JUDGMENT
Beaman, J.
1. The plaintiff sues as a member of a joint undivided Hindu family, alleging that his great grand-father Mulji Jetha, with his son Soonderdas Mulji founded the family fortunes, acquiring great wealth, and that they were joint in food worship and estate; that on the birth of Soonderdas’s eldest son, Dharamsey the joint family consisted of Mulji Jetha, Soonderdas Mulji and Dharamsey Soonderdas; that the various settlements and devises made by Mulji Jetha, Soonderdas Mulji and subsequently by Dharamsey Soonderdas and Gordhandas Soonderdas, were all invalid and beyond their competence, as purporting to dispose of joint family property, in the first instance, and afterwards of joint ancestral family property. That on the birth of Gordhandas, he too acquired by birth a right in the joint family property, and after him his son, since deceased and the plaintiff who is the son of Dharamsey Soonderdas.
2. The defendants representing generally, the estate of Gordhandas, demur, that the plaintiff on his own showing acquired no interest by birth, in the-family property or to so much of it as
had come into the hands of Gordhandas, and had formed the subject of his will; that this being so, the plaint discloses no cause of action, and should be dismissed. Further the defendants plead that by reason of the suit brought by Gordhandas against this plaintiff in the year 1899, the contentions raised in that suit, the decision thereon and the decree, the present suit is res judicata. And to the plaintiff’s averment that he was not properly represented in that suit, the result of which is not therefore res judicata, against him, the defendants reply that that too, is res judicata, by reason of the application for leave to appeal, grounded on the same averment, which was heard, first in this Appeal Court, and again before their Lordships of the Privy Council and rejected. This Appeal Court, and the Privy Council held that the plaintiff had been properly represented in the previous suit.
3. The demurrer rests on this ground. The plaintiff does not allege that when Mulji Jetha started business he had any ancestral property. It is admitted that he built up his business by his personal exertions, and that it was at a much later stage that he associated his son Soonderdas with him in the business. While therefore the defendants appear to admit, and it was so found in the former suit, that Mulji Jetha and Soonderdas Mulji were joint in all respects, joint in food worship and estate, that means no more than that they were joint tenants, and that on the death of Soonderdas before his father, the latter took the whole estate by survivorship, as his own self-acquired property, over which he had full powers of disposition. The basis of this argument is what I may call the doctrine of nucleus, a doctrine which I cannot help thinking has involved the simple theory of the Hindu law, applicable to the joint family estate, in a great deal of confusion. Briefly it amounts to, or is used as amounting to this, that where there has been no nucleus of joint family property, that special estate does not come into being until there has been at least one unimpaired descent. Or in other words to throw it into a concrete form, if a father and son, or two brothers, start upon nothing, and make a fortune, which they use in common to the end of their lives, children being born to them in the meantime, that fortune has the character, rather, of what in England would be called joint estate, than of what in this country would be called joint family property. The important consequence is that in the former
case, the children would take no interest by birth, while in the latter case they would.
4. The demurrer was admirably argued by Mr. Strangman for the plaintiff: it was supported strenuously by the leading advocate at this bar Mr. Inverarity, and after attentively listening to all that could be said on either side, and giving full weight to the rival contentions, and examining much at least of the voluminous case law on the subject, I think I might help a little to simplify it by stating as shortly as I can the reasons on which I rest my conclusion.
5. If we want to get a clear and sound understanding of this vexed question the best way is to look direct, in the first instance, at the fundamental principle, underlying it; not, I think, to approach it, through the medium of innumerable cases, but taking the terms which, in those cases, are overloaded with definitions and distinctions, and trying to find out which are and which are not appropriate, rejecting after this separation, the latter, and getting as well as we can at the real sense of the former. This needs no difficult reflective analysis. We must disentangle the English and the Hindu notions which, owing to a likeness of names, have spread quite a little network of fallacies, and bad argument over the subject. And when the names are separated, it becomes comparatively easy to look clearly at the underlying concepts, and keep them, again, apart. We have joint property, denoting a very special legal idea in England, and we have joint family property denoting a very special legal idea in India. Arguing from the one to the other, because they have the term “joint” in common, has I believe given rise to whatever difficulty Indian Courts may have experienced in dealing with this class of case.
6. While the English joint estate is wholly unknown to Hindu, it is still more emphatically true that Hindu joint-family estate is wholly unknown to English law. But observe how loosely the terms are used, and to what further confusions such use may give rise in such a proposition, for example, as that in a Privy Council case that joint property is unknown to the Hindu law except between coparceners in a joint undivided Hindu family. First, as though it were known, in that form; in other words as though the ” coparcenary ” of an undivided Hindu family holding
property were identical in its legal incidents with either co-parcenary in England, or joint tenancy there; second, as suggesting that a property holding joint Hindu family could only be constituted in
this country in the same way as a co-parcenary in England. For want of terms ready to their hands English lawyers and Judges not unnaturally apply those English terms with which they are familiar, and the connotations of which appear on the surface best to fit the case. Thus in this country
“co-parcenary” is almost uniformly used as synonymous with joint family; and, in this case, that loose and misleading use of the technical term of the English law has afforded counsel an argument,
amounting in effect to this, that, as in England the state of co-parcenary depends upon devise, so there can be no Hindu co-parcenary or joint family property which has not come by its character in the same way. It cannot be seriously contended that the Courts of this country do not use co-parcenary and joint-family as virtually interchangeable terms; and I think it is as impossible to deny that in doing so it has never been thought to impress the notion with the condition precedent of special devise. It is still more inaccurate, in my opinion, to say that the English concept of joint tenancy is represented in this country only in the form of the joint family property. There is an absolutely contradictory principle at the root of the legal notions, and altogether different incidents distinguish them.
7. There are, then, three things to be examined, described as (1) Joint property; (2) Joint-family property; (3) Joint ancestral-family -property. In all three things there is a common subject, property but it is qualified in three different ways. The joint property of the English law is property held by any two or more persons jointly, and its characteristic is survivorship. Analogies drawn from it to joint-family property are false, or likely to be false, for several reasons. One clearly is that they neglect the additional qualifying term “family”. I would make what at first may appear an almost absurdly simple suggestion to clear away a very great deal of the confusion in which discussions of this kind seem to get inevitably obscured. If we insist upon joining the words joint and family, by a hyphen, we shall be helped to realize on each occasion that the essential qualification of this kind of property in India is not jointness only, but a good deal more. Two complete strangers may be joint tenants, according to English law, but in no conceivable circumstances could they constitute a joint Hindu family, or in that capacity hold property. Although I am well aware that there is authority against me, I have always thought, and I still think with all proper submission to the learned Judges who have held otherwise,
that the simple expedient I have suggested, with all that is necessarily implied in it, would have averted a great deal of exceedingly far fetched reasoning and unsustainable analogy in dealing with Mahomedan estates.
8. In the third case, property is qualified in a twofold manner, it must have been joint family property and it must be “ancestral.” It is here for the first time that we come in touch with the nucleus doctrine, the extension of which, beyond its proper sphere, is a fertile source of bad argument. It is obvious that there must have been a nucleus of joint family property before ancestral joint-family property can come into existence. Because the word ancestral connotes descent and therefore of course pre-existence. But because it is true that there can be no joint ancestral family property without a previous nucleus of joint family property, it is not true that there cannot be joint family property without a pre-existing nucleus. For that would be identifying joint family, with ancestral joint family property. The distinctions arising under the case law between the two classes of property thus designated are well enough known, though it would be hard to find any strictly logical justification for them. Where there is ancestral joint family property, every member of the family acquires by birth an interest in it, which cannot be defeated by individual alienation or disposition of any kind. And this, in my opinion, with respect to any judicial decisions to the contrary is equally true of joint family property. The contrary opinion is easily traceable to another origin, and is not, when rightly understood, a contrary opinion at all. But there is a difference, though rather verbal than real, and that is that whereas in the case of joint ancestral property, members of the family acquire a right to their shares by birth ex necessitate et vi termini, in the case of merely joint-family property, the Courts have shown a very strong tendency to refuse to draw even a presumption in favour of this peculiar incident. But that again is a logical, verbal, not a real difference, for it goes beyond the proposition that the property is joint-family property at all, and demands that the person so alleging shall prove it to be so. In the same way of course were there a bona fide dispute whether property was ancestral joint-family property or not, that too would have to be proved. The difference, such as it is, must be sought between first, the character, next, the strength of the presumptions which the Courts are prepared to draw. Where it is known or admitted that some at least of the property of a
joint family has come down to them the presumption is that the whole property is ancestral, and any member alleging that it is not will have to prove his self acquisition. But where it is admitted that when the joint family commenced there was no property, there is not the same unanimity of opinion. There is plenty of authority for the proposition that mere
“commensality” as it is called gives rise to no presumption that the property held under that condition is joint family property. There is likewise plenty of authority for the proposition that it does. My present point however is to strip away all this superfluous conflict, and lay bare the identity between the two classes of property called joint family, and ancestral joint family property. Bating all presumptions, I state as my opinion, without much fear of serious contradiction that where property is admitted or proved to have been joint family property, it is subject to exactly the same legal incidents in every respect, as property which is admitted or proved to be ancestral joint family property. Further that this class of property in India differs radically in origin and essential characteristics from the joint property of the English law.
9. The fundamental principle of the Hindu joint-family is the tie of sapindaship. Without that it is impossible to form a joint Hindu family. With it as long as a family is living together, it is almost impossible not to form a joint Hindu family. It is the family relation, the sapinda relation, which distinguishes the joint family, and is of its very essence. The object of the early Hindu lawyers in clothing this family relation with special legal sanctions and far reaching consequences was quite clearly to preserve the continuity of the family and seems to harmonize completely with so much else that is peculiarly characteristic of the Hindu law and sentiment, similarly exemplified in caste restrictions, and indicative of the deep
interpenetration of law by religion. The first care of the Hindu lawgiver was to perpetuate religious observances, to perpetuate therefore the family, as a permanent unit, of which each succeeding generation was under sacred obligations to perform religious obsequies for the benefit of ancestors. Obviously connected with this is the need of worldly provision, and hence the legal attributes of joint-family property. There can be no alienation or delegation of spiritual duties. If the father could deprive his sons of the whole family property, he might render them incapable of duly discharging his appointed, obsequies, So that where a
father and sons held property together, the sons, along with religious duties, acquired civil rights, and in the same manner their sons and sons and sons, to the uttermost limit of the sapinda tie. That is the theory of the joint Hindu family, and I have no doubt that until English lawyers took it in hand, introducing English notions often on an imperfect acquaintance with the Hindu system, that it was almost uniformly and consistently worked. I do not deny that there were probably always exceptions in favour of special self acquisitions, but these were exceptions, and the general rule was that where father and sons had lived in “commensality” with property applied to the common-uses, whether that property had or had not in the first instance been acquired by the father, it received the impress of joint family property and fell under the law regulating its descent. This shows how entirely misleading it is to use technical English terms such as joint estate, into which no notion of family enters at all, and co-parcenary, in this domain of the Hindu law. Mr. Strangman acutely pointed out one radical difference, that whereas in the joint estate of English law, the inevitable consequence was the termination of the estate with the lives of the joint tenants, the joint family estate was created specially to be enduring and permanent. As I began by saying, the two conceptions not only do not coincide but are radically opposed to each other in every essential point. The accidental incident of survivorship common to them, both is their single point of resemblance, and that again is referable to a wholly different theoretical basis.
10. I return now to the demurrer itself. When it is remembered that not only does the plaint allege (and this must be assumed to be correct here) but that Gordhandas in suit No. 573 of 1899 alleged that Mulji and Soonderdas at any rate were joint in food, worship estate, there is really an end of the matter. If that were so in fact then they were a joint-family, and their property was joint-family property subject to all the incidents of such property in the eye of the Hindu law. For those words are highly technical words in the Hindu law, as administered in this country, being in short the formula for fully describing and connoting all the contents of the Hindu jural conception of joint-family property. Observe, the family is not only joint in food and worship, it is also joint in estate, and being ex hypothesi, a family related by the tie of sapindaship, there can be no other joint estate between its members than the joint-family estate. Attempts have been
made, feebly made I cannot help thinking, to arrive at this conclusion, by such a proposition as that where there has been no nuclues of joint-family property, the property of a joint-family, must be held to be joint-family property or not. according as the intention of the members to make it so, or to keep it separate, is proved. But surely this is only another way of saying that the person alleging that it was joint family property must (in the present state of the law) show that the family was joint in food, worship, and estate, in other words that the members had shown their intention to constitute a joint family, and to hold all their property as joint family property. For the purposes of this argument that must be conceded. Let me guard myself against being supposed to think that in the circumstances of this family which have been fully narrated in a previous judgment, and about which there is no dispute, it need have necessarily followed that what Mulji Jetha made in trade by his own exertions became joint family property between himself and his son Soonderdas. Indeed I think that had the matter come to the proof and had there been no admissions, such facts as are undisputed clearly point to Mulji Jetha, and Soonderdas toofor that matter, having intended not to make this joint family property. But then I do not suppose that they would have been prepared to say that they were as Russell J. finds, joint in all respects, or as Gordhandas admittad joint in food worship and estate.
11. It is true that the plaintiff admits that Mulji Jetha had no property, that he made his own fortune, and that he afterwards associated his son Soonderdas with him. But that allegation does not put the plaintiff out of Court as the learned Counsel for the defendants evidently thought that it did. For the plaint goes on to say that Mulji Jetha and his son Soonderdas first, and then, along with Dharamsey Soonderdas the son of Soonderdas constituted a joint family. What seems to be overlooked by the defendants is that the mere inclusion in the joint family of the son of Soonderdas vitually disposes of the demurrer. For if not only the father and the son join their energies and earnings together, in the manner of members of a joint family, but the grandson, by birth became likewise a member of that joint family and took an interest in the property by birth, it follows that there was a joint family owning joint family property. The nature of a demurrer involves for the sake of that limited argument, the correctness of all the allegations
in the plaint. And if the allegations in this plaint are true, namely that there was first a joint family consisting of Mulji Jetha and his son Soonderdas and that afterwards the joint family was enlarged so as to take in the sons of Soonderdas and their sons, and at the same time it is alleged that none of the members of this family had any right to dispose of the joint family property by settlement or devise, etc., why then it seems to me that there is on the face of these allegations a very good cause of action. I have no doubt whatever in holding that the demurrer fails and must be overruled. The sole ground on which it rests is that Mulji Jetha and Soonderdas made their own money, or rather that Mulji Jetha made it all; and what is implied in this plea is that in such circumstances there cannot be joint-family property. I have I hope shown conclusively that that proposition is untenale. There is nothing either in practice or theory which excludes the possibility of members of the same family, starting a family fortune holding it as members of a joint family, and thereby clothing it with all the legal qualities, and incidents of joint family property, chief among which is that every member born into the family after the property has acquired that character, and before it has been divested of it by partition, obtains by birth an interest in it. Whether in any particular case that has or has not been done would depend upon evidence and would not fall within the scope of a demurrer.
12. The second point argued as a preliminary issue, namely whether the present suit is not res judicata by the decision and decree in suit No. 573 of 1899 evidently proves fatal to the plaintiff. Briefly that was a suit by Gordhandas to have the family trust settlement set aside, to have the will of Soonderdas set aside, to have the will of Mulji Jetha construed, and for the complete determination of all the rights of the parties to it, in the estate of Mulji
Jetha.
13. The present plaintiff was then a minor, and was defendant 8 to the suit. He first contends that he was not properly represented, and therefore that what was decided in that suit does not bar him. Here again ho is met by a second objection, that this contention too is resjudicata. When he came of age he applied for leave under Section 5 of the Limitation Act to appeal after the prescribed period on this very ground, namely, that he had not been properly represented. That question was fully gone into before this appeal Court and the learned Judges held
that he had been properly represented, and refused to extend the period. He then went to the Privy Council, where again there was an elaborate and thoroughly exhaustive argument, in the course of which every point that could possibly be taken was taken, and the result was that their Lordships of the Privy Council held again in effect that he had been properly represented. He now seeks to raise the same question again, and to evade the bar of res judicata, by pointing out that the decisions of the appeal Courts, here, and the Privy Council, in London, were not decisions in a suit. Whether they technically were or not, I have not the.least doubt that the question is res judicata. If not under Section 13, then upon a general principle of law. Were authority needed for such an obvious proposition, I might refer to the case of Ravi Kirpal v. Mussumat Rup Kuari (1883) 11 I.A. 37. It would be indecent and impertinent for an inferior Court to go again into a question which upon full argument had been twice decided by Courts superior to it, and on the last occasion by the Supreme Court. Moreover were there anything in this technicality, the issue has been argued before me on the understanding that all the materials upon which the plaintiff asks me to decide it have already been accumulated in the records of those two hearings. In other words he asks me to take the arguments used
before this appeal Court and the Privy Council, and then to come to a different conclusion. This I should most emphatically decline to do. Holding then that the plaintiff was properly represented, I am next to consider whether the decision in suit 573 constitutes a res
judicata.
14. Again it is too plain to need many words that it does. Observe especially the fifth para of the supplementary written statement, the prayer P. in the plaint, and the final decision, he did not suit the plaintiff at that time to set up the defence. might have set up namely,that neither Soonderdas nor Mulji Jetha had any power to dispose of the property by will or settlement, as it was joint family property. Because as that litigation stood the plaintiff might gain a great deal by supporting the family settlement and Soonderdas’s will, and could apparently lose nothing by admitting Mulji Jetha’s will. I am not at all sure that he did mean to admit it. There is a note somewhere of a remark by his counsel, Sir Griffith Evans, which indicates that the plaintiff was then inclined to dispute that will, and the fifth para of the supplementary written statement points the same way. But whether he disputed it or admitted it makes no difference. As I understand the judgment and the decree, the result was this that the Court held that there was
no joint family property, that there was a joint tenancy between Mulji Jetha and Soonderdas Mulji that on the death of Soonderdas- Mulji Mulji Jetha took the whole by survivorship, that the family settlement was void, and that Soonderdas’ will was also void. Finally, and this is what is most important, that Mulji Jetha’s will was valid and disposed of the entire estate with all accretions etc. That under it (not by survivorship, or as members of a joint undivided Hindu family) Gordhandas and Karsandas, the present plaintiff, took the whole estate as it stood up to that moment, (except the charity property) in two equal shares. It was as I have said open to the present plaintiff to set up in that suit by. way of defence, what is now his case, and that is what he not only might but aught to have done, as he is now advised. He did not do it, then, and by the perfectly well known principles of res judicata, he is precluded from doing it now. It is quite true as Mr. Strangman strenuously contended, that the more prominent features of the contest were the validity of the family settlement, and
Soonderdas will; but it is not the less true that the Court was asked to say that both those instruments were invalid, and that their subject matter consequently fell to be included within the scope of Mulji Jetha’s will, and the Court was asked to construe that will and to determine on that basis the rights of Gordhandas and Karsandas, in all that it purported to have disposed of, that is to say the entire estate, with the exception of the charity trust, as it then stood. That is what the Court did, using the plainest language. It is not now open to the plaintiff to put for a word a second claim to the whole or any part of that property on a different and inconsistent basis. I hold that the suit is barred by res judicata, and must be dismissed.
15. Costs on the plaintiff. To pay the Advocate-General attorney and client costs. Defendants to pay the costs of the demurrer when ascertained by the Taxing Master.
