Bhagwan Dayal vs Mst. Reoti Devi on 4 September, 1961

[Cites 16, Cited by 109]



Supreme Court of India
Bhagwan Dayal vs Mst. Reoti Devi on 4 September, 1961

Equivalent citations: 1962 AIR 287, 1962 SCR (3) 440

Bench: P.B. Gajendragadkar, M. Hidayatullah

PETITIONER:
BHAGWAN DAYAL

Vs.

RESPONDENT:
MST. REOTI DEVI

DATE OF JUDGMENT:
04/09/1961

BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
GAJENDRAGADKAR, P.B.
HIDAYATULLAH, M.

CITATION:
1962 AIR 287 1962 SCR (3) 440
CITATOR INFO :
R 1965 SC1531 (12)
RF 1979 SC1880 (12,27,29)
R 1980 SC1173 (22,24)
RF 1988 SC 576 (20)
R 1991 SC 884 (22)


ACT:
Res judicata- Suit in Revenue Court-Question of proprietary
title referred to Civil Court-Decree-Subsequent suit in
Civil Court for declaration of title-Whether decree of
Revenue Court operates as res judicata-Code of Civil
Procedure, 1908 (Act V of 1908), s. 11.
Hindu Law-Joint family- Presumption as to jointness-
Separation- Re-union, proof of-Whether members of different
branches can acquire property as joint Hindu family
property.



HEADNOTE:
One L was living with his sons K and j in the village. He
was not in affluent circumstances. K left the ancestral
home; he first joined military service and then police
service. He gave up service and started a business with his
savings. He brought his nephews R (husband of the
respondent) and B (appellant) at differernt times and
allowed them to take part in the business. At his death K
left a will bequeathing all his properties to his two
nephews. After the death of R, his widow, the respondent,
filed' a suit against B, the appellant in a Revenue Court
under the U.P. Tenancy Act, for a half share of the income
of some of the villages left by K. As a dispute arose as to
proprietary title the Revenue Court framed an issue there
on- and referred it to the Civil Court as required by the
Act. The Civil Court held that the respondent had a half
share in the villages and on the basis of this finding the
Revenue Court decreed, the suit. Thereafter, the appellant
filed the present suit in a Civil Court for a declaration
that he was the absolute owner of all the properties in
suit. His case was that L, his sons and descendants
constituted a joint Hiudu family, that there was never any
partition in the family, that K, R and B jointly started a
business and they jointly acquired some properties during
the lire time of K, some after the death of K and some after
the death of R, that the said pro. pretties were joint
family properties and that he as the survivor was the
absolute owner of all the properties. Alternatively,
441
441
he pleaded that even if there was a partition in -the family
of L, a reunion should be inferred from the conduct of K, R
and B during the lifetime of K and thereafter. The
respondent contended that the family of.L was divided, that
K started the business with the aid of his self acquisitions
and purchased properties out of the income thereof, that
after the death of K the two brothers R and B got his
properties under his will, that they jointly acquired
further properties out of the income of the business, that
after the death of R, the appellant succeeded to the half
share of R and that the decree of the Revenue Court operated
as resjudicata.
Held, that the suit was not barred by resjudicata by the
judgment of the Revenue Court. The present suit was not
within the exclusive jurisdiction of the 'Revenue Court and
was maintainable in the Civil Court and as such s. 11 of the
Code of Civil Procedure was attracted. The judgment of the
Revenue Court on the issue of proprietary title could not
operate as res judicata as the Revenue Court was not
competent to try the subsequent suit.
Venkatarama Rao v. Venkayya, A. 1. R. 1954 Mad. 788
approved.
Held, further, that there was a partition of the family
during the lifetime of I,. Every Hindu family is presumed
to be joint unless the contrary is proved; but this
presumption can be rebutted by direct evidence of partition
or by course of conduct leading to an inference of
partition. There is no presumption that when one member
separates from the others the latter remain united; whether
the latter remain united or not must be decided on the facts
of each case. in the case of old transactions when no
contemporaneous documents are maintained and when most of
the active participants of the transactions have passed
away, though the burden still remains on the person who
asserts separation, it. is permissible to fill up gaps more
readily by reasonable inferences than in cases where the
evidence is not obliterated by passage of time. The conduct
of the parties for about 50 years was consistent with their
separation rather than with their jointness.
Held, further, that it was not established that there was
any reunion between K and his nephews. Reunion must be
strictly proved. To constitute reunion there must be an
intention of the parties to reunite in estate and interest.
It is implicit in the concept of a reunion that there shall
be an agreement between the parties to reunite in estate
-with an intention to revert to their former status of a
joint Hindu family. It is not necessary that there should
be a formal and express agreement to reunite; such an
agreement can be established by clear evidence of conduct
incapable of explanation
442
on any other footing. In, the plaint it was not alleged
that a reunion had taken place by agreement but the court
was asked to hold that there was reunion on the ground that
the conduct of parties amounted to a reunion. The conduct
of the parties spreading over 50 years did not show that K
and his nephews had consciously entered into an agreement to
reunite and become members of a joint Hindu family.
Palani Ammal v. Muthuvenkatacharla Maniagar, (1924) 52 I.A.
83, Venkataramayya v. Tatayya, A.I.R. 1943 Mad, 538 and
Ramadin v. Gokul prasad, A.I.R. 1959 M.P. 251, referred to.
It is not possible under the Hindu law for some members
only belonging to different branches or even to a single
branch of a family to constitute a subordinate joint Hindu
family. Any property jointly acquired by such members cannot
become joint family Property and would be governed by the
terms of the agreement between them under which it was
acquired. The principle of joint tenancy is unknown to
Hindu law except in the case of the joint property of an
undivided Hindu family governed by the Mitakshara law which
under that law passes by survivorship.
Sundaraman Maistri v. Narasimhulu Maistri, (1902) I.L.R, 25
Mad. 149, Chakra Kannan v. Kunhi Pokkar, (1916) I.L.R, 39
Mad 317. The Official Assignee v. Neelambal Ammal
(1933) 65 M.L.J. 798, Himmat Bahadur v. Bhawani Kumar (1908)
I.L.R. 30 All 352, Jogeshwar Narain Deo v. Ram Chund Dutt,
(1896) L.R. 23 I.A 37 and Babu Bani v. Bajendra Baksh Singh
(1933) L.R. 60 I.A.:95, approved.
Nathu Lal v. Babu Ram, (1936) L.R. 63 I.A. 155 and
Ramprashad Tewarry v. Sheachuran Doss, (1866) 10 M.I.A. 490
referred to.
Sham Narain v. The, Court of Wards (1873) 20 W. R. 197,
overruled.



JUDGMENT:

CIVIL APPELLATE, JURISDICTION Civil Appeal No. 448 of 1958.
Appeal from the judgment and decree dated May 7, 1944, of
the Allahabad High Court in First Appeal No. 486 of 1944.
M. C. Setalvad, Attorney-General for India and B. D.
Sharma, for the appellant.

A. V. Viswanatha Sastri, S. N. Andley. Rameshwar Nath and
P.L.V. Vohra, for the respondent.

443

1961. September 4. The judgment of the court was delivered
by
SUBBA RAO,, J. -This is an appeal by certificate granted by
the High Court at Allahabad against its judgment dated May
7, 1954 setting aside the decree made by the Civil Judge,
Agra, in a suit filed by the appellant for a declaration
that the properties more particularly mentioned in Schedules
B, C and D annexed to the plaint, were his absolute
properties.

To appreciate the facts and the contentions of the parties,
the following relevant part of the genealogy will be useful.

Pt. Lachhman Prasad
|

---------------------------------

| |
Pt. Kashi Ram Pt. Jwala Prasad
|
Mst. Batashi |

-------------------------------------------

| | | |
Raghubar Banwari Bhagwan Ram
Dayal Lal Dayal Lal
=
Mat. Reoti Devi |
| |
Mat. Dayavati Ajudhia Prasad

The date of death of Lachhman Prasad does not appear in the
record. Jwala Prasad died in 1908 Kashi Ram, in 1924; Ram
Lal, in 1914; Banwari Lal, in 1914; and Raghubar Dayal, in
1933. The ancestral house of the family was in village
Naugaien, district Farrukhabad. The plaintiff's case is
that Lachhman Prasad, his sons and descendants constituted a
joint Hindu family, that there was never a partition in the
family, that three of the members of the said family,
namely, Kashi Ram, Raghubar Dayal and Bhagwan Dayal, jointly
startled a business at Agra, that they jointly acquired some
properties and houses during the. lifetime of Kashi Ram,
some
444
after his death, and others after the death of Raghubar
Dayal, and that the said properties were the. joint family
properties of the said members, under the Hindu law. His
further case in that after the death of Kashi Ram, the
business and the properties acquired during's life time
devolved upon the plaintiff land Raghubar Dayal by
survivorship, and that after the death of Raghubar Dayal the
said properties along with the properties acquired during
the lifetime of Raghubar Dayal passed on by survivorship
exclusively to the plaintiff. The properties. described in
:Schedule A are the ancestral properties; those described in
Schedule B are the properties acquired jointly by the said
three members during the life-time of Kashi Ram; these
described in Schedule C are properties acquired by Raghubar
Dayal and the plaintiff after the death of Kashi Ram; and
the D Schedule properties are those acquired by the
plaintiff after the death of Raghubar Dayal.
Alternatively, it is alleged that even on the assumption
that there wag a partition in the family of Lachhman Prasad,
a reunion should be inferred from the conduct of the said
three members during the lifetime of Kashi Ram and
thereafter. It is further alleged that the defendant, the
widow of Raghubar Dayal, filed suits in the Revenue Court
under the provisions of the U. P. Tenancy Act for half a
share in the income of mauza Chaoli Chak Soyam Nagla
Kasheroo and mauza Chak Chaharam Talab Firoz Khan that the
said Revenue Court, framed an issue raising the question of
title to the said properties and sent the same for decision
to the Civil Court, as it should do under the provisions of
the said Act, that the learned District Munsif held in Suit
No. 15 of 1939, a suit filed in respect of mauza Chaoli,
that the plaintiff therein had title to ahalf share in the
said village, that the Revenue Court, on the basis of the
said finding, gave a decree in her favour in respect of
half a share of-the income of the I said village and that
445
the said decree was taken on appeal to the District Court,
and also, on further appeal, to the High Court, but without
success i.e., the decree of the District Munsif wag
confirmed, and that the suits in respect of other villages
are still pending. The plaintiff (appellant herein) says
that the said finding of the Revenue Court does not operate
as res judicata in the present suit, and that he is entitled
to reagitate the matter. On those allegations the present
suit was filed in the court of the Civil Judge, Agra, for a
declaration of the plaintiff 's title to the properties
described in Schedules B, C and D annexed to the plaint and
for a permanent injunction restraining the defendant from
executing the decree in Suit No. 15 of 1939.

The defendant (respondent herein) in her written-statement
alleges that the family of Lachhman Prasad wag divided, that
Kashi Ram started a business in Agra only with the aid of
his self acquisitions and purchased properties out of the
income derived therefrom, that after the death of Kashi Ram
the two brothers, Raghubar Dayal and Bhagwan Dayal
(plaintiff), got his properties under a will executed by
him, that they jointly acquired further properties from and
out of the income of the business started by Kashi Ram, and
that after the death of Raghubar Dayal the defendant suc-
ceeded to the interest of Raghubar Dayal and that,
therefore, she was entitled to an equal share in B, C and D
Schedule properties along with the plaintiff. She further
pleads that' the decision of the Revenue Court in Suit No.
15 of 1939, holding that the brothers were not members of a
joint family and that, therefore, she succeeded to the,
interests of her husband, Raghubar Dayal, in the joint pro-
perties, operated as res judicata in respect of the
plaintiff's entire claim.

The suit was tried by the Civil Judge, Agra, and' the
learned Judge gave the following findings: (1) the judgment
and decree of the Revenue Court
446
in Suit No. 15 of 1939 operated as res judicata. on the
question of title of the defendant only in respect of the
half share claimed by her in mauza Chaoli ; (2) there was a,
partition of the larger family, and that Kashi Ram, Raghubar
Dayal and Bhagwan Dayal were the divided members of the
,said joint family; (3) there was no: reunion between the
said members; (4) Kashi Ram had. validly bequeathed his
properties under a will to his two nephews; and (5) there
was a reunion between Raghubar Dayal and Bhagwan Dayal and,
therefore, on the death of Raghubar Dayal, Bhgwan Dayal
acquired his interest in the plaint schedule properties by
survivorship. On the said findings the Civil Judge
declared- the plaintiff's absolute title to the properties
described in Schedules B, C and D, except in regard to a
half share in mauza Chaoli. The defendant preferred an
appeal against that decree to the High Court and the
plaintiff preferred cross-objections in respect of his claim
disallowed by the Civil Judge. The appeal was heard by a
division bench of that Court consisting of Agarwala and
Gurtu, JJ. The two learned Judges gave different findings
but came to the same conclusion in holding against the
plaintiff.

Briefly stated, the findings of Agarwala, J., are as
follows: (1) The evidence on the record is not sufficient to
establish partition in the family. (2) Though as a matter of
law two or more members of a larger Hindu family not
belonging to the same branch can form a smaller joint family
and acquire properties with all the attributes of a joint
Hindu 'family property, in the instant case the evidence
does not establish that Kashi Ram,, Raghubar Dayal and
Bhagwan Dayal constituted such a unit and acquired the
properties; the properties were the self-acquired properties
of Kashi Ram, but were bequeathed 'by him 'in equal shares
to Raghubar Dayal and Bhagwan Dayal, and- after
447
his death they held those properties and those acquired
subsequently only as co-tenants and not as members of a
joint Hindu family. (3) The finding of the Revenue Court in
Suit No. 15 of 1939 does not operate as. res judicata in
respect of any properties in the suit. In the result, the
learned Judge held that the properties described in
Schedules B, C and D were owned by the plaintiff and the
defendant in equal shares.

Gurtu, J., gave the following findings : (1) There was a
separation between, Kashi Ram and Jwala Prasad and also
between the sons of Jwala Prasad. (2) Two brothers out of
four and an uncle cannot in law form a distinct corporate
family with the incidents of a joint family and acquire
properties for that unit. (3) Kashi Ram could never reunite
with his nephews as a matter of law, because Kashi Ram had
separated from Jwala Prasad when Raghubar Dayal and Bhagwan
Dayal were not even born; nor did he unite with them as a
matter of fact. (4) The judgment, of the Revenue Court in
regard to the question of title would operate as res
judicata in respect of the plaintiffs entire claim to the
estate of Raghubar Dayal. And' (5) the plaintiff and
Raghubar Dayal held the properties only as co-tenants. The
learned Judge, though for different reasons, agreed with the
conclusion arrived at by Agarwala, J. In the result, the
High Court allowed the appeal filed by the defendant and
dismissed the cross-objections filed by the plaintiff : the
suit of the plaintiff was dismissed with costs through out.
Hence the present appeal.

We shall first take the question whether the judgment of the
Revenue Court passed on the findings recorded 'by the
District Munsif in Suit No.15 of 1939 operates as res
judicata in the present suit in respect of the plaintiff's
right to succeed to the share of her husband, Raghubar
Dayal, in the joint properties. Some of the facts relevant
to the
448
question may be recapitulated. The respondent Reoti Devi
filed Suit No. 15 of 1939 in the Revenue Court for recovery
of her share of profits of village. Chaoli against Bhagwan
Dayal in respect of 1343, 1344 and 1345, fasli on the ground
that she was his cosharer. The present appellant, who was
the defendant in that suit, contested the suit, inter, alia
on the ground that he and his deceased brother constituted
members of a joint Hindu family and that OD his brother's
death his interest in the entire joint family property
devolved on him by right of survivorship. As the defendant
raised the question of title, the Revenue Court framed an
issue on the question of title raised in the pleadings and
referred the same to the Civil Court for decision under s.
271 of the Agra Tenancy Act 1926 (hereinafter called the
Act). The learned District Munsif decided the issue against
the appellant herein, with the result that the Revenue Court
made a decree on the basis of that finding in favorer of the
respondent herein. Against the said: decree, the appellant
preferred an appeal (No. 65 of 1941) to the'District Court,
Agra but that appeal was dismissed. The second appeal filed
by him in the High Court of'Allahabad was also dismissed.
The result of that litigation was that a decree was given in
favour of the respondent herein for recovery of her share of
the profits of village Chaoli. The question is whether the
said decree operated as res judicata in the present suit.
The learned Judges of the High Court differed on the
question of res judicata ; Agarwala, J., held that the said
decision of the Revenue Court in Suit No. 15 of 1939 did not
operate as res judicata while Guru, J., held that it did.
Learned Attorney-General contended that the decision in Suit
No. 15 of 1939 would not operate as res judicata on the
present suit for two reasons, namely, (1) in the previous
suit, the question of title was decided by a Civil Court
and, therefore, S. 11 of the Code of Civil. procedure in
terms was
449
attracted,; and, as that Court was not competent to try the
present suit, the decision therein would not operate, as res
judicata ; (2) even if the original suit must be deemed to
have been decided by a Revenue Court, that Court had no
exclusive jurisdiction to decide the present suit and,
therefore, any decision therein would not operate as res
judicata on the present suit for the same reason, viz., that
the Court was not competent to, try the present suit.
Mr. A. V. Viswanatha Sastri learned counsel for the
respondent, on the other hand, contended that, though the
question of title was decided by a Civil Court, the final
decision was that of the Revenue Court, that the subject-
matter of the present suit was within the exclusive
jurisdiction of that Court and that, therefore, the present
suit was not maintainable. That apart, he contended that as
the subject-matter of the present suit was within the
exclusive jurisdiction of the Revenue, Court, the decision
of that Court on the question of title would be res judicata
in the present suit not under s.11 of the Code of Civil
Procedure but under the general principles of res- judicata,
; for, it is said that in the case of a decision of a Court
of exclusive jurisdiction s. 11 is not applicable and
therefore,, under the general principles of res judicata,
the condition that the court which decided the previous suit
should be- competent to try the subsequent suit need not be.
complied with.

Before addressing ourselves to the question raised, it.
would be necessary to notice some of the relevant provisions
of the Act.

Section 227. (1) A co-sharer may sue another- for a
settlement of accounts, and for his share of the profits of
a mahal, or of any part thereof.

(2)In any such suit when it is proved or admitted that
either party has made collections the amount of which is in
issue. he
450
shall, be bound to furnish &true account of such
collections. If he fails to do so the court may make any
presumption against him which it considers reasonable.
Section 230 : Subject to the provisions of section 271 all
suits , and applications of the nature specified in the
Fourth Schedule shall he heard and determined by the
revenue courts, and, no Courts.. other than a revenue Court
shall 'except by way of appeal or revision as provided in
this Act, take cognizance of any suit or application, or of
any suit or application based on a cause of action in
respect of which 'relief could be obtained by means of any
such suit or application.;

Explanation.,-If the cause of action is one in respect of
which relief might be granted, by the revenue court it is
immaterial that the relief asked from the civil courts may
not be, identical with that which the revenue court could
have granted.

Section 271 (1) If(a) .............

(b) in any suit instituted under 'Chapter
XIV the defendant pleads that the plaintiff
has not got the proprietary right entitling
him to institute the suit,
and such question of proprietary right, has not been already
determined by a I court of competent jurisdiction the
revenue court shall frame an issue on ,the. question of
proprietary right and submit the record to the competent
civil court for the decision,of that issue only.
(2) The civil court after re-framing the, issue, if
necessary, shall decide that issue only and return the
record together with its
451
finding on that issue, to. the revenue court which submitted
it.

(3) The revenue court shall then proceed to decide the
suit, accepting the finding of the civil court on the issue
referred to it.

(4) Every decree of a revenue court ,.passed in a suit in
which an issue involving a question of proprietary, right
has been decided by a civil court under sub-section (2) of
this section shall

(a) if the question of proprietary right is
in issue also in appeal, be applicable to the
civil court which has jurisdiction to hear
appeals from the court to which the issue of
proprietary right has been referred

(b) if the question of proprietary right is not
in issue in appeal be applicable to the
revenue court.

The Fourth Schedule-Group A-Suits.

------------------------------------------------------------

Section
Serial.No. of Description of suit.....
Act.

-----------------------------------------------------------

15 227
By a CO-Sharer against a,
co-sharer for a' settlement
of accounts and
his share of the profits
of the mahal, or if any
part thereof.

----------------------------------------------------------

Section 264. The provisions of the Code of Civil
Procedure, 1908, except:--

(a), provisions inconsistent with any thing in
this Acts so far the inconsistency extends,,
452
(b) provisions applicable only to special suits or
proceedings outside the scope of this Act, and
(c)the provisions contained ill list 1 of the Second
Schedule,
shall' apply to all suits and other proceedings under this
Act, subject to; the modifications contained in list If of
the Second Schedule.

The gist of the said provisions may be stated thus;: One of
the co-sharers call file, a suit against another co-sharer
for settlement of accounts and for his share of the profits
of a Mahal or any part thereof. If the defendant denies the
plaintiff's proprietary right all issue on the, question of
title is raised and sent to the civil court for decision.

-The revenue court shall accept the finding of the civil
court and decide the suit accordingly. An appeal would lie
against that decree to a court which has jurisdiction to
hear appeals from the court to which the question; wage
referred. The "Revenue Court has exclusive jurisdiction to

-decide ,suits of the, nature described in Fourth Schedule.
One of, the suits mentioned in the Fourth Schedule is a suit
by a co-sharer against a co-sharer for a settlement of
accounts and his share of the profits of the Mahal, or of
any part thereof. No other court shall take cognizance
based upon a cause of action in respect of which relief can
be obtained by any such suit.

The first query is whether, the present suit is based on a
cause of action in respect of which relief can be obtained
by means, of a suit specified in the Fourth 1 Schedule to
the Act. The present suit is for a declaration of the
plaintiff's title to the plaint schedule properties; and
for- ant injunction restraining the, execution of the decree
obtained by the defendant in the Revenue Court. The
plaintiff claims title to the suit properties on the ground
453
that he, was a member of a joint Hindu family along with his
deceased brother -,and, therefore he succeeded to his share
by right of survivorship; The question is whether such a
suit is in the nature of suits specified in the Fourth
Schedule to the Act. The said Schedule does not provide for
any suit by a person claiming to be the proprietor of a
property and in possession thereof praying for a declaration
of his title -and for an,, injunction against another who is
trying to interfere with his title. If so, under s. 230 of
the Act, the Revenue Court has no exclusive jurisdiction to
entertain a suit of the nature that is before us. If it is
not a suit of that nature, under that section, the civil
court's jurisdiction is not ousted. A full bench of the
Madras High,.Court had occasion to consider a similar ques-
tion arising under the Madras Estates, Land Act, 1908 in
Venkatarama .Rao v. Venkayya(1). There, certain tenants
filed a petition under s. 40 of the Madras Estates Land Act,
1908 in the revenue, court for commutation of rent against
the landholders. The landholders raised the plea that the
village iii which the petitioners' lands were situated was
not an estate and, therefore the petition was not
maintainable in the revenue court. The Revenue Divisional
Officer held that it was not an estate and on that finding
dismissed the petition. The matter was taken up on appeal
to the District Court and thereafter to the High Court
without success. Subsequently, the landlords filed a suit
in the 'Civil Court against the, tenants for -An injunction
restraining them from removing the paddy crops standing on
the suit lands until the rent was paid to them. The
landholders raised the plea, that the decision of the
revenue court holding that the village was not an estate was
binding on the civil court,. The full bench of the Madras
High Court, held that the said finding was not binding on
the civil court. Adverting, to s. 189(3) of the
(1) A. I. R. 1954 Mad. 788.

454

Madras Estates land Act, which corresponds to a. 230 of the
present Act, the learned Judges observed thug at p. 790
"Therefore, it is clear that it is only in
respect of such disputes or matters as are
covered 'by the 'its or applications specified
in s.189(1) that the revenue court can be said
to have exclusive 'jurisdiction, that is,
jurisdiction to the exclusion of a civil
court.

x x x x x
If a particular matter is one which does not fall within the
exclusive jurisdiction of the revenue court, then a decision
of a revenue court on such a matter, which might be inci-
dentally given by the revenue court, cannot be binding on
the parties in a civil court." We agree with the said
observations. On the same analogy, the present suit was not
within the exclusive jurisdiction of the revenue court and,
therefore the suit in the civil court was maintainable. If
so, s.11 of the Code of Civil Procedure is immediately
attracted to the present suit. The relevant part of
s. 11 of the Code reads:

"No Court shall try any suit or issue in which
the matter directly and substantially in issue has bee
n directly and substantially in
issue in a former slut between the same
parties or-between parties under whom they or
any of them claim, litigating under the same
title, in a Court competent to try such
subsequent suit or the suit in, which such
issue has been subsequently raised, and has
been heard and finally decided by such Court.
In this case the title to properties now put in issue was
tried in the revenue court. But that court is not competent
to try the present suit in which the, same issue' is raised.
It follows that in terms of s.11 of the Code, the decision
on the said issue in the revenue court could not operate as
res judicata
455
for the necessary condition of competency of that court to
try the present suit is lacking.
In this view, it is not necessary to consider the
differences between the'scope of the priniciple of res
judicata covered by s. 11 of the 'Code 'of Civil Procedure
and that of the principle of res judicata de hors the said
section.. Nor is it necessary to express our view on the
question 'whether the decision on the question of title in
the previous suit was that of a revenue court or. of a
'civil court. We, therefore, reject the plea. of res
judicata.
We shall next take the question of partition in the larger
family. ,,Learned Attorney General contends that the finding
of Agarwala, J., that there was a partition of- the larger
family is correct and is supported by evidence in the case.
Mr. Viswanatha Sastri, learned counsel for the
respondent. contests the correctness of both the legal
and factual submissions made by the learned Attorney
General. His argument may be briefly summarized thus : The
members of the family were villagers. the ancestral property
owned by them was insignificant, its income was small, the
partition must have taken place long ago and, in these.
Circumstances neither documentary evidence nor the evidence
of the elders is available but there is sufficient evidence
on the record to sustain the' finding of partition given by
the learned Civil Judge and Gurtu, J.
The general principle is that every Hindu family is presumed
to be joint unless the contrary is proved; but this
presumption can be rebutted by direct evidence or by course
of conduct. It is also settled that there is no presumption
that when one member separates from others that the latter
remain united ; whether the latter remain 'united or not
must be decided on the facts of 'each case. To these it may
be added that in the case 'of old transactions, when no
'contemporaneous documents are maintained and when most of
the active
456
participants in the transactions have passed away, though
the burden still remains on the person who asserts that
there was a partition, it is permissible to fill up gaps
more readily by reasonable inferences than in a case where
the evidence is not obliterated by passage of time.
From this Stand point let us first look at the admitted
facts in the case. It is common case that Lachhman Prasad
was living with his sons in village Naugaien. He was not in
affluent circumstances. The particulars of the ancestral
property are given in Schedule A ; it comprised certain
lands and houses in village Naugaien. Bhagwan Dayal, the
plaintiff-appellant, in his deposition admits that the
income of the land was about Rs.80/- per year, though
subsequently it was enhanced to a sum of Rs.100/- per year.
He admits that they (meaning, thereby Kashi Ram, Raghubar
Dayal and Bhagwan Dayal used to get a sum of Rs 5/- or
Rs.10/- a year from the land. It is clear from this that
they were getting not the entire income from the land but
only a part of it,
,There is no evidence to show when Lachhman Prasad died; but
it is not disputed that Kashi Ram left the ancestral home
Iona ago and had joined military services at Gwalior and
thereafter police service in or about 1895. He gave up the
service and came to Agra and started a business with his
savings. There is nothing on the record, except the
assertion made by Bhagwan Dayal in his deposition, to -show
that Kashi Ram as manager either received the entire income
from the ancestral property or paid any taxes in respect
thereof. Raghubar Dayal says that rent of the said holdings
was entirely in the accounts maintained by Kashi Ram; but
they were not produced. Kashi Ram executed a will on
September 13, 1919. Under that will he gave the entire
properties to his two nephews, and it cannot be suggested
that it was,
457
executed to defraud any person. There is a faint suggestion
that the said will was executed to bar the claim of his
daughter. In that document he does not say that he was a
member of a joint Hindu family. The assertion that he was a
member of a joint Hindu family would have barred the claims,
of his daughter more effectively if that was his intention
in executing the document. Be it as it may, the will,
which, in our view, was an honest attempt on. the part of
the testator to give his properties to his nephews, does not
contain any assertion that he was a member of a joint Hindu
family. A number of documents were executed by or in his
documents there is a recital that he was a member of a joint
Hindu family. This consistent conduct also indicates that
Kashi Ram, never considered himself to be a member of any
undivided Hindu family.
Bhagwan Dayal admits in his evidence that Ram Lail. his
youngest brother, who was killed in the War in 1914, did not
live with him and that his family and the family of Ram Lal
were separate from each other and were not joint. He also
concedes that Banwari Lal, his elder brother, who died in
the year 1914, was also separate from him. There is nothing
on record to show that these two brothers alone separated
from the main family before 1914. The concession that they
were separate members supports to a large extent, the theory
that there must have been a partition in the larger family.
Reoti Devi, the defendant-respondent, in her evidence says
that her marriage took place about 30 years ago. Her
evidence discloses that her father-in-law, Jwala Prasad war,
alive at the time of her marriage. She says that when she
came to -her husband's house, Kashi Ram and her father-inlaw
lived separately in Naugaien, that they were cultivating
separately and that thereafter he went favour during his
lifetime, but in none of them
458
away to Gwalior to serve in the army. The evidence of this
witness is not very helpful as regards the particulars
of the partition but it discloses that the 'brothers
were living separately and earning their livelihood.
This evidence is further reinforced by the fact that in
regard to the ancestral property the names of the
different members of the family, including Reoti Devi,
are entered in the Government accounts against different
portions of the said property. Lastly, there was never any
dispute between Kashi Ram and the sons of Jwala Prasad,
or between the four brothers in respect of the income
from the ancestral land. That could be explained only on
the hypothesis that the said property was divided and the
members of the family were getting their share of the
income 'therefrom. This conduct of the parties for about 50
years was consistent with their partition rather than
their joint status. On the whole, on a consideration of
the material placed before us, we cannot say that the
finding given by the learned Civil Judge and accepted by
Gurtu, J., is not supported by evidence. We accept, the
said finding.
The next. question is whether there was a reunion
between Kashi Ram, Raghubar Dayal and Bhagwan Dayal.
The learned Attorney-General contends that on the
assumption that there was a partition of the family, the
consistent conduct of the parties for a period of 50
years unambiguously establishes that there was a
reunion between Kashi Ram, Raghubar Dayal and Bhagwan
Dayal during the lifetime of Kashi Ram, or at any rate
there was a reunion after the death of Kashi Ram bet-
ween Raghubar Dayal and Bhagwan Dayal. Mr. Viswanatha Sastri
on the other hand, argues that when there was a
partition in the family, the members of the family who
allege a reunion must strictly prove the same,. and that
the documentary evidence filed in this case spread over
a long period of time is destructive of any, such, claim.
459
For the correct approach to this question, it .would be
convenient to quote at the outset the observation of the
Judicial Committee in Palani Ammal V. Muthuvenkatacharla
Moniagar(1)
"It is also quite clear that if a joint Hindu
family separates, the family or any members of
it may agree to reunite as a joint Hindu
family, but such a reuniting is for obvious
reasons, which would apply in many oases under
the law of the Mitakshara, of very rare
occurrence, and when it happens it must be
strictly proved as any other disputed fact is
proved. The leading authority for that last
proposition is Balabux Ladhuram v.
Bukhmabai(1)".

It is also well settled that to constitute a reunion there
must be an intention of the parties to reunite in estate and
interest. It is implicit in the concept of a reunion that
there shall be an agreement between the parties to. reunite
in estate with an intention to revert to their former status
of members of a joint Hindu family. Such an agreement :need
not be express, but may be implied from the conduct of the
parties alleged to have reunited. But the conduct must be
of such an incontrovertible character that an agreement of
reunion must be necessarily implied therefrom. As the
burden is heavy on a party asserting reunion, ambiguous
pieces of conduct equally consistent with a reunion or
ordinary joint enjoyment cannot sustain a plea of reunion.
The legal position has been neatly summarized in Mayne's
Hindu Law, 11th edn., thus at p. 569:

"As the presumption is in favour of union
until a partition is made out, so after a par-
tition the presumption would be against a
reunion. To establish it, it is necessary to
show, not only that the parties 'already
(1) (1924) L.R. 52. I.A. 83, 86. (2) (1903)
L.R. 30 I.A 190,
460
divided, lived, or traded together, but that
they did so with the intention of thereby
altering their status and of farming a joint
estate with all its, usual incidents It
requires very cogent evidence to satisfy. the
burden of establishing that by agreement
between them, the divided members of a joint
Hindu. family have succeeded. in so altering
their status an to bring themselves within all
the rights and obligations that follow from
the fresh formation of a joint undivided Hindu
family."

As we give our full assent to these observations, we need
not pursue the matter with further citations except to
consider two decisions strongly relied upon by the learned
Attorney General. Venkataramayya v. Tatayya (1) is a
decision of a division bench, of the Madras High Court. It
was.. pointed out there that "mere, jointness in residence,
food or worship or a mere trading together cannot bring
about the conversion of the divided status into a joint one
with all the usual incidents of jointness in estate and
interest-unless an intention to become reunited. in the
sense of the Hindu law is clearly established. The said
proposition is unexceptionable,, and indeed, that is the
well settled law. But on, the facts of that case, the
learned Judges came to the conclusion that there was a
reunion. The partition there was effected between a father
and his sons by the. first wife. One of the sons was a
minor. The question was whether there was a reunion between
the brothers soon after the alleged partition. The learned
Judges held that as between the sons there was never any
reason for separation inter se and' that the evidence
disclosed that on their conduct no explanation other than
reunion was possible. They also pointed out that though at
the time of partition one of the brothers *us a minor,
sifter he attained majority, he, accepted the position of
reunion. The observation& relied upon by the learned
Attorney General read thus
(1) A.I.R. 1943 Mad. 538.

461
"In our view, it is not necessary that there
should be a formal and express agreement to
re-,unite. 'Such an agreement can be estab-
lished by clear evidence of conduct incapable
of explanation on any other footing."

This' principle also is unexceptionable. But the facts 'of
that case are entirely different from those in the present
case, and the conclusion arrived at by the learned Judges
cannot help us in arriving at a finding in the instant case.
Nor does the decision of the Madhya Pradesh High :Court in
Ramadin v. Gokul prasad (1) carry the matter further.
Therein the learned Judges restated the correct principle,
namely, that in order to constitute a reunion there must be
an agreement, express or implied, on the part of the members
who separate, to reunite in estate and interest., and that
in-the absence of a registered document, the agreement has
to be inferved from subsequent conduct of the parties. On
the fact,% of the case before them, the learned Judges came
to the conclusion that there was a reunion. This case only
restates a well settled principle; and the court's cannot
help us in deciding the present case.

Before we consider the evidence, we would like to make some
general observations. In the plaint, the case of reunion is
mentioned as an alternative case:; further the plaint does
not give the date of the alleged agreement to reunite or
even the necessary and relevant particulars. The :plea is
stated in the following words :

" That even if it were assumed against facts
strictly without prejudice to any plea herein
taken, that there was separation between
Pandit Lachhman Prasad's issues after his
death, still in view of the conduct of Pandit
Kashi Ram and Raghubar Dayal during their
lifetime, and the.fact that the plainteff
(1) A.I.R. 1959 M.P. 251.
462

pandit Raghubar Dayal and pandit Kashi Ram
(and after the latter's death the first two)
worked jointly and lived and messed together
and acquired , owned and possessed the entire
properties jointly by their joint labour,
which amounted to reunion, the plaintiff would
still be the sole owner of the entire property
in any view of the case."

The plaintiff's case is that there was no partition of the
larger family at all ; and on that case no question of
reunion arises. Further, he does not say that a reunion has
taken place by agreement ; but he asks the court to hold
that there was a reunion on the ground that the conduct of
the parties amounted to a reunion. The Plea, to say the
least., indicates that the plaintiff himself is not clear of
his case.

The next circumstance is that neither Kashi Ram nor Raghubar
Dayal and Bhagwan Dayal bring in any joint family property
either to start the business or to make joint acquisitions.
On the other hand, the entire capital for the business was
furnished by Kashi Ram ; and., under those circumstances, it
is not likely that there would have been any con-. scions
act of reunion between the members of the divided family.
Further, the business was started in 1885, and, it is in
evidence that Raghubar Dayal joined Kashi Ram in the said
business in 1889 and Bhagwan Dayal between 1893 and 1902.
Raghubar Dayal in his evidence says that when he came to
Agra, he was about 8 or 9 years old. If so, it follows that
there could not have been any reunion before he attained
majority. In Revenue Appeal No. 65 of 1941, it was not
disputed that Raghubar Dayal was also a minor when Kashi Ram
started his business. It is not clear from the record when
Raghubar Dayal became' major. He could not have reunited
with Kashi Ram before he attained majority.

463

The evidence may be considered in the following three parts:

(1) the period between 1885, when Kashi Ram started the
business, and 1924, when he died; (2) the period between
1924 and 1933 i. e., from the year when Kashi Ram died to
the year when Raghubar Dayal died; and (3) the, period
between 1933 and 1939 when the dispute between the parties
came to the forefront.

The first set of documents pertaining to the first period
are 10 sale deeds whereunder properties were acquired in the
joint names of Kashi Ram, Raghubar Dayal and Bhagwan Dayal.
As the relevant recitals in all these documents are similar,
it would be sufficient if we look at the earliest document,
Ex. 58, dated August 24, 1903 and the last, Ex. 33, dated
November 27, 1916. Under Ex. 58 the property mentioned
therein was purchased from one Shyam Lal. The relevant
recitals described the vandees thus
" ...... Kashi Kam, son of Lachhman
Prasad, Raghubar Dayal and Bhagwan Dayal,
sons of Jawala Prasad.............."

It records that consideration was received from the said
there persons. Ex. 33 is also a sale deed, a