JUDGMENT Kendall, J.
1. First Appeals Nos. 34 of 1928, 7 of 1926 and 20 of 1927 have by consent been connected in this Court, although they arise out of three different and independent suits. First Appeal No. 34 is an appeal by the plaintiffs in a suit brought on the basis of a mortgage deed dated 25th March 1909 executed by Durga Prasad for himself and as guardian of his minor nephew Kewal Kishen in favour of two sets of mortgagees. The present plaintiffs represent the mortgagees who had a three-fourths interest in the mortgage money. The other mortgagees had a one-fourth interest. The amount of mortgage money was Rs. 28,000 and carried interest at 11-annas per cent per mensem compoundable every six months. The share of the present plaintiffs in the mortgage money came to Rs. 21,000, and together with interest they claimed nearly Rs. 83,000 in March 1926. The main defence was raised on behalf of Mt. Champa Kunwar, the widow of Debi Prasad, who was a brother of Durga Prasad, and was to the effect that Debi Prasad had died separate and that his interest in the family property had devolved on his widow as a Hindu widow's estate and could not have been mortgaged by Durga Prasad. The position taken up by the plaintiffs was that the family had remained joint, and on the death of Debi Prasad, his interest survived to the other members of the family, who were competent to mortgage the entire estate. Although in the plaint there was no reference to any deed executed by Mt. Champa Kunwar surrendering her rights in favour of Durga Prasad, a registered document dated 6th July 1908 was relied upon during the course of the evidence as showing both that the family was joint and that even if Mt. Champa Kunwar had any interest she had relinquished the same in favour of Durga Prasad before the execution of the mortgage.
2. The learned Subordinate Judge has come to the conclusion that the deed in question does not prevent Mt. Champa Kunwar from asserting that the family was in fact separate, and he has further found that it was established that there had been a partition in the family, with the result that Mt. Champa Kunwar's share had remained exempted from the mortgage. There are a few other minor points including that of limitation which have been decided against the plaintiffs.
3. The original deed of relinquishment executed by Mt. Champa Kunwar is not forthcoming, but the plaintiffs who are strangers to Durga Prasad's family cannot be held responsible for this. As it had been entered in register No. 4, even a certified copy of it was not available to the plaintiffs. They, however, got the original register summoned from the registration office and also got the thumb impression of Mt. Champa Kunwar on a book of thumb impressions separately kept by the office identified by an expert. They also led evidence to prove the execution of the original document by the lady. The learned Subordinate Judge on this evidence was satisfied that she had executed the deed of relinquishment dated 6th July 1908 and we accept that finding.
4. The learned Judge is, however, of opinion that it has not been established that she fully understood the nature and the legal effect of the transaction, or that she was fully aware of her own rights at the time when she executed the document. As she was a pardanashin lady he has held that she is not bound by such a transaction.
5. An abstract of this document is printed at p. 50 of the paper book in first appeal No.34 of 1928, and a fuller translation of it is to be found in the judgment at p. 26 in first appeal No. 20 of 1927. As the dead stands, Mt. Champa Kunwar along with another lady admitted that the executants had no right is the property left by Lala Thakur Das, and that if they appeared or were found to have any right in any way they relinquished the same in favour of Durga Prasad and Kewal Kishen, and that Durga Prasad should manage the property in whatever way he thought proper and the ladies would have no objection whatever. According to the oral evidence the deed was attested by Chokhey Lal, a brother of Mt. Champa Kunwar. The learned Subordinate Judge has also thought that it was not proved that Mt. Champa Kunwar had obtained any independent advice. He was apparently not aware that it has been laid down by their Lordships of the Privy Council in several cases that independent advice in the case of pardanashin ladies is not absolutely necessary: Kali Bakhsh Singh v. Ram Gopal Singh [1914] 38 All. 81 and Faridunnissa v. Mukhtar Ahmad A.I.R. 1925 P.C. 204. One may also say that the presence of Chokhey Lal shows that the independent advice was available to her, although it is a fact that in the other case Mt. Champa Kunwar had stated that she was not on good terms with her brother. The witnesses produced on behalf of the plaintiffs state that after the draft had been prepared it was read to the ladies, who stated that it was correct, and that even after it had been faired out on the stamp paper the document was read out, and the ladies stated that it was correct and that the deed was read over and explained to her by the Sub-Registrar at the time of its registration. Mt. Champa Kunwar's case was that she was made to believe that she was executing a power-of-attorney and not a deed of relinquishment. There is, however, one strong circumstance which has impressed the learned Subordinate Judge considerably, and which also appeals to us. The deed was drafted on the supposition that Mt. Champa Kunwar had no interest whatsoever in this property. At the same time when she executed this document she was therefore labouring under the belief that she had no interest whatsoever in this property. It was in that belief that she signed this deed. There is no evidence on the record to show that she was made to understand that she had really a Hindu widow's estate in the property. We cannot therefore presume that she would have been equally willing to part with this property if it had been previously made clear to her that in fact she did possess a Hindu widow's estate in the property and would remain in possession of it during her lifetime. It is one thing for a person to agree to relinquish all rights when she is made to believe that she has no right whatsoever, and quite another thing to make a gift of those rights believing that they exist. As has been repeatedly laid down by their Lordships, the burden lies on the person relying upon a deed executed by a pardanashin lady to show satisfactorily that not only the nature of the transaction but its legal effect was fully understood by her. If Mt. Champa Kunwar had been induced to believe that she had no rights whatsoever, she cannot be said to have fully understood the effect of the transaction and its legal consequences on her rights which really existed, but which she was made to understand did not exist. Having considered all the circumstances we have come to the conclusion that the view taken by the Court below, that this document should not be upheld to be binding on Mt. Champa Kunwar, must be accepted.
6. The plaintiffs led oral evidence to the effect that before taking the mortgage they had actually made enquiries from Mt. Champa Kunwar, and had been assured by her personally that the family was joint and that she had no right in the property. Narotam and Sham Behari were produced to prove this allegation. The learned Subordinate Judge who heard their evidence was not impressed by them, and has rejected the story holding that it was improbable that a pardanashin lady belonging to a respectable family would talk to strangers within their gaze as deposed to by the witnesses. Having read the evidence we have come to the same conclusion, viz., that there had been no oral assurance given by Mt. Champa Kunwar to the plaintiffs about the mortgage which would operate as an estoppel against her.
7. We now come to the main question, whether the family was separate or joint. On this point the learned Subordinate Judge has not relied so much on the oral evidence as on the effect of a proceeding in Court. Early in 1905, suit No. 10 of that year was filed by Durga Prasad against his brothers Debi Prasad and Govind Prasad and their mother Mt. Parbati for partition of the family property. The claim was not contested by the other brothers, who raised no objection to the partition, but was resisted by the lady on the ground that there was a will of Thakur Das, the deceased ancestor, under which the property had been dedicated to the family idol. The case remained pending for about a year and was disposed of by the District Judge on 23rd February 1906 by an order under which he decreed the claim for partition and allowed the plaintiffs time to apply for the appointment of a commissioner and to deposit the costs for the carrying out of the partition. He held that the will was of no effect and that partition should be made. In the course of his judgment he threw out a suggestion that the sons of Thakur Das had themselves not acted upon the will, but had been borrowing money on the security of the property and had been enjoying the profits, and after having raised the money they wished to establish the will to serve as a defence. Admittedly the separation of shares and the actual partition of the property were not carried out. The decree-holder's case was dismissed for his default on 12th May 1906. Beyond this we know nothing more as to the circumstances under which the litigation terminated. There is, however, in the judgment itself a mention of a previous reference to arbitrators to partition the property in which also no award could be made Debi Prasad died shortly afterwards. The exact date of his death is not known, but he certainly was dead in 1907 when the mutation proceedings took place. Mt. Champa Kunwar has stated that Govind Prasad had died even a year before her husband Debi Prasad's death. We are therefore in the dark, and it is not possible to know definitely whether the partition was not effected because the plaintiff deliberately changed his mind and abandoned the idea of separation, or because there was, owing to some circumstances, an unfortunate default on his part, or whether it was due to the fact that some members of the family died.
8. There is no evidence to show the conduct of Durga Prasad subsequent to the order of the District Judge and before the death of Debi Prasad. But we know that after Debi Prasad's death the name of his widow was not entered in the revenue papers, but the names of the surviving brother and nephew were entered. The mortgage in suit was itself effected within two years of the mutation proceedings.
9. In the case of Girja Bai v. Sadashiv Dhundiraj A.I.R. 1916 P.C. 104 their Lordships of the Privy Council clearly laid down that a separation in status can be effected by a definite expression of an intention to separate made by one member of the family, whether the other members consented to it or not. The same statement of law was re-affirmed by their Lordships of the Privy Council in the case of Kawal Nain v. Budh Singh A.I.R. 1917 P.C. 39. It seems to us that once such a clear, definite and unambiguous expression of intention has been established, it is not further incumbent on the party asserting separation to establish that such an intention was persisted in continuously for any length of time. At the same time it is certainly open to the party pleading jointness to establish that, although such an intention was expressed, it was subsequently definitely withdrawn or abandoned. In the case of Ram Kali v. Khamman Lal A.I.R. 1928 All. 422 (at 879 of 26 A. L, J.) Sen, J., in whose judgment Niamatullah, J. concurred, summarised the result of the various previous decisions on this point in the following words:
Where there is evidence of intention to separate, this can only be annulled by clear evidence of the renunciation of such intention, and in some cases by consensus or agreement on the part of the members of the family to re-unite.
10. We agree with this statement of the law.
11. The institution of the partition suit even irrespective of the previous reference to arbitration of bringing about a partition undoubtedly indicated a clear intention to separate. The suit itself was never withdrawn, but resulted in an order in favour of the plaintiff declaring his right to have the property partitioned and actually ordering a partition. The mere fact that the partition did not come into effect would not necessarily indicate a renunciation of the former intention. In the recent case of Palani Ammal v. Muthuvenkatachala Moniagar A.I.R. 1925 P.C. 49 (at pp. 258 and 259 of 48 Mad.) their Lordships remarked that the fact that any member of a joint family had separated may be proved by his suing for a partition of the joint family property, and the severance may be treated to take effect from the date when the suit was instituted; and that although it is possible that no severance in the joint status results in spite of the filing of a plaint claiming a partition which was afterwards withdrawn:
such a plaint, even if withdrawn, would unless explained, afford evidence that an intention to separate had been entertained.
12. It therefore follows that although the mere fact that a suit for partition was instituted would not have the necessary effect of establishing separation, yet in the absence of any satisfactory explanation or evidence to the contrary it would be evidence of such a separation.
13. In the present case we find that beyond certain conjectures there is no tangible proof or explanation of the claim for partition not having been brought by Durga Prasad in good faith. The order of the District Judge following upon the filing of the plaint affords prima facie evidence of a clear intention to separate which was persisted in till the order was made. There is no reason to assume that this was not a bona fide transaction. None of the parties to that litigation nor any other witness connected with it has bean produced in the case to explain away the effect of this litigation. In these circumstances we must agree with the Court below that there is ample evidence to show that Durga Prasad separated from the other members of the family which necessarily involved the separation inter se among all the members.
14. The share of Debi Prasad was not specified in the order of the District Judge. On that date if Mt. Parbati, the mother, had insisted on her right to claim an equal share, it would have been only one-fourth, but if she did not claim her equal share the extent would have been one-third. Furthermore, if she predeceased her son, the share of each would again be one-third. In the trial Court the plaintiffs did not press that the share of Mt. Champa Kunwar would only amount to one-fourth and not one-third, and there is no ground taken in the memorandum of appeal in First Appeal No. 34 of 1928 that the one-third share which has been set apart by the learned Subordinate Judge for her was in excess of the share to which she was entitled, In these circumstances we must assume that she became entitled to one-third share in the entire estate left by Thakur Das.
15. The three-fourths share held by the plaintiffs in mortgage money included the amount due on a mortgage deed dated 13th July 1908, which was for Rs. 2,000, and was executed in their favour as well as in favour of Suraj Narayan and Chand Behari Lal. Those latter mortgagees were entitled to Rs, 500 out of the principal sum. The plaintiffs produced no direct evidence to show that they paid Rs. 500 to Suraj Narain and Chand Behari Lal or their representatives but merely relied on the fact that the original mortgage deed was in their possession. The learned Subordinate Judge has rightly remarked that the plaintiffs themselves having been the mortgagees of the major portion of the amount, the original bond would naturally have been in their possession since 1908, and that fact would in no way establish any payment made by them to their co-mortgagees Suraj Narain and Chand Behari Lal. We think that the learned Judge is perfectly right in this conclusion. In the absence of any evidence it must be assumed that there is no proof that Rs. 500, with its proportionate interest had been paid by the plaintiffs to their co-mortgagees. The plaintiffs could not have given a valid discharge in respect of the entire mortgage money both on behalf of themselves and their co-mortgagees. We must, therefore, in the absence of any proof of payment hold that this part of the consideration did not actually pass, and that the benefit of nonpayment to the previous creditors Suraj Narain and Chand Behari Lal must go to the mortgagors. The learned Judge has, therefore, rightly deducted this amount with its proportionate interest from the claim.
16. The next question is one of limitation. In 1908 a mortgage-deed was first executed in favour of Mt. Khilla Kunwar or her predecessor. A second mortgage was executed in 1904 in favour of Fateh Chand and Hira Lal. These latter are the mortgagees entitled to a one-fourth share in the mortgage in suit, which was executed in 1909. The present plaintiffs who took the third mortgage paid off Mt. Khilla Kunwar's mortgage of 1908 on 22nd July 1908. This sum was left in their hands for payment to the prior mortgagee. Fateh Chand and Hira Lal sued upon their second mortgage and impleaded the present plaintiffs, who were all subsequent mortgagees, but had paid off a prior mortgage. The Court held that Fateh Chand and Hira Lal could not be compelled in thai suit to redeem the previous mortgage of 1908, but that the sale should be ordered subject to that prior mortgage. The present plaintiffs, viz., the third mortgagees, did not redeem the second mortgage, but allowed the property to be sold at auction and purchased by Fateh Chand and Hira Lal. It is quite clear that this sale was free from the third mortgage of 1909. If no such sale had taken place the plaintiffs would have been entitled to claim a charge for the amount of the mortgage of 1908 on the strength of their own mortgage of 1909: but the property was sold free from the charge created by the mortgage of 1909. Accordingly the only remedy that was left open to the present plaintiffs who had paid off the prior mortgage of 1908 was, if not to sue on the basis of the mortgage of 1908 of which strictly speaking they were not assignees, to recover the amount by enforcing a charge on the property within 12 years of the date of their payment: Sahib Lal v. Munni Lal A.I.R. 1922 All. 153.
17. As there was a period of five years fixed for payment of the mortgage of 1909 their claim based upon it is within time, but more than 12 years have expired since 22nd July 1908 when they paid off the mortgage of 1908. The learned Subordinate Judge has accordingly held that the claim to recover the amount of the mortgage of 1908 is barred by time. We think that this view; is perfectly correct. The plaintiffs cannot now recover this amount.
18. The learned advocate for the appellants has lastly asked that the rateable distribution of the liability has not been fair and has pointed out that it is based on a deed of 1915 and not on the value of the properties in the year 1909,. when the mortgage-deed was executed. It is urged that the basis should have been the price fetched at an auction sale of this very property in 1910. We think there are good reasons why the learned Subordinate Judge has adopted the deed of 1915 as the true basis for determining the ratio. One of the items of the properties is a house, as to which the only evidence on the record related to its present liability. In order to arrive at any fair approximation it would be more convenient to take the nearer year 1915 than 1910. Furthermore, the price fetched at auction is seldom the correct criterion for determining its true value. In the absence of any better evidence we are not disposed to disturb the rateable distribution, which has been fixed by the learned Subordinate Judge. The plaintiffs, having acquired an absolute interest in some of the properties foreclosed in the name of a female member of their family, have become owners of part of the properties mortgaged and the integrity of the mortgage-deed has undoubtedly been broken.
19. We may note that ground 11 taken in the memorandum of appeal in First Appeal No. 34 of 1928. which was directed against the clients of Mr. Panna Lal, has been pressed before us. This related to certain properties, which have been found by the Court below to have been acquired subsequently to the mortgage of 1909, and, therefore, not to have been mortgaged under that deed.
20. On the finding that Mt. Champa Kunwar is not bound by the deed of relinquishment, dated 6th July 1908, the decree in her favour in First Appeal No. 20 of 1927 must be upheld.
21. The only new point raised in First Appeal No. 7 of 1926 is that the plaintiffs should have priority over the other mortgagees, who are entitled to a one-fourth interest. This plea is based on the supposition that they have paid off the prior mortgage of Mt. Khilla Kunwar. We have held already that the rights which accrued by virtue of this payment have been extinguished by lapse of time, and no question of priority now arises.
22. First Appeal No. 20 of 1927 arises out of a suit brought by Mt. Champa Kunwar and Mt. Dhanwanti Kunwar to recover possession of a one-third share in the estate. The plaint alleged that a part of the property had been transferred by Mt. Champa Kunwar to Mt. Dhanwanti Kunwar under a deed of gift, dated 14th May 1923, and the relief claimed was separate possession to the two plaintiffs of the two sets of properties respectively. In the written statement the contesting defendants merely stated that "the deed of gift referred to is not for want of knowledge admitted." There was a further plea that Mt. Champa Kunwar had no right to make the gift at all. The original deed of gift was produced in Court, and it bears the signature in Hindi of Mt. Champa Kunwar herself. When Mt. Champa Kunwar was in the witness box, she admitted having made the gift to Mt, Dhanwanti Kunwar and actually identified her signature on the document. The Court marked it as Ex. 16. Udho Singh, who had signed the document as a witness, was produced and proved his own signature on the document but stated that Mt. Champa Kunwar had not put her signature on it in his presence. On 19th September 1926, when the learned Subordinate Judge delivered his judgment, he held that the deed of gift was not proved according to law inasmuch as no proper attesting witness had been called.
23. In the first place, there was no specific plea taken in the written statement that the deed of gift even if executed was not valid as a deed of gift, because it had not been properly attested. The question of attestation was not in the forefront in the eyes of the plaintiffs. We also find that the denial of the execution of this document was by no means specific. All that the defendants had done was to put the plaintiffs to proof of this deed, because they themselves had no knowledge of its execution. That obviously was not a specific denial of the execution by Mt. Champa Kunwar. It was not a case of enforcing a gift against the donor, but the donor herself was admitting its genuineness.
24. On the very day on which the learned Judge delivered his judgment, viz., 9th September 1926, Act No. 31 of 1926 came into force under which a proviso to Section 68, Evidence Act, which required the calling of a witness, was added. Under that proviso it became no longer necessary to call an attesting witness in proof of execution of any document not being a will which had been registered... unless its execution by the persons by whom it purports to have been executed is specifically denied. The law of evidence is a law of mere procedure and does not affect substantive rights.
Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be Gardner v. Lucas [1878] 3 A.C. 582 (at p, 603),
25. The learned Subordinate Judge had already admitted this deed as having been duly proved, and had marked it as an exhibit. It was only on 9th September, when the new amendment had come into force that ho ruled that it was not admissible. We think that the execution not having bean specifically denied, there was no bar to the admissibility of this document, particularly when the executant herself had admitted it. In any case we are now dealing with this question in appeal and are entitled to admit documents which were tendered in evidence in the Court below, and which according to law as it stands today are admissible in evidence and have been formally proved We therefore think that it must be held that the plaintiff sufficiently complied with the requirements of the law in proving that a valid deed of gift has been executed by Mt. Champa Kunwar in favour of Mt. Dhanwanti Kunwar, under which the latter became the donee of the share in mauza Simarai. It might also be added that inasmuch as both Mt. Champa Kunwar and Mt. Dhanwanti Kunwar had joined in the suit, even if the deed of gift was not established, the claim of Mt. Champa Kunwar with regard to the whole property might well have been decreed.
26. The learned advocate for the respondents, however, brings to our notice the fact that on the death of Mt. Dhanwanti Kunwar one of her stepsons, viz., Raghunandan, aged six years, has not been brought on the record, and that a stepdaughter who is married has also been left out. Under the deed of gift, which is printed at p. 34 of the paper book of this appeal, the property was to go to Mt. Dhanwati Kunwar for her lifetime and after her death to her children and stepchildren in equal shares, and in that way to go back to the family of the husband of the donee. There can be no doubt that a vested interest and not merely a contingent interest was created under the deed in favour of the existing stepchildren of Mt. Champa Kunwar and all of them succeeded to the estate on her death in equal shares. The word used in the deed is "aulad" which literally mean "sons" though sometimes it is used in the sense of descendants. But the clause showing that the intention of the donor was that the property should go back to the family of the husband of the donee suggests that the male children only were meant inasmuch as according to Hindu suppositions a daughter after marriage passes out of the family of her father and belongs to the new family of her husband. We therefore think that on the death of Mt. Dhanwanti Kunwar, her four children and not her husband or daughter became entitled to the estate in equal shares. There was clearly a specification of their shares and they were not joint owners but owners in common. In this view it is quite clear that the omission to bring Raghunandan on the record is to make the appeal abate to the extent of his one-fourth share only; neither more nor less.
27. The result, therefore, is that Appeals Nos. 34 of 1928 and 7 of 1926 are dismissed with costs, and Appeal No. 20 of 1927 is allowed to this extent: that in addition to the decree in favour of Mt. Champa Kunwar given by the Court below, a decree for three-fourths out of the one-third share in village Simrai as detailed in the plaint is given in favour of Sardar Mal, Kishori and Brij Nandan, stepsons of Mt. Dhanwanti. The suit with regard to the one-fourth share of Raghunandan has abated. We direct that the parties should receive and pay costs in proportion to success and failure in First Appeal No. 20 of 1927.
28. No cross-objections were filed in First Appeal No. 34 of 1928. On our finding that the right to claim the prior mortgage money has become extinguished by lapse of time the cross-objections in First Appeal No. 7 are allowed with costs. On our finding that the family was separate, the cross-objections in First Appeal No. 20 of 1927 are dismissed with costs.