Separation in a Hindu joint family can be proved by evidence of statements made against interest under S. 32 (3) of the Evidence Act.

Judgment

Mukherjea, J. - This appeal is directed against a judgement and decree of a Division Bench of the Patna High Court dated 2nd March 1949 by which the learned Judges reversed, on appeal, a decision of the Second Additional Subordinate Judge of Saran in Title Suit No. 24 of 1941.

2. The controversy between the parties to the suit centres round only one question of fact viz., whether the plaintiff s father, who died in 1926, was joint with or separate from his nephew, defendant 1, at the time of his death. If he died separate it is not disputed that his properties would devolve by inheritance upon his widow and after the death of the widow would vest in his daughter, who is the plaintiff the suit. If, on the other hand, he died joint, his interest in the joint properties would pass by survivorship to defendant 1, who together with his male descendant constitute a joint Hindu family governed by the Mitakshara law.

3. It may be convenient at the outset to give a brief resume of the material facts as they appear in the pleadings of the parties. Oue Sheo Narain Sah, who was the grandfather of the plaintiff as well as of defendant 1 had three sons; (1) Imrit, (2) Janki and (3) Ram Narain. Imrit s branch is represented by defendant 11 and 12 in the suit, and they are his son and grandson respectively. Janki s only son is Ram Saran, defendant 1. Defendants 2 to 4 are the sons of defendant 1 and defendant 5 to 10 are his minor grandson. Ram Narain died in 1926 leaving behind him his widow Sumitra and a daughter Rameshwari who is the plaintiff in the suit. Sumitra died in 1933 and the plaintiff claims to be the sole heir of Ram Narain after the death of her mother. According to the plaintiff, there was a complete separation between the three sons of Sheo Narain in food, estate and business nearly 65 years prior to the institution of the suit. After separation, Ram Narain and Ram Saran, defendant 1, did carry on a cloth shop jointly and dealt with the profits of this business together, as well as acquired properties in their joint names. But these properties and interests they could and did hold as tenants in common. Sumitra was a woman of weak intellect and after the death of Ram Narain, she was completely under the influence of defendant 1 and his sons. It is stated in the plaint that in the year 1926 defendant 11, who is the son of Imrit, instituted a suit at the instigation of defendant 1 and his sons in which he denied the separation of Imrit from the joint family and claimed the properties in possession of defendant 1 and his sons as the joint properties of the family. That suit, it is said, ended in a collusive compromise and Sumitra was made to file a collusive written statement in that suit as well as to depose falsely on commission to the effect that her husband died joint with defendant 1. The plaintiff herself brought an earlier suit on much the same allegations as she has made now but that suit she had to withdraw because of some formal defects. The present suit was instituted on 20th December 1940 and the plaintiff prayed for recovery of possession of the properties specified in Schs. 1 to 4 in the plaint together with mesne profits both past and future.

4. Defendants 11 and 12 did not appear or contest the suit. The suit was contested by defendants 1 to 4 who filed one joint written statement. Another written statement and that of a formal character was filed on behalf of the minor defendants by their pleader guardian appointed by the Court. The material thing stated in this written statement was that the natural guardians of the minors in spite of notices being given to them did not properly instruct the pleader guardian.

5. The defence of defendants 1 to 4 in substance was that there was no separation between Ram Narain and defendant 1 as alleged in the plaint, but that after the death of Janki the father of defendant 1, Imrit alone separated himself from Ram Narain and defendant 1 when the latter was only five years ol