Patna High Court
Nand Lal Singh And Ors. vs Musammat Bhagwati Koer And Ors. on 30 May, 1918
Equivalent citations: 46IND. CAS.529
JUDGMENT
1. The parties to this suit Singh. The following genealogy will show are all descendants of one Bhekhdhar their relationship:
BABU BHEKHDHARI SINGH __________________________|_____________________________ | | | By 1st wife By 2nd wife By 3rd wife | | _________________|___________________ Kirit Narain Singh, Lachmi Narain Singh. | | | _______|__________ | | | | | | | Ram Rachya Singh Nand Lal Singh, Sant Lal Singh | | | | defendant No. 1 | Avadh Behari Singh, Runmun Singh, | Musammat Bhagwati Koer | defendant No. 6. defendant. No. 7. | widow, Ganga Pershad Singh, | Ajodhya Singh, Plaintiff. defendant No. 2. | defendant No. 5. | ___________________________________| ________________________________________|__________________________ | | Jadunandan Prasad Singh, Jagdami Prasad Singh, defendant No. 3. defendant No. 4.
2. Up till 1906, the five brothers Kirat Narain, Lachmi Narain, Ram Rachya, Sant Lal and Nund Lal were joint. In that year Ram Rachya and Sant Lal are said by the plaintiff to have brought a suit for partition and by the defendants a suit for possession. The matter of the class of suit, however, is of no consequence, because it is admitted that in that suit a compromise petition was filed by which it was agreed that the whole of the joint property was to be partitioned between the five brothers and a decree was passed accordingly.
3. By this partition the properties in suit were allotted to Ram Rachya, and the case of the plaintiff Musammat Bhagwati Koer his widow is that he was in separate possession until his death in 1909. After his death, the plaintiff applied for mutation of her name in the Land Registration Department, but she was successfully opposed by Nand Lal defendant No. 1. During the proceedings in the Land Registration Department, a case under Section 144 of the Code of Criminal Procedure was started between the plaintiff and this defendant and the plaintiff was found to be in possession. As however her title was affected by the Land Registration proceedings, she brought this suit for declaration of her title to the property which Ram Rachya had got by the partition.
4. In the written statement the defendants admitted the compromise and the division of the property but they alleged that the partition had not been given effect to and that only Kirat Narain and Lachmi Narain had separated, the other brothers all continuing to remain joint proprietors, jointly holding possession over all the properties which had been entered in their names in the compromise petition as their separate properties. The learned Subordinate Judge has found that there was a partition and has decreed the suit in favour of the plaintiff.
5. So far as the partition between the five brothers is concerned, there is and can be no doubt. The suit in which the compromise was filed, was instituted by Ram Rachya and Sant Lal against Kirat Narain, Nand, Lal and Ajodhya and in the compromise it is recited "that the plaintiffs and the defendants possessed a good deal of movable and immovable property of each of the plaintiffs and defendants and they were their private properties. That as the properties were private ones, the plaintiffs often had disputes with the defendants, and consequently both suffered loss. That with a view to avoid future dispute and litigation and considering future loss of money and property, the plaintiffs and defendants amicably divided all the ijmali immovable property and the private property into five shares".
6. At the end of the compromise petition there are schedules showing exactly what properties were allotted to each of the five brothers.
7. The compromise petition is, therefore, perfectly clear and unambiguous, it shows without a doubt that there was an actual division and is exactly similar to the case of Appovier v. Rama Subba Aiyan 11 M.I.A. 75 : 8 W.R.P.C. l; 1 Suth. P.C.J. 657 : 2 Sar. P.C.J. 218 : 20 E.R. 30 in which it was pointed out by their Lordships of the Privy Council that there are two kinds of division of property, a division of the title and a division of the subject to which the title is applied: and they held that although there might be no actual partition, still the character of the property was altered and it was converted from joint to separate ownership. This view has been followed by their Lordships of the Privy Council in the cases of Doorga Pershad v. Musammat Kundun Koowar 13 B L.R. 235 : 21 W.R. 214 : 1 I.A. 55 : 3 Sar. P.C.J.341 (P. C) and Balkishen Das v. Ram Narain Sahu 30 C. 738 : 30 I A. 139 : 7 C.W.N. 578 : 5 Bom. L.R. 461: 8 Sar. P.C.J. 489 (P.C.) and is now settled law and there can, in our opinion, be no doubt that in the present case by the deed of compromise there was a conversion of the property of the family from joint to separate ownership.
8. Mr. Das has accepted this view which it was in fact impossible for him to contest, because not only is the compromise unambiguous in itself but was followed by certain transactions which show that it was acted upon. These are referred to by the learned Subordinate Judge in his judgment. The first is a sale executed by Sant Lal shortly after the partition in favour of one Tokhan Chowdhury. The sale was of a portion of his share, and in the deed to which his brothers were parties, it is recited that the properties had been divided and that Sant Lal alone had any connection with the properties. There are also a series of plaints of the year 1908 by which Ram Rachya sued tenants for rent and in them he mentioned the fact of the partition. There is thus no doubt that there was a partition and that it was acted upon.
9. Mr. Das, however, contends that the separation only lasted up till the year 1908 when three of the brothers Ram Rachya, Sant Lal and Nund Lal reunited. This was not the case made in the pleadings and it is doubtful whether the appellants should be allowed to make it now. It is, however, unnecessary to consider the point, because it does not appear to us that any case of re-union has been made out. To establish the case of reunion, we are referred to certain documents evidencing transactions which began towards the end of the year 1908. From the first of these documents, an extract from the Collector's Mutation Register, it appears that the three brothers made a joint application for registration of their names in respect of a property called Nabinagar which had been by the partition allotted to Ram Rachya's share. Apparently substitution was made and it appears to have been made on the strength of a "petition of admission" filed not by the applicants but by Kirat Narain and Ajodhya. In this petition it is recited that although a division had been made between the brothers, Ram Rachya, Nund Lal and Sant Lal remained joint and undivided. This, however, is not a statement by the brothers who were seeking mutation of their names, and it cannot be said to, in any way, bind the plaintiff. Subsequent to this mutation proceeding, a series of plaints were filed by these brothers jointly in respect of rent for this village Nabinagar; and in one of these plaints it was recited that there had been a partition and, that these three brothers still remained joint. Four of these suits were filed in 1908 and one in the year 1909. There are also other documents of the years 1907, 1908 and 1909, which show receipts of rent also for this village of Nabinagar. Four of the plaints to which reference has been made, were filed before the mutation of names was made and it is not contended that there was in fact a re-union before this time. These plaints may, therefore, be left out of consideration and with respect to all this documentary evidence it is contended on behalf of the respondents that the transactions could not have been made with the knowledge and consent of Ram Rachya because for two years before his death in 1909, he was bed-ridden. There is considerable oral evidence in support of this story of Ram Rachya's illness which it is impossible to ignore: but even assuming that Ram Rachya had knowledge of these documents it cannot be said that they establish a case of reunion. Once the members of a family have separated, the onus is heavy on any members who plead reunion. In fact Sir F. Macnaghten has said that the Pandits of the Supreme Court of Bengal told him that no case of reunion had formed within their knowledge and he himself says that he never met with such a case (F. Macnaghten 107, Mayne's Hindu Law. 8th Edition, page 694). Cases of reunion, therefore, are rare, but it is clear that there are such cases and it is nowhere clearly laid down how reunion is to be established. What is clear, however, from all the decisions is that in order to establish a case of reunion, it is necessary to show not only that the parties already divided lived or traded together but that they did so with the intention of thereby altering their status and of forming a joint estate with its usual incidents. There must be a complete conjunction of estate with an intention to reunite and not a mere living together or in joint enjoyment of the property. In the cases of Doorga Pershad v. Musammat Kundun Koowar 13 B L.R. 235 : 21 W.R. 214 : 1 I.A. 55 : 3 Sar. P.C.J.341 (P. C) and Balkishen Das v. Ram Narain Sahu 30 C. 738 : 30 I A. 139 : 7 C.W.N. 578 : 5 Bom. L.R. 461: 8 Sar. P.C.J. 489 (P.C.) there were joint transactions between certain members of the family after the partition but there was no reunion and it appears to us that although as in those cases there were in this case some joint transactions between the three brothers after the partition, these might at most establish that for certain purposes there was a partnership between the brothers. They cannot establish a case of reunion. We are, therefore, of opinion that this appeal must be dismissed with costs.