Judgement

Appeal (No. 35 of 1922) from a judgment and decree of the Chief Court (December 24, 1917) affirming a decree of the senior Subordinate Judge of Amritsar.

The suit was brought by the appellant in 1914 against the respondents. By her plaint she alleged that her deceased husband (who died in 1905) and his three brothers had formed a joint Hindu family, but that there had been a disruption of the joint family in 1876, when the eldest brother had separated, that since that date the other brothers (the respondents) carried on business as

Law Rep. 50 Ind. App. 192 ( 1922- 1923)

Jatti V. Banwari Lal 43

partners, and that upon her husbands death she had been admitted a partner. She sued for dissolution of the partnership, and for possession of a third of the partnership property.

The facts, and the effect of the judgments in the lower Courts, appear from the judgment of the Judicial Committee.

1923. April 17, 19. De Gruyther K.C. and Dube for the appellant. Abdul Majid for the respondents.

May 15. The judgment of their Lordships was delivered by

LORD DUNEDIN. In 1876 four brothers, Ishar Das, Harbhagwan, Rup Chand and Day a Ram, lived as a joint Hindu family and carried on a family business. In that year a deed was executed by which the assets of the family were described and divided, and Ishar Das was finally paid out. Thereafter the business was carried on, but the profits were carried to separate accounts of the three remaining brothers in equal shares.

In 1905 Rup Chand died, leaving a widow, who is the appellant. In 1914 the widow raised this suit against the remaining brother and the sons of the other who had predeceased, claiming accounts and payment of one-third of the partnership assets.

The defence put up was twofold. It was alleged that though in 1876 Ishar Das separated from this joint family, the other brothers remained joint that in consequence on the death of Rup Chand, the husband of the plaintiff, she had only the right of maintenance as a Hindu widow, which maintenance she had duly received. Consequently, it was said that assuming that there was a complete separation, the suit was time barred under art. 106 of Sch. I. of the Limitation Act. The statement of the plaintiff as to what happened at her husbands death was not expressed with precision, but might be read as an averment that on her husbands death she was admitted to be a partner, her share being the same as that of her deceased husband. The issues as originally framed were only three in number, one of which, being as to the plaint being adequately stamped, may be disregarded. The remaining two were (1.) On the separation of Ishar Das did not the remaining male members of the family become separate? (2.) Did they convert the joint family business into a partnership? The case went to trial and no evidence was produced by the plaintiff, except the account books of the firm, which showed that after Ishar Das separated the profits of the business were carried to separate shares in the names of the three brothers, and this continued after Rup Chands death. The learned Senior Subordinate Judge found, first, that the deed executed at the separation of Ishar Das showed separation of the whole brothers; that reunion had not been proved and that the joint family came to an end. But finding in the pleading a clear plea to the effect that the suit was time barred, he added an issue to that effect and decided it in favour of the defendants.

The plaintiff appealed, and on appeal the learned judges of the Chief Court of the Punjab held that in 1876, though Ishar Das had separated, separation had not taken place among the other brothers, and consequently the plaintiff had only the rights of a Hindu widow for maintenance and could not maintain the suit. They, therefore, found it unnecessary to consider the question as to limitation. The plaintiff has appealed to the King in Council.

Their Lordships do not find themselves able to agree with the views of the learned judge