respect thereto. Musammat Mulko Kumari having got her name registered, as already stated, by ad ekramama dated the 17th October 1917 relinquished her interest in the property in favour of the next reversioners, namely, her two grandsons the defendants Tarini Prasad and Tirbeni Prasad Singh, and shortly afterwards, on the 10th November, they also applied for registration of their names in place of their grand-mother as proprietors of a half share. Nunu Prashad Singh filed an objection but was again referred to the Civil Courts and the names of Tarini and Tirbeni were duly recorded as proprietors of the half share. The plaintiffs, accordingly, on the 5th January 1918, institute the suit out of which this appeal arises alleging that Harakh Narain died whilst living jointly with them, and claiming declaration of their title to the whole of the property by survivorship and consequential reliefs.

The learned Subordinate Judge, before whom the case came for trial, found, upon the evidence, that no separation as alleged by the defendants had taken place and that the families remained joint up to the date of Harakh Narain''s death in 1917. He accordingly passed a decree in favour of the plaintiffs declaring their title and granting them possession over the whole property. From that decision the defendants have, appealed and contend that the evidence establishes that a partition took place between their grandfather and his brother Ram Singh and that the two families have been living in a state of separation ever since.

There is no direct evidence of any partition having taken place between Ram Singh and Harakh Narain Singh nor is any date assigned to this event. It must, however, have taken place, if at all, sometime before the 10th March 1877 as the evidence shows that Ram Singh was not at that date alive. It is also proved that the two families lived together in the same house and were joint in mess up to the time of Harakh Narain''s death. But the appellants contend that there were certain dealings with the property beginning in the year 1877 which are only coasistent with a separation in interest having taken place at soma earlier date although no actual division of the proprietary interest in the Mamas into separate pattis was made nor was a division of the bakasht lands by metes and bounds ever carried out. It is admitted also that the collection of rents was joint throughout and the jama kharach'' accounts which have, been produced for a period of 23 years before the date of the suit show no division of the profits. The defendants'' witnesses allege, however, that the two families used to divide the collections equally between them and that a phatbandi account used to be kept during Harakh Narain''s lifetime showing the division of the profits. No such account, however, was produced by the defendants, but as some accounts belonging to Harakh Narain were stolen after his death they rely upon this as accounting for the non-production of the phatbandis. The plaintiffs, on the other hand, deny that there was any equal division of the profits between the two families and, although it was admitted that some papers of Harakh Narain''s had been stolen, it does not appear that any of the plaintiffs'' witnesses were cross-examined as to the separate phatbandi account having been kept. Evidence as to this fact was disclosed for the first time by the defendant Tarini Prasad Singh in cross-examination, although he did not mention it in his examination-in-chief. The learned Subordinate Judge. accepted the oral evidence of the plaintiff''s witnesses in preference to that of the defendants but does not specially mention the evidence relating to the phatbandi account, and I am not satisfied, having regard to what I have already said, that the evidence, such as it is, of a separate phatbandi account having been kept is accurate.

The first transaction upon which the appellants rely as evidence of a partition is an application to the Collectorate for registration and mutation of names made by Harakh Narain Singh on the 10th March 1877. Although the date of his brother''s death is not. definitely stated in the evidence it appears from this document that he was dead at that time, and I think it may, without much doubt, be inferred from the document itself and the fact that Harakh Narain, the younger brother, applied for mutation of names, that Ram Singh, whose name had been previously registered, had died shortly before the date of the application. The application requires certain information to be given. In filling up the application under, the heading of "Name of applicant and residence" the following entry appears "Harakh Narain Singh for self and as manager on behalf of, Nunu Prashad Singh, son of Ram Narain Singh, deceased resident and shareholding proprietor of Mauzz Bakhri" etc. Under the hearing "Character of applicant''s interest whether by purchase, inheritance, gift or otherwise and whether proprietor, joint-proprietor-in-charge, manager or mortgagee" is entered "Name having stood recorded from before and by inheritance." If the applicant is joint proprietor-in-charge or manager, he is required to give the names of the persons, on behalf of whom he is in such charge or manager. Under this heading is the entry "Harakh Narain Singh self and as manager on behalf of Nunu Prashad Singh" and the extent of each person''s interest is entered thus:

Harakh Narain Singh, 1 anna.

Nunu Prasad Singh, 1 anna.

The last entry which refers to any other particulars which the applicant desires to mention is as follows:

In the said mahal the applicant .Harakh Narain Singh possesses one anna proprietary share and his name stands recorded in the revenue office and Ram Narain Singh, who is dead now, possesses one anna propriety interest and his son and heir Nunu, Prashad Singh is alive and holds possession over the said share and, this applicant is his manager. Therefore, this application is submitted and the applicant prays that the name of this applicant Harakh Narain Singh for self and as manager of Nunu Prashad Singh, son and heir of Ram Narain Singh, deceased, the landlord, may be recorded in respect of the said snares under the provisions of Act VII of 1876 after realizing Court-fees for transfer.

The appellants contend that the wording of this document shows that the two families were separate each having a half interest in the property which at that time was 2-annas only, the 5-gandas odd share having been acquired later. No doubt, the document is consistent with the defendant''s case that the property had already been divided between Harakh Narain Singh and his brother, and great reliance is placed upon the fact that the interest of each party is stated to be 1-anna and there is no mention of, the property being held jointly. In 1877 Nunu Prasad Singh was a minor and his uncle Harakh Narain was, no doubt, acting on his behalf. The fact that Harakh Narain describes himself as the manager on behalf of his nephew is, I think, consistent either with a state of jointness or separation. Nor does the fact that the extent of each person''s interest is given as 1-anna in the estate necessarily indicate that a partition had taken place. Where the application is made not merely on behalf of the applicant but also on behalf of other persons for whom he is acting the form provides that the extent of such person''s interest shall be given and as there were then only two male members of the family in existence the applicant may well have thought that he was required to state the extent of the interest of each even though they were jointly and not separately interested. This document in itself is not to my mind sufficiently clear and unambiguous to point positively to the conclusion that a separation had taken place.

The next transaction relied upon occurred ten years later, when Nunu Prashad Singh on the 28th January 1887, having borrowed a sum of Rs. 400 from Gunoo Singh and Lalji Singh, executed a mortgage in their favour hypothecating a 1-anna share of Mauza Bakhri and, Bahorichak as security for the loan. A suit was afterwards brought by the mortgagees to enforce the mortgage and Harakh Narain Singh was not mad a party to the suit, nor does it appear from the written statement of Nunu Prashad that any point was taken that the property was joint family property and incapable of being mortgaged without the consent of all the co-sharers. A plea of payment was raised and, eventually, after giving credit for certain sums paid on account, a decree was passed against Nunu Prashad for Rs. 190-12-0 and costs. This transaction is relied upon as showing that the interest of the plaintiffs was separate from that of the defendants at that time. I do not think that any necessary inference can be drawn in favour of separation from the fact that Nunu Prashad mortgaged a half share only of the property. Instances frequently occurred in the past, although rarely found now in consequence of later decisions, where one of two or more co-parceners purported to mortgage the share of the family property to which he would be entitled on a partition although no actual partition had taken place, and in some instances the Courts in India had given the mortgagees the right to step into the shoes of the co-sharer mortgagor and claim a partition of the property to the extent of his share, and I do not think that this dealing with the property can be said to afford conclusive evidence from which a separation should be inferred.

The next document is a petition of compromise dated the 20th June 1891 in a suit brought by one Mahant Lachmi Das against Nunu Prashad Singh and others in the previous year. It would appear from tha petition of compromise that Nunu Prashad Singh had entered into some agreement with the plaintiff to execute a; lease over the whole 2-annas share of the property and the plaintiff had sued for specific performance. The verbal evidence of Nunu Prashad about this matter is unsatisfactory as he denies all recollection of what took place. Prom the compromise petition it appears, however, that he agreed to execute a lease for a period of ten years from 1298 to 1307F. in respect of his one-anna share and the plaintiff agreed to relinquish his claim over the one-anna share of Harakh Narain which was to remain in the possession of Harakh Narain. The lease agreed to in the compromise appears to have been carried out as Bhagwat Prasad Singh, one of the plaintiffs witnesses, states that Nunu''s share in Mauza Bahorichak was in lease to Mahant Lachmi Das up to 1307 P. but he adds that the other one-anna share remained in the khas possession of the plaintiff; and Harakh Narain. Again, I do not think this transaction necessarily shows that the parties were not joint in estate at that time.

Another compromise petition dated the 8th August 1904 executed by both Harakh Narain and Nunu Prashad as well, as other parties is also relied upon on behalf of the defendants. It appears, that Ram Singh and Harakh Narain Singh had a cousin named Tirpur Singh, a son of their father''s brother. Tirpur''s branch of the family was separate from that of the plaintiffs and defendants. He died leaving a widow Mahtabo Kuer who herself died childless in 1903. Disputes appear to have arisen as to the right of succession to her late husband''s property after the death of Mahtabo. One Bhaglu Singh and others claimed to be the reversioners and brought a suit against Harakh Narain, Nunu Prashad Singh and two other persons named Harihar Singh and Sukumar Singh to establish that right. In the compromise petition relied upon it is admitted by the plaintiffs that only Harihar Singh, Sukumar Singh, Harakh Narain and Nunu Prashad Singh are the heirs of Musammat Mahtabo Kuer. How this document assists the defendants'' case I have some difficulty in appreciating. Harakh Narain as a full cousin to Tirpur Singh would be nearer in degree to the latter than Nunu Prashad who was his cousin''s son. Harakh Narain would, therefore, succeed by inheritance to the estate of his cousin Tirpur to the exclusion of Nunu, who was more remote, and it seems to me that only upon the assumption that Harakh and Nunu were joint would Nunu have been allowed by Harakh to take any share in the inheritance of Tirpur. Mahtabo Kuer appears to have executed some deed during her lifetime in favour of Sukumar Singh and others but we are not in possession of all the facts which led up to the compromise decree of 1904 and I do not think it would be safe to draw any reliable inference from that document in favour of either party.

The next two documents of any importance are a compromise petition and a decree in a mortgage suit in the year 1909. It would appear that the 5-ganda odd share of Tirpur Singh in the villages in question had been mortgaged to the plaintiffs in that suit and after the death of Mahtabo Kuer they instituted a suit on the mortgage against Sukumar Singh, Harihar Singh, Harakh Narain, Nunu Prashad Singh who had inherited that portion of her husband''s property. The compromise which was signed by both Harakh and Nunu is significant. The material portion reads as follows:

In this suit an amicable settlement between the parties has been arrived at in the manner following:

The defendants Sukumar Singh, Harihar Singh and others members of the joint family shall pay Rs. 300 and the defendants Harku Singh" (that is Harakh Narain Singh)" and Nunu Prashad Singh, i.e., all the members of their jojnt family shall pay Rs. 200 to the plaintiffs. Thus, in all Rs. 500 shall be paid to the plaintiffs and the plaintiffs have made remission of the remaining amount in claim and of the costs in Court in favour of the defendants.

The decree drawn up in pursuance 6f the compromise incorporates the terms of the compromise in the same words. If Harakh and Nunu were not at that time joint in estate it is difficult to understand why they should have allowed themselves to be described in that document as members of a joint family and undertaken to pay a joint sum of Rs. 200. Had they been separate one would have expected that the compromise would provide for a separate payment by each of them just as a separate payment of Rs. 300 war, undertaken by Sukumar and Harihar Singh who belonged to another joint family.

Turning to the verbal evidence in the case it appears to me clearly to preponderate in favour of the story told on behalf of the plaintiffs. The learned Judge of the Trial Court has considered the evidence at length and points out that no gotia or any other relation of Harakh Narain Singh has come forward to prove the story of separation as put forward by the defendants; whilst the plaintiffs, on the other hand, have examined their gotias and the family Purohit who all proved that Harakh Singh and the plaintiffs were joint in mess, property and worship until the death of Harakh Narain Singh and I see no reason to differ from the conclusion at which he arrives when he says that the oral evidence is overwhelming to prove jointness. There are also other facts in the case which seem to me to point to the same conclusion. The accounts produced and not challenged which show the collections and expenditure of this family show payment of the decretal amount and cost, due to Ganoo Singh under the mortgage executed by Nunu which was relied on by the defendants. In fact, all the expenses of the family appear to have been paid out of this joint account and, so far as the documentary evidence goes, there is nothing to show any subsequent settlement or division between the two branches of the family. It appears that an account with a tradesman named Chamal Lal was opened in the name of Harakh Singh whilst he was the head of the family and that account shows purchases made by members of both branches of the family and payments made from time to time through the plaintiffs and the defendants. Again, it appears that in 1884 an orchard was purchased from one Musammat Raghu Koari in the name of Harakh Narain but in the Record of Rights published in 1902 this property appears in the name of Nunu Prashadas tenant. Again, the bakasht lands of the family in the villages in which they have a proprietary share are entered in the name of Harku Singh and others and are not divided between the two branches of the family as one would expect had a partition previously taken place.

No doubt, it is not necessary that definite evidence should be given of a formal agreement between the parties to enable a Court to hold that a separation has taken place. An inference of separation having previously taken place may be drawn from the subsequent acts of the parties without any proof of a formal agreement. But where the parties are found living together in the same house and meeting their expenses out of a common fund, I consider that it would require every much stronger evidence than anything which has been produced in this case to lead to the conclusion that they had put an end to their state of jointness. There is some evidence no doubt, of dealings with the property which are consistent with a state of separation but there is no evidence which, to my mind, shows actual separate enjoyment and apart altogether from the fact that they were living together and massing together there are documents and admitted facts in the case which point clearly to a state of joint-ness and I can see no valid reason for differing from the conclusion arrived at by the Trial Court.

In my opinion this appeal should be dismissed with costs.

Foster, J.

I agree.