Judgement

Cross-appeals (No. 122 of 1920) from a judgment and two decrees of the High Court (June 20, 1918) partly affirming and partly reversing a decree of the Subordinate Judge, Second Court, Dacca.

The appeals arose out of a suit brought by the above-named Jaga Mohan Pal for partition of joint family property and accounts; the family was governed by the Dayabhaga.

The circumstances in which the suit was brought appear from the judgment of the Judicial Committee.

The plaintiff by his plaint claimed that, in addition to his one-third share in the joint family property, he was entitled under the will of his deceased brother, Radha Gobind Pal, to the deceaseds one-third share of the movables and of the karbar (business) properties.

The Subordinate Judge held (inter alia) that the plaintiff had thrown the whole of the income and profits of his share in the joint estate into the joint family fund, and that he was therefore prevented from asserting a right to the additional one-third share in the properties acquired after the death of his brother. The decree for partition was made upon that basis.

On cross-appeals the High Court modified the decree; the learned judges were of opinion that it was not established that the plaintiff had thrown the income and profits of the additional share into the common fund so as to effect a blending.

1922. Nov. 24, 25, 27. Sir George Lowndes K.C. and Parikh for the defendants-appellants.

Dunne K.C. and C. Bagram for the plaintiff respondent.

It was argued on behalf of the respondents (inter alia) that the family being governed by the Dayabhaga and there consequently being no succession by survivorship, the rule as to the blending of joint and separate property recognized in Suraj Narain v. Ratan Lal (( 1917) L. R. 44 I. A. 201.) could not be applied; and that there had been no such blending as to render the whole property joint.

1923. Jan. 23. The judgment of their Lordships was delivered by

LORD BUCKMASTER. The facts in this case have been carefully investigated both by the Subordinate Judge and by the High Court, with the result that many of the points originally in dispute are now determined, and the two that remain depend upon the true inference to be drawn from ascertained circumstances and not from the consideration of what those circumstances may be. Upon these two questions there is a difference of opinion between the Subordinate Judge who decided in favour of the appellants and the High Court, by whom his judgment in this respect was reversed. The nature of the points involved will be best understood after a statement of the relevant facts.

Lai Mohan Pal, who died on February 23, 1891, originally carried on business with one Paju Lal in the sale of yarns and cloths. This business ended in 1882, and therefrom Lal Mohan Lal started a similar business, the head office being at Dacca, with branch places of business at Calcutta and elsewhere. He was, in this business, assisted by his three son3, Madan Mohan Pal, Jaga Mohan Pal, and Radha Gobinda Pal. After the death of Lal Mohan Lal this business was carried on by the three sons jointly as a joint family business, and Madan Mohan Pal asserted that the original capital of the business was largely composed of moneys, amounting to Rs. 16,000 and upwards, due to him for services rendered to the original firm. The third son, Radha Gobinda Pal, died on November 1, 1902, having made a will, of which he appointed his brother, Jaga Mohan Pal, as the executor. He had no sons living at the date of his will or of his death, and only one wife Kusum Kumari, who survived him. He conferred upon his wife the power to adopt a son, and provided that if a son was adopted and died within fifteen years unmarried or childless, his wife should adopt another son, and if he died in similar conditions she should adopt a third. He gave his wife the yearly profits of all his immovable property, except certain monthly allowances in favour of his daughter, such profits to