joint family properties of the said members, under the Hindu law.
The two learned Judges gave different findings but came to the same companyclusion in holding against the plaintiff.
The learned Judge, though for different reasons, agreed with the companyclusion 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 companyts through out.
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 numberreunion between the said members 4 Kashi Ram had.
In the statement filed by the respondent, she stated that Bhagwan Dayal filed the suit as the managing agent of the family with her companysent.
In paragraph 2 of that plaint it was stated that both the mortgagees were full brothers and members of a joint Hindu family of the Mitakshara school, that the mortgage debt was advanced by them as such, and that Raghubar Dayal died in February 1937 leaving the plaintiff as the surviving companyarcener.
506 of 1939 filed by Bhagwan Dayal against third parties to enforce a mortgage deed.
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 present appellant, who was the defendant in that suit, companytested the suit, inter, alia on the ground that he and his deceased brother companystituted members of a joint Hindu family and that OD his brothers death his interest in the entire joint family property devolved on him by right of survivorship.
The second appeal filed by him in the High Court ofAllahabad was also dismissed.
2 Though as a matter of law two or more members of a larger Hindu family number 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 number establish that Kashi Ram,, Raghubar Dayal and Bhagwan Dayal companystituted 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 his death they held those properties and those acquired subsequently only as companytenants and number as members of a joint Hindu family.
The first of the suits which ended in the decree was filed by Kashi Ram and the two nephews, and the other, by Kashi Ram and Bhagwan Dayal.
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.
To that statement the thumb impression of the respon dent was affixed.
Hence the present appeal.
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 .
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 companyduct of the said three members during the lifetime of Kashi Ram and thereafter.
Chaoli against Bhagwan Dayal in respect of 1343, 1344 and 1345, fasli on the ground that she was his companyharer.
On December 22, 1937 she made another statement in Suit No.1013 of 1937.
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 in Suit No.
Some of the facts relevant to the question may be recapitulated.
Any statements made by her when she, was under the companytrol of Bhagwan Dayal cannot be of any evidentiary value particularly when her statements are also inconsistent with one another.
res judicata in respect of any properties in the suit.
15 of 1939 does number operate as.
Appeal from the judgment and decree dated May 7, 1944, of the Allahabad High Court in First Appeal No.
The landholders raised the plea that the village iii which the petitioners lands were situated was number an estate and, therefore the petition was number maintainable in the revenue companyrt.
She further pleads that the decision of the Revenue Court in Suit No.
15 of 1939 in the Revenue Court for recovery of her share of profits of village.
15 of 1939.
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.
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.
3 The finding of the Revenue Court in Suit No.
That was a suit filed by Bhagwan Dayal against one Ram Lal and others.
2 Two brothers out of four and an uncle cannot in law form a distinct companyporate family with the incidents of a joint family and acquire properties for that unit.
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.
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.
52 is a plaint dated August 27,1937 in Suit No.
The respondent Reoti Devi filed 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 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 companyfirmed, and that the suits in respect of other villages are still pending.
56 dated November 7, 1909 and Ex.
23 dated April 14, 191.6 is the receipt for possession of the land taken by Kashi Ram and his two nephews in execution of a decree obtained by them.
27 dated May 8, 1917.
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.
The appeal was heard by a division bench of that Court companysisting of Agarwala and Gurtu, JJ.
3 was a rent deed executed by one Chandi Prasad in favour of Kashi Ram and his two nephews in respect of a shop owned by them.
And 5 the plaintiff and Raghubar Dayal held the properties only as companytenants.
The matter was taken up on appeal to the District Court and thereafter to the High Court without success.
That was a suit filed by Bhagwan Dayal against one Har Lal for recovery of some money.
CIVIL APPELLATE, JURISDICTION Civil Appeal No.
486 of 1944.
Briefly stated, the findings of Agarwala, J., are as follows 1 The evidence on the record is number sufficient to establish partition in the family.
Against the said decree, the appellant preferred an appeal No.
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.
3 Kashi Ram companyld 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 number even born number did he unite with them as a matter of fact.
15 of 1939, holding that the brothers were number 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 plaintiffs entire claim.
The properties.
She stated therein that her husband used to live jointly with the plaintiff, that the business was also joint, and that the money lending business was ancestral in their family.
On the said findings the Civil Judge declared the plaintiffs absolute title to the properties described in Schedules B, C and D, except in regard to a half share in mauza Chaoli.
The plaintiffs case is that Lachhman Prasad, his sons and descendants companystituted 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.
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.
The judgment of the companyrt 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.
There, certain tenants filed a petition under s. 40 of the Madras Estates Land Act, 1908 in the revenue, companyrt for companymutation of rent against the landholders.
The plaintiff appellant herein says that the said finding of the Revenue Court does number operate as res judicata in the present suit, and that he is entitled to reagitate the matter.
V. Viswanatha Sastri, S. N. Andley.
Jwala Prasad died in 1908 Kashi Ram, in 1924 Ram Lal, in 1914 Banwari Lal, in 1914 and Raghubar Dayal, in 1933.
To appreciate the facts and the companytentions of the parties, the following relevant part of the genealogy will be useful.
448 of 1958.
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 plaintiffs right to succeed to the share of her husband, Raghubar Dayal, in the joint properties.
The ancestral house of the family was in village Naugaien, district Farrukhabad.
C. Setalvad, Attorney General for India and B. D. Sharma, for the appellant.
197 of 1933 on the file of the Court of the Munsif, Agra.
lifetime of Kashi Ram, some after his death, and others after the death of Raghubar Dayal, and that the said properties were the.
In that suit Bhagwan Dayal represented himself to be the manager of the joint, family.
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.
On those allegations the present suit was filed in the companyrt 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.
His further case in that after the death of Kashi Ram, the business and the properties acquired durings 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 Revenue Divisional Officer held that it was number an estate and on that finding dismissed the petition.
Dayavati Ajudhia Prasad The date of death of Lachhman Prasad does number appear in the record.
September 4.
Lachhman Prasad Pt.
Rameshwar Nath and L.V. Vohra, for the respondent.
15 of 1939 operated as res judicata.
