Venkatasubba Rao, J.
1. The dispute in this case relates to property valued at several lakhs, and the points that have been raised have been argued very fully. In the following genealogical table, which set forth the relationship of the parties, are also noted certain important dates.
RAMDAS GHANSHAMDAS,
died 17th October, 1879,
married Kamalabai or Akka
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Muralidas, Govardhandas, Balamukundas, Bhagavandas, Subrayadas
died 24th, April, died 26th September, died 1896, died 1911, (alive),
1907, 1909 married married married
married Yasodabai married Kammubai, Rukkubai, Kuadanbai. Godavari,
or Jessubai or defendant No. 5,
Jesau died January, 1926
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| Gokuldas, Dwarakadas,
| defendant No. 1, defendant No. 2,
| Born 6th April, 1885, Born 12th November, 1891,
| married Gangabai. died 14th January, 1925,
| married Jamnabai
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| Ramdas, defendant No. 3,
| Born 9th August, 1914.
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Putlibai alias Nani or Krishnadas,
Nanu married Laldas Born 16th May, 1884,
| died 13th August, 1908,
| married Radhabai, defendant No. 4
Jayakrishna died young. |
|
Babu alias Govindas,
Born 18th November, 1907,
plaintiff.
2. The principal question to be decided is are the rights of the parties to be determined on the basis of a contract of partnership or on the footing that they are co-parceners of a joint Hindu family? Ramdas Ghanshamdas was carrying on trade in yarn and died in 1879. After his death, his sons continued the family trade and lived as members of a joint Hindu family. Disputes arose among them and they executed muchilikas (submissions) in favour of an arbitrator who, on 27th September, 1890, delivered his award in writing, effecting a partition of the family properties. The plaintiff alleges that Muralidas and Govardhandas, as a result of the partition, became the owners of the family business, and continued thereafter to trade jointly and as partners. In course of time, ho goes on to allege, Krishnadas and Gokuldas, were admitted into the partnership, Muralidas died in 1907 and Krishnadas in 1908 and the partnership was afterwards continued by the surviving partners, Govardhandas and his sons. The former died in 1909 and the trade was continued by his sons, Gokuldas and Dwarkadas. The plaintiff claims that, as the son of Krishnadas, he is entitled to have an account taken of the affairs of the partnership, which, he contends, became dissolved on the latter's death in 1908. As the above table shows, the principal parties to the contest were the plaintiff, the 1st, 2nd and the 3rd defendants. Subsequent to the suit, the 2nd defendant died and the 1st defendant became an insolvent and his estate is now represented by the Official Assignee, Madras, who has been brought on the record as the 6th defendant.
3. The defence of the Official Assignee is that the partition of (sic) did not affect the status of Muralidas and Govardhan, that it was a partial partition in regard to parties and that its effect was to sever the remaining three brothers alone from the family. He thus contends that Muralidas and Govardhandas continued to remain, as before, members of a Hindu co-parcenary. Should, however, the Court hold that there was a partition between them inter se, he maintains in the alternative, that immediately or sometime thereafter there was a reunion between them, which involves in law (so he contends) a restoration of the joint family status. Gokuldas, the Official Assignee alleges, dealt with the property not as the surviving partner but in his capacity as the managing member of the undivided joint family and that the plated if is bound by the acts of the said manager. The plaintiff answers, not only that there was no re-union in fact between Muralidas and Govardhandas, but that, in law there could not have been a valid re-union. He also contends that re-union does not in law restore the original joint family status, but that it merely gives rise to a rule of preferential succession. The importance of this contention to the plaintiff is obvious. If it is accepted as sound, it follows that whether there has been re union or not, the right which he claims in this suit remains unaffected. If re-union does not lead to a restoration of the coparcenary, with its various incidents, including the power of the manager to bind the other members by his acts, it matters little to the plaintiff on the facts of this case whether it is held that there was or was not a valid re-union. The alienations of Gokuldas are sought to be made binding on the plaintiff on the supposed ground, that they are the acts of a managing member and if this ground does not exist, the plaintiff's liability disappears along with it.
4. The questions that are raised may be thus shortly stated:
(1) Did the partition of 1890 effect a severance between Muralidas and Govardhandas?
(2) Could there be a re-union valid in law?
(3) Does a re-union lead to the restoration of the joint family, or does it merely give rise to a special rule of preferential succession?
(4) If there was a severance, was there in fact a subsequent re-union?
5. The first point.--The first contention for the defence is, that there was no separation between Murali and Govardhan inter se and they continued to remain joint. It is suggested that there was in fact a partial partition, the other three brothers separating from the family leaving the status of Murali and Govardhan unaffected as members of a co-parcenary.
6. It is a well settled rule of law, that where the language of a document is plain and unambiguous, extrinsic evidence cannot be received to explain or control its terms. Dealing with the point whether there was or was not a partition, the Judicial Committee laid down this rule in. Balkishen Das v. Ram Narain Sahu 30 I.A. 139 : 30 C. 738 : 7 C.W.N. 578 : 5 Bom. L.R. 461 : 8 Sar. P.C.J. 489 (P.C.). The High Court, 'having in effect hold that the instrument in question was unambiguous, proceeded i to construe its terms in the light of the subsequent acts of the parties. Their Lordships while reversing the judgment of the Court, enunciate the principle, that where the instrument is plain and unequivocal, evidence of conduct cannot be received for elucidating its terms. There is a striking application of this rule in Lord Hastings v. North Eastern 'Railway (1900) A.C. 260 : 69 L.J. Ch. 516 : 82 L.T. 429 : 16 T.L.R. 325. The importance of the case lies in the fact, that the parties acted upon the agreement for more than 40 years from its date, in a sense opposed to the clear meaning of the words; but this did not prevent the Court from excluding extrinsic evidence.
7. Lord Halsbury observed: 'No amount of acting by the parties can alter or qualify words which are plain and unambiguous.'
8. In the judgment in that case is cited Glifton v. Walmesley (1794) 5 T.R. 564 : 101 E.R. 316 : 90 R.R. 900 which also illustrates the rigour with which this rule is applied. There are, of course, cases where extrinsic evidence was received, but that was because the words were ambiguous and of doubtful import, In Watcham v. Attorney-General (1919) A.C. 533 : 87 L.J. P.C. 150 : 34 T.L.R. 481 : 120 L.T. 258 the instrument contained an ambiguity and evidence of user was in consequence admitted. In Ma Thaung v. Ma Than 80 Ind. Cas. 1031 : 51 C. 374 : A.I.R. P.C. 88 : 19 L.W. 477 : 46 M.L.J. 618 : (1924) M.W.N. 662 : 3 Bur. L.J. 333 : 51 I.A. 1 : C.W.N. 559 : 5 R. 175 (P.C.) the contract was 'open to different meaning. (See page 382 Pages of 51 c.-[Ed.]) Ram Perghad Singh v. Lakhpati Koer 30 I.A. 1 : 30 C. 231 : 7 C.W.N. 162 : 5 Bom. L.R. 130 : 8 Sar. P.C.J. 380 (P.C.) belongs to the same category. The partition was effected by a decree' which, as the head note points out, was ambiguous. Was so 'imperfect in form' that it could be relied on to support the inference of separation (see page Page of 30 I.A.-[Ed.]) as also the argument, that its legal effect was to negative separation. (See page 10 Page of 30 I.A.-[Ed.]) In such cases, the Court looks at the acts done by the parties under the ambiguous deed, as affording a clue to their intention, the principle being, in the words of Lord Sugden: 'Tell me what you have done under such a deed, and I will tell you what that deed means.' Attorney-General v. Drummond (1842) 1 Dr. & War. 353 .
9. Sir C.P. Ramaswami Ayyar for the defence has made a strenuous effort to show that there is an ambiguity in the partition award in question, and I shall now proceed to closely examine the terms of that, instrument. I may note that it is a long but carefully prepared document and deserves careful perusal. Of the five brothers, Subbaroyadas (the youngest) was a minor and was represented by his mother Kamalabai. The award sets forth in great detail the properties owned by the family and the outgoings and says that the total value of the assets available for division is one lakh and 70,000 odd. The property is divided into five shares, each share amounting to Rs. 38,514. The net assets are ascertained only after a due provision is made for the unmarried girls, the mother of the parties, the wives and sons of the major co parceners (including Murali and Govardhan). Similarly, sums are set apart for the marriages of Baghavandas and Subroyadas, two of the five brothers, whose marriages had not by then been performed. The division is complete and thorough, even such trifles as mirrors and mats not being omitted. The deed goes on to describe in what manner the share of each has been allotted. There are long and complete lists of properties set apart for each of the co-parceners. The document then winds up with a very significant passage. It says that each of the parties mentioned in the deed (including again Murali and Govardhan) has separately received his share and that each shall enjoy the properties set apart for him and none of them is to have any right against the other. The last part is thus rendered by the Court Interpreter:
So, from now, each of you shall hold and enjoy the moveable and immoveable properties accruing to his respective shares from generation to generation through sobs and grandsons and with all right to gift, exchange, sell and mortgage. In the course of such enjoyment, there shall exist among you only the connection of the right of pollution hereafter and there shall not be any connection of money or debt to the least extent as amongst one another, Such is the panchayat award written and given by me
10. It is impossible to regard this document as anything but an out-and-out partition. It is difficult to express in clearer or more forcible language that the parties intended to separate, each from the other. If the instrument is unequivocal, it follows that no evidence of conduct to explain its terms can be received. I shall now examine the grounds which have been put forward to support the theory that this document did not effect a severance between Murali and Govardhan.
(1) It recites that what led to the partition were disputes between Murali and Govardhan on the one side and the three remaining brothers on the other. Does this affect the nature of the transaction? Can it be urged that as there were no quarrels between the remaining three there was no division among them inter se? This has not even been suggested.
(2) The scheme of the partition is this. There was a yarn business that was being carried on. The deed does not say so in terms, but there can be very little doubt that it was intended that the trade was to be taken over as a going concern by Murali and Govardhan. Three of the four houses were also assigned to them. The bulk of the property having thus been given to these two, they passed, in order to equalise shares, promissory notes for unequal amounts in favour inter alia of their three brothers, Bach of these promissory notes was for about Rs. 30,000. It was apparently contemplated that Muraliand Govardhan should live and trade together, that the other three brothers should even after seperation continue to reside along with the former and practically as members of their house hold. This probably explains the curious fact that among the items allotted to the last three brothers household utensils and furniture do not find a place, for if they were not expected to maintain an independent home, why should they need them? Then again, if it was intended that Murali and Govardhan should carry on the business jointly after partition, what would be more natural than to allot to them conjointly the trade and the trade assets as a going concern? This cannot show that there was no separation between them. Why should not brothers who have ceased to be coparceners become partners? Though the value of the stock of yarn given to Murali and Govardhan was equal, the cash which also formed part of the business was equally allotted (Murali Rs. 15,000 odd, Govardhan Rs. 18,000 old). Though, in effect, the business as a going concern was given to these two brothers, the allotment of shares was distinct and (this I regard as important) the concern was not assigned to them even formally in two equal halves; in other words, so far as the instrument goes, it effects a clear and decisive severance, although it may be spelt out from the deed that the business was jointly handed to them. In regard to the houses, similarly, they were not jointly allotted to Murali and Govardhan; on the contrary, a moiety of each of the three houses was valued and separately allotted to Murali; and that process was repeated in the case of Govardhan. These facts, far from showing that there was no division between them, prove the very reverse, namely, that they intended that their relation as co-parceners should come to an end.
11. The contention put forward for the defence in fact amounts to saying, that because there was not a division by metes and bounds in regard to certain items, it, therefore, follows that the deed did not effect a severance. It has been repeatedly held that physical or de facto division is not essential to a separation. If the parties agree to hold the property in defined shares as separate owners, such an agreement, evidencing as it does an intention to separate, (for intention is the decisive test), operate as an immediate partition; there is a division of title and interest what is postponed being, a division by metes and bounds. Appovier v. Rama Subba Aiyan 11 M.I.A. 75 : 8 W.R.P.C. 1 : 2 Sar. P.C.J. 218 : 1 Suth. P.C.J. 657 : 20 E.R. 30 (P.C.).
(3) I now pass on to the next contention. The deed says that the arbitrator was required to take an account of the business only to the 3rd November, 1888; but the partition was made on the 27th September, 1890. I am unable to follow the argument that this indicates that Murali and Govardhan intended to remain joint. If you have to effect a partition, you must prepare a balance sheet, which, represents: a state of things as they exist on some date, nearest in point of time, to the date of the partition itself. What more convenient date can one suggest than the close of the business year? The Samvat year ended on the aforesaid date, the 3rd of November, 1888, and the first of the muchilikes. (submissions) executed in favour of the arbitrator, bears the date the 7th of January, 1981; and the interval between the two daces barely exceeded two months. Is there anything surprising in the accounts being treated as closed shortly before the date when the arbitrator was to enter upon his duties? The argument is indeed quite untenable, for the deed itself shows that though the accounts were taken to the 3rd of November, 1888, interest was added upon cash and properties from the following day, the 4th of November (the commencement of the new year) almost to the very day of the partition.
(4) It is next suggested that the shares of Murali and Govardhan were defined, not with a view to effect a severance between them, but in order to calculate their shares for enabling the other brothers to separate. This, of course, might have been done: See Palani Ammal v. Muthuvenkatachala but, in fact, was not. There is not a single term in the deed which lends the slightest support to this contention.
12. I nave now dealt with the arguments advanced to show that the deed did not effect a severance between Murali ana Govardhan and, as I have shown, they are utterly unconvincing; but granting for a moment that the instrument is ambiguous and it is, therefore, permissible to examine subsequent contact and acts of parties to throw light upon their intention, the evidence that has been adduced is, as I shall point out in a later section, more consistent with the hypothesis that there was a complete severance than that there was not. I shall at once refer to one circumstance which I regard as crucial. Immediately alter the partition, Murali and Govardnan agreed to bear their house keeping expenses in certain denned shares, This is utterly incompatible (I am here considering the theory of non-division and not re-union) with the notion that they intend ed to remain as before members of a co-parcenary When such as act comes close upon the heels of the partition, that to my mind, affords the most cogent evidence that what was intended was a separation' resulting in a disruption of the joint family.
13. The second point.--I shall now deal with the next contention that re-union between Murali and Govardhan was legally impossible as each of them had a minor son in existence. The argument is put by Mr. Varadachari (for the plaintiff) in two ways first, the fathers could not re-unite carrying by their act into the re-united family, also their sons, for it is said, that under the Hindu Law, this is not one of the recognized powers of the father; secondly? the fathers could not re-unite, leaving out their sons as re-union presupposes junction of estates, and they being joint with their eons, could not bring into the pact any property I do not think loan accede to this contention. At the time the fathers made the partition, was there any exercise of volition on the part of the sons? They being minors ex hypethesi there was not. The partition was by the different heads of the branches and their act affected of necessity the status of the sons. The partition which the fathers entered into not only separated each branch from the rest but also automatically severed each son from his uncles. The text of Brihaspati says that certain persons who have entered into a partition can re-unite. More often than not, adult co-parceners entering into a partition have sons; and if it was intended that in the event of a party having a son, he could not re-unite, it is impossible to conceive that the law-givers overlooked to provide for such an obvious contingency, a he sons were but constructive parties to the partition; they must similarly be deemed con-structive parties to the re-union. It is then urged that it is contrary to principle to hold that the father, by re-union, can affect the son s status. The Hindu Law does re. cognize the lather's power to alter the son's joint family status into one of separation there is nothing inherently illogical in the father, therefore, possessing the power of converting his son's status of a separated member into that of a reunited member the rule of law which gives the father unadoption and thus alter his status and position, is a parallel conception and may furnish a useful analogy. In this connexion, it has also to be borne in mind that the father can effect a partition among his sons inter se, against their will. Next, the argument based on the analogy of alienations and dispositions seems to my mind equally out of place. The power to make a partition, the father possesses not because of any supposed benefit ha is thereby conferring upon the son, but this is recognized under the Hindu Law as a power inherent in him. It takes no notice of the possible benefit or detriment to the son; for example, by separating the son from is uncle, the father puts an end to the son's chance of succeeding to his uncle's property by survivorship. Similarly, re-union on the part of the father may in a certain event prove prejudicial to the son's interest; but it may also result in a positive benefit to him. If the son dies in a state of re-union, his uncle may exclude his widow, but if the uncle predeceases the son, the latter takes his property by survivorship. Failure to keep distinct the theory of dispositions, where benefit is generally the test, and the theory of partition, which takes no account of such benefit, must tend to confuse legal issues. I may pursue the point a little further. If the sons in existence at the partition are not minors but adults, does that fact present any difficulty? In this instance, the sons are either passive parties to the partition, the fathers representing them in that transaction and effecting a severance of the branches, or, they are active parties, in the sense, that as a result of the partition, they have become severed even from their fathers. In the former case, as the fathers, by entering into the partition, necessarily affected their sons' status, similarly they may, byre-uniting, carry their sons, as a matter of course, into the re-united group. Neither at the partition nor at the re-union, is there an independent exercise of volition on the part of the sons. In the latter case, the sons being not constructively but actively parties to the partition, it is open to them to join their father in reuniting, or, to refuse to re-unite. It is asked, if the partition leave the father and the son joint and undivided, does it not impose a hardship upon the son, to hold that the father, by his own act, can force the son back into the original family? The son possesses an obvious remedy, for there is nothing to prevent him from insisting tm an instantaneous partition, from his own father. Even granting that some extreme cases of hardship may be conceived, that is no reason why one should refuse to recognize the deductions that logically follow from the primary conceptions of the Hindu Law.
14. I need not deal separately with another contention, or rather another aspect of the same contention, namely, that first cousins cannot re-unite, as they are not among those mentioned in the text of Brihaspati. The re union alleged here is not a re-union of the first cousins. Their re union is but incidental to the re union of their fathers; in other words, if the fathers re-unite, that act by its own force brings about the reunion of their sons. But if it is said that the first cousins were parties to the partition, and, therefore, necessarily parties to the re-union, even then, there is no legal bar to the reunion, as under the Vyavahara Mayukha by which the parties are governed, a person may re-unite with any relation who was a party to the original partition. The contention advanced on behalf of the plaintiff, is, therefore, unsound, and must be rejected,
15. The third point--Mr. Varadachari next contends that re-union merely gives rise to a rule of preferential succession, but does not lead to a restoration of the co parcenary; when there is a disruption of a joint family that disruption is once for all, the members who have gone asunder can never again come together. Mr. A. Krishnaswami Ayyar for the defence urges, on the other hand, that re union cancels the partition and remits the parties to their original status and that they thus become subject to all the incidents of a Hindu co-parcenary. The preponderance of the authority of the commentators seems decidedly to favour the view put for ward for the defence. Where the Mitakshara prevails, a re-united brother (just as in the case of non-division) succeeds in preference to the deceased's widow, How can this be explained on the theory that re-union merely gives rise to a rule of preferential succession? If the effect of the re-union is to reject a relation not associated, in favour of a relation so associated, on what ground is a wife excluded, who lived in union with her husband during his life? The conception underlying the exclusion of the widow seems to be, that there has been a restoration of the co-parcenary.
16. Mr. Taradachari points out that it is not universal rule that a re-united relation, if preferred to one unre-united. He gives the 1 following examples:
(1) If the deceased leaves a re-united full brother and an unre-united half-brother, each taken a moiety of the property.
(2) Then, again, as between a re-united full brother and a re-united half-brother, the former excludes the latter.
(3) In the case of a competition between a re-united brother and a divided unre-united son, the latter is preferred.
(4) If the deceased leaves a re-united son and an unre united son, they both take together (although this rule is not accepted by all the schools).
17. These instances show, Mr. Varadachari urges that the rule of survivorship does not apply in its integrity in the case of re-union. From this, he argues, that re-union does no more than give rise to a special rule of succession. I do not think it can be postulated, that because there are recognized deviations which do not fit in with the scheme of an ordinary joint family, therefore, it follows that re-union does not remit the parties to their original joint family status. It is profitless to speculate on this subject, for the question Ultimately depends on, what is the true conception of a re-united family according to the ancient writers? Mr. Krishnaswami Ayyar and Mr. Varadachari have in their able arguments cited several passages from authoritative works.
18. In Viramitrodaya, there is a discussion, of the wife's right to succeed 'to persons separated and not re-united. Passage after passage shows that the writer assumes that a reunion leads to a recreation of the joint family. The following is a typical passage:
Since when the husband dies unseparated, he had no (specific) share at all, then what will the wife take? And if re united, then although his share has been specified, it was lost by reason of the accrual of a common right over again. Nor can it be argued that there is certainly his undefined share although it is the subject of a common right. For although this be admitted, still on the death of one by whose relation the right became common, the succession of him alone whose right subsists is proper, but not the supposition of the accrual of another's right.' (Setlur's Translation, page, 398).
19. Viramitrodaya is here combating the view of Jimutavahana that a widow is not excluded in a joint or re-united family.
20. Vavahara Mayukha and Sarasvati Vilasa seem also to assume that re-union leads to a restoration of the joint family.
21. There is a passage in the Dayabagha in which this idea is forcibly brought out. It is worth reproducing and is thus rendered by Sircar in his Viramitrodaya.
22. 'Accordingly Vrihaspati says.--'He who having been separated dwell together again, through affection with the father, brother or the paternal uncle is called reunited with him. From this text it appears that the father, brother and the paternal uncle who are from their birth likely to be united as regards the property acquired by the father and the grandfather, they alone may become re-united when having been once separated they annul through mutual affection the previous partition with an agreement to the effect that the wealth which is mine is thine and what is thine is mine, and remain as one householder as before in commensality and undivided (in any transaction), Those, however, who are unlike these are not to be considered re united by reason of the mere union of property; for if that were so, then the term re-union would be applicable to a joint stock company of traders. Accordingly the term re-union is not applied to brethren who manage their estate holding them joint for the sake of convenience, but are without the stipulation based upon affection.'
23. Smriti Chandrika alone sounds a note of dissent. It deals with the status of re-union as a strictly contractual relation giving rise to certain special incidents and says that the shares shall on a partition correspond to the original capital brought in by each person at the time of the re-union, There are obiter dicta of Sankaran Nair, J., (sitting alone) in Alamelumangathayarammah v. Namberumalchetty 23 Ind. Cas. 824 : 15 M.L.T. 352 where the learned Judge accepts this doctrine. But this is opposed to the decisions of this Court and I am not aware of any other Case in any part of India where this view has been adopted.
24. I shall now examine the decided cases on the point.
25. Varaha Narasimhacharlu v. Vencata Singaramma 3 Ind. Cas. 741 : 33 M. 165 : 19 M.L.J. 719 : 6 M.L.T. 266 decided by Wallis and Miller, J., is a useful case on the point. Two brothers A and B re-united of whom A died leaving C his son, born subsequent to the re-union. On C's death, who succeeded to his property, D his widow or B his uncle? It was held that the rule of survivorship applied and the uncle was preferred to the widow. This case establishes-
First, that by re-union, a joint interest with right of survivorship is created and not merely a tenancy-in-common, and
Secondly, that the state of re-union continues with descendants of the re-uniting parties.
26. In this case, it is to be observed that the lower Court took a different view, the view now pressed by Mr. Varadachari; and the judgment is valuable, as it was given after very full arguments were heard on the point.
27. This case (and not Ramasami v. Venkatesam 16 M. 440 : 3 M.L.J. 107 : 5 Ind. Dec. 1013 as is wrong stated in the judgment) was followed in Nena Ojha v. Parbhu Dutta Ojha : AIR1924Pat647 where the Patna High Court held that the effect of a reunion is to restore the joint family status, with its incident of survivorship. When two brothers governed by the Mitakehara Law, after separation agreed to be joint, stipulating, however, that they should hold the property in unequal shares, the learned Judges decided that there was no valid reunion, on the ground that the condition was opposed to the essential character of a Hindu co-parcenary, relying upon the text 'The property which is mine, is thine, and that which is thine, is mine.' See also Gopal Chunder Daghoria v. Kenaram Daghoria 7 W.R. 35.
28. In Kristnayya v. Guravayya : AIR1921Mad443 the property to be partitioned was that of reunited brothers; but the rules which guided the Court in every respect were those which would be enforced in the case of an ordinary Hindu co-parcenary. The point was fully discussed by Phillips, J, with reference to the doctrine, which the learned Judge refused to accept, namely, that the shares are proportionate to the capital contributed at the time of the re-union. The general principle was recognized that the rules governing the relations of parties after re-union in respect of partition, are those applicable to an ordinary joint Hindu family.
29. Ramaswami v. Venkatesam 16 M. 440 : 3 M.L.J. 107 : 5 Ind. Dec. 1013 is relied on as supporting the opposite contention. As has been pointed out in Varaha Narasimhacharlu v. Vencata Singaramma 3 Ind. Cas. 741 : 33 M. 165 : 19 M.L.J. 19 : 6 M.L.T. 266 this case does no more than give effect to some express texts of the Hindu Law, which modify the strict rule of survivorship in favour of unre-united uterine brothers.
30. Some light is thrown on the subject by the observations of the Judicial Committee in Prankishen Paul Chowdry v. Mothooramohun Paul 10 M.I.A. 403 : 5 W.R.P.C. 11 : 1 Suth. P.C.J. 609 : 2 Sar. P.C.J. 164 : 19 E.R. 1025 which have been relied on in subsequent cases. If, after separation, and before re-union, one of the brothers acquired a property out of funds which had once been joint, did the property become that of the re-united members, or, did it belong exclusively to the party who acquired it? While holding that all the members who re-united became entitled to it, their Lordships, as the ground of their decision (apart from the deed which regulated the rights of the parties) states the rule, that re-union of brothers remits them to their former status as members of a joint Hindu family, (Seepages 406 and 412 Page of 10 M.I.A.-[Ed.].)
31. The dicta in Kristrayya v. Venkataramayya 4 Ind. Cas. 1077 : 19 M.L.J. 723 (decided by three learned Judges of this Court), Jasoda Koer v. Sheo Pershad Singh 17 C. 33 : 8 Ind. Dec. 561 and Abhaichurn Jana v. Mangal Jana 19 C. 634 : 9 Ind. Dec. 865 are clearly to the same effect. In at least three cases, the Judicial Committee has used language which implies that re-union remits the parties to their original status, Jetti v. Banwari Lal 74 Ind. Cas. 462 : 50 I.A. 192 : 21 A.L.J. 582 : A.I.R. 1923 P.C. 136 : 18 L.W. 273 : 45 M.L.J. 355 : (1923) M.W.N. 785 : 33 M.L.T. 283 (P.C.); Palani Ammal v. Muthuvenkatchala and Jag Prasad Rai v. Singari .
32. Cases under the dayabagha Law dealing with succession to re-united relations can be no guide, as, whether there is re-union or not, the rule of survivorship does not apply; but there are other incidents attaching to a joint family which are common alike to the Mitakshara and the Dayabagha systems. I have nor, been shown any case, where, in respect of a re-united family, those incidents have been held inapplicable under the Dayabagha Law. I may cite a typical passage to show that the contrary is assumed:
33. 'In other words, we think that, if a reunion actually takes place between the proper parties, their representatives and descendants, however remote, will remain joint until a fresh partition takes place, exactly in the same manner as in an ordinary case of a joint family the members remain joint until partition' Tara Chand Ghose v. Pudum Lochun Ghose 5 W.R. 219 : 1 Ind. Jur. (N.S.) 207.
34. The passage relied on by the plaintiff in Balabux Ludhuram v. Rukhmabai 30 I.A. 130 : 30 C. 725 : 7 C.W.N. 612 : 5 Bom. L.R. 469 : 8 Sar. P.C.J. 470 (P.C.) does not help him. The partition was between two brothers Ladhuram and Girdharlal. It was alleged that there was a re union after Ladhuram's death between Bala Bux, his minor son and Girdharlal, his brother. Their Lordships relying upon the well known text of Brihaspati, 'He who being once separated dwells again through affection with his father, brother, or paternal uncle is termed re-united,' observe, that a re union, properly so called, can only take place between persons who are parties to the original partition. It is assumed that Bala Bux was not such a party, (in the report, there is no clear indication of his existence on the date of the partition). Their Lordships were further disposed to hold that a valid agreement to re-unite cannot be made by or on behalf of a minor. I fail to see how this case has any bearing on the present question. The re-union alleged in the present case is a re union between the fathers who were parties to the partition itself, and that fact further necessarily excludes any question of minority, In the result, I am not prepared to uphold the contention of Mr. Varadachari.
35. The fourth point.--(a) General.--At the outset, I must mention that though this point expressly relates to re-union, the case of non-division as well as re-union depends upon the same evidence and it w, therefore, needless to examine it under two separate heads. The plaintiff's case is, that the partition of 1890 effected a complete severance between the five bro there and that thereafter Murali and Govardhan traded in co partnership. For the defence in is urged, that the deed of partition did not affect their status but that if it did, their separation was followed by a re-union. Two alternative dates for re-union have been suggested; first, 1890, immediately after the partition; secondly, 1900. According to the plaintiff, the partnership originally consisted of Murali and Govardhan, and it years after wards, i.e., in 1906 their sons, Krishnadas and Gokuldas were admitted into the firm as partners. He relies upon a very important piece of documentary evidence, a notice dated 19th October, 1906, published by Murali and Govardhan, in the Madras Mail and in the Fort St. George Gazette (handbills were also distributed), announcing that Krishna and Gokul were taken as partners from the 19th of October, 1905, and that the name of the firm would remain unchanged. Thus, we have a definite case of partnership as against the case of co-parcenary. Which of these two versions is the correct version? numerable deeds and pleadings of parties have been filed, which contain recitals which are now relied on. When the trial was in progress, it seemed at one time, that there was irreconcilable and hopeless conflict between the documents filed for the plaintiff and for the defence. For example, if the plaintiff produced a plaint which described the parties as co-partners, his opponent immediately handed up another, which described them as members of a co parcenary. Similarly if a sale-deed was filed by the plaintiff which showed that the parties belonged to a partnership pure and simple, the defence produced by way of answer, a power-of attorney, which referred to them as members of an undivided joint family. A careful analysis of the documents filed has, how ever, shown very clearly, that this conflict is more apparent than real and that in truth no confusion can possibly arise if the importance of certain events is borne in mind.
36. His Lordship then considered the evidence and proceeded:
37. The result of this investigation is, that from 1898 to 1909, the parties, with whose state of mind we are concerned, repeatedly made solemn declarations, in deeds as well as in pleadings, under the guidance, of several legal advisers--declarations which lead to the irresistible inference, that their status was not that of co parceners but of separated members who combined and traded as partners. If this is the effect of the documents, it may be asked, where then is the conflict to which reference has been made? When the principal partners died, the grave problem that faced the survivor or survivors was--How was this business to be carried on? Would it be more profitable to hold themselves out as surviving partners of a trading partnership or members of an undivided joint family? The advantages of inducing the public to believe that there was a joint family, were obvious and we find Gokuldas shaped his conduct accordingly. This then is a definite land-mark, For a brief period, there was some hesitation and uncertainty on the part of Gokuldas; but he soon made up his mind and proceeded to describe himself as the manager of a joint family. He could by adopting that course, carry on business unhampered, and what is more important, ho could more freely deal with and dispose of immoveable property. This furnishes the key to the solution of the question. Now, in rapid succession, some statements have been relied on for the defence. But of what use are these statements? It is not suggested that there was a re-union in 1917 or 1909 and we are not concerned with what the parties or any of them said or did about that time. I have referred to a plaint filed in December, 1908, [Ex. IV (6)] by Messrs. Grant and Greatorex for Govardhan and Gokul. Govardhan died in September, 1909, and Gokul became the sole surviving plaint-ill. On the 28th of October of that year he got his plaint amended and the present plaintiff Babu and the present 2nd defendant Dwarka, were then brought on the record the amendment was halting and does not go far enough as no mention was made of co parceners. At the Same time, Gokul got some of the other plaints also amended. (Exhibits IV-E, IV, IV-F and IV-G, etc.) I have said that those plaints were also filed by Govardhan and Gokul. If Govardhan died, was that a reason why Babu and Dwarkadoss should be brought on the record in his place? Advantage was taken of Govardhan's death to introduce for the first time allegations as to co-parcenary. Wherever the words 'partners' and 'partnership' occurred in the plaints, they were scored out and fresh words 'co-parceners' and 'joint family' were substituted. He takes advantage of every opportunity to reiterate the statements about co-parcenary. I may by way of illustrations, refer to the power-of-attorney, dated 11th December, 1909, (Ex. III). What a contrast between the statements in this and those made in Exs. K and L? I do not think I need pursue this matter further. For easy reference, I append to this judgment, a tabular statement of the documents bearing on this point, arranged chronologically. That has been shown to the Counsel in the case who have found it correct. It shows at a glance the gradual development of the theory of co-parcenary.
38. In this connexion, I must refer to a transaction which shows how hard put to it was Gokul, to reconcile his previous statements with the attitude which he now took up. In Muralfs lifetime a mortgage was taken from Rajah Muthukrishna (Ex, H) in favour of the former, Govardhan, Krishna and Gokul and they were described as partners trading under a certain name. After Murali's death, this mortgage was superseded by a renewal, dated 4th November, 1907, (Ex. I) which was taken in the names of Govardhan, Krishna and Gokul. They are described as members of a joint Hindu trading family. They were aware that this description conflicted with that in the original mortgage. They got over the difficulty by misquoting the words of the earlier deed thus making it appear that the words 'joint family' were not newly introduced. In regard to the second of these two deeds, a point is made, that it was taken inter alia in the name of Krishnadas; but 1 do not think this affects the case in the slightest degree. It is not necessary to go so far, as to hold that he was not able at that time, owing to illness, to transact business; for what is his acquiescence in the averments in the deed, worth, in the face of the overwhelming evidence to which I have referred? Apart from the other evidence in the case, it is impossible to attach any value to this, opposed as it is, to his declarations of a different kind, made about the same time. The fact is of paramount importance--that during the space of 17 years, from 1890 to 1907 the death of Murali, not a single statement is to be found, made by any person, to the effect that the parties were a member of a co parcenary. The two men who best knew the state of affairs were Murali and Govardhan; and why did they continue to describe themselves as co-partners? It is common ground that Murali was a man of affairs, engaged in extensive trade, well versed in business matters, acquainted with Law Courts and frequently turning for aid and advice to men learned in the law. Expressions such as 'joint family' and 'managing members' are familiar to every Hindu of Murali's position. Indeed, the very deeds that have been filed, while describing the brothers as co partners, refer (the contrast is marked) to the other parties to the transactions, as members of a joint family. The contention is unfounded, that the parties resorted to the fiction of partnership, because in business dealings that was found useful. Why as has been suggested, for the purposes of the outside world, or to impress third parties, they should have had recourse to this device, I fail to see. If in Ex. D the words 'till our partnership is dissolved by a proper deed' were not found, there might be some show of reason in the argument, that it was brought into existence, in order solely to conform to certain rules and conventions observed in the business world. But these words are of decisive importance. The public might insist upon Borne formal writing, showing that Krishna and Gokul were empowered to deal with third parties; supposing that is granted, how was the public concerned in the recital as regards the contemplated dissolution of the partnership? Apart from that, if the suggestion is, that members of a joint Hindu family cannot conveniently carry on business, without styling themselves partners, this certainly is opposed to one's daily experience.
39. I am not unmindful of the fact that subsequent to Murali's death, Govardhan was a party to two documents where words suggestive of co-parcenary were used. Does this fact advance the case for the defence? In Ex. D, Murali refers shortly before his death to Govardhan's illness. In Exs. K and L Govardhan is referred to as not being in his right mind. Of what value are statements of such a man, especially when they are in direct conflict with other countless statements, made by him both before and after these deeds?
40. It is then contended that every active adult member of a joint family is, in the eye of the law, a partner in the trade, in which he participates. It was in that sense, it is argued, that Murali and Govardhan used the words 'partner' and 'partnership'. This is a far-fetched argument. Does any Hindu ignore the primary fact that he is a member of a joint family and consistently and repeatedly describe himself as a partner? The very facts of this case show the futility of this contention. If the two sets of expressions convey the same meaning, why did the new phraseology suddenly find exclusive favour subsequent to 1909?
41. What does the announcement of 19th October, 1906, amount to? Does it or does it not accord with the theory of partnerships? Till then, Murali and Govardhan represented in partnership, two distinct joint families--each representing an entity consisting of himself and his son or sons. In strict law, the partners in the business were these two individuals, and not the two families which they represented. By reason of the step then taken, Krishna and Gokul ceased to be what they till then were, dormant paeeive co-parceners, but thence forward assumed a new position--that of active partners.
42. I may conveniently deal here with two other arguments put forward with great force by Sir C.P. Kamaswami Ayyar. He first comments on the fact that the plaintiff has not adduced oral evidence. Is it the plaintiff's fault, that his grandfather Murali, granduncle Govardhan and his father Krishna are dead? As for Gokuldas, though he may be suspected of collusion with the plaintiff, it is inconceivable that he should be cited as the plain tit's witness, having regard to his conduct and statements since 1909. Granting that the plaintiff was so rash as to examine Gokul, would the latter imperil his position by deposing against the Official Assignee, who now represents his estate
43. Adverse comment has also been made, that the plaint as originally filed, was on the footing of a co-parcenary, and that allegations in regard to partnership were subsequently added by way of amendment. When the suit was instituted, the plaintiff was a minor and was represented by his next friend, Laldas, his paternal aunt's husband. True, this man lived with the family from about 1891 and might be expected in the ordinary course, to be aware of the right legal position. But the theory of co-parcenary won by degrees upon those concerned from 1909 to 1923 (a period of 15 years), and Laldas, like others in tins case, came to believe in the falsehood so persistently repeated. During the whole of this period, the plaintiff was a minor and he cannot be affected by what others thought or did.
(b) Account--Now I pass on to another kind of documentary evidence that has been adduced. It consists of entries in innumerable account-books and each side relies upon them in support of its own theory.
44. A great deal of labour has been expended by the parties to the suit, in classifying and analysing these accounts and I have had the advantage of elaborate arguments on this point of Mr. S. Duraiswami Ayyar and Sir C.P. Kamaswami Ayyar.
45. The account-books (in the same way as the documents to which I have referred) have been relied on as evidence of conduct. The former, however, stand on a somewhat different footing from those documents. While both afford evidence of conduct, in the case of the documents referred to, they contain statements of the parties explanatory of their conduct and such statements are direct evidence of the state of their mind. But in the case of the accounts, they are useful only as furnishing material from which certain inferences can be drawn. One has to bear this in mind, but still the question is, do these accounts disclose a state of things different from that which the documents have shown
46. After a further discussion of the evidence, the judgment proceeds:
47. I have fully discussed the facts bearing on re-union. Let me now sum up the position briefly:
(1) If after Murali and Govardhan became separate by reason of the partition, they carried on business jointly, it would be more proper to infer that they combined to trade as partners than that they intended to re-rert to their original position of members of a joint family. This would not only be the proper but natural inference.
(2) Jointness in residence, food and worship does not necessarily connote re union, no more than is a separation in these respects, conclusive proof of partition. The facts of this case make the first part of this proposition self-evident. After the partition, it was not only Murali and Govardhan that lived together but all the fire brothers, yet the alleged re-union is only between those two and not between the five. Again previous to 1900, at any rate, so far as but batoyadas was concerned, expenses of his mess and worship were met out of the common fund; it is not on this account suggested that Subbaroya became a member of there-united group. Then, subsequent to 1900, all the five brothers met their expenses--both household and worship out of the same fund; from this it is not argued, that the five brothers became re united.
(3) Though Murali and Govardhan bore in common, certain expenses, which fact suggests a co-parcenary, there were many transactions, which partake of the nature of a strict accounting between the parties; and this is utterly incompatible with the theory of a joint family. Division into shares, of expenses of house keeping and worship expenses is essentially a characteristic of a separated status.
48. In this connection, it is important to bear in mind the observations of their Lordships of the Judicial Committee that a re uniting is for obvious reasons 'of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved'--See Palani Ammal v. Muthuvenkatachala see also Balabux Ladhuram v. Rukhmabai 30 I.A. 130 : 30 C. 725 : 7 C.W.N. 612 : 5 Bom. L.R. 469 : 8 Sar. P.C.J. 470 (P.C.).
(4) The entries in the account-books by reason of their ambiguity may be inconclusive, but the declarations of Murali and Govardhan as to their own state of mind are unequivocal, and they show that they treat ed themselves as members of a partnership.
49. These affirmations are particularly valuable, as they range over a long period and are found in deeds and pleadings prepared by their legal advisers.
(5) After giving due weight to such facts, as (if they stood alone) might point to a re-union, I have come to the conclusion, that the hypothesis which best reconciles all the facts of the case is, that Murali and Goverdhan agreed to carry on business as partners and not to re-unite as members of a joint family.
50. In the view I have taken, it is unnecessary to decide whether Gokuldas exceeded his power, as the managing member of a trading joint family, in entering into transactions in the name of the Madras Import Co. If a finding were necessary, I am prepared to hold that the plaintiff has not made out this part of his case. Indeed, no argument has been adduced by his Counsel to show that this business was in any way different from the business which had been previously carried on.
51. I must add that I ruled out certain documents which Sir C.P. Ramaswami Ayyar tendered in evidence as being utterly irrelevant. In adducing that evidence, he sought to show that in another Guzarati family, junior members were held out as partners although that family was undivided. He tendered a notice published in the papers to the effect, that the said persons were partners; also a partition deed, which bore a date later than the notice. He puts his case thus: The partition deed being later in date, shows that on the date on the notice, the junior members in question were members of a coparcenary; in spite of that, they were publicly put forward as partners; if such a thing happened in connection with one family, why should it not be assumed that it happened in connection with another? The danger of accepting such evidence is obvious. Apart from any rule of evidence, before any conclusion can be drawn from the facts alleged, one must first find that those facts are true. In short, the Court must embark upon an enquiry as to the facts and circumstances of the family, to which the notice and partition deed relate. I have not the slightest doubt that they are inadmissible, but I have considered it desirable to give my reasons.
52. In the result, I declare that the plaintiff is entitled to have an account taken of the affairs of the partnership as on the date of the death of his father, namely, the 13th August, 1108.
53. The Receiver shall pay the plaintiff as well as the Official Assignee their costs of the suit. I certify for two Counsel for the Official Assignee. I fix the further remuneration of the guardian ad litem at Rs. 2,000 which the Receiver shall pay. (He has already been paid Rs. 500.)
54. In regard to further proceedings, I am asked to adjourn the case till after the reopening and I. do so accordingly.