Judgement

Consolidated Appeal and Cross-Appeal (Nos. 119 and 120 of 1928) from a decree of the High Court (March 29, 1927) which varied a decree of the Subordinate Judge of Banda (April 3, 1925).

The suit was brought in 1923 by one Lal Man claiming partition. He alleged that he was joint with the defendants, and that his brother Gulzari Lal having died in 1920 he was entitled to a one-third share in the properties scheduled. The defendants by their written statement alleged that Lal Man had separated in 1907, and that he had received the whole of the one-fourth share to which he was entitled. The plaintiff having died pending the trial, his daughters sons, the respondents to the first appeal, were substituted for him ; the appellants to that appeal were the defendants.

The Subordinate Judge dismissed the suit. He found on the evidence, which included account books of the family, that Lal Man had separated in 1907, and that the other members of the family had remained joint; also, that by 1914 he had realized the whole of the one-fourth to which he was entitled.

Upon appeal the High Court, the learned judges (Mears C.J, and Dalai J.) affirmed the findings that Lal Man had separated in 1907 and that the other members had remained joint; they stated that entries in the books could not be explained on any other supposition. They were, however, of opinion that Lal Man had not realized the whole of his one-fourth share. They made a decree on that basis.

Both parties appealed to the Privy Council.

1931. Feb. 17, 19, 20. Dunne K.C. and Dube K.C. for the defendants.

De Gruyther K.C. and Parikh for the plaintiffs.

[In addition to cases referred to in the judgment, reference was made to Balkishen Das v. Ram Narain Sahu (( 1903) L. R. 30 I. A. 139.) and as to concurrent findings to Narendra Nath Dutta v. Abdul Hakim. (( 1928) L. R. 65 I. A. 380.)]

March 19. The judgment of their Lordships was delivered by

SIR GEORGE LOWNDES. The suit out of which these consolidated appeals arise was instituted in the Court of the Subordinate Judge of Banda on June 26, 1923, by one Lal Man, praying for a partition of joint family properties.

The family of which he claimed to be an undivided member consisted originally of himself and his three brothers, Kanhaiya Lal, Hazari Lal and Gulzari Lal, Lal Man being the eldest of the four and the karta of the family. They were admittedly governed by the Mitakshara law. The properties of which partition was claimed consisted mainly of the assets of a family money-lending business, and certain houses and land.

Kanhaiya Lal died some time prior to 1907, and Hazari Lal in 1908, but their stocks were adequately represented by their sons. Gulzari Lal died childless in 1920. Lal Man was the last survivor of the brothers and claimed by his plaint to be entitled to a one-third share of the family properties. He had no male issue, but only sons of a daughter, who would, of course, be outside the joint family. Lal Man died pending the trial before the Subordinate Judge, and his grandsons were brought on the record as his heirs and continued the proceedings, which they would no doubt be entitled to do on the theory that he was separate at the time of his death. It will be convenient in this judgment to refer to Lal Man and his grandsons as the plaintiffs.

The defendants to the suit were the male descendants of Kanhaiya Lal and Hazari Lal. Their main defences were (1.) that Lal Man had separated from the rest of the family in 1907, and (2.) that he had received his share in full. Their story, which has been for the most part accepted by both the Courts in India, was that Lal Man, being anxious to provide for his daughters family, separated in 1907 from his brothers and nephews and made over sums of money and certain items of immovable property to his grandsons, these being taken as the equivalent of his one-fourth share of the joint estate. These dispositions were evidenced by entries in the family books by which Lal Man declar