BHURU MAL Vs. JAGANNATH

JUDGEMENT

(1.) This appeal is brought by defendant 1 to a partition suit. The appellant Bhuru Mal is the only son of Ram Gopal, who died in September 1932 and plaintiff 1 is his uncle Jagannath, whose two sons are also plaintiffs. The appellant's co-defendants are his uncle Gulzari Mal and Lallu Mal, the latter's son. The plaint claimed partition of the property comprised in seven schedules or lists lettered A to G. By one of the two decrees now under appeal which were passed by the Chief Court of Oudh on 29 September 1937, partition of the whole of this property has been directed. The Chief Court varied the decree which had been made on 22nd December 1934, by the trial Court, the Subordinate Judge of Partabgarh, both as to the plaintiffs' share and as to the assets to be divided. They held the share of the plaintiffs to be a one-third share and not an eighteenth share as the trial Court had declared in respect of all save one (item 2 of List A) of the items which it had included in the decree. The trial Court had excluded from the partition the two houses in Macandrewganj occupied by Gulzari Mal and Jagannath respectively, being items 2 and 3 of List A. It had also excluded the whole contents of Lists E, F and G-E being a list of the assets of a business carried on since 1909 in the name of Gulzari Mal, while F and G are lists of assets and liabilities respectively of a business carried on since 1931 in the name Bhagwan Sahai Jagannath Prasad. These items were all included by the Chief Court's decree.

(2.) The property which both Courts in India held liable to partition consisted of eight items of house property in List A, of which two are at Rajwara and the vest in Partabgarh; four of zemindary property (List B); the assets of a business carried on since 1908 in the name Gobardhan Das Ram Gopal (List C); and of another business subsidiary to it carried on since 1926 in the name of Ram Gopal Bhuru Mal (List D). The appellant Bhuru Mal has throughout resisted any decree for partition, maintaining that the suit should fail altogether; and at the trial Gulzari Mal supported this contention. The plaintiffs and Bhuru Mal brought separate appeals to the Chief Court, the plaintiffs' appeal succeeding and that of Bhuru Mal being dismissed. These appeals were stoutly contested by their learned advocates, but before the Board no one appeared on behalf of the plaintiffs. Mr. Rewcastle, for the appellant Bhuru Mal, took every care to present his appeal in such a manner as might assist their Lordships to appreciate the plaintiffs' case and the evidence which tells in their favour, and their Lordships express their indebtedness to him for this careful discharge of his duty. The absence of any argument for the plaintiffs, though compensated in great measure by the thoroughness of the judgment delivered in the Chief Court, is the more to be regretted that the evidence upon certain issues is by no means easy to interpret.

(3.) To appreciate the matters in issue it is necessary to refer to the history of this Marwari family, of which the pedigree table gives some particulars. Their place of origin or "native village" was Rajwara in the State of Alwar. Gobardhan went from Rajwara to Macandrewganj at some date which the Chief Court fix as between 1874 and 1879. Having set up a business or shop - mainly it would seem in piece-goods-he sent in 1879 for his nephew Tota Ram, who was then eleven years old, and a few years afterwards for Ram Gopal, who is said to have been about nine. These boys-the only son of one brother and the eldest son of the other-lived with Gobardhan and were engaged with him in the conduct of the business until his death in 1903. By this time, Tota Ram would be about thirty-five and Ram Gopal about twenty-six, though these figures cannot be taken as accurate. The business flourished under the name and style of Gobardhan Das Tota Ram. When Gobardhan died, these two nephews continued living with his widow, but Tota Ram died in 1905 by which time his eldest son Onkar Nath g had been for a year or two working in the shop. In 1907 the widow died and in 1908 Gulzari Mal came to Macandrewganj and was given money and cloth by his elder brother Ram Gopal to set up a shop in his own name. This is the shop mentioned in List E. Later on, in 1917, he bought himself - as he says out of his own monies - the house which is item 2 in List A. In August 1908, Onkar Nath and Ram Gopal divided the business assets of the firm of Gobardhan Das Tota Ram and made two separate businesses out of it-one carried on thenceforward by Onkar Nath under the old name of Gobardhan Das Tota Ram, the other by Ram Gopal under the name Gobardhan Das Ram Gopal. The division was made, nominally at least, as between Onkar Nath and Ram Gopal as individuals but this, of course, is not conclusive: as Onkar Nath could not very well have h any other or better right than his brother Shambhu Nath the division may have been intended as a division between the branches of Kishen Sahai and Bhagwan Sahai, both of whom it may be noted were then living. If once the persons entitled to the business of Gobardhan Das Tota Ram can be ascertained the character of this partition will become apparent, but of itself the partition throws but an uncertain light upon the question as to the persons entitled. In 1909 Bhagwan Sahai died. In 1912, there was a partition award in a suit between Onkar Nath and Ram Gopal as to some assets of the old business of Gobardhan Das Tota Ram which had not been divided in 1908. It was held that Rs. 3000 had been given to Kishen Sahai "for expenses" and that Gobardhan's one-third share in the haveli at Rajwara was divisible between "the parties" in equal shares. Kishen Sahai died in 1915.