PRATUL CHANDRA BHADURI Vs. PURNA CHANDRA BHADURI

JUDGEMENT

(1.) These appeals have arisen out of a suit for partition and accounts. The plaintiff in the suit, Purna Chandra Bhaduri, and the defendants trace their descent from the common ancestor Madan Gopal Bhaduri, who had five sons : 1. Iahan Chandra Bhaduri, 2. Shib Chandra Bhaduri, 3. Jagat Chandra Bhaduri, 4. Kashi Chandra Bhaduri, and 5. Mahes Chandra Bhaduri. The fourth son of Madan Gopal, Kashi, had five sons, 1. Ram-Chandra (defendant 5), 2. Krishna Chandra, adopted son of Ishan and Indra-moni (wife of Ishan) and renamed as Hem Chandra on adoption, defendant 1, in the suit, 3. Purna Chandra, the plaintiff, and 4. Tarak Chandra, adopted son of Mahes and Umasundari (wife of Mahes), and renamed as Ramesh Chandra on adoption. Ramesh Chandra died leaving him surviving as his heirs defendants 2, 3 and 4 in the suit. The case of the plaintiff before the Court was that Shib separated from the joint family in the year 1864, and that Jagat separated in the year 1875. After these two separations, the branohes of Ishan and Mahes represented by adopted sons, the uterine brothers of Earn and Purna, lived in commensality with Kashi's branch represented by Ram and Purna. There was, according to the plaintiff, jointness in mess and worship as well as in property and there was disruption of the joint family some time in September 1928, till which time the members of the joint family consisting of the branches of Ishan, Kashi and Mohes continued to be joint; the three branches of Ishan, Kashi and Mohes remained joint for the whole period from 1875 to 1928. According to the plaintiff, whatever property or share of property was sold or was acquired during this period of time, belonged to the coparceners having their share in the property. It may be mentioned that some of the items of property mentioned in the plaint are admittedly joint as claimed by the plaintiff; and the controversy between the contesting parties, the plaintiff and defendant 5 on the one hand, and the original defendants 1 to 4 on the other, related to item Ka (3), items Ka (4 to 9) items Ka (10 to 12) mentioned in the plaint.

(2.) The main defence in the suit related to the position taken up by the contesting defendants, that after the separation of Shib in the year 1864, and after the separation of Jagat in the year 1875, the joint family ceased to exist. There was separation in mess and separation in property. Defendants 1 to 4, Hem and the sons of Romesh asserted their exclusive title to the different items of property referred in the foregoing paragraph, items Ka (3 to 12), mentioned in the plaint. On the pleadings of the parties, a number of issues were raised for determination in the case bearing upon the merits of the claim of the contesting parties and on other matters. The Judge in the trial Court passed a decree for partition of immovable properties in the manner stated in his judgment. The claim for accounts made in the suit was dismissed and the prayer for partition of moveables mentioned in the plaint was disallowed by the Court of first instance. Defendants 1 to 4 appealed to this Court. Appeal No. 255 was by defendant 1 who died during the pendency of the appeal, and is represented now by his heirs and legal representatives. Appeal No. 284 was by defendants 2 to 4. The appeals related to the items of property claimed by Hem and Ramesh as their exclusive property and to which Purna and Ram had no title. There were cross objections preferred by the plaintiff, directed against the decree of the trial Court disallowing his claim for accounts and partition of moveables, The cross-objections were in Appeal No. 255. In these appeals, the case before the Court was argued by learned advocates for the appellants as mainly depending upon the separation of Shih in the year 1864 and the separation of Jagat in the year 1875. It was according to the appellants to be presumed that these separations resulted in the entire disruption of the jointness of family in mess and jointness in property. The question of jointness which was treated as a question of fact in the trial Court was sought to be argued before us as one of law; and we are led to believe that it was adversely done. The material evidence consisting of documents on which definite findings have been arrived at by the Court of first instance were not inserted in the paper books prepared in these appeals. The question of non inclusion of material documents in the paper books was considered by the Court at a previous stage, and the appellant persisted in the course adopted by them with the result that the order was passed on 2 March, 1936 in which it was distinctly mentioned that the appellants were not to be allowed to challenge the conclusions arrived at by the trial Court, with reference to documents which were not inserted in the paper-books.

(3.) That there was separation of Shib in the year 1864 from the family with all its consequences, there was no question. In the year 1875, Jagat separated. So far as Shib was concerned, the matter was not in controversy that he separated in mess and property; it was a complete separation. In the case of Jagat however, the materials on record clearly indicate that his separation in 1875 was not a complete one; the element of jointness in property still remained in the case of Jagat after 1875, and continued to remain for a long time after that. There was a separation of interest as evidenced by the Collectorate robakari (Ex. H in the case) of the year 1869, portions of which document have been printed in one of the paper- books before us, but material portions of the same to which pointed reference has been made by the trial Court in its judgment, indicating that since Shib's separation, there was one Kuchery for Shib and another for Ishan's widow Indramoni. Jagat, Kashi and Mohes, were not inserted for reasons best known to the appellant. The materials in the record indicate clearly that Kashi, Jagat, Mohes and Ishan's widow Indramoni remained joint in spite of the allotments evidenced by Ex. H. The position therefore was that one member of the family separated in mess or property or in both, while the remaining members continued to be joint. There might have been separation in mess at times for convenience and necessities of parties concerned. The question before the Court was whether any presumption of fact that might arise from the separation of Shib or Jagat in mess and property, from the branches of Ishan, Kashi and Maheah, would lead to the conclusion that all the different branches separated in property. There could however be no case of drawing presumption of fact or of law in a case like the present, where evidence was led for the purpose of showing on the side of the plaintiff, that there was jointness in property up till the year 1928 (September), between the branches of Ishan, Kashi, Mohesh. Shib and Jagat might have separated; the other members might have remained joint; it was a question of their intention which had to be proved by evidence. The conduct of the parties concerned must be looked at, in order to arrive at what constituted the true test of separation of property-the intention of the different members of the family to become separate owners. The question was a question of pure fact. After the separation of some of the members, the remaining coparceners may continue to be coparceners and to enjoy as members of a joint family, what remained after the separation or partition of the family property and the case of one or two members of the family, that the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparceners had separated from them. The question therefore, whether after separation of Shib and Jagat the other members of the family remained joint was a question of fact, which had to be decided on evidence on record. (After discussing the evidence their Lordship(c) proceeded.) The above brings to a close the consideration of the case before us on the materials before us.