PIYARE LAL Vs. CHUNNILAL

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for a declaration that the plaintiff is in possession of a one anna four pies share in a certain village as proprietor, and that defendant 1, Ghurai Ram has no concern with that share. It is unnecessary to recitethe history of the property which has been fully set forth in the judgments of the Courts below. The whole decision turned upon the question whether Jamna Prasad remained joint with his father Suraj Nath and his brother Suraj Prasad in the year 1908. Suraj Nath is the father of the plaintiff Piyare Lal and of Suraj Prasad and Jamna Prasad. The family remained joint until 1907 in which year the plaintiff sued his father and brothers for partition of his share. Jamna Prasad was absent and exempted from the suit and in 1909 the partition was decreed on a compromise providing that the family property would remain in the possession of Suraj Nath as before and that on his death and on the death of his wife the plaintiff would be entitled to a certain share in the property. In 1908 Suraj Nath and one of his sons, Suraj Prasad, borrowed money on a promissory note from the Kayastha Bank of Gorakhpur and renewed the promissory note in 1911. In 1914 the Bank instituted a suit on the basis of the promissory note and obtained a decree. Before the decree could be executed Jamna Prasad brought a suit for partition on 19 August 1915. This suit was decreed upon a compromise. In 1918 the whole of the family property consisting of five annas four pies was sold, in execution of the Bank's decree, to Ghurai Ram, defendant 1. The plaintiff succeeded in establishing by a suit that his separate share was not affected by the sale. Jamna Prasad executed a deed of gift of a one anna four pies share on 23rd February 1923 in favour of the plaintiff and it is this share which is in dispute in the present suit. The plaintiff's case is that this share was not affected by the auction sale in favour of Ghurai Ram. The whole question is whether Jamna Prasad was joint with or separate from his father at the time when the debt was incurred in 1908.

(2.) It has been argued before us on behalf of the appellant that when Piyare Lal, the plaintiff, instituted his suit for partition in 1907, this had the effect of a disruption of the joint family so that each member of the family became separate. His contention is that _ the separation of one member of a joint family necessarily means the separation of every member of that family. In support of his contention he has relied upon the decision of their Lordships of the Privy Council in Balabux v. Rukhma Bai [1903] 30 Cal 725. In that case it was laid down that there is no presumption when one coparcener separates from the others that the latter remain united. On the other hand, it is not laid down in this ruling that there is a presumption when one coparcener separates from the others that the latter become separate. This ruling does not go the whole length of supporting the appellant's contention. There is no doubt one passage which might be interpreted as partially supporting him but the language is very guarded: In many oases it may be necessary, in order to ascertain the share of the outgoing member to fix the shares which the other coparceners are or would be entitled to and in this sense the separation of one is said to be a virtual separation of all. And their Lordships think that an agreement amongst the remaining members of a joint family to remain united or to re-unite must be proved like any other fact.

(3.) These words might be taken to mean that unless an agreement amongst the remaining members of the family to remain joint is proved then it should be held that there has been a separation between them. The next case cited is Bal Krishna V/s. Ram Krishna . This is also a decision of their Lordships of the Privy Council. In this case they cite with approval a judgment of the Board delivered by Sir John Edge in Palani Ammal V/s. Muthu Venkatachala . In that judgment it was stated: It is also now beyond doubt that a member of such a joint family can separate himself from the other members of the joint family and is on separation entitled to have his share in the property of the joint family ascertained and partitioned off for him, and that the remaining coparceners without any special agreement amongst themselves may continue to be coparceners and to enjoy as members of a joint family what remained after such a partition of the family property.