JUDGMENT
Prinsep, J.
1. Madhub Bera died leaving four sons, who admittedly formed a joint Hindu family. In 1264 Nursingh the eldest separated from his brothers. In 1878, Korunamoyi, the widow and heiress of the son of the second brother Goburdhun, sued the third son Gopeenath, the third brother, and Chintamoni, the widow and heiress of the son of the fourth brother Manikram (deceased), for her share of the family property. That suit ended in a solehnama or compromise under which Gopeenath, on the one hand, agreed to give up 25 bighas to Korunamoyi and 15 bighas to Chintamoni, while Korunamoyi for herself and Bishtupria, the mother-in-law and guardian of Chintamoni, on the other hand, agreed to give up all rights to any family property of the brothers whom they represented.
2. The plaintiff, a minor, being the son of a daughter of the fourth son Manikram the fourth brother as reversionary heir after Chintamoni and Bishtupria Hindu widows having only a life interest, sues to have it declared that this solehnama was collusively obtained, and is therefore inoperative as against him and that he is entitled on the death of these ladies to obtain a one-third share of the family estate held by the three brothers jointly after Nursingh had separated from them.
3. The District Judge in appeal has, in exercise of his discretion, refused to give plaintiff a declaratory decree, first, because, as he remarks many years may elapse before plaintiff can inherit the property, and it is, of course, quite possible that he may not inherit at all. He next seems to think that the object of giving a declaratory decree in a case of this description is to perpetuate evidence, and that this is not a valid ground for exercising the discretion vested in him by law. Lastly, he thinks that, owing to the perishable nature of the moveable property claimed, a decree, which is not likely to be operative until that property has disappeared or altered in value, should not be passed.
4. It appears to us that the District Judge has not exercised a proper discretion in refusing to give plaintiff a declaratory decree, if he has established his right to set aside the compromise.
5. The perishable nature of some of the moveable properties claimed, and the consequent improbability that they would all be in existence or in their present form when the plaintiff’s right to inherit may accrue, is not a valid reason for refusing to set aside any deed or decree which interferes with his right as reversioner.
6. The District Judge has, however, proceeded to hold that the present suit is untenable, because the plaintiff has not sued for the appointment of a manager to take charge of his share of the family property in consequence of the waste committed by the widows. But, as has been already pointed out, this is not a suit to restrain the widow from committing waste, but to set aside a compromise which is, if at all, only voidable by the plaintiff.
7. Lastly, the District Judge, in concurrence with the first Court, has held as Nursingh the eldest of the four brothers separated in 1264, “a division of the family then took place;” that there is no proof of any agreement on the part of the other three brothers to reunite; that mere proof of commensality is not sufficient; and that consequently the plaintiff’s suit must fail on this ground also.
8. The first point then for our consideration is, whether the separation of one member of a joint Hindu family necessarily creates a separation between the other members, and causes the general disruption of that family.
9. If this be so, then it will be for us to determine whether any specific agreement between the other members is absolutely necessary for proof of their reunion, and whether it cannot be presumed from their subsequent conduct.
10. On the first point we have been referred to the case of Radha Churn Dass v. Kripa Sindhu Dass I.L.R. 5 Cal. 474 as an authority for deciding it in the affirmative.
11. On the other hand, we have considered the observations of their Lordships of the Privy Council in the cases of Rewan Persad v. Mussamut Radha Bibee 4 Moore’s I.A. 137 and Mussamut Cheetha v. Miheen Lall 11 Moore’s I.A. 369 (see p. 380) neither of which cases were laid before the Division Bench, which decided the case first mentioned. The judgment of their Lordships in the case of Rewan Persad (p. 168) is in the following terms:
We think that it may be admitted that, the prima facie presumption where there are no circumstances to affect it, is that every Hindu family of this class was an undivided family, and, consequently, this presumption must prevail, unless the circumstances of this case lead to a contrary conclusion. We must, therefore, consider the circumstances, having, however, first directed our attention to some points of Hindu law which may have a bearing upon the conclusion to be drawn from the facts.
First: We apprehend it to be undisputed that a division may be affected without instrument in writing. Secondly: That a division may be either total or partial. Thirdly: That a separation from commensality does not, as a necessary consequence, affect a division, or, at least, of the whole undivided property.
12. Moreover, we find their Lordships in the well-known case of Deen Dyal Lall v. Jugdeep Narain Singh L.R. 4 I.A. 247 (see p. 255) : S.C.I.L.R. 3 Cal. 198 again recognizing the continuance of the joint estate of a family after a partition so as to separate the share of one member. It was in that case held that, although a member of a joint family could not alienate his share in the family estate, the purchaser of his rights in execution of a decree against him, could, by insisting on a partition so as to definitively ascertain those rights, obtain possession of a distinct portion of that estate which represented them.
13. The Judgment proceeds thus:
It seems to their Lordships that the same principle may and ought to be applied to shares in a joint and undivided Hindu estate, and that it may be so applied without unduly interfering with the peculiar status and rights of the coparceners in such an estate, if the right of the purchaser at the execution sale be limited to that of compelling the partition, which his debtor might have compelled had he been so minded before the alienation of his share took place.
14. From these observations we understand that it was not disputed in argument, and it was accepted by their Lordships as a rule of Hindu law, that the separation of one member of a Hindu family does not in itself affect the position of the other members inter se. In the case of Mussamut Cheetha (11 Moore’s I.A., 369), their Lordships (p. 380) thus describe the estate of the family of the parties to the suit:
The family originally consisted of three brothers–Shama Dass, Damodur Dass, and Koonj Kishore Dass. It is admitted on all hands that Shama Dass separated himself from his brothers, and took his share of the ancestral estate as separate property. It is, however, clear upon the evidence (and if the fact be not admitted, it is hardly disputed on the part of the appellant) that the two other brothers continued joint after the separation of Shama Dass; and further, that for many purposes Damodur Dass and the respondent (being his nephew, the son of Koonj Kishore Dass) were members of a joint family at the time of Damodur Dass’ death.
15. Speaking therefore for myself, as one of the Judges who decided the case of Radha Churn Dass, I am of opinion that the point has been definitively decided by their Lordships of the Privy Council, and had these judgments been brought to my notice, my judgment in the case of Radha Churn Dass would have been otherwise. The case must, therefore, be remanded to the lower Appellate Court to determine on the merits, whether the compromise can be set aside. We allow no costs in this Court.
