M.L Jain, J.:— This appeal and cross-objections are directed against the judgment of the learned single Judge, of December 15, 1976, in a suit for partition of joint Hindu family properties and for rendition of accounts filed by the sons against their father.
2. In order to understand the genesis of the case, let us commence with the geneology:
MOOL CHAND Radha Kishan Banarsi Das (died on 19-10-1949) Nanak Chand (Adopted on 29-3-1927 at the age of 12½ years) (defendant (1)—appellant) Raj Rani (wife) (died on 14-9-1949) Bimla Devi (wife) (married on 1-7-52) (defendant 5— appellant). Chander Kishore (plantiff-respondent Ravinder Kishore (pltf-respt.) Ramesh Kumar (Pltf respt.) Santosh (Deft-2 respt) (unmarried) Usha Rani (Deft-3 respt) (unmarried) Shashi Prabha (deft-4 respt) (married) Yogesh Kurnar (Deft-6-appellant) Tarun Kumar (Deft-7-appellant
The plaintiffs, the sons of Nanak Chand, appellant, born of Raj Rani, served a notice (Ex. D1/10), on him on 17-5-1963 intimating that they have been living separately and that he had not given them their share of the properties and income therefrom and has evaded partition of the properties by mates and bounds. They demanded accounts of all the properties, rent, income and partition within a week. The plaintiffs then filed a suit on 27-8-1963 in the court of the Sub-Judge for permanent injunction restraining the defendant Nanak Chand from transferring the properties and shares and from acting on their behalf and from interfering with the peaceful enjoyment of the property. The suit was dismissed on 29-9-1966 but the defendant was restrained from alienating the share of Rakesh Kumar. Thereafter on 23-7-1969 the present suit was filed. The learned single Judge held that the joint status shall be deemed to have disrupted on 17-5-1963. It was on the basis of this date that he proceeded to record his findings as to the properties which stood as joint in May, 1963.
3. The properties involved are as follows:
Immoveable:
1. Houses:
Houses bearing Municipal Numbers 2494, 3893, 3894 and 3895.
(a) House No. 3893 was sold on 7-3-1975 for Rs. 25,000 in order to pay the marriage expenses of defendant No. 4, Shashi Prabha. The sale price was paid to the plaintiffs and defendant No. 4 on the orders of Kapur J. It was held that the defendant was liable to account for rental income up to the date of the sale.
(b) House No. 3894 was sold in the year 1964 upon permission of the Sub-Judge for Rs. 9,000. The defendant was held liable to account for the sale proceeds of Rs. 9000.
(c) House No. 3895 was sold in the year 1958 for Rs. 7000. The learned Judge held that it was sold for the benefit of the family.
(d) House No. 2494 is available as a joint property.
2. Plots of land:
(a) One plot in Shalimar Garden, being No. 673 measuring 355 sq. yds. It was held that it was a self-acquired property of the defendant Nanak Chand.
(b) One plot in Mehrauli was also held to be a self-acquired property of the defendant Nanak Chand.
Movables:
(a) Shares standing in the name of the parties held to be joint property:
1. Amrit Banaspati Co. Eq. 100) in the name of Nanak Chand. Pref. 225 -do- Eq. 111 In the name of Banarsi Das Nanak Chand. Pref. 150 2. Central Bank of India ordy. 158 3. Colour Chem. ordy. 6 4. Delhi Cloth Mills ordy. 56 5. Ganesh Flour Mills ordy. 120 6. Good-year India Ltd. ordy. 5 7. Hindustan Mercantile Bank ordy. 5 8. India Cements ordy. 1700 pref. 5 9. Indian Copper Corporation Ltd. ordy. 300 10. Indian Iron & Steel ordy. 720 11. Indian Steamship ordy. 110 12. ModiSpg. & Wvg. Co. ordy. 150 13. Motor & General Finance Ltd. ordy. 150 14. Neelamali Tea & Coffee ordy. 400 15. New Victoria ordy. 100 pref. 100 16. Premier Automobiles ordy. 10 17. Punjab National Bank ordy. 1500 18. Shree Gopal Paper Mills ordy. 300+200 (Bonus.) (Now Balarpur Industries) 19. Sone Valley ordy. 200 20. Travancore Rubber ordy. 100 21. United Flour Mills ordy. 332 22. Tranvancore Rubber & Tea ordy. 100
(b) 23.44 shares of DCM purchased in 1953 which have increased now to 120. 24.250 shares of Punjab National Bank. 25.10 shares of Motors and General Finance Ltd.
(c) Fixed Deposits:
(1) Rs. 20,000 in the Goodwill Finance Corporation were held to be joint estate.
(2) Rs. 15,000 in Goodwill India Ltd. were held to be joint family estate.
(3) Rs. 10,000 in the United Commercial Bank Ltd. were non-existent.
(d) Others:
(1) 31 needle boxes were held to be joint property in possession of the defendant. They were originally purchased for Rs. 7000.
(2) Vespa Scooter was a joint property. It was sold and Rs. 2000 were deposited in Goodwill Finance Corporations.
(3) Ornaments & Jewellery were held non-existent.
(4) Bank account in Hindustan Commercial Bank Ltd. and United Commercial Bank Ltd. were held non-existent.
4. The learned single Judge also found that Bimla Devi before she married the present defendant Nanak Chand was already married according to Saptapadi rites to one other person a related of Nanak Chand. Though the other Nanak Chand had treated his marriage with Bimla Devi as dissolved as is evidenced by the fact that he had married again, yet the marriage between Bimla Devi and the other Nanak Chand not having been in fact dissolved, Bimla Devi was incapable of contracting a second marriage and her marriage with defendant No. 1 was, therefore, void ab initio and consequently defendants 5 to 7 were entitled to no share. He held that the plaintiffs and defendant No. 1 are thus entitled to 1/4th share each in the joint estate as aforesaid and that in Delhi a son governed by Mitakshara Law can claim partition of the joint Hindu family property during the life time of his father. The learned Judge decreed partition with a direction for provision for the marriage expenses of defendants Nos. 2 and 3 at the rate of Rs. 25,000 per daughter. Since the said daughters are in possession of some shares of the joint estate held in Delhi Cloth Mills, the value of these shares will be taken into consideration at the time of the final decree for adjustment against the said sum of Rs. 25,000. Defendant No. 1 was held liable to account for the rents, dividends of other shares, bonus shares, other receipts and sales of the property. He will, however, be allowed to take credit of such expenditure as has been incurred by him in the preserving of the estate. If any shares or property of the joint family have been sold or transferred and acquisitions can reasonably be inferred to have been made with the sale proceeds, then defendant No. 1 will still be liable to account for the receipts and outgoings. The transfer of shares and deposits in favour of defendants 5 to 7 after May, 1963, will be ignored and accounts be taken of all receipts as belonging to the joint estate. The learned Judge further directed that defendant No. 1 is liable to account for all receipts and outgoings of the immovable properties, vespa scooter, deposits, needle boxes and shares including accretions, bonus shares and dividends. Since there was no proof of any mis-appropriation or improper conversion the defendant was not liable to account for any assets or their dealings prior to May, 1963. The plaintiffs and defendants No. 2 and 3 were held liable to account for the shares including accretions, bonus shares and dividends received held by them in their possession in May, 1963. The plaintiffs were also to account for the transfer of shares made after May, 1963. From the date of the transfer, they will be made liable to pay interest on the sale consideration at the rate of 6 per cent per annum and accounting done accordingly in favour of the joint estate. The learned Judge directed appointment of a Commissioner to ascertain the value of shares and prepare a scheme of partition of the aforesaid properties.
5. Hence, this appeal by Nanak Chand, Bimla Devi, Yogesh Kumar and Tarun Kumar. The plaintiffs have filed cross-objections.
6. The first contention that was urged in this appeal was whether the suit was within limitation. This objection has got to be rejected because it was a mixed question of law and fact and was not raised at any time earlier than the time of arguments in this appeal. Even otherwise, it is without any merit as we will presently show. Notice (Ex. D1/10) was given on 17-5-1963 which was served on 23-5-1963 and the suit was filed on 23-7-1969. It was contended that the Article of limitation application to the suit is the residuary Article 113 (old 120) which allows a period of three years (old six years) from the time the right to sue accrues: see Chowkaran Pashukkath Asanlevi v. Pushail Veluthan Charis Ummer and others, AIR 1956 Madras 100 (1). The learned counsel for the appellants maintained that the right to see accrued on 17-5-1963 when the plaintiffs gave notice of their definite and unambiguous intention to separate from the family and to demand division and thereby to enjoy their shares in severally. The learned counsel for the appellant further relied on Rajaram Vithalji Sheth and another v. Magan Lal and others, (1970) 2 GLR (2), according to which decision, the proper article in respect of a suit by one co-sharer against the other for division of immovable property is Article 120 (113 new) and not Article 127 (110 new) or Article 89 (3 new). It was further observed that the starting point of limitation under old Article 120 would begin from the date when the co-heir claims to be in adverse possession, has openly asserted title to the property, has continued in possession of the property, to which he has asserted title and his claim has come to the knowledge of the party excluded. It may be that the open ascertion of title need not be by declaration, but may be by conduct and it should be sufficiently clear to amount to an open assertion and it should come to the knowledge of the other side. It was urged that even in accordance with the plaintiffs, the possession of the defendant had become adverse to their knowledge at least from the date of the notice if not earlier. The next decision relied upon by the learned counsel for the appellant is Yerukala v. Yerukala, ILR (1922) 45 Madras 648 (3), wherein it was held that after the severance of the joint status, the properties remaining undivided were held by the brothers as tenants in compound and the Article applicable for a suit for partition was 120 (113 new). Time would begin to run from the date when the account was demanded and refused. In the case in hand it was so done by the notice.
7. On the other hand, the learned counsel for the respondents contended that firstly, the cause of action arose when they asked the defendant to actually partition the property on 1-12-1968 and on several other latter dates but the defendant evaded it on one pretext or the other. Though he denied the averment in the plaint in this regard, yet the defendant never joined issue on that; secondly, in 1963 one of the defendants, Rakesh Kumar, was minor and came of age in the year 1966 and, therefore, the suit will be within limitation as far as Rakesh Kumar is concerned and in a suit for partition of joint family property, if one member has a right to sue, it is available to the other members too; so, as long as the right of one of the plaintiffs, namely, Rakesh Kumar is not foreclosed by limitation, the suit filed in 1969 was in any case within limitation; thirdly, the time spent in the suit for injunction which was filed on 17-8-1963 against Nanak Chand which was refused on 29-9-1966, on the ground that the suit was not even maintainable because a Hindu son had no right to demand partition of the co-parcenary property during the life time of his father, and, therefore, had no right to interfere with his legal right to deal with it has to be excluded under Article 14 of the Limitation Act, as spent in bona fide and diligent persuit of a legal proceeding in another court. The suit was lost because the position of law was not correctly appreciated by the learned Sub-Judge.
8. After consideration, we agree that the contentions of the plaintiffs ought to prevail on all the points but we wish to say something regarding the article of limitation applicable to the case.
9. Separation from the joint family involving severance in status with all its legal consequences is quite distinct from the de facto division into specific shares of the joint property. One is a matter of individual decision, the desire to cover himself and enjoy his hitherto undefined and unspecified share separately from the others; whilst the other a natural resultant from his decision is the division and separation of his share which may be arrived at either by private agreement or by arbitration appointed by the parties or in the last resort by the court. One should not confuse the severance of status, with the allotment of shares. Therefore, a division in status takes place when a member expresses his intention to become separate unequivocally and unembiguously, and makes it known to other members of the family from whom he seeks to separate. The process of communication may vary in the circumstances of each particular case. The filing of a suit for partition is clear expression of such an intention. A decree may be necessary for working out the rsults of severance and for allotting definite shares, but the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate whether he obtains a consequential judgment or not: see Mt. Girju Bai v. Sada-Dhundiraj and others, AIR 1916 P.C 104, (4) Suraj Narain v Ikbal Narain, (1913) 40 I.A 40, (5), and Kawal Narain v Budh Singh, AIR 1917 P.C 39 (6) partition in its larger sense, no doubt, therefore, consists in a division by which the share of each co-parcener with respect to all or any of the joint property is fixed, and once the shares are defined, the partition in the sense of severance of disruption of the family is complete, but after ‘the shares are so ascertained’, the parties might elect either to have ‘a partition of their shares by metes and bounds’ or continue to live together and enjoy their property in common as before.' Whether they did one or the other would affect the mode of enjoyment, but not the tenure of the property or their interest in it. The joint ownership turns into possession and enjoyment in common until the physical partition takes place according to the shares standing at the date of severance of status. It is no more in doubt that a suit for such physical partition is governed by Article 120 (113 new) as was held in Raghunath Das v. Gokal Chand and another, AIR 1958 SC 829(7), and Mst. Rushmabai v. Lala Laxminarayanan and others, AIR 1960 SC 335(8). Such a suit under Article 113 is to be brought within three years from the time when the right to sue accrues. If the date of service of notice is the date from which the limitation is to start, then in virtue of section 30 of the Act, the suit should have been brought latest by 17-5-1969 but it was filed on 23-7-1969. It appears thus ex facie barred by time but ex facto it is not so. The crucial question in such cases is when a right to use accrues, there can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or, at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted: Mst. Bolo v. Mt. Koklen and others, AIR 1930 P.C 270(9). Where there are successive invasions or denials of a right, the right to sue under Article 120 (Article 113) accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such right, however, ineffective or innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether the threat effectively invades or jeopardises the said right: Mst Rukna Bai v. Lala Laxminarayan, AIR 1960 SC 335. The right to partition sprang into existence in this case when the notice of severance and demand for partition was served, but right to sue did not accrue until the defendant infringed or threatened to infringe that right. The plaintiffs had averred that it was in 1968 and afterwards that the defendant began to infringe the tenancy-in-common and deny their right to share. Such a pleas could be defeated by a specific denial and by proof that the right had been lost on account of ouster and exclusion that is adverse possession for more than the statutory period that is for not less than 12 years, vide Govindrao and another v. Raja Bai and another, AIR 1931 PC 48(10). That is the effect of Article 65 and section 27 of the Limitation Act. We are, therefore, of the view that the suit is not barred under Article 113. Consequently, we reject the argument so assiduously and ably built by Mr. Malhotra in this regard.
10. Mr. Malhotra also tried to urge that the suit was barred by Order 2 Rule 2 CPC, but we do think that the nature of the earlier suit and the present suit being different, there can be no question of such a bar and reject this submission.
11. The other question that was seriously debated is that the properties held by Banarsi Das were held by him as a sole surviving co-parcener before the adoption by him of Nanak Chand who succeeded to properties not on account of the said adoption but on account of the bequest made in the deed of adoption (Ex. D1/55) executed on 29-3-1927 and registered on 31-3-1927. The execution of this document is not in dispute. What is in dispute is its interpretation. It was contended by Mr. Malhotra that the deed directs that the adopted son shall be the “Malik” of “Men Matraka”, what “Matraka” means is an estate of the deceased person, and the word “Malik”, when used in a will described the position of the device as an owner possessed of full proprietary rights including a full right of alienation: Pearey Lal v. Rameshwar Das, AIR 1963 SC 1703(11). The testator must have intended to convey these accepted meanings of the words. Since Banarsi Das was the sole surviving co-parcener, the properties in his hand were as good as self-acquired properties and he could dispose of them by will. If such a sole surviving co-parcener takes a person in adoption and also makes a disposition of his property, then the adopted son is bound by that disposition. Reliance was placed on Lakshmi v. Subramania, (1889) ILR 12 Madras 490(12), and Krishna Murthy Aiyar v. Krishnamurthy Aiyar and others, AIR 1925 Madras 932 (13). The learned single Judge observed that the recital in dispute only conveys that Lala Banarasi Das at best only meant to constitute the adopted son as heir to the property let at his demise and not create a bequest to come into effect after the death. He rejected the contention of the defendants and held that the document (Ex. D1/55) was only an adoption deed and not a will. We agree with this construction. Quite simply, the disputed words only purport to convey that after his death, his adopted son will be the owner of the properties left by him, that is to say that during their life time they both will hold the property as co-perceners and after his death the property will certainly pass on to Nanak Chand, defendant No. 1 subject, of course, to all legal incidences. That apart, the deed itself demonstrates that the first act of Banarsi Das was to take Nanak Chand into adoption and the second and subsequent act was the so-called disposition of the property. Long ago it was settled by the Privy Council that there can be no conditional adoption. It cannot be undone. It cannot even be restricted by any condition to which the natural father may have agreed before-hand in order to effect adoption. While reversing the decision in Krishna Murthy Aiyar v. Krishnamurthy Aiyar (supra), the Privy Council, in Krishna Murthy Aiyar v. Krishnamurthy Aiyar, AIR 1927 PC 179 (14). placed it beyond doubt that when a disposition is made inter vivos by one who has full power over property under which a portion of that property is carried away, no rights of a son who is subsequently adopted can affect that portion which is disposed of, but the position is quite different when the adoption is entecedent to the time on which the disposition is meant to take place. The rights which flow from adoption are immediate and the disposition if given effect to, is inconsistent with these rights and cannot by itself via propria affect them; the will speaks at the death of the testator when the property had already passed to the adopted son who had become a co-parcener with his father and the will shall have no effect against him rather there will be no property to which the will could be applied once an adoption takes place, the adopted child becomes a member of the co-parcenary and his bound by no conditions because the adoption is irrevocable. Any disposition of property made after adoption will, therefore, be invalid, and not binding. Consequently, it is not proper or lawful to read anything more in the disputed words than what the learned single Judge has done, Nanak Chand as soon as he was adopted, became a member of the co-parcenary and the father had no right to make a will, because it is not a valid devise as a coparcener's power of alienation is founded on his right top-partition. That right dies with him and the title of his co-sharers by survivorship vesting in them at the time of his death, there remains nothing upon which the will can operate: Seth Laxmichand v. Mst. Anadi and others. AIR 1926 PC 54 (15). The family (is a sort of corporation) having a continued existence, a separate legal entity. As between co-perceners, there is complete community of ownership and unity of possession. A co-parcener has no power to devise his interest by will. Nor is there any question of succession to it: Sri Ram v. Collector, Lahore, AIR 1942 Lahore 173(16).
12. Even if one were to hold that Nanak Chand got the property in virtue of the alleged will, the property having been bequeathed to him by the sole surviving coparcener, shall, in the absence of any clear intention, whether express or implied, be ancestral property in his hands vis-a-vis his own issues, vide C. N. Arunachala Mudaliar v. C. A. Murugnatha Mudahar and another, AIR 1953 SC 495 (17); and he had no power or authority to dispose of it by will: Kalyani v. Narayanan and others, (1980) 2 SCR 1130 (18). None of the plaintiffs was born when the will was made, and, therefore, there was no occasion for him to convey that the grandchildren shall stand disinherited. Much weight has to be attached to the normal feature of life that a Hindu would not deprive his sons and grandsons of their right of inheritence. Mst. Bolo v. Koklan, AIR 1930 P. C. 270. Taking the document and all the relevant facts into consideration, it could not be said that by the mere use of the words ‘Malik Matruka’ the donor intended to confer a bounty upon his adopted son exclusively for his benefit and capable of being dealt with by him at his pleasure and not to pass on to his children. From the very intention to adopt, it can be presumed that he wanted the family and the property to perpetuate. Indeed, there is overwhelming evidence to show that the properties were treated as joint family property as is clear from the registers (which are now said to have been destroyed), the several returns filed by the defendant and the assessment orders made by the income-tax authorities right from 1947-48 to the year 1969-70. In the suit filed on 28-12-1961 by one Vishwanath Gupta, the defendant Nanak Chand in his written statement (PW7/24) had stated on 22-1-1963 that the house property No. 3894 was the property of the undivided joint Hindu family. It was contended that the declaration made by the defendant in the income-tax returns cannot be relied upon as evidence to return a finding about the existence of the joint Hindu family properties, firstly because those declarations are privileged documents in virtue of sections 137 and 138 of the Income-tax Act, 1961 and secondly, because these declarations were made in order to get gain and, therefore, cannot be evidence to prove or disprove the existence of the joint Hindu family, or property. These documents were sham and nominal and not intended to be acted upon but were conceived and executed for an ulterior purpose, vide Rukhmabai (supra), Mudangovinda v. Ramchandran, AIR 1969 SC 1076, (19) and M. Ramanna v. C. Jagannatha Rao, (AIR 1941 PC 48 (20). The learned single Judge rejected these contentions and rightly so. He held that the returns being made on behalf of the HUF, each one of the plaintiffs was entitled to rely upon them. There could be no prohibition against them. That apart, the bar imposed by section 137 was lifted by its omission with effect from 1-4-1964 and no notification under section 138(2) was cited to prevent such information from being disclosed to the court or other authorities. The statements before the income-tax authorities and their orders are not protected and though they may not be conclusive evidence of the status of the family and the property but they are certainly good pieces of admission and conduct to support the case put forward by the plaintiffs. We will, a little later, proceed to see which were the joint family properties in existence at the time the severance of the joint family had taken place sometime in May 1963. Apart from the statement of Chander Kishore made on 7-11-1972 that the family had not been disrupted so far and was still joint, no one has seriously disputed that that is the crucial date on which the nature of the property has to be determined. But Chander Kishore appears to have meant that there was no division by metes and bounds. But before doing so we have to dispose of two more contentions.
13. The plaintiff respondents contend that the marriage of Bimla Devi with their father Nanak Chand, defendant No. 1 was invalid because (1) no Saptapadi was performed before the sacred fire, and (2) Bimla Devi had already stood married to another person of the same name, i.e Nanak Chand, and that marriage had not been dissolved. The defendants, on the other hand, contend that there was no valid marriage of Bimla Devi with the former Nanak Chand. The learned single Judge, as already said, sustained the objection of the plaintiffs and held that all necessary ceremonies were performed at the time of marriage of Bimla Devi with the other Nanak Chand and at the time of her second marriage with defendant Nanak Chand in July, 1952, her previous husband was still living and that the marriage of Bimla Devi with him was not dissolved by divorce even under any custom. The marriage between Bimla Devi and the other Nanak Chand not having been dissolved, Bimla Devi was incapable of entering into a second marriage with defendant Nanak Chand. Her marriage with defendant Nanank Chand was no marriage in the eye of law and, therefore, void ab initio. We have gone through the evidence and we regret that we have to disagree with the appreciation of evidence made by the learned single Judge with regard to his findings on this issue. No doubt, the previous Nanak Chand (PW10) did maintain that he was married with Bimla Devi according to Saptapadi rites. But Bhagwati Devi, mother of Bimla Dei, has deposed that she had arranged, no doubt, the marriage with the other Nanak Chand, but the marriage could not take place. When the barat had arrived it was discovered at that stage that the boy was a drunkard, gambler and had already been keeping a woman in his house and her brother Rattan Lal refused to perform the marriage and Bimla Devi was allowed to be taken away without any marriage by her. She denied that any ceremonies were performed. The learned single Judge disbelieved this testimony because in the Hindu society no mother would send a 13-year old daughter without marriage and because Rattan Lal's wife, Dayawati, though listed as a witness, was not produced and because the statement of the other Nanak Chand with regard to his earlier marriage is corroborated by Rameshwar Dass (PW9) who was the Pandit at the marriage. He said that seven rounds of the sacred fire were taken at the time of Bimla Devi's marriage in 1944. Further, the plaintiffs have produced a sale deed (Ex. PW 10/1) executed by Bhagwati Devi. This deed says that a house was being disposed of by her to meet, inter alia, the debts incurred on the marriage of Bimla Devi which are still pressing. Bhagwati Devi herself had made a statement (Ex. C-1) earlier in the court of the Sub-Judge in the injunction suit that her daughter was married, but the earlier marriage was broken. Bimla Devi had also filed a suit for maintenance against the other Nanak Chand and that suit could not have been filed unless Bimla Devi treated the marriage with the other Nanak Chand valid and subsisting. It was during this suit for maintenance that they both entered into an agreement on 24th May, 1952, vide Ex. D1/54T purporting to cancel the marriage of Bimla Devi. In this document it is written that “whereas our marriage was performed according to the custom of the Biradri about 6-1/2 years ago which was void and illegal and whereas according to the Biradri it has been settled that this marriage could not be treated as a complete marriage.” Nanak Chand (PW 10) explained that there was no divorce between him and Bimla Devi but they got it recorded as aforesaid, so that Bimla Devi could not claim maintenance neither jewellery nor ornaments. The learned single Judge rejected this piece of evidence on the ground that the basis for treating the marriage was void and illegal was not disclosed in the said document and the defendants had no evidence of any member of Biradri who participated in the alleged settlement. The learned Judge, further inferred that the other Nanak Chand (PW 10) executed this document to get rid of the claim for maintenance against him. In the suit for injunction, defendant No. 1 drafted questions (Ex. D1/101-X) for cross-examination of the other Nanak Chand and Rattan Lal. Those draft questions were produced and they supported that inference. Rattan Lal had deposed, vide Ex. D-1/104-X that since the Saptapadi did not take place, the marriage was invalid. In the suit for maintenance this Rattan Lal had deposed that Bimla Devi was previously married to Nanak Chand and that though she did not get divorce but before the court they did separate from each other by Tyag by Ikrarnama (Ex. D-1/54). The learned single Judge concluded that the version of the defendants in respect of the marriage between Bimla Devi and the other Nanak Chand was fantastic and had been set up to meet the claim in this suit, and the whole story was unimaginable and almost fictional. But upon deep reflection, it appears to us quite clearly that when in the suit for maintenance the earlier Nanak Chand declared that he was never married properly to Bimla Devi, his statement cannot be discarded simply on the ground of presumption that such a thing could never have happened. We see nothing fictional in the story. In the suit for maintenance Nanak Chand himself contested seriously the claim that Bimla Devi was his lawfully wedded wife and in order to end the controversy they placed a mutual declaration, the said Ikrarnama (Ex. D1/54T) on record so that both are free to take any spouse if possible. It was an important piece of evidence. It appears, soon after, Bimla Devi was able to marry defendant No. 1 Nanak Chand. This marriage was even admitted by Chander Kishore (PW 7) vide Ex. D1/106 on record on 22-2-1964 wherein he said that Bimla Devi was the second wife of defendant No. 1 Nanak Chand. As against this the learned Judge gave more weight to some admissions of Bhagwati Devi and considered them substantive evidence in view of sections 17 and 21 of the Indian Evidence Act. We are unable to agree with this approach. The learned Judge should have decided the case upon the depositions made before him, though he could have weighed their value in the light of the previous admissions of the witness if not explained satisfactorily. Yet, he could not draw any inferences against Bimla Devi on the basis of admissions made by her mother elsewhere. The draft questions to which the learned Judge alluded, could not be used as evidence against the defendant. Rather, they suggest that Bimla Devi was never married according to Hindu rites to the earlier Nanak Chand. We, therefore, hold that the findings in this regard are against the record and further hold that the first marriage having not been properly performed, was truly invalid. And, by an agreement they snapped whatever connections they did ever have. The other Nanak Chand (PW 10) also confirmed these events by contracting his further marriage or marriages. Bimla Devi (D1W 10) has of course denied the validity of her first marriage. She said that her mother sent her away without requisite ceremonies. In these circumstances, we reverse the findings of the learned single Judge in this regard and hold that Bimla Devi could legally marry defendant No. 1 Nanak Chand. She really did so, and, therefore, she and her sons are entitled to share in the partition.
14. The other contention that came up for consideration was whether in the life time of the father, the sons could ask for partition or not. At one time a view was prevalent that in Delhi like Punjab they could not do so. It was based upon some custom, vide Hari Kishan v. Chander Lal & others, AIR 1918 Lahore 291(21) and Sri Ram v. Collector, AIR 1942 Lahore 183. But since the decision of this court of 22-10-1967 in Khushwant Rai v. Dr. Jagmohar Lal RFA I-D/59 and 24-D of 1959 (22), it is now no more in controversy that the son can ask for partition from the father during his life time. We do not, therefore, propose to dilate any more on this issue.
15. Now, as said in Rukhmabai (supra) there is a presumption that a family is joint but there is no presumption that any property whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which, the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is, his personal property to establish that the said property has been acquired without any assistance from the joint family property. Also see Mudigovinda Courlappa Senth and others v. Ramchandra Revgovinda Senth and another, AIR 1969 S.C 1076. The mere fact that it was purchased in his name does not render the property his separate property for all that is perfectly consistent with the notion of its being joint, vide Mrs. N. Johnstone v. Gopal Singh and others, AIR 1931 Lahore 419 (23), which held that where a member of a joint Hindu family blends his self-acquired property with the property of the joint family either bringing his self-acquired property into a joint family account, or by bringing joint family property into his separate account, the effect is that all the property so blended becomes a joint family property. It is in the background of these principles that we proceed to examine the rival contentions with regard to the properties held to be joint by the learned single Judge.
Shares:
16. The learned single Judge held that the total shares purchased between 1918 and 1949 in the name of Banarsi Das were of the value of Rs. 24,566 and in the name of Nanak Chand were of the value of Rs. 36,943, total Rs. 61,529 and shares of this amount could not have been acquired with the personal income earned by Nanak Chand by salary and tuitions as claimed by him and must, therefore, be presumed to have been acquired out of the income from the joint estate. This finding is attached on the ground that the learned single Judge mis-calculated and ignored the income of Nanak Chand. Radhe Kishan retired on an invalid pension and had no bank account. The only joint family property was the house property descending from Radhe Kishan. One house was purchased by Banarsi Das. The rental income of these properties according to income-tax orders (Ex. PW6/1 to PW6/4) was Rs. 650 in 1946-47, Rs. 763 in 1947-48, Rs. 752 in 1948-49, and Rs. 765 in 1949-50. The accounting year 1946-47 was in close proximity of the death of Lala Banarsi Dasi in 1949 when the rental income was Rs. 40 to Rs. 50 per month as per the deposition of the defendant himself. If correct calculations were made the yearly rental income according to the income-tax returns should work out to Rs. 696. There were placed on record the photostat copies of some of the rent notes and the court directed that the originals need not be produced. No cross-examination was directed regarding that part of the testimony of defendant No. 1 and the statement of defendant No. 1 should have been accepted as true. It was also urged that the learned Judge ignored the letter dated 21-1-1934 (Ex. D1/78) in which Banarsi Das wrote in answer to a query by the Punjab National Bank, that the shares of the Punjab National Bank Ltd. held by him were his self-acquired property. He asked the Bank that the shares in his name and in the name of Nanak Chand should on splitting up be issued in the name of Nanak Chand as he had waived all the rights in favour off Nanak Chand. No doubt as stressed by the learned Judge, the defendant had in the suit before the Sub-Judge K. C. Dewan, Ravinder Kishore v. Nanak Chand, omitted in his reply Ex. PW7/1, dated 22-11-1963 the line “either from my own salary or from bonus shares received from the company” but it was not an afterthought. Such an assertion had already been made by him in the same suit in his written statement Ex. PW7/8 dated 19-9-1963. The learned Judge relied upon the registers 1, 2 and 3 referred to in his letter Ex. PW/622-A written to the income-tax authorities in order to hold that the shares were acquired out of the income from the joint Hindu family properties while correspondence with the Stock and Share Brokers Ex. D1/3 to Ex. D1/9 attached to PW6/22-A did not even remotely show that the shares purchased in the name of defendant No. 1 were joint Hindu family property. Moreover, these registers were not before the court because these had been destroyed long before the controversy in the family had begun and no adverse inference should have been drawn against the defendant. As a matter of fact there was only one register from 1949 to 1969. It was old and much eaten, and was destroyed after the entries were copied out in the new register, that too was later on destroyed but no adverse inference could be raised from its destruction when opposite side had ample opportunity to get it produced before its such destruction during the pendency of the previous litigation. The opposite party had obtained an order for inspection of documents in this litigation on an application on 10-11-1970, but did not care to make any inspection. Moreover, the information with regard to shares compiled in Ex. D1/64, D1/65 and D1/66 along with the letters received from the companies, was more than what could be gathered from the share register. It was further pointed out that the learned single Judge should not have disbelieved the evidence of defendant No. 1 regarding earning money by tuition and translation work during his student days as corroborated by Amarnath (D1.W 6) and Brijlal Gupta (D1.W 8) by observing that “if there is need to augment the income of the family, one may expect a student doing tuition work but not when the family is possessed of sufficient properties and means.” He ignored that plaintiff No. 1 in his deposition Ex. D1/106 made in the court of Mrs. K. Pahwa had admitted that he himself worked as an agent of Premier Motors up to June 1963 and that he too had worked as an agent of the Life Insurance Corporation of India during his student days even before the rift started. He confirmed in this court also that in 1960 when he was a student of Higher Secondary class he worked as an agent of Premier Motors (P) Ltd., though the financial condition of the family at that time was better than at the time when defendant No. 1 did tuition work. Viewed in this light, the findings of the learned Judge call for a reversal.
17. We have considered the points of attack on the findings of the learned single Judge but find no reason to alter them. We agree that shares of such huge amounts could not be plied up without the assistance and nucleus of a joint family income chiefly out of the landed property. The earnings by tuition and salary could not have made up the funds to purchase these shares. By allocating some shares of P.N.B in the name of Nanak Chand does not mean that these were purchased out of the earnings of Nanak Chand. Even Nanak Chand did not make such a claim in his reply Ex. PW7/1 or 22-11-1963. That is why Nanak Chand destroyed the registers which contained the true chronicle of purchase of the shares. We have already noticed how Nanak Chand himself continued to count these assets as those of H.U.F There is thus every piece of evidence demolishing the case now set up by the defendant.
18. Similarly, we also do not find any basis for the contention of the respondents that the shares in the name of the plaintiffs and their sisters should not have been held to belong to the joint Hindu family estate. The ground for challenge is that the shares held in the names of the plaintiffs and their sisters had not been shown as HUF property by defendant No. 1 in any of his income-tax returns filed by him for and on behalf of the HUF right from the beginning up to the year 1972-73 for which period the income-tax returns and assessment orders were already on record. We refuse to draw any conclusion in favour of the plaintiffs simply on the basis of those returns and we agree that defendant No. 1 purchase all the shares of DCM PNB and HGF for the joint estate and for the benefit of the joint Hindu family.
Deposit and Bank Accounts:
19. The appellants next challenge the findings of the learned single Judge that the fixed deposit of Rs. 15,000 available with the Goodwill India Ltd. constituted joint Hindu family property. The learned Judge had found that this deposit was made in 1958 and could not have accumulated without the nucleus of joint family income. We have been shown no reason to hold otherwise. We reject this challenge.
20. The respondents contended that the learned single Judge erred in holding that the fixed deposit in the United Commercial Bank to the extent of Rs. 10,000 was not proved to belong to the joint family. No doubt the defendant No. 1 in his cross-examination has admitted that he deposited the said sum but that was done in the year 1967 and we have already stated that the properties acquired after 1963 will not be taken into account unless it is shown that they were acquired out of the joint property. We are, therefore, unable to disturb the findings of the learned Judge.
21. The respondents further contended that the learned, single Judge failed to considered the admission made by defendant No. 1 that the amount of Rs. 15,000 was deposited in Hindustan Commercial Bank in 1953-54 and that the same was the property of the joint family and as such defendant No. 1 was liable to account for the same. The learned single Judge found that the amount was deposited in a suit for eviction against tenant in order to show that he had the money to undertake reconstruction and it was withdrawn long before 1963. After due consideration, we see no reason to interfere with this finding.
Plots:
22. The respondents challenged the findings of the learned trial Judge that the plots were self-acquired property of the defandent. The learned single Judge had found that the payments made by defendant No. 1 for the purchase of the plot at Shalimar Garden Extension, were made out of the personal income, nor was the land situated near Mehrauli acquired for the joint Hindu family for the reason that the said HUF already possessed one residential house in Delhi. The learned single Judge was correct in holding that defendant No. 1 became a member of the society for acquiring the plot for his own benefit and not for and on behalf of the joint family. We agree with him that these plots were self-acquired properties.
Needle Boxes:
23. The appellants challenge the findings that 31 needle boxes constituted the joint Hindu family property even though there was no reference to these needle boxes in the notice Ex-D/10 in which the entire joint family property was detailed by the plaintiffs and the explanation for the omission was the flimsy excuse put forth by Chander Kishore that if was due to legal advice. They further point out that the needle boxes were the property of Smt. Bhagwati Devi, mother-in-law of defendant No.1 and that is why these were not mentioned in the notice Ex. D1/10. The learned trial Judge should not have ignored the evidence in this regard of Bagwati Devi, Bimla Dev, Amar Nath and defendant No. 1. Further, the document Ex. D1/36 showed that out of 31 needle boxes, 9 had been disposed of and only a balance of 22 boxes were delivered to Nanak Chand on behalf of Bhagwati Devi. The finding that the needle boxes were 31, was wrong. We have considered these objections. In Ex. PW7/11 Nanak Chand had admitted in 1965 that he had 31 boxes with him. His only contention was that those belonged to his mother-in-law Bhagwati Devi. His witness Amar Nath (D 1 W 6) deposed that the needle boxes were purchased through him. Since there is no mention in the bill (Ex-D1/36) about Bhagwati Devi, nor was Bhagwati Devi in a position to manage Rs. 7000, the learned Judge did rightly reject the theory put forward by the defendant.
Ornaments and Jewellery
24. The respondents attack the finding that no jewellery existed. Since there was no definite and reliable evidence except the bare statement of Chander Kishore (PW7), there was no option put to reject the claim that there was any joint family jewellery.
Scooter:
25. The respondents also challenge the finding that the Vespa scooter DLN 8733 constituted joint Hindu family property. The learned Judge was of the view that the money for purchasing it should have come out of the joint family property income. We see no coogent reason not to uphold this finding as well. The scooter has since there been sold. Money deposited in Goodwill Finance Corporation. That amount will be treated as joint property.
Directions:
26. The learned single Judge had fixed the marriage expenses of the daughter at Rs. 25,000 the respondents are demanding more. They are not far wrong. We do not quite understand the objection of the appellants to this amount. How can marriage be performed in less than this sum. The learned Judge has rather kept the amount within the lower line of a reasonable limit. The objection is quite frivolous and is rejected.
27. The respondents contend that the learned Judge should have made the appellants liable to render accounts for Rs. 7000/- obtained in the sale of house No. 3895 in 1958. The learned Judge was correct in saying that in the absence of any allegation of misappropriation against the father and Karta, one has to presume that it was sold for the benefit of the family and the price was perhaps utilised in maintenance of the family or in some of the investments.
28. The learned single Judge had held that the plaintiffs were also liable to account far the receipts and the outgoings of the shares held by them in DCM PNB and HGF, and that defendant No. 1 would not be liable to account for any estate or dealings prior to May, 1963. We cannot find fault with these directions. Before the disruption of the family, it is not possible to ask the Karta for accounts.
29. It was urged that the learned single Judge was in error in holding that the plaintiffs and defendants 2 and 3 will be liable to account for holdings since May, 1963 in respect of Income receipts, sales of shares including accretion in shares without allowing deductions regarding expenses incurred by them during the said period for the maintenance and welfare of the family and education of the plaintiffs. Here again equity and fairness demands that the other members should also render accounts if they had joint assets in their possession. We can see hardly any reasonable objection to this finding.
30. We also agree with the learned Judge that the plaintiffs are liable for account for the transfer of shares made after May, 1963 and pay interest at 6 per cent per annum. It is incorrect for the respondents to say that the shares were not transferred by them.
31. Last of the objections is that costs should have been awarded to defendants 2 to 4 but they are noncontesting defendants and costs could not be awarded to them.
32. Having considered all aspects and features of the case we dismiss the appeal and the cross-objections except that the shares of the members shall be 1/7th each in place of 1/4th each.
The cost of this appeal shall be borne by the parties.
D.K.J Appeal dismissed.
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