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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

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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.

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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

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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

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(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

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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

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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

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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

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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

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             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

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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

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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

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             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

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             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, and the  vendors and  vendees  are  the same as in Ex.  58.   Here  also  the vendees are described in the same manner.  Their  occupation

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is  given as "money-lenders".  The eastern boundary  of  the property sold is described as ",,Walls of the shops and shop of  Pandit Kashi Ram".  There’ is a recital in the  body  of the  document  that  the  vendor  had  no  coparcener.   One prominent  feature that ,stands out in the document is  that neither  Kashi  Ram  is described as manager  of  the  joint family  nor Kashi Ram and his nephews as members of a  joint Hindu  family.   In  the  second  document  the  vendor   in describing  himself says that he has no coparcener,  but  in describing  the  vendees.  he  does  not  describe  them  as coparceners, and in giving one of the 464 boundaries  of  the property sold be gives it only  as  -the shop  of  Kashi  Ram alone.  If really  Kashi  Ram  and  his nephews  constituted  members of a joint Hindu  family,  one could expect a recital to that effect.  The absence of  such a  recital  goes a long way to support the  contention  that they never considered themselves as members of a joint Hindu family.  During the same period there were 13 mortgage deeds executed by third parties in favour of Kashi Ram and his two nephews, Ex. 6 is the first of these mortgages and is  dated February  20,  1903, and Ex. 39 is the last  of  them  dated November  2, 1991 8. In both the documents,  the  mortgagees are  described in the same terms as those found in the  sale deeds.  Our remarks made in respect of the sale deeds  would equally apply to these documents.  During this period moneys were advanced by these three persons to others under  bonds. The  earliest of them is Ex. 7 dated September 20, 1904  and the last of them is Ex. 78 dated January 5, 1923.  Kashi Ram and his two nephews are described in these documents in  the same  way  as they are described in the sale deeds  and  the mortgages.   These do not carry the matter  further.   There are  seven decrees during the period-the earliest is Ex.  ll dated  June  19, 1903 and the last is Ex. 27  dated  May  8, 1917.  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.  Ex. 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.  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.  Ex. 56 dated November 7, 1909  and Ex.  59 dated February 26, 1912 are two sale deeds  executed by Kashi Ram and his two nephews conveying certain  property in favour of third parties.  In Ex. 56 it is stated that the 465 vendors  have been in proprietary possession and  occupation of  the  property  and that "there is no  co-sharer  or  co- partner of us who may stand in the way of making any sort of transfer".  In Ex. 59 a similar recital is made.  These  two documents  proceeded  on  the basis that  the  property  was jointly acquired by the executants, and not only there is no mention  that  the  executants belonged  to  a  joint  Hindu family,  but the recitals that there is no co-sharer or  co- partner indicate a consciousness on their part that they did not  belong to a joint family.  The documentary evidence  we have so far considered does not establish that there was any reunion  between Kashi Ram and his two nephews.  Indeed,  at its  best,  it only shows that the three of them  owned  the said  properties  jointly.   If the  properties  were  joint family  properties, it is not possible to Visualise why  not even in one of these documents spreading over a long  period no  mention  is  made that they belonged to  a  joint  Hindu family.  It is common knowledge that in executing  documents for and on behalf of a joint family or in purchasing proper-

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ties for and on behalf of a joint family, the documents  are ordinarily  executed by or in favour of the manager  of  the joint family ; at any rate, the executants or the purchasers of  the  property,  as the case may  be,  are  described  as members  of a joint Hindu family.  Whatever ambiguity  there may  have  been in these documents, it is dispelled  by  two important  documents  executed by Kashi Ram.   Ex.  U  dated October 4,1909 is a deed of agreement executed by Kashi  Ram in  favour  of his nephew Raghubar Dayal, whose son  he  had taken in adoption.  In that document he clearly states  that all  the properties are self-acquired properties.   He  also provides  in that document that, in case he died before  the adopted boy attained majority, Raghubar Dayal should be  his guardian.   There  is  also a  statement  therein  that  the adopted  son  shall  be  the  owner  of  his   self-acquired properties 466 and  none of his relations shall have any  right  whatsoever with  respect’ to his personal or ancestral properties.   It is  not  suggested  that in ’1909 there  were  any  disputes between  Kashi Ram and his nephews.  Indeed,  the document was executed at a time when’ Raghubar Dayal’s son was  taken in adoption.  The fact that Raghubar Dayal was appointed his guardian is also very significant.  In those’  circumstances ’,  this document deserves the greatest credo-,rice and  the recitals  must be accepted as true.- The recitals show  that Kashi  Ram  at any rate treated all his  properties  as  his selfacquisitions,  and  Raghubar  Dayal  and  Bhagwan  Dayal accepted  that position. The  next. document Ex. 5 is also a very important  document in  the  case.   It  is  a  will  executed  by  Kashi   Ram: bequeathing his properties. ,It appears that the adopted son died soon after the adoption and Kashi Ram, who was 80 years old,  executed a will bequeathing his properties to his  two nephews.  He asserts in the document that all his properties are  his  self-acquisitions.  He  describes  thereunder  the circumstances,  under  which he brought up his  nephews  and says that both of them are co-partners in his  money-lending business.   He gives- all his properties in equal shares  to them.  This document is destructive of the plaintiff’s case. It  is not, and cannot be, suggested that this document  was executed to defraud third parties.  It is faintly  suggested that the document was executed to stifle any claim that  the daughter of Kashi Ram might prefer to his properties on  his death.   Such  a  contemplated claim could  have  been  more effectively prevented by asserting that the properties  were joint  family properties ; but in the document the  testator asserts  that  they axe his self-acquisitions,  and  directs that his two nephews shall take the properties jointly under the said will.  It is not necessary to consider whether this will would operate  467 upon the shares of the two nephews in the properties jointly acquired  by  all the three of them.  But the  recitals  are decisive of the question that Kash!  Ram was not a member of a  joint Hindu family and that the parties never  considered themselves as members of a joint Hindu family. Now  we  shall proceed to consider the documents  that  came into  existence. between 1924 and 1933.  During this  period the two brothers, who inherited the business from Kashi Ram, carried  on the same jointly and purchased properties  under 14 sale deeds.  The earliest of them is Ex. 85 dated January 15,  1926 and the last of them is Ex. 72 dated February  19, 1933.  In Ex. 85 the following recital is found :               "I  have received the said amount from  Pandit

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             Raghubar  Dayal  and  Pandit  Bhagwan   Dayal,               "zamindars’,  sons  of  Pandit  Jwala  Prasad,               resident  of  Sadar  Bazar,  Agra,  and   have               transferred the house aforesaid." This document does not describe Raghubar Dayal as manager of the joint family or that the brothers are members of a joint Hindu family.  So too, in EX. 72 &,similar recital is found. The  recitals in the other, sale deeds also follow the  same line.   Strong  reliance is placed upon the  proceedings  of certain  suits, which are marked as Exe. 43, 44 and 14.  Ex. 43 is a copy of the  plaint in suit No. 311 of 1927 filed by Raghubar  Dayal and Bhagwan Dayal against one Khushali.   In paragraph 4 of the said plaint it is stated:               "Kashi  Ram, one of the plaintiffs, is,  dead,               the  plaintiffs are his nephews and  surviving               coparceners  of  his joint family.   They  are               competent  to recover the maid debt." Ex. 13, the decree passed in the aforesaid suit, shows  that the suit was decreed ex parte.  Ex. 44 is a 468 copy. of another plaint in Suit No. 306 of 1929 filed by the two  brothers  against another debtor.In the  plaint  it  is stated  that Kashi Ram is dead and that the  plaintiffs  are his  surviving  heirs.  Ex. 14 is the decree  made  therein. The recitals in Ex. 44 are ambiguous; but the recital in Ex. 43  clearly  says  that  the  brothers  are  the   surviving coparceners  of the joint family’ The suits were  filed  for small  amounts,.  It is obvious that those allegations  were made   to  avoid  the  necessity  of  producing   succession certificates.  As a matter of fact the two brothers got  the properties  under  a  will, and  in  the  circumstances  the attitude  of  the  brothers  in  the  suits  can  easily  be understood and reasonably be attributed to their anxiety  to save some money by avoiding the necessity to get  succession certificates. The  next series of documents relate to the  period  between 1933,  and  1939  that is, from the year  of  the  death  of Raghubar  Dayal to the year when disputes arose between  the plaintiff and the defendant.  During this period there  were 5 sale deeds in favour of Bhagwan Dayal.  The first of  them is  Ex. 89 dated May 23, 1933 and the last is Ex.  88  dated June  20, 1936.  There is no recital in Ex. 89  to  indicate the status of Bhagwan Dayal.  The document shows that one of the co-vendees is Ajudhia Prasad, son of Ram Lal, one of the brothers of Bhagwan Dayal.  It is not suggested, and  indeed it is not the case of the appellant, that he’ was a,  member of a joint -Hindu family along with Ajudhia Prasad.  It  may have  been  that Bhagwan Dayal had taken Ajudhia  Prasad  as partner  in  the business, and that is consistent  with  the case  of  the  defendant.  Ex. 88  also  does  not  give-any indication  that  Bhagwan Dayal was a member  of  the  joint family  along  with  his  uncle,  and  thereafter  with  his brother.   Ex.  83 is a sale deed whereunder  Bhagwan  Dayal exchanged  a  property  purchased  by  him  along  with  his brother’ 469 for  another property owned by a third party.  There  is  no assertion in, this document that the  property was the joint family property of the brothers ; nor is there any  evidence to indicate that the widow of Raghubar, Dayal had  knowledge of  the  same.  Bhagwan Dayal also  executed  certain  salt, deeds, the first of them dated April,. 9, 1934 and the  last of them dated, April 3, 1942 i. e.., after the filing of the suit.  Ex. 80 is a sale deed’in which for the first time  we find  the  recital that the executant  and  Ragbubar,  Dayal

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lived  together jointly and the entire business was  carried on  jointly  in  the name of both of  them  and  that  after Raghubar  Dayal’s death the executant had been the  manager, Karta and Mukhia of his joint family upto that time.   There is nothing to show that the defendant had knowledge of  this document.   That apart, the recital that Bhagwan  Dayal  was the  manager  of  his  joint  family  in  1934  may  not  be inaccurate,  for  he was living jointly with song.   In  any view this recital, appearing for the first time after  about 50  years and made behind the back of the  defendant,  would only be a self-serving statement. Puttu  Lal  is the brother of Reoti Devi.  He  says  in  his evidence that Kashi Ram started the business, and that Kashi Ram,.  Raghubar Dayal and Bhagwan Dayal used to live in Agra in  one  and the same house and were, joint  in  mess.   His knowledge  of the family affairs goes back only to the  year 1910  and even his alleged admission does not  indicate  any joint  status.   Ex. 35 is the sale  certificate  issued  to Raghubar  Dayal in  respect of a property purchased by  him. Therein  he  is  described as the, proprietor  of  the  firm styled as "Pandit Kashi Ram Bhagwan Dayal".  It is suggested by  the respondent that the said description is  a  mistake. But assuming it to be correct, , it only shows that the were doing  business jointly as they firm.  Ex. 36 is a  delivery receipt of the property 470 covered  by the sale certificate, Ex. 35.  This  only  shows that  Bhagwan Dayal took delivery of the property  purchased on  behalf of the firm.  Ex. 84 is a sale deed  executed  by one Raja Ram in favour of Raghubar Dayal and Bhagwan Dayal. This  property, though purchased by both the  brothers,  was subsequently  given  in exchange by Bhagwan Dayal  alone  to Raja  Ram for another.  These statements only show that  the two  brothers had a joint mess and that aproperty  purchased by both of them was disposed of by Bhagwan Dayal  subsequent to  the death of Raghubar Dayal.  There is  nothing to  show that the widow had knowledge of it. Strong reliance is placed upon certain statements alleged to have been made by the respondent and her brother  admitting- the  joint  family status of the brothers.  Ex.  45  in  the statement  made by the respondent in Suit No. - 197 of  1933 on  the file of the Court of the Munsif, Agra.  That  was  a suit  filed  by  Bhagwan  Dayal against  one  Har  Lal  for recovery of some money.  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.  In the  cross-examination  she went back on her statement made in the examination-in-chief, for  she stated therein that she had interest in  the  money left ,by her husband that she had power of disposal over the said money and that she and Bhagwan Dayal were the owners of it.   These  inconsistent statements in a  short  deposition indicate that she was not clear about the legal  terminology used by her when in the. examination-in-chief she said  that her  husband and Bhagwan Dayal were living jointly and  that the business was ancestral in their house, for  ,immediately when pointed questions were put as regards the title to  the properties, she stated that she and Bhagwan Dayal were  both owners.   In  the present suit she deposed  that  she  made, those 471 statements  at the request of Har Lal.  That apart,:  it  is not disputed that after the death of Raghubar Dayal till the year 1939 she was living with Bhagwan Dayal and that Bhagwan Dayal  was  managing the entire properties  and  giving  her

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small amounts towards her maintenance.  Any statements  made by  her  when she, was under the control of  Bhagwan  Dayal cannot  be  of any evidentiary value particularly  when  her statements  are  also  inconsistent with  one  another.   On December 22, 1937 she made another statement in Suit No.1013 of 1937.  That was a suit filed by Bhagwan Dayal against one Ram Lal and others.  In that suit Bhagwan Dayal  represented himself  to  be the manager of the joint,  family.   In  the statement  filed by the respondent, she stated that  Bhagwan Dayal  filed  the suit as the managing agent of  the  family with  her consent.  To that statement  the  thumb-impression of the respon dent was affixed.  I Ex. 52 is a plaint  dated August  27,1937  in Suit No. 506 of 1939 filed  by  Bhagwan Dayal against third parties to enforce a mortgage deed.   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 coparcener.  In that suit the respondent gave vakalat to  an Advocate to look after her interest.  Ex. 2 is a copy of the judgment  in  that suit.  One of the issues  was  whether  a suecession certificate was necessary in order to enable  the plaintiff  to’ file the suit.  In that case, the  mortgagor, being  a  stranger,  did not put in evidence  to  show  that Bhagwan Dayal was not a member of a joint family along  with ‘Raghubar  Dayal.   Applying  the presumption  of  law,  the learned  Munsif held, that the brothers were joint and  that the suit was maintainable without a succession  certificate. It  is  obvious that the allegations in the plaint  in  that suit  were  made  to avoid the production  of  a  succession certificate. 472 The.  respondent  could  not have  bad  knowledge  of  these allegations  in  the plaint nor of the  implication  of  the statements.   She  must  have  signed  the  vakalat  at  the instance  of  Bhagwan  Dayal and given it  to  the  Advocate engaged  by him.  Ex. 51 is a copy of the plaint in  another suit filed by Bhagwan Dayal on August 17, 1933.  Therein  it is  alleged  that  Bhagwan Dayal  and  Raghubar  Dayal  were brothers of’ a joint Hindu family and that the plaintiff  as the  surviving coparcener of the said joint  family  brought that  suit.  It was conducted by him in that capacity and  a decree  was  obtained.   This allegation  in  the  suit  was presumably  made  to  avoid  the  necessity  of  setting   a succession  certificate.  These recitals and  assertions  in the suits that Bhagwan Dayal was a member of a. joint family along  with his brother, Raghubar Dayal, could not have  any evidentiary  value  against the respondent,  for  one  thing there is nothing to show that she had knowledge of the suits and  for  the  other  that the recitals  we’re  made  for  a particular purpose to avoid the expenditure for obtaining  a succession certificate. Reliance  is placed upon the evidence given by her  in  Suit No.  15  of 1939 which is marked as Ex.  W  in  the  present case.   Under the stress of cross examination certain  facts were  elicited from her.  She stated that the uncle and  the two  nephews were living together, that, when Kashi Ram  was alive,  he and the two nephews used to write -accounts,  and that  they used to live as family .members; but at the  same time  she also said that she did not know what was meant  by "family" and that everyone was the, head of his own  family. No serious argument can be placed upon her vague evidence in support of the case of joint family. But  the  conduct of the plaintiff after the  death  of  his

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brother,,  Raghubar Dayal, is of more evidentiary  value  on the  question  of joint family than, that  of  the  ignorant widow;  for  unlike the respondent, he must  have  certainly known his legal 473 rights.  Schedule A shows that some of the alleged ancestral properties  were recorded in the name the respondent,  Reoti Devi.   The plaintiff also admits in the plaint  that  there was a mutation the respondent’s name in the revenue  records of  her deceased husband, but asserts that does  not  clothe her  with any legal title. curious explanation he  gives  is that.it was at the very best a gratuitous submission on  the part  of the plaintiff just out of affection and regard  for the  feelings of the defendant.  The evidence disclose  that after  the death of her husband, the respond was given  only petty  amounts,  and it does not indicate any  affection  or regard towards the wide Ex. R, the Khewat of village Chaoli, shows that respect of that village Reeti Devi’s name mutated for that of her husband.  Ex.  S, the Khewat of village Chak Soem,  and, Ex.  T, the Khewat of village Chaharum,  contain recitals should being the name of Reoti Devi in the place of her  husband.   Exs.   C., N and M are  some  of  the  order where  under  Reoti  Devi’s name was mutated  place  of  her husband.   The  explanation  offered the  plaintiff  in  the plaint  is unconvincing.  He husband’s name must  have  been entered  in  revenue records without any  objection  by  the plaintiff, as he was conscious that she and her husband were not members of a joint family and she entitled to succeed to her husbands share. From the aforesaid evidence the following facts emerge :  In 1885 Kashi Ram started business at Agra from and out of  his self-acquistionns.   He  brought his  nephews  at  different points  of  time  and  allowed them  to  take  part  in  the business.  It may also be that he had taken them partners in the  business and also purchased properties in  their  joint names ; but there is not single document during his lifetime wherein  Kashi Ram either admitted that he was a  member  of joint family along within nephews or the nephew asserted any joint status along with him.  Indeed 474 on  the two occasions when it became necessary to setup  his claims, that is, when he executed the adoption deed and  the will, Kashi Ram clearly stated that all his properties  were his   self-acquisitions.   The  documents  that  came   into existence  after the death of Kashi Ram also do not  contain any  allegations that the brothers were members of  a  joint Hindu  family during Kashi Ram’s lifetime or that they  were members of a joint family after his death.  The self-serving statements  made,  by Bhagwan Dayal after the death  of  his brother, Raghubar Dayal, in 1933 were made to enable him  to file  suits without obtaining succession certificates.   The alleged statements made by’ the widow of Raghubar Dayal have no  evidentiary  value,  for she was  admittedly  under  the control  of  the plaintiff and even the  alleged  admissions were  ambiguous.   On the other hand, the  respondent,  soon after  the  death of her husband, got her  name  mutated  in respect of her husband’s share in the properties ; and  this conduct is an unambiguous piece of evidence which  indicates the  consciousness  on the part of the  plaintiff  that  the defendant’s  husband was not, a member of the  joint  family along with his brother or uncle.  The fact that the brothers and  the uncle lived together and did business  together  is consistent with their relationship of uncle and nephew,  and the  fact that they purchased or sold properties jointly  is also consistent with their being are partners or co-sharers.

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The recitals in some of the documents describing the nephews as  copartners also show that they were treated only as  co- sharers.   Whatever  ambiguity there may  be,  the  adoption deed, the will and the mutation of the name of the widow in, place  of  her husband in the revenue  records  dispell  it. From this conduct, spreading over about 50 years, it is  not possible to hold that the uncle and the nephews  consciously entered into an agreement to reunite and become members of a joint Hindu family. 475 This  finding is enough to dispose of the appeal.   But,  as the  evidence on the question of partition of the family  is not as satisfactory as it should be, we propose to  consider the alternative contention put forward by the appellant. The  learned Attorney-General, appearing for the  appellant, contends  that  in  a joint Hindu  family  if  some  members belonging  to different branches or even to a single  branch acquire  property,  they hold the property as members  of  a joint Hindu family and that that property vis-a-vis the said members will be joint family property. On the other hand, Mr. A. V. Viswanatha Sastri contends that 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 and, therefore, any property acquired jointly by them  would be governed only by the terms of the agreement between  them where under the said property is purchased. This  question  raises  an  interesting  point  of  law  and requires  scrutiny  of some of the decision,% cited  at  the Bar.  The legal impossibility under Hindu law of members  of different  branches of a joint Hindu family to constitute  a subordinate  joint Hindu family was pointed out  by  Bashyam Ayyangar  in Sudarsanam Maistri v.  Narasimhulu  Maistri(1). There,  one V and his Three elder sons lived apart from  his two  younger sons and were in possession of  some  ancestral property.  The two youngest sons acquired property from  the funds  of  a  business which had been  carried  on  by  them jointly.   One  of  the questions raised  was  whether  they acquired the property as members of the joint Hindu  family. Bhasbyam Ayyangar, J., in rejecting the contention discussed the principle governing ’the constitution of joint  families and the (1)  (1902) I. L. R. 25 Mad. 149. 476 properties  acquired  by  the said  families  and  made  the following pregnant observations at p. 154 : "The Mitakshara doctrine of joint family is founded upon the existence   of   an  undivided  family,   as   a   corporate body............  and  the possession of  property  by  such corporate body.  The first requisite therefore is the family unit  ; and the possession by it of property is the  second. requisite............. the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal  condition viz.,  the undivided state-it forms a corporate  body,  such corporate  body, with its heritage, is purely a creature  of law and cannot be created by act of parties, save in so  far that, by adoption, a stranger may be affiliated as a  member of that corporate family." Adverting  to  the nature of the property owned  by  such  a family, the learned Judge proceeded to state : "As  regards the property of such family, the  ’unobstructed heritage’ devolving on such family, with its accretions,  is owned  by  the family as a corporate body, and one  or  more branches  of  that  family, each forming  a  corporate  body

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within  a  larger  corporate  body,  may  possess   separate unobstructed  heritage’ which, with its accretions,  may  be exclusively owned by such branch as a corporate body." Then dealing with the problem whether two or more members of different  branches,  or of one and the same  branch,  of  a family can acquire a property with the incidents of a  joint family  property, such as right by birth etc.,  the  learned Judge observed thus at p. 155 : But  so long as a family remains an undivided unit,  two  or more members thereof 477 whether they be members of different branches or of one  and the  same branch of the family-can, have no legal  existence as a separate independent unit; but if they comprise all the members  of  a branch, or of a subbranch, they  can  form  a distinct  and  separate  corporate unit  within  the  larger corporate unit and hold property as such." The above passages clearly lay down the principle behind the rule.  Hindu law recognizes only the entire joint family  or one  or more branches of that family as a corporate unit  or units  and  that the property acquired by that unit  in  the manner recognized by law would be considered as joint family property.  But in the case of two or more members of a joint Hindu family belonging to different branches or even to  the same branch, they do not acquire the property as a corporate unit or for the corporate unit and, therefore, they are only governed  by the terms of the contract, express or  implied, where under they have acquired the property. The  same principle has been applied by a Full Bench of  the Madras High Court in Chakra Kannan v. Kunhi Pokker (1) to  a Marumakkattayam   tarwad.   Dealing,  with  tavazhi,   which corresponds  to a branch of a joint Hindu family  under  the Hindu law Srinivasa Ayyangar, J., observed thus at p. 336: "These  groups cannot of course be created by  agreement  of parties.    The   tavazhis   or   the   subordinate   groups constituting  the  tarwad are, I think, capable  of  holding properties  as corporate units with the incidents of  tarwad property, at the same time retaining their joint interest in the  properties  of the main tar-wad, just as  branches  and sub-branches in a Mitakshara joint Hindu family are  capable of  holding  properties with the incidents  of  joint  Hindu family property.  I am (1)  (1916) I.L.R. 39 Mad. 317, 478 also  of opinion that some only of the members of a  tavazhi cannot form a corporate unit capable of holding property  as such." This decision also recognizes the legal conception that only a  joint  family  and its branches  or  subbranches  can  be corporate units capable of acquiring property, and that only two or more members belonging to different branches or  even to one and the same branch cannot constitute such a unit and therefore,  cannot  acquire property with the  incidents  of joint Hindu family property. A  division  bench of the Madras High Court  elaborated  the same  theme in The Official Assignee v. Neelambal Ammal  (1) and  came to the conclusion that it is not possible for  two members  of  an  undivided Hindu family  to  deal  with  the property  acquired by them in such a way as to impress  upon it  the incidents of a joint family property for  themselves and their descendants.  Reilly, J., observed at p. 803 thus: "As I understand the matter, a Hindu joint family firm is  a special  form of partnership, the members of which  must  be either the whole of a joint family or the whole of a  branch of a joint family."

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The  learned  Judge  practically  adopted-the  reasoning  of Bhashyani   Ayyangar,   J.,  in   Sudarsanam,   Maistri   v. Narasimhulu Maistri (2) so too, the Allahabad High Court  in Himmat  Bahadur  v.  Bhawani Kunwar (1)  accepted  the  view expressed by Bhashyam Ayyangar, J. The Judicial Committee in Jogeshwar Narain Deo v. Ram  Chund Dutt (4) clearly ruled that "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 Mitak- shara law which under that law passes by survivorship".  The same principle was restated by the (1)  (1933) 65 M.L.J. 798. (3)  (1908) I.L.R. 30 All. 352. (2)  (1902) I.L.R. 25 Mild. 149. (4)  (1896) L.R.23 I.,A. 37,: 479 judicial Committee in, Bahu Rani v. Rajendra Bakhsh Singh(1) If two or more members of different branches, or of the same branch  of  a joint hindu family cannot  acquire  a    joint property  impressed with the incidents of joint family  pro- perty  and  if  the Hindu law does  not  otherwise  sanction acquisition  of  property  by  them  as  joint  tenants   as understood   in,   the,  English  law,  their   rights   and liabilities  can  only  be  governed by  the  terms  of  the agreement, under which they purchased the property. Now lot us look at some of the decisions cited on  behalf’of the appellant in support of the contention that there can be a joint acquisition by such members giving rise to the right of   survivorship  though  not  right  of   birth.    Strong reliance  is  placed  upon  the  decision  of  the  Judicial Committee in Nathu Lal v. Babu Ram (2) There, on the’  death of  one of two brothers, who were members of a Hindu  family the  surviving brother claimed that he had been joint,  with his brother and that ’the’, whole of the property passed  by survivorship  to  him so that the widow of his:  deceased brother  took  nothing  by  inheritance.   The  dispute  was referred  to arbitrators, who: found that the  two  brothers had  been joint. and divided the joint property between  the parties   in   certain  unequal  proportions.    The   widow subsequently executed a deed of gift of part of the property awarded  to her in favour of one of her daughters.   On  the death of the daughter, four sons of another daughter of  the widow,  claiming  to be reversioners  of  their  grandfather obtained  possession of the property passed by the  deed  of gift.   The  nephew-in-law of the deceased  daughter  and  a purchaser  from  him  sued  to  recover  possession  of  the property on the ground that the widow had hold, an  absolute estate  and, had by the deed of gift conveyed  an.  absolute estate  in  the  property to  her  daughter.   The  Judicial Committee held that on the (1) (1933) L. R. 60 I. A. 95. (2) (1935) L. R. 63. I. A. 155. 480 death of the daughter the property passed by survivorship to the  surviving brother and not by inheritance to the  widow; but that upon the true constitution of the award, the  widow war,  given an absolute interest.  On that finding the  suit was  decreed.   But a scrutiny of the facts shows  that  one Buddhi had three sons, Ram Sahai, Ji Sukh, Ram and Sita Ram, and  that  Buddhi  and one of his sons, Sita  Ram  left  the family and the remaining two brothers Ram Sahai and Ji  Sukh Rant,  continued  to be members of the  joint  family.   The Judicial   Committee  rightly  held  that   the   properties purchased  for the family by the two  brothers  constituting the joint family were joint fan-lily properties.  It is  not

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a case of some members of different branches or some members of the same branch purchasing properties jointly, but a caw, of  all  the  members of a  joint  Hindu  family  purchasing properties for the family. Nor does the decision in Sham, Narain v. The Court of WardS, on behalf of Jung Bahadoor (1) afford any real assistance to the   appellant.   There,  two  Hindu  brothers,  who   held ancestral  estate in common with a third  brother,  acquired other  property  jointly, the learned Judges  held,  on  the evidence  that the property was held by the two brothers  as members  of a joint Hindu family.  The learned  Judges  held that  the principle of blending of a separate property  with the  joint family property and the principle of  acquisition of  property  by united members of a  divided  family  would equally apply to an acquisition of property by two of  three brothers of a joint Hindu family, Bhashyam Ayyangar, J.,  in Sudarsanam  Maistri  v. Narasimhulu Maistri  (2)  criticised that   judgement  and  observed  that  he  should  have   no hesitation  in  dissenting  from  the  said  decision.   The learned  Judges  missed the real- point, namely,  that  some members of different branches of a joint Hindu (1) (1873) 20 W.R. 1-97. (2) (1992) I.L.R. 25 Mad. 149.  481 family  cannot  from a corporate unit.  In  our  view,  that decision is wrong and must be overruled. Nor   does  the  decision  of  the  Judicial  Committee   in Rampershead  Tewarry  v.  Sheochurn  Doss  (1)  support  the contention  of the appellant.  In that case one of the  five brothers  constituting an, undivided Hindu  family  acquired personal property.  With that money and with the aid of  his brothers  he established and carried on banking business  at five different places.  The Judicial Committee held that the property so acquired was joint family property in which  the brothers were entitled to,share.  A perusal of the  judgment shows  that  &II the brothers were members of  an  undivided Hindu  family and there was a nucleus of ancestral  property and that all of them together acquired the property jointly, though the banking business was started with the help of the self-acquisitions  of one of the brothers.  This again is  a case  of all the members of a joint Hindu  family  acquiring property for the family. In Mayne’s Hindu law, 11th edn., the legal position has been neatly stated thus at p. 347 : "So  long  as a family remains an undivided family,  two  or more  members  of it, whether they be members  of  different branches  or of one and the same branch of the  family,  can have no legal existence as a separate independent unit;  but all the members of a branch, or of a sub-branch, can form  a distinct  and  separate  corporate unit  within  the  larger corporate, family and hold property as such.  Such  property will be joint family -property of the members of the  branch intterse,  but will be separate property of that  branch  in relation to the larger family. The,  principle  of joint tenancy is unknown  to  Hindu  law except in the case of the joint (1)(1866) 10 M.I.A. 490. 482               property of an undivided Hindu family governed               by the Mitakshara law." The  legal  position may be stated thus : Coparcenary  is  a creature of Hindu law and cannot be ,created by agreement of parties  except in the case of reunion.  It is  a  corporate body or a family unit.  The law also recognizes a branch  of the family as a subordinate corporate body.  The said family

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unit,  whether  the larger one or the subordinate  one,  can acquire, hold and dispose of family property subject to  the limitations  laid down by law.  Ordinarily, the manager,  or by  consent,  express  or implied, of  the  members  of  the family, any other member or members can carry on business or acquire  property, subject to the limitations laid  down  by the  said  law,  for  or, on behalf  of  the  family.   Such business  or property would be the business or property,  of the, family.  The identity of the members of the, family  is not completely last in the family.  One or more - members of :that  family  can  start a  business  or  acquire  property without  the  aid  of the joint family  Property,  but  such business or acquisition would his or their acquisition.  The business  so started or property so acquired can  be  thrown into  the  common  stock or blended with  the  joint  family property in which case the said property becomes the  estate of  the  joint family.  But he or they need not  do  so,  in which  case  the said property would be his or  their  self- acquisition,  and  succession  to  such  property  would  be governed not by’ the law of joint family but only by the law of  inheritance.  In such a case if a property  was  jointly acquired  by  them, it would not be governed by the  law  of joint family ; for Hindu law does not recognize some of  the members  of a joint family belonging to different  branches, or even to a single branch, as a corporate unit.. Therefore, the rights inter se. between the. members who have  acquired the  said  property  would be subject to the  terms  of  the agreement where under it was acquired. 483 The  concept of joint tenancy known to English law with  the right  of  survivorship is -unknown to Hindu law  except  in regard to cases specially recognized by it.  In the  present case,  the uncle and the two nephews did not belong  to  the same  branch.  The acquisitions made by them  jointly  could not  be  impressed  with  the  incidents  of  joint   family property.   They can only be co-sharers or components,  with the. result that their properties passed by inheritance  and not by survivorship. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.