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1912 Supreme(SC) 31
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD MACNAGHTEN, LORD MOULTON, SIR JOHN EDGE, AND MR. AMEER ALI.
PANDIT SURAJ NARAIN - Appellant
Versus
PANDIT IKBAL NARAIN - Respondents
On Appeal from the Court of the Judicial Commissioner of Oudh.
Decided On : November 7, 8; December 10, 1912.
Solicitors for appellants :Barrow, Rogers & Nevill. Solicitors for respondents: Pemberton, Cope, Gray & Co.
Separation from a joint Hindu family under Mitakshara law requires an unequivocal and unambiguous expression of intention to separate in property; separation in mess and worship does not automatically result in a division of the joint estate.
Headnote:(A) Hindu Law (Mitakshara) - Separation from joint undivided family - To convert a joint tenancy into a tenancy in common, there must be a definite and unambiguous indication by a member of the intention to separate and enjoy their share in severalty - Such intention must be unequivocal and clearly expressed.
(B) Separation in mess and worship - Separation from commensality does not as a necessary consequence effect a division of the joint undivided property - A family may continue joint in estate despite separation in mess and worship.
(C) Mesne profits - Exclusion from joint estate - Refusal to accept a monthly allowance offered by the head of the family does not amount to wrongful exclusion from the joint estate.
Facts of the case:
Members of a joint Hindu family governed by Mitakshara law sought partition and mesne profits, alleging they had separated from the joint family in October 1901. The opposing party denied the separation. Evidence showed a prior compromise agreement to remain joint and subsequent revenue records indicating the parties' agreement to recognize one member as the head of the family. The claimant later alleged separation in mess and worship, but not in property, and claimed they were excluded from the joint profits.
Findings of Court:
The court found that there was no unequivocal expression of intention to separate in property. The conduct of the claimant, including agreements in revenue proceedings, contradicted the claim of separation. Separation in mess and worship did not imply separation in property. Furthermore, the refusal of a offered allowance did not constitute exclusion from the estate.
Issues: Whether the claimants had separated from the joint Hindu family in property in October 1901, and whether they were wrongfully excluded from the joint estate, thereby entitling them to mesne profits.
Ratio Decidendi: Separation from a joint undivided family requires a clear, unambiguous, and unequivocal expression of intention to hold the share separately. Separation in commensality (mess and worship) is distinct from separation in property and does not automatically lead to the latter. Refusing a financial allowance offered by the manager of the estate does not constitute wrongful exclusion.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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family law
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hindu law
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mitakshara law
- joint family property
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mitakshara law
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hindu law
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practice and procedure
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revenue law
- mutation
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revenue law
Judgement
Appeal from a decree of the Court of the Judicial Commissioner (October 30, 1909) modifying a decree of the judge of Hardoi (August 27, 1908).
On June 20, 1905, the appellants Suraj Narain and his sons sued Bakht Narain and his sons for partition and possession of their half-share of the joint family property which had descended from Bishan Narain, their immediate ancestor.
Suraj Narain alleged that he had totally separated himself from Bakht Narain at the end of October, 1901, that there had been a " legal partition " of the properties, first made in November, 1900, and then in October, 1901, and he accordingly prayed for mesne profits in respect of the appellants half-share from the end of October, 1901.
Bakht Narain denied the separation and partition as alleged and the right of the plaintiffs to mesne profits.
The first Court found that Suraj Narain had separated in mess and worship from Bakht Narain; that he received some moneys from joint funds, but that they were trifling sums, and not proportionate to his share; that he was excluded from the joint family properties, and that the possession of the respondents was wrongful to the extent of the plaintiffs share. He held, therefore, that the plaintiffs were entitled to mesne profits to the extent of a half-share.
The Appellate Court found that there had been no separation between the branches of the joint family, of which Suraj Narain and Bakht Narain were the respective heads, up to the time when the former filed his suit, and that there had been no exclusion or circumstances justifying a decree for mesne profits.
De Gruyther, K.C., and Dube, for the appellants, contended that the family ceased to exist as a joint undivided Hindu family within the meaning of the Mitakshara law at latest in October, 1901. At that date Suraj Narain was proved by the evidence to have given notice of his intention to hold his share therein separately from his coparceners. Bakht Narain declined to give effect to the partition until the debts on the estate had been discharged. His consent, however, was unnecessary to the division of title. That could be effected on the authorities at the will of one member by giving oral expression of his intention to do so. Reference was made to Rewun Persad v. Radha Beeby (( 1846) 4 Moo. Ind. Ap. 137, 168.), Appovier v. Rama Subha Aiyan (( 1866) 11 Moo. Ind. Ap. 75.), Bulakee Lall v. Indurputtee Kowar (( 1865) 3 Suth. W. R. 41.), Vato Koer v. Rowshun Singh (( 1867) 8 Suth. W. R. 82.), Raghubanund Doss v. Sadhu Churn Doss (( 1878) I. L. R. 4 Calc. 425, 430.), Sudarsanam Maistri v. Narasimhulu Maistri (( 1901) I. L. R. 25 Madr. 149, 156.), Radhachurn Dass v. Kripa Sindhu Dass (( 1879) I. L. R. 5 Calc. 474, 476.), Joynarain Giri v. Grishchunder Myti (( 1878) L.R. 5 Ind. Ap. 228.), Rampershad Singh v. Lakhpati Koer (( 1902) L. R. 30 Ind. Ap. 1, 11.), and Balkishen Das v. Ram Narain Sahu . (( 1903) L. R. 30 Ind. Ap. 139.) The evidence shewed that after October, 1901, the appellants had not participated in the joint profits of the family estate. They had been wrongfully excluded therefrom and were accordingly entitled to a decree for the mesne profits of their share.
A. M. Dunne, for the respondents, contended that the appellants had failed to prove any separation or partition as alleged. The onus was upon them to do so. But the evidence shewed that the parties had agreed as late as February, 1901, that the family should continue joint as before, and that in mutation proceedings in 1903 Bakht Narains name was recorded with the consent of the appellants as head of the family and the names of Suraj Narain and another brother were recorded as joint proprietors. The evidence also failed to shew any exclusion of the appellants from participation in the joint profits; but on the contrary proved that Suraj Narain had been offered a share and had declined to receive it. The High Court was right in refusing a decree for mesne profits.
De Gruyther, K.C., in reply.
