JUDGMENT
Mukerji, J.
1. The appellants in this appeal were the plaintiffs in the Court below. The pedigree at p. 11 of the printed record will show that the sons of Baldeo Rai are the plaintiffs. The son of Akalu Rai, who is a descendant of Tirlok Rai, the plaintiffs’ paternal uncle, is the defendant first party. The defendants second party are two ladies. One Mt. Bartana Kunwar, who has at some places been described as Mt. Birta Kunwar, is the widow of Nakchhedi Rai, who represented the first branch of Fateh Narain Rai’s descendants. Mt. Sheodasi, defendant 2 in the second party is the widow of Deo Narain Rai who was a brother of Akalu Rai.
2. The plaintiffs’ case was that they and defendant 1 formed a joint Hindu family and the defendants second party were ladies of the joint family and as such had no Interest in the joint family property. According to the custom of the country and for the consolation of their own, the names of the ladies were entered in the revenue papers. Some people who wanted a disruption in the family, persuaded the ladies to apply for partition of shares that stood recorded in their names. The plaintiffs objected to the partition and thereupon the revenue Court, on 10th June 1924, directed the plaintiffs to obtain a declaration of their title by institution of a suit within the statutory period. The plaintiffs accordingly sued to obtain a declaration that they and defendant 1 were the owners of the property recorded in the defendants’ names and that the defendants had no interest whatsoever in the property.
3. Defendant 1 did not contest the suit. Defendants 2 and 3 filed separate written statements. Their case was that, the family was separate, that Girja Prasad Rai, the son of Sheodasi and Nakchhedi, the husband of Mt. Bartana Kunwar, died as separated Hindus and that the ladies wore rightfully in possession as heirs to the deceased members aforesaid. They relied on a certain document dated 12th April 1919, and added that after that document had been executed, an actual partition by metes and bounds and division of moveable property followed.
4. The learned Subordinate Judge who heard the case held that the deed of 12th April 1919 effected a separation in the family, though there was no sufficient evidence to prove that any actual division by metes and bounds or any actual division of moveable properties followed the execution of the deed. He accordingly dismissed the suit. On behalf of the plaintiffs it has been contended that the learned Judge was wrong in his interpretation of the document of 12th April 1919, and that document did not create a change in the status of the family. It was urged that something more than the mere execution of a document would be necessary for the purpose of creating a change in the status of jointness.
5. It has been conceded and is well established that separation is the result of intention among the members of a joint Hindu family. That separation can be effected either by deed or by acts or both by deeds and acts If the deed be unequivocal in its language and the intention of the parties is clear from it, would not be necessary to prove acts in support of the deed. This was held in the case of Balkshen Das v. Ram Narain Sahu [1903] 30 Cal. 738. The following occurs in the headnote:
They might; elect either to have a partition of their shares by metes and bounds or to continue to live together and enjoy their property in common as before. Whether they did one or the other would effect the mode of enjoyment, but not the tenure of the property or their interest in it, which was, on the principle of the case of Appovier v. Rama Subba Aiyan, determined by the allotment to them of defined shares by the ikrarnama.
The legal effect of the ikrarnama could not be controlled or altered by evidence of the subsequent conduct of the parties; but such conduct in this case was not inconsistent with an intention to subject the whole property to a division of interest, although it was not immediately to be perfected by an actual partition.
6. On behalf of the appellants the learned Counsel quoted the case of Palani Ammal v. Muthuvenkatachala Moniagar A.I.R. 1905 P.C. 49. At p. 748 of 23 A.L.J. occurs the following passage:
But the mere fact that the shares of the coparceners have been ascertained does not by itself necessarily lead to an inference that the family had separated.
7. As already stated the whole matter is one of intention and the question is whether in any particular case there is sufficiently good evidence afforded either by document or by the conduct of the parties or by both to prove the intention. In the passage from the case of Palani Ammal, quoted above on behalf of the appellants, it is not said that a deed alone will not be sufficient to effect a partition in the family. All that the sentence means is that there may be an ascertainment of shares without necessarily leading to an inference that the members of the family, the executant of She document, wanted to separate.
8. Thus clearing the law on the point, which indeed is well settled, we proceed to examine the document of 12th April 1919. It will be found printed at p. 29 of the record. The parties to this document are Nakchhedi Rai representing one branch of Fateh Narain Rai’s family as the first party, Jai Narayan Rai for himself and as the guardian of his younger brother Shyam Narayan Rai representing one of the two branches of the second branch of Fateh Narain Rai’s descendants and Akalu Rai for himself and Girja Prasad Rai as representing the other half of the second branch. The mother of Girja Prasad is also a party. The executants proceed to recite that they had been living jointly up to the date of the execution of the document and expressed the intention to continue to do so, as long as no hostility arose among themselves. Then Nakchhedi Rai states, in ‘unambiguous language that he, the first party, was entitled to and was in proprietary possession of a moiety share in all the zamindari property and cultivatory holdings. Then the defendants second and third parties recited that they were each entitled to and were in proprietary possession of a fourth share. Then the parties agree that, on foot of that document, it would be open to any of the Parties to ask for mutation of names in accordance with the shares declared by the document. Lastly, the executants declare that the debts that may be owing by the family would be paid by each of the different parties in proportion to his or their respective shares. The question is whether this document, taken by itself, was or was not a clear declaration of the intention of the parties to make a change in their status of jointness. We are clearly of opinion that the document did declare such an intention without doubt.
9. A small amount of documentary evidence has been adduced on behalf of the plaintiff-appellants to prove that in spite of the document of 12th April 1919 the parties continued to conduct themselves as if they were members of a joint Hindu family. The first document given in evidence is a sale-deed executed by one Lachhmi in favour of Nakchhedi Rai, Jai Narain Rai and Akalu Rai, dated 21st May 1919. It will be noticed that the heads of each of the three branches of the family figure as the purchasers. It is true that there is no definement of the shares purchased, but it cannot be contended for a moment that the three purchasers were purchasing in equal shares. For, even if the purchase had been made by a joint Hindu family, the shares would have been the same as were declared by the document of 12th April 1919, which were the legitimate shares of the purchasers. Then three rent receipts were read out to us. They only prove that Nakchhedi Rai realized certain rents. The tenants have not been examined to prove whether they paid the entire rent to Nakchhedi Rai or only his proportionate share. Then a judgment of the Munsif of Muhammadabad, dated 28th February 1922, was read.
10. It appears that certain plaintiffs, who had purchased two-thirds shares in a property mortgaged to the family of the present parties, sought redemption of the entire property on the ground that they were owners of a portion of the property. In the written statement that was filed by Nakehhedi Rai he distinctly stated that one-third of the property had been purchased by Akalu Rai and he alone was in possession of the same. When, however, the case came to trial, the learned Counsel for the defendants stated that Akalu Rai’s purchase was on behalf of the entire family. The motive of this statement was that if the purchase was not by one of the several mortgagees, but by all the mortgagees in a body, the plaintiffs would have no right to redeem more than the share owned by them. On making this statement they succeeded in the defence and the plaintiffs were prevented from redeeming more than their two-thirds share. The statement of the counsel, in view of the verified written statement of Nakchhedi Rai, does not afford any such evidence of the conduct of the members of the family, as may contradict a case of separation effected on 12th April 1919. On the other hand, the statement of Nakchhedi Rai establishes that it was recognized by him that the family had separated by the document of 12th April 1919.
11. On consideration of the entire evidence put before us, we are of opinion that the document of 12th April 1919 was intended to create and did in law create a separation in the family and that the plaintiff-appellants’ suit was properly dismissed. We dismiss the appeal with costs.
