RAJANIKANTA PAL Vs. JAGAMOHAN PAL

JUDGEMENT

(1.) The facts in this case have been carefully investigated both by the Subordinate Judge and by the High Court, with the result that many of the points originally in dispute are now determined, and the two that remain depend upon the true inference to be drawn from ascertained circumstances and not from the consideration of what those circumstances may be. Upon these two questions there is a difference of opinion between the Subordinate Judge who decided in favour of the appellants and the High Court, by whom his judgment in this respect was reversed, The nature of the points involved will be best understood after a statement of the relevant facts.

(2.) Lal Mohan Pal, who died on February 23, 1891, originally carried on business with one Paju Lal in the sale of yarns and cloths. This business ended in 1882, and therefrom Lal Mohan Lal started a similar business, the head office being at Dacca, with branch places of business at Calcutta and elsewhere. He was, in the business, assisted by his three sons, Madan Mohan Pal, Jaga Mohan Pal, and Radba Gobinda Pal. After the death of Lal Mohan Lal this business was carried on by the three sons jointly as a joint family business, and Madan Mohan Pal asserted that the original capital of the business was largely composed of monies, amounting to Rs. 16,000 and upwards, due to him for services rendered to the original firm. The third son, Radha Gobinda Pal, died on November 1, 1902, having made a will, of which he appointed his brother, Jaga Mohan Pal, as the executor. He had no sons living at the date of his will or of his death, and only one wife Kusum Kumari, who survived him. He conferred upon his wife the power to adopt a son, and provided that if a son was adopted and died within fifteen years unmarried or child lees, his wife should adopt another son, and if he died in similar conditions she should adopt a third. He gave his wife yearly profits of all his immoveable property, except certain monthly allowances in favour of his daughter, such profits to be received by her till the adopted son should attain twenty-one years, and thereafter one-half of the profit was to be received by his wife and one-half by the son. After the death of the wife all the immoveable property was to go to the adopted son, with the provision that until such son had attained twenty-one the estate should remain in the hands of his executor. He gave all his moveable property or karbar to Jaga Mohan Pal, and directed that after realising the debts of the karbar he should pay out of the balance Rs. 2,000 to his wife for performing meritorious acts, Rs. 500 to his spiritual preceptor, Rs. 2,000 to the idol Iswar Radha Syamsunder Jiu, and Rs. 600 to his three sisters, and such sum as would accrue as profit on the investment of Rs. 2,500 for charitable purposes, He died in 1902 and probate of the will was granted to the executor. A dispute subsequently arose between Jaga Mohan Pal, the executor, and Madan Mohan Pal, the eldest son of Lal Mohan Lal. This dispute was due to the assertion by Madan Mohan Pal that he had originally contributed to the business Rs. 16,942 in his father's life-time, and this he claimed as his share in the original joint capital of the business. This was finally settled by the defendant abandoning his claim, and both he and Jaga Mohan gave up their intention of opening separate business and the joint business was continued.

(3.) Following upon this, Madan Mohan Pal gave his third son, Jadu Nath Pal, in adoption to his brother Jaga Mohan Pal; and the fourth son, Preonath Pal, as adopted son to the wife of Radha Gobinda Pal. Jadu Nath Pal died in December, 1906, and following upon his death a breach occurred in the family so that Madan Mohan Pal took his meals separately, gave notice to the defendant dissolving the joint family business, and finally instituted the suit out of which this appeal has arisen, claiming that he was entitled, on partition to a two-thirds share of the joint properties, the moveables and the business