SUBBA RAO, - (1.) THE following Judgment of the court was delivered by
(2.) THIS is an appeal by certificate granted by the High court at Allahabad against its judgment dated 7/05/1954 setting aside the decree made by the Civil Judge, Agra, in a suit filed by the appellant for a declaration that the properties more particularly mentioned in Schedules B, C and D annexed to the plaint, were his absolute properties. To appreciate the facts and the contentions of the parties, the following relevant part of the genealogy will be useful. JUDGEMENT_287_AIR(SC)_1962Image1.jpg The date of death of Lachhman Prasad does not appear in the record. Jwala Prasad died in 1908 Kashi Ram, in 1924; Ram Lal, in 1914; Banwari Lal, in 1914; and Raghubar Dayal, in 1933. The ancestral house of the family was in village Naugaien, district Farrukhabad. The plaintiff's case is that Lachhman Prasad, his sons and descendants constituted a joint Hindu family, that there was never a partition in the family, that three of the members of the said family, namely, Kashi Ram, Raghubar Dayal and Bhagwan Dayal, jointly startled a business at Agra, that they jointly acquired some properties and houses during the. lifetime of Kashi Ram, some after his death, and others after the death of Raghubar Dayal, and that the said properties were the. joint family properties of the said members, under the Hindu law. His further case in that after the death of Kashi Ram, the business and the properties acquired during's life time devolved upon the plaintiff land Raghubar Dayal by survivorship, and that after the death of Raghubar Dayal the said properties along with the properties acquired during the lifetime of Raghubar Dayal passed on by survivorship exclusively to the plaintiff. The properties. described in :Schedule A are the ancestral properties; those described in Schedule B are the properties acquired jointly by the said three members during the life-time of Kashi Ram; these described in Schedule C are properties acquired by Raghubar Dayal and the plaintiff after the death of Kashi Ram; and the D Schedule properties are those acquired by the plaintiff after the death of Raghubar Dayal. Alternatively, it is alleged that even on the assumption that there wag a partition in the family of Lachhman Prasad, a reunion should be inferred from the conduct of the said three members during the lifetime of Kashi Ram and thereafter. It is further alleged that the defendant, the widow of Raghubar Dayal, filed suits in the Revenue court under the provisions of the U. P. Tenancy Act for half a share in the income of mauza Chaoli Chak Soyam Nagla Kasheroo and mauza Chak Chaharam Talab Firoz Khan that the said Revenue court, framed an issue raising the question of title to the said properties and sent the same for decision to the Civil court, as it should do under the provisions of the said Act, that the learned District Munsif held in Suit No. 15 of 1939, a suit filed in respect of mauza Chaoli, that the plaintiff therein had title to ahalf share in the said village, that the Revenue court, on the basis of the said finding, gave a decree in her favour in respect of half a share of-the income of the I said village and that the said decree was taken on appeal to the District court, and also, on further appeal, to the High court, but without success i.e., the decree of the District Munsif wag confirmed, and that the suits in respect of other villages are still pending. The plaintiff (appellant herein) says that the said finding of the Revenue court does not operate as res judicata in the present suit, and that he is entitled to reagitate the matter. On those allegations the present suit was filed in the court of the Civil Judge, Agra, for a declaration of the plaintiff 's title to the properties described in Schedules B, C and D annexed to the plaint and for a permanent injunction restraining the defendant from executing the decree in Suit No. 15 of 1939. The defendant (respondent herein) in her written-statement alleges that the family of Lachhman Prasad wag divided, that Kashi Ram started a business in Agra only with the aid of his self acquisitions and purchased properties out of the income derived therefrom, that after the death of Kashi Ram the two brothers, Raghubar Dayal and Bhagwan Dayal (plaintiff), got his properties under a will executed by him, that they jointly acquired further properties from and out of the income of the business started by Kashi Ram, and that after the death of Raghubar Dayal the defendant succeeded to the interest of Raghubar Dayal and that, therefore, she was entitled to an equal share in B, C and D Schedule properties along with the plaintiff. She further pleads that' the decision of the Revenue court in Suit No. 15 of 1939, holding that the brothers were not members of a joint family and that, therefore, she succeeded to the, interests of her husband, Raghubar Dayal, in the joint properties, operated as res judicata in respect of the plaintiff's entire claim. The suit was tried by the Civil Judge, Agra, and' the learned Judge gave the following findings: (1) the judgment and decree of the Revenue court in Suit No. 15 of 1939 operated as res judicata. on the question of title of the defendant only in respect of the half share claimed by her in mauza Chaoli ; (2) there was a, partition of the larger family, and that Kashi Ram, Raghubar Dayal and Bhagwan Dayal were the divided members of the ,said joint family; (3) there was no: reunion between the said members; (4) Kashi Ram had. validly bequeathed his properties under a will to his two nephews; and (5) there was a reunion between Raghubar Dayal and Bhagwan Dayal and, therefore, on the death of Raghubar Dayal, Bhgwan Dayal acquired his interest in the plaint schedule properties by survivorship. On the said findings the Civil Judge declared the plaintiff's absolute title to the properties described in Schedules B, C and D, except in regard to a half share in mauza Chaoli. The defendant preferred an appeal against that decree to the High court and the plaintiff preferred cross-objections in respect of his claim disallowed by the Civil Judge. The appeal was heard by a division bench of that court consisting of Agarwala and Gurtu, JJ. The two learned Judges gave different findings but came to the same conclusion in holding against the plaintiff.
(3.) BRIEFLY stated, the findings of Agarwala, J., are as follows: (1) The evidence on the record is not sufficient to establish partition in the family. (2) Though as a matter of law two or more members of a larger Hindu family not belonging to the same branch can form a smaller joint family and acquire properties with all the attributes of a joint Hindu 'family property, in the instant case the evidence does not establish that Kashi Ram,, Raghubar Dayal and Bhagwan Dayal constituted such a unit and acquired the properties; the properties were the self-acquired properties of Kashi Ram, but were bequeathed 'by him 'in equal shares to Raghubar Dayal and Bhagwan Dayal, and after his death they held those properties and those acquired subsequently only as co-tenants and not as members of a joint Hindu family. (3) The finding of the Revenue court in Suit No. 15 of 1939 does not operate as. res judicata in respect of any properties in the suit. In the result, the learned Judge held that the properties described in Schedules B, C and D were owned by the plaintiff and the defendant in equal shares. Gurtu, J., gave the following findings : (1) There was a separation between, Kashi Ram and Jwala Prasad and also between the sons of Jwala Prasad. (2) Two brothers out of four and an uncle cannot in law form a distinct corporate family with the incidents of a joint family and acquire properties for that unit. (3) Kashi Ram could never reunite with his nephews as a matter of law, because Kashi Ram had separated from Jwala Prasad when Raghubar Dayal and Bhagwan Dayal were not even born; nor did he unite with them as a matter of fact. (4) The judgment, of the Revenue court in regard to the question of title would operate as res judicata in respect of the plaintiffs entire claim to the estate of Raghubar Dayal. And' (5) the plaintiff and Raghubar Dayal held the properties only as co-tenants. The learned Judge, though for different reasons, agreed with the conclusion arrived at by Agarwala, J. In the result, the High court allowed the appeal filed by the defendant and dismissed the cross-objections filed by the plaintiff: the suit of the plaintiff was dismissed with costs through out. Hence the present appeal. We shall first take the question whether the judgment of the Revenue court passed on the findings recorded 'by the District Munsif in Suit No.15 of 1939 operates as res judicata in the present suit in respect of the plaintiff's right to succeed to the share of her husband, Raghubar Dayal, in the joint properties. Some of the facts relevant to the question may be recapitulated. The respondent Reoti Devi filed Suit No. 15 of 1939 in the Revenue court for recovery of her share of profits of village. Chaoli against Bhagwan Dayal in respect of 1343, 1344 and 1345, fasli on the ground that she was his cosharer. The present appellant, who was the defendant in that suit, contested the suit, inter, alia on the ground that he and his deceased brother constituted members of a joint Hindu family and that OD his brother's death his interest in the entire joint family property devolved on him by right of survivorship. As the defendant raised the question of title, the Revenue court framed an issue on the question of title raised in the pleadings and referred the same to the Civil court for decision under s. 271 of the Agra Tenancy Act 1926 (hereinafter called the Act). The learned District Munsif decided the issue against the appellant herein, with the result that the Revenue court made a decree on the basis of that finding in favorer of the respondent herein. Against the said: decree, the appellant preferred an appeal (No. 65 of 1941) to the'District court, Agra but that appeal was dismissed. The second appeal filed by him in the High court of'Allahabad was also dismissed. The result of that litigation was that a decree was given in favour of the respondent herein for recovery of her share of the profits of village Chaoli. The question is whether the said decree operated as res judicata in the present suit. The learned Judges of the High court differed on the question of res judicata ; Agarwala, J., held that the said decision of the Revenue court in Suit No. 15 of 1939 did not operate as res judicata while Guru, J., held that it did. ;