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.

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