John Edge, J.@mdashThis is an appeal by the plaintiffs from a decree of the High Court at Allahabad, dated July 13, 1921, which reversed a
decree of an Additional Subordinate Judge of Gorakpur, dated April 24, 1918.
2. The family to which the parties to the suit belonged is a Hindu family which is governed by the law of the Mitakshara. The following pedigree
shows how the parties to the suit are connected with each other, but in reading the pedigree as printed, it must be read from the right of the reader
to his left. Sheo Narain was the eldest son of Balkrishn Bai and of his seven younger brothers, Durga Prasad was the youngest.
3. The suit in which this appeal has arisen was brought by Jag Prasad and Ram Jas Rai against Musammat Singari, the widow of Gaya Prasad,
who died childless, for possession, or a declaration that the plaintiffs are entitled to the possession of property of which Gaya Prasad died
possessed on the allegation that they and Gaya Prasad were, when he died, members of a joint Mitakshara family.
3. Bal Krishn had eight sons who are shown in the pedigree, and he with his eight sons, when they were all living, constituted a Mitakshara joint
family. The family was possessed of several villages and other property. The family lived at Sonchiraiya, which was the principal ancestral village.
Their lorships do not know when Bal Krishn died, but he died several years before 1892. Indarjit, who was the third son, died in 1882. Sri Ram,
Ram Dhan and Durga Prasad, who were the sixth, seventh and eighth sons died before 1892. All the eight sons had married and had a son or sons
who were living in 1892 In 1892 the family agreed that Sheo Narain, who was the eldest son of Bal Krishn, should partition the joint family
property into eight equal shares. The intention of such a partition obviously was that there should be a separation of the family into eight families,
each representing one of the eight sons of Bal Krishn and his descendant or descendants and joint within itself. In their lordships opinion the effect
of that agreement was that the previous joint family separated into eight families. Thereupon Sheo Narain in 1892 partitioned the joint property into
eight shares. The parties to the agreement were not satisfied that the eight shares into which Sheo Narain had partitioned the property were equal
in value, and on January 3, 1895, the following persons, describing themselves as Nand Lal Rai, Chhatarpal Rai and Sheo Ratan Rai, sons of
Balkrishn Rai deceased; Nageshar Prasad Rai, Rambaran Rai and Mahadeo Prasad Rai, sons of Durga Rai deceased; Brrjaj Rai and Gajraj Rai,
sons of Sri Ram Raj deceased; Saminath Rai, son of Ramdhan Rai, deceased; Ram Jas Rai, son of Indarjit Rai, deceased, appointed three
arbitrators to make the partition in eight equal shares of the property in Sudar Tahsil, district of Gorakpur, and other Tahsils.
4. One of the three arbitrators died before an award was made and thereafter the co-sharers who were parties to the agreement of January 3,
1895, executed on February 18, 1896 an agreement by which they appointed the two surviving arbitrators and another man in the place of the
deceased arbitrator, as arbitrators to partition the property in eight equal shares. The agreement of February 18, 1896, contained the following
authority and direction to the arbitrators:-
The said arbitrators becoming unanimous should conscientiously take down the evidence on oath of each party on every point, examine the quality
of every land on the spot, and at their pleasure amend or not amend the map and the lota prepared by Sheo Narain Rai, arbitrator. The arbitrators
should in the lots which they may form include bonds, mortgage-deeds, decrees, cows, bullocks, etc., the property of all sorts in the districts of
Azamgarh and Gorakhpur and Nepal ilaqa (which has been omitted) equalising the value, The arbitrators should separate the share of all the 8
persons. Each party will be liable for payment of revenue of the share which will be allotted to him in a particular village. If any bond or any
property is found to be the exclusive property of any party, his statement may be taken down on oath and the same may not be partitioned. The
arbitrators should mark out the land forming the share of each party. Each party is at liberty to carry on his business either separately or jointly.
Whatever may be the decision of the arbitrators about all sorts of expenses shall be valid. The parties would accept the award of the arbitrators
unanimously arrived at on the points mentioned above, and no party shall deviate from it, but if any party deviates, his objection shall not be
entertainable by the Court. The arbitrators are competent in every way to do what they like, All of us, the executants, shall be bound by the award
which all the three arbitrators will make unanimously. The arbitrators should allot equally unculturable and dihat lands and fruit and timber trees of
all sorts to each co-sharer. They ore at liberty to alter or uphold the lots mentioned above, They should make chains of productive and
unproductive lands equalising their value, As regards the lota to be of prepared by the present arbitrators, all of us, the executants, agree that if, on
account of any previous act, the whole or part of the lot of any party be disturbed in some way, all of us, the executants, shall be responsible
therefore and shall make it up from our respective shares. As regards the rights of all of us, the holders of 8 thoks, whatever the arbitrators will
determine and record, the same shall be accepted by us. We, the executants, representing the 8 thoka, shall accept whatever the award the
arbitrators will make unanimously about the property of all sorts belonging to us. Nobody will raise any objection, and if he raises any, it shall not
be entertainable by this Court. Hence we have executed this agreement so that it may be of use in time of need. Dated February 18; 1898.
5. Their lordships would infer from that agreement that the parties to it or some of them had, although the family had separated, been carrying on
some business jointly as partners.
6. Before the arbitrators made their award, Sheo Narain and his brother Nand Lal had agreed to re-unite together, and they made an application
to the arbitrators that two shares should be dealt with in the award as one undivided share. Their lordships quote paragraph 5 of the award which
was made as showing what that application was. It is as follows:-
(5) Out of the holders of 8 lots, Sheo Narain Rai, the former arbitrator, prepared ft lot in his name and another in that of Nand Lal Rai separately
and gave different colours in the map in accordance therewith, Now both these persons apply and make statement on oath that both of them are
joint in the entire business connected with the village and court and are joint in mess, that a single lot of the entire movable and immovable property
may be drawn up for both of them at the time of partition or that both the lots may be joined in one and represented by one colour, and that
Subsequently both of them, or their heirs, will get the entire moveable and Immovable family property partitioned half and half either by mutual
consent or through Court, when they will choose to do so. Hence, as desired by both the persons, their lots Were joined in one, but they will be
represented by former colours.
7. In compliance with that application the arbitrators allotted to Sheo Narain and Nand Lal two out of the eight shares which they partitioned to
Sheo Narain and Nand Lal as one joint share, The arbitrators made their award on December 19, 1896.
8. The High Court and the Subordinate Judge came to concurrent findings, that the award effected a separation of the joint family. In their
lordships'' opinion the joint family had separated when they agreed in 1892 that Sheo Narain should partition the joint property in eight shares, and
that there was no agreement between the co-parcenera to continue to be a joint family. The question thus arises whether Chhatarpal, his son Jag
Prasad, and Rimajas, ever agreed with Gajraj Rai and his son Gaya Prasad to re-unite as a joint family. It has been contended on behalf of the
plaintiffs-appellants that those persons did agree to reunite, and that they had agreed to reunite before the arbitrators made their award, If there
was a reuniting it was for the plaintiffs to prove it.
9. In 7 CWN 642 (Privy Council) it was distinctly held by the Board that when co-parceners in Mitakshara family had separated, an agreement to
reunite must be proved like any other fact, and that, if not proved, they remain separate. Some doubts were entertained as to the effect of that
decision and it was contended in 28 CWN 953 (Privy Council) that it meant that when brothers who were co-parcenera separated their
separation necessarily involved that the sons of one of those brothers had separated from each other. In Hari Bakhsh v. Babu Lal the Board
disposed of that contention and pointed out what Lord Davey meant by the judgment of the Board which he delivered in Balabux Ladhuram v.
Rukhmabai, as to a reuniting of a separated family.
It was contended by the plaintiffs before the Subordinate Judge, the High Court and this Board, that a similar application to that which was
successfully made to the arbitrators by Sheo Narain and Nand Lal was made to the arbitrators by Chhatarpal, Ramjas, Brijraj and Gujraj rai to
have three shares allotted to them jointly on the ground that they had reunited, but that the arbitrators had not acceded to their application as Gujraj
had not appeared before them to join in the application. If it had been the fact that they had reunited and that they had made the application they
could have applied to the Court when the award came before the Court to be filed as a decree to send the award back to the arbitrators so that
they might make it comply with the agreement of the parties, No such application was made to the Court. The Subordinate Judge stated in his
judgment:-
I do not consider it is at all anlikely that such a request was made to the arbitrators) and Gujraj being absent and his personal consent deemed
necessary by the arbitrators in a matter of this kind the request might have been discarded.
10. The Subordinate Judge did not find that any such request was, in fact, made to the arbitrators. One of the arbitrators was alive when the suit
was being disposed of by the Subordinate Judge and might have been able to remember whether such an important application was made to them
or not. Ramjas, who is a plaintiff in this suit, swore that the application had been made to the arbitrators. The High Court did not believe him or -
that any such application had been made to the arbitrators. The learned Judges of the High Court on this question also said :-
Further, when about a month later (then the date of the award), namely, on 15th January, 1897, nil the parties attended at the Court of the
Subordinate Judge to have the award made a decree of Court, no request was made to the Court that the decree should formally modify the
award by grouping together into one lot the shares of Chhatarpal Kai, Ram Jas Eai and the brothers, Brijraj Rai and Gajraj Rai. Such an
application (if there had, in fact, been a reunion) would not have been a contentious matter to which any of the owners of the other shares would
have raised an objection.
11. The plaintiffs also relied upon the evidence of one Sukh Mangal that such an application had been made to the arbitrators; he swore that in his
presence Gajraj asked Brijraj and Ohbatarpal if the three lots (shares) had been joint, and that they replied "" owing to your illness the three lots
had not been made joint,"" and that Gajraj then said, "" we will live jointly as heretofore,"" and that Brijraj and Chhatarpal agreed to do so. The High
Court did not believe the evidence of Sukh Mangal nor do their lordships believe it, and they do not believe that any such application was made to
the arbitrators. That was all the parol evidence upon which the plaintiffs relied to prove that after separation Chhatarpal, Ramjas and Brijraj and
Gajraj had agreed to reunite. Swami Nath, the son of Ram Das, who attended the arbitrators when they went to the villages, swore that whereas
Nand Lai and Sheo Narain did ask the arbitrators to make one joint lot of their shares, neither Chhatarpal, Ram Jas, Qajraj nor Brijraj ever made
such a request. The High Court believed the evidence of Swami Nath, as do their lordships.
12. Their lordships will now consider the other documentary evidence, but before doing so they may state that on the evidence in the record they
have come to the conclusion that the members of the family who had moved from Sonchiraiya to Shlkargarh and had lived there in one house,
carried on business as partners, but not as coparceners of a joint family, as money lenders and in the cultivation of sir and khudkasht lauds, and
they may observe that entries in khewats and other similar village papers showing that the shares of co-owners have been specified, afford by
themselves no proof that the owners were members of a joint Mitakshara family or had separated. See Rawa Prasad Sukal v. DeoDutt Bam Sukal
(1899) L.R. 27 IndAp 39 : 2 Bom. L.R. 558 which was an appeal from the Central Provinces; and Nages-har Bakhsh Singh v. Ganesha (1919)
L.R. 47 IndAp 57 : 22 Bom. L.R. 596 which was an appeal from Oudh. Their lordships will also observe that in their opinion payments jointly of
Government Revenue, Taxes, Income Tax and such like payments do not by themselves indicate that the parties making such payments were joint
or separate; the parties may have been carrying on business as partners and not as Hindu co-purceners. For the same reason the fact that money
had been lent on mortgages, or had been applied in the purchase of property, does not by itself indicate that the money was or was not the
separate money of Hindu coparceners. The books of account of a joint family would, if produced, show whether the moneys or payments bad
been advanced or paid from a joint Hindu family fund or from a partnership fund.. The fact that two or more Hindus had a banking account does
not by itself prove that the moneys received by the bank were moneys of a Hindu joint family or of Hindus who were partners in farming or other
business. Not one of the documents in this case which has been brought to the attention of their lordships, proves either that the moneys mentioned
were or were not the moneys of a joint Hindu family. The books of account of the joint family, if Chhatarpal, Jag Prasad, Ramjas, Brijraj, Gajraj
were after the separation of 1892 members of a joint family, have not been produced, and it was necessary for the plaintiffs'' case that they should
have been produced and put in evidence. The books of account would have shown whether the accounts, which must have been kept, were the
accounts of a joint family or of a partnership. The non-production of any of those books of account has not been satisfactorily explained by or on
behalf of the plaintiffs, and their lordships draw the inference that if they were produced they would not support the case of the plaintiff''s.
13. Their lordships will now refer to two documents on the record which, in their opinion, afford crucial evidence that the case of the plaintiff''s is a
false case, and that there never was a reuniting after 1892 of Chhatarpal and Ramjas with Brijraj and Gujraj, Their lordships may here observe that
the Subordinate Judge in his judgment did not attempt to explain the importance of those documents or the non-production of account books
which must have been kept, whether the plaintiffs and Brijrai and Qujraj were or were not co-parceners
14. The first of the documents to which their lordships now refer is a petition of December 6, 1902, for the correction of the khewat of the village
Naikot, which was one of the villages, which was partitioned by the award of 2896. That petition was presented by Ramjas and he made as
opposite parties to it Nageshat Prasad, Ram Dhan, Mahadeo Prasad, Swami Nath, Naurang Rai, Mukut Nath, Ram Charittar for himself and as
guardian of his brother Paras Nath, Gajraj and Chhatarpal. In that petition Ramjas said :-
Application for correction of the '' kbewat'' relating to ''mauza'' Naiko tappa '' Marchwar, '' pargana J Binaikpur, u/s 133, Act No. 3 of 1901.
The petitioner begs to state as follows :-
1. The parties belong to one and the same family. The entire property was par Honed by arbitration. Under the partition made by the arbitration,
which was given effect to by the civil court, no share in '' mauza '' Naikot aforesaid was allotted to opposite party No. 1, while the following shares
were allotted to the petitioner and to opposite party No. 2, in support of which the '' goshwara '' statement prepared by the arbitrators is filed.
2. Every co-sharer has entered into possession of his lot allotted to him by the arbitrators j but it has not been given effect to in the public paperi
up till now. It is, therefore, hereby prayed that the following corrections may be made in the '' khewat'' :-
Names of sharers. Amount of share.
Ram Jas Rai ... ... ... ... 1 anna 2 pies and 12 chhatanka.
Swami Nath Rai ... ... ... 1 anna 6 pies and 2 cbhatnnks.
Dudh Nath, Naurang, Maheshwari
Rai, sons and heirs of Shiva Ratan
Rai, deceased ... ... ... 1 anna 4 pies und 4 chhatanks.
Muknt Nath Kai, son and heir of
Nand Lal Rai, deceased, Ram
Charittar Rai and Paras Nabh Rai,
sons and heirs of Shiva Narayan Rai,
deceased ... ... ... 1 anna 5 pies and 9 ohhatanks.
Gajraj Rai for self and heir of Birjraj
Rai, deceased ... ... ... 1 anna 2 pies and 12 chhatanks.
Chhatarpal Rai ... ... ... 1 anna ii pies and 9 chhatanka.
Ram Jas signed that petition on the December 6, 19-2, and he made at the foot of the petition the following declaration, which he also signed:-
I declare that the particulars set forth in this petition are true.
15. Their lordships assume that the petition of December 6, 1902, of Ram Jaa was presented to the Collector of the District or to some Revenue,
official under him and it appears not to have been complied with, and on September 19, 1907, Chhatarpal presented to the Revenue official of the
District a similar petition for the correction of the khewat of Mousa Naikot, and he made as opposite parties to it Gajraj, Ram Jas, Mukut Nath,
Ram Charittar for himself and as guardian of Paras Nath, a minor, Naurang Rai, Nageshwar Prasad, Mahadio Praaad and Sarja Erased. In that
petition Chhatarpal said :-
1. The parties held an ancestral eight-anna share in the said share and were in possession of the same as the members of a joint Hindu family.
2. Subsequently, a partition was made by arbitration, and under the arbitration award confirmed by the civil court, the shares in the said ancestral
eight-anna share were fjlotted to each of the co-sharers as per specification given below,
3. Under the arbitration award, every co sharer is in possession of his share. Corrections in the '' khewat'' relating to other villages have already
been made; but the oorreotions in the '' khewat,'' relating to this village, have not been made with reference to the said award. It is, therefore,
hereby prayed that corrections may be made in the ''khewat'' with reference to the arbitration award
NOTE.-Gajraj Raj, Jig Prasad Rai, and Ram Jas Rai have purchased from Swami Nath under a registered sale-deed, the one anna 6 pie 2
ohhatank share which was allotted to him under the partition award. They shall make a separate application for mutation of names in respect of that
share.
Specification of shares in respect of which amended entries are to be made in the '' khewat'' with reference to the arbitration award.
Amount of shares to be entered
against the names of the co-
Names of co-shares. sharers with reference to the
arbitration award.
Naurang Rai and Musatamat
Salhauta, heirs of Shiva Ratan Rai
(?) deceased ... ... ... 1 anna 4 pies and 4 ohhataiika.
Gajraj Raj ... ... ... 1 anna 2 pies and 12 chhatanks,
Chhatarpal Hai, petitioner ... ... ... 1 anna 2 pies and 9 chhatanks.
Ram Jas Rai ... ... ... 1 anna 2 pies and 12 ihhatanks.
Mukiit Nath Rai and Ram Chharittar
Rai for self and as the guardian of
Haras Nath Rai, minor, heirs of
Shiva Narayan Roi and Nand Lal Rai
... ... ... ... 1 anna 5 pies and 9 ohhatauka.
16. Jag Prasad, as the son and general attorney of Chhatarpal, signed Chhatarpal''s name to a declaration at the foot of the petition that the
particulars set forth in the application were true. Having regard to those petitions of 1902 and 1907, and to the attempted specification of shares
by Sheo Nurain in 1892, and to the award of 1896, there cannot be the least doubt that the joint family which descended from Bal Kishu
separated into eight families, two of which, Jai Narain''s and Nand Lal''s, re-united before the award was made.
17. It is true that the plaint of the February 11, 1902, of Gajraj, Chhatarpal and Ram Jae (Exhibit 7), if it stood alone and could not be explained,
would afford strong evidence that Gajraj, Chhatarpal and Rain Jas constituted a joint family of which Brijraj was a memeber. But in 1892 the joint
family, which then existed without doubt, had separated and Chhatarpal, Gajraj and Ram Jas were not re-united as-a joint family. Possibly the
explanation is that the statement that the plaintiffs in that suit were joint with Brijraj was the work of the pleader who prepared the plaint as the
easiest way of explaining how those plaintiff''s had aright of suit on a hypothecation bond which had been given in favour of Brijraj alone in 1897.
The statement in the plaint of the suit for malicious prosecution which Ram Jas, Jag Prasad and Gajraj brought in 1912 that they "" are members of
a joint family,"" which has jointly paid Rs. 900 as revenue and Rs. 65 as Income Tax, their lordships also consider to be worthless in face of the
crucial documents to which they have referred.
18. The conclusion at which their lordships have arrived is that the decree of the High Court of July 13, 1921, dismissing the suit of the plaintiffs
with costs, was right and that this appeal should be dismissed with costs, and they will accordingly humbly so advise His Majesty.
