JUDGMENT
1. The appeal arises out of a suit for sale based on a mortgage-deed, dated 18th April 1377, brought on 26th February 1910, i.e., practically 33 years after the band was executed, by four persons, by Har Sukh, Parfcab, Deo Hans and Deo Kunwar, in favour of the plaintiff Net Ram and one Mansukh Das, deceased, and covered the sum of Rs. 4,000.
2. Among the present defendants are prior mortgagees and subsequent transferees When the plaint was first filed, the plaintiff who sues alone, claimed therein to be the sole heir and representative of the deceased Mansukh Das and, therefore, entitled to sue alone. He, however, amended his plaint and by the amendment claimed to have acquired the interest of Mansukh Das by survivorship they having constituted a joint Hindu family.
3. Among other defences, the defendants raise the plea that the plaintiff was not the sole mortgagee and not entitled to sue alone It appears that a copy of the original plaint was served on the defendants and not one of the plaint as amended and so in their written statement there was only a denial of the allegation that he was Mansukh's heir coupled with a plea that he could not sue without first obtaining a succession certificate but after the amendment, the following issue among others, was framed:
"Whether the plaintiff has a right to sue and is he the sole survivor of the joint family if any, of himself and Mansukh?" The point for decision, therefore, was whether or not the plaintiff and Mansukh Das constituted a joint Hindu family in which the plaintiff on the death of the latter, took by survivorship.
4. The first Court held that they did not constitute a joint Hindu family; therefore, as there was at least another person, to wit Kishori Lal, who was also an heir to Mansukh Das, the plaintiff in this view was not the sole mortgagee and cot entitled to sue alone (the other heir not being a party). On this gronnd alone, the first Court dismissed the suit.
5. On appeal, the District Judge held that the plaintiff and Mansukh Das were joint and therefore, the plaintiff as survivor was entitled to sue. The District Juge accepted the statements of the plaintiff and Kishori Lal that the former and Mansukh Das were joint. He accepted the plaintiff's evidence which the first Court had rejected and held that the evidence was sufficient to prove that he and the deceased constituted a joint Hindu family.
6. In this view he remanded the case for decision on the merits.
7. On 2nd appeal, it is urged that the evidence does not establish the existence of a joint Hindu family, as contemplated by the Hindu law, consisting of (he plaintiffs and Mansukh Das in view of the admission made by the plaintiff of the disruption of the family by partition, that no re-union between the plaintiff and Mansukh Das has been alleged much less proved;
that under the Hindu Law, there two persons could not re-unite so as to constitute a joint Hindu family; that even if they did reunite, even so being only of half-blood, relations of the full blood, even if separate, would take equally with associated cousins of half blood;
that if they did not constitute a joint Hindu family, the plaintiff alone was not the heir of Mansukh Das and not entitled to sue alone.
8. On behalf of the respondent, it is urged that the lower Court's decision is a finding of fact behind which we cannot go.
9. With this contention we cannot agree.
10. The learned District Judge has accepted certain evidence and, in view of the facts stated therein, has held that the existence of the joint family has been established. In our opinion, accepting this evidence, the existence of a joint family under the Hindu Law is not established.
11. The facts are as follows:
The genealogical table set forth below shows the family of the plaintiff,-
Wiwai Ram, (died 1837) | By 1st wife, 2nd wife, 2nd wife, 2nd wife, 2nd wife, 2nd wife,
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13. By the second wife, he had five sons. The branches of Dwarka Das and Arjun have died out. The plaintiff is the natural son of Rati Ram but was adopted by Salig Ram. His natural brother Ishar Das is alive and has sons but is alleged vaguely to have been adopted by some other person,
14. Balmakund is dead without issue.
15. Kishori Lal (witness) represents the line of Chhote Lal.
16. Mansukh Das died in 1896 without issue. The plaintiff, after alleging that he and Mansukh Das were joint, states clearly that all the other branches of Sewai Ram's family were separate from him and from each, other. He admits that the family of Sewai Ram possessed zemindari and also were money-lenders. He then went on to say that the partition of the zemindari and "lenden" of Sewai Ram was not carried out in his (plaintiff's) life-time between the sons of Sewai Ram but that it had taken place before his birth. He added that he had no papers in relation to it and could not state the year in which it had been carried out and that no one was alive in whose presence it had taken place.
17. He himself was, therefore, personally no party to it. He does not allege any re-union between his branch and that of Param Sukh. All that he can state in a vague manner is that he and his cousin Mansukh were joint and lived jointly.
18. We, therefore, have it as an admitted fact that the sons of Sewai Ram did actually partition the ancestral estate. There is no allegation that Param Sukh and Gulab Chand re-united, or that the other four sons separated leaving those two joint. The presumption, in the circumstances, is that the shares of all the sons were specified before the property was actully divided and that, therefore, in the eyes of Hindu Law all the six brothers were separated. If, subsequently to this, the plaintiff and his cousin Man Sukh joined together and lived in commensality just as two joint brothers might do, this would not, in the eyes of Hindu Law, constitute them a joint Hindu family. But, as we have noted above, no re-union is alleged much less proved. There are merely the bald statements of the plaintiff and Kishori Lal that the former and Mansukh Das were joint and the bare fact that the bond in suit is in favour of the two without any specification of shares. This evidence, in the face of admitted facts, does not show that the two constituted a joint Hindu family as understood by Hindu Law. As plaintiff was no party to the original separation and partition, he legally could not re-unite with his adoptive father's cousin even if they desired this.
19. In our opinion, therefore, the plaintiff's evidence does not establish the existence of a joint Hindu family consisting of himself and Mansukh Das.
20. Kishori Lal, though he has supported the plaintiff, has not relinquished his rights. He has not been made a party to the suit which, in the circumstances, is bound to fail as one of several mortgagees is not entitled to sue and recover the mortgage-debt.
21. The appeal must, therefore, succeed. We, therefore, set aside the decree of the lower Appellate Court and restore that of the Court of first instance. The appellants will have their costs in all Courts including in this Court fees on the higher scale.