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1919 Supreme(SC) 51
Privy Council
Ameer Ali, Sir John Edge , Phillimore, Justice Lord Atkinson , JJ.
Amritrao and others -Appellant
Versus
Mukundrao and others -Resopndent
Decided On : 28-07-1919
E. Dalgado, B. Dube, DeGruyther
Under Mitakshara Law, a member of a joint Hindu family can effect separation of title and severance of interest through a clear manifestation of intention via words or conduct, regardless of whether a formal partition deed exists or physical division of property occurs.
Headnote:(A) Mitakshara Law - Joint Hindu Family - Separation - Severance of interest - A member of a joint Hindu family can effect the separation of his title and the severance of his interest through an unequivocal and unmistakable manifestation, by words or conduct, of a fixed or determined intention to become separate. Such separation is valid even if no regular deed of partition is executed, no division of possession by metes and bounds takes place, or there is no separation in food and dwelling. A separating member may, of his own free will, accept a small portion of the joint property as his share or renounce all claims to the rest.
(B) Evidence - Reliability of witnesses - Previous sworn statements - Where parties have previously admitted the fact of separation in sworn testimony during other legal proceedings, such admissions carry significant weight and cannot be discounted based on subsequent contradictory testimony without a valid explanation.
Facts of the case:
A member of a joint Hindu family governed by Mitakshara Law claimed to have separated from the family approximately twenty-seven to twenty-eight years before the father's death. He asserted that the property he subsequently acquired was self-acquired. Other family members contended that he never completely separated and that the wealth acquired was an accretion of joint family property. No formal deed of partition was executed. The case involved conflicting evidence, including the testimony of a witness regarding the joint cultivation of a field and previous sworn statements by the brothers of the appellant in other suits acknowledging the separation.
Findings of Court:
The court found that the evidence suggesting the property was joint was unreliable and based on the testimony of a single witness whose views on title were worthless. Conversely, the conduct of the party—including separate residence, separate financial dealings, and separate debts—strongly supported the fact of separation. Furthermore, the respondents had previously admitted in other legal proceedings that the party was separate.
Issues: The primary issue was whether the member of the joint Hindu family had effectually separated from the family in 1870, and whether the property acquired thereafter was self-acquired or joint family property liable to be brought into hotchpot.
Ratio Decidendi: The court ruled that a fixed intention to separate, clearly expressed through conduct and words, is sufficient to effect severance of interest in a Mitakshara joint family. The absence of a formal partition deed is not determinative if the intention to separate is manifest. Once separation is established, property acquired subsequently is presumed to be self-acquired unless proven otherwise; the claim that such property is an accretion of a joint family nucleus must be supported by sound evidence, which was lacking in this case.
Result: Appeal allowed.
This is an appeal from a decree, dated the 8th September, 1913, of the Officiating Additional Judicial Commissioner, Mr. J. Mittra, modifying a decree dated the 26th February, 1912, of the Second Additional District Judge, East Berar.
To make the evidence and contentions put forward in the case intelligible, it is necessary, especially as the respondents unfortunately do not appear before the Board, to set out as a preliminary the pedigree of the principal appellant Amritrao. It is not disputed that it is correctly set forth in the following table :-
The family of Sonaji was a joint Hindu family governed by the Mitakshara Law.
Sonaji's second son, Amritrao, was evidently a man of enterprise. He and the other appellants contend that he separated completely and effectually from his family in or about the year 1870, twenty-seven or twenty eight years before his father's death in 1898, and that after his separation he acquired by his own exertions the property, considerable for him, described in Schedule B attached to the plaint in the action out of which the appeal has arisen. He claims this as his own. The effort of his youngest brother Gulabrao and of the descendants of his younger brother Motirao, if not of the plaintiff in this suit, who is the adopted son of the eldest son of the family, Bhagwantrao by name, is to establish that the aforesaid property in Schedule B is, in reality, the property of the joint family, on the ground that he, Amritrao, never completely and effectually separated from his family, and that the wealth which he subsequently acquired is merely an accretion of the portion of the family property, whether his full share of it or not, of which he obtained the possession and enjoyment at the time of the alleged separation. It is obvious that if this latter contention were established, the plaintiffs, the descendants of Motirao, Amritrao's brother, and his youngest brother Gulab Rao would become entitled, each, to one-fourth, of the property Amritrao claims as his own. The significance and effect of all Amritrao's action, and his efforts, after the year 1870, to acquire property depend upon the question whether he then effectually separated himself from his family or not. That is the dominant, if not indeed the crucial, question in the case. It is admitted that no regular deed of partition was executed at the time of this alleged partition, for the reason given, not unnatural if true, that the family then owned no land which needed to be divided, but even if this were not so, it is well established that the unequivocal and unmistakable manifestation by a member of a joint Hindu family by his words or conduct of a fixed or determined intention to become separate is sufficient to effect the separation of his title and the severance of his interest, although division of possession, or partition by metes and bounds, does not take place, or though there be no separation in food and dwelling. And of course a separating member of such a family may of his own free will accept as his share as small a portion of the joint property as seems good to him, and renounce all claims to the rest.
The pleadings in the action out of which this appeal has arisen are, having regard to the grounds of the decision of the Judicial Commissioner, worthy of attention.
Originally Amritrao and his three sons were not made defendants. They were added at the instance of Gulabrao. In the first paragraph of the plaint it is stated that Amritrao took some fields as his share and became separate thirty years before the date of the institution of the suit in the year 1907; that he had no right whatever to the joint property; and that after his separation his three brothers remained joint. In paragraph 2 it is further stated that since the previous year Gulabrao and his grandson Sadasheo took possession of entire property, i.e., the joint property mentioned in Schedule A, and denied the plaintiff's claim thereto. The relief prayed is f
